United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY,
Fort Sam Houston, TX, Employer
__________________________________________

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Appearances:
Anthony S. Arenas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1546
Issued: March 5, 2020

Case Submitted on the Record

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

JURISDICTION
On July 12, 2019 appellant, through counsel, filed a timely appeal from a June 5, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on June 30, 2014, as alleged.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On July 3, 2014 appellant, then a 40-year-old security specialist, filed a traumatic injury
claim (Form CA-1) alleging that, at 1:00 p.m. on Monday, June 30, 2014, he sustained injuries to
his neck, shoulder, and right leg due to a fall at his home in San Antonio, TX.4 He attached a
statement in which he explained that, on the date of injury, he was in the process of relocating his
telework items from his home to the Commissary at Fort Sam Houston, TX, at the direction of his
supervisor. Appellant indicated that, as he was carrying a box of reference materials and supplies
down the stairs in his home, his right leg gave out and he tumbled down the last six steps.
On the reverse side of the Form CA-1, appellant’s immediate supervisor indicated that
appellant’s duty station was at Fort Sam Houston Commissary and that his regular work hours
were 7:30 a.m. to 4:00 p.m., Monday through Friday. In a July 9, 2014 statement attached to the
Form CA-1, he contended that appellant had not sustained an injury in the performance of duty on
June 30, 2014 because his alleged injury occurred at home despite the fact that he had directed
appellant on three occasions prior to June 30, 2014 to report to the Fort Sam Houston Commissary
at 7:00 a.m. on June 30, 2014.5 The supervisor indicated that he knew nothing about appellant
making trips back and forth from his home to the Fort Sam Houston Commissary to relocate his
office supplies. He indicated that appellant never asked him for permission to carry out this task
and he did not approve it. The supervisor noted that appellant’s duty station on June 30, 2014 was
the Fort Sam Houston Commissary. He indicated that he had advised appellant on June 26, 2014
that he was taking him off his telework schedule of five days per week and that appellant instead
had to report to and work at the Fort Sam Houston Commissary.
In a June 27, 2014 statement, a store director for the employing establishment indicated
that he was present on June 26, 2014 when appellant’s immediate supervisor advised appellant
that he was taking him off his telework schedule of five days per week. He noted that appellant’s
immediate supervisor told appellant to pack up his things and bring them with him on Monday,
June 30, 2014, to his workplace at the Fort Sam Houston Commissary.
In a July 22, 2014 e-mail to an injury compensation specialist for the employing
establishment, appellant’s immediate supervisor indicated that his comment to appellant to “bring
3

Docket No. 16-0927 (issued February 13, 2017); Docket No. 17-1695 (issued May 15, 2018).

4

Appellant stopped work on the date of injury.

5
The record contains a June 13, 2014 e-mail in which appellant’s supervisor directed him to report to the Fort Sam
Houston Commissary for work on June 30, 2014.

2

his work things” with him when he reported to the Fort Sam Houston Commissary on June 30,
2014 was not meant to imply that he had approved trips to and from his residence.
Appellant submitted July 7, 17, and August 21, 2014 reports in which an attending
physician listed a date of injury as June 30, 2014 and a diagnosis of “right leg/head.” The physician
indicated that appellant was totally disabled from work.
By decision dated August 26, 2014, OWCP denied appellant’s claim, finding that he had
established that an employment incident occurred on June 30, 2014 as alleged, but that he had not
submitted medical evidence sufficient to establish a medical condition causally related to the
accepted employment incident. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
On October 22, 2014 appellant requested reconsideration of the August 26, 2014 decision.
He submitted additional medical evidence and continued to argue that he followed his supervisor’s
order in June 2014 to relocate his work belongings from his home to the Fort Sam Houston
Commissary.
In a November 18, 2014 letter, an injury compensation specialist for the employing
establishment contended that appellant was not in the performance of duty when his accident
occurred on June 30, 2014. She advised that he was not authorized to be at his residence at the
time of injury.
By decision dated March 9, 2015, OWCP denied appellant’s claim for a June 30, 2014
employment injury. It noted that it was modifying the basis for the denial because he had not
shown that he fell while in the performance of duty on June 30, 2014. OWCP noted, “Your case
remains denied as you have not met the performance of duty element of your claim.”
On December 8, 2015 appellant, through counsel, requested reconsideration of the
March 9, 2015 decision. Counsel argued that appellant was responding to a direct order from his
supervisor to pack up and move his things from his home to the Fort Sam Houston Commissary
when he was injured on June 30, 2014. He asserted that appellant’s supervisor did not direct
appellant to pack up his things on a day prior to Monday, June 30, 2014, but rather specifically
told him to pack them up on June 30, 2014 and bring them with him.
By decision dated February 29, 2016, OWCP denied modification of its March 9, 2015
decision.
On April 1, 2016 appellant appealed to the Board. By decision dated February 13, 2017,6
the Board affirmed OWCP’s February 29, 2016 decision, finding that he had not shown that his
claimed June 30, 2014 injury occurred in the performance of duty. The Board found that appellant
was not at a place where he may have reasonably been expected to be in connection with the
employment when he fell at his home on June 30, 2014 because his duty station was the Fort Sam
Houston Commissary and his supervisor directed him to report there at 7:00 a.m. on that date. The
Board noted that appellant’s supervisor indicated that he had not authorized appellant to travel
6

