United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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

Docket No. 14-1110
Issued: September 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 14, 2014 appellant filed a timely appeal from an October 17, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied her request for
reconsideration because it was untimely filed and did not establish clear evidence of error. As
there is no merit decision regarding the issue on appeal that was issued within 180 days of the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
1

20 C.F.R. § 501.3(e).

2

5 U.S.C. §§ 8101-8193.

On appeal, appellant asserts that additional conditions should be accepted, including an
emotional condition and that the second opinion and impartial evaluations should be disregarded.
FACTUAL HISTORY
On July 9, 2009 appellant, then a 51-year-old part-time transportation security officer
(screener), sustained employment-related sprains of the thoracic and lumbar regions of the back.3
The claim was adjudicated by OWCP under file number xxxxxx366. Appellant returned to
modified duty for four hours a day on October 3, 2009 and to her regular part-time duty of five
hours a day on November 1, 2009. On November 29, 2009 she sustained a second injury,
accepted for aggravation of lumbar sprain. OWCP adjudicated the November claim under file
number xxxxxx394. On January 12, 2010 it doubled the claim files, with number xxxxxx394
becoming the master file. Appellant returned to modified duty, four hours per day on
February 23, 2010.
In June 2010, OWCP referred appellant to Dr. David S. Whitney, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a July 21, 2010 report, Dr. Whitney
noted the history of employment injuries, her current complaints, his review of the medical
record including lumbar x-rays and a December 18, 2009 magnetic resonance imaging (MRI)
scan of the lumbar spine. He discussed appellant’s findings on physical examination and advised
that her back examination was normal both clinically and radiographically and that bilateral hip
examination and neurological examination of both legs were normal. Dr. Whitney diagnosed
low back strain of July 14, 2009 with a temporary exacerbation on December 3, 2009.4 He found
that appellant’s work-related conditions had resolved and she could return to work with no
restrictions.
In an October 15, 2010 decision, OWCP terminated appellant’s medical and wage-loss
benefits, effective October 16, 2010, based on Dr. Whitney’s report.
Appellant timely requested a hearing that was held on March 31, 2011. She submitted a
December 18, 2009 MRI scan study of the lumbar spine that demonstrated mild spondylosis and
a small disc protrusion at L4-5 with no neural compression. A December 10, 2010 lumbar MRI
scan study noted that the small protrusion previously seen was not seen on the current
examination. An April 19, 2011 MRI scan of the thoracic spine demonstrated a disc protrusion
at T8-9. A November 18, 2010 electrodiagnostic study showed reduced amplitude of the
bilateral peroneal and tibial nerves. In treatment notes and reports dated April 27, 2010 to
April 25, 2011, Dr. Cheryl Hayes, a Board-certified physiatrist, described appellant’s condition
and care. In a report dated February 27, amended on March 15, 2011, Dr. Hayes advised that
appellant had a pain impairment residual of the employment injuries. In a consultation report
dated April 12, 2011, Dr. Brian Iuliano, a Board-certified neurosurgeon, diagnosed
thoracolumbar strain and pain and L4-5 disc herniation with mild stenosis. He advised that
appellant had significant chronic pain related to the employment injury.
3

Appellant’s part-time schedule was 9:00 a.m. to 2:00 p.m. Monday through Friday for 25 hours per week.

4

December 3, 2009 was actually the day appellant filed the traumatic injury claim for the November 29, 2009
employment injury.

2

Barbara Dahl, Ph.D., a licensed clinical psychologist, provided evaluations dated April 19
and 20, 2011. She described the employment injuries,5 appellant’s employment history and her
complaints of radiating back pain. Dr. Dahl indicated that appellant was terminated by the
employing establishment on April 13, 2011 because she could not perform essential functions of
the job. Following psychological testing, she diagnosed major depressive disorder, recurrent,
moderate; pain disorder associated with both psychological factors and a general medical
condition; and anxiety disorder, not otherwise specified. Dr. Dahl concluded that, since
appellant was functioning adequately and did not have pain issues prior to her employment
injuries, on a more probable than not basis, her mental health issues were attributable to the work
injuries.6
In a June 28, 2011 decision, a hearing representative found that OWCP met its burden to
terminate appellant’s benefits effective October 16, 2010 based on Dr. Whitney’s opinion. He
found that, based on newly submitted evidence, a conflict in medical opinion as to whether she
continued to be disabled due to the 2009 employment injuries. On remand, OWCP was directed
to refer appellant for an impartial evaluation and an opinion on whether the claim should be
expanded to include other conditions.
In November 2011, OWCP referred appellant to Dr. Edward DeVita, a Board-certified
neurologist, for an impartial evaluation. Dr. DeVita was provided a statement of accepted facts,
the medical record and a set of questions. The conflict statement advised that a conflict had been
created between the opinions of Dr. Whitney and Dr. Hayes regarding whether appellant had
residuals of the accepted November 29, 2009 employment injury and whether she had additional
back conditions as a result of this injury.
In a report dated January 9, 2012, Dr. DeVita stated that he had examined appellant on
November 21, 2011. He noted both employment injuries and the accepted conditions and her
complaint of bilateral hand pain, numbness and tingling; moderate-to-severe bilateral leg pain,
numbness and tingling; right flank pain; severe back pain; and headaches. Dr. DeVita reviewed
the conflict statement and medical record. He advised that neurologic examination was
somewhat limited as appellant remained in a standing position due to complaints of pain.
Sensory examination demonstrated nonanatomic dysesthesias throughout the entire upper and
lower extremities. Gait was normal with no significant atrophy of the calves and sides and no
sudomotor or vasomotor changes were noted. In answer to specific OWCP questions,
Dr. DeVita advised that, from an objective point of view, appellant had no abnormalities, noting
normal imaging studies for age. He concluded that, from an objective point of view, she was
fully recovered from both injuries, without any physical limitations, but had not recovered
subjectively, based on her complaints. Dr. DeVita found no objective basis for work restrictions.
In a February 21, 2012 decision, OWCP found that appellant did not establish continuing
residuals of the accepted conditions related to the July 14 and November 29, 2009 employment
injuries nor did she establish additional work-related conditions. The opinion of Dr. DeVita
5

Dr. Dahl indicated that appellant fell on November 29, 2009 whereas she stated that she tripped and stumbled
but stayed upright.
6

Appellant also submitted a July 12, 2010 evaluation by a physical therapist.

