United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON
PROCESSING & DISTRIBUTION CENTER,
Essex Junction, VT, Employer
__________________________________________

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

Docket No. 20-0903
Issued: April 22, 2021

Case Submitted on the Record

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

JURISDICTION
On March 19, 2020 appellant, through counsel, filed a timely appeal from a February 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that OWCP received additional evidence following the February 24, 2020 decision. 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 her burden of proof to establish a right arm condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 21, 2019 appellant, then a 51-year-old automation clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed a right ulnar nerve condition as a result of
her federal employment duties. She noted that she first became aware of her condition and its
relation to her federal employment on May 20, 2019. Appellant did not stop work.
In a development letter dated May 31, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond. In a separate
development letter also dated May 31, 2019, it requested additional factual information from the
employing establishment.
In a May 23, 2019 note, Dr. William J. Cove, an osteopath specializing in neuromuscular
disease, diagnosed right cubital tunnel syndrome and opined that the condition “is most likely due
to the repetitive motions she performs at work.”
In a June 6, 2019 memorandum, R.S., a plant manager, indicated that appellant was
“continually” on “some sort of light duty for the past two years with restrictions from non-work
related issues.” The plant manager confirmed that the employing establishment was diligent with
respect to adhering to her restrictions. R.S. disagreed that appellant engaged in repetitive work
and indicated that the employing establishment had “100 percent” complied with her physician’s
recommendations for work restrictions.
A position description for a mail processing clerk was received on June 14, 2019, along
with a description of measures to reduce fatigue while working.
In a June 19, 2019 letter, appellant indicated that she did not have appropriate medical
restrictions in place and that she had just received a platform that could have possibly prevented
her ulnar nerve damage if she had received it earlier.
In a July 3, 2019 attending physician’s report (Form CA-20), Dr. Cove noted that appellant
developed symptoms in her “right forearm after lifting trays of mail off a high shelf.” He
diagnosed ulnar nerve impingement, based upon an electromyogram (EMG) study dated
April 24, 2019. Dr. Cove checked the box “Yes” in response to whether he believed the condition
was caused or aggravated by an employment activity. He also indicated that appellant had no
preexisting conditions.
In a July 3, 2019 duty status report (Form CA-17), Dr. Cove noted that appellant developed
numbness in the right forearm after lifting heavy mail trays. He advised that appellant had right
ulnar nerve impingement and that appellant was “never told to miss work.”
By decision dated July 25, 2019, OWCP denied the claim, finding that appellant had not
established that the identified employment factors had occurred as alleged. It explained that
2

appellant had not responded to the factual questionnaire, nor did she describe her alleged
employment factors on the Form CA-2. OWCP concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On August 20, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on
December 11, 2019.
During the hearing, appellant indicated that she was diagnosed with right ulnar nerve
damage and that she had a cervical condition which she continued to aggravate. She noted that
she had filed a prior claim, but due to ongoing employment exposure, she filed the present claim.
Appellant explained that her job duties as an automation clerk involved continuous mail sorting.
She confirmed that she had worked in a modified position since 2016 and that she currently worked
between six to eight hours a day, based on her pain level. Appellant confirmed that she had injured
her right wrist in October 2019, when she fell while trying to move her motorcycle. She indicated
that her initial injury occurred on March 24, 2016, but that claim had not been accepted. OWCP’s
hearing representative noted that the current claim was administratively combined with appellant’s
two previously denied claims in OWCP File Nos. xxxxxx534 and xxxxxx791, both with a
March 24, 2016 date of injury. Appellant discussed her light-duty work and explained that she
primarily sorted letters as she had a five-pound lifting restriction. She stated that she was usually
able to work for approximately six hours and that she also printed placards and worked with
accountable mail in her light-duty assignment.
In an August 12, 2019 report, Dr. Seth Frenzen, a Board-certified orthopedic surgeon,
released appellant to light-duty work, effective immediately. He related that appellant should limit
weight bearing with the right upper arm to five pounds.
In an October 9, 2019 report, a physician assistant indicated that appellant could return to
full duty.
By decision dated February 24, 2020, OWCP’s hearing representative affirmed the July 25,
2019 decision, as modified, to find that appellant had provided a description of her “light-duty
employment factors from 2016-2019).” However, the hearing representative found that the
medical evidence of record was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

4

Supra note 2.

5

See S.M., Docket No. 19-1634 (issued August 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);
J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

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to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit 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 compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors, is sufficient to establish
causal relationship.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right arm
condition causally related to the accepted factors of her federal employment.
In a May 23, 2019 treatment note, Dr. Cove diagnosed right cubital tunnel syndrome and
opined that appellant’s condition “is most likely due to the repetitive motions she performs at
work.…” The Board has held that medical opinions that suggest that a condition was likely or

6

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
9

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

E.W., supra note 5; Gary L. Fowler, 45 ECAB 365 (1994).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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possibly caused by work activities are speculative or equivocal and have limited probative value.13
Thus, this report is of limited probative value.
In a July 3, 2019 Form CA-17, Dr. Cove diagnosed right ulnar nerve impingement. In a
separate Form CA-20 report also dated July 3, 2019, he noted that appellant developed symptoms
in her “right forearm after lifting trays of mail off a high shelf.” Dr. Cove diagnosed ulnar nerve
impingement and checked the box “Yes” in response to whether he believed the condition was
caused or aggravated by an employment activity. The Board has explained that a report that
addresses causal relationship with a check mark, without further medical rationale explaining how
the employment incident caused or aggravated the alleged injury, is of diminished probative value
and insufficient to establish causal relationship.14 Dr. Cove also indicated that there were no
preexisting conditions. However, this was not accurate as the record reflects two prior claims with
a March 24, 2016 date of injury, as well as a motor vehicle accident and a fall and injury to her
right wrist involving her motorcycle. Medical opinions based on an incomplete or inaccurate
history are of diminished probative value.15 These reports are, therefore, also insufficient to
establish appellant’s claim.
Dr. Frenzen provided an August 12, 2019 report releasing appellant to light-duty work,
effective immediately. However, he did not provide a diagnosis or an opinion regarding the cause
of appellant’s condition.16 As such, this report is insufficient to establish the claim.17
OWCP received reports from a physician assistant. However, certain healthcare providers
such as physician assistants are not considered physicians as defined under FECA.18
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.19 Thus, this evidence is of no probative value and is insufficient to
establish appellant’s claim.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s right arm condition and the accepted factors of her federal employment, the Board
finds that she has not met her burden of proof.

13

J.W., Docket No. 18-0678 (issued March 3, 2020).

14

J.K., Docket No. 20-0590 (issued July 17, 2020); J.A., Docket No. 17-1936 (issued August 13, 2018).

15
See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).
16

Supra note 11.

17

R.G., Docket No. 19-0233 (issued July 16, 2019); S.W., Docket No. 18-1489 (issued June 25, 2019).

18
Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 201 3); R.K., Docket No. 20-0049 (issued April 10, 2020) (a physician
assistant is not considered a physician as defined under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA)..
19

Id.