See supra note 3.

3

back and forth between his home and the Fort Sam Houston Commissary on June 30, 2014.7 It
noted that appellant was expected to report to his duty station at the Fort Sam Houston Commissary
and perform his usual duties at the time of his fall on June 30, 2014. Therefore, he was not
reasonably fulfilling the duties of his employment or engaged in something incidental thereto at
the time of his June 30, 2014 fall.
On May 1, 2017 appellant, through counsel, requested reconsideration of his claim.
Counsel argued that appellant’s supervisor had the responsibility to make sure that appellant fully
understood his instructions in June 2014 particularly given that appellant had cognitive deficits
and did not process information the same way as everyone else. He asserted that appellant’s
supervisor failed to advise appellant that, if he had more items than he could bring in one trip, he
could bring the items to work with him on July 1, 2014. Counsel submitted a two-page excerpt
from an undated and unsigned report that described appellant’s cognitive functioning testing.
In a May 23, 2017 letter, an injury compensation specialist indicated that, prior to the
alleged June 30, 2014 incident, appellant teleworked 100 percent of his work schedule, which
required him to work independently without constant supervisory oversight and/or directions.
By decision dated June 14, 2017, OWCP denied modification.8
On August 1, 2017 appellant again appealed to the Board. By decision dated May 15,
2018, the Board affirmed OWCP’s June 14, 2017 decision, finding that he had not shown that his
claimed June 30, 2014 injury occurred in the performance of duty.
9

On March 7, 2019 appellant, through counsel, requested reconsideration. Counsel again
argued that appellant had cognitive deficits to such a degree that he was unable to understand his
supervisor’s instructions regarding the expectations of his work activities on June 30, 2014. In
support of this argument, counsel attached an August 6, 2018 report of Dr. Barbara Hardin, a
clinical psychologist.
In her August 6, 2018 report, Dr. Hardin advised that, as the former director of the Student
Psychological and Testing Services at St. Mary’s University, she supervised the program for
students with disabilities and was familiar with appellant’s situation and medical diagnosis. She
indicated that appellant was evaluated in the fall of 2000 to determine why he was having academic
difficulties and noted that, at the time, he was diagnosed with a nonverbal learning disability and
an auditory perceptual disorder. Dr. Hardin reported that, under the diagnostic system in use today,
this would be considered on the top of the autism spectrum and represented a lifelong
7
The Board indicated that, although the supervisor told appellant to “bring his work things” with him when he
reported to the Fort Sam Houston Commissary on June 30, 2014, this comment could not be reasonably interpreted as
approval for appellant to leave his workplace and travel back and forth between his home and his duty station during
the workday without prior approval.
8
The decision noted that it denied modification of the Board’s February 13, 2017 decision. OWCP is not authorized
to review Board decisions. Although the Board’s February 13, 2017 decision was the last merit decision prior to
OWCP’s issuance of its June 14, 2017 decision, OWCP’s February 29, 2016 decision was the appropriate subject of
possible modification by OWCP. See 20 C.F.R. § 501.6(d).
9

See supra note 3.

