United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
)
and
)
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U.S. POSTAL SERVICE, POST OFFICE,
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Pittsburgh, PA, Employer
)
___________________________________________ )
H.W., Appellant

Appearances:

Docket No. 07-257
Issued: August 7, 2007

Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant

Office of Solicitor, for the Director

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 6, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative’s decision dated October 17, 2006 which
affirmed the Office’s March 24, 2006 decision that terminated her compensation. 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 on appeal are: (1) whether the Office properly terminated appellant’s
compensation benefits effective April 16, 2006; and (2) whether appellant met her burden to
establish that she had any disability after April 16, 2006 causally related to the October 22, 2003
employment injury.
FACTUAL HISTORY
On October 23, 2003 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim alleging that, on October 22, 2003, she sustained injuries to her back, neck and elbow
when she was rear-ended in her postal vehicle while delivering mail. She stopped work on

October 22, 2003. The Office accepted appellant’s claim for lumbar sprain, lumbar subluxation,
thoracic sprain and cervical sprain. Appellant received compensation benefits.1
Appellant treated with Dr. Jeffrey Langbein, a Board-certified family practitioner and
osteopath, who submitted periodic reports in which he opined that appellant was unable to work
due to her employment-related condition. He noted that appellant had preexisting lumbar S1
radiculopathy and a history of low back pain. Dr. Langbein prescribed treatment which included
chiropractic treatment. In a March 26, 2004 report, Dr. John J. Mahoney, a Board-certified
anesthesiologist and an osteopath, noted appellant’s history of injury and treatment and
conducted a physical examination. He opined that appellant’s “problem was primarily
degenerative disc disease with a lumbar radiculitis.” Dr. Mahoney recommended a lumbar
epidural series.
Appellant returned to work on September 20, 2004 and was taken off work by her
physician, Dr. Langbein, on September 27, 2004. The Office continued to develop the claim and
on February 3, 2005 referred appellant to Dr. Robert A. Smith, a Board-certified orthopedic
surgeon, for a second opinion examination.
In a February 22, 2005 report, Dr. Smith described appellant’s history of injury and
treatment. He noted that October 25, 2003 x-rays of appellant’s spine revealed a normal cervical
spine without any evidence of fracture, dislocation, subluxation, malalignment, facet joint
abnormality or soft tissue swelling. Dr. Smith opined that a significant injury to the spine would
result in “some deep soft tissue swelling.” He noted that, because these findings were not
present, it was unlikely that appellant had any significant neck injury. Thoracic spine x-rays
showed some marginal spurring consistent with mild preexisting arthritis but no evidence of
acute fracture, dislocation or subluxation. Dr. Smith noted that the x-rays showed some mild
facet joint hypertrophy consistent with degenerative disease at L5-S1 and some mild narrowing
of the L5-S1 disc with marginal spurs. He also indicated that a November 28, 2004 magnetic
resonance imaging (MRI) scan of the lumbar spine, revealed diffuse degenerative changes
particularly at L5-S1 with facet hypertrophy in the lower lumbar spine causing some neural
foraminal narrowing on the left but the nerve roots appeared within normal limits with no
evidence of focal herniation or arachnoiditis. Dr. Smith also noted that a December 12, 2003
MRI scan of the cervical spine revealed diffuse degenerative changes including disc osteophyte
bulges at multiple levels causing some moderate stenosis and mild degenerative disc disease of
the neck. He opined that the findings seen on the x-rays and MRI scans were preexisting and
unrelated to the work injury of October 22, 2003. Dr. Smith indicated that appellant stopped
work on October 22, 2003 and continued to receive chiropractic manipulation and medication,
but she began to complain of some discomfort in her stomach and ended up having an
endoscopy. He also advised that appellant related that she was not working due to neck and back
symptoms. Dr. Smith found that her current complaints of neck and back pain were aggravated
with activity and bipolar disease. Examination of the spine and neck revealed no findings of
spasm, atrophy, trigger points or deformity. Dr. Smith opined that appellant had a completely
normal neurological examination despite some back pain from straight leg raising and no true
radicular findings below the knee. He concluded that appellant’s lumbar and thoracic strains had
1

On October 16, 2004 appellant filed a claim for a recurrence of disability on September 25, 2004. The Office
accepted the recurrence.

2

resolved. Dr. Smith noted that examination of appellant’s neck showed no evidence of any
pathology that would be related to her federal employment. He opined that, if she did have a
cervical strain, it had fully resolved. Dr. Smith noted that appellant had preexisting degenerative
changes in her neck and lumbar spine which were unrelated to the accepted injury. He also
explained that there was no evidence in the record that appellant’s preexisting spondylosis was in
any way structurally aggravated by the work injury, noting that medical records on the date of
injury showed that appellant did not have any tenderness in the neck and there was supple range
of motion. Additionally, Dr. Smith noted that, while medical records from the date of injury
indicated that appellant’s back was subjectively tender, there were no objective findings of any
serious injuries such as spasm, bruising, swelling or neurological deficit that would indicate the
possibility of an aggravating injury. He opined that, without these findings, it was clear that she
had no aggravation of her preexisting arthritis in this incident and questioned why appellant
essentially remained off work for more than a year. Dr. Smith advised that appellant reached
maximum medical improvement with regard to the accepted injuries of soft tissue strains of the
mid and low back. He found no evidence of continuing spinal pathology requiring treatment or
activity modification due to the incident of October 22, 2003. Dr. Smith opined that appellant
had no residuals of the accepted injury and could return to regular duty.
On January 25, 2006 the Office issued a notice of proposed termination of compensation.
It proposed to terminate appellant’s compensation on the basis that the weight of the medical
evidence, as represented by the report of Dr. Smith, established that the residuals of the work
injury had ceased.
The Office received additional reports from Dr. Langbein dated January 24, February 7
and 21 and March 8, 2006 in which he advised that appellant could not work. In a February 16,
2006 report, Dr. Langbein noted appellant’s history and opined that her neck and back pain, and
her left-sided radiculopathy had been unresponsive to multiple therapeutic interventions. He
advised that appellant had bipolar disorder that was difficult to control due to stress from pain
and being unable to work to support herself. Dr. Langbein noted that appellant continued to have
anxiety and depression and that her emotional state had declined since she had received the
notice of termination. He noted that he had not returned appellant to work.
In a February 6, 2006 letter, appellant alleged that she did not have a history of spinal
arthritis and that she continued to have residuals of the accepted injury, including depression.
She also questioned the report of Dr. Smith. In a February 15, 2006 report, Dr. Stanford
Bazilian, a Board-certified psychiatrist, indicated that appellant had been under his care since
December 9, 2004. He determined that appellant was bipolar depressed and prescribed
medication. In a report dated February 17, 2006, Drs. Michael Gaffin and Patricia Little,
chiropractors, stated that appellant had subluxations in her cervical, thoracic and lumbar regions
and that chiropractic care decreased appellant’s pain. They opined that appellant could not
return to her prior job due to the effects of her work injury.
By decision dated March 24, 2006, the Office terminated appellant’s benefits effective
April 16, 2006.
The Office received reports dated March 22, April 5 and 25, May 8 and 22 and June 6,
2006 in which Dr. Langbein indicated that appellant could not return to work.
3