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found no objective abnormalities and advised that she had fully recovered from the employment
injuries.
Appellant timely requested a hearing that was held on June 29, 2012. She discussed her
two employment injuries and current complaints. Appellant maintained that, as the second
opinion and impartial examinations were not thorough and were biased, they should be
disregarded.
On July 2, 2012 OWCP reopened file number xxxxxx366 for medical care. Appellant
submitted a July 11, 2012 treatment note from Suzette Bailey, a nurse practitioner; a July 17,
2012 MRI scan study of the lumbar spine that was interpreted as stable compared to the
December 10, 2010 study; and a July 17, 2012 MRI scan study of the thoracic spine that
demonstrated mild spondylotic changes with small central disc protrusions at T8-9 and T10-11.
By decision dated September 20, 2012, an OWCP hearing representative affirmed the
February 21, 2012 decision.
In correspondence received by OWCP on September 24, 2013, appellant requested
reconsideration. She contended that the medical evidence, especially the MRI scan studies,
established that her injuries had not resolved and that the opinions of Dr. Whitney and
Dr. DeVita should be discredited. Appellant also indicated that she had retired on disability and
that her job injuries had been made worse by several motor vehicle accidents that had occurred
since December 3, 2011. She further maintained that her psychiatric diagnoses were a
consequence of the employment injuries. Appellant submitted an August 27, 2012 treatment
note in which Dr. Iuliano noted that she, a pedestrian, was struck by a vehicle, landing on her
back and had since had increased pain in the thoracic and lumbar region and new neck and right
shoulder pain. Dr. Iuliano noted the July 2012 MRI scan study findings and prescribed physical
therapy for her neck. An April 11, 2013 MRI scan study of the lumbar spine demonstrated a
minimal disc protrusion at L5-S1 without neural compression and mild facet arthropathy. In an
April 29, 2013 treatment note, Dr. Iuliano indicated that appellant was rear-ended by another
vehicle on March 22, 2013 and had an increase in symptoms. He noted his review of new MRI
scan studies and advised that the new accident exacerbated her old work injury. Dr. Iuliano
advised that surgery could be considered in the cervical region and recommended epidural
injections at L4-5. Appellant also submitted information entitled “Your Independent Medical
Evaluation” that she found on the internet.7
In an October 17, 2013 decision, OWCP denied appellant’s reconsideration request on
the grounds that her request was untimely filed and that she failed to present clear evidence of
error on the part of OWCP.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a

7

Appellant indicated that this was from a website entitled badfaithinsurance.org.

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benefit unless the application for review is filed within one year of the date of that decision.8
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.9
Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth section 10.607 of OWCP regulations, if the claimant’s
application for review shows “clear evidence of error” on the part of OWCP.10 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.12
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.13 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.14
ANALYSIS
The only decision before the Board is the October 17, 2013 nonmerit decision, in which
OWCP denied appellant’s request for reconsideration on the grounds that her request was
untimely filed and failed to establish clear evidence of error. Appellant’s reconsideration request
8

20 C.F.R. § 10.607(b) (2011); see Gladys Mercado, 52 ECAB 255 (2001).

9

Cresenciano Martinez, 51 ECAB 322 (2000).

10

20 C.F.R. § 10.607 (2011).

11

See Alberta Dukes, 56 ECAB 247 (2005).

12

Robert G. Burns, 57 ECAB 657 (2006).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
14

Nancy Marcano, 50 ECAB 110 (1998).

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was received by OWCP on September 24, 2013. The Board finds that more than one year
elapsed from the most recent OWCP merit decision dated September 20, 2012, to her request for
reconsideration received on September 24, 2013.
The request for reconsideration was
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untimely.
The Board also finds that appellant failed to establish clear evidence of error. On
reconsideration appellant alleged that the medical evidence established that her injuries had not
resolved. The accepted conditions in this case are thoracic and lumbar strains. With appellant’s
reconsideration request, she submitted an April 11, 2013 MRI scan study of the lumbar spine.
This study did not provide a cause of any diagnosed conditions and medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.16 In reports dated August 27, 2012 and April 29, 2013,
Dr. Iuliano noted that appellant, a pedestrian, was struck by a vehicle and that she had a second
accident when her vehicle was rear-ended. He described increased pain in the thoracic and
lumbar region and new neck and right shoulder pain. Dr. Iuliano did not, however, indicate that
the 2009 work injuries caused appellant’s current condition. His reports are insufficient to
establish clear evidence of error, as they are not positive, precise and explicit evidence
manifesting on their face that OWCP committed error.17 Further, the term clear evidence of
error is intended to represent a difficult standard. The submission of a detailed well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in
medical opinion requiring further development, is not sufficient to establish clear evidence of
error.18
Appellant also submitted information entitled “Your Independent Medical Evaluation”
that she found on the internet. This does not constitute clear evidence of error. The Board has
held excerpts from publications have little 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 at issue in the case.19
With her request for reconsideration and on appeal to the Board, appellant maintained
that the opinions of Dr. Whitney, an OWCP referral physician, and Dr. DeVita, who provided an
impartial evaluation, should be discredited. She made similar arguments at the June 29, 2012
hearing. Appellant has not explained how rearguing this point raises a substantial question
concerning the correctness of OWCP’s decision.
The term “clear evidence of error” is intended to represent a difficult standard and the
argument provided here is not the type of positive, precise and explicit evidence which
15

While appellant’s request for reconsideration was dated September 19, 2013, it was not received by OWCP
until September 24, 2013. OWCP’s regulations provide that the reconsideration request must be received by OWCP
within one year. 20 C.F.R. § 10.607(a) (2011).
16

Willie M. Miller, 53 ECAB 697 (2002).

17

Robert G. Burns, supra note 12.

18

See Joseph R. Santos, 57 ECAB 554 (2006).

19

Roger G. Payne, 55 ECAB 535 (2004).

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manifested on its face that OWCP committed an error.20 As the evidence and argument
submitted are of insufficient probative value to prima facie shift the weight in favor of appellant
and raise a substantial question as to the correctness of the September 20, 2012 OWCP decision,
she has not established that OWCP committed error by its October 17, 2013 decision.21 The
Board therefore finds that, in accordance with its internal guidelines and with the Board
precedent, OWCP properly performed a limited review of the argument and evidence submitted
by appellant with the September 24, 2013 reconsideration request to ascertain whether it
demonstrated clear evidence of error in the September 20, 2012 decision and correctly
determined that it did not and thus denied appellant’s untimely request for a merit
reconsideration on that basis.22
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and that
she failed to establish clear evidence of error. OWCP therefore properly denied a merit review
of her claim.23

20

Robert G. Burns, supra note 12.

21

Nancy Marcano, supra note 14.