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developmental disorder which indicated that appellant has a particular difficulty understanding the
pragmatics of language and nonverbal cues. She maintained that appellant would have trouble
recognizing a person’s facial expression that most people would recognize as signifying annoyance
and that he would misunderstand sarcasm and take it literally. Dr. Hardin noted that this condition
was compounded by the diagnosis of auditory perceptual disorder. She advised that the examiner
who evaluated appellant in 2000 concluded, “[Appellant’s] difficulties with oral language and
visual auditory learning would likely suggest that he frequently misunderstands directions and has
trouble following lectures at class.... He appears to be unable to process visual and auditory
information simultaneously.”
Dr. Hardin further noted that the testing results from 2000 indicated that appellant had a
concrete approach to situations and weak recall or understanding of narrative information.
Appellant was below average in his ability to understand directions. Dr. Hardin indicated that
appellant’s strong points included his expressive vocabulary and reading decoding skills, but
asserted that these expression skills might make it appear that he understands more than he actually
does. She maintained that appellant’s disabilities would cause considerable functional limitations
in that he would interpret things literally and miss the subtle nuances of sarcasm, frustration, or
annoyance in language in the workplace. Dr. Hardin reported that appellant processed information
slower than most people and advised that he was provided assistance for note taking at St. Mary’s
University and was given additional time for examinations. She maintained that appellant did not
advocate well for himself and did not always recognize when he should clarify an interaction or a
directive.10
By decision dated June 5, 2019, OWCP denied modification.11
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”12 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”13 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in the master’s business, at a place where he or she may
10

In connection with the March 2019 reconsideration request, appellant, through counsel, also submitted an undated
personnel document from the employing establishment which indicated that he had a handicap of “94 -- Learning
Disability.” Appellant also submitted December 12, 2017 and May 9, 2018 duty status reports (Form CA-17) from
an attending physician who indicated that he was medically retired, as well as diagnostic testing reports from 2018
which evaluated his physical condition.
The decision noted that it denied modification of the Board’s May 15, 2018 decision. Although the Board’s
May 15, 2018 decision was the last merit decision prior to OWCP’s issuance of its June 5, 2019 decision, OWCP’s
June 14, 2017 decision was the appropriate subject of possible modification by OWCP. See supra note 8.
11

12

5 U.S.C. § 8102(a).

13

T.L., Docket No. 19-0805 (issued November 18, 2019); Charles Crawford, 40 ECAB 474, 476-77 (1989).

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reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something incidental
thereto.14 This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury.15
As a general rule, off-premises injuries sustained by employees having fixed hours and
place of work, while going to or coming home from work or during a lunch period, are not
compensable as they do not arise out of and in the course of employment, but are merely the
ordinary, nonemployment hazards of the journey itself, which are shared by all travelers.16 When
an employee has a definite place and time for work and the time for work does not include the
lunch period, the trip away from, and back to the premises for the purposes of getting lunch is
indistinguishable in principle from the trip at the beginning and end of the workday and is governed
by the same rules and exceptions.17 Exceptions to the general rule have been made in order to
protect activities that are so closely related to the employment itself as to be incidental thereto,18
or which are in the nature of necessary personal comfort or ministration.19
OWCP’s procedures address off-premises injuries sustained by workers who perform
service at home:
“Ordinarily, the protection of [FECA] does not extend to the employee’s home, but
there is an exception when the injury is sustained while the employee is performing
official duties. In situations of this sort, the critical problem is to ascertain whether
at the time of injury the employee was in fact doing something for the [employing

14
See A.S., Docket No. 18-1381 (issued April 8, 2019); D.L., 58 ECAB 667 (2007); Mary Keszler, 38 ECAB 735,
739 (1987).
15

D.C., Docket No. 18-1216 (issued February 8, 2019); Eugene G. Chin, 39 ECAB 598 (1988).

16

A.B., Docket No. 15-0288 (issued May 21, 2015); Donna K. Schuler, 38 ECAB 273-74 (1986).

17

Id.

18

The Board has stated that these exceptions have developed where the hazards of the travel may fairly be
considered a hazard of the employment and that they are dependent upon the particular facts and related situations:
(1) where the employment requires the employee to travel on the highways; (2) where the employing establishment
contracts to and does furnish transportation to and from work; (3) where the employee is subject to emergency calls
as in the case of firemen; and (4) where the employee uses the highway to do something incidental to his employment,
with the knowledge and approval of the employing establishment. B.P., Docket No. 14-0411 (issued July 17, 2014);
Betty R. Rutherford, 40 ECAB 496, 498-99 (1989).
19

Id.

