United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, SAPPINGTON POST
OFFICE, St. Louis, MO, Employer
__________________________________________

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Appearances:
Michael Wheeler, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1064
Issued: November 26, 2008

Case Submitted on the Record

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

JURISDICTION
On February 28, 2008 appellant filed a timely appeal from the November 29, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review
the merits of the case.
ISSUE
The issue is whether appellant sustained an emotional or physical injury in the
performance of duty.
FACTUAL HISTORY
On November 21, 2005 appellant, then a 49-year-old letter carrier, filed a claim alleging
that an incident on November 4, 2005 caused anxiety, depression and an aggravation of his
hypertension:
“I had my headphones on for about 30 minutes while I cased my mail on route
26055. My case was to be moved because I was accused of causing a hostile

environment. I was notified of this by my Shop Steward Ted Spiro. At about
8:15 am, management also told other employees who then started singing ‘Na Na
Na Na Hey Hey Goodbye!’ This along with a torn out ad left on my case
prompted me to fill out a 3971, a sick leave slip. The ad was from a catalog and
had been placed on my case; a copy is enclosed in complaint.”
Appellant submitted a copy of an ad for The Looney Bin, which stated: “We’re a bit
looney here,” “Odd things tend to occur here” and “Abnormality is the normality at this
location.” He stated that management wanted documentation for his illness. Appellant stated
that he filled out a sick leave slip but left the return date open. He charged that a carrier
supervisor, Doug Hedley, filled in the date with November 4, 2005. Appellant stated that,
although management advised that this was not a work-related injury or covered sick leave, it
was his understanding that, if he, as a Ten Point veteran, wrote “VA” under the remarks on the
leave slip, the absence then becomes an excused absence. He likened this sudden and traumatic
incident to being placed on “leave without pay” status for 32 hours the prior month. “This is
shear (sic) harassment, management requires you to provide documentation, it takes you several
days, I stayed in contact with them and they make you fight to get paid.” Appellant stated that
he wanted to claim this as a traumatic injury, though he added his belief that the Postal Service
had rules that promoted a hostile work environment.
Supervisors informed the U.S. Postal Inspection Service that fellow carriers did not like
appellant. According to one supervisor, four people were told of the relocation of appellant’s
distribution case because their cases had to be relocated as well. The inspection service stated:
“The occurrence of singing could not be verified.” The inspection service further stated that
postal procedure required the completion of a sick leave form prior to submission and that
appellant left the ending date blank so he would not have to report his status to timekeeping on a
daily basis. The inspection service explained that an employee’s request for leave was subject to
the approval of a supervisor, and approval was based on the needs of the employing
establishment and the availability of help. The inspection service rebutted appellant’s view that
writing “VA” in the remarks section of a leave request automatically made the absence an
excused absence.
In a decision dated January 17, 2006, the Office denied appellant’s claim for benefits. It
found that he failed to identify at least one compensable factor of employment.
Appellant requested reconsideration and submitted statements about his grievances
against management. He stated that he had about 13 complaints before the Equal Employment
Opportunity (EEO) Commission, but most were on appeal.
On April 10, 2006 the Office reviewed the merits of appellant’s case and found no
evidence to substantiate his allegations of disparate treatment or a hostile work environment. It
modified its prior decision to find that the incidents appellant’s cited were not within the
performance of duty.
Appellant requested reconsideration and indicated that he was claiming an occupational
disease, that stress over a long period of time had a detrimental effect on his heart condition. He
submitted articles or studies to support that chronic stress can have such an affect. Appellant

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observed that letter carriers work under time constraints and that management continually
pressures, intimidates, harasses, contorts the contract and shows favoritism to their relatives,
wives and girlfriends. He attributed the stress to harassment from supervisors, who in 1997
followed him around continuously for weeks. Appellant alleged unequal enforcement of work
rules. He stated that pain from his accepted lower extremity injuries caused stress.
To support his request for reconsideration, appellant submitted a March 13, 2007 note
from a nurse practitioner: “[Appellant] suffered a myocardial infarction which was identified by
cardiac stress testing in October 2003. Emotional stress caused or aggravated by employment
was a contributing factor to the myocardial infarction.”
In a decision dated November 29, 2007, the Office reviewed the merits of appellant’s
claim and denied modification of its prior decision. It found that the material submitted was
insufficient to support appellant’s allegations that management created a hostile workplace. The
Office found no incident that occurred in the performance of duty.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty.1
Workers’ compensation does not cover each and every injury or illness that is somehow related to
employment.2 An employee’s emotional reaction to an administrative or personnel matter is
generally not covered. Nonetheless, the Board has held that error or abuse by the employing
establishment in an administrative or personnel matter, or evidence that the employing
establishment acted unreasonably in an administrative or personnel matter, may afford
coverage.3 As a rule, however, allegations alone by a claimant are insufficient to establish a
factual basis for an emotional condition claim.4 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.5
The Board has underscored that, in claims for a mental disability attributed to workrelated stress, the claimant must submit factual evidence in support of his allegations of stress
from “harassment” or a difficult working relationship. The claimant for compensation must
1

5 U.S.C. § 8102(a).

2

Lillian Cutler, 28 ECAB 125 (1976).

3

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
4

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
5

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).

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specifically delineate those factors or incidents to which the emotional condition is attributed and
submit supporting factual evidence verifying that the implicated work situations or incidents
occurred as alleged. Vague or general allegations of perceived “harassment,” abuse or difficulty
arising in the employment is insufficient to give rise to compensability under the Act. Based on
the evidence submitted by the claimant and the employing establishment, the Office is then
required to make factual findings, which are reviewable by the Board. The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by the Office and the
Board.6
The claimant has the burden of establishing the essential elements of his claim by the
weight of the reliable, probative and substantial evidence.7 His burden of proof is not discharged
by the fact that he has identified employment factors that may give rise to a compensable
disability. The claimant must also submit a well-reasoned medical opinion establishing that he
has an emotional or psychological disorder and that such disorder is causally related to the
identified compensable employment factors.8
Causal relationship is a medical issue,9 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty,11
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.12
Newspaper clippings, medical texts and excerpts from publications are of no evidentiary
value in establishing the element of causal relationship, as they are of general application and are
not determinative of whether the specific condition claimed was causally related to the particular

6

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

7

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

8

William P. George, 43 ECAB 1159, 1168 (1992).

9

Mary J. Briggs, 37 ECAB 578 (1986).

10

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

See Morris Scanlon, 11 ECAB 384, 385 (1960).

12

See William E. Enright, 31 ECAB 426, 430 (1980).

