United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elkins Park, PA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 19-0896
Issued: November 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 25, 2019 appellant filed a timely appeal from an October 17, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish right ankle
conditions causally related to the accepted March 3, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 17, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 6, 2018 appellant, then a 50-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 3, 2018 she sprained her right ankle due to “snow covered
steps” while in the performance of duty. She noted that she first sought medical treatment on
March 5, 2018. Appellant stopped work and notified her supervisor of her injury on
March 6, 2018.3
In support of her claim, appellant submitted prescription notes and form reports from
Dr. Bruni Leka, a podiatrist. In March 5 and 18, 2018 prescription notes, Dr. Leka reported that
appellant sustained an employment-related right ankle and ligament sprain, and restricted her from
returning to work. In a March 19, 2018 attending physician’s report (Form CA-20), she noted
findings of right ankle pain and swelling and diagnosed right ankle anterior talofibular ligament
(ATFL) sprain. Dr. Leka reported that appellant had slipped and sprained her right ankle when
walking down snow covered steps while delivering mail on March 3, 2018. She checked a box
marked “yes” when asked if the condition was caused or aggravated by the employment incident.
In a March 19, 2018 duty status report (Form CA-17), Dr. Leka diagnosed right ankle sprain and
restricted appellant from returning to work. She reported that appellant was walking down steps
while delivering mail and slipped on ice and twisted her right ankle.
In a development letter dated April 6, 2018, OWCP informed appellant that she had not
submitted sufficient factual or medical evidence to establish her claim. It advised her of the type
of factual and medical evidence needed and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
In support of her claim, appellant submitted additional medical reports from Dr. Leka. In
a March 19, 2018 medical report, Dr. Leka reported that appellant presented for evaluation of a
right ankle sprain which occurred two and a half weeks prior during a work injury. She noted
findings of right lateral ankle swelling. Dr. Leka diagnosed right ankle acute ATFL ligament
sprain work injury. A stress fracture of the metatarsals was also noted as a chronic condition. In
an April 4, 2018 report, Dr. Leka reported that appellant’s pain and swelling in the right ankle had
improved. In a Form CA-17 of that same date, she released appellant to work for four to five hours
per day with restrictions.
By decision dated May 7, 2018, OWCP denied appellant’s claim finding that she had not
established fact of injury as the evidence of record was insufficient to establish that the March 3,
2018 employment incident occurred as alleged. It noted that appellant had not responded to
OWCP’s April 6, 2018 questionnaire. OWCP concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
On May 30, 2018 appellant requested review of the written record by a representative of
OWCP’s Branch of Hearings and Review. In an accompanying narrative statement, she reported
that at approximately 11:00 a.m. on March 3, 2018 she was delivering mail. Appellant explained
that she was walking down steps at a customer’s residence when she “tripped” and fell on the
3
The record reflects that appellant has a February 24, 2017 occupational disease claim which was accepted for a
right foot stress fracture, assigned OWCP File No. xxxxxx514.

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steps. She stated that the steps were covered with snow. Appellant reported that she fell on her
right side, experienced pain in her right ankle, and slowly walked back to her truck.
Appellant also submitted additional medical reports and CA-17 forms dated April 19
through May 31, 2018 from Dr. Leka. Dr. Leka recommended a magnetic resonance imaging
(MRI) scan of appellant’s right ankle to assess an acute ATFL tear of the right foot. She released
appellant to work with restrictions and recommended an ankle brace.
In a May 3, 2018 narrative report, Dr. Leka reported that appellant was under her care for
the March 3, 2018 employment-related injury which occurred while appellant was delivering mail.
She reported that appellant was descending snow covered steps of a house when she twisted her
right ankle and suffered an inversion sprain and ATFL ligament tear as a result. Dr. Leka evaluated
appellant on March 5, 2018 after her pain and swelling had not improved. She reported that
appellant’s symptoms had currently improved, but had not fully resolved. Dr. Leka noted that
appellant was working six to eight hours per day, five days per week as tolerated.
By decision dated October 17, 2018, OWCP’s hearing representative affirmed the May 7,
2018 decision, as modified, finding that appellant had established that the March 3, 2018
employment incident occurred as alleged. However, it denied the claim finding that the medical
evidence of record was insufficient to establish that appellant’s diagnosed right ankle condition
was causally related to the accepted March 3, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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allegedly occurred.7 The second component is whether the employment incident caused a personal
injury.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right ankle
conditions causally related to the accepted March 3, 2018 employment incident.
In a March 19, 2018 Form CA-20, Dr. Leka diagnosed right ankle ATFL sprain. She
reported that appellant slipped and sprained her right ankle in the snow while walking down the
steps delivering mail on March 3, 2018. Dr. Leka checked a box marked “yes” indicating that
appellant’s condition was caused or aggravated by the employment incident. The Board has held
that a checkmark or affirmative notation in response to a form question on causal relationship is
insufficient, without medical rationale, to establish causal relationship.11 Rather, a physician must
provide a narrative description of the identified employment incident and a reasoned opinion
explaining how the employment incident described caused or contributed to appellant’s diagnosed
medical conditions.12 This report is therefore insufficient to establish appellant’s claim.13
In a May 3, 2018 narrative report, Dr. Leka reported that on March 3, 2018 appellant was
walking down snow covered steps and twisted her right ankle while delivering mail, resulting in
an inversion sprain and ATFL ligament tear. However, the Board finds that Dr. Leka’s general
statement on causation failed to provide any explanation as to the mechanism of injury pertaining
to this traumatic injury claim, namely, how twisting the right ankle while slipping on snow covered
steps would cause a right ankle sprain and ATFL tear.14 Her brief statement on causal relationship
is conclusory in nature, as it does not contain an explanation of how the March 3, 2018
employment incident physiologically caused, contributed to, or aggravated the specific diagnosed

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

M.K., Docket No. 19-0428 (issued July 15, 2019); S.S., Docket No. 18-1488 (issued March 11, 2019).

11

S.S., Docket No. 19-0675 (issued August 22, 2019).

12

See V.J., Docket No. 17-0358 (issued July 24, 2018); John W. Montoya, 54 ECAB 306 (2003).

13

K.S., Docket No. 18-1781 (issued April 8, 2019).

14

J.K., Docket No. 19-0462 (issued August 5, 2019).

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conditions.15
relationship.

Dr. Leka’s May 3, 2018 report is therefore insufficient to establish causal

In support of her claim, appellant also submitted prescription notes dated March 5 and 18,
2018; a March 19, 2018 Form CA-17 and a narrative report of even date; an April 4, 2018 Form
CA-17 and a narrative report of even date; and additional medical reports and Form CA-17s dated
April 19 through May 31, 2018 from Dr. Leka. None of these reports, however, provide an
opinion on the issue of causal relationship.16 While she provided diagnoses and provided
restrictions on appellant’s ability to return to work, she did not provide an opinion as to whether
the accepted March 3, 2018 employment incident had caused a diagnosed condition. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.17 These reports, therefore,
are insufficient to establish appellant’s claim.
The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between the March 3, 2018 employment incident and appellant’s diagnosed right
ankle conditions.18 Thus, appellant has not met her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right ankle
conditions causally related to the accepted March 3, 2018 employment incident.

15
See M.S., Docket No. 19-0189 (issued May 14, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019);
B.H., Docket No. 18-1219 (issued January 25, 2019); Birger Areskog, 30 ECAB 571 (1979).
16

R.C., Docket No. 19-0376 (issued July 15, 2019).