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establishment]. The official superior should be requested to submit a statement
showing -(a) What directives were given to or what arrangements had been made with
the employee for performing work at home or outside usual working hours;
(b) The particular work the employee was performing when injured; and
(c) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.”20
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on June 30, 2014, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s June 14, 2017 merit decision because the
Board considered that evidence in its May 15, 2018 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.21
Therefore, the current analysis now will focus on the relevant evidence received since OWCP’s
June 14, 2017 merit decision, which is the evidence that was not before the Board when it last
reviewed appellant’s claim on May 15, 2018.
In support of March 2019 reconsideration request, appellant submitted an August 6, 2018
report of Dr. Hardin, a clinical psychologist who worked at St. Mary’s University when appellant
studied there. In this report, Dr. Hardin referenced an evaluation conducted by another examiner
at St. Mary’s University in 2000, 18 years prior. She generally indicated that the evaluation
showed that appellant was below average in his ability to understand directions. Dr. Hardin noted
that appellant was diagnosed with nonverbal learning disability and an auditory perceptual disorder
and she emphasized that these conditions made it difficult for him to recognize when he was
annoying people or when they were using sarcasm.
On appeal counsel argues that this report shows that appellant had cognitive deficits to such
a degree that he was unable to understand his supervisor’s instructions regarding the expectations
of his work activities on June 30, 2014. The Board notes that Dr. Hardin’s generalized referenced
to this evaluation from 2000 would be of limited utility in evaluating appellant’s ability to
understand an instruction from his supervisor given approximately 14 years later. The record does

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also S.F., Docket No. 09-2172 (issued August 23, 2010).
21

See B.R., Docket No. 17-0294 (issued May 11, 2018).

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not contain a complete, signed copy of the evaluation from 2000 referenced by Dr. Hardin and
therefore the specific basis for Dr. Hardin’s opinion on appellant’s cognitive abilities is unclear.22
The Board finds that appellant has not submitted convincing evidence that he did not have the
capability to understand his supervisor’s instructions in June 2014.23
In connection with the March 2019 reconsideration request, appellant also submitted an
undated personnel document from the employing establishment which indicated that he had a
handicap of “94 -- Learning Disability.” However, this vague reference to a learning disability
would not show that appellant was unable to understand the instructions given to him by his
supervisor in June 2014.
For these reasons, the Board finds that appellant has not established an injury in the
performance of duty on June 30, 2014, as alleged.
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 an injury in the
performance of duty on June 30, 2014, as alleged.

22
See K.C., Docket No. 18-1330 (issued March 11, 2019) (a report that is or bears an illegible signature lacks proper
identification and cannot be considered probative medical evidence as the author cannot be identified as a physician).
23

Moreover, the Board notes that there is other evidence in the case record which tends to show that appellant had
the capability to understand his supervisor’s instructions in June 2014. For example, appellant had performed his
security specialist position at home for an extended period without direct, onsite supervision.

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ORDER
IT IS HEREBY ORDERED THAT the June 5, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 5, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF THE ARMY, ARLINGTON
NATIONAL CEMETERY, Arlington, VA,
Employer
__________________________________________

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Appearances:
Stephen Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1684
Issued: January 24, 2013

