United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 08-964
Issued: September 15, 2009

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 14, 2008 appellant, filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated July 10, 2007 and a nonmerit decision dated
February 4, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has more than 12 percent impairment of each of her
upper extremities for which she has received schedule awards; and (2) whether the Office
properly refused to reopen her case for further consideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on appeal on three occasions. On
October 28, 1992 appellant, then a 34-year-old mail processor, filed an occupational disease
claim alleging that she developed right carpal tunnel syndrome due to factors of her federal

employment. Her occupational disease claim was expanded to include bilateral carpal tunnel
syndrome and she underwent a right carpal tunnel release on April 13, 1993 and left carpal
tunnel release on January 31, 1995.
On October 21, 1997 the Office granted appellant a schedule award for 10 percent
impairment each of her upper extremities due to this condition. The Branch of Hearings and
Review affirmed this decision on July 27, 1998 and by decision dated November 21, 2001,1 the
Board found that appellant had established no more than 10 percent impairment of her upper
extremities due to her accepted conditions.
On February 13, 2002 appellant filed an occupational disease claim alleging that she had
developed bilateral brachial plexopathy, bilateral radial neuropathy and bilateral ulnar nerve
neuropathy due to her employment duties. The Office denied this claim by decision dated
May 2, 2002 finding that it was not timely filed. Appellant requested an oral hearing and by
decision dated March 11, 2003, the hearing representative affirmed the Office’s May 2, 2002
decision. She appealed this decision to the Board and by decision dated March 15, 2004;2 the
Board found that her claim was not timely filed.
On January 11, 2002 and November 26, 2003 appellant requested reconsideration of the
Board’s November 21, 2001 decision. By decision dated February 24, 2004, the Office declined
to reopen her claim for consideration of the merits on the grounds that her request for
reconsideration was not timely filed and did not establish clear evidence of error on the part of
the Office. By decision dated May 9, 2005,3 the Board found that appellant’s January 11, 2002
request for reconsideration was timely filed and remanded the claim for additional development.
The facts and the circumstances of the case as set out in the Board’s prior decisions are adopted
herein by reference.
In a report dated June 26, 2003, Dr. Richard J. Mandel, a Board-certified orthopedic
surgeon, provided his findings and opined that appellant had 10 percent impairment of the upper
extremities due to bilateral carpal tunnel syndrome. He also found that appellant had two percent
impairment bilaterally due to ulnar neuropathy and an additional one percent impairment due to
loss of motion in the shoulder. Dr. Mandel also found that appellant had loss of motion of the
cervical spine. He concluded that appellant had reached maximum medical improvement.
Dr. David Weiss, an osteopath and a Board-certified orthopedic surgeon, provided an
additional report on July 21, 2003 diagnosing bilateral brachial plexopathy based on repeat
electromyogram (EMG) scan and nerve conduction velocity (NCV) testing, bilateral ulnar nerve
neuropathy and bilateral radial neuropathy. He noted appellant’s range of motion as left
shoulder forward elevation of 160 degrees, abduction of 140 degrees, adduction of 65 degrees,
external rotation of 80 degrees. Dr. Weiss found that appellant had a positive Tinel’s sign over
the cubital and radial tunnels. In regard to appellant’s right upper extremity, he found 160
1

Docket No. 99-1462 (issued November 21, 2001).

2

Docket No. 04-210 (issued March 15, 2004).

3

Docket No. 04-990 (issued May 9, 2005).

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degrees of shoulder forward elevation, abduction of 160 degrees and adduction of 45 degrees and
external rotation of 80 degrees. Dr. Weiss found thenar atrophy and flattening in the left hand
and bilaterally positive Tinel’s and Phalen’s signs at the wrists. He reported sensory deficit over
T2-1 and C5 dermatomes on the right and C5-6 sensory deficits on the left. Dr. Weiss concluded
that appellant had 53 percent impairment on the left and 37 percent impairment on the right.
By decision dated February 3, 2006, the Office accepted appellant’s claim for the
additional conditions of bilateral brachial plexus lesions, lesion of the ulnar nerve on the left and
lesion of the radial nerve on the right and left. It referred appellant’s claim to the Office medical
adviser for calculation of a schedule award based on the accepted conditions. In a report dated
February 13, 2006, Dr. Morley Slutsky, the Office medical adviser, stated that appellant’s final
right upper extremity impairment was 12 percent and her final left upper extremity impairment
was 12 percent. He stated that his conclusions were based on three percent impairment rating
examinations on December 30, 1996, June 26 and July 21, 2003 from Drs. Weiss and Mandel.
Dr. Slutsky relied on Dr. Mandel’s report for the impairment of the upper extremity due to
sensory and motor deficits of the median nerve caused by carpal tunnel syndrome to reach 10
percent impairment. He also agreed with Dr. Mandel that appellant had two percent impairment
of the upper extremities due to ulnar neuropathy. Dr. Slutsky combined the impairment ratings
for the ulnar neuropathy and carpal tunnel syndrome to reach 12 percent impairment of each
upper extremity. He noted that Dr. Mandel found mildly reduced flexion and abduction of the
shoulder but concluded that this was not part of the accepted conditions.
The Office granted appellant a schedule award for an additional two percent impairment
of each of her upper extremities on July 19, 2006. Appellant requested an oral hearing on
July 21, 2006. She testified at the oral hearing on December 12, 2006 and requested that her
schedule award be evaluated under the fourth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Appellant also alleged
that she had preexisting cervical condition which should be considered in the schedule award
evaluation of her upper extremities. By decision dated March 1, 2007, the hearing representative
set aside the Office’s July 19, 2006 decision noting that appellant’s preexisting congenital spinal
conditions should not be considered, but Dr. Slutsky failed to consider the brachial plexopathy
condition and any resulting impairment.
In a report dated March 15, 2007, Dr. Slutsky opined that appellant had no additional
permanent impairment due to her brachial plexopathy. He found that the record did not contain
consistent physical evidence of clinically significant brachial plexopathy and that appellant was
not entitled to an impairment rating for this condition. Dr. Slutsky stated that there would have
to be consistent physical evidence of deficits to multiple cervical nerve roots as this would reflect
clinical support of the presence of significant brachial plexopathy.
By decision dated March 22, 2007, the Office denied appellant’s claim for an additional
schedule award. Appellant requested reconsideration on March 26, 2007 and argued that all
conditions affecting her arms should have been considered in calculating her increased schedule
awards. She submitted a report dated April 25, 2007 from Dr. Mandel noting her accepted
condition as thoracic outlet syndrome, bilateral radial and left ulnar neuropathy and brachial
plexopathy. Dr. Mandel diagnosed bilateral carpal tunnel syndrome, bilateral ulnar and radial
neuropathies as well as bilateral brachial plexopathy and cervical disease. He stated that

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appellant had 35 percent impairment of the left upper extremity and 35 percent impairment of the
right upper extremity “based on a shoulder impairment of 3 percent (Fig[ure] 16-40, p.476), loss
of grip impairment of 20 percent (Table 16-32 and 16-34, p.509), brachial plexus impairment of
5 percent (Table16-10, p.482 and 16-14, p.490), a median nerve impairment of 5 percent and a
radial nerve impairment of 2 percent (Table 16-15, p.492 and 16-10, p.482).”
The Office referred Dr. Mandel’s report to the Office medical adviser. Dr. Slutsky
reviewed the evidence on July 7, 2007 and found that based on Dr. Mandel’s report appellant had
no clinical evidence of carpal tunnel syndrome. He disagreed with Dr. Mandel’s grip strength
assessments as he did not identify the pathologic basis for appellant’s strength loss, did not
discuss how he performed the grip strength testing and did not show his calculations which led to
the 20 percent impairment rating. Dr. Slutsky also found that he could not confirm Dr. Mandel’s
impairment for brachial plexopathy as he did not document testing for light touch, two point
discrimination and protective sensibility. He disagreed with Dr. Mandel’s rating for radial nerve
deficits as he failed to document physical examination testing for radial nerve dysfunction.
Dr. Slutsky found that appellant had two percent impairment bilaterally due to ulnar nerve
impairment and one percent due to loss of shoulder abduction for a total impairment rating of
three percent bilaterally. By decision dated July 10, 2007, the Office denied modification of its
prior decision.
Appellant requested reconsideration on July 24, 2007. She submitted a report dated
August 13, 2007 from her attending physician Dr. Scott Fried, an osteopath, reporting his
findings on examination including positive Phalen’s testing from dysesthesias in the median
nerve distribution bilaterally, positive Tinel’s signs in the medial, ulnar and radial nerves as well
as sympathetic reactivity with color changes in the hands and vascular instability.
Dr. Fried also reported positive Roos and Hunter testing indicating inflammation and scarring
about the nerves of the brachial plexus at the thoracic outlet level. He diagnosed radial
neuropathy on the right, medial neuropathy bilaterally, ulnar neuropathy left and radial
neuropathy on the left as well as brachial plexopathy/cervical radiculopathy, Budd Chiari
malformation of the cervical spine, sympathetically mediated pain syndrome and capsulitis of the
left shoulder. By decision dated February 4, 2008, the Office denied appellant’s request for
reconsideration on the grounds that she failed to submit relevant new evidence addressing her
permanent impairment for schedule award purposes.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