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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 her burden of proof to establish a right arm
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 22, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Chattanooga, TN,
Employer
__________________________________________

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

Docket No. 15-1475
Issued: November 3, 2015

Case Submitted on the Record

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

JURISDICTION
On June 29, 2015 appellant filed a timely appeal from a March 10, 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 has more than five percent left arm and two percent right
arm permanent impairments, for which she has received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal.2 As the Board noted, OWCP had
accepted appellant’s occupational disease claim for bilateral carpal tunnel syndrome (CTS) and
ulnar nerve lesion resulting from her duties as a mail handler. With respect to a permanent
impairment to a scheduled member, it issued a decision dated March 26, 2014 finding that
appellant had three percent left arm permanent impairment and no right arm impairment.
Appellant requested reconsideration. By decision dated September 8, 2014, OWCP denied
modification of the schedule award decision.
In the prior appeal, the Board set aside the September 8 and March 26, 2014 OWCP
decisions. Appellant had submitted reports from Dr. Carl Dyer, Jr., a Board-certified orthopedic
surgeon.3 The Board found that the determination of three percent permanent left arm
impairment, with no right arm impairment, was not based on an adequate medical background.
As to the left arm, the Board found an OWCP medical adviser had not properly explained how
Table 15-23 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition) had been applied, particularly with respect to grade modifiers. For the
right arm, the medical adviser did not discuss the relevant evidence or explain the opinion that
appellant had no right arm permanent impairment. The Board remanded the case to OWCP to
properly develop the medical evidence. The history of the case as provided by the Board in the
February 3, 2015 decision is incorporated herein by reference.
On September 10, 2014 OWCP received a September 3, 2014 report from Dr. Dyer, who
opined that appellant had five percent permanent impairment of each arm under the A.M.A.,
Guides. Dr. Dyer referred to his prior reports and enclosed a March 9, 2012 electromyogram
report (EMG).4 He found appellant had reached maximum medical improvement as of
September 3, 2014.
OWCP referred medical evidence to an OWCP medical adviser for an opinion as to the
degree of permanent impairment. In a report dated February 5, 2015, the medical adviser
identified Table 15-23 of the A.M.A., Guides and opined that he agreed with Dr. Dyer that
appellant had five percent permanent impairment to each arm. He discussed the grade modifiers
and found for test findings a grade modifier one, and for history and physical findings a grade
modifier two. The medical adviser also found a grade modifier two for functional scale,
resulting in a bilateral five percent permanent impairment under Table 15-23. He opined the date
of maximum medical improvement was September 3, 2014.
By decision dated March 10, 2015, OWCP issued a schedule award for an additional two
percent for a total of five percent permanent impairment to the left arm and two percent
2

Docket No. 14-2034 (issued February 3, 2015).

3

The record indicated that appellant underwent right carpal tunnel release on February 13, 2013 and a left carpal
tunnel release on May 6, 2013.
4

Dr. Dyer had opined in a February 11, 2014 report that appellant had five percent permanent right arm
impairment, and opined that appellant had five percent permanent left arm impairment in an April 24, 2014 report.

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permanent impairment for the right arm. The period of the award was 12.48 weeks to run for the
period September 3 to November 29, 2014.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
as the uniform standard applicable to all claimants.6 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition.7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.8 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories
test findings, history, and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.9
ANALYSIS
In the present case, both the attending orthopedic surgeon, Dr. Dyer, and OWCP medical
adviser, opined that under the A.M.A., Guides appellant had five percent permanent impairment
to each arm. As noted above, the application of Table 15-23 involves the determination of the
appropriate grade modifiers for test findings, history, and physical findings. These grade
modifiers are averaged to determine the overall grade modifier level and the appropriate default
impairment. Once the default impairment is determined, it may be adjusted up or down by one
percent based on the functional scale.
OWCP medical adviser explained that for each arm he would assign a grade modifier one
based on the March 9, 2012 EMG form mild conduction delay, a grade modifier two for history
based on appellant’s symptoms, and a grade modifier two for physical findings of decreased
5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

A. George Lampo, 45 ECAB 441 (1994).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

A.M.A., Guides 448-50.

9

Id.

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sensation. This is in accord with Table 15-23 and the average grade modifier is 1.66, rounded up
to a grade modifier 2. The default impairment is five percent under Table 15-23 for grade
modifier 2.10 There is no adjustment based on functional scale, as the medical adviser found the
functional scale was also grade modifier two (moderate).
The Board finds that the opinion of OWCP medical adviser who, based on the findings of
Dr. Dyer, found that appellant had five percent permanent impairment to each arm represents the
weight of the medical evidence. It is consistent with Dr. Dyer’s opinion and provides a clear
explanation as to how Table 15-23 was applied.
The March 10, 2015 decision, however, failed to properly reflect the weight of the
medical evidence regarding the right arm. Appellant had previously received a schedule award
for three percent left arm permanent impairment on March 26, 2014. Therefore appellant would
be entitled to an additional two percent for the left arm,11 but for the right arm, appellant had not
previously received a schedule award. The March 10, 2015 decision finds appellant has only
two percent right arm impairment. It is not clear whether OWCP erroneously had determined
appellant previously received a schedule award for three percent impairment to the right arm.
Since the medical evidence establishes a five percent right arm permanent impairment,
the case will be remanded to OWCP for proper issuance of a schedule award for an additional
three percent impairment to the right arm in accord with the probative medical evidence of
record. On return of the case record, OWCP should properly issue the schedule award for the
right arm.
CONCLUSION
The Board finds the evidence does not establish more than five percent left arm
impairment. The case is remanded to OWCP for proper issuance of a schedule award for an
additional three percent permanent impairment to the right arm in accord with the medical
evidence of record.

10

Id. at 449, Table 15-23.

11

It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the period of compensation
paid under a prior schedule award if the current impairment duplicates the prior impairment rating. T.S., Docket No.
09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 10, 2015 is affirmed with respect to the left arm. As to the
right arm, the decision is set aside and the case remanded for further action consistent with this
decision of the Board.
Issued: November 3, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trion, GA, Employer
__________________________________________

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Appearances:
M. David Mitchell, for the appellant
Office of Solicitor, for the Director

Docket No. 08-193
Issued: December 5, 2008

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 October 22, 2207 appellant filed a timely appeal from a July 17, 2007 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. The most recent merit decision is the Office’s July 15, 2003 decision. Because more
than one year has elapsed from this decision to 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.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On July 31, 2001 appellant, then a 60-year-old clerk, sustained injuries to his head, back,
arm and leg when a letter case toppled over and struck him. On September 24, 2002 the Office
accepted the claim for right eye laceration. Appellant stopped work on August 3, 2001. His
doctor released him to light-duty work four hours a day with restrictions on December 17, 2001.
However, the employing establishment was unable to accommodate appellant’s restrictions. On
August 30, 2006 appellant underwent a nonwork-related aortic value replacement procedure. On
September 9, 2006 he underwent a nonwork-related repair of the right femoral artery false
aneurysm.
On January 6, 2003 appellant filed a claim alleging that his back and leg conditions were
also due to the July 31, 2001 injury. On February 4, 2003 the Office advised him to submit
medical documentation from his physicians relating how the July 31, 2001 work incident caused
or aggravated his preexisting back condition.
Appellant submitted medical reports from Dr. D. Mark Murphy, a neurosurgeon, dated
March 27 and April 3, 2003. Dr. Murphy opined that appellant’s low back symptoms were
related to the July 31, 2001 work injury. He treated appellant on May 1, 1997 for low back pain
after a farm incident. Dr. Murphy stated that appellant overcame those symptoms and was
asymptomatic until the July 31, 2001 work injury. When he first saw appellant on November 19,
2001 for low back and thigh pain, appellant related that a heavy letter case fell on the back of his
head and jammed his back down. Dr. Murphy noted that he had no way of independently
corroborating appellant’s history of injury, but ascribed the symptoms appellant described to the
injury. Appellant had no history of preexisting similar symptoms. Dr. Murphy noted that
appellant’s low back pain from heavy farm work on May 1, 1997 and November 19, 2001 was of
the same character. He recommended a weight lifting belt and avoiding physically intensive
work. The results of an April 9, 1997 and October 25, 2001 magnetic resonance imaging scans
showed degenerative disc disease at L2-3 with convexity of the posterior annulus to the right at
L4-5.
By decision dated July 15, 2003, the Office denied appellant’s back condition.
In an October 29, 2003 report, Dr. Murphy diagnosed aggravation of degenerative disc
disease at L2-3 with a lower back injury and pain; a right L4-5 disc protrusion; and probable low
back sprain or strain. He reviewed the history of injury and opined that the July 31, 2001 work
incident aggravated appellant’s degenerative disc disease to the point it became symptomatic and
caused his current symptoms and disability. Dr. Murphy explained that appellant was largely
asymptomatic and had no leg pain prior to the July 31, 2001 injury.
On August 14, 2003 appellant requested an oral hearing. By decision dated February 11,
2004, the Office denied his request for a hearing on the grounds that it was not timely filed and
because the issue could be addressed equally as well on reconsideration by submitting new
evidence.