22

20 C.F.R. § 10.607(b) (2011); see D.G., 59 ECAB 455 (2008).

23

The Board notes that appellant also asserted that her psychiatric diagnoses should be accepted. OWCP has not
issued a decision regarding whether appellant sustained a consequential emotional condition. The Board’s
jurisdiction is limited to reviewing final decisions of OWCP. 20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191
(issued May 14, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the October 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 22, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, DeMOSS STATION,
Houston, TX, Employer
__________________________________________

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

Docket No. 13-1862
Issued: December 2, 2013

Case Submitted on the Record

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

JURISDICTION
On August 6, 2013 appellant filed a timely appeal of the May 10, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his claim. 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on April 18, 2012, as alleged.
On appeal appellant contends that she hurt her right knee when she tripped over a car
block and her knee struck the cement.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 18, 2012 appellant, then a 56-year-old city carrier, filed a traumatic injury claim
alleging that on that date she sustained a right knee strain when she tripped over a parking lot
block. The employing establishment controverted the claim.
Appellant submitted an April 18, 2012 report from Dr. Horacio Enrique Oria, a general
surgeon, who noted that she presented for an initial visit with pain in the right lower leg due to a
fall. Dr. Oria diagnosed unspecified internal derangement of the right knee; contusion of the
right lower leg; and contusion of the left knee. Appellant also submitted a Texas Workers’
Compensation Work Status report and a duty status report, both dated April 18, 2012, from
Dr. Oria, who listed appellant’s work restrictions and noted that she could perform desk duty
only. When asked to describe how the injury occurred, Dr. Oria noted that the employee tripped
over a parking lot block and fell to her knees.
By letter dated May 1, 2012, OWCP informed appellant of the additional evidence
needed to establish her claim.
Appellant submitted medical reports, duty status reports and Texas Workers’
Compensation Work Status reports from Dr. Oria dated April 26 through June 1, 2012. Dr. Oria
reiterated the diagnoses of right unspecified internal derangement of knee, right contusion of
lower leg and left contusion of knee. He prescribed physical therapy and medication. Dr. Oria
noted that appellant fell, hurting both knees and her right leg. Appellant also submitted reports
from her physical therapist.
By decision dated June 5, 2012, OWCP denied appellant’s claim. It found that she failed
to establish that she tripped over a parking block and fell to her knees on April 18, 2012, as
alleged.
On November 15, 2012 appellant requested reconsideration. She submitted a statement
regarding her claim, supporting photographs and additional physical therapy notes.
By decision dated January 3, 2013, OWCP modified the June 5, 2012 decision to accept
that appellant established the April 18, 2012 incident in which she fell. It denied her claim
finding insufficient medical evidence or causal relationship.
On March 9, 2013 appellant requested reconsideration. She submitted a May 21, 2012
progress report from Dr. Eric Berkman, a Board-certified orthopedic surgeon, who noted a right
knee injury that occurred on April 18, 2012 when appellant tripped over a car block.
Dr. Berkman diagnosed knee pain.
By decision dated May 10, 2013, OWCP denied modification of its January 3, 2013
decision. Although appellant fell on April 28, 2012 as alleged, the claim remained denied
because she failed to establish the causal relationship between the accepted employment incident
and diagnosed medical conditions.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.4
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty on April 18, 2012 as the medical evidence
submitted is insufficient to support her claim for compensation.
OWCP accepted that appellant established that she fell on April 18, 2012. She was
diagnosed with right internal derangement of the knee, right contusion of the lower leg and right
contusion of the knee. OWCP denied appellant’s claim finding that she did not submit a
sufficient rationalized medical opinion that established a causal relationship between her
diagnosed conditions and the accepted incident. The medical evidence provides insufficient
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

4

See John J. Carlone, 41 ECAB 354 (1989).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

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explanation as to how the employment incident of April 18, 2012 caused appellant’s diagnosed
medical conditions. Dr. Oria merely noted the history that appellant tripped over a block and fell
to her knees. He did not describe specific details of the fall or indicate that it occurred during her
federal employment. Dr. Oria also did not explain how this fall resulted in the diagnosed right
internal derangement of the knee, right contusion of the lower leg and right contusion of the
knee.
Dr. Berkman also did not relate the April 18, 2012 fall to appellant’s employment. He
did not provide a rationalized medical opinion explaining how the fall contributed to the medical
diagnosis. The notes of appellant’s physical therapists are not considered medical evidence as
these providers are not physicians under FECA.6 Accordingly, as appellant failed to submit
medical evidence that established a causal relationship between her federal employment and a
diagnosed medical condition, appellant did not meet her burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that the condition was caused by her employment is sufficient to
establish causal relationship.7
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on April 18, 2012, as alleged.

6

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
7

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2013 is affirmed.
Issued: December 2, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S. FISH
& WILDLIFE SERVICE, Randlett, UT,
Employer
__________________________________________

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Appearances:
Debra A. Kerins, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1504
Issued: February 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2013 appellant, through his representative, filed a timely appeal from the
January 7, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied modification of its loss of wage-earning capacity (LWEC) determination. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that the November 20, 2009 LWEC
determination should be modified.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On a prior appeal,2 the Board found that appellant was entitled to a merit review of
OWCP’s November 20, 2009 determination that he had the capacity to earn wages in the
constructed position of customer service representative.3 The attending Board-certified
orthopedic surgeon, Dr. Burk T. Young, found appellant at maximum medical improvement with
some limitation, but he neglected to submit a work capacity evaluation describing those
limitations. OWCP gave the weight of the medical evidence to the second-opinion physician,
Dr. Michael T. Giovanniello, a Board-certified physiatrist specializing in pain medicine, who
provided permanent work restrictions on November 6, 2008. By submitting the September 3,
2008 work capacity evaluation from Dr. Young, the Board found that the material constituted
relevant and pertinent new evidence not previously considered by OWCP.
In a decision dated January 7, 2013, OWCP reviewed Dr. Young’s September 3, 2008
work capacity evaluation and found that he did not offer objective findings or medical rationale
to support the work restrictions. It found that Dr. Giovanniello’s opinion continued to represent
the weight of the medical evidence.
On appeal, appellant argued that he was not directed to see Dr. Giovanniello; he was
directed to see his partner and the physician’s opinion must be dismissed, leaving Dr. Young’s
evaluation as the only valid opinion. He stated that he did not obstruct the vocational
rehabilitation process and that the LWEC determination was erroneous. Appellant argued that
OWCP missed a September 13, 2012 deadline to make its decision and informed his wife that it
did not have to follow the law. He outlined the medical documents and stated that, given his
most recent imaging study, it should be clear that his condition has deteriorated over the past
eight years. Appellant argued that OWCP should authorize Dr. Young’s request for revision
surgery.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.5
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by his or her actual earnings, if his or her actual earnings fairly and
reasonably represent his or her wage-earning capacity. If the employee has no actual earnings,
2

Docket No. 12-46 (issued May 11, 2012).

3

On July 3, 2004 appellant, a 44-year-old maintenance worker, sustained a traumatic injury in the performance of
duty while loading scrap pipe. OWCP accepted his claim for lumbar spinal stenosis and disc protrusion at L4-5 and
L5-S1. The facts of this case as set forth in the Board’s prior decision are hereby incorporated by reference.
4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

2

his or her wage-earning capacity as appears reasonable under the circumstances is determined
with due regard to the nature of his or her injury, the degree of physical impairment, his or her
usual employment, his or her age, his or her qualifications for other employment, the availability
of suitable employment and other factors or circumstances which may affect his or her wageearning capacity in his or her disabled condition.6
Once the LWEC is determined, a modification of such determination is not warranted
unless there is a material change in the nature and extent of the injury-related condition, the
employee has been retrained or otherwise vocationally rehabilitated or the original determination
was, in fact, erroneous. The burden of proof is on the party attempting to show modification of
the award.7
ANALYSIS
In the June 16, 2011 reconsideration request, appellant sought modification of OWCP’s
November 20, 2009 LWEC determination on two grounds: the original determination was in
error and his medical condition had worsened.
Appellant argued that he did not obstruct vocational rehabilitation efforts and that his
dispute of the finding should cause OWCP to further develop the evidence. The essential facts,
however, are well documented.8 The Board has reviewed the evidence submitted with
appellant’s June 16, 2011 reconsideration request and finds that it does not shift the weight of the
evidence.9
Appellant argued that his medical condition worsened. He noted that an imaging study
showing no objective evidence of worsening was not enough, that a physician, such as
Dr. Giovanniello, must evaluate the patient. Dr. Giovanniello, the second-opinion physiatrist
specializing in pain medicine, evaluated appellant and provided the permanent work restrictions
used to establish the medical suitability of the selected position. Appellant’s representative
argued, however, that it was appellant’s testimony that his pain and functional deficits had
worsened and if his subjective complaints were not deemed credible, OWCP should undertake
further development of the evidence.
6

5 U.S.C. § 8115(a).

7

Daniel J. Boesen, 38 ECAB 556 (1987).

