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

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Appearances:
Stephen V. Barszcz, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1738
Issued: May 17, 2019

Case Submitted on the Record

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

JURISDICTION
On September 18, 2018 appellant, through counsel, filed a timely appeal from a
September 5, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to evidence in the case record that was before OWCP at the time
of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include additional left shoulder conditions causally related to
the accepted February 2, 2016 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On February 2, 2016 appellant, then a 57-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left shoulder injury that day when shaking a postal
container (postcon) loose from another postcon while in the performance of duty. He reported
feeling his left shoulder pop or tear. Appellant stopped work the following day.
By decision dated March 22, 2016, OWCP accepted that the incident occurred as alleged,
but denied the claim finding that appellant had not established that a diagnosed medical condition
was causally related to the accepted employment incident. On May 4, 2016 appellant requested
reconsideration and on August 2, 2016 OWCP denied modification.
On September 2, 2016 appellant, through counsel appealed to the Board. By decision dated
December 23, 2016, the Board affirmed the August 2, 2016 decision denying appellant’s traumatic
injury claim. The Board found the medical evidence submitted by appellant failed to establish
causal relationship between the diagnosed left shoulder conditions and the accepted February 2,
2016 employment incident.5
On December 22, 2017 OWCP received a request for reconsideration from counsel along
with reports dated December 5 and 21, 2017 from Dr. David Weiss, an osteopath Board-certified
in family practice.
In a December 5, 2017 report, Dr. Weiss noted his review of the medical records and found
that his left shoulder examination revealed well-healed portal arthroscopy scars, anterior cuff
tenderness, biceps long head tenderness, and reduced range of motion. He noted that appellant
sustained a left shoulder injury in 2013. Dr. Weiss reviewed magnetic resonance imaging (MRI)
scans dated June 8, 2013 and March 4 and February 2, 2016 x-ray interpretation. The June 8, 2013
MRI scan revealed a supraspinatus tendon partial thickness tear. Dr. Weiss diagnosed posttraumatic left shoulder massive rotator cuff tear, glenohumeral joint chondromalacia, glenoid
labral tear with extension into the bicipital anchor, aggravation of preexisting acromioclavicular
joint arthropathy, status post arthroscopic surgery, status post glenohumeral joint chondroplasty,
status post glenoid labral debridement with repair to shoulder, status post rotator cuff tear repair,
status post biceps tenotomy with biceps tenodesis, and status post subacromial decompression with
acromioplasty with distal claviculectomy. He opined that the February 2, 2016 employment
incident caused a proinflammatory cell release which in turn caused chemical and mechanical
4

Docket No. 16-1774 (issued December 23, 2016).

5

Id.

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irritation to the rotator cuff. Dr. Weiss concluded that appellant’s left shoulder pain was causally
related to the accepted February 2, 2016 employment incident.
Dr. Weiss, in a December 21, 2017 report, noted a history of a 2013 left shoulder injury
causing supraspinatus partial thickness tendon tear. He described the composition of the rotator
cuff and its function. Dr. Weiss observed that overexertion including twisting and pulling were
common causes of shoulder pain. A review of a March 4, 2016 left shoulder MRI scan revealed
full-thickness left supraspinatus and infraspinatus tendon muscle, a massive complete left rotator
cuff tear, and tendinosis of the biceps tendon and suprascapularis. Dr. Weiss observed that
appellant’s left shoulder was vulnerable as it was compromised by the preexisting supraspinatus
tendon partial thickness tear. He concluded that appellant sustained a left shoulder injury from
pulling a mail container weighing 870 pounds which was stuck to another mail container.
Dr. Weiss reported that the pulling motion involved in the February 2, 2016 employment incident
placed additional stress on the rotator cuff, which resulted in a humeral head subluxation. He
opined that the accepted February 2, 2016 incident caused proinflammatory cell release which in
turn caused rotator cuff mechanical irritation. Dr. Weiss concluded that the February 2, 2016
employment incident caused left rotator cuff chemical and mechanical irritation, left shoulder pain
and a left shoulder subluxation.
By decision dated March 12, 2018, OWCP vacated in part and affirmed in part the
December 23, 2016 decision denying appellant’s claim. It found the evidence submitted with his
reconsideration request sufficient to accept the claim for left shoulder humeral head subluxation.
However, OWCP found the evidence insufficient to establish that the acceptance of his claim
should be expanded to include post-traumatic left shoulder rotator cuff tear, left shoulder glenoid
labral tear, left shoulder glenohumeral joint chondromalacia, and aggravation of preexisting left
shoulder acromioclavicular joint arthropathy. It explained that Dr. Weiss failed to provide
sufficient medical rationale explaining how these additional conditions were caused or aggravated
by the accepted February 2, 2016 accepted employment injury.
On June 11, 2018 appellant, through counsel, requested reconsideration regarding the
denial of the additional left shoulder conditions. In support of his claim, he submitted medical
literature and an April 20, 2018 report from Dr. Weiss.
Dr. Weiss, in an April 20, 2018 report, opined that the February 2, 2016 work injury caused
a massive rotator cuff tear. He concluded that the stress from trying to remove a mail container
weighing about 875 pounds placed additional stress on his compromised rotator cuff. In support
of this conclusion, Dr. Weiss explained that the glenoid labral was caused by compromised rotator
cuff inability to keep the humerus in place. Furthermore, the excess stress on the acromioclavicular
joint from the February 2, 2016 work injury also aggravated appellant’s preexisting arthropathy.
Dr. Weiss referenced medical literature which found that small to massive posterior and anterior
superior rotator cuff tears have been found with people 40 years and older who have had anterior
shoulder dislocations.
By decision dated September 5, 2018, OWCP denied modification of the March 12, 2018
decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed is causally related to the employment injury.7
These are the essential elements of each and every compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.8
To establish causal relationship between the claimed condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
causal relationship.9 The opinion of the physician must be based on a complete factual and medical
background of the claimant, be one of reasonable medical certainty, and be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.10 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that acceptance
of his claim should be expanded to include additional left shoulder conditions causally related to
the February 2, 2016 employment injury.
Findings made in prior Board decisions are res judicata absent any further review by
OWCP under section 8128 of FECA.12 The Board will, therefore, not review the evidence
addressed in the prior appeal.
In support of his reconsideration request, appellant submitted reports from Dr. Weiss dated
December 5 and 22, 2017 and April 20, 2018. In his December 5, 2017 report, Dr. Weiss noted
the history of the February 2, 2016 employment injury. He related the results of the June 8, 2013
MRI scan and diagnosed post-traumatic left shoulder massive rotator cuff tear, glenohumeral joint
chondromalacia, glenoid labral tear with extension into the bicipital anchor, aggravation of
preexisting acromioclavicular joint arthropathy, status post arthroscopic surgery, status post
6

Supra note 2.

7

See F.H., Docket No. 18-1238 (issued January 18, 2019); Tracey P. Spillane, 54 ECAB 608 (2003).

8

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

9

See S.A., Docket No. 18-0399 (issued October 16, 2018).

10

See P.M., Docket No. 18-0287 (issued October 11, 2018).

11

F.H., supra note 7.

12

See K.V., Docket No. 18-0947 (issued March 4, 2019); S.S., Docket No. 17-1106 (issued June 5, 2018); H.G.,
Docket No. 16-1191 (issued November 25, 2016).