On April 5, 2006 appellant’s representative requested a hearing. The hearing was
scheduled for August 2, 2006. By letter dated July 11, 2006, appellant’s representative changed
the request for a hearing, to a request for an examination of the written record. Appellant’s
representative alleged that appellant’s physical and emotional condition continued to deteriorate
due to the accepted condition. He asserted that the Office’s statement of accepted facts did not
include appellant’s preexisting conditions and that the February 16, 2006 report of Dr. Langbein
created a conflict with the second opinion physician. Furthermore, counsel alleged that the
Office did not address appellant’s consequential emotional condition. Also submitted was a
June 26, 2006 MRI scan of the left knee and hip, read by Dr. Peter Glickman, a Board-certified
diagnostic radiologist, that revealed impressions that included degenerative disc changes at L5S1.
By decision dated October 17, 2006, the Office hearing representative affirmed the
Office’s March 24, 2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s October 22, 2003 traumatic injury claim for lumbar
sprain, lumbar subluxation, thoracic sprain and cervical sprain. Appellant received appropriate
compensation and benefits. She stopped work on the date of the injury and has not returned,
with the exception of one week in September 2004. The issue to be determined is whether the
Office has met its burden of proof to establish that appellant had no remaining disability or
residuals due to her accepted injury.
In a February 22, 2005 report, Dr. Smith, an Office referral physician, opined that
appellant had no continuing residuals of her accepted conditions. He explained his opinion by
noting that October 25, 2003 x-rays of appellant’s spine showed a normal cervical spine, with no
soft tissue swelling, and advised that, if appellant had sustained a significant injury to the spine,
“some deep soft tissue swelling” would have been evident. Likewise, Dr. Smith noted that
thoracic spine x-rays showed some marginal spurring consistent with mild preexisting arthritis,
but no evidence of any acute fracture, dislocation or subluxation, while lumbar findings were
limited to mild facet joint hypertrophy consistent with degenerative disease at L5-S1 and mild
2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

narrowing of the L5-S1 disc with marginal spurs. He reviewed findings from other testing and
advised that his own examination findings were essentially normal with no findings of spasm,
atrophy, trigger points or deformity. Dr. Smith concluded that appellant’s lumbar and thoracic
sprains had resolved as she had a completely normal neurological examination despite some
back pain from straight leg raising maneuvers and no true radicular findings below the knee.
Furthermore, he explained that his examination of appellant’s neck showed no evidence of any
pathology that would be related to her federal employment. Dr. Smith opined that any cervical
strain sustained by appellant would have fully resolved. He opined that appellant’s preexisting
degenerative changes in her neck and lumbar spine were unrelated to the accepted injury.
Dr. Smith noted that there was no evidence that appellant’s preexisting spondylosis was in any
way structurally aggravated by the work-related accident and explained that on the date of the
accident the medical evidence did not reveal any tenderness in the neck, and showed that
appellant had a supple range of motion with no objective findings of any serious injuries such as
spasm, bruising, swelling or neurological deficit that would indicate the possibility of an
aggravating injury. Based on this, he opined that appellant had no aggravation of her preexisting
arthritis. Dr. Smith concluded that appellant no longer had residuals of the accepted injury and
could return to regular duty.
The Board finds that the Office properly relied on the report of Dr. Smith to terminate
benefits, as it was rationalized and based on a thorough medical history and physical
examination of appellant.
In contrast, the Board finds that the medical evidence submitted by appellant’s treating
physicians are of diminished probative value and insufficient to create a conflict in the medical
evidence.5 Dr. Langbein submitted several reports in which he advised that appellant could not
work without any explanation as to how and why any disability would be due to the accepted
injury. In his February 16, 2006 report, Dr. Langbein referred to appellant’s bipolar disorder and
stated that it was difficult to control and was due to the stress of her pain since she received her
notice of termination and advised that she could not work. However, he did not address how
appellant’s bipolar disorder was related to her October 22, 2003 employment injury, other than to
indicate that it was due to the stress of her pain. Dr. Langbein’s opinions are therefore
insufficient to establish appellant’s continuing disability due to the accepted conditions.
Dr. Bazilian, a Board-certified psychiatrist, noted on February 16, 2006 that appellant
was bipolar depressed. However, this was not an accepted condition. Dr. Bazilian’s report did
not explain whether there was any causal connection between appellant’s condition and her
accepted employment injury. Additionally, the Office received a February 17, 2006 report from
Chiropractors Gaffin and Little. However, section 8101(2) of the Federal Employees’
Compensation Act provides that the term physician includes chiropractors only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist.6 Drs. Gaffin and Little did not
5

John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two physicians does not, of itself,
establish a conflict; to constitute a conflict of medical opinion, the opposing physician’s reports must be of virtually
equal weight and rationale).
6

5 U.S.C. § 8101(2).

5

diagnose a subluxation based on x-rays.7 While they noted that appellant had subluxations, they
did not indicate that they reviewed x-rays. In the absence of a diagnosis of subluxation based on
x-rays, Drs. Gaffin and Little are not physicians under the Act.8
The Board finds that Dr. Smith’s opinion is entitled to the weight of the evidence as his
report is well rationalized and based upon a proper factual background. The Office properly
relied upon his reports in finding that appellant’s employment-related condition had resolved.
Dr. Smith examined appellant, reviewed her medical records and reported accurate medical and
employment histories. He indicated that the employment injuries had resolved and that she
could return to regular duty. Dr. Smith found no basis on which to attribute any continuing
disability to appellant’s accepted injuries. An employee who is disabled solely because of a
preexisting condition does not qualify for compensation, as the disability is not due to an injury
caused by federal employment.9 Accordingly, the Office met its burden of proof to justify
termination of benefits.
On appeal, appellant’s representative argued that the report of the second opinion
physician, Dr. Smith, was of limited probative value as the statement of accepted facts did not
include appellant’s preexisting conditions. However, there is no requirement that the statement
of accepted facts include all of appellant’s preexisting conditions. The Office provides
physicians with a statement of accepted facts to assure that the medical specialist’s report is
based upon a proper factual background.10 The statement of accepted facts must include the date
of injury, claimant’s age, the job held on the date of injury, the employer, the mechanism of
injury and the claimed or accepted conditions.11 The Board has held, however, that it is not
necessary that the statement of accepted facts provided to the referral physician contain a
complete medical history where the claim was accepted, the physician was provided with the
relevant medical evidence and was aware of appellant’s medical history.12 The record reflects
that Dr. Smith reviewed the complete medical record and was properly aware of appellant’s
medical history. Appellant also argues that the opinion of Dr. Langbein created a medical
conflict precluding the Office from terminating compensation. However, as noted above,
Dr. Langbein’s opinion was of diminished probative value and the Board has held that a simple
disagreement between two physicians does not, of itself, establish a conflict.13
7

The Office’s implementing federal regulations define subluxation to mean an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See
20 C.F.R. § 10.5(bb).
8

Michelle Salazar, 54 ECAB 523 (2003).

9

See id.

10

Helen Casillas, 46 ECAB 1044, 1052 n.15 (1995); see also Henry J. Smith, Jr., 43 ECAB 524 (1992), reaff’d
on recon., 43 ECAB 892 (1992).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.12
(June 1995). See also Darletha Coleman, 55 ECAB 143 (2003).
12

Darletha Coleman, id.

13

See supra note 5.

6

LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.14
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.15
ANALYSIS -- ISSUE 2
Subsequent to the Office’s March 24, 2006 decision, appellant submitted reports dated
March 22, April 5 and 25, May 8 and 22 and June 6, 2006 from Dr. Langbein, her attending
physician, who continued to opine that she could not return to work. However, Dr. Langbein
essentially reiterated previously stated findings and conclusions regarding appellant’s condition.
In the absence of any new findings or rationale, the reports from Dr. Langbein were insufficient
to overcome the weight accorded to the report of the Dr. Smith, the second opinion physician, or
to create a conflict.
Other medical reports submitted by appellant did not address the cause of her condition.
Consequently, she has not established that her condition on and after October 22, 2003 was
causally related to her accepted employment injury.16
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s benefits
effective April 16, 2006 and that appellant did not meet her burden of proof to establish that she
had any injury-related condition or disability after April 16, 2006 causally related to the
October 22, 2003 employment injury.
14

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

15

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

16

Regarding a claim for a consequential emotional condition, the Board notes that the Office has not issued a
decision on this matter and the issue is not before the Board on the present appeal. The Board notes that, subsequent
to the Office’s October 17, 2006 decision, appellant’s representative submitted additional evidence. The Board has
no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C. Campbell,
5 ECAB 35 (1952).