17

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

18

K.L., Docket No. 18-1029 (issued January 9, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
SMITHSONIAN INSTITUTE, NATIONAL
ZOOLOGICAL PARK, Washington, DC,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1638
Issued: April 18, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 24, 2017 appellant, through counsel, filed a timely appeal from a March 8, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence after OWCP rendered its March 8, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent periods
of disability from January 16 through February 23, 2013 and from June 9, 2013 through
January 9, 2016.
FACTUAL HISTORY
On August 14, 2011 appellant, then a 49-year-old utility systems operator, was injured
when she slipped down wet stairs at the employing establishment. OWCP accepted her claim for
sprain of the left hip and thigh, sprain of the sacroiliac ligament, and sprain of the lumbar back.
A September 23, 2011 lumbar spine magnetic resonance imaging (MRI) scan noted no
evidence of disc herniation or protrusion, a disc bulge at L5-S1 with no spinal canal compromise,
no evidence of a compression fracture, and no evidence of signal abnormality.
On November 1, 2011 Dr. David Dorin, a Board-certified orthopedic surgeon, found that
appellant could perform light duty such as clerical-type activities for four hours daily beginning
November 3, 2011. OWCP authorized compensation benefits from October 2 through 21, 2011.
Appellant returned to light-duty work on November 6, 2011 working four hours a day.
Dr. Ricardo Pyfrom, a Board-certified orthopedic surgeon, completed a duty status report
on November 1, 2013 and indicated that appellant was totally disabled from work from March 1
through June 10, 2013 due to lumbar strain. On November 1, 2013 he indicated that appellant
could work on November 1, 2013.
Appellant filed a claim for compensation (Form CA-7) for leave without pay (LWOP) for
the period February 24 to June 9, 2013.
In a November 19, 2013 letter, OWCP noted that appellant returned to light-duty work on
November 3, 2011 and requested that she provide factual and medical evidence in support of her
claim for a recurrence of disability. It afforded her 30 days for a response.
Appellant responded to OWCP’s development questionnaire and asserted that her back
condition never resolved. Rather, it worsened in February 2013. Appellant provided a
December 16, 2013 note from Dr. Pyfrom who indicated that appellant reported severe back pain
which required her to go to an emergency room. On December 20, 2013 Dr. Pyfrom noted that
appellant’s low back pain and radicular symptoms escalated in intensity in February 2013.
Appellant did not work from March 11 through June 10, 2013. He found spasms in the lower back
with left lower extremity radiculopathy. Dr. Pyfrom diagnosed lumbar disc disease, lumbar strain,
sacroiliac joint strain, and lumbar radiculopathy. He provided work restrictions and noted that
appellant spontaneously developed radiculopathy with paresthesias in her legs.
By decision dated January 9, 2014, OWCP denied appellant’s wage-loss claim for the
period February 24 to June 9, 2013. Appellant requested an oral hearing before an OWCP hearing
representative. She returned to light-duty work on January 27, 2014. Dr. Pyfrom indicated that
appellant could perform light-duty work on May 20, 2014.

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Appellant testified during the oral hearing held on August 5, 2014, noting that she did not
initially return to full duty work after her August 14, 2011 employment injury. She reported that
she stopped work because her back pain had increased and her doctor found she was totally
disabled until June 10, 2013 when she returned to light-duty work. At the time of the hearing,
appellant had returned to work eight hours a day with restrictions.
On August 19, 2014 Dr. Pyfrom noted that appellant’s back condition worsened on
March 11, 2013 and she did not work until June 10, 2013. Appellant reported that her back and
leg pain progressively worsened. He examined her on July 29, 2013. Dr. Pyfrom noted treating
appellant on July 24, 2012, July 29, November 1, and December 16, 2013, January 27, April 8,
May 20, and July 22, 2014. He provided an October 2, 2012 duty status report (Form CA-17) and
notes dated July 24, 2012 and September 9, 2014.
By decision dated October 23, 2014, OWCP’s hearing representative found that appellant
had not provided medical evidence establishing that she was totally disabled from February 24
through June 9, 2013.
Dr. Pyfrom examined appellant on October 20, 2014 and March 20, 2015 noting that she
was performing light-duty work, but still experiencing pain. He reviewed appellant’s lumbar MRI
scan on March 20, 2015 and found a central disc herniation at L5-S1 as well as bilateral foraminal
stenosis. Dr. Pyfrom noted that appellant could not really work and took several days off because
of the leg pain.
On May 27, 2015 appellant requested reconsideration of the October 23, 2014 decision of
OWCP’s hearing representative. Dr. Pyfrom completed a disability certificate on April 30, 2015
and opined that appellant was totally disabled from March 11, 2013 through June 10, 2015 due to
lumbar disc disease with radiculopathy. On the same date, he found that appellant was still having
pain while walking up and down stairs.
By decision dated September 3, 2015, OWCP denied modification of the October 23, 2014
decision.4
Dr. Pyfrom completed a note on August 20, 2015 and indicated that appellant continued to
experience intermittent periods of back pain with tingling in the left foot. He found muscle spasms
and noted that appellant was performing full-time light-duty work. On October 1, 2015
Dr. Pyfrom completed notes as well as a duty status report (Form CA-17) and found that appellant
could perform full-time light duty with restrictions.
The employing establishment provided appellant with a full-time light-duty job assignment
on November 25, 2015. Dr. Pyfrom saw appellant on December 17, 2015 and noted that she was
trying to work. He advised that she could work light duty.

4
As more than 180 days has elapsed from the date of that decision to the filing of this appeal, the Board does not
have jurisdiction over the September 3, 2015 decision. 20 C.F.R. § 501.3(e).

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On January 14, 2016 appellant filed an additional claim for compensation (Form CA-7) for
the period October 2, 2011 through January 9, 2016. The employing establishment provided time
analysis forms for each two-week period covering the claimed periods of intermittent disability.
In support of her claims for total disability, appellant submitted a July 29, 2013 disability
certificate from Dr. Pyfrom which indicated that appellant was totally disabled from July 29
through August 5, 2013. Dr. Pyfrom completed an additional disability certificate on November 1,
2013 which indicated that appellant could perform light duty.
Dr. Pyfrom completed a report on January 27, 2014 and indicated that appellant could not
work from March 11 through June 10, 2013 due to her increased back pain due to her August 14,
2011 employment injury. In a report dated December 18, 2015, Dr. Pyfrom diagnosed lumbar disc
disease, facet arthropathy, and left-sided lumbar radiculopathy and noted her August 14, 2011
employment injury. He noted that appellant had been on light-duty work restrictions from
December 1, 2011. Dr. Pyfrom further noted, “She also had to miss several days of work and take
leave of absence due to her pain.” He reviewed appellant’s MRI scan dated February 11, 2015
and found L4-5 and L5-S1 disc disease with lateral disc herniation and bilateral foraminal stenosis
at L4-5 and L5-S1. Dr. Pyfrom opined that appellant’s lumbar spine condition was a direct result
of the August 14, 2011 fall.
On January 13, 2016 the employing establishment provided appellant with a limited-duty
assignment which she accepted.
In a January 21, 2016 letter, OWCP requested additional factual and medical information
in support of her claim for compensation from October 2, 2011 through January 9, 2016.5
Dr. Pyfrom, in a February 2, 2016 report, advised that the August 14, 2011 work injury
resulted in muscle and ligament injuries to her back sacroiliac joint, and lumbar discs. He found
that the bulging disc irritated her sciatic nerve. Dr. Pyfrom diagnosed lumbar disc disease with
radiculopathy which was the result of progression of her disc injury with time and ongoing use of
her back to stand, walk, lift, and carry. He explained, “Axial loads applied constantly across the
injury disc level developed degenerative changes with bone end plate developing marginal
osteophytes and the supporting facets have hypertrophied to provide support [for] the disc, which
as a shock absorber, is no longer able to function as effectively.” Dr. Pyfrom noted that the
thickened facet joint were encroaching on the exiting nerve roots of L4-5 and L5-S1. He noted
that degeneration over time from her August 14, 2011 injury was the result of inadequate
intervention to address the initial sprain. He reported, “Her current condition is the effect of bone
hypertrophy occurring as a natural body response to the disc injury.”
By decision dated March 2, 2016, OWCP denied appellant’s claim for compensation for
the period October 2, 2011 through January 9, 2016. On March 10, 2016 appellant requested
reconsideration of this decision.
On April 4, 2016 the employing establishment provided appellant with a light-duty job
offer. In an April 12, 2016 report, Dr. Pyfrom diagnosed intervertebral disc disorders with
5
OWCP noted that the claimed period of disability from February 24 to June 9, 2013 had been formally denied and
would not be readdressed.