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In a letter dated June 19, 2007, appellant, through his representative, requested
reconsideration. He addressed why appellant delayed seeking medical care for his back
condition and why it did not manifest at the time of the accepted injury. Appellant’s
representative also discussed the medical evidence concerning the delayed manifestation of
appellant’s back problems following the July 31, 2001 injury. He referenced the July 9, 2002
report of Dr. Joseph N. Herren, a Board-certified internist, which was previously of record, and a
September 19, 2002 report from Dr. Murphy. Dr. Herren advised that appellant called his office
on October 15, 2001 after several weeks of severe pain associated with radicular pain in both
legs. He noted that the pain began shortly after a heavy metal case of several hundred pounds
fell on appellant while he was at work. Dr. Herren opined that appellant’s back problems were
directly related to the work injury. Dr. Murphy advised that appellant had fluctuating
mechanical low back pain, an on-the-job injury of July 31, 2001 and degenerative disc disease at
L2-3. He recommended that appellant be allowed to return to work with restrictions and on parttime duty on September 16, 2002.
By decision dated July 17, 2007, the Office denied appellant’s request for
reconsideration. It found that appellant’s June 19, 2007 request was untimely and that he had not
presented clear evidence of error on the part of the Office in denying his back condition claim.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle a claimant
to a review of an Office decision as a matter of right.2 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority. One such limitation is that the Office will not review a decision
denying or terminating a benefit unless the request for reconsideration is filed within one year of
the date of that decision.4 The Board has found that the imposition of this one-year time
limitation does not constitute an abuse of the discretionary authority granted the Office under
5 U.S.C. § 8128(a).5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6 To establish clear evidence of error, a claimant must submit evidence relevant

1

5 U.S.C. § 8128(a).

2

Thankamma Mathews, 44 ECAB 765 (1993).

3

Id. at 768.

4

20 C.F.R. § 10.607; see also Alberta Dukes, 56 ECAB 247 (2005).

5

Thankamma Mathews, supra note 2 at 769.

6

20 C.F.R. § 10.607(b); see also Donna M. Campbell, 55 ECAB 241 (2004).

3

to the issue which was decided by the Office.7 The evidence must be positive, precise and
explicit and must be 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 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
prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision.11 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.12
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration as
untimely. The implementing federal regulations provide that a request for reconsideration must
be filed within one year from the date of the Office decision for which review is sought.13 The
most recent merit decision is the Office’s July 15, 2003 decision denying appellant’s claim for a
back condition arising out of the July 31, 2001 injury. As appellant’s June 19, 2007
reconsideration request was made more than one year following July 15, 2003, it was untimely
filed. Consequently, to have his claim reopened, appellant must establish clear evidence of error
by the Office in its July 15, 2003 decision.
The Board finds that appellant has not presented evidence establishing that the Office’s
decision was erroneous or which raises a substantial question as to the correctness of the Office’s
decision. The Office found that he did not establish that his back condition was causally related
to the July 31, 2001 work incident. In support of his June 19, 2007 reconsideration request,
appellant’s representative addressed why appellant initially delayed seeking medical treatment
for his back condition following the accepted injury. These contentions, however, do not
establish clear evidence of error because they are not relevant to the underlying medical issue in
this case, which can only be resolved through the submission of probative medical evidence from
a physician.14
7

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

8

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

9

Darletha Coleman, 55 ECAB 143 (2003).

10

Leona N. Travis, supra note 8.

11

Darletha Coleman, supra note 9.

12

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

13

20 C.F.R. § 10.607(a).

14

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

4

Appellant submitted medical evidence from Dr. Herren and Dr. Murphy. Dr. Herren’s
medical report was previously reviewed by the Office. As noted, the evidence submitted must be
relevant to the issue which was decided by the Office. The evidence submitted in support of the
reconsideration request must address causal relationship and be so persuasive that it prima facie
shifts the weight of the evidence in favor of the claimant and raises a substantial question as to
the correctness of the Office’s decision. Dr. Herren’s opinion that appellant’s back problems
were directly related to the work injury was previously considered and found it was insufficient
to establish causal relationship. The subsequent submission of the same report does not raise a
substantial question as to the correctness of the Office’s decision. Accordingly, Dr. Herren’s
report does not show clear evidence of error on the part of the Office in denying appellant’s
claim.
Appellant also submitted reports from Dr. Murphy whose September 19, 2002 report
noted that appellant had fluctuating mechanical low back pain, an on-the-job injury of July 31,
2001 and degenerative disc disease at L2-3. However, Dr. Murphy offered no opinion on causal
relationship. On October 29, 2003 he opined that the July 31, 2001 work incident aggravated
appellant’s degenerative disc disease to the point it became symptomatic and caused appellant’s
current condition and disability. Although Dr. Murphy addressed causal relationship, his report
is insufficient to shift the weight of the evidence in favor of appellant’s claim. As noted, it is not
sufficient to merely show that the evidence could be construed so as to produce a contrary
conclusion. Appellant did not explain how this evidence established that the Office erred in the
prior denial of his claim. The Board finds that Dr. Murphy’s September 19, 2002 and
October 29, 2003 reports are insufficient to prima facie shift the weight of the evidence in favor
of appellant’s claim. For these reasons, the Board finds that appellant has not established clear
evidence of error on the part of the Office.
In accordance with its internal guidelines and Board precedent, the Office properly
performed a limited review of the evidence and argument submitted by appellant with his
June 19, 2007 reconsideration request to ascertain whether it demonstrated clear evidence of
error. It properly determined that it did not and thus properly denied appellant’s untimely
request for reconsideration of the merits of his claim.15
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that his request was untimely and failed to demonstrate clear evidence of error.