7

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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)
)
)
)
)
)
)

Appearances:
Appellant, pro se
Joseph G. Gilliland, Esq., for the Director

Docket No. 15-1732
Issued: December 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 14, 2015 appellant filed a timely appeal from a February 19, 2015 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 over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish cervical and right
shoulder conditions causally related to his employment.
The Director of OWCP has filed a memorandum in justification of the February 19, 2015
decision arguing that appellant failed to meet his burden of proof to establish his occupational
disease claim as the medical evidence did not provide a reasoned medical explanation as to how
appellant’s employment factors caused his diagnosed condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 21, 2014 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed bulging discs in his neck and torn tendons
in his right shoulder as a result of repetitive motion at work. He first became aware of his
condition and realized it resulted from his employment on March 27, 2014. Appellant stated that
he underwent a magnetic resonance imaging (MRI) scan and x-rays of his shoulder and spine.
He was told by his doctor that he had torn tendons in his right shoulder and bulging discs in his
neck.
In a March 6, 2014 MRI scan report of the right shoulder, Dr. Christian Neumann, a
Board-certified diagnostic radiologist, noted that appellant had degenerative joint disease. He
observed limited range of motion and mild degenerative changes at the acromioclavicular (AC)
joint and abnormal signal intensities on the articular surface of the supraspinatus tendon.
Dr. Neumann determined that appellant had partial articular surface tear of the distal
supraspinatus tendon, full-thickness tear of the distal subscapularis tendon, anterior labral tear
and degeneration, and partial thickness tear of the intraarticular portion with signs of tendinitis.
In a handwritten April 8, 2014 report, Dr. Germaine J. Frid, a family practitioner,
indicated that appellant’s condition had lasted for years and provided the dates that she treated
appellant. She noted that he was unable to perform his job functions due to his condition.
Dr. Frid reported that appellant had right shoulder partial tear and full thickness tear of the
supraspinatus. She noted that she had also referred him for treatment of the cervical spine. In a
Family and Medical Leave Act (FMLA) form, Dr. Frid reported that appellant worked as a city
carrier whose essential job functions included delivering mail, lifting up to 70 pounds, and casing
mail.
By letter dated May 5, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he provide a detailed description of the
employment-related activities he believed contributed to his condition and a medical report from
a physician with medical rationale explaining how his employment caused or contributed to his
medical condition.
Dr. Fried noted in a May 13, 2014 attending physician’s report (Form CA-20), that
appellant had a right shoulder tear with significant limitation. She checked a box marked “yes”
that his condition was caused or aggravated by his employment. Dr. Frid reported that appellant
was totally disabled from March 27 to April 8, 2014. She authorized him to return to regular
duty on April 9, 2014. Dr. Frid referred appellant for pain management treatment.
In response to OWCP’s request for further information, on May 30, 2014 appellant
explained that his job duties of casing and carrying mail for 14 years contributed to his cervical
and right shoulder condition. He listed activities outside of employment as playing golf five or
six times a year and gardening.
In a June 2, 2014 report, Dr. David Wilgarde, Board-certified in internal medicine and
physical medicine and rehabilitation, related appellant’s complaints of bilateral neck pain with

2

occasional numbness in both hands. He diagnosed cervical spinal stenosis and cervical
radiculopathy. Dr. Wilgarde administered cervical epidural steroid injections.
By decision dated July 21, 2014, OWCP denied appellant’s occupational disease claim.
It accepted that he worked as a letter carrier and was diagnosed with a cervical and right shoulder
condition, but denied his claim finding insufficient medical evidence to establish that his
conditions were causally related to his employment.
On August 22, 2014 OWCP received appellant’s request for review of the written record
by an OWCP hearing representative. Appellant resubmitted the March 6, 2014 right shoulder
MRI scan report.
Appellant also submitted a February 17, 2014 cervical MRI scan report by Dr. Neumann.
Dr. Neumann observed anatomical alignment of the vertebral bodies and disc space narrowing.
Bone marrow, signal, and caliber of the cervical spinal cord were normal. Dr. Neumann
determined that appellant had moderate bilateral foraminal narrowing at C3-4 and moderate-tomarked bilateral foraminal narrowing and slight effacement of the anterior surface at C5-6.
In an August 18, 2014 FMLA form, Dr. Howard Baer, a Board-certified internist,
indicated that appellant’s condition began in February 2014 based on his surgical consult. He
noted that appellant was unable to perform his job due to his condition. Dr. Baer reported that
appellant was examined at the pain clinic for complaints of pain with chronic, poorly controlled
cervical neck, shoulder, and arm movement. He related that appellant had chronic mild-to-low
neck pain that was accompanied by radicular symptoms. Dr. Baer explained that, because
conservative treatment and epidural injections were not helping appellant, he had been referred
for possible cervical surgery intervention.
By decision dated February 19, 2015, OWCP’s hearing representative affirmed the
July 21, 2014 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.3 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

3

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.6
ANALYSIS
Appellant alleged that he developed neck and right shoulder conditions as a result of
repetitively casing and carrying mail for the past 14 years as a letter carrier. OWCP accepted
appellant’s employment duties as a letter carrier and that he was diagnosed with cervical and
right shoulder conditions. However, it denied his claim because there was insufficient medical
evidence to establish that his conditions resulted from his employment duties. The Board finds
that appellant failed to establish that his cervical and right shoulder conditions were causally
related to his employment duties.
Appellant received medical treatment from Dr. Frid. In an April 8, 2014 report, Dr. Frid
noted that appellant’s condition had lasted for several years and that he worked as a city mail
carrier. She described appellant’s duties as delivering and casing mail and lifting up to 70
pounds. Dr. Frid reviewed various medical records and conducted an examination. She
diagnosed right shoulder partial and full-thickness tear. In a May 13, 2014 report, Dr. Frid
checked a box marked “yes” that appellant’s condition was caused or aggravated by appellant’s
employment. She reported that appellant was disabled from March 27 to April 8, 2014 and could
return to full duty on April 9, 2014. The Board notes that Dr. Frid did not provide any medical
explanation or rationale for her opinion that appellant’s right shoulder condition resulted from
his employment. The Board has held that when a physician’s opinion on causal relationship
consists only of checking “yes” to a form question, without explanation or rationale, that opinion
is of diminished probative value and is insufficient to establish a claim.7 Dr. Frid’s reports,
therefore, are insufficient to establish causal relationship.
The various diagnostic reports by Dr. Neumann dated February 17 and March 6, 2014 are
also insufficient to establish appellant’s occupational disease claim. Although Dr. Neumann
conducted an examination and provided medical diagnoses of degenerative joint disease, tear of
the right shoulder, and moderate narrowing of the cervical spine, he did not provide any opinion
on the cause of appellant’s condition. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

7

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

4

the issue of causal relationship.8 Likewise, Dr. Wilgarde’s June 2, 2014 report failed to establish
causal relationship. While he diagnosed cervical spinal stenosis and cervical radiculopathy, he
did not offer an opinion on the cause of appellant’s condition. Because neither physician offered
an opinion on whether appellant’s right shoulder or cervical conditions were causally related to
appellant’s federal employment, these reports are insufficient to establish appellant’s claim.9
Appellant was also examined by Dr. Baer who indicated in an August 18, 2014 FMLA
form that appellant had chronic mild-to-low neck pain that was accompanied by radicular
symptoms. The Board notes that pain is a description of a symptom, and not considered
compensable medical diagnosis.10 Because Dr. Baer did not provide a diagnosis based on
physical examination findings, his report fails to establish appellant’s claim.
On appeal, appellant alleges that his doctors were not helping him to obtain the reports
needed to establish his claim. Although appellant may have experienced difficulty in obtaining
proper evidence from his physician, it is his burden of proof to submit sufficient evidence to
establish his occupational disease claim.11 The Board has reviewed the evidence of record and
finds that appellant has not established with a reasoned medical opinion that his employment
caused or contributed to his medical condition. Causal relationship is a medical issue and the
medical evidence generally required to establish causal relationship is rationalized medical
opinion evidence.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this 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 his burden of proof to establish that his
cervical and right shoulder conditions were causally related to his employment duties.

8

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); .A.D.,
58 ECAB 149 (2006).
9

Id.

10

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

11

Supra note 3.