Case Submitted on the Record

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

JURISDICTION
On August 6, 2012 appellant, through his attorney, filed a timely appeal from a
February 8, 2012 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability commencing September 18, 2004 causally related to his accepted
employment condition.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 1, 2000 appellant, then a 48-year-old cemetery caretaker, injured his upper back
when he lifted a landscaping timber. OWCP initially accepted cervical strain and later expanded
the claim to include aggravation of multilevel degenerative disc disease and disc herniation at
C7-T1. Appellant stopped work on June 2, 2000 and returned to restricted work on
June 5, 2000.2 On August 25, 2002 he was transferred from a maintenance worker to a motor
vehicle dispatcher under a term appointment effective August 25, 2002. On August 22, 2004
appellant’s term appointment as a motor vehicle dispatcher was extended to August 24, 2005.
He was granted disability retirement on September 18, 2004.
Appellant was treated by Dr. Paul DiMartino, a Board-certified orthopedist, from
October 30, 2000 to October 4, 2001 for a neck injury sustained in the June 1, 2000 lifting
incident at work. Dr. DiMartino diagnosed cervical herniated nucleus pulposus at C7-T1 and C8
radiculopathy. On February 27, 2001 he performed an authorized anterior cervical discectomy at
C7-T1, anterior cervical fusion with fibula allograft at C7-T1 and diagnosed herniated nucleus
pulposus C7-T1. In reports dated July 5 and October 4, 2001, Dr. DiMartino noted that appellant
could work with permanent restrictions. A September 29, 2000 cervical spine magnetic
resonance imaging (MRI) scan showed disc bulges at C6-7 and C6-T1 with some slight spinal
narrowing. An October 18, 2000 electromyogram (EMG) revealed left carpal tunnel syndrome
and evidence suggestive of left C7 or C8 radiculopathy.
In a June 15, 2004 report, Dr. DiMartino noted that an MRI scan revealed no evidence of
a fusion and opined that there was a nonunion at C7-T1. He advised that appellant was filing
retirement disability. A June 15, 2004 MRI scan of the cervical spine revealed a narrow spinal
cord but no cord compression and areas of spondylosis with mild foraminal narrowing but no
disc protrusion.3
A notice of personnel action dated September 24, 2004, noted that appellant retired on
disability effective September 18, 2004.
Appellant filed a CA-7, claim for compensation, alleging that he sustained wage loss
beginning September 18, 2004 as a result of separation from the employing establishment. The
employing establishment noted on the CA-7 that appellant was granted disability retirement on
September 18, 2004.
The claim was dormant for a number of years until OWCP received an inquiry from
appellant in July 2008. OWCP then developed the matter as a claim for a recurrence of disability
and requested additional evidence.

2

Appellant filed a claim for a right shoulder injury sustained on December 11, 1997 while using a jack hammer.
His claim was accepted for right shoulder sprain and internal derangement with partial thickness tear of the right
rotator cuff with surgery. This was developed in File No. xxxxxx718 which was combined with the present claim.
3

On July 29, 2004 appellant filed a CA-2a, claim for a recurrence of disability, alleging that on May 24, 2004 he
experienced recurrent neck pain causally related to his accepted condition. He stopped work on May 24, 2004 and
returned to work the next day. On November 4, 2004 OWCP accepted the claim.

2

In reports dated September 3 and 7, 2010, Dr. DiMartino noted appellant’s complaints of
neck and arm pain with numbness in the right arm and shoulder. He noted that motor strength
and sensation were intact in the lower and upper extremities and diagnosed diffuse degenerative
disease. On November 5, 2008 appellant was treated by Dr. Michael D. Barth, a Board-certified
orthopedist, for neck pain made worse by physical therapy. In a February 2, 2009 report,
Dr. Barth noted appellant’s complaints of lower cervical and upper thoracic spine pain radiating
into his arms stemming from a work-related accident. He diagnosed degenerative disc disease
with acute herniated nucleus pulposus. Appellant also submitted a physical therapy note as well
as medical reports that were previously of record.
The employing establishment noted that on August 24, 2002 appellant changed jobs from
a maintenance worker to a motor vehicle dispatcher which was a term appointment with an
initial termination date of August 24, 2004. On August 24, 2004 the appointment was extended
to August 24, 2005. The employing establishment noted that, when appellant worked as a motor
vehicle dispatcher on August 24, 2002, he retained his pay which lasted until his retirement. It
further noted that from May 29 until September 18, 2004 appellant worked eight hours of regular
pay on September 7, 2004 and five hours of overtime. It was noted that appellant’s position was
available until the end of his appointment on August 24, 2005 with no evidence it would have
been terminated early. Evidence from the employing establishment included an August 25, 2002
notification of personnel action which advised that appellant was transferred from a maintenance
worker to a motor vehicle dispatcher under a term appointment effective August 25, 2002 and
was entitled to pay retention. In an August 22, 2004 notification of personnel action, appellant’s
term appointment as a motor vehicle dispatcher was extended to August 24, 2005, with retained
pay. Also submitted were job descriptions for a maintenance worker and motor vehicle
dispatcher.
In a decision dated February 10, 2011, OWCP denied appellant’s claim for a recurrence
of disability commencing September 18, 2004.
Appellant requested an oral hearing which was held on December 8, 2011. He testified
that his job as a cemetery caretaker was physically demanding and he was unable to perform his
regular job. Appellant stated that the employing establishment proposed to terminate him for
medical inability to perform his job. He indicated that on July 31, 2002 he was given the option
of disability retirement or a position as a dispatcher which was a two-year appointment.
Appellant accepted the job as a dispatcher and asserted that the employing establishment would
not permit him to continue working the temporary job after the term ended. He indicated that the
extension of the term appointment for another year until 2005 was not offered to him until he
applied for disability retirement and that he never received the personnel action form. Appellant
further testified that the employing establishment offered to extend his term another year until his
disability retirement paperwork was finalized. His attorney asserted that the Agency
Certification of Reassignment and Accommodation Effort form submitted with the disability
retirement application noted that appellant could not be reassigned and, therefore,
accommodation was not possible when the term position expired in 2004. Appellant submitted a
July 31, 2002 proposed removal which advised that he would be removed from his job as a
cemetery caretaker based on the medical inability to perform the essential functions of his
position. The employing establishment advised that, in lieu of the proposed removal, he was