15

20 C.F.R. § 10.607(b).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 17, 2007 is affirmed.
Issued: December 5, 2008
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, MEMPHIS BULK
MAIL CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 08-1357
Issued: November 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 7, 2008 appellant filed a timely appeal of the April 4, 2007 merit decision of an
Office of Workers’ Compensation Programs’ hearing representative, affirming the denial of his
claim for wage-loss compensation for the period March 24, 2005 through March 21, 2006.
Pursuant to 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 has established that he was totally disabled from
March 24, 2005 through March 21, 2006 due to his accepted employment-related injury.
FACTUAL HISTORY
On March 4, 2004 appellant, then a 71-year-old group leader, sustained injury to his
lower back and leg as a result of moving hampers of mail to strip and wax floors. He stopped
work on March 4, 2004. Appellant submitted a December 21, 2004 medical report of
Dr. Michael J. Sorensen, a Board-certified physiatrist, who stated that appellant sustained lumbar

degenerative disc disease with pain aggravated with discogenic pain at L4-5 and L5-S1 and left
L5 distribution radiculitis causally related to the March 4, 2004 incident. On April 26, 2004
appellant underwent a lumbar surgery which was performed by Dr. Sorensen. He returned to
light-duty work on June 15, 2004. The Office accepted appellant’s claim for aggravation of
lumbar degenerative disc disease.
On March 21, 2006 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period March 24, 2005 through March 21, 2006. He submitted form reports dated
September 9 and December 8, 2005 of Dr. Marion Barr, an attending internist, who stated that
appellant sustained aggravated lumbar disc disease on March 24, 2004. On December 8, 2005
Dr. Barr indicated with an affirmative mark that appellant’s condition was caused by the
March 24, 2004 work incident. He stated that appellant was totally disabled from March 4
through July 2, 2005. On January 31, 2006 Dr. Barr stated that appellant suffered from
dizziness, lumbar disc disease and cervical disc disease with bilateral hand numbness. An
April 20, 2004 report of Dr. James V. Ellis, a Board-certified radiologist, provided the results of
a computerized tomography (CT) scan of appellant’s cervical spine. He reported findings
suspicious of left lateral annular tears at L3-4 and L4-5. Dr. Ellis found vertebral canal stenosis
at L3-4 and L4-5 related to degenerative facet changes bilaterally.
The Office received medical records from Dr. Edward S. Pratt, a Board-certified
orthopedic surgeon, who evaluated appellant between June 8 and August 25, 2004. Dr. Pratt
stated that appellant sustained discogenic back and L5 radicular pain and possible foraminal
stenosis. He recommended surgery to relieve his back pain.
In reports dated April 27, 2005 to April 25, 2006, Dr. Barr stated that appellant sustained
cervical and lumbar disc disease with bilateral hand pain and numbness, dizziness and
radiculopathy of the legs.
By letter dated July 6, 2006, the Office requested that appellant submit additional medical
evidence to establish his disability for work during the period March 24, 2005 through
March 21, 2006.
In a June 23, 2006 report, Dr. Stephen Waggoner, a Board-certified orthopedic surgeon,
who reviewed a history of appellant’s March 4, 2004 employment injury, medical treatment and
family and social background. Dr. Waggoner reported normal findings on physical and
neurological examination. He reviewed diagnostic test results. Dr. Waggoner stated that
appellant sustained chronic lower back pain with bilateral lumbar radiculopathy, mild spinal
stenosis at L4-5 and mild to moderate spinal stenosis at L3-4 secondary to degenerative facet
disease.
Appellant was status post lumbar discectomy with failed back syndrome.
Dr. Waggoner related that appellant’s chronic lower back pain with lumbar spinal stenosis at
L3-4 and L4-5 were preexisting conditions. He opined that the March 4, 2004 employment
injury may have aggravated his preexisting conditions but stated that the acute aggravation
should have resolved. Dr. Waggoner found no sign of anatomic change such as, disc herniation.
He opined that appellant’s current complaints were related to the underlying degenerative
changes of his lumbar spine and not due to his March 4, 2004 employment injury.

2

An August 4, 2006 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
was performed by Dr. Clarence G. Herrington, a Board-certified radiologist, who found
degenerative changes within the mid-lumbar spine that were most severe at L3, where severe
central canal stenosis appeared. Dr. Herrington also found milder central canal narrowing and
degenerative changes at L4-5. He stated that no disc herniation or significant enhancing scar was
identified. On August 4, 2006 Dr. Herrington also performed an MRI scan of appellant’s
cervical spine. He reported multi-level spondylosis most severe at C4 resulting in central canal
stenosis. Dr. Herrington stated that the changes at this level were asymmetrically prominent on
the right. He found no large herniation and there was a three to four millimeter central disc
protrusion at C2-3.
In an August 24, 2006 decision, the Office found the medical evidence of record
insufficient to establish that appellant was totally disabled from March 24, 2005 to March 21,
2006 causally related to his March 4, 2004 employment injury.
On August 29, 2006 the Office received Dr. Barr’s August 8, 2006 response to questions
by the employing establishment regarding appellant’s condition and disability for work. Dr. Barr
stated that appellant had spinal stenosis with aggravated degenerative disc disease of the lumbar
spine and low back pain due to the March 4, 2004 employment injury. He stated that appellant’s
chiropractic treatment did not improve his conditions. Dr. Barr related that appellant’s
multi-level cervical and lumbar spinal conditions made normal work uncomfortable.
In reports dated September 21, 2006, Dr. Waggoner stated that appellant sustained
cervical spinal stenosis at C4-5 and C5-6 with central disc protrusion at C4-5. He released
appellant to return to work with restrictions on that date. Dr. Waggoner reiterated his prior
opinion that appellant’s spinal stenosis was degenerative in nature and not related to his March 4,
2004 employment injury. On September 29, 2006 he prescribed a functional capacity evaluation.
On September 20, 2006 appellant requested a telephone hearing from the August 24,
2006 decision. He did not telephone the Office at the scheduled time of the hearing on
November 17, 2007 as he made a mistake about the time zone. By letter dated January 19, 2007,
an Office hearing representative denied appellant’s request to reschedule the hearing. She
advised him that review of the written record would be conducted.
By letter dated February 5, 2007, appellant submitted Dr. Sorensen’s June 18 and
December 21, 2004 reports. Dr. Sorensen stated that appellant was post lumbar laminectomy
with low back pain and left lower extremity complaints. He reiterated his opinion that
appellant’s lumbar degenerative disc disease, with discogenic pain at L4-5 and L5-S1 and left L5
distribution radiculitis, was causally related to the March 4, 2004 employment injury.
In a June 3, 2004 report, Dr. Barr released appellant to return to light-duty work on that
date. In a January 7, 2005 disability certificate, he stated that appellant could return to work on
January 18, 2005.
On April 26, 2004 Dr. Pratt performed a CT scan of appellant’s lumbar spine which
demonstrated findings suspicious of left lateral annular tears at L3-4 and L4-5.

3

By decision dated April 4, 2007, the Office hearing representative affirmed the
August 24, 2006 decision. The evidence submitted by appellant was found insufficient to
establish that he was totally disabled from March 24, 2005 to March 21, 2006 due to residuals of
his March 4, 2004 employment injury.1
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.2 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.3 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.4 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.5 The Board will not require the Office to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify his disability and entitlement to compensation.6
ANALYSIS
The Office accepted that appellant sustained an aggravation of lumbar degenerative disc
disease on March 3, 2004. The record reflects that he underwent back surgery on April 26, 2004
and returned to limited-duty work on June 15, 2004. On March 21, 2006 appellant sought
compensation for wage loss for total disability from March 24, 2005 through March 21, 2006.
The Office denied his claim, finding the medical evidence insufficient. Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between his claimed disability and the accepted condition.7
Appellant submitted several reports of Dr. Barr in support of his claimed employmentrelated disability. Dr. Barr stated that appellant sustained an aggravation of lumbar disc disease
1

The Board notes that, following the issuance of the hearing representative’s April 4, 2007 decision, the Office
received additional evidence. The Board may not consider evidence for the first time on appeal which was not
before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this
evidence to the Office and request reconsideration. 5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

See Prince E. Wallace, 52 ECAB 357 (2001).

3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Gary J. Watling, 52 ECAB 278 (2001).

5

Manuel Garcia, 37 ECAB 767 (1986).

6

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Alfredo Rodriguez, 47 ECAB 437 (1996).