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glenohumeral joint chondroplasty, status post glenoid labral debridement with repair to shoulder,
status post rotator cuff tear repair, status post biceps tenotomy with biceps tenodesis, and status
post subacromial decompression with acromioplasty with distal claviculectomy. Dr. Weiss opined
that the attempted removal of a stuck mail container on February 2, 2016 led to proinflammatory
cell release which in turn caused chemical and mechanical irritation of the left shoulder rotator
cuff. However, he did not explain how the February 2, 2016 work injury caused, aggravated, or
contributed to diagnosed post-traumatic left shoulder massive rotator cuff tear, glenohumeral joint
chondromalacia, glenoid labral tear with extension into the bicipital anchor, and aggravation of
preexisting acromioclavicular joint arthropathy. A medical opinion that does not offer a
rationalized medical explanation regarding the cause of the diagnosed medical conditions is of
limited probative value on the issue of causal relationship.13 Dr. Weiss’ report was therefore of
limited probative value in establishing that appellant had additional diagnosed left shoulder
conditions causally related to the accepted February 2, 2016 employment injury.14
While in his December 21, 2017 report, Dr. Weiss concluded that the stress from trying to
remove a mail container weighing about 875 pounds placed additional stress on his compromised
rotator cuff and aggravated appellant’s preexisting arthropathy, he again did not explain with
medical rationale how this mechanism of injury would have physiologically caused the diagnosed
conditions.15 Furthermore, in cases where a preexisting condition involving the same part of the
body is present and the issue of causal relationship therefore involves aggravation, acceleration or
precipitation, the physician must provide rationalized medical opinion which differentiates
between the effects of the work-related injury or disease and the preexisting condition.16
Additionally, Dr. Weiss referenced literature and books in support of his medical opinion
in his April 20, 2018 report. However, the Board has held that newspaper clippings, medical texts
and excerpts from publications are of no evidentiary value in establishing causal relationship
between a claimed condition and an employee’s federal employment, as such materials are of
general application and are not determinative of whether the specific condition claimed is related
to the particular employment factors alleged by the employee.17 Dr. Weiss did not sufficiently
explain how the medical literature applied to appellant’s specific circumstances.
As he failed to adequately explain how appellant’s additional left shoulder conditions were
causally related to the February 2, 2016 employment injury, the Board finds that Dr. Weiss’ reports
were insufficient to establish appellant’s claim.

13

S.S., id.; H.V., Docket No. 17-0492 (issued June 19, 2017); C.B., Docket No. 09-2027 (issued May 12, 2010).

14
M.G., Docket No. 16-0451 (issued March 17, 2017); see also Frank Luis Rembisz, 52 ECAB 147 (2000) (medical
opinions based on an incomplete history are of diminished probative value).
15

T.H., Docket No. 18-1736 (issued March 13, 2019).

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e)
(January 2013); G.G., Docket No. 18-0550 (issued October 1, 2018).
17
See A.G., Docket No. 18-0281 (issued July 12, 2018); R.O., Docket No. 08-1133 (issued October 8, 2008);
William C. Bush, 40 ECAB 1064, 1075 (1989) (excerpts from publications lack probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in the articles to the
specific factual situation in a case).

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On appeal counsel asserts that OWCP erred finding Dr. Weiss’ opinion insufficiently
rationalized to include additional left shoulder conditions when it used his opinion to accept the
condition of left shoulder humeral head subluxation. As discussed above, Dr. Weiss failed to
provide sufficient rationale explaining how the additional diagnosed left shoulder conditions had
been caused or aggravated by the accepted February 2, 2016 work injury
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include additional left shoulder conditions causally
related to the accepted February 2, 2016 work injury.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Cincinnati, OH, Employer
__________________________________________

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Appearances:
David Torchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2258
Issued: June 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 22, 2007 appellant filed a timely appeal from the May 25, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review this denial. The Board has no jurisdiction to review the Office’s July 25, 2005 merit
decision denying appellant’s claim for compensation, as more than a year has passed from the
date of that decision to the filing of this appeal.1
ISSUE
The issue is whether the Office properly denied appellant’s July 17, 2006 request for
reconsideration.

1

See 20 C.F.R. § 501.3(d)(2).

FACTUAL HISTORY
On April 24, 2005 appellant, then a 60-year-old mechanic, filed a claim alleging that he
suffered from stress as a result of harassment at work:
“What happened on April 21, 2005 was the last straw. I can’t take any more. I
have been harassed, intimidated, called a liar, was told I was dishonest and was
told I committed fraud and that’s just for starters. Things were written about me
in our shop area and some of my coworkers have told others I was committing
fraud. Gerald Adkins has made my life a living hell since February 17, 2005 the
day I returned to work.”
Appellant submitted more detailed statements to support his claim. Medical evidence
showed that he presented with complaints of chest pain. A clinical psychologist diagnosed
adjustment disorder with mixed anxiety and depression.
On February 28, 2005 the employing establishment issued to appellant a notice of
proposed removal for improper conduct, which read in part:
“On November 22, 2004 and again on December 17, 2004, I [Supervisor,
Maintenance Operations] informed you that limited-duty work was available for
your claimed job-related injury when you submitted your doctor notes. You
failed to inform your physician that limited-duty work was available. Without
this information the doctor placed you on full restrictions for two months. Had
the doctor had this information about limited-duty work being available, he would
not have put you on full restrictions. This is supported by the fact that[,] when the
doctor was finally told by the Postal Inspector that limited-duty work was
available, he changed your return to work date with restrictions without giving
you another examination. It is further supported by the video captured by the
Postal Inspector where you were clearly performing tasks that would have been
more strenuous than those that would have been assigned on limited duty. Your
actions were dishonest and cannot be tolerated.”
On April 7, 2005 the employing establishment issued a letter of decision finding that the
charge of improper conduct was fully supported by the evidence and warranted his removal.
Appellant filed a grievance. On April 15, 2005 the parties entered into a grievance resolution:
“To resolve this grievance, the ‘Notice of Proposed Removal’ dated February 28,
2005 and the ‘[l]etter of [d]ecision’ dated April 7, 2005 are reduced to a seven[d]ay (time off without pay) [s]uspension. This suspension was served the week
of April 9 [to] 15, 2005. [Appellant] will return to work on April 16, 2005.
Furthermore, it is agreed that the seven-[d]ay [s]uspension will be removed from
the grievant’s record on August 28, 2005 provided he does not receive any
additional discipline prior to this date.”
In a decision dated July 25, 2005, the Office denied appellant’s claim for compensation.
It found that he did not substantiate his allegations of harassment and consequently did not

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establish a compensable factor of employment. The Office noted: “you have not established,
beyond your mere perception, your employing establishment erred or abused their authority.
While the proposed removal was reduced to a suspension, the grievance resolution did not make
a finding that your employing establishment acted unreasonably.”
On July 17, 2006 appellant requested reconsideration. He argued that there was
substantial evidence of error, abuse and unreasonable behavior at the employing establishment.
Among other things, appellant argued that the manager of maintenance operations gave him an
improper letter of instruction dated May 16, 2005, a copy of which he attached:
“Subject: Letter of Instruction, Employee Rights and Responsibilities
“Please review the subject letter (attached) and follow it to the letter.
“You are herewith notified that the Postal Service has limited-duty work
available.
“It is your responsibility to notify your attending physician that limited duty is
available.
“Be assured, the Postal Service will follow the provisions of the Employee and
Labor Relations Manual (546.1411) so as to minimize any adverse effect on
you.”2
Appellant also submitted a November 17, 1982 memorandum from the Assistant
Postmaster General, Labor Relations Department:
“It has come to our attention through grievances appealed to Step 4 that local
managers in some areas are issuing ‘Letters of Information’ or ‘Letters of
Instruction’ to employees, bringing to their attention matters of concern to local
management about possible improprieties on the part of the employees. Such a
procedure is highly suspect and is an attempt to avoid the discussion process
provided in Article 16 of the National Agreement.
“The use of such letters serves no useful purpose as an element for consideration
in future actions against an employee, particularly when Article 16, Section 2,
places the responsibility on management to discuss minor offenses with the
employee.
“Letters of Instruction and Letters of Information or similar type missives are not
appropriate and will be discontinued immediately.”