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radiculopathy in the lumbosacral region. He noted that appellant was working with light-duty
restrictions, but utilizing sick leave due to too much back pain.
By decision dated June 7, 2016, OWCP denied modification of its March 2, 2016 decision.
It found that Dr. Pyfrom did not address appellant’s specific dates of total disability and that he
generally supported her ability to perform light-duty work.
OWCP received additional evidence. In a May 31, 2016 report, Dr. Pyfrom diagnosed
intervertebral disc disorders with radiculopathy in the lumbosacral region. He also diagnosed
spondylosis with radiculopathy in the lumbar region. In disability certificates dated May 6, 31,
and July 11, 2016, Dr. Pyfrom found that appellant was totally disabled beginning May 2, 2016.
In a note dated July 11, 2016, he relayed appellant’s continued symptoms of lower back pain and
radicular symptoms of burning, tingling, and numbness in her left leg and thigh. Dr. Pyfrom
diagnosed intervertebral disc disorders with radiculopathy in the lumbosacral regions and other
spondylosis with radiculopathy lumbar region.
Also received was a June 2, 2016 proposal from the employing establishment to separate
appellant from her position as she was unable to perform the essential duties required and as there
was no permanent light-duty work available for her.
On August 12, 2016 Dr. Pyfrom noted examining appellant on August 11, 2016. He
described the August 14, 2011 injury and reviewed initial records including the September 23,
2011 MRI scan. Dr. Pyfrom noted first examining appellant on December 1, 2011 due to
persisting low back pain with radiation from the left sacroiliac joint to the left leg and toes of her
left foot. A February 11, 2015 MRI scan showed a moderate disc bulge at L4-5 with significant
hypertrophy of the ligamentum flavum and resulting severe canal stenosis with mild bilateral
foraminal narrowing due to the disc bulge. The L5-S1 level also had a moderate disc bulge with
moderate-to-severe left foraminal narrowing. Dr. Pyfrom found a thickened lumped appearance
of the nerve roots consistent with arachnoiditis. He examined appellant and diagnosed lumbar
strain, sequelae of lumbar contusion, and intervertebral disc herniation of the lumbosacral spine
with radiculopathy. Dr. Pyfrom reviewed his treatment notes relating the progression of
appellant’s symptoms. He explained the changes in appellant’s lumbar spine noting that the
September 23, 2011 MRI scan showed a bulging disc at L5-S1 and that the disc was more
compressed at the time of the February 11, 2015 MRI scan “due to hypertrophic changes of the
ligamentum flavum and hypertrophy of the facet joints in combination with intervertebral disc
bulge.” Dr. Pyfrom noted, “The thickening of ligamentum flavum and the enlargement of the facet
joints are changes occurring to the disc over the time of four years postinjury to lumbar spine
ligaments. Instability at these disc levels were met with the body’s response to try to stabilize the
injured area with thickening of the ligamentum flavum and to reduce pressure on these injured disc
levels by overgrowing the size of the facet joints to increase the surface area thus causing joint
reaction forces to decrease.” Dr. Pyfrom noted similar changes at L4-5. Regarding findings
consistent with arachnoiditis, he advised that, “Arachnoiditis is often a result of direct contusion
of the spine’s bony elements also in contusion of the epidural veins around the nerve roots. The
findings are strongly suggestive that her fall on August 14, 2011 resulted in a significant contusion
of the spinal nerve roots in the lower lumbar spine that occurred when her back hit the steps, but
were not seen on the early MRI scan due to the short time after the injury and the lack of contrast
in the initial study.” Dr. Pyfrom found that appellant was totally disabled.

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Dr. Pyfrom examined appellant on October 27, 2016. He found that sensation to light
touch was decreased on the left in the lateral thigh, calf, and foot. Dr. Pyfrom diagnosed
intervertebral disc disorders with radiculopathy in the lumbosacral region.
Counsel requested reconsideration of the June 7, 2016 decision on December 8, 2016. In
support of this request, he resubmitted Dr. Pyfrom’s August 12, 2016 report. In a note dated
December 5, 2016, Dr. Pyfrom repeated his diagnosis of intervertebral disc disorders with
radiculopathy in the lumbosacral region. He found that appellant was totally disabled. Dr. Pyfrom
submitted a similar note dated February 13, 2017.
By decision dated March 8, 2017, OWCP found that appellant had not submitted medical
evidence establishing that she was unable to perform her light-duty work on the dates in question.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden to establish the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.7 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.8
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proven by a preponderance of the
reliable, probative, and substantial medical evidence.9 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints, without objective findings of disability being shown, the physician has
not presented a medical opinion on the issue of disability or a basis for payment of compensation.10
The Board will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.11
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of record
establish that he or she can perform the light-duty position, the employee has the burden of proof
6

Supra note 2.

7

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

8

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
9

See Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Id.

11

Id.

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to establish by the weight of the reliable, probative, and substantial evidence a recurrence of total
disability and show that she cannot perform such light duty. As part of this burden, the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.12
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.13 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.14 Neither the fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.15
ANALYSIS
The Board finds the case not in posture for a decision.
In support of her claimed periods of total disability resulting in usage of LWOP, appellant
has submitted a series of reports from Dr. Pyfrom. On December 20, 2013 Dr. Pyfrom noted an
escalation of appellant’s injury-related condition and diagnosed lumbar disc disease, lumbar strain,
sacroiliac strain, and lumbar radiculopathy. He opined that appellant had a recurrence of her workrelated injury. On December 18, 2015 Dr. Pyfrom noted appellant’s status and diagnoses. He
concluded that appellant’s lumbar condition was a direct result of the August 14, 2011 fall. In his
February 2, 2016 report, Dr. Pyfrom also noted appellant’s history and opined that the August 14,
2011 injury resulted in muscle and ligament injuries to her back sacroiliac joint, and lumbar discs.
He diagnosed lumbar disc disease with radiculopathy and attributed this condition to progression
of her disc injury with time and ongoing use of her back to stand, walk, lift, and carry. Dr. Pyfrom
provided medical reasoning noting, “Axial loads applied constantly across the injury disc level
developed degenerative changes with bone end plate developing marginal osteophytes and the
supporting facets have hypertrophied to provide support [for] the disc, which as a shock absorber,
is no longer able to function as effectively.” He also noted that the thickened facet joint were
encroaching on the exiting nerve roots of L4-5 and L5-S1. Dr. Pyfrom reported, “Her current
condition is the effect of bone hypertrophy occurring as a natural body response to the disc injury.”
Furthermore, on August 12, 2016, Dr. Pyfrom reviewed appellant’s history, including
comparing appellant’s initial September 23, 2011 MRI scan with the February 11, 2015 MRI scan.
He related his history of treatment and the progression of appellant’s symptoms. Dr. Pyfrom found
12

Terry R. Hedman, 38 ECAB 222 (1986).

13

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

14

Leslie C. Moore, 52 ECAB 132 (2000).

15

Dennis M. Mascarenas, 49 ECAB 215 (1997); T.M., Docket No. 16-1262 (issued January 11, 2017).