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employment injury involved.13 A nurse is not a “physician” within the meaning of the Act and is
therefore not competent to give a medical opinion on the issue.14
ANALYSIS
The Office denied appellant’s claim because he failed to establish a compensable factor
of employment. To the extent that he attributes his emotional condition to actions taken by
management, the Board agrees that he is making a claim that is generally not covered by
workers’ compensation. His emotional reaction to the decision to move his case on November 4,
2005 or to the requirement for medical documentation of illness or to any decision on leave
requests is something that lies, basically speaking, outside the scope of the Act.
There is an exception where the evidence establishes error or abuse by management in an
administrative or personnel matter. Management has rebutted appellant’s allegations, and
appellant has submitted no proof that management acted erroneously or abusively in any of the
matters alleged. To establish that harassment did in fact take place, he must submit proof to
substantiate his perceptions and allegations. Appellant has pursued many such allegations
through the EEO Commission, but he appears, so far, to have been unsuccessful in making the
case against management. In the absence of any positive, independent evidence showing error or
abuse by management, the Board finds that appellant has not established a compensable factor of
employment in any of the administrative or personnel matters alleged.
Appellant’s claim is somewhat broader than this. He also alleged that on or about
November 4, 2005 someone placed an ad on his case. To substantiate this allegation, appellant
submitted a copy of an ad for The Looney Bin. There appears to be no evidence to the contrary.
The employing establishment has offered no denial or rebuttal. The Board therefore finds that
appellant has established this incident as factual. The Board also finds that this incident is a
compensable factor of employment.
Appellant further alleged that, on November 4, 2005, when his case was being relocated,
coworkers taunted him by singing “Na Na Hey Hey Kiss Him Goodbye.” He did not identify the
singers or possible witnesses by name, but his allegation was specific as to time, place and
subject matter, making it a proper subject of investigation and response by the employing
establishment. The only response appearing in the record is a single sentence from the U.S.
Postal Inspection Service: “The occurrence of singing could not be verified.” On the record as it
currently exists, appellant has not proved that this alleged incident occurred. The employing
establishment is not required to disprove appellant’s allegation. The Postal Inspection Service
conducted an investigation and noted that it could not confirm that the singing incident occurred.
While the report might have been more detailed this Board does not conclude that the
investigation was inadequate as to the alleged singing incident.

13

Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

14

Vicky L. Hannis, 48 ECAB 538 (1997); see 5 U.S.C. § 8101(2) (the term “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by state law).

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There is a deficiency in appellant’s claim that makes further development by the Office
unnecessary. Appellant has failed to submit a single medical opinion to support the critical
element of causal relationship. He submitted an opinion from a nurse practitioner, who reported
that emotional stress caused or aggravated by employment was a contributing factor in the
myocardial infarction identified in October 2003. A nurse practitioner, however, is not a
physician under the Act and is not competent to address this matter. To discharge his burden of
proof, appellant must submit a well-reasoned medical opinion from a qualified physician
explaining how his exposure to The Looney Bin ad caused or aggravated a diagnosed emotional
or physical injury. Medical articles or studies on the effects of chronic stress are of general
application and do not address appellant’s specific situation. Because appellant has submitted no
competent medical opinion to support one of the essential elements of his claim, the Board finds
that he has not made even a prima facie case for benefits, much less discharged his burden of
proof by the weight of the reliable, probative and substantial evidence. For this reason, the
Board will affirm the Office’s denial of compensation.15
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained an
emotional or physical injury in the performance of duty.

15

See Herman E. Harris (Docket No. 91-1754, issued April 29, 1992) (finding that the claimant failed to
establish a prima facie claim for compensation where he submitted no medical opinion relating his occupational
disease or condition to factors of his federal employment).

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ORDER
IT IS HEREBY ORDERED THAT the November 29, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2008
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
ANNEX, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 14-1741
Issued: June 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from a February 21, 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 over the merits of this case.
ISSUE
The issue is whether appellant sustained a left shoulder condition causally related to
factors of his federal employment.
FACTUAL HISTORY
On May 27, 2013 appellant, then a 54-year-old mail handler, filed a traumatic injury
claim alleging that on April 24, 2013 he injured his left shoulder in the performance of duty. He
described the cause of his injury as performing “mail handler duties over the years.”
1

5 U.S.C. § 8101 et seq.

On April 3, 2013 appellant accepted an offer of modified assignment as a mail handler.
The duties included sealing, patching, and repairing mail.
On May 31, 2013 the employing establishment controverted the claim. It argued that
appellant had not sufficiently described the history of injury or submitted supporting medical
documentation. The employing establishment also noted that it appeared that his claim was for
an occupational disease rather than a traumatic injury.
By letter dated June 4, 2013, OWCP requested that appellant submit additional factual
and medical information, including a reasoned report from his attending physician addressing the
causal relationship between any diagnosed condition and his employment. In a June 16, 2013
response, appellant described in detail his work as a mail handler for over 25 years. Beginning
April 24, 2013 he experienced left shoulder and upper arm pain while performing his work duties
that increased over time.
In a report dated May 13, 2013, received by OWCP on July 2, 2013, Dr. James K.
Friedlander, a Board-certified orthopedic surgeon, evaluated appellant for complaints of anterior
lateral pain in his left shoulder. He stated, “[Appellant] denies any specific injuries but started
having the pain when he returned to work at the [employing establishment]. Dr. Friedlander
reports that he [has] been doing a lot of mail sorting and thinks he may have aggravated it
somehow.” He diagnosed left shoulder pain and a probable chronic rotator cuff tear. In a duty
status report dated May 13, 2013, Dr. Friedlander found that appellant could work with
restrictions.
A May 13, 2013 magnetic resonance imaging (MRI) scan study of the left shoulder
showed a small articular surface tear of the infraspinatus tendon and mild-to-moderate
supraspinatus/infraspinatus tendinopathy.
In a report dated June 26, 2013, Dr. Friedlander found that a May 28, 2013 MRI scan
showed a partial thickness left rotator cuff tear and tendinopathy. He related, “It is my medical
opinion that the long-term repetitive heavy lifting, carrying, pushing, and pulling required in his
employment with the [employing establishment] as a mail carrier aggravated his underlying
condition with his left shoulder.”
By letter dated July 15, 2013, OWCP advised Dr. Friedlander that appellant worked as a
mail handler, not as a mail carrier and that he had not worked in his usual employment since
February 17, 2012. It indicated that appellant returned to limited-duty employment on April 21,
2013 “repairing and sealing mail.” OWCP asked Dr. Friedlander to describe the work factors
that he believed caused a diagnosed left shoulder condition. In the accompanying statement of
accepted facts, it noted that appellant stopped work from June 29 to August 22, 2011 due to right
carpal tunnel syndrome under file number xxxxxx651. Appellant again stopped work on
February 17, 2012 for right shoulder surgery under file number xxxxxx477. He returned to
modified employment on April 21, 2013.
In a separate letter dated July 15, 2013, OWCP notified appellant that it was adjudicating
his claim as an occupational disease since he attributed his condition to work factors occurring
beyond the course of one work shift.

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On July 23, 2013 Dr. Friedlander indicated that his June 26, 2013 report should specify
that appellant worked as a mail handler. He stated, “The description of the duties of a mail
handler does not change my opinion about the aggravation of his underlying condition.”
Dr. Friedlander further stated:
“[Appellant’s] left shoulder condition is from long-term chronic repetition which
was aggravated by starting his new job duties repairing and sealing mail starting
April 21, 2013. [He] reports that his permanent restrictions he has in place for his
right upper extremity required him to lift partial and full flats of mail trays with
his left upper extremity. [Appellant] reports that his left shoulder was also
aggravated by doing repetitious motions of pulling and tearing mailbags from a
roll dispenser.
“[Appellant’s] left shoulder condition was aggravated by his duties as a mail
handler till February 17, 2012. He was not symptomatic with his left shoulder
during this time of inactivity. Once [appellant] started doing his restricted duties
beginning April 21, 2013 he started having left shoulder pain beginning
April 24, 2013.”
By decision dated August 27, 2013, OWCP denied appellant’s claim after finding that the
medical evidence was insufficient to establish that he sustained a medical condition causally
related to the accepted work factors. It found that the work duties identified by his physician as
causing his employment injury did not correspond to the limited-duty assignment he performed
beginning April 24, 2013.
On September 14, 2013 appellant requested a review of the written record by an OWCP
hearing representative. He attributed his condition to long-term repetitive heavy lifting as a mail
handler. Appellant related that when he resumed work on April 21, 2013, he used his left arm to
carry mail trays and place them on a repair table. He asserted that his rotator cuff tear resulted
from work duties performed up until February 2012, but that his job duties starting April 21,
2013 aggravated his condition. Appellant described in detail his employment duties.
By decision dated February 21, 2014, an OWCP hearing representative affirmed the
August 27, 2013 decision. She found that appellant’s physician did not explain how his work
duties before February 2012 caused his injury when he had no symptoms until after April 2013.
On appeal appellant argues that he sustained a repetitive injury to his left shoulder
working as a mail handler from November 1986 until February 2012. He notes that OWCP
accepted that he sustained a right shoulder injury under file number xxxxxx477 and right carpal
tunnel syndrome under file number xxxxxx651. Appellant questions OWCP’s reason for
denying his claim, noting that Dr. Friedlander showed knowledge of his work history and job
duties. He asserts that he experienced pain in his left shoulder on April 24, 2013 while
performing new work duties that necessitated repetitive left arm and hand movements.