8

The rehabilitation counselor documented that appellant did not appear at scheduled meetings and delayed or
failed to carry out agreed upon actions. The rehabilitation specialist reported that appellant did not cooperate to
develop and sign a return-to-work rehabilitation plan, notwithstanding a July 1, 2009 letter warning him of possible
sanctions. In addition, the rehabilitation counselor reported that appellant confessed to informing his claims
examiner that he could find her in Denver, if necessary. She responded that he could not get into the federal
building. Appellant replied that he was still a federal employee and could gain access. He added that he could even
send her a box of flowers and she would not know whether the box contained flowers or a shotgun.
9

Appellant admitted telling the rehabilitation counselor how a coworker took a shotgun and killed two claims
adjusters before taking his own life. “These adjustors mess around with their lives and the people are in pain and
agony and wind up doing something like that.” He did not explain his reason for telling such a violent story to the
rehabilitation counselor or how this version of the story was any less chilling.

3

The June 16, 2011 reconsideration request disputed the prior findings and argues that
OWCP should reinstate his wage-loss compensation before further developing the evidence. The
burden of proof falls on appellant to produce evidence that modification of the November 20,
2009 LWEC determination is warranted. Whether there has been a material change in the nature
and extent of the injury-related condition, such that appellant is not able to meet the physical
demands of the selected position, is a medical question that must be addressed by rationalized
medical opinion evidence. Appellant’s lay opinion is not competent on this issue.
Appellant submitted the September 3, 2008 work capacity evaluation of Dr. Young, the
attending orthopedic surgeon, who found appellant to be at maximum medical improvement. He
had seen multiple neurosurgeons and none of them recommended further surgery. The fusion
was considered stable. Dr. Young indicated that appellant could not work eight hours a day, but
he did not address how many hours appellant could work.10 He indicated that appellant could sit
for 30 minutes before having to move and would require breaks during the day. Dr. Young also
noted that appellant was unable to lift any weight whatsoever.
The question is whether this evidence establishes that appellant was not capable of
meeting the physical demands of the selected position. The vocational rehabilitation counselor
noted that the position would allow alternate sitting and standing as needed, which was
consistent with Dr. Young’s evaluation. The position required occasional minimal lifting, from 0
to 10 pounds. If appellant could not occasionally lift such weight, then the physical demands of
the selected position would be beyond his capabilities. Dr. Young, however, offered no reason
for this limitation. He did not identify what clinical or examination findings warranted such a
restriction or otherwise offer medical rationale to support his conclusion. Medical conclusions
unsupported by rationale are of diminished probative value.11 Dr. Young indicated that appellant
could not work eight hours a day, but he did not say why. He failed to address just how many
hours appellant could work. This diminishes the probative value of Dr. Young’s opinion on
appellant’s work restrictions.
The Board finds that Dr. Young’s September 3, 2008 work capacity evaluation is
incomplete and unrationalized. It fails to establish that the selected position was medically
unsuitable. Appellant has failed to establish a material change in the nature and extent of his
injury-related condition or that the November 20, 2009 LWEC determination was, in fact,
erroneous. The Board finds that he has not met his burden of proof. The Board will therefore
affirm OWCP’s January 7, 2013 decision.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
Appellant alleges on appeal that he was not directed to see Dr. Giovanniello; however,
the record shows correspondence dated October 16, 2008 from OWCP to appellant notifying him
of the date and time of his appointment with Dr. Giovanniello. He also alleges that the Board’s
10

Dr. Young left the following question blank: “If less than eight hours per workday, how many can he/she
work?”
11

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4

prior decision stated that he had submitted “genuine proof” that he did not obstruct. The prior
decision noted in the factual history of the case that appellant’s representative had submitted a
timeline to show that there was a “genuine dispute” of material fact as to whether appellant tried
to cooperate or obstructed. It was the contention of his representative, not the opinion of the
Board, that the timeline created a genuine dispute.
The issue of authorizing surgery is not presently before the Board, nor are appellant’s
allegations of unlawful and felonious conduct on the part of OWCP or its vocational
rehabilitation counselor. The issue of obstruction and whether the original determination was, in
fact, erroneous has been previously reviewed.
CONCLUSION
The Board finds that appellant has not met his burden to establish that the November 20,
2009 LWEC determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 15-0998
Issued: August 17, 2015

Case Submitted on the Record

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

JURISDICTION
On March 30, 2015 appellant filed a timely appeal of an October 2, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because over 180 days
has elapsed between the most recent merit decision, dated July 17, 2013, and the filing of this
appeal on April 30, 2015, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board lacks
jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 19, 2011 appellant, then a 29-year-old city carrier, filed a traumatic injury
claim alleging that on that date he slipped on a step and caught himself with his right arm on the
railing. He stated that he developed pain in his right bicep and shoulder. On January 28, 2011