7

thickened lumped appearance of the nerve roots consistent with arachnoiditis on the MRI scan.
He examined appellant and diagnosed lumbar strain, sequelae of lumbar contusion, and
intervertebral disc herniation of the lumbosacral spine with radiculopathy. Dr. Pyfrom explained
the changes in appellant’s lumbar spine noting that the bulging disc at L5-S1 was more compressed
at the time of the February 11, 2015 MRI scan “due to hypertrophic changes of the ligamentum
flavum and hypertrophy of the facet joints in combination with intervertebral disc bulge.” He
noted, “The thickening of ligamentum flavum and the enlargement of the facet joints are changes
occurring to the disc over the time of four years postinjury to lumbar spine ligaments. Instability
at these disc levels were met with the body’s response to try to stabilize the injured area with
thickening of the ligamentum flavum and to reduce pressure on these injured disc levels by
overgrowing the size of the facet joints to increase the surface area thus causing joint reaction
forces to decrease.” Dr. Pyfrom noted similar changes at L4-5. Regarding arachnoiditis, he
explained that arachnoiditis often resulted from a “direct contusion of the spine’s bony elements
also in contusion of the epidural veins around the nerve roots.” Dr. Pyfrom opined that “the
findings are strongly suggestive that her fall on August 14, 2011 resulted in a significant contusion
of the spinal nerve roots in the lower lumbar spine that occurred when her back hit the steps, but
were not seen on the early MRI scan due to the short time after the injury and the lack of contrast
in the initial study.” He found that appellant was totally disabled.
These reports contain a history of injury, diagnosis, and an opinion that appellant’s
accepted conditions spontaneously worsened. While Dr. Pyfrom’s reports are insufficient to meet
appellant’s burden of proof, they do raise an uncontroverted inference of causal relation between
appellant’s accepted employment incident on August 14, 2011 and an exacerbation of her
diagnosed condition to include diagnosed lumbar strain, sequelae of lumbar contusion, and
intervertebral disc herniation of the lumbosacral spine with radiculopathy as well as arachnoiditis
and are sufficient to require OWCP to undertake further development of appellant’s claim.16
The issue remains as to whether appellant was disabled from January 16 through
February 24, 2013 and from June 9, 2013 through January 9, 2016 as a result of the August 14,
2011 employment injury.17
Thus, the Board finds that further development is required to determine whether appellant
was disabled from work due to the August 14, 2011 employment injury.18 On remand, OWCP
should prepare a statement of accepted facts and refer appellant to an appropriate Board-certified
specialist for a second opinion examination and rationalized opinion as to whether appellant’s
injuries were causally related to the August 14, 2011 work injury. Following any necessary further
development, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

16

John J. Carlone, 41 ECAB 354, 358-60 (1989).

17

D.C., Docket No. 14-11312 (issued May 6, 2015); E.P., Docket No. 14-1298 (issued January 7, 2015).

18

D.C., id.; K.M., Docket No. 12-0726 (issued January 22, 2013); D.N., Docket No. 09-651 (issued April 20, 2010).

8

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision of the Board.
Issued: April 18, 2018
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-919
Issued: August 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 19, 2010 appellant filed a timely appeal from February 21, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration without further merit review. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision.
Because more than 180 days elapsed from March 5, 2010, the date of the most recent OWCP
merit decision, to the filing of this appeal, the Board lacks jurisdiction to review the merits of the
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 17, 2009 appellant, then a 45-year-old park police officer, filed a traumatic
injury claim alleging that a horse stepped on his left foot during training on December 28, 2008.
In a January 27, 2010 letter, OWCP informed him that evidence was needed to establish his
claim and gave him 30 days to submit a report from a qualified physician explaining how the
work event caused or contributed to the injury. Appellant did not respond.
By decision dated March 5, 2010, OWCP denied appellant’s claim, finding that he failed
to submit medical evidence demonstrating that a diagnosed condition resulted from the accepted
December 28, 2008 employment incident.
Following issuance of this decision, OWCP received a December 30, 2008 report from
Dr. Andrew B. Wolff, a Board-certified orthopedic surgeon, which related that appellant
sustained left great toe pain after a horse stepped on his foot a few days earlier. X-rays exhibited
minimally-displaced left hallux fracture. OWCP also received emergency department records
dated December 28, 2008.
On December 9, 2011 appellant filed a request for reconsideration, asserting that the
employing establishment failed to forward his medical records in a timely manner due to limited
personnel in human resources.2 He submitted a December 29, 2008 case incident report and a
Form CA-16 for treatment authorization. The CA-16 was not signed by a physician.
By decision dated February 21, 2012, OWCP denied appellant’s request for
reconsideration, finding that it was not filed within one year of the March 5, 2010 decision and
did not otherwise establish clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.3 This discretionary authority, however, is subject to certain restrictions. 20
C.F.R. § 10.607(a) provides that a request for reconsideration must be filed within one year of
the date of OWCP’s decision for which review is sought.4 The Board has found that the
imposition of this one-year filing limitation does not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, it must nevertheless

2

An April 12, 2011 letter from the employing establishment corroborated appellant’s statement.

3

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

4

D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340 (issued June 22, 2009).

5

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

2

undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.6
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,7 is positive, precise, and explicit, and manifests on its face
that OWCP committed an error.8 The evidence must be of sufficient probative value to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.9
ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration. The last
merit decision in this case was issued on March 5, 2010. Appellant filed an application to reopen
this decision for further merit review on December 9, 2011. Because more than one year passed
between March 5, 2010 and December 9, 2011, OWCP properly determined that the
reconsideration request was not timely filed.
The Board also finds that appellant’s untimely request failed to demonstrate clear
evidence of error. In its March 5, 2010 decision, OWCP denied his traumatic injury claim on the
grounds that he did not submit any medical evidence establishing that the accepted December 28,
2008 employment incident was causally related to a left toe condition. Thereafter, appellant
submitted new medical evidence, namely a December 30, 2008 report from Dr. Wolff.10 As
noted, the question of whether a claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record. Although Dr. Wolff addressed causal relationship, the underlying issue of
the March 5, 2010 decision, his report did not manifest on its face that OWCP erred in denying

6

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (“The term ‘clear evidence of
error’ is intended to represent a difficult standard.”).
7

See Dean D. Beets, 43 ECAB 1153 (1992).

8

See Leona N. Travis, 43 ECAB 227 (1991).

9

See J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

10

The Board notes that appellant submitted a December 29, 2008 case incident report and a Form CA-16 for
treatment authorization. Neither, however, contained a physician’s opinion addressing the issue of causal
relationship. See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on
which the claim was denied is insufficient to demonstrate clear evidence of error); 5 U.S.C. § 8101(2).

3

appellant’s claim in view of the earlier, deficient case record.11 As the new evidence did not
raise a substantial question as to the correctness of the March 5, 2010 decision, OWCP properly
determined that the untimely request failed to establish clear evidence of error.
Appellant contends on appeal that he relied on the assistance of an understaffed
employing establishment to process his claim. The Board has held that the regulatory language
unequivocally sets a one-year time limit for filing reconsideration requests and does not indicate
that a late filing may be excused by extenuating circumstances such as dependence on others to
navigate the workers’ compensation process.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 23, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

11

See also D.G., 59 ECAB 455, 460 (2008) (the submission of a detailed well-rationalized medical report which,
if submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error; the evidence must prima facie shift the weight of the evidence in favor
of the claimant).
12

B.F., Docket No. 11-1181 (issued December 8, 2011). See also 20 C.F.R. § 10.607.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston, AL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-2149
Issued: June 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 25, 2010 appellant filed a timely appeal from an April 28, 2010 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the schedule award issue.
ISSUE
The issue is whether appellant has a ratable binaural hearing impairment entitling him to
a schedule award.
FACTUAL HISTORY
On January 20, 2010 appellant, then a 64-year-old retired pneudraulic systems mechanic
supervisor, filed an occupational disease claim alleging that he sustained bilateral hearing loss