4

and cervical disc disease with bilateral hand numbness, dizziness and radiculopathy of the legs.
However, he did not address causal relation or identify any period of disability for work. The
Board finds that Dr. Barr’s reports do not support appellants claimed employment-related total
disability from March 24, 2005 to March 21, 2006.
In a December 8, 2005 report, Dr. Barr indicated with an affirmative mark that
appellant’s aggravated lumbar disc disease was caused by a March 24, 2004 work incident. He
stated that appellant was totally disabled from March 4 through July 29, 2005. However,
Dr. Barr failed to provide any medical rationale explaining how or why the accepted March 4,
2004 employment-related injury caused appellant’s disability for work from March 4 to
July 29, 2005. Further, the Board notes that Dr. Barr incorrectly stated that appellant’s
employment injury occurred on March 24, 2004 rather than on March 4, 2004. This report is
insufficient to establish that appellant sustained any employment-related disability during the
claimed period.
On August 8, 2006 Dr. Barr stated that appellant’s spinal stenosis was aggravated by
degenerative disc of the lumbar spine due to the March 4, 2004 employment injury. He advised
that appellant’s multi-level cervical and lumbar spinal conditions made normal work
uncomfortable. However, Dr. Barr did not address whether appellant was totally disabled from
performing limited duty during the claimed period. The Board finds that Dr. Barr’s opinion is
not sufficient to establish that appellant was totally disabled from March 24, 2005 through
March 21, 2006 due to his accepted employment injury. The medical notes that Dr. Barr
provided prior to appellant’s return to limited-duty work on June 4, 2004 are not relevant to the
claimed period of disability.
Dr. Pratt’s report found vertebral canal stenosis at L3-4 and L4-5 related to degenerative
facet changes bilaterally. During the period June 8 through August 25, 2004, he stated that
appellant sustained discogenic back and L5 radicular pain and possible foraminal stenosis.
Dr. Pratt did not address disability for work for the period claimed. Dr. Sorensen’s June 18 and
December 21, 2004 reports stated that appellant was post lumbar laminectomy with low back
pain and left lower extremity complaints. He opined that appellant’s lumbar degenerative disc
disease with discogenic pain at L4-5 and L5-S1 and left L5 distribution radiculitis were causally
related to the March 4, 2004 employment injury. Dr. Ellis obtained diagnostic test results in
2004 pertaining to appellant’s degenerative disease of the lumbar spine. This evidence is
similarly not relevant as it predates the claimed period of total disability. The Board finds that
the reports of Dr. Ellis, Dr. Pratt and Dr. Sorensen fail to establish that appellant was totally
disabled from March 24, 2005 to March 21, 2006 due to his March 4, 2004 employment injury.
In reports dated June 23 and September 29, 2006, Dr. Waggoner stated that appellant had
chronic lower back pain with bilateral lumbar radiculopathy, mild spinal stenosis at L4-5 and
mild to moderate spinal stenosis at L3-4 secondary to degenerative facet disease. He also
diagnosed and cervical spinal stenosis at C4-5 and C5-6 with central disc protrusion at C4-5.
Dr. Waggoner noted that appellant was status post lumbar discectomy with failed back
syndrome. He opined that appellant’s lumbar spinal stenosis at L3-4 and L4-5 were preexisting
conditions that may have been aggravated by the March 2004 employment injury but, if such
acute aggravation occurred it had resolved. He did not find any sign of anatomic change such as
disc herniation. Dr. Waggoner opined that appellant’s current complaints were related to the

5

underlying degenerative changes in his spine and not to his March 2004 employment injury. He
released him to return to work with restrictions on September 21, 2006. However, Dr. Waggoner
did not address whether appellant sustained total disability for work during the claimed period
causally related to his accepted March 4, 2004 employment injury. The Board finds that his
reports are insufficient to establish appellant’s claim.
Similarly, Dr. Herrington’s August 4, 2006 MRI scans of appellant’s lumbar and cervical
spines are insufficient to establish that appellant sustained any employment-related disability
from March 24, 2005 through March 21, 2006 as they did not address causal relation or identify
any period of disability.
Appellant failed to submit sufficient rationalized medical evidence establishing that his
total disability from March 24, 2005 through March 21, 2006 was due to residuals of his
accepted lumbar degenerative disc disease. The Board finds that he has not met his burden of
proof.
CONCLUSION
The Board finds that appellant has failed to establish that he was totally disabled from
March 24, 2005 through March 21, 2006, due to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________

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

Docket No. 06-1021
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On March 30, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 15, 2006 nonmerit decision denying his request for further
review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
December 22, 2003 decision concerning appellant’s entitlement to schedule award
compensation. Because more than one year has elapsed between the last merit decision and the
filing of this appeal on March 30, 2006, the Board lacks jurisdiction to review the merits of this
claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On April 11, 1992 appellant, then a 51-year-old distribution clerk, filed a traumatic injury
claim alleging that he sustained a low back injury due to lifting a heavy tray of mail. The Office
accepted that he sustained a back sprain, exacerbation of preexisting degenerative disc disease of
the low back, radiculopathy and discogenic disease.2 Appellant retired from the employing
establishment effective October 2, 1992.
Appellant received care for his back condition from Dr. Elio J. Ippolito, an attending
Board-certified orthopedic surgeon, who found that he had permanent impairment of legs due to
effects of the employment-related back condition, which extended into his legs. In a
November 8, 1993 decision, the Office granted appellant a schedule award for a 15 percent
permanent impairment of his right leg and a 9 percent permanent impairment of his left leg.
Appellant received care from additional attending physicians, including Dr. Joseph C.
Polifrone, a Board-certified neurosurgeon. In reports dated September 10, 2001, January 14,
July 9 and December 20, 2002 and November 11, 2003, Dr. Polifrone determined that appellant
had significant permanent impairment of his legs due to sensory, motor and range of motion
losses.
The Office periodically reviewed the reports of appellant’s attending physicians and
made determinations regarding whether these reports showed that he was entitled to additional
schedule award compensation. In a December 3, 2001 decision, the Office granted appellant a
schedule award for an additional two percent permanent impairment of his right leg and an
additional eight percent permanent impairment of his left leg. In an April 14, 2003 decision, the
Office granted appellant a schedule award for an additional eight percent permanent impairment
of his right leg and an additional eight percent permanent impairment of his left leg.
By decision dated December 22, 2003, the Office determined that appellant had not
shown that he had more than a 25 percent permanent impairment of his right leg and a 25 percent
permanent impairment of his left leg, for which he had already received schedule award
compensation.
In a February 25, 2004 letter, received by the Office on March 2, 2004, appellant
requested reconsideration on the Office’s December 22, 2003 decision. In support of his
reconsideration request, he submitted a February 21, 2004 report of Dr. Polifrone which
contained a calculation of his permanent impairment. Appellant later submitted a March 23,
2004 impairment calculation of Dr. Polifrone.3
On July 15, 2005 an Office district medical adviser indicated that the medical evidence of
record showed that appellant had no more than a 20 percent permanent impairment of each leg
due to sensory loss. The district medical adviser stated that there was no objective evidence to
2

Between March 1970 and October 1979, appellant sustained four employment-related low back sprains, which
caused him to stop work for brief periods.
3

Appellant also requested reconsideration of the Office’s schedule award determinations in a June 26, 2005 letter.