12

Supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the February 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Morris Plains, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-356
Issued: April 23, 2014

Case Submitted on the Record

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

JURISDICTION
On December 3, 2013 appellant, through his attorney, filed a timely appeal from June 27
and October 9, 2013 nonmerit decisions of the Office of Workers’ Compensation Programs
(OWCP) denying his requests for reconsideration. Because more than 180 days elapsed from the
most recent merit decision dated September 28, 2012 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of the case, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel contends that he did not receive a copy of a September 28, 2012
OWCP decision until June 13, 2013. He further contends that OWCP improperly relied on a
supervisor’s statement that challenged appellant’s claim on the grounds that his conduct at the
1

5 U.S.C. § 8101 et seq.

time of injury was unsafe. Counsel asserts that a May 2, 2012 medical report from Dr. Jay Y.
Chun, an attending Board-certified neurosurgeon, and the statement from appellant are sufficient
to establish that he sustained an employment-related neck injury.
FACTUAL HISTORY
On January 24, 2011 appellant, then a 31-year-old part-time flexible carrier, filed a
traumatic injury claim alleging that on January 20, 2011 he sustained back, spine and neck
injuries when he stepped out of his truck to deliver mail and fell on ice. In a January 20, 2011
statement, he related that there was a lot of ice and snow and he did not want to drive on the
snow.
Appellant submitted medical records dated January 20 to March 30, 2011 which
addressed his cervical and lumbar conditions, medical treatment and work capacity and causal
relationship.
In a January 20, 2011 statement, Margaret Clyburn, a supervisor, controverted appellant’s
claim, contending that his decision to walk on a mound of snow was unsafe as his route involved
curbside delivery.
In an April 5, 2011 decision, OWCP accepted that the January 20, 2011 incident occurred
as alleged. It denied appellant’s claim, however, finding that he did not submit sufficient
medical evidence to establish that he sustained a neck injury causally related to the accepted
employment incident.
On April 29, 2011 appellant requested a review of the written record by an OWCP
hearing representative. He submitted medical records dated January 20 to March 29, 2011 that
addressed his cervical conditions. In an undated letter, appellant described the January 20, 2011
incident, his symptoms and medical treatment.
In an August 17, 2011 decision, an OWCP hearing representative affirmed the
April 5, 2011 decision. The hearing representative found that appellant failed to submit
sufficient medical evidence to establish that he sustained a cervical injury causally related to the
accepted January 20, 2011 employment incident.
By letter dated June 28, 2012, appellant, through his attorney, requested reconsideration.
In a May 2, 2012 report, Dr. Chun opined within a degree of medical certainty that appellant’s
initial neck pain and weakness which had resolved with steroids were secondary to his
January 20, 2011 fall. He also submitted medical records and diagnostic tests dated January 20,
21 and September 1, 2021 that addressed appellant’s cervical, head, lumbar, pelvis and chest
conditions.
In a September 28, 2012 decision, OWCP denied modification of its August 17, 2011
decision. It found that Dr. Chun failed to provide a rationalized opinion on the causal
relationship between appellant’s neck condition and the accepted employment incident.
By letter dated June 21, 2013, counsel requested reconsideration. He contended that
neither he nor appellant received a copy of the September 28, 2012 decision until June 13, 2013.
2

It was only after a recent follow up with OWCP that he received a copy of the decision.2
Counsel further contended that Dr. Chun’s May 2, 2012 report was sufficient to establish
appellant’s claim.
In a July 20, 2013 narrative statement, appellant also contended that Dr. Chun’s May 2,
2012 report was sufficient to establish his claim. He resubmitted a copy of Ms. Clyburn’s
January 20, 2011 statement.
By decision dated June 27, 2013, OWCP denied appellant’s request for reconsideration
without a merit review. It found that he did not submit any relevant evidence warranting further
merit review of his claim.
On August 14, 2013 counsel requested reconsideration and resubmitted a copy of
appellant’s July 20, 2013 statement.
In an October 9, 2013 decision, OWCP denied further merit review of the case. It found
that appellant did not show that it erroneously applied or interpreted a point of law or submit new
and relevant evidence not previously considered.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA3
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 it; or (3) constitute relevant and pertinent
new evidence not previously considered by OWCP.4 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.5
ANALYSIS
On June 21 and August 14, 2013 appellant, through his attorney, disagreed with OWCP’s
decision, finding that he did not sustain a neck injury causally related to the accepted January 20,
2011 employment incident. He requested reconsideration.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Appellant did not advance a relevant legal argument not
previously considered. In a June 21, 2013 request for reconsideration and on appeal, counsel
2

In a June 12, 2013 letter to OWCP, counsel inquired about the status of his June 28, 2012 request for
reconsideration of the August 17, 2011 decision.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b).

3

contended that neither he nor appellant received a copy of the September 28, 2012 OWCP
decision until June 13, 2013. Although he contended that there was a delay in receiving the
decision, his argument is not supported by the record. The September 28, 2012 decision was
sent to appellant’s address of record together with a copy to counsel at his business address.
Absent evidence to the contrary, the presumption arises that the decision was received in the
ordinary course of business.6 Counsel did not submit sufficient evidence to rebut the
presumption of receipt.7
Counsel further contended that Dr. Chun’s May 2, 2012 report was sufficient to establish
that appellant sustained a neck injury causally related to the January 20, 2011 employment
incident. In a July 20, 2013 statement, appellant also contended that Dr. Chun’s report was
sufficient to establish that he sustained an employment-related neck injury on January 20, 2011.
As noted, the Board does not have jurisdiction over the merits of the case. Dr. Chun’s report was
previously reviewed by OWCP and found deficient on the issue of causal relation.8 The Board
finds, therefore, that appellant’s argument does not establish a legal error by OWCP and has not
submitted a new and relevant legal argument not previously considered by OWCP.
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered. Appellant submitted a duplicate copy of Ms. Clyburn’s January 20,
2011 statement. The submission of evidence which repeats or duplicates evidence already in the
case record does not constitute a basis for reopening a case for further merit review.9
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to the requirements under section 10.606(b)(3).
OWCP properly denied his June 21 and August 14, 2013 requests for reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

6

Jeffrey M. Sagrecy, 55 ECAB 724 (2004).

7

See Nelson R. Hubbard, 54 ECAB 156 (2002).

8

Gloria J. McPherson, 51 ECAB 441 (2000).

9

See A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Betty A. Butler, 56 ECAB
545 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the October 9 and June 27, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 23, 2014
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

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

Docket No. 07-1349
Issued: October 9, 2007

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 April 23, 2007 appellant filed a timely appeal from the January 24, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied his recurrence of
disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of his claim.
ISSUE
The issue is whether the stress fracture in appellant’s right foot and his disability
beginning October 19, 2006 were causally related to his August 9, 2006 employment injury.
FACTUAL HISTORY
On August 9, 2006 appellant, then a 49-year-old city carrier, sustained a right foot injury
in the performance of duty: “Walking across lawn twisted ankle on root coming out of ground.”
He did not stop work but saw a physician’s assistant later that afternoon. The physician’s
assistant diagnosed right foot strain and recommended no mail delivery until August 13, 2006.
The Office informally accepted his claim as a no time lost injury with limited medical treatment.