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LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.8 The nonadversarial policy of proceedings under
FECA is reflected in OWCP’s regulations at section 10.121.9
ANALYSIS
Appellant alleged that he sustained a left shoulder condition due to working as a mail
handler for over 25 years.10 In February 2012 he stopped work due to a right shoulder injury.
Appellant returned to modified employment on April 24, 2013. He alleged that his work duties
as a mail handler until February 2012 caused his left shoulder condition and that his new work
duties starting April 2013 moving mail trays and placing them on a repair table aggravated his
2

5 U.S.C. § 8101 et seq.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

Beverly A. Spencer, 55 ECAB 501 (2004).

8

Jimmy A. Hammons, 51 ECAB 219 (1999).

9

20 C.F.R. § 10.121.

10

OWCP properly adjudicated appellant’s claim as an occupational disease as he attributed his condition to work
factors occurring over the course of more than one work shift.” See 20 C.F.R. § 10.5(q).

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left shoulder condition. OWCP accepted that appellant worked as a mail handler until
February 2012 and that he returned to limited-duty employment in April 2013 repairing and
sealing mail. The employing establishment has not disputed his description of his work duties as
a mail handler or his contention that he moved mail trays and placed them on a repair table using
his left arm while performing his modified assignment. The Board, therefore, finds that
appellant has established the occurrence of the work factors alleged to have caused his condition.
The issue, therefore, is whether the medical evidence establishes a causal relationship between
the claimed conditions and the identified employment factors.
In a report dated May 13, 2013, Dr. Friedlander discussed appellant’s complaints of
anterior lateral left shoulder pain that he believed was aggravated by mail sorting. He diagnosed
a probable rotator cuff tear. In a report dated June 26, 2013, Dr. Friedlander determined that an
MRI scan study of the left shoulder showed a partial thickness rotator cuff tear and tendinopathy.
He attributed appellant’s condition to his long-term work lifting, carrying, pushing, and pulling
as a as a mail carrier. On July 23, 2013 Dr. Friedlander clarified that appellant worked as a mail
handler not a mail carrier. He advised that his finding regarding the aggravation of appellant’s
condition had not altered after reviewing the actual duties of a mail handler. Dr. Friedlander
concluded that appellant’s work as a mail handler until February 17, 2012 aggravated his left
shoulder condition and that his modified duties beginning April 21, 2013 of repairing and sealing
mail moving flats of mail trays with his left upper extremity further aggravated his condition.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.11 The Board
has reviewed Dr. Friedlander’s reports and notes that he provided a clear opinion that appellant’s
left shoulder condition was aggravated both by his work as a mail handler until February 17,
2012 and his modified work duties beginning April 21, 2013. Dr. Friedlander based his opinion
on an accurate factual and medical history and expressed his opinion to a reasonably medical
certainty. He did not equivocate or signify any doubt about the causal relationship between
appellant’s work duties and his diagnosed left shoulder condition of a partial thickness rotator
cuff tear and tendinopathy. Dr. Friedlander based his diagnosis on an MRI scan study. His
opinion is supportive, unequivocal, bolstered by objective findings, and based on a firm
diagnosis and an accurate work history. It lacks only an explanation of why appellant sustained
a torn rotator cuff and tendinopathy of the left shoulder as a result of work duties as a mail
handler before February 17, 2012 and his work duties in a modified position after April 21, 2013.
Consequently, while the medical evidence from Dr. Friedlander is insufficiently rationalized to
meet his burden of proof to establish an employment-related left shoulder condition, it raises an
undisputed inference of causal relationship sufficient to require further development by OWCP.12
Accordingly, the Board will remand the case to OWCP. On remand, it should further develop
the medical record to determine whether appellant sustained a left shoulder condition causally
related to factors of his federal employment. Following this and such further development as
OWCP deems necessary, it shall issue a de novo decision.
11

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

12

Id.

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: June 11, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 16-1404
Issued: April 14, 2017

Case Submitted on the Record

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

JURISDICTION
On June 24, 2016 appellant filed a timely appeal from an April 5, 2016 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The last merit decision in this
matter was a May 9, 2008 decision of the Board, which became final after 30 days of issuance
and is not subject to further review.1 Pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.3

1

20 C.F.R. § 501.6(d); see R.M., Docket No. 14-1213 (issued October 15, 2014).

2

5 U.S.C. § 8101 et seq.

3

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). By order dated February 9, 2017, the Board exercised its discretion and denied
the request, finding that the arguments presented on appeal could adequately be addressed based on review of the
case record. Order Denying Oral Argument, Docket No. 16-1404 (issued February 9, 2017). The Board’s Rules of
Procedure provide that any appeal in which a request for oral argument is not granted, the Board will proceed to a
decision based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that OWCP has mismanaged her claim for 30 years and
violated FECA when, without explanation, it transferred her medical care from her attending
physician to a second opinion physician on October 9, 1986 without allowing her an opportunity
to select a new physician. She also argues the merits of her case.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the prior Board decisions are incorporated herein by reference. The relevant facts are set forth
below.
OWCP accepted that on May 7, 1985 appellant, then a 28-year-old letter sorter machine
operator, sustained cervical and lumbar strains, and left hip and left ankle strains as a result of
slipping and falling down a flight of stairs at work in a claim assigned File No. xxxxxx086. It
later accepted that she sustained a recurrence of disability on July 24, 1985. In a claim filed
under File No. xxxxxx103, OWCP accepted that appellant sustained cervical and thoracic strain,
and left trapezius myositis while in the performance of duty on July 24, 1985. It combined File
Nos. xxxxxx086 and xxxxxx103 with the former serving as the master file.
By decisions dated September 14, 2000, August 4, 2003, and February 9, 2005, the Board
affirmed OWCP’s nonmerit decisions denying appellant’s requests for reconsideration regarding
a denial of recurrence of disability as they were untimely filed and failed to demonstrate clear
evidence of error.4
In a notice dated December 8, 2006, OWCP proposed to terminate medical benefits and
entitlement to future wage-loss compensation based on evidence from Dr. Mukund Komanduri, a
Board-certified orthopedic surgeon selected as the impartial medical specialist, who opined that
appellant no longer had any residuals of her accepted May 7 and July 24, 1985 employment
injuries.
In a January 18, 2007 decision, OWCP finalized the termination of appellant’s medical
benefits and entitlement to future wage-loss compensation based on Dr. Komanduri’s impartial
medical opinion. Appellant requested a hearing. An OWCP hearing representative affirmed the
termination by decision dated November 15, 2007. He found that Dr. Komanduri’s impartial
medical opinion was entitled to special weight. On December 18, 2007 appellant appealed to the
Board.