3

offered a two-year term position as a motor vehicle dispatcher or he could file for retirement
disability. Also submitted was a September 9, 2004 letter granting disability retirement.
In a decision dated February 8, 2012, an OWCP hearing representative affirmed OWCP’s
decision dated February 10, 2011.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty requirements.4
OWCP’s regulations define the term recurrence of disability as follows: “Recurrence of
disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition, which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.
This term also means an inability to work that takes place 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 or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.”5
Causal relationship is a medical issue,6 and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7
ANALYSIS
OWCP accepted appellant’s claim for cervical strain, aggravation of multilevel
degenerative disc disease and disc herniation at C7-T1 and authorized a discectomy and fusion
which was performed on February 27, 2001. On August 25, 2002 appellant was transferred from
a maintenance worker to a motor vehicle dispatcher under a term appointment and was provided
work within his restrictions. On August 22, 2004 his term appointment as a motor vehicle
dispatcher was extended to August 24, 2005. Appellant was granted disability retirement on
September 18, 2004. Thereafter he asserted a recurrence of disability. In the instant case,
appellant has not submitted sufficient evidence to support a change in the nature and extent of
the injury-related condition or a change in the nature and extent of the light-duty requirements.

4

Terry R. Hedman, 38 ECAB 222 (1986).

5

J.F., 58 ECAB 124 (2006); Elaine Sneed, 56 ECAB 373, 379 (2005); 20 C.F.R. § 10.5(x).

6

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

7

See Gary L. Fowler, 45 ECAB 365 (1994).

4

Appellant submitted reports from Dr. DiMartino but these reports are insufficient to
establish a recurrence of work-related disability beginning September 18, 2004. Certain of these
reports predate the period of claimed recurrent disability and do not otherwise support that
appellant would be unable to perform the duties of his position at the time of his retirement due
to his accepted conditions. In reports dated September 3 and 7, 2010, Dr. DiMartino noted
appellant’s complaints and symptoms and diagnosed diffuse degenerative disease. However,
Dr. DiMartino failed to note a specific date of a recurrence of disability or provide medical
rationale explaining how these symptoms and diagnosed conditions were causally related to the
accepted injury or note a particular change in the nature of appellant’s physical condition, arising
from the employment injury, that prevented him from performing his light-duty position.8
Additionally, the Board notes that the record is void of any evidence that appellant sought
medical treatment from June 15, 2004 until November 5, 2008 for the work-related condition.
There is no medical evidence contemporaneous to the alleged date of recurrence, September 18,
2004, which references a specific date of a recurrence of disability or note a spontaneous change
in the nature of appellant’s physical condition.
Dr. Barth treated appellant on November 5, 2008, for neck pain worsened by physical
therapy. In February 2, 2009 report, he noted that appellant presented with lower cervical and
upper thoracic spine pain radiating into his arms stemming from a work-related accident.
Dr. Barth diagnosed degenerative disc disease with acute herniated nucleus pulposus. However,
he did not list a specific date of a recurrence of disability nor did he note a particular change in
the nature of appellant’s physical condition which prevented him from performing his light-duty
position on September 18, 2004.
Other medical reports such as reports of diagnostic testing do not address how appellant
was unable to perform the duties of his motor vehicle dispatcher position beginning
September 18, 2004, when he voluntarily retired, due to a spontaneous change in his accepted
conditions. Appellant also submitted physical therapy notes. The Board has held that treatment
notes signed by a physical therapist are not considered medical evidence as these providers are
not a physician under FECA.9
The Board further finds that there is no credible evidence which substantiates that
appellant experienced a change in the nature and extent of the light-duty requirements or was
required to perform duties which exceeded his medical restrictions. Appellant asserted that on
July 31, 2002 he accepted a job as a dispatcher and indicated that the employer would not permit
him to continue working the temporary job after the term ended. His attorney asserted that his
light-duty job as a dispatcher was withdrawn as the Agency Certification of Reassignment and
Accommodation Effort form noted that he could not be reassigned. However, the Board finds
that the record contains no evidence substantiating that appellant’s job was withdrawn prior to
his voluntary retirement or that he was required to perform duties which exceeded his medical
8