On October 25, 2006 appellant filed a claim alleging that he sustained a recurrence of
disability on October 19, 2006 causally related to his August 9, 2006 injury. He explained that a
fracture found in his foot on October 24, 2006 was a direct result of the August 9, 2006 accident
at work. Appellant noted that an x-ray taken after his injury showed no fracture, but he was
nonetheless in constant discomfort; he performed his regular duties even though he was in pain.
On October 19, 2006, however, his physician noticed that his toes were swollen. He took
appellant off work for three days and made referral to a podiatrist. When new x-rays showed a
fracture, his podiatrist restricted him from delivering mail. Appellant stated that the employing
establishment allowed him to work two hours a day until he returned to full duty on
November 10, 2006. He added that he had no other injuries since August 9, 2006.
An x-ray ordered on August 9, 2006 was reported to show no fracture in the right foot.
Appellant sought further medical attention on September 21, 2006: “[He] presents with foot pain
for the last few days, every day at work, hurts with walking no history of trauma, he changed
shoes today but no effect, not taking any pain meds right now.” Clinical findings included foot
pain on the right foot at the top, no bony tenderness. Appellant was given a diagnosis of overuse
injury and prescribed pain medication. He was told to change shoes and follow up with a
podiatrist in one week if he was not better.
On October 19, 2006 appellant sought further medical attention. He complained that his
ankle was stiff every morning and seemed to be getting worse. Clinical findings showed no
edema or erythema. There was discomfort with flexion and extension but no tenderness to
palpation. Appellant was given a diagnosis of arthralgia of ankle or foot. He followed up with
Dr. John Salamone, a podiatrist, on October 24, 2006. Although an osteopath reported that
x-rays obtained on October 24, 2006 showed no fracture, Dr. Salamone reviewed these x-rays
and found, in contrast to prior films, “a healing, nearly healed, fracture at the base of
2nd metatarsal, extrarticular.” He diagnosed a fractured right foot and returned appellant to
modified duty, with no delivery of mail, from October 25 to November 11, 2006.
On November 22, 2006 Dr. Salamone described appellant’s medical history since
August 9, 2006. He noted that x-rays taken on November 9, 2006 showed a healed fracture of
the second metatarsal. Dr. Salamone offered the following opinion:
“My impression is that [appellant] had suffered an injury to his right foot as early
as August 9, 2006 which is characterized by the formation of a stress fracture at
the base of the second metatarsal which was not recognized on initial x-rays due
to his persistent gout symptoms and on follow up the presence of this stress
fracture, which was, and is now, healed and asymptomatic, was discovered.”
On December 4, 2006 the Office accepted appellant’s August 9, 2006 injury for right foot
sprain. In a decision dated January 24, 2007, the Office denied appellant’s claim of a recurrence
of disability.

2

LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of his duty.1 “Disability” means the
incapacity, because of an employment injury, to earn the wages the employee was receiving at
the time of injury. It may be partial or total.2
When the medical evidence establishes that the residuals of an employment injury are
such that, from a medical standpoint, they prevent the employee from continuing in his
employment, he is entitled to compensation for any loss of wage-earning capacity resulting from
such incapacity.3 A claimant seeking benefits has the burden of proof to establish the essential
elements of his claim by the weight of the evidence,4 including that he sustained an injury in the
performance of duty and that any specific condition or disability for work for which he claims
compensation is causally related to that employment injury.5
ANALYSIS
The Office accepted that appellant injured his right foot in the performance of duty on
August 9, 2006. Appellant bears the burden of proof to establish that the stress fracture later
discovered in that foot, together with the resulting disability for work, are causally related to the
August 9, 2006 employment injury.
There is only one opinion on causal relationship and it generally supports appellant’s
claim. Dr. Salamone, the attending podiatrist, explained that the stress fracture went unnoticed
in August 2006 because appellant had persistent symptoms of gout. But he reviewed x-rays
obtained on October 24, 2006 and found a healed, or nearly healed, fracture at the base of the
second metatarsal. Dr. Salamone concluded that this stress fracture occurred when appellant
injured his right foot on August 9, 2006. The Board finds that Dr. Salamone’s opinion raises an
uncontroverted inference of causal relationship. The presence of a healed or nearly healed stress
fracture on October 24, 2006 points to an earlier injury and would appear to explain appellant’s
continued right foot complaints following August 9, 2006. There is no medical opinion to the
contrary.
However, Dr. Salamone should explain whether he reviewed the August 9, 2006 x-rays
and should make clear whether they show a stress fracture at the base of the second metatarsal.
If they do not, he should explain whether this means the fracture developed later, perhaps closer
to September 21, 2006, when appellant presented with foot pain “for the last few days.”
Dr. Salamone should address how long it typically takes a stress fracture to heal, or nearly heal,
1

5 U.S.C. § 8102(a).

2

20 C.F.R. § 10.5(f) (1999).

3

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

4

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

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

and whether this is consistent with appellant’s claim that the fracture occurred on
August 9, 2006. He should also review whether appellant’s record of complaints and clinical
findings is consistent with a stress fracture on August 9, 2006.
The Board will set aside the Office’s January 24, 2007 decision denying appellant’s claim
and will remand the case for further development of the medical evidence.6 The Office shall
then issue an appropriate final decision on whether the stress fracture in appellant’s right foot
and any resulting disability for work, are causally related to the August 9, 2006 employment
injury.
CONCLUSION
The Board finds that this case is not in posture for decision. Further, development of the
medical opinion evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the January 24, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: October 9, 2007
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

See John J. Carlone, 41 ECAB 345, 358 (1989) (finding that the medical evidence was not sufficient to discharge
the claimant’s burden of proof but remanding the case for further development of the medical evidence given the
uncontroverted inference of causal relationship).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, MANMOUTH
PROCESSING & DISTRIBUTION CENTER,
Eatontown, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-411
Issued: May 9, 2007

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 November 29, 2006 appellant, through her attorney, filed a timely appeal from the
June 8, 2006 decision1 of an Office hearing representative, who affirmed the denial of her claims
for recurrences of total disability causally related to a November 27, 1999 employment injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

The Board notes that, following this decision on July 16, 2006, the Office of Workers’ Compensation Programs
denied a separate claim of recurrence of disability filed March 25, 2006. Appellant, through her attorney,
requested a hearing of this decision on July 25, 2006. The hearing was set for November 14, 2006, but neither
appellant nor her representative appeared at the hearing. As a result, on November 27, 2006 the Office found that
the request for hearing had been abandoned. As appellant’s attorney did not express the intention to appeal the
July 25, 2006 decision, the Board will not review it. See 20 C.F.R. § 501.3(d)(2).

ISSUE
The issue is whether appellant established that she sustained recurrences of total
disability causally related to her accepted November 27, 1999 employment injury.
FACTUAL HISTORY
On July 21, 2000 appellant, then a 42-year-old mail processor, filed a traumatic injury
claim, Form CA-1, alleging that on November 27, 1999 she experienced sharp pain in her lower
back, stomach and leg as a result of overhead lifting, bending and twisting on the delivery bar
(DB) code machine. On July 6, 2002 the Office accepted her claim for aggravation of a lumbar
sprain and lumbar radiculitis.
On February 25, 2005 appellant filed an incomplete notice of recurrence,2 Form CA-2a,
alleging that, on January 21, 2000, the periodic bending, lifting and twisting required by her
light-duty position caused pain in the same areas of her back as her original injury. On
February 27, 2005 she filed similar notices of recurrence for the dates March 25 and April 19,
2000, March 30, 2001 and September 27, 2002. On February 28, 2005 appellant again filed
similar notices of recurrence for the dates October 20, 2000 and November 23, 2002. She
submitted documentation of leave without pay taken intermittently from December 4, 1999 to
December 26, 2002.
Appellant also provided a report from Dr. Adriana Stolte, an internist, who listed the
dates and nature of her treatment from December 4, 1999 to November 26, 2002. Dr. Stolte
stated that appellant reported to her office for treatment of her back pain “flare-ups” that
occurred on January 21, February 19, March 25, April 19 and October 20, 2000, and March 30,
2001, and September 27 and November 23, 2002. She reported that the recurrences were caused
by the accumulation of appellant’s work-related duties, which resulted in tightness in the back
that progressed into pain and spasms. After each recurrence she found decreased lumbar range
of motion, spasms and pain on assorted lumbar orthopedic/neurological challenge tests.
Dr. Stolte diagnosed displaced lumbar intravertebral discs, sciatica/neuritis, and myalgia/
myositis. She stated that the recurrences were causally related to the original injury because they
had a similar clinical presentation and pattern of relation to appellant’s activities. Dr. Stolte
reported that, when appellant was out of work, she was out on temporary total disability,
however, she did not state which periods this entailed.
On May 9, 2005 the Office requested that Dr. Stolte provide an updated work capacity
evaluation. On May 11, 2005 it informed appellant that the record did not contain medical
evidence supporting her claims for recurrences of disability. The Office requested a detailed
narrative report addressing the periods for which appellant was claiming compensation benefits.
On May 12, 2005 Dr. Stolte provided an updated work capacity evaluation, which contained a
variety of time and weight restrictions and the inability to work the midnight shift. On June 27,
2005 she submitted an attending physician’s report which diagnosed displaced lumbar discs,
myofascitis and mononeuritis of a lower limb. Dr. Stolte noted muscle spasms and decreased
2

The section to be completed by the employing establishment was not included.