4

Docket No. 99-0958 (issued September 14, 2000), Order Denying Petition for Reconsideration, Docket No. 990958 (issued June 5, 2001); Docket No. 03-0956 (issued August 4, 2003); Docket No. 94-1741 (issued
February 9, 2005).

2

In a May 9, 2008 decision,5 the Board affirmed the January 18 and November 15, 2007
termination decisions. The Board found that OWCP had met its burden of proof to terminate
appellant’s medical benefits and entitlement to future wage-loss compensation based on
Dr. Komanduri’s impartial medical opinion. The Board also found that appellant had failed to
establish that she had any continuing employment-related residuals after January 18, 2007.
By order dated April 15, 2009 in File No. xxxxxx827, the Board remanded the case for
consolidation of appellant’s prior claims.6 Following the remand, OWCP denied appellant’s
requests for reconsideration because the requests were untimely filed and failed to demonstrate
clear evidence of error. A December 15, 2011 OWCP decision was appealed to the Board. In a
March 13, 2012 decision, the Board affirmed the denial of appellant’s reconsideration request as
it was untimely filed and failed to demonstrate clear evidence of error.7 Appellant continued to
request reconsideration and, following a March 18, 2013 OWCP decision, she again appealed to
the Board. In an order dated May 16, 2014, the Board found that OWCP had improperly
designated appellant’s request for reconsideration from its denial of recurrence of disability
rather than from its termination decision and, consequently, had not addressed the relevant
issue.8 The Board remanded the case for OWCP to correct its procedural error.
Upon remand from the Board’s May 16, 2014 order, OWCP issued a July 1, 2014
decision which denied appellant’s request for reconsideration of its January 18, 2007 termination
decision. It found that the reconsideration request was untimely filed and failed to demonstrate
clear evidence of error.
Appellant filed additional requests for reconsideration and appealed August 22,
September 23, and December 8, 2014 OWCP decisions to the Board. By decision dated
January 28, 2016, the Board found that OWCP properly denied appellant’s requests for
reconsideration because they were untimely filed and failed to demonstrate clear evidence of
error.9
Subsequent to the December 8, 2014 OWCP decision, appellant continued to submit
letters asserting that OWCP erred regarding the selection of the treating physician and in its
management of her claim.
In letters received February 16 and March 1, 2016, appellant again requested
reconsideration of OWCP’s January 18, 2007 termination decision. She contended that OWCP
failed to follow remand instructions in a prior OWCP decision to refer her back to
5

Docket No. 08-0571 (issued May 9, 2008).

6

Order Remanding Case, Docket No. 09-42 (issued April 15, 2009). Appellant had appealed April 24 and
October 2, 2008 decisions in File No. xxxxxx827, in which OWCP denied her claim for an alleged November 7,
1986 injury as untimely filed.
7

Docket No. 12-0554 (issued March 13, 2012), Order Denying Petition for Reconsideration, Docket No. 12-0554
(issued September 14, 2012).
8

Order Remanding Case, Docket No. 13-1824 (issued May 16, 2014).

9

Docket No. 15-0550 (issued January 28, 2016).

3

Dr. Komanduri for another impartial medical examination. Appellant also contended that
Dr. Komanduri’s report was incomplete as he did not answer all the questions posed by OWCP.
She asserted that her claim was tainted because OWCP sent telephone conversation transcripts to
Dr. Komanduri regarding her conversations with OWCP about him, which caused him to call her
ignorant. Appellant submitted letters dated February 20 and 24 and March 9, 20, and 28, 2016 in
which she maintained that OWCP terminated her compensation without any evidence to
establish that her employment-related residuals and disability had ceased. She further
maintained that it had not designated a physician of record since it had terminated her prior
physician. In an April 3, 2016 letter, appellant asserted that OWCP ignored medical reports
submitted by her physician in 2012, 2013, 2014, and 2015 who noted that her preexisting
unspecified connective tissue condition was aggravated by her work injury.
By decision dated April 5, 2016, OWCP denied appellant’s reconsideration request as it
was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.10 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.11 Imposition of this one-year filing limitation
does not constitute an abuse of discretion.12
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, it must nevertheless undertake a
limited review to determine whether it establishes clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.13
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,14 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.15 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to demonstrate clear evidence of error. It is not enough
10

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

11

20 C.F.R. § 10.607(a).

12

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

13

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term clear evidence of error
is intended to represent a difficult standard).
14

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

15

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

4

merely to show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has demonstrated clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.16
ANALYSIS
On February 16, 2016 appellant requested reconsideration regarding the termination of
her wage-loss compensation and medical benefits. The Board finds that, as more than one year
elapsed between the most recent merit decision on the termination issue, the Board’s May 9,
2008 decision, affirming the termination of all medical benefits, and appellant’s request for
reconsideration received by OWCP on February 16, 2016,17 her request for reconsideration was
untimely filed.16
The Board also finds that appellant failed to demonstrate clear evidence of error. On
reconsideration appellant maintained that OWCP failed to follow remand instructions in a prior
OWCP decision to refer her back to Dr. Komanduri for another impartial medical examination.
There is no evidence of record supporting this assertion. Thus, appellant has not demonstrated
clear evidence of error by OWCP.
Appellant also maintained that OWCP terminated her compensation benefits without any
evidence to establish that her employment-related residuals and disability had ceased. She
contended that Dr. Komanduri’s report was incomplete as he did not answer all the questions
posed by OWCP. Contrary to appellant’s contentions, the Board, as noted, previously found that
the opinion of Dr. Komanduri was entitled to special weight and established that appellant no
longer had any residuals or disability causally related to her accepted May 7 and July 24, 1985
employment injuries. Consequently, her contentions are insufficient to demonstrate clear
evidence of error by OWCP.
Appellant further contended that her claim was tainted because OWCP sent
Dr. Komanduri transcripts of telephone conversations between herself and OWCP regarding
him, which resulted in him calling her ignorant. OWCP procedures provide that the referee
physician or impartial medical examiner should be provided with a statement of accepted facts
and a list of pertinent questions or issues to be addressed, which should include a statement
outlining the conflict(s) for resolution in the case. The physician should also receive a copy of
the entire case record.18 OWCP properly followed its procedures and provided Dr. Komanduri a
copy of the case record, which included memoranda of telephone calls (Form CA-110).

16

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

17

Appellant had one year to request reconsideration following the issuance of the Board’s May 9, 2008 decision.
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (October 2011,
February 2016) (a right to reconsideration within one year accompanies any subsequent merit decision, including
any merit decision by the Board).
18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810(11)(c) (September 2010).