2

A May 12, 2005 letter to appellant advised him of his rights and responsibilities, including his responsibility, if
limited-duty work was available and offered, to notify his attending physician and request specific limitations and
restrictions, and thereafter to immediately notify his supervisor, health unit or Shared Service Center of the
limitations and restrictions imposed by his physician.

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Appellant argued that the charge of improper conduct had no basis in fact, as his
physician completed a Form CA-17 stating “[l]imited[-d]uty is [a]vailable.” He argued that he
was never advised in writing of the specific duties and physical requirement of any limited-duty
work being made available. Appellant argued that it was undisputed that postal inspectors never
spoke to his physician but relied instead on a review of the medical file by the physician’s office
manager. Then, citing 20 C.F.R. § 10.506 (2005), he alleged there was a serious question
whether the postal inspector’s contact with a physician was permissible. Appellant contended
that no limited duty was in fact available on February 17, 2005 and that his trip to Las Vegas was
not inconsistent with his physician’s restriction that he not work. He characterized his removal
from employment frivolous and unwarranted.
To support error and abuse by the employing establishment, appellant that, while there
was no specific finding that the agency acted unreasonably when it fired him, “the facts speak for
themselves.” It is obvious, he stated, that when a dismissal is reduced to a mere seven-day
suspension, the termination is unreasonable. Citing decisions of the Merit Systems Protection
Board (MSPB), appellant argued that, when the MSPB sustains the charges in an adverse action
appeal but mitigates the penalty based on evidence before (or readily available to) the agency at
the time it took the action, an award of attorney fees is warranted in the interest of justice
because the agency knew or should have known that its choice of penalty would not be upheld.
He added that being forced to work beyond his restrictions, being charged with misconduct when
the supervisor knew there was no case, being called a “piece of shit” and a “thief,” being
threatened and abused by a supervisor, and being thrown out of the Union office all amounted to
a clear pattern of abuse and unreasonable behavior.
On March 23, 2007 the employing establishment responded to appellant’s request for
reconsideration. Appellant replied on May 1, 2007. He submitted an October 28, 2005 affidavit
from James R. Marshall, who stated that appellant’s supervisor, Mr. Adkins, told him that he
knew the employing establishment did not have a case against appellant for discharge. “Yes this
is what happened,” Mr. Marshall wrote. “I do [not] remember word for word what was said.”
In a decision dated May 25, 2007, the Office denied appellant’s request for
reconsideration without reviewing the merits of his case. The Office found that appellant did not
submit evidence of a relevant nature to warrant reopening his case for a merit review. The
Office found that the evidence he submitted did not provide additional factual information and
that appellant’s statements provided no new and relevant information not previously considered.
LEGAL PRECEDENT
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.3 The employee shall exercise this right through a request to
the district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”4

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605.

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An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.5
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.6 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.7 The regulatory requirement for reopening a claim for merit review does not include the
requirement that a claimant submit all evidence necessary to discharge his burden of proof. The
claimant need only submit evidence that is relevant and pertinent and not previously considered.8
“Relevant evidence” means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.9
ANALYSIS
Appellant is entitled to a merit review of his case under the third standard above. To
support his July 17, 2006 request for reconsideration, he submitted a November 17, 1982
memorandum from the assistant postmaster general advising that letters of instructions were
inappropriate and would be discontinued immediately. Appellant also submitted a May 18, 2005
letter of instruction he received from the manager of maintenance operations. This evidence is
new and was not previously considered. The evidence does not appear in the record prior to the
Office’s July 25, 2005 merit decision denying appellant’s claim.
This evidence is also relevant and pertinent. The Office denied appellant’s claim for
compensation because he failed to establish a factual basis for his allegations. Specifically, he
failed to show administrative error or abuse. The November 17, 1982 policy memorandum noted
that letters of instruction were inappropriate. Appellant’s receipt of a letter of instruction on
May 18, 2005, bears on a fact that is of consequence to the determination of his claim absent

5

Id. at § 10.606.

6

Id. at § 10.607(a).

7

Id. at § 10.608.

8

See Billy B. Scoles, 57 ECAB 258 (2005).

9

Fed. R. Evid. 401.

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evidence that the 1982 policy memorandum had been set aside.10 The Board finds that the
evidence submitted by appellant is relevant and pertinent to the grounds upon which the Office
denied his claim.
Appellant’s request for reconsideration contains evidence that constitutes relevant and
pertinent new evidence not previously considered by the Office. The Board will set aside the
Office’s May 25, 2007 decision denying reconsideration and will remand the case for merit
review.
CONCLUSION
The Board finds that the Office improperly denied appellant’s July 17, 2006 request for
reconsideration. The request meets at least one of the three standards for obtaining a merit
review of his case.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: June 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10

It is unknown whether the policy announced in 1982 was still in effect when appellant received his letter of
instruction, or whether Article 16 of the National Agreement still placed responsibility on management to discuss
minor offenses with the employee.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, GATEWAY
PERFORMANCE CLUSTER, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 12-1533
Issued: February 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 9, 2012 appellant filed a timely appeal from the May 11, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her reconsideration request.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this nonmerit decision. Because more than 180 days has
elapsed between the last merit decision of OWCP dated September 29, 2011 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In late 2009, OWCP accepted that appellant, then a 52-year-old city letter carrier,
sustained work-related bilateral tarsal tunnel syndrome, right tibialis tendinitis, other right-sided
calcaneus deformity and tenosynovitis of her left foot and ankle. Appellant stopped work on
September 9, 2008. On September 10, 2008 she underwent a calcaneal osteotomy, flexor
digitorum longus tendon transfer and tarsal tunnel release and, on January 23, 2009, she had
surgical hardware removed.
On August 29, 2011 Dr. Richard Katz, a Board-certified orthopedic surgeon serving as an
OWCP referral physician, determined that appellant had an eight percent permanent impairment
of her right leg and a seven percent permanent impairment of her left leg under the standards of
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009). He indicated that appellant had reached maximum medical
improvement on June 11, 2010.
In a September 29, 2011 award of compensation, OWCP granted appellant a schedule
award for eight percent permanent impairment of her right leg and seven percent permanent
impairment of her left leg. The award ran for 43.2 weeks from June 11 to April 9, 2011.
In a February 6, 2012 letter, appellant requested reconsideration of her claim. She
alleged various errors in OWCP’s September 29, 2011 schedule award decision, including errors
with respect to the degree of her leg impairment, the date of maximum medical improvement and
the period that the award ran. Appellant also argued that Dr. Katz’ second opinion medical
examination was incomplete or cursory in nature and that inadequate testing was performed. She
felt that Dr. Katz incorrectly found that she had no motor or sensory loss in her legs because he
did not perform the proper tests.
Appellant submitted a July 9, 2009 treatment note discussing the cause of her tarsal
tunnel condition, a January 5, 2010 physical therapy note detailing a therapy session and an
April 13, 2010 Form CA-17 describing work restrictions. She also submitted an August 9, 2011
treatment from Dr. Thomas Kirisits, an attending podiatrist, in which he discussed her pain
symptoms. In a January 12, 2012 letter, Dr. Kirisits discussed appellant’s work tolerances and
limitations, opined that she had impairment in both feet and stated that she reached maximum
medical improvement on February 17, 2010.
In a May 11, 2012 decision, OWCP denied appellant’s reconsideration request noting that
the submitted evidence and argument was repetitious or irrelevant to the main issue of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
2

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).

2

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file her application
for review within one year of the date of that decision.4 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.5 The Board has held that the submission of evidence or argument which
repeats or duplicates evidence or argument already in the case record6 and the submission of
evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.7 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.8
Physical therapists are not physicians under FECA and are not qualified to provide
opinions on medical matters.9
ANALYSIS
OWCP issued a merit decision on September 29, 2011.
reconsideration of this decision in a February 6, 2012 letter.