2

show permanent impairment due to motor loss.4 On September 2, 2005 Dr. Polifrone determined
that appellant had a combined 57 percent permanent impairment of the legs due to motor loss
which should be included in addition to previous calculations for sensory and range of motion
losses. On September 14, 2005 the district medical adviser stated that Dr. Polifrone needed to
apply schedule award standards which related to the lower extremities.
On September 23, 2005 the Office requested that Dr. Polifrone provide an opinion on
appellant’s permanent impairment under the portion of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001), which
related to the lower extremities. On October 19, 2005 Dr. Polifrone reported impairment ratings
for a right calf atrophy and loss of range of motion of the ankles and toes. On October 31, 2005
the district medical adviser stated that, due to motor loss, appellant had a 37 percent permanent
impairment of his right leg and a 37 percent permanent impairment of his left leg. On
December 15, 2005 Dr. Polifrone asked the Office to consider his October 19, 2005 evaluation.
On November 14, 2005 the Office advised appellant by telephone that he was not entitled
to any further schedule award compensation because he “removed himself from his light[-]duty
position to accept a buy out by the [employing establishment].” In a December 21, 2005 letter,
received by the Office on December 22, 2005, appellant requested reconsideration of the
Office’s schedule award determinations.
By decision dated March 15, 2006, the Office denied appellant’s request for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error. The Office determined that appellant filed a reconsideration
request on December 22, 2005, which was untimely and that he did not submit evidence showing
clear evidence of error in the Office’s schedule award determinations. It noted that he had
separated from the employing establishment on or about October 2, 1992 and that he did not
have any further exposure to “employment factors or additional workplace injury which could
provide basis for an increased schedule award.”
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.5 The
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 Federal Employees’
Compensation Act.6
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
4

It appears that the adviser evaluated Dr. Polifrone’s March 23, 2004 calculations.

5

20 C.F.R. § 10.607(a).

6

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

3

establishes “clear evidence of error.”7 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.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 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.13 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 prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.14
ANALYSIS
The Office accepted that appellant sustained an employment-related back sprain,
exacerbation of preexisting degenerative disc disease of the low back, radiculopathy and
discogenic disease and he received schedule award compensation for a 25 percent permanent
impairment of his right leg and a 25 percent permanent impairment of his left leg. By decision
dated December 22, 2003, the Office determined that appellant had not shown that he had more
than a 25 percent permanent impairment of his right leg and a 25 percent permanent impairment
of his left leg. In a March 15, 2006 decision, the Office denied appellant’s request for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
7

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

8

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.
9

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

10

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

11

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

12

See Leona N. Travis, supra note 10.

13

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

14

Leon D. Faidley, Jr., supra note 6.

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In its March 15, 2006 decision, the Office improperly determined that appellant filed an
untimely request for reconsideration. The Office determined that appellant first filed a
reconsideration request on December 22, 2005 in connection with its December 22, 2003
decision. The record clearly reveals, however, that appellant submitted a February 25, 2004
letter, received by the Office on March 2, 2004, in which he requested reconsideration of the
Office’s December 22, 2003 decision.
Appellant timely filed his reconsideration request, effectuated on March 2, 2004, within
one year of the December 22, 2003 merit decision and the Office improperly denied his
reconsideration request by applying the legal standard reserved for cases where reconsideration
is requested after more than one year. Since the Office erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the clear evidence of error
standard, the Board will remand the case to the Office for review of this evidence under the
proper standard of review for a timely reconsideration request.15 Among the documents
appellant submitted between December 22, 2003 and March 2, 2004 that the Office should
review in this regard are several reports in which Dr. Polifrone, an attending Board-certified
neurosurgeon, provided ratings of permanent impairment.16
CONCLUSION
The Board finds that the Office improperly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error. The case will be remanded to the Office for a proper
evaluation of his timely reconsideration request.

15

See Donna M. Campbell, 55 ECAB 241, 244-45 (2004).

16

The Board further notes that in September 2005 the Office specifically requested that Dr. Polifrone provide an
opinion on appellant’s permanent impairment under the A.M.A., Guides. On October 19, 2005 Dr. Polifrone
reported impairment ratings for a right calf atrophy and loss of range of motion of the ankles and toes and on
October 31, 2005, the Office district medical adviser appears to have stated that, due to motor loss, appellant had a
37 percent permanent impairment of his right leg and a 37 percent permanent impairment of his left leg. It is
unclear why the Office conducted this further evaluation of appellant’s permanent impairment but did not issue a
decision at that time. It is well established that proceedings under the Act are not adversarial in nature and while the
claimant has the burden to establish entitlement to compensation, the Office shares responsibility in the development
of the evidence. Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 15, 2006 decision is set aside and the case remanded to the Office for further proceedings
consistent with this decision of the Board.
Issued: April 5, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.I., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Palm Springs, CA,
Employer
__________________________________________

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

Docket No. 14-1784
Issued: August 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant, through counsel, filed a timely appeal of a July 8, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to modify OWCP’s
December 15, 2011 loss of wage-earning capacity determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 15, 2003 appellant, then a 47-year-old transportation security screener, filed a
traumatic injury claim alleging that on that date she injured her left shoulder pushing a heavy
bag. She began working as a transportation security screener in November 2002. By decision
dated May 28, 2003, OWCP accepted appellant’s claim for left shoulder sprain. It also accepted
the additional condition of left shoulder impingement syndrome and approved arthroscopic
surgery on October 7, 2003. Appellant underwent a left shoulder arthroscopy with resection of
the subacromial bursa and the coracoacromial ligament as well as a subacromial decompression
and distal clavicle excision on November 20, 2003. She underwent a second left shoulder
arthroscopy on September 21, 2005 due to a full thickness tear of the supraspinatus tendon and
left shoulder resection of the subacromial bursa.
Appellant accepted a temporary light-duty assignment on December 25, 2005 performing
duties as an exit lane monitor, line monitor, divestiture, and recomposure. Her attending
physician, Dr. Frank B. Giacobetti, a Board-certified orthopedic surgeon, later indicated on
January 23, 2006 that she could return to modified duty with no over-the-shoulder use of her left
arm. Appellant accepted a light-duty assignment on January 9, 2006 as an exit lane monitor. On
September 24, 2007 Dr. Giacobetti indicated that appellant should not lift more than five pounds.
On September 30, 2008 appellant accepted a temporary light-duty assignment with no
grasping, manipulation, or lifting over the left shoulder. Dr. Giacobetti completed work status
reports in March through June 2009, diagnosing bilateral carpal tunnel syndrome and indicating
that appellant could perform modified duty with no forceful gripping or grasping of her left hand
and no overhead use of her left arm.
On June 23, 2009 the employing establishment submitted a copy of appellant’s temporary
limited-duty assignment as a travel document checker working full time five days a week. This
position required appellant to check a passenger’s travel documents and photo identification
prior to allowing them to enter the sterile area. The position was identified as sitting and
requiring repetitive use of the hands. Appellant was required to perform visual inspection of
identification badges to determine validity (expired and altered) as well as performing pat down
searches and bag checks. The physical activities were sitting, walking, standing continuously for
eight hours a day, lifting and carrying up to five pounds continuously for eight hours a day,
twisting, bending, squatting, kneeling, and utilizing steps and stairs continuously for eight hours
a day and no grasping manipulation, or reaching over the left shoulder. Appellant accepted this
limited-duty assignment on June 23, 2009.
On August 5, 2009 the employing establishment provided appellant with the temporary
limited-duty assignment of travel document checker. This position requested appellant to
perform visual inspection of identification badges to determine the validity and to perform pat
down searches and bag checks. The position required sitting and repetitive use of the hands.
The position noted that she could not lift or carry with her left hand or grasp manipulate with her
left hand or reach over her left shoulder. Appellant accepted this temporary position on
August 10, 2009.