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implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
claimant is entitled to such an award.8 However, as the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine.9
ANALYSIS -- ISSUE 1
The Office has accepted appellant’s claim for bilateral carpal tunnel syndrome and
bilateral carpal tunnel releases, bilateral brachial plexus lesions, lesion of the ulnar nerve on the
left and lesion of the radial nerve on the right and left. The record also establishes that appellant
has a preexisting congenital cervical condition of Budd Chiari malformation of the cervical
spine. Appellant has received schedule awards totaling 24 percent impairment of the upper
extremities due to these conditions.
On June 26, 2003 Dr. Mandel, a Board-certified orthopedic surgeon, found that appellant
had 10 percent impairment due to carpal tunnel syndrome, 2 percent due to ulnar neuropathy and
1 percent impairment of each upper extremity due to loss of range of motion. Dr. Slutsky found
that appellant had 12 percent impairment of each upper extremity due to bilateral carpal tunnel
syndrome and ulnar neuropathy. He concluded that appellant’s loss of range of motion of the
shoulders was not related to an accepted condition.
In a report dated March 15, 2007, Dr. Slutsky opined that appellant had no additional
permanent impairment due to her brachial plexopathy. He found that the record did not contain
consistent physical evidence of clinically significant brachial plexopathy and that appellant was
not entitled to an impairment rating for this condition. Dr. Slutsky explained that there would
have to be consistent physical evidence of deficits to multiple cervical nerve roots as this would
reflect clinical support of the presence of significant brachial plexopathy.
Dr. Mandel completed a report on April 25, 2007 finding that appellant had 35 percent
impairment of the left upper extremity and 35 percent impairment of the right upper extremity
based on a shoulder impairment of 3 percent, loss of grip impairment of 20 percent, brachial
plexus impairment of 5 percent, a median nerve impairment of 5 percent and a radial nerve
impairment of 2 percent.
6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
8

George E. Williams, 44 ECAB 530, 533 (1993).

9

Id.

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Dr. Slutsky reviewed this report and found no clinical evidence of carpal tunnel
syndrome. He found that Dr. Mandel did not identify the pathologic basis for appellant’s
strength loss, did not discuss how he performed the grip strength testing and did not show his
calculations which led to the 20 percent impairment rating. Dr. Slutsky also found that he could
not confirm Dr. Mandel’s impairment for brachial plexopathy as he did not document testing for
light touch, two point discrimination and protective sensibility. He disagreed with Dr. Mandel’s
rating for radial nerve deficits as he failed to document physical examination testing for radial
nerve dysfunction. Dr. Slutsky found that appellant had two percent impairment bilaterally due
to ulnar nerve impairment and one percent due to loss of shoulder abduction for a total
impairment rating of three percent bilaterally.
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and the Office may rely on the opinion
of its medical adviser to apply the A.M.A., Guides to the findings reported by the attending
physician.10 In this case, Dr. Mandel did not properly correlate his findings with the A.M.A.,
Guides. The Office, therefore, properly relied on the impairment rating of Dr. Slutsky, who
explained the deficits in Dr. Mandel’s report and offered his reasons for reaching an alternative
impairment rating. Therefore, appellant has not met her burden of proof in establishing more
than 24 percent impairment of her upper extremities.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,11 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.12 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.13
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim for an additional schedule award finding that the
weight of the medical opinion evidence rested with the detailed and well-reasoned report of
Dr. Slutsky. Appellant disagreed with this decision and submitted a report dated August 13,
2007 from her attending physician Dr. Fried, an osteopath, who reported positive Phalen’s
testing from dysesthesias in the median nerve distribution bilaterally, positive Tinel’s signs in the
medial, ulnar and radial nerves as well as sympathetic reactivity with color changes in the hands
and vascular instability. Dr. Fried also reported positive Roos and Hunter testing indicating
10

Linda Beale, 57 ECAB 429, 434 (2006).

11

5 U.S.C. §§ 8101-8193, § 8128(a).

12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.608(b).

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inflammation and scarring about the nerves of the brachial plexus at the thoracic outlet level. He
diagnosed radial neuropathy on the right, medial neuropathy bilaterally, ulnar neuropathy left
and radial neuropathy on the left as well as brachial plexopathy/cervical radiculopathy, Budd
Chiari malformation of the cervical spine, sympathetically mediated pain syndrome and
capsulitis of the left shoulder.
The Board finds, however, that this report is not relevant to the issue before the Office
whether appellant has more than 12 percent impairment of each of her upper extremities.
Dr. Fried did not provide an impairment rating and did not correlate his findings with the
A.M.A., Guides. As this report does not address the central issue in the claim, the Office
properly declined to reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that appellant has no more than 12 percent impairment of each of her
upper extremities for which she has received a schedule award. The Board further finds that the
Office properly declined to reopen appellant’s claim for consideration of the merits on the
grounds that she failed to submit, relevant and pertinent new evidence in support of her request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2008 and July 10, 2007 decision of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 15, 2009
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
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Edmonton, Alberta, Canada, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1458
Issued: December 19, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By letter received on June 4, 2011, appellant filed an application for review of the Office
of Workers’ Compensation Programs’ (OWCP) May 23, 2011 merit decision denying his
occupational disease claim. The appeal was docketed as No. 12-1458. After considering the
evidence of record, the Board finds this case is not in posture for a decision.
The present appeal involves appellant’s April 16, 2011 occupational disease claim (No.
xxxxxx549), in which he alleged that he developed migraine headaches, sinus pain, dizziness and
nausea due to employment-related exposure to toxic fumes in the workplace. Appellant also
alleged that he sustained a shoulder injury as a result of repetitive fingerprinting activities. In a
decision dated May 23, 2011, OWCP denied his claim on the grounds that he had not established
that he had experienced the employment-related events as alleged.
The record indicates that appellant has filed similar occupational disease claims based on
employment-related exposure to toxic fumes, including: a December 21, 2008 claim (No.
xxxxxx995), which was accepted for acute episodic allergic bilateral conjunctivitis/rhinitis; a
November 27, 2007 claim (No. xxxxxx846), which he states was accepted by OWCP; a pending
May 18, 2011 occupational disease claim (No. xxxxxx270), in which he alleged that he
developed occupational asthma and allergic rhinitis due to employment-related exposure to jet
and diesel fumes, dust and toxins; and a November 18, 2010 occupational disease claim (No.

xxxxxx576), in which he alleged that he developed severe sinus headaches, breathing difficulties
and nausea due to employment-related exposure to jet and diesel fumes, dust and toxins. In an
April 1, 2011 occupational disease claim (No. xxxxxx385), appellant alleged that he sustained a
shoulder injury as a result of repetitive fingerprinting activities. The record in the instant case,
however, does not contain any evidence relating to the development of these prior claims.
In its May 23, 2011 decision, OWCP denied appellant’s claim in the instant case, without
addressing factual and medical evidence submitted in conjunction with appellant’s prior claims.
As the allegations contained in File Nos. xxxxxx995, xxxxxx846, xxxxxxx576 and xxxxxx270
relating to his exposure to toxic fumes are substantially the same as those contained in the instant
case (File No. xxxxxx549), the medical evidence contained in those files will necessarily bear
directly on his claim for compensation in File No. xxxxxx549. Additionally, as the allegations
contained in File No. xxxxxx385 relating to appellant’s claimed shoulder injury are substantially
the same as those contained in the instant case (File No. xxxxxx549), the factual and medical
evidence contained in File No. xxxxxx385 will necessarily bear directly on his claim for
compensation in File No. xxxxxx549. Because it is essential for the Board to review the medical
evidence contained in File Nos. xxxxxx995, xxxxxx846, xxxxxx576, xxxxxx385 and xxxxxx270
in order to render a full and fair adjudication of the present appeal, this case will be remanded for
OWCP to consolidate case file numbers xxxxxxx995, xxxxxx846, xxxxxxx576, xxxxxx385,
xxxxxx270 and xxxxxx549. Reconstruction of the record will be followed by a de novo decision
on the merits of the claim, in order to protect appellant’s appeal rights.1

1

In File No. xxxxxx270, appellant appealed a July 29, 2011 merit decision denying his occupational disease
claim. In File No. xxxxxxx576, appellant appealed nonmerit decisions dated May 19 and September 29, 2011
denying his request for an oral hearing and his request for reconsideration.