Appellant requested

As noted above, the Board does not have jurisdiction over the September 29, 2011
OWCP decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim.
In her application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. She did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument.
In a February 6, 2012 letter, appellant requested reconsideration of her claim. She
alleged various errors in OWCP’s September 29, 2011 schedule award decision, including with
respect to the degree of her leg impairment, the date of maximum medical improvement and the
period that the award ran. Appellant also argued that the second opinion medical examination
was incomplete or cursory in nature and that inadequate testing was performed.
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at C.F.R. § 10.608(b).

6

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

7

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

John F. Critz, 44 ECAB 788, 794 (1993).

9

Jane A. White, 34 ECAB 515, 518-19 (1983).

3

The Board notes that the underlying issue in this case was whether appellant met her
burden of proof to present medical evidence showing that she has more than an eight percent
permanent impairment of her right leg and a seven percent permanent impairment of her left leg.
That is a medical issue which must be addressed by relevant medical evidence.10 Thus,
appellant’s above-described arguments on medical matters are not relevant to the main issue of
this case.
A claimant may be entitled to a merit review by submitting new and relevant evidence,
but appellant did not submit any new and relevant medical evidence in this case.
Appellant submitted a July 9, 2009 treatment note, a January 5, 2010 physical therapy
note and an April 13, 2010 Form CA-17. These were duplicates of those in file at the time of the
previous decision and therefore would not require reopening of appellant’s case for merit
review.11 Furthermore, physical therapists are not defined as physicians under FECA and their
conclusions are not considered as medical evidence.12
Appellant submitted an August 9, 2011 treatment from Dr. Thomas Kirisits, an attending
podiatrist. The note does not provide an impairment rating and is irrelevant to the main issue of
this case. Therefore, it does not provide a basis for reopening the claim.
In a January 12, 2012 letter, Dr. Kirisits discussed appellant’s work tolerances and
limitations, opined that she had impairment in both feet and stated that she reached maximum
medical improvement on February 17, 2010. He did not provide an impairment rating. The
report is irrelevant to the issue of impairment and its submission is not a basis for reopening the
claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

11

See supra note 6.

12

See supra note 9.

13

On appeal, appellant questioned the number of weeks of wage-loss compensation she received. However, this
matter is not currently before the Board.

4

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard Heavey, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1341
Issued: December 20, 2016

Case Submitted on the Record

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

JURISDICTION
On June 14, 2016 appellant, through counsel, filed a timely appeal from a January 27,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated January 21, 2015 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 claim.

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 January 4, 2016 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 10, 2014 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 29, 2014 she sustained a heart attack at work. She
stopped work on January 30, 2014.
A police investigation report dated January 29, 2014 indicated that appellant had
collapsed on the edge of the street while delivering mail on her route. Witnesses related that
appellant was not hit by a car, rather she just collapsed. The police report noted that appellant
was transported via emergency medical services (EMS) to the hospital and it appeared that
appellant had a heart attack.
By letter dated February 28, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim and requested that she submit additional evidence to
demonstrate that the employment incident occurred as alleged and that she sustained a diagnosed
condition as a result of the incident. Appellant was afforded 30 days to submit the additional
evidence.
Appellant was initially examined in the emergency room by Dr. Cathy Jeon, a Boardcertified internist specializing in cardiovascular disease, who noted that appellant was
transported to the hospital after sustaining a ventricular fibrillation (VF) arrest while working as
a postal carrier for the employing establishment. She reported that electrocardiogram (EKG)
testing demonstrated ST elevations and T-wave inversions in inferior leads. A cardiac
catheterization lab was performed and revealed that appellant had total occluded right coronary
artery and a bare-metal stent was placed. Dr. Jeon reviewed appellant’s history and provided
findings on examination. She related that appellant would be admitted for further medical
management.
In a February 8, 2014 hospital discharge report, Dr. Maurizio Diaco, a Board-certified
internist specializing in cardiovascular disease, noted discharge diagnoses of ventricular
fibrillation arrest in the setting of an inferior myocardial infarction with right ventricular
component, single-vessel coronary artery disease, dyslipidemia, mild anoxic encephalopathy,
and pneumonia. He described the medical treatment appellant received at the hospital and her
laboratory data. Dr. Diaco listed appellant’s medication at discharge and noted that appellant
was advised to follow-up with her primary care physician.
OWCP denied appellant’s traumatic injury claim in a decision dated April 2, 2014. It
found that the evidence submitted was insufficient to establish that the January 29, 2014 incident
occurred as alleged and that she sustained a diagnosed medical condition causally related to the
alleged incident.

2

On May 13, 2015 OWCP received appellant’s reconsideration request. She resubmitted
her original Form CA-1 and hospital records. Appellant also provided a duty status report Form
CA-17 and an attending physician’s report Form CA-20 dated April 28, 2014 by Dr. Diaco, who
related that on January 29, 2014 appellant worked as a city letter carrier and sustained an acute
myocardial infarction. Dr. Diaco advised appellant to return to work in July 2014 with
restrictions.
In a June 10, 2014 work status note, Dr. Harris Ghaus, a Board-certified internist,
indicated that appellant could return to work on June 30, 2014 with restrictions of no lifting
above 30 pounds and no work for more than 8 hours per day.
By decision dated July 10, 2014, OWCP affirmed the April 2, 2014 decision with
modification. It accepted that the January 29, 2014 incident occurred as alleged and that she was
diagnosed with a myocardial infarction, but denied appellant’s claim finding that the medical
evidence submitted did not establish that her diagnosed condition resulted from the accepted
incident.
On November 20, 2014 appellant again request reconsideration. Appellant indicated that
she had a written statement from Dr. Diaco that demonstrated that her injury was a direct result
of her work.
In an October 28, 2014 narrative report, Dr. Diaco related that appellant had a recent
myocardial infarction in January. He opined that the event that happened on January 29, 2014
was related to a plaque rupture. Dr. Diaco explained that although there may have been some
preexisting plaque prior to the work event, working during cold weather and according to
appellant’s strenuous work on that specific day, did cause the plaque rupture. He reported that
this was a well-reported and documented phenomenon that the plaque in the coronary artery may
persist for years, but there is always a trigger that brings on the event. Dr. Diaco concluded that
appellant’s work activity in cold weather was the cause of her myocardial infarction and more
precisely was the trigger of a plaque rupture which caused the heart attack and the cardiac arrest.
In a decision dated January 21, 2015, OWCP denied modification of the July 10, 2014
decision. It found that the new medical report dated October 28, 2014 by Dr. Diaco provided
only speculative support for causal relationship and did not constitute rationalized medical
opinion evidence sufficient to establish causal relationship.
On January 4, 2016 appellant, through counsel, again requested reconsideration. Counsel
noted that he was providing a report by Dr. Ghaus who opined that appellant’s high blood
pressure had been under control since 2007 and could hardly have been a cause of her heart
attack. He also alleged that Dr. Diaco previously provided an opinion in his October 28, 2014
report that the cold weather and strenuous activity of appellant’s job caused her heart attack on
January 29, 2014. Counsel asserted that appellant did not have a long-standing history of
smoking or a history of heart problems in her family. He argued that the evidence of record
provided ample evidence that appellant’s preexisting condition became “disabling because of
aggravation causally related to employment.”