5

Consequently, appellant’s contention does not raise a substantial question as to the correctness of
OWCP’s decision.
Appellant also contended that OWCP ignored reports from her physicians which
established that her preexisting unspecified connective tissue condition was aggravated by her
work injury. The Board has held that evidence of the nature of any disabling condition and its
relationship to a particular employee’s work can only be given by a physician fully acquainted
with the relevant facts and circumstances of the employment injury and the medical findings.19
As a lay person, appellant is not competent to render a medical opinion and, therefore, her
opinion has no probative value on a medical issue.20 Moreover, appellant did not specifically
identify the reports allegedly ignored by OWCP. The Board finds, therefore, that her general
contention is insufficient to demonstrate clear evidence of error on the part of OWCP.
Appellant further asserted that OWCP had not designated a physician of record since it
had terminated her prior physician. This assertion is not relevant to the underlying issue in this
case, whether appellant had any continuing residuals or disability causally related to her accepted
May 7 and July 24, 1985 employment injuries. In order to establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP.21
Thus, the Board finds that the arguments submitted on reconsideration do not raise a
substantial question as to the correctness of OWCP’s decision terminating appellant’s medical
benefits. Consequently, OWCP properly found that the untimely reconsideration request did not
demonstrate clear evidence of error.
On appeal appellant contends that OWCP has mismanaged her claim for 30 years and
violated FECA because it transferred her medical treatment from her attending physician to a
second opinion physician on October 9, 1986 without allowing her an opportunity to select a new
physician and failed to provide an explanation for such action. As stated, however, the
underlying issue is whether OWCP properly terminated her medical benefits because she no
longer had any residuals or disability causally related to her accepted May 7 and July 24, 1985
employment injuries. The Board finds that appellant’s argument is not relevant to this issue.
Appellant also argues the merits of her case on appeal. However, as noted above, the
Board does not have jurisdiction over the merits of the case. Appellant has not presented
evidence or argument that raises a substantial question as to the correctness of OWCP’s
termination decision for which review is sought.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
19

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

20

See James A. Long, 40 ECAB 538 (1989).

21

Supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the April 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 14, 2017
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

7


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

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Appearances:
Joanne Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0112
Issued: July 14, 2021

Case Submitted on the Record

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

JURISDICTION
On November 3, 2020 appellant, through his representative, filed a timely appeal from a
July 20, 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 over the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
disability for the periods April 9 through 15, 2016 and April 23 through May 20, 2016 causally
related to his accepted November 23, 2015 employment injury.
FACTUAL HISTORY
On December 4, 2015 appellant, then a 57-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 23, 2015 he suffered a right knee injury when
slipping on acorns while in the performance of duty. He initially stopped work on December 3,
2015 and returned to modified-duty work on December 4, 2015. OWCP accepted the claim for
right knee sprain.
In a letter dated May 17, 2016, Dr. Chris Robinson, a Board-certified orthopedic surgeon,
noted that he had treated appellant for bilateral arthritic knees since 2012. He indicated that
appellant could return to work with the restriction of not walking on uneven terrain. Dr. Robinson
advised that uneven terrain would put undue stress on appellant’s right knee prosthesis and noted
that appellant should work on even, predictable sidewalks, and walkways.
On March 11, 2019 appellant filed a claim for compensation (Form CA-7) for leave
without pay (LWOP) for disability during the period April 9 through May 20, 2016. In
corresponding time analysis forms (Form CA-7a), dated March 5, 2019, he claimed that he used 8
hours of LWOP on April 9, 2016, 40 hours of LWOP from April 12 through 15, 2016, 8 hours of
LWOP on April 23, 2016, 16 hours of LWOP from April 25 and 26, 2016, 24 hours of LWOP
from April 28 through 30, 2016, 40 hours of LWOP from May 2 through 7, 2016, 32 hours of
LWOP from May 9 through 12, 2016, and 40 hours of LWOP from May 16 through 20, 2016.
In a development letter dated March 19, 2019, OWCP requested that appellant provide
additional medical information supporting that he was disabled from work for the periods claimed
on the CA-7 forms.
OWCP subsequently received a December 17, 2015 attending physician’s report (Form
CA-20) wherein Dr. Robinson diagnosed knee sprain due to a hyperextended right knee.
Dr. Robinson checked a box marked “Yes,” indicating that appellant’s condition was caused or
aggravated by an employment activity. He noted that appellant could resume work with the
restriction of not walking on uneven terrain.
In a January 22, 2016 work excuse note, Dr. Robinson advised that appellant should only
walk on sidewalks while at work.

2

In a letter dated January 29, 2016, Dr. Robinson again noted that it was medically
necessary for appellant to walk on leveled surfaces to physically recover from his recent right total
knee arthroplasty.3
Dr. Robinson, in a letter dated July 3, 2018, opined that appellant’s right knee sprain was
caused by the hyperextension of appellant’s knee when he slipped while delivering mail.
In an April 15, 2019 narrative statement, appellant noted that on March 30, 2016 his
supervisor informed him that he could no longer perform the essential functions of his job. He
indicated that the employing establishment management did not let him work and he was forced
to use his annual and sick leave. Appellant attached a note from his supervisor who informed him
that the District Reasonable Accommodation Committee (DRAC) would not accommodate him
and that he could not work.
By decision dated May 30, 2019, OWCP denied appellant’s claim for compensation for
intermittent dates of disability during the period April 9 through 15, 2016 and April 23 through
May 20, 2016. It found that the medical evidence of record was insufficient to establish disability
from work during the claimed periods.
On April 23, 2020 appellant requested reconsideration.
In a letter dated February 19, 2016, the DRAC noted that it would review appellant’s
request for accommodation on March 3, 2016. In a letter dated March 23, 2016, it indicated that
he was restricted to walking on even sidewalks and paved surfaces. The DRAC advised that the
employing establishment was not required to lower productivity by removing part of appellant’s
route. It further reported that an auxiliary route was not feasible because of issues with processing
and sorting mail correctly. The DRAC noted that a 90-mile search had been conducted to identify
any vacant funded positions, but none were found. It concluded that there were no reasonable
accommodations that could be provided to enable appellant to perform the essential functions of
his job.
On July 17, 2020 the employing establishment controverted appellant’s claim, asserting
that the medical evidence of record did not establish disability from April 9 through May 20, 2016.
By decision dated July 20, 2020, OWCP denied modification of the May 30, 2019 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and, which is necessary because
3

In a July 18, 2016 work excuse note, Dr. Robinson advised that appellant could return to full-duty work without
restrictions.
4

20 C.F.R. § 10.5(x); see A.A., Docket No. 20-1399 (issued March 10, 2021).

3

of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. The change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature of extent of the limited-duty job requirements.7
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.8 Where no such rationale is present,
the medical evidence is of diminished probative value.9
ANALYSIS
The Board finds that this case is not in posture for decision.
The record reflects that on March 23, 2016 the DRAC noted that appellant was restricted
to walking on even sidewalks and paved surfaces. It advised that the employing establishment
was not required to lower productivity by removing part of appellant’s route. The DRAC further
indicated that an auxiliary route was not feasible because of issues with processing and sorting
mail correctly. It noted that a 90-mile search had been conducted to identify any vacant funded
5

Id.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); I.G., Docket
No. 20-0034 (issued April 23, 2021); F.C., Docket No. 18-0334 (issued December 4, 2018).
7

I.G., id.; S.D., Docket No. 19-0955 (issued February 3, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

8

C.M., Docket No. 19-0902 (issued April 16, 2021); K.E., Docket No. 19-1922 (issued July 10, 2020); J.D., Docket
No. 18-0616 (issued January 11, 2019).
9

Id.