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IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 23, 2011 decision be set aside and the case remanded for further development consistent
with this order.2
Issued: December 19, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

The Board notes that appellant requested oral argument before the Board. Pursuant to 20 C.F.R. § 501.5(a), oral
argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light of the Board’s ruling, oral
argument is not appropriate in this case. Therefore, appellant’s request for oral argument is denied.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, GREATER NEWARK
PROCESSING & DISTRIBUTION CENTER,
Kearny, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1322
Issued: October 11, 2017

Case Submitted on the Record

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

JURISDICTION
On May 31, 2017 appellant, through counsel, filed a timely appeal from a March 15,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision on the underlying issue, dated July 27, 2016,
to the filing of this appeal, 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.

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 OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel contends that the medical reports of Dr. Richard A. Boiardo, an
attending Board-certified orthopedic surgeon, are sufficient to establish that appellant’s knee
condition was aggravated by her falls at work and her employment duties.
FACTUAL HISTORY
On June 24, 2015 appellant, then a 49-year-old flat sorter clerk, filed an occupational
disease claim (Form CA-2) alleging an injury caused or aggravated by her federal employment.
She became aware of her condition on March 14, 2014 and realized its relationship to her
employment on September 21, 2014. Appellant stopped work on September 20, 2014. In an
accompanying narrative statement, she provided a detailed description of her flat sorter clerk
work duties, the development of her claimed injury, and her medical treatment which included
right knee surgery on October 2, 2014 and left knee surgery on January 21, 2015. Appellant
noted that Dr. Boiardo diagnosed severe knee osteoarthritis. She stopped work on September 26,
2014 because she could no longer bear the pain. Appellant claimed that stress on her knees was
aggravating her condition.
In support of her claim, appellant submitted medical reports from Dr. Boiardo. In
disability certificates dated September 21, 2014 to August 19, 2015, Dr. Boiardo placed
appellant off work on intermittent dates from September 29, 2014 to December 28, 2015 and set
forth her physical restrictions. In a July 30, 2015 letter, he indicated that he had initially
evaluated appellant on August 22, 2014. Appellant presented with pain in both knees and most
especially in the right knee. Dr. Boiardo noted that appellant’s past medical and surgical history
was noncontributory. He further noted that she worked at the employing establishment and she
had previous falls at work over the past four years that caused her to develop increased knee pain
and to barely ambulate comfortably over the past four to five years. Dr. Boiardo discussed
findings on physical and x-ray examination and reviewed prior x-ray test results. He diagnosed
bilateral osteoarthritis of the knees. Dr. Boiardo summarized that appellant’s falls at work
certainly did not cause the diagnosed condition, but that a series of falls and injuries over the past
four to five years certainly caused decompensation of the previously well-compensated arthritic
changes in both knees. He opined that her three replacement arthroplasty operations, one on the
right, one on the left, and a revision total left knee replacement arthroplasty were a direct cause
and result of this decompensation. Dr. Boiardo advised that appellant was totally disabled as a
direct cause and result of these injuries and the constellation of surgeries. He concluded that she
was also permanently disabled as a direct cause and result of her falls at work and subsequent
surgeries.
In an October 5, 2015 narrative statement, the employing establishment noted that
appellant had been out of work since September 19, 2014. It asserted that it had not received a
claim or any reports of an on-the-job injury or fall before her last day at work. The employing
establishment noted physicians’ notes which had placed appellant off work from June 19 through
September 7, 2015 and again from August 14 through December 28, 2015 with restrictions.

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By letter dated December 4, 2015, OWCP advised appellant of the deficiencies of her
claim and requested that she submit additional medical evidence and respond to its questionnaire.
Appellant was afforded 30 days to submit this requested evidence.
Appellant submitted a December 23, 2015 narrative statement that essentially reiterated
the history of injury and medical treatment she presented in her undated narrative statement. She
resubmitted Dr. Boiardo’s July 30, 2015 letter.
In a February 3, 2016 decision, OWCP denied appellant’s occupational disease claim. It
found that the evidence of record was insufficient to establish that the claimed events occurred as
alleged and that the record did not contain any medical evidence that provided a medical
diagnosis causally related to the claimed work injury or factors.
By letter dated February 19, 2016, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative. At the hearing held on May 17, 2016, appellant
testified regarding the work duties she performed as a letter carrier for two years when she first
started working at the employing establishment as well as the falls she had while performing
these duties. She also testified regarding the work duties she performed as a mail processing
clerk.
Following the hearing, appellant submitted Dr. Boiardo’s undated addendum to his
previously submitted July 30, 2016 report. Dr. Boiardo indicated a date of injury as
March 14, 2014. He noted appellant’s complaint of increasing pain in both knees, especially in
the right knee. Dr. Boiardo also noted a history of her medical treatment, including his own
treatment of her. He reiterated his diagnosis of severe bilateral knee arthritis. Dr. Boiardo
indicated that appellant’s condition had been conservatively treated over the years, however, her
condition had certainly been exacerbated during her career as a mail carrier secondary to acute
frequent falls. He determined that appellant’s job did not obviously cause her bilateral knee
arthritis, but it did directly cause, in all medical probability, decompensation of the previously
noted arthritic changes in both knees with standing and falls during that time period. Dr. Boiardo
found that her mail sorter clerk job duties and falls resulted in her three knee surgeries. He
reiterated his prior opinion that appellant’s current permanent disability was causally related to
her work duties and knee surgeries.
Appellant also submitted a January 20, 1996 report which contained an illegible signature
and provided a history of injury that, on that day, she hit her right knee while walking up steps at
work. The report also provided examination findings and a diagnosis of right knee contusion.
In a July 27, 2016 decision, an OWCP hearing representative affirmed the February 3,
2016 decision. He found that appellant had provided a description of her duties that was not
refuted by the employing establishment, but that the time and place of unreported falls in 1996
and 1997 could not be established. The hearing representative found that Dr. Boiardo’s
addendum report was not sufficiently rationalized to establish that appellant sustained an injury
causally related to factors of her employment.
On November 11, 2016 appellant, through counsel, filed an appeal before the Board from
the July 27, 2016 decision. By letter dated December 20, 2016, counsel requested that the appeal

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before the Board be dismissed in order to pursue a request for reconsideration before OWCP. By
order dated January 12, 2017, the Board granted appellant’s request for dismissal of her appeal.3
On December 21, 2016 appellant requested reconsideration with OWCP of the July 27,
2016 decision. In support of this request she submitted a December 12, 2016 report in which
Dr. Boiardo related appellant’s history of injury and medical treatment, diagnosed severe
bilateral knee arthritis, and found that this condition was aggravated by appellant’s falls at work
and her work duties, and that her permanent disability from work was caused by her work duties
and resultant knee surgeries.
Appellant also submitted a September 30, 2014 Family and Medical Leave Act (FMLA)
designation notice which indicated approval of her request for leave from September 29, 2014 to
January 9, 2015.
In a March 15, 2017 decision, OWCP denied reconsideration of the merits of appellant’s
claim. It found that the evidence submitted was repetitious.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.4 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).5 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.6 Section 10.608(b) provides that when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.7
ANALYSIS
OWCP issued a February 3, 2016 merit decision denying appellant’s bilateral knee
occupational disease claim, finding that the evidence of record was insufficient to establish that
the claimed events occurred as alleged and that the record did not contain any medical evidence
providing a medical diagnosis causally related to the claimed work injury or factors. In a
3

Order Dismissing Appeal, Docket No. 17-0238 (issued January 12, 2017).