3

Appellant provided a print-out which demonstrated that the temperature on January 29,
2014 was a high of 24 degrees and low of 12 degrees. She also provided emergency room
records dated September 17, 2015 which indicated that she was treated that day for a twisted left
ankle by Dr. Brian Lawner, a Board-certified diagnostic radiologist, who noted a history of
myocardial infarction and conducted an examination. Dr. Lawner reported full range of motion
and tenderness over the left lateral malleolus. He diagnosed left ankle sprain and recommended
that appellant be excused from work for one week.
In a December 14, 2015 letter, Dr. Ghaus noted that appellant had been his patient since
2007 and was on medication for hypertension. He related that her blood pressure had been wellcontrolled since 2007.
In a January 15, 2016 letter, Dr. Diaco indicated that he was clarifying his statement
regarding the connection between appellant’s myocardial infarction on January 29, 2014 and the
physical activity in cold weather. He related that the connection between physical exertion in
cold weather to a myocardial infarction is not mere speculation, but is based on an extensive
body of medical research on cardiac event triggers. Dr. Diaco reported that based on his
evaluation of appellant, he felt comfortable in stating that the “sustained physical activity in very
cold weather was more likely than not the trigger of [appellant’s] myocardial infarction on
January 29, 2014.” He also included a partial statement from a medical note dated January 29,
2014 describing that appellant worked as a postal carrier and was on duty delivering mail when
she had a witnessed fall and collapsed. Appellant also resubmitted Dr. Diaco’s October 28, 2014
medical report.
By decision dated January 27, 2016, OWCP denied appellant’s request for
reconsideration, finding that she failed to submit any evidence sufficient to warrant further merit
review under 5 U.S.C. § 8128(a). It found that Dr. Diaco’s October 28, 2014 report was
previously considered by OWCP and that Dr. Ghaus’ December 14, 2015 report was irrelevant
and failed to address the particular issue of causal relationship.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.4

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).

4

A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
OWCP denied appellant’s request for reconsideration finding that no new medical
evidence was received that warranted further merit review. The Board notes, however, that
appellant submitted a medical report dated January 15, 2015 by Dr. Diaco. This report was
received by OWCP on January 26, 2016. Although appellant submitted this new medical
evidence in support of her reconsideration request, the Board finds that OWCP did not review
this new evidence from Dr. Diaco. In E.R.,8 the Board remanded the case on the issue of
OWCP’s denial of the claimant’s reconsideration request in order to determine whether medical
evidence that was received three days before OWCP issued its decision denying further merit
review and not reviewed by OWCP was sufficient to require further merit review of appellant’s
claim. Likewise, in this case, OWCP failed to address Dr. Diaco’s January 15, 2015 medical
report, which was received by OWCP one day before it issued its final January 27, 2016
decision. Because the Board’s jurisdiction of a case is limited to reviewing the evidence that was
before OWCP at the time of its final decision, it is critical that OWCP review all evidence
relevant to that subject matter and received by OWCP prior to the issuance of its final decision.9
The Board finds that this case is not in posture for decision. The Board will set aside the
January 27, 2016 decision denying appellant’s reconsideration request and remand the case to
OWCP for consideration of the evidence in order to determine whether this evidence required
further merit review of appellant’s claim.
CONCLUSION
The Board finds that the claim is not in posture for decision regarding whether OWCP
properly denied appellant’s reconsideration request.

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

Docket No. 15-1655 (issued December 18, 2015).

9

See E.Z., Docket No. 14-274 (issued March 16, 2015); Linda Johnson, 45 ECAB 439 (1994); William A. Couch,
41 ECAB 548 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision of the Board.
Issued: December 20, 2016
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1656
Issued: June 2, 2021

Case Submitted on the Record

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

JURISDICTION
On September 23, 2020 appellant, through counsel, filed a timely appeal from a July 15,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
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
Appellant through counsel submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b).
Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R.
§ 501.5(a). In support of appellant’s oral argument request, he asserted that oral argument should be granted because
it would provide appellant an opportunity to explain to the Board significant recurring issues he sought to resolve.
The Board, in exercising its discretion, denies appellant’s request for oral argument because this matter requires an
evaluation of the medical evidence presented. As such, the arguments on appeal can adequately be addressed in a
decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board
decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on
the case record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 31
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On March 27, 2017 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that factors of his federal employment contributed to his right
hip osteoarthritis. He noted that he became aware of his condition and realized that it was caused
or aggravated by his federal employment on February 8, 2017. OWCP accepted the claim for
permanent aggravation of preexisting degenerative joint disease, right hip. Appellant did not
immediately stop work.
On April 17, 2015 appellant underwent a computerized tomography (CT) scan of the lower
extremity, which revealed moderate-to-severe osteoarthritis of the right hip.
On April 27, 2015 Dr. Susan M. Chabot, a Board-certified orthopedist, performed an
OWCP-approved right total hip replacement and diagnosed end-stage arthritis of the right hip.
On November 15, 2018 appellant filed a claim for a schedule award (Form CA-7). In
support of his claim, he submitted an October 17, 2018 impairment evaluation from Dr. Byron V.
Hartunian, a Board-certified orthopedic surgeon. Dr. Hartunian provided right hip examination
findings, noting no discomfort at the combined flexion and rotation. He reported that the range of
motion (ROM) of right hip was measured with a goniometer and performed three times with the
highest range recorded, which amounted to 103 degrees flexion, 8 degrees extension, 12 degrees
internal rotation, 23 degrees external rotation, 35 degrees abduction, and 22 degrees adduction.
Dr. Hartunian diagnosed status post right total hip replacement for end stage degenerative arthritis
and determined that appellant reached maximum medical improvement (MMI).
In accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides),4 Table 16-4 on page 515, he identified
the class of diagnosis (CDX) as class 3 hip replacement with a default impairment value of 37
percent. When determining the impairment class, Dr. Hartunian noted a class 3 CDX was used
for total hip replacement due to mild motion deficit based on the right hip ROM findings of 103
degrees flexion, 12 degrees internal rotation, and 23 degrees external rotation.5 He discussed grade
modifiers and explained that a grade modifier for functional history (GMFH) would amount to
zero, as appellant ambulates without a limp. Dr. Hartunian reported that appellant’s American
3

5 U.S.C. § 8101 et seq.

4

A.M.A., Guides (2009).

5

Id. at 549, Table 16-24.

2

Academy of Orthopedic Surgery (AAOS) Lower Limb Questionnaire indicated a grade two
modifier due to moderate deficit, explaining that the higher grade modifier should be used in the
calculation based on the A.M.A., Guides.6 He did not assign a grade modifier for physical
examination (GMPE) as it was used to determine class placement. Dr. Hartunian further explained
that grade modifier for clinical studies (GMCS) was excluded from the net adjustment formula as
postoperative x-rays taken at the one year follow-up merely confirmed the diagnosis. He noted
that when the GMFH differs by two or more, from the clinical study adjustment or physical
examination adjustment modifiers, both not applicable (N/A) for purpose of modifier
determination, the functional history adjustment is considered unreliable and excluded from the
calculation. Dr. Hartunian utilized the net adjustment formula which resulted in a grade C default
value of 37 percent permanent impairment of the right lower extremity. Dr. Hartunian determined
that MMI was reached on July 22, 2015, the date he returned to work after having been evaluated
by Dr. Chabot with x-rays confirming good position of the prosthesis.
In a July 18, 2019 report, Dr. Michael M. Katz, an OWCP district medical adviser (DMA),
reviewed Dr. Hartunian’s October 17, 2018 report and disagreed with his findings. In arriving at
his impairment determination, Dr. Hartunian asserted that the GMCS and GMPE were used for
grid placement and were therefore excluded from the net adjustment calculation. He assigned a
value of zero for these studies, asserting that this established a net difference of two or more from
his GMFH of 2, and excluded the GMFH from the net adjustment calculation, leaving no grade
modifiers and a default value of 3C. The DMA opined that this application was not consistent
with the methodology set forth by the A.M.A., Guides. He opined that the x-rays described by
Dr. Hartunian show “good position” of the prosthesis, which meets the criterion for a GMCS of 2
and was not used for grid placement, as the key factor in the GMCS of 3 grid placement per
Dr. Hartunian.7 The DMA further noted that the fact that a grade modifier was excluded from the
net adjustment calculation does not reduce its value to zero noting that this logic was not supported
by the A.M.A., Guides. Dr. Katz assigned a CDX of 3 for right hip arthroplasty with a fair result,
and applying the net adjustment formula he calculated 31 percent permanent impairment of the
right lower extremity.8
In a report dated November 1, 2019, Dr. Hartunian reviewed the DMA’s recommendation
and disagreed with the 31 percent impairment rating of the right hip. He asserted that the GMCS
was properly noted as “N/A” finding that clinical studies should be excluded as they were used to
merely confirm the diagnosis, to assess prosthesis positioning in class placement or use of clinical
study x-ray interval analysis, which was not appropriate in arthroplasty situations. Dr. Hartunian
indicated that the A.M.A., Guides has many inconsistencies and the proper application of the
GMCS in the lower extremity arthroplasty situation is one example. He further disagreed with the
DMA with regard to whether exclusion from the net adjustment calculation reduces its value to
zero.
6

Id. at 515, Table 16-4.