2

On forms dated June 6 and July 11, 2011 Dr. Giacobetti diagnosed bilateral carpal tunnel
syndrome and indicated that appellant could perform light-duty effective July 11, 2011 with no
lifting more than five pounds and no work over the shoulder.
By decision dated December 15, 2011, OWCP determined that appellant’s position of
transportation security officer, “E band,” with wages of $737.57 per week fairly and reasonably
represented appellant’s wage-earning capacity. It stated that she began working in her current
position on August 5, 2009 and that she had held the position for more than two months.
On January 20, 2012 the employing establishment stated that it was unable to offer
appellant an adequate job offer due to the lack of medical documentation. In a telephone
memorandum dated February 1, 2012, it advised OWCP that it wished to terminate appellant
because she would never return to full duty.
Dr. Giacobetti provided continuing consistent work restrictions of no lifting over five
pounds and no over the shoulder use of the left arm due to appellant’s left shoulder condition on
April 16 and October 15, 2012. Appellant underwent a left carpal tunnel release.
In a telephone memorandum dated December 5, 2012, OWCP noted that the employing
establishment could no longer provide appellant with light-duty work. In a letter dated
February 1, 2013, the employing establishment asked that appellant provide medical
documentation regarding her ability to perform the required physical duties of her position. On
February 27, 2013 Dr. Giacobetti indicated that appellant could perform modified duties with no
lifting over five pounds and no over the shoulder work on the left. By letter dated May 7, 2013,
the employing establishment informed OWCP that appellant was separated from service on
May 3, 2013 as she was not medically qualified for her transportation security officer position.
On May 22, 2013 appellant filed a claim for compensation requesting wage-loss
compensation from May 4, 2014. In a letter dated June 26, 2013, OWCP informed appellant that
as a formal loss of wage-earning capacity decision had been issued in her claim, the claim for
compensation would be treated as a request for modification of the formal loss of wage-earning
capacity decision. It allowed appellant 30 days to submit evidence forming the basis for
modifying her loss of wage-earning capacity determination. Counsel responded on July 24, 2013
and stated that the position upon which the loss of wage-earning capacity determination was
based was make shift and not a position open to the general public.
By decision dated November 15, 2013, OWCP denied appellant’s claim for
compensation benefits finding that she had not established that the December 15, 2011 loss of
wage-earning capacity determination, based on the position of travel document checker, should
be modified. It stated that the position of travel document checker was not a make-work
position, but work done as part of her date-of-injury position. OWCP further found that
appellant had not submitted medical evidence establishing a material change in her injury-related
condition.
Counsel requested an oral hearing before an OWCP hearing representative on
November 22, 2013. He submitted the April 24, 2013 notice of proposed removal from the
employing establishment to appellant. This document stated that appellant did not meet the

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medical guidelines for a transportation security officer position as she was permanently
medically restricted from lifting more than five pounds. The employing establishment stated that
transportation security officers must meet and maintain the ability to repeatedly lift up to 70
pounds. It stated that an individual may not be deployed as a security screener unless he or she
meets all of the physical qualifications and that appellant was medically disqualified to be a
transportation security officer. Counsel also provided the job analysis tool for transportation
security officers which included the ability to repeatedly lift and carry items weighing up to 70
pounds.
Appellant appeared at the oral hearing on May 19, 2014. Counsel argued that the original
loss of wage-earning capacity determination was in error and that the employing establishment
terminated appellant’s employment as a transportation security officer rather than a travel
document checker which was a light-duty job reserved for people with disabilities. He also
noted that appellant’s claim for carpal tunnel syndrome had been accepted. Appellant testified
that the position of travel document checker was a special position for injured employees. She
stated that the travel document checker position was originally a rotated position that all
transportation security officers had to perform, but as more employees were injured, then the
injured employees would perform these duties. Counsel noted that the original loss of wageearning capacity decision did not address the difference between appellant’s date-of-injury
position and her modified position upon which her loss of wage-earning capacity determination
was based.
By decision dated July 8, 2014, an OWCP hearing representative affirmed the
November 15, 2013 decision of OWCP. He found that the position of travel document checker
was not makeshift or odd-lot as it contained a specific title, work schedule, limitations as to use
of appellant’s left arm, and duties consistent with transportation security. The hearing
representative further found that the medical evidence did not establish that appellant had
sustained a material change in her injury-related condition such that she could no longer perform
the duties of a travel document checker.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.3 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.4
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
2

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
3

K.R., id.; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

4

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

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has been retrained or otherwise vocationally rehabilitated, or the original determination was
erroneous.5 OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.6 The burden of proof is on the party attempting to show a modification of the
wage-earning capacity determination.7
When a formal loss of wage-earning capacity determination is in place and light duty is
withdrawn, the proper standard of review is not whether appellant sustained a recurrence of
disability, but whether OWCP should modify its decision according to the established criteria for
modifying a formal loss of wage-earning capacity determination.8 OWCP procedures provide
that when the employing establishment has withdrawn a light-duty assignment, which
accommodated the claimant’s work restrictions and a formal wage-earning capacity decision has
been issued, the decision will remain in place, unless one of the three accepted reasons for
modification applies.9
In addition, it is well established that a position that is considered an odd-lot or makeshift
position designed for a claimant’s particular needs is not appropriate for a wage-earning capacity
determination.10 The Board has discussed several factors that may support a finding that the
offered position was makeshift in nature. These factors include: (1) the position did not have an
official title or formal position description; (2) there were strict limitations, such as five-pound
lifting and no casing of mail, which indicated that the claimant would not be able to secure a
position in the community at large with such limited duties; (3) the claimant did not perform any
meaningful tasks in the position; and (4) the job appeared to be temporary in nature.11 OWCP’s
procedure manual provides that the offered position must correlate to the type of appointment
held by the injured employee at the time of injury. Reemployment may not be the basis of a
wage-earning capacity determination when the job is temporary where the employee’s job when
injured was permanent.12

5

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.4(a) (June 2013).
7

Selden H. Swartz, 55 ECAB 272, 278 (2004).

8

K.R., supra note 2; K.R., Docket No. 09-28 (issued September 16, 2009); Debbie A. Titus, Docket No. 05-360
(issued June 3, 2005).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity
Decisions, Chapter 2.1501.7 (June 2013).
10

See A.J., Docket No. 10-619 (issued June 29, 2010).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5.2(d) (June 2013).

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ANALYSIS
At the time of her April 15, 2003 employment injury, the record indicates that appellant
was a permanent employee who commenced working in the position of transportation security
screener in November 2002. OWCP accepted appellant’s claim for left shoulder sprain, left
shoulder impingement syndrome and approved two arthroscopic shoulder surgeries. Appellant
initially returned to temporary light-duty work on December 25, 2005. She accepted the
temporary position of travel document checker on August 10, 2009. Appellant worked in this
position until the employing establishment terminated her employment from the position of a
transportation security officer on May 3, 2013. According to the evidence of record, the position
of travel document checker was within appellant’s restrictions as provided by her physician,
Dr. Giacobetti. Appellant does not appear to argue that there was a material change in the nature
and extent in the employment-related condition. In addition, she does not argue that she has
been retrained or vocationally rehabilitated.
Appellant, through counsel, argues that the original loss of wage-earning capacity
determination was in error as it was based on a makeshift position or odd-lot position which
could not be used to support the loss of wage-earning capacity determination. Appellant noted
that the employing establishment terminated appellant’s employment as transportation security
officer not a travel document checker.
OWCP based its loss of wage-earning capacity determination on the August 10, 2009
position of travel document checker. The employing establishment, however, specifically
provided in its job offer that the offered position was temporary. When determining whether
earnings in alternative employment fairly and reasonably represent the employee’s wage-earning
capacity, OWCP may not consider the work appropriate when the job is temporary and the
employee’s previous job was permanent.13 The record does not support that appellant’s date-ofinjury position was temporary and there is no evidence that the August 10, 2009 limited-duty
assignment was formally classified as a permanent position. As a result, appellant has met her
burden to establish that the original December 15, 2011 wage-earning capacity determination
was in error.
The Board finds that OWCP failed to follow its established procedures as it based the
December 15, 2011 loss of wage-earning capacity determination on a temporary travel document
checker position that appellant accepted on August 10, 2009.
CONCLUSION
The Board finds that appellant has met her burden of proof to modify OWCP’s
December 15, 2011 loss of wage-earning capacity determination as it was improperly based on a
temporary position.