4

positions, but none were found. The DRAC concluded that there were no reasonable
accommodations that could be provided to enable appellant to perform the essential functions of
his job as a letter carrier. Following the DRAC’s assessment, the employing establishment neither
confirmed nor denied that work was available for appellant within his restrictions at that time.
The Board finds that the factual evidence of record is insufficient to determine whether
appellant sustained a recurrence of disability due to a withdrawal of his light-duty position.10 The
employing establishment has not provided information regarding whether work was available
within appellant’s work restrictions during the claimed periods of disability. Accordingly, the
evidence of record must be fully developed so that it contains accurate information regarding his
claim in order to determine whether he was disabled from work, during the periods April 9 through
15, 2016 and April 23 through May 20, 2016, because of a change or withdrawal of his limitedduty assignment due to the accepted November 23, 2015 employment injury.11
In a March 9, 2019 development letter, OWCP requested that appellant provide additional
medical information supporting that he was disabled from work for the claimed periods of
disability. The Board notes, however, that the employing establishment was not instructed to
provide information regarding whether limited-duty work was available for him within his
restrictions during the claimed periods of disability.12
Is it well established that proceedings under FECA are not adversarial in nature and, while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13
Accurate information regarding whether a limited-duty assignment was available during
the claimed periods of disability is essential to determine whether appellant sustained a recurrence
of disability.14 This evidence is of the character normally obtained from the employing
establishment and is more readily accessible to OWCP than to him.15 On remand OWCP shall
request that the employing establishment furnish documentation clarifying whether modified-duty
work was available to appellant for the periods April 9 through 15, 2016 and April 23 through
May 20, 2016. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.

10

See I.G., supra note 6; M.W., Docket No. 20-0881 (issued January 13, 2021); L.F., Docket No. 19-0519 (issued
October 24, 2019).
11

See P.H., Docket No. 20-0039 (issued April 23, 2020); D.M., Docket No. 18-0527 (issued July 29, 2019); J.G.,
Docket No. 17-0910 (issued August 28, 2017); M.A., Docket No. 16-1602 (issued May 22, 2017).
12

P.H., id.

13

M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

14

See K.T., Docket No. 17-0009 (issued October 8, 2019); Y.R., Docket No. 10-1589 (issued May 19, 2011).

15

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

5

CONCLUSION
The Board finds that this case is not in posture for decision.16
ORDER
IT IS HEREBY ORDERED THAT the July 20, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 14, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

16

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

6


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

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

Docket No. 17-1053
Issued: November 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 21, 2017 appellant filed a timely appeal from a March 13, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an aggravation of
lower back conditions causally related to factors of his federal employment.
FACTUAL HISTORY
On March 15, 2016 appellant, then a 65-year-old maintenance mechanic, filed a
recurrence of disability claim (Form CA-2a) alleging that prior accepted injuries had caused
disability beginning March 10, 2016. Appellant’s supervisor noted that he was unaware of any
1

5 U.S.C. § 8101 et seq.

new injury, and that appellant had complained of back pain upon arrival to work, and that
appellant had previously taken weekly Family and Medical Leave Act absences for his back
pain. He explained that appellant had a lifting weight limitation and that this injury was a
recurrence of an injury from 2012.2
In a narrative statement, appellant noted a prior claim under OWCP File No. xxxxxx897,
and explained that, on March 10, 2016, he began work with a low level of back pain, which was
not unusual due to injuries he had sustained in 2008 and 2012. He noted that he had a push/pull/
lift weight limitation of 20 pounds. On March 10, 2016 appellant cleared tray line jams, which
he claimed did not exceed his weight limitations the vast majority of the time. He received a call
to clear a bucket jam from a flat sorter where at least a dozen buckets were stuck due to the fact
that they were overloaded and overweight. Appellant noted that this situation occurred because
the mail limitation sensors on the flat sorter were in need of adjustment. He stated that, at the
time, he was not conscious of the fact that, in order to clear the bucket jam, he would exceed his
weight limitation. Appellant claimed that this activity aggravated his prior accepted lower back
injuries to the extent that he was incapacitated from work.
In a statement dated March 15, 2016, a supervisor noted that she felt the claim should be
treated as a recurrence, but asked for guidance as to whether it should be treated as a new claim.
She requested that OWCP further develop the case.
In a medical report dated May 9, 2016, Dr. Joshua B. Reimer, Board-certified in sports
medicine and physical medicine and rehabilitation, reviewed a magnetic resonance imaging
(MRI) scan of appellant’s lumbar spine. He diagnosed lumbar neuritis associated with stenosis
and disc herniation. In an attached work status report, Dr. Reimer recommended work
restrictions of no heavy lifting, carrying, pushing, or pulling over 20 pounds, and stated that
appellant could return to work on May 15, 2016.
In an undated letter, appellant responded to an OWCP development questionnaire related
to recurrence. He stated that the work he performed either caused his back injury or aggravated
his preexisting conditions. Appellant noted that the decision to process his claim as a recurrence
was made by a supervisor. He explained that he did not know why the supervisor connected the
recurrence to his claim in OWCP File No. xxxxxx897 rather than his claim in OWCP File No.
xxxxxx619. Appellant noted that the supervisor had asked for guidance, but did not receive a
reply. He expressed dissatisfaction with how the supervisor had handled his claim.
In a report dated March 23, 2016, Dr. Reimer stated that appellant was injured in a
workplace encounter, when he was pulling on heavy buckets. He performed a physical
examination and reviewed appellant’s x-rays of the lumbar spine. Dr. Reimer noted that the
x-ray demonstrated mild disc dehydration with possibly grade 1 L5-S1 spondylolisthesis and
mild spondylosis. He stated that appellant was 100 percent disabled from his usual occupation.
In a memorandum to the file dated June 14, 2016, OWCP listed appellant’s prior claims.
Under OWCP File No. xxxxxx619, accepted on July 2, 2009, it accepted a sprain of the lumbar
2

Attached to the Form CA-2 was an OWCP memorandum dated June 14, 2016 in which OWCP determined that
appellant’s claim would be treated as a new, occupatial disease claim because new work factors were cited.

2

region and placed appellant on the daily compensation rolls. Under OWCP File No. xxxxxx525,
on February 8, 2010, OWCP accepted an occupational disease claim for thoracic or lumbosacral
neuritis or radiculitis, unspecified, and again placed him on the daily compensation rolls.
On May 11, 2016 appellant accepted an offer of limited duty as a maintenance mechanic
with restrictions of no pushing, pulling, or lifting over 20 pounds; and no excessive bending
over.
By letter dated July 20, 2016, OWCP informed appellant that his claim was being treated
as a claim for occupational disease. It noted that he had not submitted a physician’s opinion as
to the cause of his claimed injury, and asked him to respond to a questionnaire. Appellant was
afforded 30 days to submit the necessary evidence.
In a diagnostic report dated April 15, 2016, Dr. Michael Greene, Board-certified in
diagnostic radiology, examined the results of an MRI scan of appellant’s lumbar spine. He
stated his opinion that the L2-3 level demonstrated posterior central focal herniation with an
annular tear causing impingement upon the anterior thecal sac and bilateral neural foramina, with
displacement of the anterior nerve roots, and canal stenosis; that the L3-4 level demonstrated a
broad-based disc bulge with right paracentral focal herniation causing impingement upon the
anterior thecal sac and bilateral neural foramina, right greater than left, and contact with the
right-sided L4 nerve root; that the L4-5 level demonstrated a broad-based disc bulge causing
impingement upon the anterior thecal sac and bilateral neural foramina; that the L5-S1 level
demonstrated bilateral pars defects with grade 1 spondylolisthesis of L5 on S1, with a
pseudo-disc bulge causing impingement upon the bilateral foramina and contact with the exiting
bilateral L5 spinal nerves; and that appellant had straightening of the normal lumbar lordosis
indicative of muscular spasm..
In a medical report dated August 1, 2016, Dr. Reimer provided results on examination
and diagnosed lumbar neuritis, spondylosis, spinal stenosis, and spondylolisthesis. He related,
“Please note it is my opinion that [appellant’s] workplace event of pushing heavy buckets while
working on March 10, 2016 did aggravate the underlying spinal condition of stenosis and
spondylolisthesis contributing to neurotic symptoms in the lower extremity and a flare in his
overall pain.”
On August 6, 2016 appellant responded to OWCP’s development questionnaire. He
stated that he believed that a repetition of performing the same type of assignment he performed
on March 10, 2016 had caused his claimed injuries. Appellant noted that he first became aware
of his condition in 2008, for which he filed OWCP File No. xxxxxx619, and again in 2012 filed
OWCP File number xxxxxx897.
By decision dated September 12, 2016, OWCP denied appellant’s claim. It found that he
had not submitted a sufficiently rationalized medical opinion establishing that his claimed
conditions were causally related to factors of his federal employment.
On October 7, 2016 appellant requested a review of the written record before an OWCP
hearing representative.