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).

4

July 27, 2016 merit decision, an OWCP hearing representative affirmed the February 3, 2016
decision, indicating that the factual elements of the claim were not disputed except for the time
and place of appellant’s unreported falls. On December 21, 2016 counsel requested
reconsideration. OWCP declined appellant’s request for reconsideration in a March 15, 2017
nonmerit decision.
The Board does not have jurisdiction over the July 27, 2016 merit decision and can
consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which
would prompt OWCP to reopen the case for merit review. The underlying issue on
reconsideration is medical in nature, whether appellant met her burden of proof to establish that
the claimed injury occurred as alleged.
The Board finds that in her December 21, 2016 request for reconsideration, appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, or advance a new
and relevant legal argument not previously considered. Thus, appellant is not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(3).
The Board further finds that appellant’s evidence did not constitute relevant or pertinent
new evidence not previously considered. Appellant submitted a new report dated December 12,
2016 from Dr. Boiardo in which he related appellant’s history of injury and medical treatment,
diagnosed severe bilateral knee arthritis, and found that this condition was aggravated by
appellant’s falls at work and her work duties and that her permanent disability from work was
caused by her work duties and resultant knee surgeries. This evidence, however, essentially
reiterated Dr. Boiardo’s diagnoses and opinions set forth in his prior undated addendum report of
record. Evidence or argument that repeats or duplicates evidence previously of record has no
evidentiary value and does not constitute a basis for reopening a case.8
The September 30, 2014 FMLA designation notice noted approval of appellant’s request
for leave from September 29, 2014 to January 9, 2015. This evidence, however, is irrelevant to
the underlying medical issue regarding the cause of her bilateral knee condition. The submission
of evidence which does not address the particular issue involved in the case does not constitute a
basis for reopening the claim.9 As such, this document does not constitute a basis for reopening
appellant’s claim.
The Board accordingly finds that, as appellant did not meet any of the criteria required in
20 C.F.R. § 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal counsel argues the merits of appellant’s claim and alleges that the medical
reports of Dr. Boiardo are sufficient to establish that her knee condition was aggravated by her
falls at work and her job duties. As previously noted, the Board lacks jurisdiction over the merits
of the claim.

8

D.K., 59 ECAB 141 (2007).

9

See S.D., Docket No. 17-0469 (issued June 16, 2017); Daniel Deparini, 44 ECAB 657, 659 (1993).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-2190
Issued: July 12, 2011

Case Submitted on the Record

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

JURISDICTION
On August 16, 2010 appellant filed a timely appeal of the July 22, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this nonmerit decision. Because more than one year has
elapsed between the most recent merit decision dated June 19, 2009 and the filing of this appeal,
the Board lacks jurisdiction to review the merits of this claim.
ISSUE
The issue is whether the Office properly denied appellant’s July 15, 2010 request for
reconsideration as untimely filed and lacking clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 12, 2009 appellant, then a 59-year-old letter carrier, filed a traumatic injury
claim alleging that on January 7, 2009 she was climbing the stairs at work when her knee
snapped and she felt a sharp pain. She stopped work on January 13, 2009. The employing
establishment controverted appellant’s claim alleging that her knee pain was a result of
degenerative arthritis, not a specific incident.
In a supplemental statement dated February 2, 2009, appellant explained that on
January 7, 2009 at approximately 1:30 p.m. she was walking up stairs to deliver mail when she
heard a snap and felt a sharp pain in her left knee. Her knee buckled, but she maintained her
balance. Although appellant was able to finish her route and go to work on January 8 and 12,
2009 her knee was swollen. When the pain and swelling continued while climbing stairs, she
decided to see a doctor.
In a January 14, 2009 radiology report, Dr. Louis Napoli, a Board-certified radiologist,
stated that appellant contracted an overall degenerative disease in her left knee that was mild but
somewhat more prominent in her medial compartment. He also noted spurring from the patella,
but did not find any evidence of fracture or dislocation.
In a January 23, 2009 medical report, Dr. Philip B. Bovell, an orthopedic surgeon, stated
that on January 9, 2009 appellant was seen in his office for complaints of left knee pain and
recalled that she slipped on steps at work a few days ago. Appellant explained that she felt a
clicking sensation and a mass subsequently developed over the back of her knee. Upon
examination, Dr. Bovell observed pain over appellant’s lateral collateral ligaments and a
posterior mass over the back of her knee that was parable. He further observed some para patella
puffiness present to palpation with some discomfort. Dr. Bovell diagnosed appellant with left
knee lateral collateral ligament strain and sprain and Baker’s cyst of the left knee.
By decision dated March 4, 2009, the Office denied appellant’s traumatic injury claim on
the grounds that the medical evidence failed to establish that she sustained any knee condition
that was causally related to the accepted January 7, 2009 employment incident.
On April 2, 2009 appellant requested a review of the written record.
In a January 13, 2009 hospital record, it was noted that appellant was treated in the
emergency room on January 13, 2009 by Dr. Sassan Taghizadeh, a Board-certified internist, for
complaints of pain and swelling in her left knee. Appellant stated that her knee had been painful
since January 7, 2009 from walking up stairs, but she denied any specific trauma. She
underwent an x-ray examination and was diagnosed with degenerative arthritis and joint knee
pain.
Appellant provided additional medical reports by Dr. Bovell. In a March 31, 2009
medical report, Dr. Bovell stated that appellant was again treated in his office for a left knee
injury sustained while at work. X-ray and magnetic resonance imaging (MRI) scan examinations
revealed that appellant sustained a left knee injury, chondromalacia, medial collateral ligaments
strain and sprain, and patella subluxation or dislocation in her left knee. Dr. Bovell explained

2

that, based on recent history and clinical examination, the pain and swelling in appellant’s
medical collateral ligaments areas were consistent with the history of injury described. He also
stated that because appellant was asymptomatic before the injury her knee condition was a result
of the injury and that the snap and clicking sound was the subluxation or dislocation of the
patella out of its regular groove. Dr. Bovell noted that the employment incident merely
aggravated appellant’s chondromalacia and degenerative joint disease. He summarized that
appellant’s symptoms, injury, and complaints were definitely related to the January 7, 2009 work
incident.
In a decision dated June 19, 2009, the Office hearing representative affirmed the Office’s
March 4, 2009 denial decision claiming that appellant did not meet her burden of proof to
establish that her knee condition was causally related to the January 7, 2009 employment
incident. It specifically found that although Dr. Bovell’s report supported causal relationship his
opinion was based upon an inaccurate description of the accepted work event, and thus, was not
considered probative medical opinion.
Appellant provided additional reports by Dr. Bovell. In a June 12, 2009 report,
Dr. Bovell stated that he reevaluated appellant for her left knee injury. He prescribed different
medication and also completed a duty status report advising that she be off four hours for about
two weeks. In a July 24, 2009 medical report, Dr. Bovell stated that within a reasonable degree
of medical certainty a causal relationship existed between appellant’s knee problems and the
January 7, 2009 work event. He recalled that appellant’s knee popped as she was walking up the
stairs and explained that the popping sound was the subluxation of her patella. Dr. Bovell stated
that appellant developed a mass at the back of her knee, which surfaced from the fluid or
effusion that was built up from her injury, and that the MRI scan examination revealed edema
swelling and a bursitis type of symptom. He noted that appellant experienced pain over the
medial collateral ligament and the medial joint line area, which demonstrated that this area took
the brunt of the injury. Dr. Bovell also stated that there were other coincidental findings of
aggravation, particularly that appellant’s chondromalaicia and degenerative joint disease played
a small part in appellant’s pain. In an August 14, 2009 medical report, he stated that appellant
continued to experience pain from bending, walking and prolonged standing.
On July 15, 2010 appellant submitted a request for reconsideration. In a July 22, 2010
decision, the Office denied appellant’s request for further review of the merits on the grounds
that appellant failed to submit her request without one year of the last decision and to present
clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Act does not entitle a claimant to review of an Office decision as a
matter of right.2 The Office, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a).3 One such limitation provides that an
application for reconsideration must be submitted within one year of the date of the Office
2

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

3

Annette Louise, 54 ECAB 783, 789-90 (2003).