appellant underwent a magnetic resonance imaging (MRI) scan of his right upper extremity
which demonstrated a tear of the intra-articular portion of the long head of the biceps tendon.
OWCP denied appellant’s claim on March 14, 2011 finding the evidence of record was
insufficient to establish the medical condition is causally related to the accepted work event.
Appellant requested reconsideration on April 12, 2011 and on July 21, 2011 OWCP accepted his
claim for right biceps tendon rupture.
Dr. Kyle R. Flik, a Board-certified orthopedic surgeon, performed a right shoulder
arthroscopy with debridement of the superior labrum and open exploration of the biceps tendon
with lysis of adhesions and scar tissue. He found a tear of the superior labrum and an absent
long head of the biceps tendon as well as scar tissue and partial tearing of the pectoralis major
tendon. Dr. Flik stated that the biceps tendon was autotenodesed proximally and that appellant
had abundant scar tissue. Appellant returned to modified work on December 9, 2011.
Dr. Flik examined appellant on March 14, 2012 for a permanent impairment rating. He
stated that appellant had less discomfort and pain in his right elbow. Dr. Flik found that
appellant had full range of motion of his elbow and glenohumeral joint. He found soreness to
deep palpation in the biceps with full pronation and supination. Dr. Flik reported mild weakness
compared to the left side. He opined that under the state worker’s compensation guidelines
appellant was entitled to 15 percent impairment for his long-headed biceps rupture requiring
surgery and debridement. Dr. Flik further found that appellant had 5 percent impairment for
muscle weakness resulting in an impairment rating of 20 percent.
Appellant requested a schedule award on August 6, 2012. OWCP responded on
February 15, 2013 and requested additional medical evidence including a report which found that
appellant had reached maximum medical improvement and a final rating of the permanent
impairment in accordance with and including references to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1
In a decision dated July 17, 2013, OWCP denied appellant’s request for a schedule award
finding that he failed to submit medical evidence expressing his permanent impairment in
accordance with the A.M.A., Guides.
Appellant requested reconsideration through a letter dated July 1, 2014 and a form dated
July 2, 2014 and received by OWCP on July 7, 2014. He stated that he believed that Dr. Flik had
submitted the necessary medical evidence and referenced the March 14, 2012 report. Appellant
stated that Dr. Flik had submitted new evidence in accordance with the A.M.A., Guides. On
June 24, 2014 Dr. Flik stated that he had amended his March 14, 2012 note. He removed
references to the state workers’ compensation system and stated that he was evaluating appellant
for permanent impairment to his right upper extremity. Dr. Flik found that appellant
demonstrated full range of motion of the elbow and glenohumeral area. He found soreness to
1

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the second printing of the sixth edition. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.5.a
(February 2013).

2

deep palpation in the biceps with full pronation and supination. Dr. Flik also reported mild
weakness. He stated, “I would recommend 15 percent scheduled loss of use for his long-headed
biceps rupture requiring surgery and debridement. I would add 5 percent for his muscle
weakness for a total of 20 percent scheduled loss of use.”
By decision dated October 2, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that Dr. Flik’s June 24, 2014 report was repetitious and
cumulative of his March 14, 2012 report such that a review of the merits was not required.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b)(3) of the Code of Federal Regulations provide that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or constitutes relevant and pertinent new evidence not previously considered by
Section 10.608(b) of OWCP regulations provide that when a request for
OWCP.3
reconsideration is timely, but does meet at least one of these three requirements, OWCP will
deny the application for review without reopening the case for a review on the merits.4
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.5
ANALYSIS
The Board finds that OWCP correctly denied reopening of appellant’s claim for merit
review on October 2, 2014.
Appellant timely requested reconsideration of the July 17, 2013 decision denying his
claim for a schedule award on July 7, 2014. Appellant neither demonstrated that OWCP
erroneously applied or interpreted a point or law, nor advanced a relevant legal argument not
previously considered by OWCP.
In support of this request, appellant submitted Dr. Flik’s March 14, 2012 note which had
been amended on June 24, 2014. The Board finds that Dr. Flik’s June 24, 2014 note does not
contain new evidence and is therefore insufficient to require OWCP to reopen appellant’s claim
2

5 U.S.C. §§ 8101-8193, 8128(a).

3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608.

5

M.E. 58 ECAB 694 (2007).

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for consideration of the merits. Dr. Flik amended the March 14, 2012 note to remove the
references to the state workers’ compensation guidelines. He did not provide any further
information on June 24, 2014 which was not included in the March 14, 2012 report. As
Dr. Flik’s June 24, 2014 report was substantially duplicative of his March 14, 2012 report, the
Board finds that OWCP properly declined to reopen appellant’s claim for consideration of the
merits.
CONCLUSION
The Board finds that appellant’s request for reconsideration and supporting evidence did
not comply with the requirements of section 10.606 of OWCP regulations and that OWCP
properly declined to reopen appellant’s claim for consideration of the merits of his schedule
award claim.
ORDER
IT IS HEREBY ORDERED THAT the October 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, FL, Employer
__________________________________________

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

Docket No. 11-2112
Issued: August 28, 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 21, 2011 appellant, through her attorney, filed a timely appeal from the
August 3, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing
October 26, 2010 due to her accepted February 24, 2009 employment injury.
On appeal, counsel contends that OWCP’s August 3, 2011 decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on February 24, 2009 appellant, then a 62-year-old rural carrier,
sustained a lumbar sprain as a result of a motor vehicle accident. She stopped work on
March 18, 2009 and returned to limited-duty work on April 16, 2009.
On November 8, 2010 appellant filed a claim (Form CA-2a) alleging a recurrence of
disability commencing October 26, 2010 and for wage-loss compensation from
November 6 through 19, 2010. She noted the employing establishment withdrew her limitedduty position under the National Reassessment Process (NRP).
In a September 2, 2010 medical report, Dr. Youssef W. Wassef, an attending Boardcertified physiatrist, obtained a history of appellant’s preexisting upper and lower back and neck
pain, her accepted employment injury and medical treatment. He noted her complaint of burning
low back pain that traveled down her left leg to the top of her foot and became worse with
walking, standing, bending, lifting and sitting. Dr. Wassef advised that appellant left S1
radiculopathy based on electrodiagnostic testing.2 A magnetic resonance imaging (MRI) scan
showed a post-traumatic L5-S1 disc bulge with left paracentral protrusion. Dr. Wassef stated
that appellant had no history of significant back problems or pain radiating down her left lower
extremity until the February 24, 2009 employment injury. He advised that she was unable to
return to her usual work. Dr. Wassef recommended a diagnostic analgesic L5-S1 discogram to
confirm the diagnosis. He advised that appellant could continue to perform light-duty work with
restrictions.
By letters dated December 6, 2010, OWCP advised appellant that no action would be
taken on her claim for wage-loss compensation until her recurrence claim had been adjudicated.
It requested that she submit additional factual and medical evidence in support of her recurrence
claim. Appellant subsequently filed Forms CA-7 requesting wage-loss compensation from
November 27, 2010 through February 25, 2011.
In treatment reports dated September 30 and November 11, 2010, Dr. Wassef reiterated
his findings and conclusions regarding appellant’s lumbar condition and work capacity. He
noted that she had tenderness of the left sacroiliac joint on palpation.
In a February 28, 2011 decision, OWCP denied appellant’s recurrence claim. It found
that medical evidence from Dr. Wassef did not sufficiently address how appellant’s S1
radiculopathy was causally related to the February 24, 2009 employment injury, accepted for a
lumbar sprain.
On March 7, 2011 appellant, through her attorney, requested a telephone hearing before
an OWCP hearing representative. In an April 4, 2011 report, Dr. Wassef listed findings on
examination and stated that appellant had left S1 radiculopathy and a post-traumatic L5-S1 disc
bulge with left paracentral protrusion. He noted that she was dismissed from work because no
light-duty work was available. Dr. Wassef reiterated that she was capable of work with physical
restrictions.
2

A nerve conduction velocity study and electromyogram (EMG) performed on May 26, 2009 were suggestive of
left borderline to mild S1 radiculopathy.