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In a report dated October 5, 2016, Dr. Reimer examined appellant and diagnosed spinal
stenosis and neuritic lower extremity pain, stable. He again related, “As it has been previously
indicated on chart notes, I will iterate that the injury, which took place on March 10, 2016 when
[appellant] was pushing and manipulating heavy buckets, did aggravate his spinal stenosis and
spondylolisthesis contributing to his neuritis symptoms in his lower extremities.”
In a statement dated October 5, 2016, appellant argued that the fact that his employment
caused his diagnosed medical conditions was proven and accepted in his 2008 claim, OWCP File
No. xxxxxx619.
By decision dated March 13, 2017, an OWCP hearing representative affirmed the
September 12, 2016 decision. She found that the alleged employment factors occurred as
alleged, but that appellant had not submitted rationalized medical evidence to establish that the
accepted employment factors caused a low back condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of proof to establish by the weight of reliable, probative, and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that

3

Supra note 1.

4

Gary J. Watling, 52 ECAB 278-79 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Michael E. Smith, 50 ECAB 313, 315 (1999).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

4

the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.10
ANALYSIS
Appellant alleged a recurrence of disability on March 10, 2016 due to clearing a jam on
the sorter machine and lifting heavy buckets. OWCP developed the claim as an occupational
disease claim based on new employment factors.
The Board finds that appellant has failed to submit sufficient medical evidence to
establish that the accepted factors of his federal employment caused or aggravated his lower back
conditions.
In a report dated March 23, 2016, Dr. Reimer stated that appellant was injured in a
workplace encounter, when he was pulling on heavy buckets. He performed a physical
examination and reviewed appellant’s x-rays of the lumbar spine. Dr. Reimer noted that the
x-ray demonstrated mild disc dehydration with possibly grade 1 L5-S1 spondylolisthesis and
mild spondylosis. He stated that appellant was 100 percent disabled from his usual occupation.
In a memorandum to the file dated June 14, 2016, OWCP listed appellant’s prior claims.
Under OWCP File No. xxxxxx619, on July 2, 2009, it had accepted a sprain of the lumbar region
and placed him on the daily rolls. Under OWCP File No. xxxxxx525, on February 8, 2010,
OWCP accepted thoracic or lumbosacral neuritis or radiculitis, unspecified, and placed appellant
on the daily rolls. The Board notes that he has explained that the repetitive performance of the
activities he described as occurring on March 10, 2016 caused or aggravated his low back
conditions.

7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

9

Leslie C. Moore, 52 ECAB 132, 134 (2000).

10

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

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In a medical report dated August 1, 2016, Dr. Reimer examined appellant and diagnosed
lumbar neuritis, spondylosis, spinal stenosis, and spondylolisthesis. He related that appellant’s
pushing heavy buckets while working on March 10, 2016 aggravated the underlying spinal
condition of stenosis and spondylolisthesis contributing to neurotic symptoms in the lower
extremity and a flare in his overall pain.
In a report dated October 5, 2016, Dr. Reimer examined appellant and diagnosed with
spinal stenosis and neuritic lower extremity pain, stable. He noted, “As it has been previously
indicated on chart notes, I will iterate that the injury, which took place on March 10, 2016 when
[appellant] was pushing and manipulating heavy buckets did aggravate his spinal stenosis and
spondylolisthesis contributing to his neuritis symptoms in his lower extremities.”
The Board finds that, while Dr. Reimer noted the diagnoses as aggravation of spinal
stenosis and spondylolisthesis, these were not the accepted conditions in appellant’s prior claims.
Dr. Reimer’s reports are insufficient to establish appellant’s claim because they lack a detailed
biomechanical explanation of how the accepted factors of appellant’s employment caused or
aggravated appellant’s currently diagnosed conditions.11 The Board has found that rationalized
medical opinion evidence must relate specific employment factors identified by the claimant to
the claimant’s condition, with medical rationale explaining how the employment factors
physiologically caused the diagnosed condition.12 The Board has also found that a mere
conclusion without the necessary rationale is insufficient to meet a claimant’s burden of proof.13
Accordingly, Dr. Reimer’s reports are insufficient to meet appellant’s burden of proof.
In support of his claim, appellant also submitted a diagnostic report dated April 15, 2016
from Dr. Greene. Reports of diagnostic tests, are of limited probative value as they fail to
provide an opinion on the causal relationship between his accepted factors of employment and
his diagnosed conditions. For this reason, this evidence is insufficient to meet appellant’s burden
of proof.14
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which provided a rationalized medical opinion causally relating the diagnosed
conditions to the accepted factors of employment. Appellant failed to do so. He has therefore
not met his burden of proof to establish an occupational disease causally related to factors of
employment.
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.
11

See V.G., Docket No. 17-0067 (issued April 5, 2017).

12

See T.C., Docket No. 16-1052 (issued November 8, 2016).

13

See T.M., Docket No. 08-0975 (issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006);
William C. Thomas, 45 ECAB 591 (1994) (a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by medical rationale).
14

A.B., Docket No. 17-0301 (issued May 19, 2017).

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CONCLUSION
The Board finds that appellant has not established an aggravation of his lower back
conditions causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE ARMY, PICATINNY
ARSENAL, Picatinny, NJ, Employer
__________________________________________

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

Docket No. 10-1933
Issued: February 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 20, 2010 appellant timely appealed the March 8, 2010 nonmerit decision of the
Office of Workers’ Compensation Programs which denied reconsideration. Because he filed his
appeal more than 180 days after the most recent merit decision of December 15, 2009, the Board
does not have jurisdiction over the merits of the claim.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the denial of reconsideration.2
ISSUE
The issue is whether the Office properly denied appellant’s February 24, 2010 request for
reconsideration under 5 U.S.C. § 8128(a).