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decision for which review is sought.4 The Board has found that the imposition of this one-year
time limitation does not constitute an abuse of the discretionary authority granted the Office
under 5 U.S.C. § 8128(a).5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11
To establish clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Office found that appellant did not file a timely request for further review of the
merits of the claim. The most recent merit decision was the Office’s June 29, 2009 decision.
4

20 C.F.R. § 10.607(a).

5

See F.R., Docket No. 09-575 (issued January 4, 2010); Jesus D. Sanchez, supra note 2.

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

8

M.L., Docket No. 09-956 (issued April 15, 2010); Fidel E. Perez, 48 ECAB 663, 665 (1997).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Leona N. Travis, 43 ECAB 227, 241 (1991).

11

Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

13

Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

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Appellant’s request for reconsideration was dated July 15, 2010, which is more than one year
after the June 29, 2009 decision. Therefore, the Board finds that her request was not timely filed.
The Office has accepted that appellant, a letter carrier, did walk up stairs while delivering
her route on January 7, 2009, but denied the claim because appellant did not meet her burden of
proof to establish that her left knee condition was causally related to this incident. The Board
finds that appellant’s July 15, 2010 request for reconsideration does not establish that the
Office’s June 29, 2009 decision denying her claim was clearly erroneous.
The June 29, 2009 merit decision found that Dr. Bovell’s opinions regarding causal
relationship were based upon an inaccurate history of injury. Dr. Bovell premised his opinion on
a history that appellant fell on January 7, 2009.
In support of her untimely request for reconsideration, appellant submitted several
additional medical reports from Dr. Bovell. The only report from this submission which
addressed causal relationship was the July 24, 2009 report in which Dr. Bovell stated that
appellant’s knee popped as she was walking up stairs on January 7, 2009, resulting in a
subluxation of her patella. He further stated that appellant had pain over the medial collateral
ligament and medial joint line area, because this area took the blunt of the injury. While this
report did provide an accurate history of injury, it is not sufficient to establish manifest error in
the prior denials of appellant’s claim. Dr. Bovell had offered the same opinion, that appellant
sustained a subluxation of her patella, in his earlier reports wherein he stated this specific injury
occurred due to a fall on stairs. As he did not explain why walking up stairs would have caused
exactly the same injury, and he did not explain why he initially related the injury to a fall, his
new report does not establish manifest error in the Office’s prior decisions. The additional
medical reports describe a work injury but do not raise a substantial question as to the
correctness of the Office’s decision.14 The term clear evidence of error is intended to represent a
difficult standard.
As appellant as not provided any argument or evidence sufficient to show clear evidence
of error on the part of the Office, it properly denied her request for further review of the merits.
CONCLUSION
The Board finds that appellant’s July 15, 2010 request for reconsideration was untimely
filed and did not demonstrate clear evidence of error.15

14

See J.H., Docket No.10-1312 (issued February 24, 2011).

15

The Board notes that appellant submitted additional evidence following the July 22, 2010 nonmerit decision.
Since the Board’s jurisdiction is limited to evidence that was before the Office at the time it issued its final decision,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2011
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 14-184
Issued: July 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2013 appellant filed a timely appeal of an October 7, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) denying her traumatic injury claim as
untimely. 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 filed a timely claim for compensation under FECA.
On appeal, appellant asserts that her claim was timely because the employing
establishment was aware of the June 9, 2010 incident that caused her claimed condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 21, 2013 appellant, then a 54-year-old senior claims examiner, filed a
traumatic injury claim alleging that on June 9, 2010 she began to hyperventilate and sustained
high blood pressure and a rise in her blood sugar due to her supervisor, Maria Munoz, calling her
into a meeting 10 minutes prior to her workday ending and prevented her from leaving. She
alleged that Ms. Munoz threatened her with being written-up unless she could provide evidence
supporting her work limitations. The employing establishment controverted the claim on the
grounds that it was not in the performance of duty.
In an August 26, 2013 statement, Ms. Munoz provided information regarding the alleged
June 9, 2010 incident. She stated that she requested that appellant meet with her at
approximately 4:08 pm to follow up on an earlier discussion regarding appellant’s performance,
accomodation requests and medical documentation. Appellant became upset within 10 minutes
of the meeting and at that point she ended the disucssion. She did not leave the room, stating
that she did not want to be seen teary eyed and upset. At this point, appellant stood for a few
minutes and declined Ms. Munoz’s suggestion of going to the nurse’s station. Ms. Munoz noted
that appellant stated that she was feeling unwell and needed to lie down. At this point, she called
911 and appellant was taken by paramedics to the hospital. Appellant was out of the office the
following day, but returned to work on June 14, 2010.
In support of her claim, appellant submitted a June 9, 2010 emergency department work
status form from Dr. Naomi Dabby, an examining physician. She was released to regular work
effective June 11, 2010.
In a letter dated August 29, 2013, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. Specifically, it advised her that the evidence of record
failed to show that her claim had been timely filed. OWCP noted that appellant’s claim had not
been filed within three years of the June 9, 2010 incident and there was no evidence that her
employing establishment had knowledge that she suffered from a job-related condition due to the
alleged incident within 30 days. Appellant was advised as to the medical and factual evidence
required to establish her claim and given 30 days to provide this information.
In response to OWCP’s request, appellant submitted the following evidence. In an
August 8, 2013 statement, she noted that Ms. Munoz wanted to have a quick meeting 10 minutes
before she was scheduled to leave for the day. According to appellant, she felt interrogated,
badgered and harassed by Ms. Munoz as a result of discussing work accommodations, leave
usage and her medication. She stated that Ms. Munoz kept talking even though appellant told
her that she was off work and had missed several trains to go home. Appellant related that she
felt her blood sugar and blood pressure rising. At the same time, she stated that she began
sobbing and shaking and, the next thing she knew, paramedics had been called and they took her
to the hospital. In concluding, appellant stated that she felt embarrassed and humiliated because
of her panic attack and that she was haunted by the experience.
In an August 21, 2013 report, Dr. Philip D. MacFarland, Ph.D., a licensed clinical
psychologist, noted that he had treated appellant since April 27, 2013. He reported that she had a
panic attack at work on June 9, 2010 and that she had not worked since November 23, 2010.

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Dr. MacFarland noted that appellant sustained a right knee injury on that date and that she
remains disabled. He reported that her benefits for her right knee were terminated by a
January 25, 2013 decision on the basis that the condition had resolved.
By decision dated October 7, 2013, OWCP denied appellant’s claim on the grounds that
she failed to file her claim within the time frames set forth in 5 U.S.C. § 8122.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides:
“An original claim for compensation for disability or death must be filed within
three years after the injury or death. Compensation for disability or death,
including medical care in disability cases, may not be allowed if a claim is not
filed within that time unless -(1) the immediate superior had actual knowledge of the injury or death
within 30 days. The knowledge must be such as to put the immediate
superior reasonably on notice of an on-the-job injury or death; or
(2) written notice of injury or death as specified in section 8119 was given
within 30 days.”3
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice. Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.4
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability and the
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.5 For actual knowledge of a supervisor to be
regarded as timely filing, an employee must show not only that the immediate superior knew that
2

J.M., Docket No. 09-1563 (issued February 26, 2010); Charles Walker, 55 ECAB 238 (2004).

3

5 U.S.C. § 8122(a).

4

Laura L. Harrison, 52 ECAB 518 (2001).