2

During the June 7, 2011 hearing, appellant testified that her modified position was
discontinued by her employer on October 26, 2010. She stated that it was not a bid position and
that there were no other positions at the employing establishment that required only answering
telephones. Appellant testified that her layoff was not based on seniority but based on her status
as an injured employee. She had not been reemployed and no loss of wage-earning capacity
determination had been made by OWCP.
By letter dated June 30, 2011, the employer stated that following appellant’s February 24,
2009 injury she accepted a job offer for a modified-duty position and returned to work on
April 16, 2009. It acknowledged that she was advised on October 26, 2010 that no meaningful
productive work could be found within her limitations.
In an August 3, 2011 decision, an OWCP hearing representative affirmed the
February 28, 2011 decision. He stated that the February 28, 2011 decision did not specifically
deny the relationship of the additional lumbar conditions addressed by Dr. Wassef to the
accepted lumbar strain. The hearing representative found that the physical restrictions
recommended by the physician were not related to the lumbar strain and, as appellant’s disability
was related to more significant conditions, compensation would not be payable under FECA
Bulletin No. 09-05. The hearing representative stated:
“[OWCP] is not a disinterested arbiter, however, but rather performs the role of
adjudicator on the one hand and gatherer of the relevant facts and protector of the
compensation fund on the other, a role that imposes an obligation on [OWCP] to
see that its administrative processes are impartially and fairly conducted. While
the claimant has the burden to establish entitlement to compensation, [OWCP]
shares responsibility in the development of the evidence. It must obtain any
evidence that is necessary for the adjudication of the case which is not received
when the notice or claim is submitted. [OWCP] is responsible for providing the
claimant information about the procedures involved in establishing a claim,
including detailed instructions for developing the required evidence and upon
initial examination of the case should request all evidence necessary to adjudicate
the claim. [OWCP] fulfilled these obligations in its December 6, 2010 letter.”
***
“Based on my review of the evidence, I find that [appellant] did not meet her
burden of proof in establishing that she sustained a recurrence of disability on
October 26, 2010. Although the medical evidence supports that she was unable to
perform her date-of-injury job at that time, it does not support that her disability
was causally related to the injuries she sustained on that date, for the reasons
which are explained above. The evidence of record is insufficient to establish that
[appellant] sustained a recurrence of disability as alleged.” [Emphasis added,
citations omitted.]
LEGAL PRECEDENT
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
3

establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.3 To establish a change in
the nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.4
FECA Bulletin No. 09-05 provides in pertinent part:
“B. LWEC decision HAS NOT been issued-1. If the claimant has been on light duty due to an injury[-]related
condition without an LWEC [loss of wage-earning capacity] rating, ...
payment for total wage loss should be made based on the CA-7 as long as
the following criteria are met:
the current medical evidence in the file (within the last [six]
months) establishes that the injury[-]related residuals continue;
the evidence of file supports that light duty is no longer available;
and
there is no indication that a retroactive LWEC determination
should be made. (Note -- Retroactive LWEC determinations
should not be made in these NRP cases without approval from the
District Director.)”5
FECA Bulletin No. 09-05 also states that, if the medical evidence is not sufficient, the
claims examiner should request current medical evidence from the employing establishment and
the claimant.6
ANALYSIS
Appellant filed a claim for a recurrence of total disability and wage loss commencing
October 26, 2010. The record establishes that her limited-duty job was withdrawn by her
employer through the NRP.
3

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986). Under 20 C.F.R. § 10.5(x) a recurrence of disability includes when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn.
4

Maurissa Mack, 50 ECAB 498 (1999).

5

FECA Bulletin No. 09-05 (issued August 18, 2009).

6

Id.

4

The guidelines for evaluating a claim for total disability under these circumstances were
set forth by the Director in FECA Bulletin No. 09-05. The Board finds that the hearing
representative did not properly consider OWCP’s responsibility in such cases. Specifically, the
hearing representative found that the duty of OWCP under the FECA Bulletin No. 09-05 was
discharged by the December 6, 2010 claim development letter sent to appellant and her
employer. The Board does not agree.
The precedent cited by the hearing representative pertains to the general obligation of
OWCP to assist an employee to develop the evidence in the initial adjudication of a claim for
compensation. Such is not the case in a claim arising from the withdrawal of a limited-duty job
under the NRP. In this case, appellant’s claim was accepted by OWCP for a lumbar strain on
February 24, 2009 in a motor vehicle accident. She received wage-loss and medical benefits and
returned to limited duty on April 16, 2009 under medical restrictions recommended by her
attending physician. FECA Bulletin No. 09-05 is applicable in situations where OWCP has
accepted claims of injury by employees who return to work but not at their date-of-injury
positions. In situations addressed by the FECA Bulletin No. 09-05, the injured employee is
working under medical restrictions that preclude his or her return to the date-of-injury job until
such point where the employer advises such light duty is no longer available.
The hearing representative found that Dr. Wassef had “ceased discussing the sole
accepted condition in the case, which is a lumbar strain, but has provided the opinion that
[appellant] sustained more significant injuries as a result of the February 24, 2009 incident.” He
noted that the medical record reflected that as early as March 20, 2009, a diagnosis of sciatica
had been made. On March 26, 2009 Dr. Scott Wilson cited a lumbar strain with right radicular
symptoms. An April 1, 2009 lumbar MRI scan study cited a disc bulge at L5-S1 touching the
thecal sac, narrowing the neural foramina and a paracentral left disc protrusion which extended
into the left neural foramina and contributed to stenosis. On April 20, 2009 Dr. Gary Newcomer
diagnosed a lumbar strain, abnormal disc protrusion and degenerative disc disease. On May 26,
2009 Dr. Wassef described a recent EMG study as indicative of borderline to mild left
radiculopathy. On June 5, 2009 Dr. Steven Bailey stated that an L1-2 herniated disc was related
to the motor vehicle accident. On February 11, 2010 OWCP inquired from Dr. Eric Scott
whether appellant’s lumbar strain had resolved. Dr. Scott responded in March 2010 that she still
had residuals of her lumbar stain and that part of her present condition was related to preexisting
degenerative conditions. The hearing representative determined that the medical evidence of
record was not sufficiently rationalized on causal relation.
Although the hearing representative was correct in noting OWCP accepted only a lumbar
strain due to the February 24, 2009 motor vehicle accident, the medical evidence of record raises
the question of whether a strain was the proper or sole diagnosis related to the injury. While
appellant has the burden to establish a condition not accepted by OWCP as causally related to the
February 24, 2009 injury, OWCP shares in this responsibility. Several attending physicians of
record have supported that the February 24, 2009 motor vehicle accident resulted in spinal
conditions beyond the accepted lumbar strain. The nature and extent of appellant’s lumbar
conditions due to the accepted injury and the extent of any disability or physical restrictions
necessitated by the injury are issues to be resolved by probative medical evidence. In this case,
there was no record review by any OWCP medical adviser or referral of appellant for a second
opinion evaluation. The evidence submitted by appellant is generally supportive of her claim
and necessitates further medical development by OWCP.
5