1

20 C.F.R. § 501.3(e) (2010). The Office denied the claim based on a finding that appellant was not in the
performance of duty at the time of injury.
2

The current record includes evidence received after the Office issued its March 8, 2010 decision. The Board’s
review of a case is limited to the evidence in the case record that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 4, 2009 appellant, a 61-year-old mechanical engineer, filed a traumatic injury
claim (Form CA-1) for pain in his hands, elbows and right ankle which arose on May 20, 2008.
He attributed his injury to excessive force by an employing establishment security guard.
Appellant was taken into custody at work on May 20, 2008 pursuant to a March 28, 2008 arrest
warrant for nonpayment of child support. The employing establishment police department later
relinquished custody to the Morris County, NJ Sheriff’s Department. At a court appearance later
that day, it was determined that appellant had already paid his court-ordered child support. He
had been incarcerated approximately one week earlier and was released when he paid $250.00.
During a court appearance on May 12, 2008, appellant was ordered to commence payment of at
least $75.00 a week, which he did on May 19, 2008. He was arrested on May 20, 2008 based on
a prior bench warrant. Because appellant had already complied with the court’s May 12, 2008
order, the judge vacated the arrest warrant and released him from custody.
Appellant alleged that an employing establishment security guard came into the building
and forced him outside by grabbing his hand. Once outside, the security guard reportedly pushed
him against a car, slamming his elbow on the vehicle. He also allegedly hit appellant’s ankles
with his feet and tightly handcuffed appellant.
The employing establishment acknowledged that appellant was arrested May 20, 2008,
but denied that any force was used by either its patrolman or a criminal investigator who
executed the arrest warrant at the request of the Morris County Sheriff’s Department. According
to police procedures, appellant was handcuffed and searched as a safety precaution. The officers
involved reported that appellant was cooperative at the time of his arrest.
Appellant submitted an October 8, 2008 referral for physical therapy and various receipts
for medical treatment. He also submitted a March 13, 2009 report from Dr. Abraham H.
Rosenzweig, a Board-certified orthopedic surgeon, who diagnosed status post contusion, left
wrist and right ankle. Appellant was reportedly injured on “May 2, 2008” when he was arrested
while at work. He complained of pain in his right ankle from a kick and left wrist pain from
being handcuffed. According to Dr. Rosenzweig, appellant did not require further treatment.
In an April 10, 2009 decision, the Office denied appellant’s claim because he was not in
the performance of duty at the time of the alleged May 20, 2008 injury. It found that there was
no evidence to establish that his arrest by the employer’s security guards arose out of and in the
course of his employment as a mechanical engineer.
Appellant requested an oral hearing, which was held on October 14, 2009. He submitted
transcripts from his May 12 and 20, 2008 court appearances and a copy of the March 28, 2008
arrest warrant. Appellant also submitted a copy of the May 20, 2008 military police report filed
by the patrolman who arrested him. The Office received an October 8, 2009 report from
appellant’s podiatrist, Dr. Paul J. Lafergola, who diagnosed right foot sinus tarsi syndrome.
Appellant was reportedly kicked in the right ankle in May 2008.
By decision dated November 24, 2009, the Office hearing representative reversed the
April 10, 2009 decision and accepted appellant’s claim for left wrist contusion, right ankle

2

contusion and right foot sinus tarsi syndrome. As to whether appellant was in the performance
of duty when injured, the hearing representative found that, while the reason for his arrest was
not directly related to a work duty or assignment, the arrest was carried out by employing
establishment personnel and in the course of the arrest he sustained injuries from being handled
by the patrolman, including the use of handcuffs. The Office hearing representative found that
appellant was required by his employment to comply with lawful instructions from base security
personnel, which he did on May 20, 2008. The hearing representative concluded that, while the
arrest warrant itself was not an employment factor, appellant’s injury occurred because of
employing establishment personnel while on the employer’s premises and in connection with a
“general employment requirement.”
Subsequently the Chief of the Branch of Hearings & Review reopened appellant’s claim
pursuant to 5 U.S.C. § 8128(a) and determined that the November 24, 2009 decision was
incorrect and was vacated. In a decision issued December 15, 2009, the chief hearing
representative affirmed the Office’s April 10, 2009 decision. He found that appellant had been
restrained and handcuffed due to matters unrelated to his employment duties, namely a State
arrest warrant concerning arrears in child support and alimony. The chief hearing representative
found this had no relation to the fulfillment of appellant’s employment duties and that his
claimed injuries did not occur in the performance of duty.
On February 24, 2010 appellant requested reconsideration. He argued that the
December 15, 2009 decision was against the medical evidence. Appellant contended that he
experienced constant pain and was being treated by a foot specialist. He also chronicled various
medical appointments and the days he missed work during January and February 2010.
In a February 16, 2010 report, Dr. Lafergola explained that he had treated appellant since
April 16, 2009 for complaints of bilateral ankle pain. Appellant claimed he had been kicked in
the ankles in May 2008. Dr. Lafergola noted that in April 2009, appellant’s pain was consistent
with bursitis of the right ankle. When appellant returned in October 2009, he diagnosed right
foot sinus tarsi syndrome. Dr. Lafergola indicated that appellant was still under his care for this
condition. He expected appellant to fully recover.
Appellant’s request for reconsideration was also accompanied by an article on tarsal
tunnel syndrome, various prescriptions and payment receipts and a map outlining the route he
reportedly traveled to attend a February 2, 2010 physician’s appointment.
In a March 8, 2010 decision, the Office denied appellant’s February 24, 2010 request for
reconsideration. It noted that the claim had been denied on the basis that his injury did not occur
in the performance of his duties as a federal employee. The Office did not dispute that the
incident occurred; but it was not a result of appellant’s federal employment and did not occur in
the performance of duty. It noted that he did not submit any evidence to support that the injury
arose out of his employment nor did he raise any substantive legal questions. Consequently, the
Office found that appellant’s request for reconsideration was insufficient to warrant further
review of the prior decision.

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LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.3 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.4
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
Appellant’s February 24, 2010 request for reconsideration did not allege or demonstrate
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office.
The Board notes that the underlying issue in this case was whether the injuries sustained
on May 20, 2008 arose in the performance of duty. The claim was not denied based on the
adequacy of medical evidence. In the February 24, 2010 request for reconsideration, appellant
did not specifically argue that the performance of duty issue was incorrectly decided. He
claimed that the December 15, 2009 decision was against the medical evidence and identified
various dates when he sought medical treatment and/or missed work due to his claimed
condition. Appellant also submitted a report from his podiatrist. Because the issue on
reconsideration was not of a medical nature, his February 24, 2010 arguments did not support
further merit review. They were not relevant to the question of whether appellant was in the
performance of duty at the time of his May 20, 2008 injury. Therefore, appellant is not entitled
to a review of the merits of his claim based on the first and second above-noted requirements
under section 10.606(b)(2).6
The evidence that accompanied appellant’s February 24, 2010 request for reconsideration
is similarly irrelevant to the issue on reconsideration. Consequently, he also failed to satisfy the
third requirement under section 10.606(b)(2). Dr. Lafergola’s February 16, 2010 report, the
tarsal tunnel article, the map and various prescriptions and payment receipts do not concern the
relevant issue of performance of duty. As such, appellant did not submit any relevant and
pertinent new evidence with his February 24, 2010 request for reconsideration. Accordingly, he

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

Id. at § 10.606(b)(2)(1) and (2).

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is not entitled to a review of the merits of his claim based on the third requirement under section
10.606(b)(2).7
CONCLUSION
The Office properly denied appellant’s February 24, 2010 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Id. at § 10.606(b)(2)(3).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
DEPARTMENT OF STATE, FOREIGN
SERVICE INSTITUTE, Washington, DC,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1367
Issued: October 27, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 13, 2021 appellant filed an appeal from a February 14, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 21-1367.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180 th day following the February 14, 2018 decision was August 13, 2018. As
appellant did not file an appeal with the Board until September 13, 2021, more than 180 days after
1

Appellant indicated that he was appealing from a December 31, 2018 OWCP decision. The Board notes that there
is no OWCP decision dated December 31, 2018 found in the case record.
2

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3

Id. at § 501.3(e).

the February 14, 2018 OWCP decision, the Board finds that the appeal docketed as No. 21-1367
is untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1367 is dismissed.
Issued: October 27, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4

Id. at § 501.6(d).

2