13

J.D., Docket No. 12-1026 (issued October 18, 2012); K.V., Docket No. 11-145 (issued July 22, 2011).

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ORDER
IT IS HEREBY ORDERED THAT July 8, 2014 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: August 21, 2015
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Plains, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-1461
Issued: February 7, 2019

Case Submitted on the Record

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

On June 19, 2017 appellant, through counsel, filed a timely appeal from a January 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP) under File No.
xxxxxx438. The Clerk of the Appellate Boards assigned Docket No. 17-1461.
On October 24, 2013 appellant, then a 50-year-old postal automation clerk, filed a notice
of recurrence (Form CA-2a) alleging that, on September 29, 2013, she sustained a recurrence of
disability of previously accepted left shoulder and cervical strains sustained on August 23, 2007.2

1

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

Under File No. xxxxxx366, OWCP accepted that, on August 23, 2007, appellant sustained left shoulder and
cervical strains when she lifted a tray of mail onto a postal container at work. She stopped work that day and OWCP
paid compensation benefits. Appellant resumed full-duty work in May 2010 and continued to receive medical
treatment for the accepted conditions.

By development letter dated December 31, 2013, OWCP informed appellant that it had
administratively converted her recurrence claim under File No. xxxxxx366 into a new
occupational disease claim, assigned File No. xxxxxx438. It requested that she respond to an
attached development questionnaire in order to substantiate the factual element of her claim and
submit additional medical evidence to establish a diagnosed condition causally related to her
employment. OWCP afforded appellant 30 days to submit the necessary evidence.
Appellant, through counsel, replied that the employment-related activities that led to her
medical conditions consisted of repetitive grasping, pushing, pulling, and lifting for
approximately 22 years. She noted that OWCP had previously accepted neck and shoulder
injuries sustained in the performance of duty on August 23, 2007, and that the evidence of record
substantiated that factors of her federal employment caused her debilitating conditions.
Appellant also submitted additional medical evidence.
In its February 11, 2014 decision, OWCP accepted appellant’s described repetitive
automation clerk duties as factual but denied the claim because the medical evidence of record
failed to establish a diagnosed condition causally related to the accepted employment factors. It
determined that the medical evidence of record failed to provide medical rationale explaining
how her employment contributed to or aggravated her cervical and left shoulder conditions.
Appellant, through counsel, requested reconsideration and submitted additional medical
evidence. By decision dated March 30, 2015, OWCP denied modification. Appellant appealed
to the Board and, by order dated October 4, 2016, the Board set aside the March 30, 2015 OWCP
decision.3 The Board found that OWCP failed to administratively combine File Nos. xxxxxx438
with File No. xxxxxx366, to determine whether appellant either sustained a recurrence of
disability causally related to the August 23, 2007 employment injury or a new occupational
disease injury. Accordingly, the Board remanded the case for further proceedings.
Upon return of the case record, OWCP administratively combined Files Nos. xxxxxx438
and xxxxxx366, with the latter serving as the master file. It conducted further development of
the record and, by decision dated January 23, 2017, denied appellant’s claim for a recurrence
commencing September 29, 2013. OWCP found, “The evidence of record does not establish the
basis for your recurrence because you failed to substantiate the factual elements of your claim
relating to a spontaneous change in the medical condition which resulted from a previous injury
or occupational illness without an intervening injury or new exposure to factors causing the
original illness….” It further found that appellant had not established “that you are
disabled/further disabled due to a material change/worsening of your accepted work-related
conditions.” OWCP explained that, after the case was remanded and the files were doubled,
“you indicated that you are filing a new injury [of September 29, 2013] and not a recurrence.” It
went on to note that on December 17, 2013 it had denied appellant’s occupational disease claim
under File No. xxxxxx768; that under “denied file number xxxxxx438” appellant had filed a
notice of recurrence commencing May 2, 2014, to which it assigned File No. xxxxxx131;4 that it
3

Order Remanding Case, Docket No. 15-1806 (issued October 4, 2016).

Appellant claimed that the recurrence was related to an “original injury” of September 29, 2013. The Board
notes that, although the notice of recurrence references Master File No. xxxxxx366, the record as transmitted to this
Board does not demonstrate that OWCP has combined File No. xxxxxx131 with File No. xxxxxx366.
4

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denied this latter claim as appellant’s submitted medical evidence did not establish a diagnosed
medical condition causally related to the accepted employment factors; and that it had previously
denied her September 29, 2013 traumatic injury claim under File No. xxxxxx438 as the medical
evidence did not establish that her disability was causally related to the “claimed events or work
factors of September 29, 2013.”
The Board, having duly considered the matter, concludes that this case is not in posture
for decision as the basis for OWCP’s decision is unclear.
A recurrence of disability is defined as an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted
from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.5 To determine whether a federal employee has sustained a
traumatic injury in the performance of duty, it must first be determined whether fact of injury has
been established.6 First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident at the time, place, and in the manner alleged.7
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.8
Appellant filed a notice of recurrence of commencing September 29, 2013, causally
related to an August 23, 2007 employment injury that OWCP had accepted for left shoulder and
cervical strains under File No. xxxxxx438. However, it had previously converted the recurrence
claim to a new traumatic injury occurring on September 29, 2013, which it denied under OWCP
File No. xxxxxx131. Although when denying appellant’s claim on January 13, 2017 OWCP
found that appellant had not established “the factual elements” of her claim “relating to a
spontaneous change in the medical condition which resulted from a previous injury or
occupational illness without an intervening injury or new exposure to factors causing the original
illness,” which defines a recurrence, it also found that appellant was claiming a new traumatic
injury.
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits,
OWCP is required by statute and regulation to make findings of fact.9 The Federal (FECA)
Procedure Manual further specifies that a final decision of OWCP “should be clear and detailed
so that the reader understands the reason for the disallowance of the benefit and the evidence

5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

6

See A.C., Docket No. 18-0683 (issued November 6, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

7

See id.

8

See A.C., id.; C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008).

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
9

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necessary to overcome the defect of the claim.”10 These requirements are supported by Board
precedent.11
Given the above-described precedent, the Board finds that OWCP’s January 23, 2017
decision does not contain adequate factual findings and/or recitation of the reason(s) for the
denial of appellant’s claim and which claim it was referring to, i.e., recurrence or a new
traumatic injury. This lack of specificity would prevent appellant from understanding the reason
for the disallowance of the claim and the evidence necessary to overcome the defect of the
claim.12 For these reasons, the case must be remanded to OWCP for further development.
Upon remand, OWCP shall issue a de novo decision specifically identifying which claim
it is denying, recurrence or a new traumatic injury, which contains findings of fact and a
statement of reasons supportive of its conclusion. Accordingly,
IT IS HEREBY ORDERED THAT the January 23, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: February 7, 2019
Washington, DC

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

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

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

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
11

See R.P., Docket No. 18-1128 (issued December 17, 2018); James D. Boller, Jr., 12 ECAB 45, 46 (1961).

12

See supra note 9.

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