7

The GMPE, range of motion deficit, was a key factor in the Grade 3 grid placement and would not be used in the
net adjustment formula. The GMFH would be 2 for a moderate problem.
8
Applying the net adjustment formula: (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) = (2-3) + (N/A) + (2-3)
= -2 or 31 percent impairment.

3

On November 6, 2019 OWCP identified a conflict in medical opinion between
Dr. Hartunian for appellant and the DMA.
OWCP referred appellant to Dr. Alan Solomon, a Board-certified orthopedic surgeon, for
an impartial medical examination on December 4, 2019 to resolve the conflict in the case. In his
December 4, 2019 report, Dr. Solomon reported that ROM of right hip was measured with a
goniometer and performed three times with the highest range recorded. He noted that right hip
ROM testing revealed 105 degrees flexion, 10 degrees extension, 10 degrees internal rotation, 25
degrees external rotation, 30 degrees abduction, and 10 degrees adduction. Dr. Solomon further
noted a well-healed surgical wound, no pain swelling or tenderness in the groin or outer hip area,
no palpatory findings or swelling or inflammation in the groin or hip surgical area, no clicking,
cracking or thigh atrophy, and no antalgic gait. He reported that impairment was assessed based
upon the need for a hip replacement. Dr. Solomon assigned a CDX of 3 for total hip replacement
with fair results.9 He assigned a GMFH of 1, GMPE of 1, and found that GMCS was not
applicable. Dr. Solomon utilized the net adjustment formula, which resulted in a grade A or 3110
percent permanent impairment of the right lower extremity.11
By decision dated July 15, 2020, OWCP granted appellant a schedule award for 31 percent
permanent impairment of the right lower extremity. It indicated that the special weight of medical
evidence rested with Dr. Solomon, serving as the impartial medical examiner (IME), who
indicated that appellant had no more than 31 percent permanent impairment of the right lower
extremity. The period of the award ran from December 4, 2019 through August 19, 2021.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.12 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate

9
Dr. Solomon opined that the level of impairment could be a Class 2 or Class 3. He indicated that since both
examiners, Dr. Katz and Dr. Hartunian agreed on Class 3 and he agreed with this determination.
10

Applying the net adjustment formula: (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) = (1-3) + (1-3) + (N/A)
= -4 or 31 percent impairment.
11

Id. at 515, Table 16-4.

12

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

standard for evaluating schedule losses.13 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the hip, the relevant portion of the leg for the present case, reference
is made to Table 16-4 (Hip Regional Grid) beginning on page 512.15 After the class of diagnosis
(CDX) is determined from the Hip Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.17
For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”18 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.19
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 31
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
OWCP properly found a conflict in the medical opinion evidence between appellant’s
attending physician, Dr. Hartunian, and the DMA, regarding permanent impairment of the right
lower extremity due to his accepted hip injury. It referred appellant’s case to Dr. Solomon pursuant
to 5 U.S.C. § 8123(a) for an impartial medical examination in order to resolve the conflict in
medical opinion. In his December 4, 2019 report, the IME, Dr. Solomon, reviewed appellant’s
history of injury, the relevant medical evidence, and provided physical examination findings. He
noted appellant’s accepted permanent aggravation of preexisting degenerative joint disease, right
hip. Dr. Solomon assigned a CDX of 3 for total hip replacement with fair results, he assigned a
13
20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (March 2017).
15

A.M.A., Guides 512-15.

16

Id. at 515-22.

17

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18

C.H., Docket No. 18-1065 (issued November 29, 2018.

19

W.M., Docket No. 18-0957 (issued October 15, 2018).

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GMFH of 1 and a GMPE of 1, and found that a GMCS was not applicable. Dr. Solomon utilized
the net adjustment formula, which resulted in a grade A or 31 percent permanent impairment of
the right lower extremity. Dr. Solomon indicated that there was nothing in the medical record to
suggest a greater impairment of the right lower extremity.
As noted above, when a case is referred to an IME for the purpose of resolving the conflict,
the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.20 The Board finds that Dr. Solomon’s December 4,
2019 report is entitled to special weight and established that appellant had 31 percent permanent
impairment of the right lower extremity.21 Dr. Solomon’s opinion was based on a proper factual
and medical history, which he reviewed, and on the proper tables and procedures in the A.M.A.,
Guides. He based his impairment rating on the medical evidence in the record, correctly applied
the A.M.A., Guides and provided medical rationale for his impairment rating.22 As appellant has
not provided a rationalized medical opinion sufficient to overcome the special weight accorded to
Dr. Solomon’s impairment rating, the Board finds that he has not established more than 31 percent
permanent impairment of his right lower extremity due to his accepted right hip condition.
On appeal, counsel argues that OWCP’s decision was contrary to fact and law. He asserted
that Dr. Solomon’s rating was improperly based on his physical examination findings on
December 4, 2019 rather than the data considered by Dr. Hartunian and the DMA. Appellant
asserts that the original conflict has not been resolved by Dr. Solomon and that appellant has been
denied due process. The Board finds this argument without merit. The governing statute in this
case, 5 U.S.C. § 8123(a), clearly states that when there is disagreement between an OWCPdesignated physician and the employee’s physician, OWCP shall appoint a third physician who
shall make an examination. As explained above, The Board finds that OWCP properly found a
conflict in the medical opinion evidence between Dr. Hartunian and the DMA and the special
weight of the medical evidence rests with the IME Dr. Solomon. Accordingly, appellant has not
met his burden of proof to establish that he is entitled to a schedule award greater than that
previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 31
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.

20

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

21

D.S., Docket No. 18-0336 (issued May 29, 2019); T.C., Docket No. 17-1741 (issued October 9, 2018).

22

See D.B., Docket No. 17-0930 (issued July 11, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 2, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer.
__________________________________________