2

lumbar range of motion. She stated that appellant’s employment caused or aggravated her
condition by repetitive actions, various work positions and, at times, the amount of weight she
carried. Dr. Stolte noted treating appellant extensively for her conditions from January 2000 to
May 2001, February to December 2002 and December 2004 to May 2005.
By decision dated October 26, 2005, the Office denied appellant’s claims of recurrence of
total disability on the grounds that she had not provided medical evidence establishing the
claimed periods of disability. On November 1, 2002 appellant requested an oral hearing to
review the decision.
At the hearing, held March 29, 2006, appellant testified that her preinjury employment
duties involved a significant amount of bending, twisting, lifting and overhead lifting. Following
her injury, Dr. Stolte limited her work hours and provided work restrictions because of her
sciatica and lower back pain. For approximately six months, appellant worked 20 hours per
week and took leave without pay for the other hours. She then began working 32 hours per week
in a light-duty position and has kept this position for several years. Since the November 27,
1999 injury, appellant has received regular massage therapy and electrostimulation from
Dr. Stolte. She did not address the specific periods of disability alleged.
On April 20, 2006 the employing establishment responded to appellant’s testimony. It
noted that it had always accommodated her medical restrictions, including her need for fewer
hours and working at her own pace.
On April 28, 2006 Dr. Stolte submitted a medical report based largely on a November 26,
2001 report that she prepared along with Dr. Joel Gainemarkin as part of appellant’s original
claim. She stated that appellant had a history of lower back injuries, including an injury in 1984,
thoracic and lumbar sprains from 1985 to 1988, and back and leg pain from 1987 to 1989.
Appellant left the workforce because of her back problems and was assigned a permanent
disability rating. When she felt that her back was stable, she began working for the employing
establishment. Dr. Stolte stated that appellant’s course of treatment following the original injury
included electrotherapy, ultrasound, massage and instructions on home care including relaxation
techniques, rest, heat, movement restrictions and strengthening exercises.
Quoting from her 2001 report, Dr. Stolte opined that appellant’s subjective complaints
and objective clinical findings were causally related to the November 27, 1999 employment
injury. She stated that appellant had a significant and permanent loss of function to the lumbar
spine and that her injury had aggravated her preexisting condition. Dr. Stolte stated that, because
of the severity and extent of the soft tissue and ligament damage, appellant would develop scar
tissue, which would make lumbar joints unstable and stiff. These changes would further reduce
her range of motion and lead to recurring symptoms, pain and disability. Dr. Stolte noted that it
was common to see recurrence and exacerbation for no apparent reasons in cases like appellant’s
because of the structural weakening of the spinal column. She opined that these recurrences
would be more prevalent at times of stress, fatigue or emotional upset. Dr. Stolte stated that
appellant was initially released from care on December 26, 2000 because she had reached
maximum medical benefit from treatment, but that she continued to return for treatment when
her symptoms flared up. She stated that appellant’s permanent light-duty status and 32-hour

3

workweek were appropriate. Dr. Stolte did not provide any additional information about specific
periods of disability.
By decision dated June 8, 2006, the Office hearing representative affirmed the
October 26, 2005 decision. She found that appellant had not established that the claimed
recurrences were causally related to the original work injury. The hearing representative stated
that Dr. Stolte’s reports did not establish that the recurrences were the result of the original injury
rather than intervening work factors.
LEGAL PRECEDENT
The Office’s regulation defines a recurrence of disability as an employee’s inability to
work, following a return to work, caused by a spontaneous change in a medical condition that
resulted from a previous injury or illness without an intervening injury or new exposure. The
term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn, except for when such withdrawal occurs for reasons of
misconduct, nonperformance of the job duties or a reduction-in-force.3
When claiming recurrence of disability, an employee who was given a light-duty position
to accommodate the effects of an employment injury has the burden of establishing that she
cannot perform the light-duty tasks. This must be shown by the weight of the reliable, probative
and substantial evidence. As part of the burden, the employee must show either a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty requirements.4
ANALYSIS
Appellant sustained an injury on November 27, 1999 that was accepted by the Office for
aggravation of lumbar sprain and aggravation of lumbar radiculitis. She alleged that she
sustained recurrences of this injury on January 21, March 25, April 19 and October 20, 2000,
March 30, 2001 and September 27 and November 23, 2002. Appellant stated that these
recurrences of disability were related to the periodic lifting, bending and twisting required by her
light-duty position.
The Board notes that appellant has not established a recurrence of disability because she
did not allege or demonstrate that the changes in her condition were spontaneous. For a change
to be spontaneous, it cannot be the result of any intervening employment factors. Appellant
stated on the CA-2a forms that she sustained recurrences of disability because of the requirement
that she periodically bend, lift and twist. Dr. Stolte stated on February 3, 2005 that appellant
experienced several “flare-ups” of back pain between January 21, 2000 and November 23, 2002
as a result of the accumulation of her work-related activities. These activities, including
3

See 20 C.F.R. § 10.5(x).

4

Richard A. Neidert, 57 ECAB __ (Docket No. 05-1330, issued March 10, 2006); Terry R. Hedman, 38 ECAB
222 (1986).

4

bending, twisting and lifting are intervening causes. Because they constitute new exposure, her
changed condition on each of the days claimed would be considered new injuries. The Board
finds that appellant did not establish that the changes in her condition were spontaneous.
The Board further finds that appellant has not provided rationalized medical evidence
establishing the recurrences of disability claimed or explaining their causal relationship with the
November 27, 1999 employment injury.
On February 3, 2005 Dr. Stolte stated that the alleged recurrences of total disability were
causally related to the accepted injury because they had a similar clinical presentation and pattern
of relationship to appellant’s activities. In other words, her opinion was based on the fact that
appellant had the same symptoms as her initial injury when she did activities of the sort that
caused her initial injury. The Board notes that this opinion relates appellant’s disability to
ongoing employment activities rather than the original injury. However, Dr. Stolte did not
explain how she determined that the original injury, rather than the ongoing employment
activities, caused the alleged recurrences. The Board finds that her February 3, 2005 opinion is
not sufficient to establish that the initial injury was the cause of the alleged recurrences.
On April 28, 2006 Dr. Stolte quoted a portion of her November 2001 report in which she
stated that the severity of the damage to appellant’s soft tissue and ligament would lead to the
formation of nonelastic scar tissue that would make her joints stiff and unstable. She stated that
this structural weakening of the spinal column would further reduce appellant’s range of motion
and lead to recurring symptoms and pain. Dr. Stolte opined that these recurrences, which might
occur for no apparent reason, would be more prevalent at times of stress, fatigue or emotional
upset. Though she provided a medical explanation of how appellant’s original injury could
cause later recurrences, she did not link it adequately to the specific alleged instances of
recurrence. In her February 2005 report, Dr. Stolte listed the dates of treatment associated with
appellant’s “flare-ups” and stated generally that after these incidents she found decreased lumbar
range of motion, spasms and pain. However, she did not provide evidence of how these “flareups” changed appellant’s condition to the point that she was unable to perform her light-duty
position.
The Board finds that, in the absence of rationalized relevant medical evidence, appellant
has not met her burden of proof to establish the alleged recurrences of total disability.
CONCLUSION
The Board finds that appellant has not established that she sustained recurrences of total
disability causally related to her accepted November 27, 1999 employment injury.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated June 8, 2006 is affirmed.
Issued: May 9, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, North Bend, OR,
Employer
__________________________________________