1

5 U.S.C. § 8101 et seq.

due to noise exposure in the workplace.2 He became aware of his condition and its relationship
to his employment on November 2, 2009. Appellant previously stated in December 21, 2009
questionnaires that he was exposed to loud noise during his 8- to 12-hour shifts. He denied any
preexisting ear injuries and pointed out that he wore earplugs “when it became required.”
An October 9, 1974 audiogram exhibited the following decibel (dBA) losses at 500,
1,000, 2,000 and 3,000 Hertz (Hz): 0, 0, 0 and 10 for the right ear and 5, 0, 5 and 25 for the left
ear. At the same frequency levels, an April 11, 1984 reference audiogram from the employing
establishment showed dBA losses of 5, 5, 5 and 15 for the right ear and 20, 20, 10 and 35 for the
left ear while a November 2, 2009 audiogram showed dBA losses of 5, 10, 35 and 35 for the
right ear and 5, 10, 50 and 45 for the left ear.
An undated employing establishment record noted appellant’s history of exposure to
occupational noise above 85 dBA using an eight-hour time-weighted average. For the periods
August 1965 to July 1967 and July 1967 to February 1972, appellant was exposed to such noise
98 and 41 percent of his workdays, respectively. Thereafter, he was exposed between zero and
six percent of his workdays for approximately 30 years. Based on this data as well as the
April 11, 1984 and November 2, 2009 audiograms, Dr. Ting J. Tai, an employing establishment
physician Board-certified in occupational medicine, determined in a January 19, 2010 report that
appellant did not sustain a compensable hearing loss as he lacked sufficient, long-standing
exposure to high-intensity noise.
A February 18, 2010 statement of accepted facts detailed that appellant worked for the
employing establishment from August 23, 1965 until January 2, 2010. His positions included
trades helper, parts keeper, material segregator and expeditor, artillery repairer and foreman,
shop manager and pneudraulic systems mechanic supervisor. During his tenure, appellant was
exposed to loud noise generated by hydraulic and electric motors, welders, hammers, sanders,
gunfire testing, tanks, cranes, forklifts and other heavy machinery. He first received mandatory
ear protection in 1983.
On February 23, 2010 the Office referred appellant for a second opinion to Dr. Blane E.
Bateman, an osteopath specializing in otolaryngology. In a March 18, 2010 report, Dr. Bateman
observed no irregularities on physical examination. He noted that appellant’s October 9, 1974
audiogram showed normal hearing in the right ear and borderline, high-frequency hearing loss in
the left ear. A March 18, 2010 audiogram indicated diminished discrimination scores of 80 and
68 percent for the right and left ear, respectively and exhibited the following losses at 500, 1,000,
2,000 and 3,000 Hz: 5, 0, 25 and 40 dBA for the right ear and 10, 5, 40 and 45 dBA for the left
ear. In view of appellant’s discrimination scores, noise notch patterns, history of significant
noise exposure at the workplace and failure to use earplugs for approximately 20 years,
Dr. Bateman diagnosed employment-related sensorineural hearing loss. After comparing the
October 9, 1974 and March 18, 2010 audiograms, he further opined that this loss exceeded what
could normally be attributed to presbycusis. Dr. Bateman recommended hearing conservation.
On April 26, 2010 an Office medical adviser agreed with Dr. Bateman’s conclusion that
appellant’s binaural hearing loss was caused by occupational noise exposure and identified
2

Appellant retired effective January 2, 2010.

2

March 18, 2010 as the date of maximum medical improvement. Applying the standard provided
by the American Medical Association, Guides to the Evaluation of Permanent Impairment3
(A.M.A., Guides) (hereinafter) to the March 18, 2010 audiometric findings, he found that
appellant did not have a ratable hearing loss. The Office medical adviser did not recommend
authorizing hearing aids.
By decision dated April 28, 2010, the Office accepted appellant’s claim for hearing loss
due to employment-related noise exposure, but denied a schedule award on the basis that his
hearing loss was not ratable. It also found that the weight of the medical evidence established
that he would not benefit from hearing aids.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. An employee is entitled to a
maximum award of 52 weeks of compensation for complete loss of hearing of one ear and 200
weeks of compensation for complete loss of hearing of both ears.6 However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the “fence” of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA result in no impairment in the
ability to hear everyday speech under everyday conditions. The remaining amount is multiplied
by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss: the lesser
loss is multiplied by five, then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss. The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.8

3

A.M.A., Guides (6th ed. 2008).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(13).

7

20 C.F.R. § 10.404. See also Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

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ANALYSIS
Appellant filed a claim for binaural hearing loss and the Office referred him to
Dr. Bateman. After performing a physical examination and reviewing the statement of accepted
facts and audiometric data, Dr. Bateman opined in a March 18, 2010 report that he sustained
sensorineural hearing loss related to occupational noise exposure. The Office medical adviser
concurred with these findings on April 26, 2010, but calculated that appellant did not have a
ratable hearing loss. It subsequently denied a schedule award in an April 28, 2010 decision.
The Office medical adviser applied the Office’s standard procedures to the March 18,
2010 audiogram obtained by Dr. Bateman. Under the Office’s standardized procedures,
appellant’s left ear recorded losses of 10, 5, 40 and 45 dBA at 500, 1,000, 2,000 and 3,000 Hz.
The total loss was 100 dBA. When divided by 4, the result was an average hearing loss of 25
dBA. The average hearing of 25 dBA was reduced by the fence of 25 dBA to equal 0 dBA. This
figure was then multiplied by the established factor of 1.5, yielding zero percent monaural
impairment of the left ear. At the same frequency levels, appellant’s right ear recorded losses of
5, 0, 25 and 40 dBA. The total loss was 70 dBA. When divided by 4, the result was an average
hearing loss of 17.5 dBA. The average hearing of 17.5 dBA was reduced by the fence of 25 dBA
to equal zero dBA. This figure was then multiplied by the established factor of 1.5, yielding zero
percent monaural impairment of the right ear. As appellant did not sustain a ratable hearing loss
in either ear, he is not entitled to a schedule award.
The Board finds that the Office medical adviser applied the proper standards to the
March 18, 2010 audiogram obtained by Dr. Bateman. The result is a nonratable binaural hearing
loss. Although the record contains other audiograms submitted by appellant, these are of no
probative value as they have not been certified by a physician as accurate.9
CONCLUSION
The Board finds that appellant failed to establish that he sustained a ratable binaural
hearing impairment.

9

See Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss). See
also James A. England, 47 ECAB 115 (1995) (finding that an audiogram not certified by a physician as being
accurate has no probative value; the Office need not review uncertified audiograms).