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

Docket No. 11-2033
Issued: September 21, 2012

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 September 13, 2011 appellant, through his attorney, filed a timely appeal of an
August 12, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying
modification of its decision terminating benefits and denying continuing compensation benefits.
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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation and
medical benefits effective July 18, 2006 on the grounds that his accepted condition had resolved;
and (2) whether appellant met his burden of proof to establish that he had any disability or
condition after July 18, 2006 causally related to the accepted employment injury.
On appeal appellant, through counsel, contends that OWCP’s decision is contrary to fact
and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decisions are hereby incorporated by reference. The relevant
facts are set forth.2
OWCP accepted that on January 7, 1983 appellant, then a 34-year-old clerk, sustained a
right knee contusion and synovitis, meniscus tear and permanent aggravation of degenerative
disease of the right knee; OWCP File No. xxxxxx245. It also accepted appellant’s claim for a
March 5, 1984 injury for cervical sprain/strain, right shoulder contusion, lumbosacral strain and
lumbar herniated nucleus pulposus; OWCP File No. xxxxxx710. OWCP combined the cases
under the File No. xxxxxx245.
On July 18, 2006 OWCP terminated appellant’s wage-loss compensation and medical
benefits finding that the weight of the medical evidence established that the injury-related
conditions had resolved. It noted that a conflict in medical opinion arose between appellant’s
treating physicians and the second opinion physician, Dr. Martyn A. Goldman, a Board-certified
orthopedic surgeon. OWCP referred appellant to an impartial medical examiner, Dr. Stanley
William Collis, a Board-certified orthopedic surgeon, who determined that appellant’s
employment-related conditions had resolved. In the Board’s decision of December 19, 2008,3
the Board affirmed OWCP’s termination of medical and compensation benefits effective
July 18, 2006. The Board further found that appellant had not met his burden of proof to
establish that he had any continuing disability after July 18, 2006.
On December 21, 2006 appellant underwent a right total knee replacement.
On June 19, 2007 OWCP denied modification of its prior decision.
In an August 13, 2007 report, Dr. Stacie L. Grossfeld, a Board-certified orthopedic
surgeon, stated that appellant was a patient of hers who had a history of work-related injuries in
1983 and 1984 that resulted in end-stage osteoarthritis, which resulted in knee replacement
surgery. She opined that this was directly related to his work-related injuries and his current
condition. Dr. Grossfeld concluded that appellant was unable to currently work and was totally
disabled.
On September 7, 2007 OWCP denied appellant’s request for reconsideration without
merit review.
2

See Docket No. 06-1869 (issued March 17, 2006). The Board found that OWCP’s decision denying appellant’s
request for reconsideration of the denial of his emotional condition or injuries to his jaw and ankle was untimely
filed and failed to demonstrate clear evidence of error. Docket No. 03-1382 (issued November 28, 2003) (Order
Dismissing Appeal as identical issues were addressed by the Board in Docket No. 03-1276); Docket No. 03-1276
(issued October 23, 2003). The Board found that appellant had not established that he sustained injuries to his jaw
and ankle or an emotional condition causally related to the accepted injuries. Further, the Board affirmed OWCP’s
decision denying reconsideration. Docket No. 00-2068 (issued June 3, 2002). The Board remanded the case for
OWCP to consider appellant’s request for reconsideration as it was timely filed.
3

Docket No. 08-780 (issued December 19, 2008).

2

In a September 28, 2007 report, Dr. George H. Raque, a Board-certified neurologist,
stated that appellant had been followed in his office for neck problems related to an old work
injury, for which he recently underwent cervical discectomy and fusion. He stated that, while it
appeared that appellant was doing well postoperatively, he could not go back to work because of
the recent surgery and knee problems. Dr. Raque noted that appellant was disabled from work
and would remain so for the foreseeable future.
In a decision dated December 20, 2007, OWCP determined that the evidence submitted
was insufficient to warrant a merit review of the June 19, 2007 decision.
By decision dated December 19, 2008, the Board found that OWCP met its burden of
proof to terminate appellant’s compensation and medical benefits effective July 18, 2006. The
Board also found that appellant had not met his burden of proof to establish that he had any
continuing employment-related medical condition or disability after July 18, 2006. The Board
further found that OWCP properly denied appellant’s requests for further merit review of the
claim.4
By letter dated January 12, 2010, appellant, through his attorney, requested
reconsideration. OWCP, in a decision dated March 24, 2010, denied appellant’s request for
reconsideration as it was not timely filed and failed to establish clear evidence of error.
In a decision dated April 26, 2011, this Board found that appellant had established clear
evidence of error as the statement of accepted facts was defective. OWCP failed to inform the
second opinion physician, Dr. Goldman, and the impartial medical examiner, Dr. Collis, that
appellant’s claim had been accepted for permanent aggravation of degenerative joint disease of
the right knee. Accordingly, the Board remanded the case for further merit review.5
On remand, appellant submitted an October 12, 2009 progress report by Dr. Raymond G.
Shea, a Board-certified orthopedic surgeon, who noted that appellant was still in pain and had
discomfort in his knees from the workers’ compensation injury. Dr. Shea noted that, when
appellant fell, he injured both his knees and neck, which progressed to severe degenerative
changes requiring total knee replacements. Appellant also submitted reports related to his
cardiac condition and others previously of record.
On May 19, 2011 OWCP referred appellant to Dr. Nino R. Lentini, a Board-certified
orthopedic surgeon, for a second opinion. In the new statement of accepted facts, it specifically
included the accepted conditions for both the 1983 and 1984 employment injuries, which
included permanent aggravation of degenerative joint disease, right knee, the condition initially
omitted. In a June 13, 2011 report, Dr. Lentini opined that the aggravation of appellant’s
degenerative joint disease in his right knee had resolved. He noted that appellant had a wellhealed right knee replacement and that he is pain free and stable. Dr. Lentini opined that any
remaining conditions were due to the natural aging process and appellant’s excessive weight. He
opined that appellant could not return to work at his regular-duty position as a distribution clerk
4

Docket No. 08-780 (issued December 19, 2008).

5

Docket No. 10-1362 (issued April 26, 2011).

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with the employing establishment because of his weight, his knee replacement and his neck
surgery all operate to limit his ability to lift, bend, twist, climb, stoop, squat, crouch and limit his
endurance, although he did believe that appellant could return to work in a sit-down position.
OWCP asked for clarification, and in a July 8, 2011 report, Dr. Lentini noted that the accepted
work conditions had resolved and no longer exist and that the only remaining conditions were
not due to work injuries but rather due to his excessive weight and the natural aging process.
By decision dated August 12, 2011, OWCP denied modification of its prior decisions.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
OWCP’s burden of proof in terminating compensate includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.7 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition which requires further medical treatment.8
ANALYSIS
OWCP accepted appellant’s claims for right knee contusion, synovitis, meniscus tear and
permanent aggravation of degenerative disease of the right knee, cervical sprain/strain and right
shoulder contusion. It terminated appellant’s compensation and medical benefits effective
July 18, 2006 as it found that the weight of the medical evidence established that appellant’s
employment-related medical conditions had resolved. Although this decision was initially
affirmed by the Board on December 19, 2008,9 on a subsequent appeal it was determined that
clear evidence of error existed as OWCP failed to inform the second opinion physician,
Dr. Goldman, and the impartial medical examiner, Dr. Collis, that appellant’s claim had been
accepted for permanent aggravation of degenerative disease of the right knee.10 Subsequent to
the Board’s decision, OWCP referred appellant for a second opinion examination by Dr. Lentini,
who concluded that appellant’s accepted work conditions have resolved. Based on the opinion
of Dr. Lentini, OWCP denied modification of its prior decision terminating appellant’s
compensation effective July 18, 2006 and finding that appellant had not established continuing
disability or residuals after that date.
The Board finds that OWCP’s termination of benefits must be reversed. The Board’s
April 26, 2011 decision found that appellant had established clear evidence of error in OWCP’s
6

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

7

Gewin C. Hawkins, 52 ECAB 242 (2001).

8

M.D., Docket No. 11-1737 (issued April 3, 2012); Calvin S. Mays, 39 ECAB 993 (1988).

9

Docket No. 08-780 (issued December 19, 2008).

10

Docket No. 10-1362 (issued April 26, 2011).

4

termination of benefits because the statement of accepted facts was defective. At the time the
Board remanded the case to OWCP, there remained an unresolved conflict in medical opinion
due to the defective statement of accepted facts. On remand, OWCP should have sent appellant
to a new impartial medical examiner with a corrected statement of facts. Instead, it sent
appellant for a new second opinion.
Pursuant to 5 U.S.C. § 8123(a), there is a disagreement between the physician making the
examination for the United States and the physicians of the employee. OWCP should have
referred appellant to an impartial medical specialist.11 Without a resolution of the conflict, the
Board finds that OWCP improperly denied modification of its termination decision.12
CONCLUSION
The Board finds that OWCP did not meet its burden of proof.
ORDER
IT IS HEREBY ORDERED THAT the August 12, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 21, 2012
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

11

See M.D., Docket No. 11-928 (issued December 1, 2011).