5

5 U.S.C. § 8119(b); Delmont L. Thompson, 51 ECAB 166 (1999).

3

he or she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.6
ANALYSIS
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of FECA. On August 21, 2013 appellant claimed that on June 9, 2010 she sustained
high blood pressure and a rise in her blood sugar due to her supervisor requesting her attendance
at an unscheduled meeting immediately prior to her departure from work.
Section 8122 provides that an original claim for compensation for disability or death
must be filed within three years after the injury or death.7 Appellant did not file a claim for the
alleged June 9, 2010 injury until August 21, 2013, more than three years after the incident giving
rise to the claimed injury.8 However, her claim would still be regarded as timely under section
8122(a)(1) of FECA if her immediate superior had actual knowledge of the injury within 30 days
or under section 8122(a)(2) if written notice of injury was given within 30 days. Appellant has
not satisfied either of these requirements.9 While it is clear from the record that the incident
occurred and that she was taken to the hospital, the record does not establish that she sustained
an injury due to this incident and that the injury was related to the June 9, 2010 incident such that
any supervisor at the employing establishment would be aware that her claim was timely filed
under the provisions of section 8122.
For the above reasons, appellant’s claim is not timely filed and is barred by the applicable
time limitations provisions of FECA.
On appeal, appellant contends that her claim was timely as her supervisor had knowledge
of her injury. She alleges that her supervisor was aware of her panic attack at the time and that
the employing establishment was also aware of her high blood pressure and high sugar levels.
Contrary to appellant’s contention, there is no evidence that her supervisor or the employing
establishment had any knowledge within 30 days of the June 9, 2010 incident regarding her
panic attack or that the incident caused or aggravated her high blood pressure and high sugar
levels. The June 9, 2010 emergency department work status form from Dr. Dabby released
appellant to regular work effective June 11, 2010. The note contained no diagnosis of a panic
attack, high blood pressure or high sugar level such that it would put the employing
establishment on notice. The August 21, 2013 report from Dr. McFarland also is insufficient to
establish any awareness on the part of her supervisor or the employing establishment.
Dr. McFarland was not treating appellant at the time of the alleged incident and she did not come
under his care until April 27, 2013, which was almost three years after the alleged incident and
6

Id. at § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

7

Id. at 8122.

8

Supra note 3.

9

For actual knowledge of a supervisor to be regarded as timely filing, an employee must show not only that the
immediate superior knew that he or she was injured, but also knew or reasonably should have known that it was an
on-the-job injury. David R. Morey, 55 ECAB 642 (2004).

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panic attack. Moreover, most of his report concerns an employment-related right knee injury,
which occurred on November 23, 2010 and the termination of her compensation benefits by a
January 25, 2013 decision under a separate claim number.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2013 is affirmed.
Issued: July 7, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 09-1788
Issued: June 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 6, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 25, 2009, which affirmed a January 14, 2009
decision denying his claims for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability commencing September 21, 2007 causally related to his accepted
employment condition.
FACTUAL HISTORY
On April 19, 2002 appellant, then a 44-year-old window clerk, filed an occupational
disease claim alleging that he developed heel spurs due to prolonged standing at work. The
Office accepted his claim for bilateral heel spurs and bilateral plantar fasciitis. Appellant worked
intermittently and on April 8, 2006 accepted a full-time, light-duty position and worked until

February 13, 2007 when he was placed on administrative leave for engaging in threatening
behavior in the workplace.
Appellant was initially treated by Dr. Brad A. Katzman, a podiatrist, from May 20, 2002
to March 25, 2004, who diagnosed chronic plantar fasciitis with heel spur syndrome secondary to
cumulative trauma arising out of employment. Dr. Katzman noted that appellant worked fulltime regular duty since December 2002. On November 23, 2004 appellant requested light duty.
He submitted a November 8, 2004 light-duty request from Dr. Katzman, who diagnosed plantar
fasciitis and recommended full-time work with restrictions. Appellant continued to submit
reports from Dr. Katzman noting his treatment for chronic plantar fasciitis and recommending
orthotics. In a duty status report dated April 4, 2006, Dr. Katzman advised that appellant could
continue to work full time with restrictions of lifting up to 20 pounds intermittently for eight
hours per day, sitting for eight hours per day, standing for one hour per day cumulative, walking
for three to four hours per day, no climbing, kneeling, bending/stooping, twisting,
pulling/pushing or operating machinery.
On April 8, 2006 the employing establishment offered appellant a full-time modified
distribution window clerk position subject to Dr. Katzman’s restrictions. The duties included
vending services for one hour per day, passports for six hours per day, reception/telephones and
customer service for eight hours per day and checking the accountable cage for four hours per
day. The physical requirements including lifting up to 20 pounds, standing one hour per day
cumulative, walking for three to four hours per day and sitting for eight hours per day. Appellant
accepted the position and returned to work on April 10, 2006.
In correspondence dated February 16, 2007, the employing establishment notified that
appellant was being placed in emergency off duty status effective February 13, 2007 for
engaging in threatening behavior while on duty.
On June 13, 2007 the employer offered appellant a modified clerk position eight hours
per day subject to the restrictions set forth by Dr. Katzman. The duties consisted of vending
service for one hour per day, lobby director for eight hours per day, preparation of second notices
for parcels, letters and flats for two hours per day and restocking the lobby for one hour per day.
The physical requirements included standing for up to four hours per day, sitting for eight hours
per day, walking for four hours per day and lifting containers from 5 to 20 pounds continuously
and 30 pounds intermittently for eight hours per day. Appellant did not accept the position.
Appellant submitted reports and treatment notes from Dr. Katzman dated July 2 to
August 23, 2007, who diagnosed plantar fasciitis and noted that appellant continued to have
residuals of his work injury. In duty status reports dated July 5 and August 23, 2007, the
podiatrist advised that appellant could work full time with restrictions. In an August 8, 2007
report, Dr. Katzman diagnosed chronic plantar fasciitis with heel spur syndrome secondary to
cumulative trauma, arising out of employment. He opined that appellant was permanent and
stationary and reached maximum medical improvement on May 20, 2003. On September 27,
2007 the podiatrist noted treating appellant for left plantar fasciitis and indicated that he was on
disability for stress. Subsequent reports from December 12, 2007 to October 20, 2008 continued
noting his status. In a June 2, 2008 duty status report, Dr. Katzman returned appellant to work in
his usual position, full time with restrictions.

2

Appellant submitted a Form CA-7, claim for compensation for leave without pay for the
period beginning September 21, 2007. In a December 2, 2008 statement, he indicated that the
Merit Systems Protection Board issued a decision which attributed his disability to stress caused
by a supervisor. Appellant requested the Office compensate him beginning September 2007
because the agency did not provide reasonable accommodation for his work injuries.
By letter dated December 11, 2008, the agency challenged appellant’s claim for
compensation for the period beginning September 21, 2007 noting that he had not worked since
February 13, 2007 because he was placed in an emergency off duty status due to an Office of
Inspector General investigation. The agency noted that appellant was offered a position on
June 14, 2007 but refused the job.
By letter dated December 12, 2008, the Office informed appellant that his claim would be
developed as a recurrence of disability. It advised him of the type of factual and medical
evidence needed to establish his recurrence claim and requested that he submit such evidence,
particularly requesting that appellant submit a physician’s reasoned opinion addressing the
relationship of his claimed recurrent condition and specific employment factors.
Appellant submitted a CA-7 form, claim for compensation, for the period June 21 to
November 30, 2008.
In support of his claim, appellant submitted a step one-grievance outline dated March 7,
2007 in which he disputed his placement in emergency off duty status as a violation of the
bargaining agreement. In an August 22, 2007 settlement, the grievance was resolved and the
February 16, 2007 emergency placement in off duty status was revoked and he was permitted to
return to work. In a December 9, 2008 statement, appellant asserted that on March 7, 2007 the
agency did not provide reasonable accommodations. On December 11, 2008 he again requested
reasonable accommodations in a stress free environment. Appellant submitted a January 3, 2009
statement and asserted that he last worked on February 13, 2007 and the position he held at that
time was not suitable. He further asserted that, from February 13, 2007 to December 1, 2008, his
supervisor caused stress and depression. Appellant indicated that the workplace was not safe for
him prior to December 1, 2008 and that management made no effort to provide accommodation
and referenced a Merit Systems Protection Board decision, which he believed supported his
position. He stated that on June 14, 2007 his supervisor tried to assign him a job that was not
suitable work and refused to allow him to return to work. Appellant indicated that his accepted
plantar fasciitis and heel spur conditions did not change or affect his ability to perform his job.
He submitted reports from Dr. Harry Lewis, a Board-certified psychiatrist, dated December 24
and 31, 2008, who treated him for a depressive disorder and released him to work without
restrictions effective December 24, 2008.
In a decision dated January 14, 2009, the Office denied appellant’s claim for recurrence
of disability on June 21, 2007 on the grounds that he failed to establish that he experienced a
change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty requirements, which would prohibit him from performing the light-duty
position he assumed after he returned to work.