It does not appear that appellant claimed any wage loss until November 7, 2007.

9

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 the 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).

5

restrictions. Rather, the record reflects that the employing establishment provided appellant jobs
within his restrictions. On August 22, 2004 the employing establishment extended his term
appointment as a motor vehicle dispatcher to August 24, 2005 and on September 18, 2004 he
was granted disability retirement. It noted that appellant’s position as a dispatcher was available
until the end of his appointment on August 24, 2005 and there was no evidence it would have
been terminated early or that appropriate light duties would not have been made available.
Rather, the evidence reflects that he worked until he voluntarily retired on September 18, 2004.
Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements after he returned to work.
On appeal, appellant, through his attorney, asserts that appellant’s light-duty position as a
dispatcher was temporary and was withdrawn such that his recurrence of disability commencing
September 18, 2004 should be accepted. As noted above, the Board notes there is no evidence
that his light-duty job was withdrawn on September 18, 2004. Rather, the evidence supports that
on August 22, 2004 appellant’s term appointment as a motor vehicle dispatcher was extended to
August 24, 2005 and that he continued to work until he voluntarily retired on
September 18, 2004. While the employing establishment may have provided appellant a
temporary position after his injury, the record indicates that it made appropriate light duty
available before he retired.
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 in establishing that he
sustained a recurrence of disability on September 18, 2004 causally related to his accepted
conditions.

6

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Brownsville, TX, Employer
__________________________________________

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

Docket No. 13-135
Issued: May 2, 2013

Case Submitted on the Record

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

JURISDICTION
On October 25, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated September 13, 2012 which denied his
request for a schedule award. 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 has a ratable hearing loss entitling him to a schedule
award.
FACTUAL HISTORY
On December 20, 2011 appellant, then a 31-year-old canine enforcement officer, filed a
claim alleging that he sustained permanent hearing loss at work. He became aware of his
1