4

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2010 schedule award decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: June 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mastic, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2281
Issued: June 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 18, 2008 appellant, through counsel, filed a timely appeal from a February 12,
2008 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation benefits and a June 19, 2008 nonmerit decision denying her request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
benefits effective February 17, 2008; and (2) whether the Office properly refused to reopen her
case for further review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 2, 2006 appellant, then a 55-year-old mail carrier, filed an occupational disease
claim alleging that on May 25, 2006 she first became aware that she had carpal tunnel syndrome,
severe tendinitis and de Quervain’s disease. On June 19, 2006 she realized these conditions were
caused or aggravated by her employment, which required repetitious movements. The Office
accepted the claim for right radial styloid tenosynovitis (de Quervain’s disease) and authorized

incision of the tendon sheath, which was performed on March 22, 2007. By letter dated
March 9, 2007, the Office placed appellant on the periodic rolls for temporary total disability.
In a June 13, 2007 report, Dr. Itchak Schwarzbard, an examining Board-certified
orthopedic surgeon, diagnosed a successful de Quervain’s release and basilar thumb joint
arthritis consistent with her symptoms. He found no evidence of recurrent symptoms, first
compartment tendon subluxation, or neuroma formation. A physical examination revealed no
deformity, swelling, tenderness or hyperesthesia at the radial styloid incision site and a negative
sensory radial nerve Tinel’s sign.
On August 8, 2007 the Office referred appellant for a second opinion evaluation with
Dr. Salvatore Corso, a Board-certified orthopedic surgeon, to determine whether she had
residuals of her accepted employment injury. In an August 27, 2007 report, Dr. Corso
recommended physical therapy for appellant for six to eight weeks with a reevaluation after
completion. He diagnosed status post right wrist de Quervain’s release. Physical examination
revealed significant grip strength and wrist weakness.
In progress notes dated September 5 and October 17, 2007, Dr. Schwarzbard diagnosed
symptomatic basal thumb joint arthritis. He opined that appellant’s condition was not responsive
to conservative treatment.
On November 21, 2007 the Office again referred appellant to Dr. Corso for a second
opinion evaluation to determine her current medical status. On December 6, 2007 Dr. Corso
diagnosed status post de Quervain’s release at the right wrist with exacerbation of preexisting
carpometacarpal or basal joint arthritis of the thumb. A physical examination revealed first
dorsal compartment tenderness and significant thumb carpometacarpal joint tenderness with a
positive basal grind test. Dr. Corso opined that appellant’s accepted radial styloid tenosynovitis
condition had resolved. He concluded that appellant was disabled from performing her usual
work duties, but was capable of working with restrictions. Dr. Corso noted that appellant
currently had basilar joint degeneration of the right thumb which was unrelated to her accepted
employment injury. He noted that the condition of basilar joint was a chronic degenerative
condition. Dr. Corso concluded that appellant no longer required any medical treatment for her
accepted employment injury.
In a December 18, 2007 work capacity evaluation form, Dr. Schwarzbard advised that
appellant was capable of working an eight-hour day with restrictions. The restrictions include no
right hand repetitive movement.
On January 11, 2008 the Office proposed to terminate appellant’s compensation, finding
that the medical evidence established that she no longer had any residuals or disability due to her
accepted work injury.
In a February 5, 2008 letter, appellant’s counsel disagreed with the proposed termination,
contending that the Office’s characterization of appellant’s condition as right radial styloid
tenosynovitis (de Quervain’s disease) was unduly narrow. Appellant contended that Dr. Corso’s
reports supported that she had continuing disability due to her right thumb condition.
By decision dated February 12, 2008, the Office finalized the termination of appellant’s
wage-loss and medical benefits effective February 17, 2008. It found that she no longer had any
2

residuals or disability due to her accepted May 25, 2006 employment injury. The weight of the
medical evidence rested with the opinion of Dr. Corso.
In a letter dated March 19, 2008, appellant’s counsel requested reconsideration.
In a nonmerit decision dated June 19, 2008, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.1 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.2 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.4 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.5
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for right radial styloid tenosynovitis (de Quervain’s
disease). The Board finds that the medical evidence is insufficient to meet the Office’s burden of
proof.
The Office based its termination of appellant’s compensation benefits on the December 6,
2007 report by Dr. Corso. It referred appellant to Dr. Corso for second opinion evaluations. On
August 27, 2007 Dr. Corso recommended physical therapy as appellant’s condition had not
resolved and advised that her condition be reevaluated following the six to eight weeks of
physical therapy. In his December 6, 2007 report, Dr. Corso concluded that the accepted
condition of right radial styloid tenosynovitis had resolved. Under his diagnosis, he stated that
appellant’s preexisting basal joint thumb arthritis had been exacerbated by the right wrist
de Quervain’s release. However, later in his report, Dr. Corso concluded that appellant’s basilar
joint arthritis was a chronic degenerative condition unrelated to the accepted work injury. He
also opined that appellant could work full time with restrictions based in her basilar joint
arthritis. Dr. Corso, however, did not fully explain why appellant’s accepted condition of right
1

S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L.
Stewart, 54 ECAB 824 (2003).
2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Elsie L. Price, 54 ECAB 734 (2003).

3

See J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Del K. Rykert, 40 ECAB 284 (1988).

4

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007).

5

Kathryn E. Demarsh, 56 ECAB 677 (2005); James F. Weikel, 54 ECAB 660 (2003).

3

radial styloid tenosynovitis had resolved.6 He did not reference any findings on examination as
support for his opinion or otherwise explain his stated conclusions. Moreover, Dr. Corso’s
opinion is contradictory as he stated that appellant’s preexisting thumb basal joint arthritis had
been aggravated by the right wrist de Quervain’s release but, in his response to questions posed
by the Office, stated that the basal joint arthritis condition was unrelated to the accepted
employment injury. He did not sufficiently explain why appellant had no further residuals of her
accepted right radial styloid tenosynovitis.7 Dr. Corso’s opinion is insufficient to the Office’s
determination that appellant had no further condition or disability causally related to the accepted
condition.
CONCLUSION
The Board finds that the Office failed to meet its burden to terminate compensation for
the accepted condition of right radial styloid tenosynovitis (de Quervain’s disease).8
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 19 and February 12, 2008 are reversed.
Issued: June 1, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006) (a medical report is of limited probative
value on a given medical question if it is unsupported by medical rationale); see also S.D., 58 ECAB ___ (Docket
No. 07-1120, issued September 24, 2007) (the Board has held that a medical opinion not fortified by medical
rationale is of little probative value).
7

See Elaine Sneed, 56 ECAB 373 (2005).

8

The issue of whether the Office properly refused to reopen appellant’s case for further review of the merits is
rendered moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-93
Issued: May 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 10, 2007 appellant timely filed an appeal from a July 5, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration as it was untimely and did not establish clear evidence of error. Because more
than one year has elapsed from the most recent merit decision dated November 14, 2003 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request for reconsideration was not timely filed and
failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This is appellant’s third appeal before the Board. The Office had accepted that on
December 17, 1999 appellant sustained a fracture of the second metatarsal when a container fell

on her left foot. In a November 14, 2003 decision, the Board found that the Office properly
terminated appellant’s compensation benefits effective August 10, 2002 on the grounds that she
had no further disability causally related to her December 17, 1999 employment injury.1 In a
March 24, 2005 decision, the Board found that the Office properly refused to reopen appellant’s
case for further review on its merits on June 15, 2004. The facts and circumstances of the cases
are set out in the prior decisions and are hereby incorporated by reference.
On April 20, 2005 appellant requested reconsideration and submitted progress notes from
Dr. James L. Thomas, a podiatrist.
In an April 28, 2005 nonmerit decision, the Office denied appellant’s reconsideration
request, finding that she did not raise substantive legal questions or submit new and relevant
evidence.
On April 3, 2006 appellant requested reconsideration. No additional information was
submitted.
In an April 17, 2006 nonmerit decision, the Office denied reopening the case as appellant
had neither submitted relevant evidence nor presented new legal arguments.
On March 29, 2007 appellant requested reconsideration and submitted additional
documents. The Office received progress notes dated from November 9, 1999 through March 9,
2007 from Dr. Thomas. In a March 15, 2005 note, Dr. Thomas stated that appellant had
symptoms in her right heel. An April 21, 2005 note recorded that appellant had been in a car
accident and that both feet had been painful since that time. The July 19, 2005 note reviewed a
recent magnetic resonance imaging (MRI) scan, which revealed a small stress fracture of the
second metatarsal of the right foot. A January 9, 2007 MRI scan of the left foot found no
fracture. The Office also received a December 18, 2006 progress note from Dr. Joel Mixon, a
Board-certified radiologist, who reviewed a fracture in the right foot.
In a March 28, 2007 letter, Dr. Thomas noted that appellant developed deep vein
thrombosis when she was treated for the initial stress fracture. In April 2003, she developed a
new stress fracture of the fourth metatarsal on the left. Dr. Thomas stated that appellant
continued to have pain in the left foot and that a recent MRI scan demonstrated degenerative
arthrosis.
In a July 5, 2007 nonmerit decision, the Office denied appellant’s reconsideration request
finding that it was untimely and the evidence did not present clear evidence of error.