3

Appellant requested a telephonic oral hearing which was held on May 14, 2009. He
submitted a January 5, 2009 report from Dr. Katzman who noted appellant’s continued
complaints of pain of the bilateral heels and diagnosed chronic plantar fasciitis. In a duty status
report dated January 5, 2009, Dr. Katzman advised that appellant could work full time with
restrictions. On March 23, 2009 the podiatrist diagnosed chronic plantar fasciitis and noted that
appellant remained on modified work with the same restrictions.
In a decision dated June 25, 2009, the hearing representative affirmed the Office decision
dated January 14, 2009, which denied appellant’s claim for a recurrence of disability beginning
September 21, 2007.1
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.2 The Board has held that, when a claimant stops work
for reasons unrelated to the accepted employment injury, there is no disability within the
meaning of the Federal Employees’ Compensation Act.3
Causal relationship is a medical issue4 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.5
ANALYSIS
The Office accepted appellant’s claim for bilateral heel spurs and bilateral plantar
fasciitis. On April 8, 2006 appellant accepted a full time, light-duty position. He worked in that
position until February 13, 2007, when he was placed on administrative leave due to an
1

The hearing representative noted that appellant’s CA-7 form listed his date of disability as September 21, 2007
and therefore determined this to be the claimed date of recurrence of disability.
2

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

3

A.M., 61 ECAB ___ (Docket No. 09-1895, issued April 23, 2010).
1378 (1988).

See John W. Normand, 39 ECAB

4

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

5

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

4

investigation for threatening behavior. On June 21, 2007 appellant was offered a full-time
modified clerk position subject to the restrictions set forth by Dr. Katzman. He did not accept
the position. Appellant filed a claim for compensation beginning September 21, 2007, which the
Office developed as a recurrence of disability. He indicated that he was not working because the
agency failed to provide reasonable accommodations. The Board finds that, in the instant case,
appellant has not submitted sufficient evidence to support a change in the nature and extent of
the injury-related condition or a change in the nature and extent of the light-duty requirements.
Appellant submitted reports from Dr. Katzman dated July 2 to August 23, 2007, who
noted diagnoses and treatment. In duty status reports dated July 5 and August 23, 2007, the
podiatrist advised that appellant could work full time with restrictions. These reports are
insufficient to establish the claim as they do not support that appellant was totally disabled.
Rather, the reports support that appellant could work full time with restrictions consistent with
prior restrictions from Dr. Katzman under which appellant previously worked.
On
September 27, 2007 Dr. Katzman noted appellant’s plantar fasciitis but indicated that appellant
was on disability for stress. Other reports from the podiatrist dated December 12, 2007 and
March 11, 2008, noted appellant’s treatment for left heel pain and indicated that he had not
worked since February 2007. However, none of Dr. Katzman’s reports, most contemporaneous
with the recurrence of disability, noted a specific date of a recurrence of disability nor did he
note a particular change in the nature of appellant’s physical condition, arising from the
employment injury, which prevented appellant from performing his light-duty position beginning
September 21, 2007.6 The Board has found that vague and unrationalized medical opinions on
causal relationship have little probative value.7
In a subsequent report, Dr. Katzman continued noting appellant’s complaints of pain in
both heels and indicated that physical examination was unchanged. He diagnosed chronic
planter fasciitis with heel spur syndrome secondary to cumulative trauma arising out of
employment. Dr. Katzman noted that appellant could return to work in his usual position, full
time with restrictions. These reports do not support appellant’s claim for recurrence of disability
as Dr. Katzman did not specifically address how a particular change in the nature of appellant’s
physical condition, arising from the employment injury, prevented appellant from performing his
light-duty position beginning September 21, 2007. Rather, Dr. Katzman advised that appellant
could work full time with restrictions. Therefore, these reports are insufficient to meet
appellant’s burden or proof.
Other reports from Dr. Lewis dated December 24 and 31, 2008, noted appellant’s
treatment for a depressive disorder. He released him to work without restrictions effective
December 24, 2008. However, the Board notes that Dr. Lewis did not address how any disability
beginning September 21, 2007 was due to the accepted foot conditions and the Office has not

6

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971) (where the Board
has consistently held that contemporaneous evidence is entitled to greater probative value than later evidence).
7

See Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

5

accepted any emotional or stress-related condition.8 Therefore, these reports are insufficient to
establish appellant’s claim. Therefore, the Board finds that appellant has not met his burden of
proof in establishing that there was a change in the nature or extent of the injury-related
condition.
Regarding change in the nature and extent of the light-duty requirements, appellant was
working in a full-time light-duty position, consistent with Dr. Katzman’s restrictions, when he was
placed in emergency off duty status effective February 13, 2007 due to threatening behavior
while on duty. When a claimant stops working at the employing establishment for reasons
unrelated to his employment-related physical condition, he has no disability within the meaning of
the Act.9 The record indicates that appellant stopped working in his light-duty position for reasons
unrelated to his employment injuries. The Board further notes that there is no credible evidence
which substantiates any change in the nature and extent of the light-duty requirements at the time
appellant was placed off duty due to reasons unrelated to his work injury. On June 12, 2007
appellant was offered a light-duty position, which was in conformance with the medical
restrictions set forth by his treating physician but he did not accept this offer. As he stopped his
light-duty position for reasons unrelated to his accepted work injury, the evidence does not
establish a change in the nature of his light-duty requirement.
Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements which would prohibit him from performing the light-duty position he assumed
after he returned to work.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability on September 21, 2007 causally related to his accepted
condition.

8

The record indicates that appellant filed a claim for an emotional condition that is being developed as a separate
claim by the Office. This matter is not before the Board on the present appeal.
9

See supra note 3. In Normand, where the claimant was removed from his light-duty position for disciplinary
reasons, the Board found no evidence of disability within the meaning of the Act.

6

ORDER
IT IS HEREBY ORDERED THAT the June 25 and January 14, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 18, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 07-2195
Issued: April 22, 2008

Case Submitted on the Record

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

JURISDICTION
On August 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decisions dated April 2 and May 25, 2007 denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she had any
disability on October 7 and 28, 2006 and February 21 to March 16, 2007 causally related to the
May 26, 2005 employment injury.
FACTUAL HISTORY
On May 26, 2006 appellant, then a 40-year-old mail handler, sustained a left shoulder
injury while lifting heavy packages at work. She did not stop work. The Office accepted
appellant’s claim for sprain of the left shoulder and upper arm, left rotator cuff capsule

sprain/strain and supraspinatus muscle cyst.
performed on January 9, 2007.

It authorized arthroscopic surgery which was

Appellant came under the treatment of Dr. Mark C. Winslow, an osteopath, who treated
her from June 22 to September 27, 2006. On July 6, 2006 Dr. Winslow recommended modified
duty with limited use of the left arm and on July 20, 2006 he returned appellant to regular duty
without restrictions. In a September 27, 2006 report, he diagnosed left shoulder strain and
determined that appellant reached maximum medical improvement on July 20, 2006.
Dr. Winslow released her to regular duty without restrictions. Appellant submitted reports from
Dr. Paul D. Fournier, a Board-certified family practitioner, dated August 31 to
September 11, 2006. Dr. Fournier noted appellant’s complaints of neck and left arm pain with
paresthesias in the right thumb after gardening. He diagnosed nonwork-related cervical
radiculitis. Dr. Fournier determined that appellant’s left shoulder strain and bicipital tendinitis
resolved September 11, 2006 and released her to work with restrictions on the left hand. An
x-ray of the right shoulder dated August 29, 2006 revealed no fracture, dislocation or focal bone
destruction.
On October 20, 2006 Dr. Winslow again noted that appellant reached maximum medical
improvement and released her to work full duty with restrictions on her shoulder. In reports
dated November 15 and 30, 2006, he treated appellant for increasing shoulder pain and
diagnosed shoulder strain/tendinopathy with possible labral tear, cyst, suprascapular nerve injury
and rotator cuff injury. Appellant submitted reports from Dr. Mark S. Failinger, a Boardcertified orthopedic surgeon, dated November 8 to 29, 2006, who noted a history of injury and
diagnosed left shoulder, rotator cuff strain, probable labral tear and rule out suprascapular
neuropathy with spinoglenoid notch cyst. Dr. Failinger recommended an electromyograph
(EMG) which was performed on November 22, 2006. It revealed findings consistent with left
suprascapular nerve injury affecting the infraspinatus muscles with early effort towards
neurological recovery and entrapment of the nerve at the spinoglenoid. Dr. Failinger
recommended arthroscopic subacromial decompression.
On December 13, 2006 the Office expanded appellant’s claim to include rotator cuff
capsule sprain and strain and cyst of the supraspinatus muscle.
On January 8, 2007 appellant filed a Form CA-7, claim for compensation, for partial
disability for the period May 31 to November 29, 2006. The employing establishment provided
a CA-7a form time analysis noting 4.27 hours of leave without pay for May 31, 2006, 3.27 hours
for October 7, 2006, 8 hours for October 11, 12 and 13, 2006, 3.42 hours for October 18, 2006,
3.41 hours for October 28, 2006, 8 hours for November 8, 22, 2006 and 2 hours for
November 29, 2006.
Appellant submitted a November 30, 2006, prescription note from Dr. Winslow who
indicated that appellant did not work on November 22, 2006 due to her illness and diagnostic
testing. On November 30, 2006 Dr. Winslow diagnosed nerve entrapment and a cyst and
released appellant to work full time with restrictions on the left arm. On January 23, 2007 he
indicated that appellant was out of work partial days on October 7 and 28, 2006 due to her work
injury. In an undated attending report, Dr. Winslow diagnosed status post surgery for rotator
cuff tear and noted with a checkmark “yes” that appellant’s condition was caused or aggravated