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

Docket No. 19-1502
Issued: January 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 28, 2019 appellant filed a timely appeal from a December 31, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s December 31, 2018 decision was June 29, 2019. Since
using July 3, 2019, the date the appeal was received by the Clerk of the Appellate Boards would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark
is June 28, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the December 31, 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish employment-related
permanent impairment of a scheduled member or function of the body, warranting a schedule
award.
FACTUAL HISTORY
On March 23, 2016 appellant, then a 62-year-old civil engineering technician, filed a
traumatic injury claim (Form CA-1) alleging cervical and left clavicle injuries due to falling down
stairs on March 18, 2016 while in the performance of duty. OWCP accepted his claim for anterior
displaced closed fracture of the sternal/medial end of the left clavicle, neck abrasion, and displaced
closed fracture of the second cervical vertebra.4
On June 12, 2017 appellant filed a claim for a schedule award (Form CA-7) due to his
accepted employment injuries. He submitted reports from attending physicians and nurses, dated
in early- to mid-2017, which addressed the management of his neck and left clavicle pain.
In a July 26, 2017 development letter, OWCP requested that appellant submit additional
evidence in support of his schedule award claim, including a report from an attending physician
which evaluated his claimed permanent impairment under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).5 OWCP afforded him 30 days to submit such evidence.
On September 7, 2017 OWCP referred appellant to Dr. Ronald Teed, a Board-certified
orthopedic surgeon, for a second opinion examination. It requested that Dr. Teed examine
appellant and provide an opinion regarding his upper extremity permanent impairment under the
standards of the sixth edition of the A.M.A., Guides.
In a September 29, 2017 report, Dr. Teed noted that appellant reported that he still
experienced some left clavicle pain near the sternum and rated his present pain level as 1 or 2 out
of 10. Appellant denied pain radiating into his upper extremities and indicated that he did not
experience paresthesias or paralysis. Dr. Teed advised that his physical examination revealed a
negative Spurling test, no tenderness to palpation of the cervical spine, and no pain with gentle
axial loading. Both shoulders had full active range of motion (ROM) as well as 5/5 strength, and
there was no tenderness to palpation along the left shoulder. Dr. Teed noted that appellant had
minimal tenderness over the medial third of the left clavicle and that he found no crepitance,
fluctuance, palpable masses, or other defects. He diagnosed healed left clavicle fracture, healed
second cervical vertebra fracture, and resolved neck abrasion. Dr. Teed determined that appellant
had reached maximum medical improvement (MMI) and that he had no permanent impairment
with respect to his accepted employment conditions.
By decision dated October 12, 2017, OWCP denied appellant’s schedule award claim,
finding that he had not met his burden of proof to establish employment-related permanent

4

Appellant did not immediately stop work, but retired from the employing establishment in April 2016.

5

A.M.A., Guides (6th ed. 2009).

2

impairment of a scheduled member or function of the body. It accorded the weight of the medical
evidence to Dr. Teed.
On November 2, 2017 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review. By decision dated January 5, 2018,
OWCP’s hearing representative set aside the October 12, 2017 decision. She remanded the case
to OWCP for referral of appellant’s case to a district medical adviser (DMA) for proper evaluation
of his permanent impairment, to be followed by issuance of a de novo decision.
On February 1, 2018 OWCP referred appellant’s case to Dr. Arthur S. Harris, a Boardcertified orthopedic surgeon, who served as a DMA. It requested that he review the medical
evidence of record, including Dr. Teed’s September 29, 2017 report, and provide an opinion
regarding appellant’s permanent impairment under the standards of the sixth edition of the A.M.A.,
Guides.
In a February 2, 2018 report, the DMA discussed the findings of Dr. Teed’s September 29,
2017 report and noted that Dr. Teed had found that the fractures of the cervical vertebra and the
sternal/medial head of the left clavicle had satisfactorily healed. He explained that it was
appropriate to evaluate appellant’s permanent impairment using The Guides Newsletter, Rating
Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides
Newsletter). The DMA opined, that for each upper extremity, appellant did not have a neurologic
deficit consistent with radiculopathy stemming from the cervical spine. He found that appellant
reached MMI on September 29, 2017, the date of Dr. Teed’s examination, and concluded that he
did not have permanent impairment of either upper extremity.6
By decision dated March 7, 2018, OWCP denied appellant’s schedule award claim, finding
that he had not met his burden of proof to establish employment-related permanent impairment of
a scheduled member or function of the body. It noted that the DMA had reviewed the medical
evidence of record, including Dr. Teed’s September 29, 2017 report, and explained that appellant
did not have upper extremity permanent impairment under the standards of the sixth edition of the
A.M.A., Guides.
On March 13, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. He submitted an October 23, 2018 report from
Dr. Clifford Lin, an attending Board-certified orthopedic surgeon, who discussed his physical
limitations.
By decision dated June 28, 2018, OWCP’s hearing representative affirmed the March 7,
2018 decision, noting that the DMA correctly applied the standards of the sixth edition of the
A.M.A., Guides in finding that appellant had no permanent impairment of either upper extremity.
On September 19, 2018 appellant requested reconsideration of the June 28, 2018 decision.
He submitted an August 10, 2018 report from Dr. Victor K. Lin, Board-certified in physical
medicine and rehabilitation. Dr. Lin reported his examination findings and noted that appellant
had sustained a left clavicle fracture with decreased function of the neck and left shoulder. He
determined that appellant had five percent permanent impairment of the whole person under
6

The DMA indicated that, given the absence of cervical radiculopathy, it was unnecessary to consider the ROM
findings of record for the upper extremities.

3

Table 13-12 (Station and Gait Disorder) on page 336 of the sixth edition of the A.M.A., Guides
due to his reported difficulty in walking. Appellant also had five percent permanent impairment
of the whole person under Table 17-2 (Cervical Spine Regional Grid) on page 566 due to his
cervical fracture. Dr. Lin indicated that appellant had a diagnosis-based (DBI) impairment of
seven percent permanent impairment of the whole person (converted from 11 percent permanent
impairment of the left upper extremity) under Table 15-5 (Shoulder Regional Grid) on page 403
due to his left clavicle fracture. He noted that Table 15-5 did contain not a diagnosis for fracture
or dysfunction of the sternal/medial end of the clavicle, but posited that it was appropriate to use
the diagnosis of acromioclavicular joint injury/disease given the magnitude of appellant’s injury
and its effect on his upper extremity ROM. Dr. Lin added the several whole person impairments
he calculated and concluded that appellant had 17 percent permanent impairment of the whole
person.
By decision dated December 31, 2018, OWCP denied modification of the March 7, 2018
decision. It found that Dr. Lin’s August 10, 2018 report did not contain an impairment calculation
made in accordance with the standards of the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 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. However, FECA 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, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.10
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.11 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.12 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was
designed for situations where a particular jurisdiction, such as FECA, mandated ratings for
extremities and precluded ratings for the spine. The FECA-approved methodology is premised on
evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
11

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
12

Supra note 10 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)
(March 2017).

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rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure
Manual.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish employmentrelated permanent impairment of a scheduled member or function of the body, warranting a
schedule award.
The Board finds that OWCP properly relied on the opinion of the DMA, who reviewed
September 29, 2017 findings of Dr. Teed, an OWCP referral physician, and properly determined
that appellant did not have permanent impairment under the standards of the A.M.A., Guides. In
his February 2, 2018 report, the DMA noted that Dr. Teed found that the fractures of the cervical
vertebra and the sternal/medial head of the left clavicle had satisfactorily healed. He correctly
advised that it was appropriate to evaluate appellant’s permanent impairment using The Guides
Newsletter and opined, that for each upper extremity, appellant did not have a neurologic deficit
consistent with radiculopathy stemming from the cervical spine.14 The DMA found that appellant
reached MMI on September 29, 2017 and properly concluded that he did not have permanent
impairment of either upper extremity.
Appellant submitted an August 10, 2018 permanent impairment calculation from Dr. Lin,
but this calculation lacks probative value because it was not made in accordance with the A.M.A.,
Guides. The Board has held that an opinion on permanent impairment lacks probative value if it
is not derived in accordance with the standards adopted by OWCP and approved by the Board as
appropriate for evaluating schedule losses.15 Dr. Lin determined that appellant had five percent
permanent impairment of the whole person under Table 13-12 (Station and Gait Disorder) of the
sixth edition of the A.M.A., Guides and five percent permanent impairment of the whole person
under Table 17-2 (Cervical Spine Regional Grid). However, these permanent impairment
calculations are of limited probative value because, as noted above, neither FECA nor its
implementing regulations provide for the payment of a schedule award for the permanent loss of
use of the spine or the body as a whole.16 Dr. Lin also indicated that appellant had a DBI rating of
seven percent permanent impairment of the whole person (converted from 11 percent permanent
impairment of the left upper extremity) under Table 15-5 (Shoulder Regional Grid). The Board
notes that devising such a DBI permanent impairment rating relating to the shoulder was not
appropriate because appellant’s left clavicle fracture was at the sternal/medial end of the clavicle
next to the cervical spine, rather than at the acromioclavicular or left shoulder end of the left
clavicle. The A.M.A. Guides, per Table 15-5 on page 403, does not contain a provision for
assigning permanent impairment to injury of the sternal/medial end of the clavicle.17 The Board
thus finds that appellant has not met his burden of proof.