As noted, the withdrawal of a light-duty position may be considered a recurrence of
disability under OWCP regulations. The guidance from FECA Bulletin No. 09-05 indicates that
OWCP should consider whether the current medical evidence establishes that appellant had
continuing employment-related residuals at the time of the withdrawal of the light-duty position.
If the current medical evidence of record in an accepted claim is not sufficient to resolve this
issue, OWCP should further develop the medical evidence.7
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 28, 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

7

It would be OWCP’s burden of proof to show that employment-related residuals had ceased. See Helen F.
Small, Docket No. 11-1593 (issued May 13, 2012); J.A., Docket No. 11-1592 (issued February 13, 2012).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
NATIONAL PROTECTION & PROGRAMS
DIRECTORATE, FEDERAL PROTECTION
SERVICE, New York, NY, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Emily C. Toler, Esq., for the Director

Docket No. 14-1793
Issued: January 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 11, 2014 appellant, through his attorney, filed a timely appeal from a June 25,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his asthma
and sleep apnea are causally related to factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. By Order Remanding Case dated
February 21, 2014, the Board found that appellant’s request for reconsideration received by
OWCP on January 24, 2012 constituted a timely request for reconsideration of a February 9,
2011 OWCP decision. The case was remanded for under the proper standard of review.2 The
Board’s February 21, 2014 Order Remanding Case is incorporated herein by reference.
The record reflects that on September 10, 2009 appellant, then a 63-year-old security
specialist, claimed that he had asbestos-related asthma, and sleep apnea as well as chronic
sinusitis and bronchitis as a result of exposure to dust and toxic fumes due to the collapse of
World Trade Center. In August 28, 2009 statements, he described how he was exposed to toxins
and debris from the terrorist attack and destruction of the two World Trade Center Complex
Towers and in the subsequent clean-up. Appellant also provided a list of his current health
conditions, which he believed were caused by the dust and toxic fumes in the air. A February 4,
2009 letter from the World Trade Center National Responder Treatment Program, indicates that
he has been approved for complete coverage of visits/diagnosis/procedures/treatment/therapy
related to chronic respiratory issues, and related symptoms. Numerous physician reports, which
contain diagnoses of asthma, acute bronchitis, and heart conditions, were submitted into the
record along with diagnostic testing.
In a September 23, 2009 letter, OWCP advised appellant of the deficiencies in his claim
and requested that he submit additional factual and medical information, including a
comprehensive medical report from his treating physician which provided the physician’s
opinion along with a well-reasoned medical opinion as to the cause of his medical condition.
Appellant was afforded 30 days to submit the requested information.
Appellant provided a response to OWCP’s questions and submitted additional medical
reports from Dr. Jason A. Shatkin, a Board-certified pulmonologist, concerning his medical
conditions. In an October 5, 2009 report, Dr. Shatkin provided an assessment of chronic
obstructive pulmonary disease. He opined that appellant’s chronic obstructive pulmonary
disease and small airways disease may be secondary to exposure to toxins from World Trade
Center site.
In a December 3, 2009 letter, OWCP requested that Dr. Shatkin provide a well-reasoned
medical opinion on the relationship between the conditions found and appellant’s history of
exposure to toxic substances at the World Trade Center on September 11, 2001. It noted that, if
appellant’s conditions were related, then Dr. Shatkin should explain with medical rationale how
appellant’s conditions were proximately caused, aggravated, accelerated, or precipitated by the
reported exposure.
In a December 8, 2009 report, Dr. Shatkin provided an assessment of chronic obstructive
pulmonary disease, post nasal drip, and obstructive sleep apnea. He noted that all of appellant’s
conditions can exist independently; however, considering the timing of the episodes (right after
9/11), there was a high likelihood that they developed as a result of the strong inhalations.
2

Docket No. 13-1846 (issued February 21, 2014).

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Dr. Shatkin stated that, prior to September 11, 2001, appellant had none of the chronic problems
listed including asbestosis, asthma, chronic obstructive pulmonary disease, sleep apnea chronic
sinusitis, and bronchitis. He indicated that the prognosis was unknown as this syndrome,
resulting from exposure to toxic fumes and or particles from September 11, 200l, was only now
evolving. Dr. Shatkin opined that, as all of appellant’s conditions are of a pulmonary nature
(breathing), they were related to the toxic exposure.
By decision dated January 7, 2010, OWCP denied appellant’s claim. It found that, while
appellant was exposed to toxins and debris from the site of the September 11, 2001 World Trade
Center attack and subsequent cleanup, the medical evidence did not support that the diagnosed
conditions of asthma and sleep apnea were causally related to the accepted work factors.
Appellant requested a telephonic hearing before an OWCP hearing representative.
Additional evidence submitted included newspaper articles supporting that workers near the
World Trade Center were more likely to contract the type of pulmonary diseases from which
appellant suffered. In a March 17, 2010 medical report, Dr. Frank P. Pagano, an osteopath,
stated that he had treated appellant for many years prior to 2001 and that there was no evidence
of any preexisting pulmonary conditions prior to his work exposure on September 11, 2001. He
noted that a pulmonary specialist had evaluated appellant in July 1999 for a cough, which later
resolved, and testing at that time was completely normal. Dr. Pagano stated that he was in
agreement with Dr. Shatkin that, within a reasonable degree of medical certainty, appellant’s
medical conditions were causally related to his exposure to toxic fumes surrounding the
September 11, 2001 events.
By decision dated September 28, 2010, an OWCP hearing representative found the case
not in posture for decision as the December 8, 2009 report from Dr. Shatkin and the March 17,
2010 report from Dr. Pagano established a sufficient support for his claim that required further
medical development of the medical record by OWCP. He directed OWCP to prepare a
statement of accepted facts and refer appellant for a second opinion evaluation by a Boardcertified physician in the appropriate specialty.
OWCP prepared a statement of accepted facts as well as a list of questions and referred
appellant, along with the case record, to Dr. Lee B. Berman, a Board-certified pulmonologist, for
a second opinion examination. In a November 1, 2010 report, Dr. Berman noted the history of
injury and diagnosed obstructive sleep apnea due primarily to obesity and not related to exposure
at the World Trade Center complex. He noted that appellant has exogenous obesity, which could
account for his dyspnea without any intrinsic lung disease. Dr. Berman also diagnosed asthma,
as established by a pulmonologist. However, at the time of evaluation, he found no evidence of
wheezing or abnormality on his pulmonary function that would allow him to affirm the other
pulmonologist’s clinical impression. Dr. Berman also noted that appellant’s prior spirometry
test, included with the records, was normal. He advised, however, that a diagnosis of asthma
was not excluded by those observations as asthma may have intermittent symptomatology.
Dr. Berman stated that asthma may be acquired at any age and it was likely that appellant would
have acquired asthma without exposure on September 11, but he could not discount the
possibility. He also noted that appellant’s underlying conditions of obesity, hypertension,
atherosclerotic heart disease, treatment with beta blockers, may all cause shortness of breath,
wheezing, and were all capable of aggravating asthma. In a January 5, 2011 addendum,