12

Due to the disposition of the termination issue, the remaining issue is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN D. DINGELL MEDICAL CENTER,
Detroit, MI, Employer
__________________________________________

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

Docket No. 10-129
Issued: July 15, 2010

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 October 19, 2009 appellant, through her representative, filed a timely appeal from the
September 24, 2009 nonmerit decision of the Office of Workers’ Compensation Programs, which
denied her request for reconsideration as untimely and failing to demonstrate clear evidence of
error. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this
denial.
ISSUE
The issue is whether the Office properly denied appellant’s June 29, 2009 request for
reconsideration, as untimely filed and failing to demonstrate clear evidence of error.

FACTUAL HISTORY
On the prior appeal,1 the Board found that the Office properly denied appellant’s
November 9, 2007 request for reconsideration of its most recent merit decision on
March 4, 2005. The Board found that her request was untimely and failed to show clear
evidence of error in the Office’s March 4, 2005 decision, which denied her claim for
compensation because she did not meet her burden of proof to establish a compensable factor of
employment.2 T he facts of this case as set forth in the Board’s prior decision are hereby
incorporated by reference.
On June 29, 2009 appellant requested reconsideration. As a general matter, she noted
that she was providing new material evidence, which she stated was a requirement to reopen a
claim. Appellant argued there were “innumerous errors in her record that had to be corrected.”
She argued that, when she claimed compensation benefits, the employer disregarded Office
policy, procedures, rules and regulations, which led to the Office disregarding its policy,
procedures, rules and regulations. Appellant requested that the Department of Labor Attorney
General Office investigate her case because of a fraudulent document the employer submitted
stating that she returned to work in a light-duty capacity and lost no time from work. She
explained that she was off work for six months and was never given light duty.
Appellant cited Board precedent for several propositions of law and asked that the Board
make an exception to the rule that an appellant may not reargue her case in the guise of a petition
for reconsideration. She submitted exhibits A through J. Summarizing each, appellant intended
to show that the employer denied her requested work release and disapproved her sick leave for
insufficient medical documentation and that she was put in an absent-without-leave status. She
submitted the deposition of her psychologist and a summary of her telephonic prehearing
conference before the Merit Systems Protection Board, which she stated showed that the
employer had full knowledge of her depression and diabetes and had knowledge of her doctor’s
request for reasonable accommodation to work only one shift. Appellant also submitted a
proposed removal, a deposition of a psychiatrist the employer made her see before returning to
work, the employer document stating that she returned to work in a light-duty status and lost no
time from work, her claim form showing she was disabled for work and her own review of the
entire case record.
In a decision dated September 24, 2009, the Office denied appellant’s June 29, 2009
request for reconsideration. It found that her request was untimely and failed to present clear
evidence of error in the Office’s most recent merit decision on March 4, 2005.

1

Docket No. 08-492 (issued November 5, 2008), petition for recon. denied, April 17, 2009.

2

On February 10, 2004 appellant, then a 42-year-old nursing assistant, filed a claim alleging stress as a result of
her federal employment.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretion to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may
(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
The Office, through regulations, has imposed limitations on the exercise of its discretion
under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of the Office decision for
which review is sought. The Office will consider an untimely application only if the application
demonstrates clear evidence of error on the part of the Office in its most recent merit decision.
The application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5
ANALYSIS
As the Board noted on the prior appeal, the most recent decision on the merits of
appellant’s case was the Office’s March 4, 2005 decision affirming the denial of her claim. The
Office denied her claim because she did not meet her burden of proof to establish a compensable
factor of employment. Appellant did not prove her allegations that she was harassed, threatened
or treated disparagingly at work.
The appeal rights attached to the Office’s March 4, 2005 decision explained that she had
one year, or until March 4, 2006, to request reconsideration. The Board finds that appellant’s
June 29, 2009 request for reconsideration is therefore untimely. Appellant missed the deadline
by over three years.
Because her June 29, 2009 request is untimely, appellant faces a difficult burden of proof.
It is not enough for her to submit new material evidence. The only way appellant may compel
the Office to reopen her case and once again review the merits of her claim is to submit positive,
unquestionable proof that she was harassed, threatened or treated disparagingly at work. This
cannot be evidence that only raises a question of harassment, or could be interpreted to show
threats, or merely tends to support disparaging treatment. The evidence must be so convincing
on its face as to put the matter to rest. Evidence such as a final decision from the Merit Systems
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

3

Protection Board or Equal Employment Opportunity Commission finding that appellant was in
fact harassed or threatened in the workplace could establish a compensable factor of employment
and show clear evidence of error in the Office’s March 4, 2005 decision. However, the evidence
she submitted to support her untimely request for reconsideration falls far short of that standard.
Appellant’s June 29, 2009 request for reconsideration is largely repetitious of her
previous requests and her petition for reconsideration of the Board’s prior decision. She focused
on what she described as innumerous errors in her case record, many of which relate to how the
employer and the Office have handled her claim for compensation. This misses the point.
Appellant’s focus should be on the reason the Office denied her claim on March 4, 2005 and on
the need to submit documented proof of harassment, threats or disparaging treatment.
Evidence that the employer denied sick leave for insufficient medical documentation and
continued appellant in an absent-without-leave status does not prove administrative error. The
employer explained to appellant what medical documentation was necessary.
The testimony of appellant’s psychologist does not prove harassment or threats or
disparaging treatment. Asked whether the truth or falsity of the stressor matters when a person is
dealing with her perception of what is going on, the psychologist explained that, if the person
believes she is being harassed, “that’s going to be a significant stressor,” whether appellant is
being harassed or not. This goes to the heart of the problem with appellant’s untimely request
for reconsideration. She cannot meet her burden to show clear evidence of error by submitting
perception-based evidence. The harassment or threats must be independently documented, an
indisputable and established fact. The history appellant related to her psychologist no doubt
reflects her perception of what happened at work, but it does not establish that harassment or
threats occurred as a matter of fact.
The summary of appellant’s telephonic prehearing conference before the Merit Systems
Protection Board stipulated that two people at the employing establishment were aware of her
depression and diabetes. Without more, this does not prove administrative error in denying her
request to be assigned to a single workshift without a variation of work hours, nor does it prove
disability discrimination.
Appellant submitted a proposed removal for her inability to maintain a regular work
schedule, or for being absent from duty approximately 22.5 percent of the time from 2001 to
2004, which had a negative impact on the efficiency of her work unit. However, she did not
submit proof that the proposed removal was in error.
As for the deposition of the psychiatrist, no history that appellant related to him can
establish as factual her perception of harassment at work, nor does his testimony on holding her
off work establish administrative error by the employer. As the Board mentioned earlier, the
employer explained to appellant what medical documentation was needed to support disability
for work.
Appellant’s disability status -- whether she returned to work in a light-duty status and lost
no time from work or whether her claim form indicated she was disabled for work -- is
immaterial. It has no bearing on whether harassment or threats or disparaging treatment or any

4

other compensable factor of employment actually occurred as a matter of fact. Appellant’s own
synopsis and review of the case record does not supply the documentation necessary to establish
a compensable factor of employment and the Board precedent appellant cited to support several
propositions of law are the same citations she made in her previous petition for reconsideration.
They do not discharge her burden of showing clear evidence of error.
Because appellant’s untimely request for reconsideration fails to show clear evidence of
error in the Office’s March 4, 2005 decision, the Board will affirm the Office’s September 24,
2009 decision denying that request.
CONCLUSION
The Board finds that the Office properly denied appellant’s June 29, 2009 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2010
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

5