13

Supra note 10 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

14

See supra notes 12 and 13.

15

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

16

See supra note 11.

17

See A.M.A., Guides 403-05, Table 15-5 (Shoulder Regional Grid).

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Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish employmentrelated permanent impairment of a scheduled member or function of the body, warranting a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2020
Washington, DC

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

Janice B. Askin, 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
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-566
Issued: November 29, 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 December 28, 2009 appellant filed a timely appeal from the November 20, 2009
nonmerit decision of the Office of Workers’ Compensation Programs which denied his request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error. Because more than one year elapsed between the most recent merit decision
of the Office dated September 29, 2008 and the filing of this appeal, the Board lacks jurisdiction
to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly determined that appellant’s reconsideration
request was not timely filed and failed to establish clear evidence of error.

1

For Office decisions issued prior to November 19, 2008, a claimant has up to one year to file a Board appeal.
See 20 C.F.R. § 501.3(d)(2) (2008). For Office decisions issued on or after November 19, 2008, a claimant has 180
days to file a Board appeal. See 20 C.F.R. § 501.3(e) (2009).

FACTUAL HISTORY
This case has previously been before the Board. In a September 8, 2008 decision, the
Board found that appellant’s duties requiring use of a new computer system constituted a
compensable factor of employment under Cutler. The Board remanded the case to the Office to
consider the medical evidence.2 The law and facts of the previous Board decision are
incorporated herein by reference.
Following remand, the Office denied appellant’s emotional condition claim in a
September 29, 2008 decision. It found that the employing establishment had implemented the
new computer system in December 2003 and his first realized that his mental condition was due
to his work on or about July 24, 2004. The Office analyzed the medical reports of record and
found there was insufficient medical evidence to establish that appellant’s duties under the new
computer program caused his emotional condition.
On October 5, 2009 appellant, through his attorney, requested reconsideration. In an
October 5, 2009 brief, appellant’s attorney contended that the Office erred in rejecting
appellant’s claim when there was no contradictory evidence in the record. The Office failed to
provide a statement of accepted facts adjudicating the specific factual issues in the claim in the
September 29, 2008 decision; specifically, indicating that appellant was on temporary detail
when the new accounting system was implemented on October 3, 2003 and he did not return
until December 2003, when he had to learn the new computerized program. It also erred in
performing a medical advisory function when it decided that his treating psychiatrist’s report and
statement on causation was unacceptable without first referring appellant for a second opinion.
It was also alleged that the Office ignored critical facts that supported that appellant’s duties
while on temporary detail in Florida contributed to his emotional condition.
Appellant submitted the January 30, 2009 treatment notes and a July 23, 2009 report from
Dr. James M. Wilson, Jr., a Board-certified internist, a July 30, 2009 report from Dr. Mario G.
Alinea, a Board-certified family practitioner; an October 19, 2001 rating evaluation and June 29,
2009 report by Dr. C. Stephen Settle, a Board-certified physiatrist. He also submitted copies of
diagnostic tests dated February 14, 2001 and July 15, 2009; a September 28, 2001 report of
physical limitation and April 1, 2004 progress notes from the employing establishment health
unit; a May 6, 2002 job offer and a position description for a voucher examiner.
By decision dated November 20, 2009, the Office denied appellant’s request for
reconsideration as it was not timely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.3 The
2

Docket No. 08-841 (issued September 8, 2008).
compensable employment factors.
3

The Board found that other claimed factors were not

20 C.F.R. § 10.607(a).

2

Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.5 Office regulations and procedure provide 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(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 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.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but 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 the Office decision.12

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as 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. Id. at Chapter 2.1602.3c.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

Leon D. Faidley, Jr., supra note 4.

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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.13
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
request for reconsideration. The one-year time limitation period for requesting reconsideration
begins on the date of the original Office decision.14 However a right to reconsideration within
one year also accompanies any subsequent merit decision on the issues.15 The most recent merit
decision was the Office’s September 29, 2008 decision. Appellant had one year from the date of
this decision to make a timely request for reconsideration.16 Since appellant did not file his
request until October 5, 2009, it was filed outside the one-year time period.
As his request was untimely, appellant must submit evidence or argument that shows
clear evidence of error in the Office’s decision denying his emotional condition claim. The term
clear evidence of error is intended to represent a difficult standard.17 Appellant’s request would
have to establish on its face that the Office’s denial of his claim was erroneous. As noted,
appellant established only one compensable employment factor, performing his duties under a
new computer system, but the medical evidence was insufficient to establish that the
compensable work factor caused his emotional condition.
Appellant’s request for reconsideration does not establish clear evidence of error. The
factual and medical evidence submitted either predates the onset of the emotional condition or
does not address the cause of appellant’s emotional condition.18 The arguments raised by
counsel also fail to establish clear evidence of error. Appellant alleged that the Office did not
properly develop the evidence and erred in rejecting his claim as it was supported by undisputed
medical evidence. However, the most recent merit decision adjudicated the medical evidence
and found it did not establish a causal relationship to the accepted compensable work factor. The
issue presently before the Board is not whether appellant established a prima facie claim but
whether the Office properly found appellant’s reconsideration request to be untimely and
whether he presented clear evidence of error.19 Appellant has not established how the new
13

Pete F. Dorso, 52 ECAB 424 (2001).

14

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008); Alberta Dukes, 56 ECAB 247 (2005).

15

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

16

Supra note 1.

17

D.L., 60 ECAB ____ (Docket No. 08-1057, issued June 23, 2009); Joseph R. Santos, 57 ECAB 554 (2006).

18

See F.R., 61 ECAB ___ (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).
19

Even if appellant were found to have established a prima facie claim, this does not equate to finding that the
claim should have been accepted or even that the Office should have directly obtained additional medical evidence.
See Robert P. Bourgeois, 45 ECAB 745 (1994).

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medical evidence submitted after the September 29, 2008 decision demonstrates clear error in the
denial of his claim. He also asserts that the Office erred by not directing further medical
development after it found the medical evidence insufficient to establish causal relation. As
noted, the term clear evidence of error is intended to represent a difficult standard. Evidence
such as 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.20 The assertions regarding whether appellant established a prima facie
claim and whether the Office properly developed the claim do not establish clear error by the
Office.
Counsel alleged that the Office erred by not providing a statement of accepted facts prior
to adjudicating the issue in the September 29, 2008 decision. The Board notes that only one
compensable work-related factor was accepted in this case as factually established. The Office’s
September 29, 2008 decision clearly identified and discussed the compensable work factor as
found in this case. Any failure of the Office to prepare a statement of accepted facts in these
circumstances is insufficient to raise a substantial question as to the correctness of the Office’s
decision denying the claim. Appellant has not established evidence of error in this regard.
Appellant contends that the Office ignored critical facts that supported that his duties
while on temporary detail in Florida contributed to his emotional condition. The procedural
history in this case reflects that the Board previously addressed the merits of this case and only
found one a compensable employment factor. As noted, the only issue before the Board is
whether appellant’s reconsideration request was untimely and whether he established clear
evidence of error by the Office in refusing to reopen the case for further merit review. Counsel
has not established error in the prior adjudication of the claim that rises to the level of clear
evidence of error. As noted, it is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion. Thus, clear evidence of error is not
established.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and failed
to present clear evidence of error.

20

See supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the November 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 29, 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