1

Docket No. 03-1903 (issued November 14, 2003). Appellant filed a petition for reconsideration with the Board
on November 25, 2003. By order dated April 16, 2004, the Board denied the petition on the grounds that no error of
fact or law was cited warranting further consideration. Docket No. 03-1903 (issued April 16, 2004).

2

LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.3 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.4 Office procedures states that
the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows clear
evidence of error on the part of the Office.5 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. In this case, the evidence must be positive, precise and explicit
and must manifest on its face that the Office committed an error in terminating appellant’s
compensation benefits. Evidence which does not raise a substantial question concerning the
correctness of the Office’s decision is insufficient to establish clear evidence of error.7 It is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion. This entails a limited review by the Office of how the evidence submitted with the
reconsideration request bears on the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office. To show clear evidence of error, the evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinions
or establish a clear procedural error, but must be of sufficient probative value to prima facie shift
the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the Office’s decision.8 The Board makes an independent determination of whether
a claimant has submitted clear evidence of error on the part of the Office such that the Office
abused its discretion in denying merit review in the face of such evidence.9

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

4

Veletta C. Coleman, 48 ECAB 367 (1997).

5

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: The Office will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of it in its
most recent decision. The application must establish, on its face, that such decision was erroneous. 20 C.F.R.
§ 10.607(b).
6

See Nelson T. Thompson, 43 ECAB 919 (1992).

7

Leon J. Modrowski, 55 ECAB 196 (2000); Dorletha Coleman, 55 ECAB 143 (2003).

8

Id.

9

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

3

ANALYSIS
The Office correctly determined that appellant’s reconsideration request was untimely as
it was not filed within one year of the last merit decision. The most recent merit decision was
issued by the Board on November 14, 2003, which found that the Office properly terminated
appellant’s compensation entitlement on the grounds that she had no further disability causally
related to her December 17, 1999 employment injury. As appellant’s March 29, 2007
reconsideration request was more than one year after this decision, it was untimely.
When an application for review is untimely, the Office will undertake a limited review to
determine whether the application presents clear evidence that the final merit decision was in
error.10 The issue in this case is whether appellant has demonstrated clear evidence of error on
the part of the Office in terminating her compensation entitlement.
Appellant submitted evidence in support of her reconsideration request. The progress
notes from Dr. Thomas and Dr. Mixon related to injuries or conditions other than the accepted
fracture of the left second metatarsal and are not relevant to the issue of whether appellant had
residuals or disability beyond the termination date of July 30, 2002. In a March 28, 2007
narrative report, Dr. Thomas opined that appellant has had numerous problems with both feet,
was at high risk for stress factures of the feet and had developed deep vein thrombosis when she
was treated for the initial stress fracture. While Dr. Thomas opined that appellant continued to
have pain in the left foot, he did not address how her accepted condition related to the original
injury. Under the clear evidence of error standard it is not enough that evidence could be
construed to provide a contrary conclusion but must be of sufficient probative value to shift the
weight of the evidence in favor of appellant and raise a substantial question as to the correctness
of the merits of the Office’s decision. The weight of the evidence has not been shifted in favor
of appellant such that it raises a substantial question as to the correctness of the Office’s
decision. On its face the evidence submitted does not establish that appellant’s accepted
condition had not ceased. Therefore, the Office did not abuse its discretion when it denied merit
review in light of the medical evidence submitted.
CONCLUSION
The Board finds that the Office did not abuse its discretion in finding that appellant’s
request for reconsideration was untimely filed and did not establish clear evidence of error.

10

See supra note 5.

4

ORDER
IT IS HEREBY ORDERED THAT the July 5, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 6, 2008
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-1110
Issued: December 6, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 15, 2010 appellant filed a timely appeal from the December 15, 2009 merit
decision of the Office of Workers’ Compensation Programs, which denied her schedule award
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of the case.
ISSUE
The issue is whether appellant is entitled to a schedule award.
FACTUAL HISTORY
On February 8, 2009 appellant, then a 29-year-old clerk, sustained a left knee injury in
the performance of duty when she caught her foot on a fatigue mat as she was turning. The
Office accepted her claim for left knee chondromalacia patella.
Appellant filed a schedule award claim. In an August 27, 2009 report, Dr. Mark W.
Galland, an orthopedic surgeon, found that she had a 10 percent impairment of her left leg based
on North Carolina Industrial Commission standards. In a November 2, 2009 letter, the Office
explained that it determined impairment using the sixth edition of the American Medical

Association, Guides to the Evaluation of Permanent Impairment. It asked appellant to inform
her physician and have him submit a supplemental medical report with the required information.
The Office attached a permanent impairment worksheet for her physician’s use.
In a December 15, 2009 decision, the Office denied appellant’s schedule award claim. It
found that she did not submit the evidence necessary to establish any impairment of her left leg.
On appeal, appellant argues that she did her part, but her physician failed to mail in his
portion of the paperwork in a timely manner.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
A claimant seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.3
A claimant seeking a schedule award therefore has the burden of establishing that her accepted
employment injury caused permanent impairment of a scheduled member, organ or function of
the body.4
ANALYSIS
Appellant’s orthopedic surgeon, Dr. Galland, offered a 10 percent impairment rating
based on North Carolina Industrial Commission standards, but those are not the standards used
by the Office to rate impairment. For consistent results and to ensure equal justice for all
claimants, the Office has adopted the A.M.A., Guides as the standard for determining the
percentage of impairment.
Under the sixth edition of the A.M.A., Guides, diagnosis-based impairment is the primary
method of evaluating the lower limbs. Impairment is first and primarily defined by class, that is,
whether the problem is mild, moderate or severe according to the appropriate grid. The
impairment rating is then refined by small adjustments in grade.5
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

E.g., Russell E. Grove, 14 ECAB 288 (1963) (where medical reports from the attending physicians showed that
the only leg impairment was due to arthritis of the knees, which was not injury related, the claimant failed to meet
his burden of proof to establish entitlement to a schedule award).
5

A.M.A., Guides 497.

2

The Office accepted appellant’s claim for left chondromalacia patella. On November 2,
2009 it advised her of the relevant standards used for determining permanent impairment and
provided her an opportunity to submit additional evidence from her physician.
The Office was unable to determine whether appellant was entitled to a schedule award
because her physician did not evaluate her impairment under the A.M.A., Guides. It had no
basis to determine whether her accepted injury resulted in permanent impairment of her left
knee. Appellant bears the burden of proof to establish her entitlement to the benefits claimed
and she has not met that burden.6 The Board will therefore affirm the Office’s December 15,
2009 decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6

Should appellant’s orthopedic surgeon evaluate her impairment under the sixth edition of the A.M.A., Guides,
appellant may, consistent with the appeal rights attached to the Office’s December 15, 2009 decision, submit that
evidence to the Office and request, in writing, that it reconsider her claim.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTHPORT VA MEDICAL CENTER,
Northport, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0410
Issued: October 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 11, 2019 appellant, through counsel, filed a timely appeal from a July 2,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a July 18, 2018 decision of the Board, which became final 30 days after
issuance, and is not subject to further review.2 As there was no merit decision issued by OWCP
within 180 days from the filing of this appeal, pursuant to the Federal Employees’ Compensation

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Id. at § 501.6(d).