2

by an employment activity. On January 9, 2007 Dr. Failinger performed a left shoulder
arthroscopic subacromial decompression and diagnosed left shoulder torn posterior labrum,
chondromalacia of the posterior glenoid, spinoglenoid notch cyst, suprascapular neuropathy and
impingement syndrome.
In letters dated January 30 and February 7, 2007, the Office requested that appellant
submit additional medical evidence addressing her disability for the period claimed.
On January 18, 2007 Dr. Failinger indicated that appellant was progressing well
postoperatively and would be in a sling for six weeks. On March 5, 2007 he noted that appellant
was neurovascularly intact with good external rotation. In a report dated April 18, 2007,
Dr. Failinger noted slow improvement in appellant’s condition with some weakness in abduction.
Appellant submitted physical therapy notes from February 2 to 12, 2007.
On February 20, 2007 appellant filed a Form CA-7, claim for compensation, for partial
disability for the period February 3 to 16, 2007. The employing establishment provided a CA-7a
time analysis form.
In a February 13, 2007 report, Dr. Barry A. Ogin, Board-certified in physical medicine
and rehabilitation, diagnosed rotator cuff tendinopathy. He released appellant to return to work
four hours per day with restrictions on lifting and overhead activity. Appellant submitted reports
from Dr. Winslow dated February 20 and March 14, 2007, noting postsurgical shoulder pain.
Dr. Winslow diagnosed postoperative shoulder, torn labrum, impingement syndrome
sphinoglenoid notch cyst and suprascapular neuropathy. In an activity status report dated
February 20, 2007, he released appellant to a modified position with restrictions of no repetitive
lifting, pushing or pulling, no driving and required use of a sling. In a duty status report dated
March 14, 2007, Dr. Winslow released appellant to work with no use of the left arm and no
driving.
On March 8, 2007 appellant filed a Form CA-7, claim for compensation, for partial
disability for the period February 17 to March 2, 2007. The employing establishment provided a
CA-7a time analysis form noting eight hours of leave without pay for February 17, 21, 22, 23,
24, 25, 28 and March 1 and 2, 2007.
On March 14, 2007 Dr. Winslow treated appellant for postsurgical shoulder pain and
noted diagnoses. He advised that appellant could continue working with a restriction of no use
of the left arm.
On April 2, 2007 appellant filed a Form CA-7, claim for compensation, for partial
disability for the period March 3 to 14, 2007. The employing establishment provided a CA-7a
time analysis form noting eight hours of leave without pay for March 3, 4, 7, 8, 9, 10, 11, 14,
15 and 16, 2007.
In a decision dated April 2, 2007, the Office denied appellant’s claim for compensation
for partial disability, 3.27 hours for October 7, 2006 and 3.41 hours for October 28, 2006, on the
grounds that the medical evidence did not establish that appellant’s disability was due to her
accepted work injury.

3

In an April 27, 2007 letter, appellant provided a history of her injury. She submitted
reports from Dr. Winslow dated March 30 to April 27, 2007. Dr. Winslow diagnosed status post
rotator cuff repair and cyst excision. He released appellant to modified duty on March 30, 2007
with restrictions of no repetitive lifting over five pounds on the right, no use of the left arm and
no driving. Appellant submitted physical therapy notes from March 28 to May 11, 2007.
In a decision dated May 25, 2007, the Office denied appellant’s claim for compensation
for total disability, eight hours per day, for the period February 21 to March 16, 2007 on the
grounds that the medical evidence was not sufficient to establish disability due to her accepted
work injury.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.1 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.2 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.3
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.4
ANALYSIS
The Office accepted appellant’s claim for sprain of the left shoulder/upper arm, left
rotator cuff capsule sprain/strain and supraspinatus muscle cyst. Appellant claimed wage-loss
compensation for partial disability: 3.27 hours for October 7, 2006 and 3.41 hours for
October 28, 2006; and for total disability for the period February 21 to March 16, 2007. The
Board finds that the medical evidence of record is insufficient to establish that the claimed
periods of disability were caused or aggravated by the accepted employment injury.
On September 27, 2006 Dr. Winslow opined that appellant reached maximum medical
improvement on July 20, 2006 and that she could return to regular duty without restrictions. On
October 20, 2006 he discharged appellant from his care noting that she could work full duty with
restrictions on her shoulder. Dr. Winslow did not specifically address whether appellant had any
1

See Fereidoon Kharabi, 52 ECAB 291 (2001).

2

Id.

3

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

4

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005).

4

employment-related disability on October 7 or 28, 2006 causally related to her May 26, 2005
employment injury. These reports do not address whether appellant was disabled on those dates
or that she was undergoing medical treatment for her accepted condition for the claimed hours.5
In a prescription note dated January 23, 2007, Dr. Winslow indicated that appellant was out of
work partial days for her work injury on October 7 and 28, 2006. Although he indicated that
appellant was partially disabled from work on certain days, the physician failed to adequately
address the reason for appellant’s partial disability or the causal relationship between the claimed
disability and the accepted employment injury of May 26, 2005.
In reports dated February 20 to April 27, 2007, Dr. Winslow treated appellant for
postsurgical shoulder pain and advised that she could return to work within restrictions. In
activity status reports dated February 20 and March 14, 2007, he noted that appellant could
return to modified work with restrictions of no repetitive lifting, pushing or pulling, no driving
and use of a sling. Although Dr. Winslow noted that appellant was still experiencing symptoms
of left shoulder pain, he did not address whether she had any employment-related disability on
October 7 or 28, 2006 or from February 21 to March 16, 2007 causally related to her May 26,
2005 employment injury. Rather, he opined that appellant could return to work subject to
restrictions. However, Dr. Winslow attributed appellant’s disability to the diagnosed conditions
of a torn labrum and impingement syndrome. The Office has not accepted that appellant
developed a torn labrum and impingement syndrome as a result of her May 26, 2005 work
injury.6 Therefore, these reports are insufficient to establish appellant’s disability for these
periods.
Reports from Dr. Failinger dated from November 8, 2006 to April 18, 2007 noted
appellant’s status but did not address whether she had any employment-related disability on
October 7 or 28, 2006 or from February 21 to March 16, 2007 due to her May 26, 2005
employment injury. Therefore, these reports are insufficient to establish appellant’s claim. The
remainder of the medical evidence fails to provide any opinion on causal relationship between
the claimed period of partial and total disability and the accepted employment injury of
May 26, 2005. Consequently, the medical evidence of record does not establish that the claimed
period of disability is due to appellant’s accepted injury or to residuals of surgery.
CONCLUSION
The Board finds that appellant has failed to establish that her condition during the
claimed period of disability is causally related to the accepted employment injury of
May 26, 2005.

5

See Amelia S. Jefferson, 57 ECAB ___ (Docket No. 04-568, issued October 26, 2005).

6

For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 25 and April 2, 2007 are affirmed.
Issued: April 22, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6