3

Dr. Berman opined that, on a more probable than not basis, “there is a less than 50 percent
chance that there is a causal link between [appellant’s] exposure on 9/11 and his reported asthma
symptoms.” He found no evidence that appellant has asthma and in any event causal relationship
to his exposure on 9/11 has not been established.
By decision dated February 9, 2011, OWCP denied the claim on the grounds the medical
evidence was insufficient to establish causal relationship between the diagnosed conditions of
asthma and sleep apnea, and the accepted work factors.
In a January 20, 2012 letter, which OWCP received on January 23, 2012, appellant
requested reconsideration and submitted additional medical evidence, including a November 2,
2011 blood test report from the World Trade Center Health Program at Mount Sinai, October 31,
2011 blood and urine test results from the Mount Sinai Hospital, and an April 30, 2012
computerized tomography scan of the sinuses, along with letters from appellant to his
representative.3
In a November 22, 2013 letter to appellant, Dr. John Howard,4 Administrator, World
Trade Center Health Program, explained which conditions were being certified under that
program as a result of his World Trade Center exposures as listed in the James Zadroga 9/11
Health and Compensation Act of 2010 (hereinafter the Zadroga Act), 42 C.F.R. § 88.1.
By decision dated June 25, 2014, OWCP denied modification of its February 9, 2011
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
3

As noted above, the Board set aside OWCP’s July 3, 2013 decision, finding that this request for reconsideration
was timely filed and remanded the case for an appropriate final decision on appellant’s timely request for
reconsideration. Docket No. 13-1846 (issued February 21, 2014).
4

Dr. Howard’s credentials are not of record.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.8
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.9 Neither the mere fact that a disease or condition manifests
itself during a period of employment nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish causal relationship.10
ANALYSIS
OWCP accepted that appellant was exposed to toxins and debris from the site of the
September 11, 2001 World Trade Center collapse and subsequent cleanup. It denied his claim,
however, as the medical evidence failed to establish a causal relationship between his exposure
to the toxins and debris from September 11, 2001 World Trade Center attack and collapse and
subsequent cleanup and his diagnosed conditions of asthma and sleep apnea. On appeal, the
Director of OWCP has filed a pleading contending that OWCP’s June 25, 2014 was correct and
should be affirmed.
Dr. Berman, OWCP’s second opinion physician, reviewed appellant’s medical history
and the statement of accepted facts. He diagnosed appellant with obstructive sleep apnea, which
he stated was due to his obesity and not related to his work exposure. Dr. Berman also
diagnosed asthma by history, but stated that there was no evidence of asthma on examination or
in the prior spirometry results. While he initially stated in his November 1, 2010 report that he
could not discount the possibility that the asthma was related to the September 11, 2001
exposure, he could not provide a causal link between appellant’s exposure and the asthma in his
January 5, 2011 addendum. Dr. Berman’s report negates a relationship between appellant’s
asthma and obstructive sleep apnea conditions with his exposure on and after
September 11, 2001.
Dr. Shatkin, in his December 8, 2009 report, and Dr. Pagano, in his March 17, 2010
report, opined that appellant’s chronic obstructive pulmonary disease and obstructive sleep apnea
were causally related to the event of September 11, 2001 as appellant was asymptomatic prior to
7

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

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

9

James Mack, 43 ECAB 321 (1991).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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the September 11, 2001 work injury. Dr. Shatkin stated that, given the timing of the episodes
(right after 9/11), there was a high likelihood that appellant’s chronic conditions developed as a
result of the strong inhalations and that prior to September 11, 2001 appellant did not have any of
the chronic problems listed including asbestosis, asthma, chronic obstructive pulmonary disease,
sleep apnea chronic sinusitis, and bronchitis. Dr. Pagano stated that he was in agreement with
Dr. Shatkin that appellant’s medical conditions were causally related to his exposure to toxic
fumes surrounding the September 11, 2001 events, and prior to his work exposure on
September 11, 2001, there was no evidence of any preexisting pulmonary conditions. The Board
has held, however, that when a physician concludes that a condition is causally related to
employment because the employee was asymptomatic before the employment injury, the opinion
is insufficient, without supporting medical rationale, to establish causal relationship.11 The mere
fact that a condition manifests itself or worsens during a period of federal employment raises no
inference of causal relationship between the two.12 Neither physician explained how appellant’s
exposure to toxins and debris from the collapse of the World Trade Center caused or aggravated
his medical conditions or any preexisting medical condition.
The November 22, 2013 letter from Dr. Howard indicates the acceptance of several
conditions as being certified under the World Trade Center Health Program in accordance with
the Zadroga Act. In general, the findings of other administrative agencies with regard to
causation are not the equivalent of how the term causation is applied by FECA. To establish a
compensable case under FECA, the medical opinion evidence of a qualified physician must be
based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.13 The letter from Dr. Howard provides no medical rationale as to how the conditions
under the Zadroga Act were the significant factor in aggravating, causing or contributing to
appellant’s diagnosed conditions of asthma and sleep apnea. Medical reports without adequate
rationale on causal relationship are of diminished probative value and do not meet an employee’s
burden of proof.14 The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.15
Dr. Howard’s report does not meet that standard and is therefore insufficient to meet appellant’s
burden of proof.16

11

Thomas D. Petrylak, 39 ECAB 276 (1987).

12

Steven R. Piper, 39 ECAB 312 (1987).

13

Supra note 8.

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

15

See Lee R. Haywood, 48 ECAB 145 (1996).

16

C.B., Docket No. 08-1583 (issued December 9, 2008).

6

Appellant’s statements regarding causation are immaterial as causal relationship is a
medical issue which can only be addressed by medical opinion evidence. The numerous
diagnostic studies and tests submitted by appellant are not probative on the issue of causal
relationship, as medical reports which do not offer any opinion regarding the cause of an
employee’s condition are of limited probative value on the issue of causal relationship.17
The Board finds that the medical evidence does not establish that appellant sustained a
medical condition causally related to his federal employment. An award of compensation may
not be based on surmise, conjecture or speculation. Neither the fact that appellant’s condition
became apparent during a period of employment nor the belief that his condition was caused,
precipitated or aggravated by his employment, is sufficient to establish causal relationship.18
Causal relationships must be established by rationalized medical opinion evidence. As noted, the
medical evidence is insufficient to establish appellant’s claim. Consequently, OWCP properly
found that he did not meet his burden of proof in establishing his claim.
On appeal, appellant’s counsel argues that OWCP’s June 25, 2014 decision is contrary to
fact and law. As noted above, the medical evidence does not establish that appellant’s diagnosed
conditions are causally related to the accepted September 11, 2001 event and aftermath. Reports
from appellant’s physicians failed to provide sufficient medical rationale based on a complete
factual background explaining the reasons why his diagnosed conditions were caused or
aggravated by the accepted event. The need for such rationale is particularly important in view
of the fact that appellant may have other contributing factors.
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 did not meet his burden of proof to establish that he
sustained asthma or sleep apnea in the performance of his federal duties.

17

Willie M. Miller, 53 ECAB 697 (2002).

18

Supra note 10.

7

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8