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On August 25, 2015 appellant, then a 62-year-old dental assistant, filed a traumatic injury
claim (Form CA-1) alleging that on August 17, 2015 she sustained an injury to her back when
lifting trays of instruments to weigh and load into a cart while in the performance of duty. She
stopped work on August 18, 2015.
An August 18, 2015 treatment note from Dr. Ahmad Shaker, a family medicine physician,
diagnosed back pain secondary to muscle spasm and recommended light duty.
In an August 25, 2015 report, Dr. Elizabeth Werns, a Board-certified family practitioner,
noted that appellant sustained an injury to the lower back on August 17, 2015 while moving an
instrument tray. She diagnosed lumbar sprain, “likely disc herniation.”
In an August 25, 2015 report and duty status report (Form CA-17), Dr. Ernest Chisena, a
Board-certified orthopedic surgeon, noted that appellant was seen for a back injury that occurred
on August 17, 2015. He indicated that she had pain down both legs to her feet. Dr. Chisena
reviewed August 18, 2015 x-rays of appellant’s lumbar spine and provided a provisional diagnosis
of disc herniation and lumbar sprain. He indicated that the lower back pain was “probably related
to sprain versus disc injury.” In the duty status report, Dr. Chisena diagnosed low back pain and
indicated that appellant injured her back lifting instrument bins. He also responded “Yes” with
regard to whether the diagnosis was due to the injury.
OWCP received September 10, 17, 22, and 24 and October 1 and 9, 2015 notes from a
physical therapist.
In a September 9, 2015 report, Dr. Chisena reviewed a September 2, 2015 magnetic
resonance imaging (MRI) scan of appellant’s lumbar spine and diagnosed low back sprain. He
explained that she indicated that she had a lower back injury on November 1, 1995 and reinjured
it on July 2, 1996. Dr. Chisena related that appellant believed that she had reaggravated her prior
injuries while lifting a red container weighing 23 pounds. He reviewed a July 27, 1996 MRI scan
3

5 U.S.C. § 8101 et seq.

4
Docket No. 17-0354 (issued July 10, 2018), petition for recon. denied, Docket No. 17-0354 (issued
March 5, 2019).

2

and found a mild bulging of the annulus fibrosis at L5-S1. Dr. Chisena also reviewed an
August 18, 2015 MRI scan and diagnosed lumbar disc syndrome and low back pain. He opined
that appellant remained totally disabled. In a Form CA-17 of even date, Dr. Chisena noted
restricted motion of the lumbar spine and indicated “Yes” with regard to whether the diagnosis
was due to the claimed work injury. He provided work restrictions.
The employing establishment controverted appellant’s claim in a September 15, 2015
letter, noting that she overstated the weight of the trays she was lifting.
In a September 18, 2015 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and attached a questionnaire for her completion and afforded her 30 days to respond.
In an October 9, 2015 Form CA-17, Dr. Chisena diagnosed lumbar disc syndrome and low
back pain due to the August 17, 2015 injury. He indicated that appellant remained totally disabled
from work.
By decision dated October 22, 2015, OWCP denied appellant’s claim. It found that she
had not provided a response to the questions provided in its September 18, 2015 development letter
or a response to the employing establishment’s challenge. OWCP also found that appellant did
not submit any medical evidence to establish that a diagnosed condition was causally related to a
work-related incident.
Dr. Cathryn Ruth Turley, a Board-certified neurologist, noted that an October 9, 2015 MRI
scan of appellant’s lumbar spine revealed mild degenerative spondylosis at L1-2 and L5-S1, with
disc bulge and annular fissure with no significant spinal canal or neural foraminal stenosis,
moderate facet arthropathy of the lower lumbar spine, and a small tarlov cyst.
Dr. Chisena provided treatment notes and a Form CA-17 dated January 21, 2016
recommending appellant return to work on January 28, 2016 with restrictions.
By decision dated February 25, 2016, OWCP found that the evidence of record was
insufficient to establish that the claimed event(s) occurred as described as appellant had not
responded to the questions posed in the September 18, 2015 development letter. It also found that
she had not submitted any medical evidence to establish a diagnosed condition causally related to
an established employment incident.
In a November 6, 2015 report, Dr. Chisena noted complaints of lower back pain
occasionally radiating into appellant’s feet. He diagnosed lumbar disc syndrome/low back sprain.
On June 1, 2016 appellant, through counsel, requested reconsideration. Counsel argued
that the medical evidence of record was sufficient to establish appellant’s claim.
OWCP received copies of previously submitted reports as well as appellant’s answers to
the questions posed by OWCP.
By decision dated August 30, 2016, OWCP modified its February 25, 2016 decision. It
found that the factual component of fact of injury had been established. However, the claim

3

remained denied because the medical evidence of record was insufficient to establish a diagnosed
condition causally related to the accepted August 17, 2015 employment incident.
Appellant appealed OWCP’s August 30, 2016 merit decision to the Board and, by decision
dated July 10, 2018, the Board affirmed the August 30, 2016 decision.5 The Board found that she
had not met her burden of proof to establish a traumatic injury causally related to the accepted
August 17, 2015 employment incident.
On June 30, 2019 appellant, through counsel, requested reconsideration. Counsel argued
that he was submitting detailed medical evidence not previously considered which documented
the history and accepted factors.
OWCP received a copy of an August 18, 2015 treatment note from Dr. Shaker who
diagnosed back pain secondary to muscle spasm.
OWCP also received a copy of an August 25, 2015 report from Dr. Werns who noted that
appellant sustained an injury to her lower back on August 17, 2015 when she was moving an
instrument tray, and diagnosed lumbar sprain, with a “likely disc herniation.”
Copies of several reports from Dr. Chisena were also received, including an August 25,
2015 report wherein he reviewed the results of an August 18, 2015 x-ray. OWCP also received a
copy of his September 9 and October 9, 2015 progress reports.
Physical therapy reports from September and October 2015 were also resubmitted.
By decision dated July 2, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.7

5

See supra note 3.

6

5 U.S.C. § 8123(a); H.A., Docket No. 18-1253 (issued April 23, 2020); L.S., Docket No. 19-1790 (issued
March 11, 2020).
7

20 C.F.R. § 10.606(b)(3); L.S., id.; D.K., 59 ECAB 141 (2007).

4

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration counsel argued that the medical evidence of record was sufficient to
establish appellant’s claim. This allegation was previously considered by OWCP in its August 30,
2016 decision and by the Board in its July 10, 2018 decision. Evidence or argument that repeats
or duplicates evidence previously of record has no evidentiary value and does not constitute a basis
for reopening a case.11
Appellant also did not show that OWCP erroneously applied or interpreted a specific point
of law, or advance a new and relevant legal argument not previously considered. As such, she was
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
With her request for reconsideration, appellant resubmitted a copy of an August 18, 2015
treatment note from Dr. Shaker, a copy of the August 25, 2015 report from Dr. Werns, August 25,
September 9 and October 9, 2015 reports from Dr. Chisena. Copies of physical therapy reports
were also resubmitted. These reports were duplicative of evidence previously before OWCP when
it issued its August 30, 2016 decision, and were reviewed by the Board in its July 10, 2018
decision. Evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.12 Thus, appellant is not
entitled to a review of the merits of her claim based on the third requirement under 20 C.F.R.
§ 10.606(b)(3).13

8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see J.W., Docket No. 19-1795 (issued March 13, 2020).

10

Id. at § 10.608(b).

11

M.G., Docket No. 18-0654 (issued October 17, 2018).

12

See B.O., Docket No. 20-0156 (issued May 13, 2020); M.G., id.; D.K., supra note 7.

13

Id.

5

Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by OWCP, or submit relevant
and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP
properly denied merit review.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 29, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

14

H.A., supra note 6; A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued
April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010);
M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet
at least one of the three requirements enumerated under 20 C.F.R. § 10.606(b), OWCP will deny the request for
reconsideration without reopening the case for a review on the merits).

6