5 U.S.C. § 8101 et seq.

hearing loss and realized it was causally related to his employment on December 20, 2011.
Appellant did not stop work and continues to be exposed to noise.
By letter dated December 27, 2011, OWCP advised appellant of the type of evidence
needed to establish his claim. In a letter of the same date, it requested that the employing
establishment address the sources of his noise exposure, decibel and frequency level, period of
exposure and hearing protection provided.
Appellant submitted a January 18, 2012 statement describing his employment history.
He noted that from December 1988 to June 1992 he worked with the U.S. Navy as a boiler
technician and was exposed to noise from steam turbines, fans and boilers for 8 to 10 hours per
day. From July 1993 to February 1995, appellant was employed at Trico Technologies Inc., as a
machine operator/maintenance mechanic and was exposed to noise while operating metal
forming presses and performing maintenance on machinery from 8 to 10 hours per day. From
January 1997 to February 1998 and November 1998 to February 2003, he worked at Atlantic
Tool and Die as a machine operator and was exposed to machinery noise while running
machinery. Earplugs were provided for hearing protection in these jobs. Since February 2003,
appellant worked at the employing establishment as an inspector and canine enforcement officer
and was exposed to noise from the cargo trucks, barking dogs and airplanes. He was provided
with earplugs and earmuffs for hearing protection. Appellant also submitted a January 4, 2012
audiogram from an audiologist.
The employing establishment submitted a January 26, 2012 statement, which noted that
appellant had workplace noise exposure at several firing ranges, an airport, a seaport and rail and
vehicle import lots. It was noted that appellant was exposed to noise from semi tractors, firearms
training four times a year, rail traffic, vehicle traffic, airplane jet engine noise and ship engine
room noise. He was hired at the employing establishment in February 2003 and worked eight
hours a day for five days a week and worked overtime for 1,927 hours from January 27, 2005 to
January 23, 2012. The employing establishment noted that ear protection was provided since
1990 during firearms qualifications. It submitted a noise monitoring report from July 6, 2004 for
the Los Indios International Bridge Facility in Brownsville, Texas, which revealed that the noise
exposures were below the eight hour, 85 decibel action level that the Occupational Safety and
Health Administration set for determining the need for entering workers into a hearing
conservation program.
On February 1, 2012 OWCP referred appellant to Dr. Gregory Rowin, a Board-certified
otolaryngologist, for an otologic examination and an audiological evaluation. In a February 27,
2012 report, Dr. Rowin noted examining appellant and noted his exposure to workplace noise.
He diagnosed mild high frequency sensorineural hearing loss which was due to the noise
exposure encountered in appellant’s job. Appellant reported chronic ringing in his ears.
Dr. Rowin advised that the audio and tympanograms were grossly normal but with small/mild
hearing loss at the 4,000 hertz range. He opined that the sensorineural hearing loss was due to
the noise exposure encountered in federal employment as the pattern was consistent with the
noise exposure. Dr. Rowin noted that the external canals and drums were normal bilaterally, the
tympanic membranes were intact and normal bilaterally and there was no active ear disease. He
performed an otologic evaluation of appellant on February 27, 2012 and audiometric testing was
conducted on his behalf on the same date. Testing at the frequency levels of 500, 1,000, 2,000

2

and 3,000 cycles per second revealed the following: right ear 15, 15, 20 and 25 decibels; left ear
15, 10, 15 and 20 decibels. Dr. Rowin opined that appellant had zero percent monaural hearing
loss and zero percent binaural hearing loss. He noted that tinnitus impacted the ability to
perform activities of daily living and noted five percent binaural hearing impairment due to
tinnitus. Dr. Rowin noted that appellant was at maximum medical improvement and did not
require hearing aids.
On June 12, 2012 an OWCP medical adviser reviewed Dr. Rowin’s report and the
audiometric test of February 27, 2012. He concluded that, in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment,2
(A.M.A., Guides), appellant had zero percent monaural hearing loss in each ear and zero percent
binaural hearing loss. The medical adviser determined that his hearing loss was not severe
enough to be ratable for a schedule award after applying OWCP’s current standards for
evaluating hearing loss to the results of the February 27, 2012 audiogram. He noted that
appellant reached maximum medical improvement on February 27, 2012. The medical adviser
indicated that Dr. Rowin recommended five percent permanent impairment for tinnitus but he
failed to provide any descriptive narrative as to how the presence of tinnitus impacted appellant’s
daily living. He noted that Section 11.2b, page 249 of the A.M.A., Guides provides that if
tinnitus interferes with activities of daily living including sleep, reading, enjoyment of quiet
recreation and emotional well-being up to five percent may be added to measurable binaural
hearing impairment. The medical adviser opined that, as appellant did not have any measurable
binaural hearing impairment, no impairment based on tinnitus was proper under the A.M.A.,
Guides.
On June 15, 2012 OWCP accepted appellant’s claim for bilateral hearing loss due to
noise exposure. On June 25, 2012 appellant filed a claim for a schedule award.
In a decision dated September 13, 2012, OWCP found that, although appellant’s hearing
loss was employment related, it was not severe enough to be considered ratable for purposes of a
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, 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

2

A.M.A., Guides (6th ed. 2008).

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

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all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.8 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.10 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.11
ANALYSIS
OWCP accepted that appellant sustained bilateral hearing loss due to noise exposure from
his federal employment. The issue is whether appellant sustained a ratable impairment in
accordance with the A.M.A., Guides, entitling him to a schedule award.
OWCP properly referred appellant to Dr. Rowin regarding his hearing loss. Dr. Rowin’s
February 27, 2012 report found that appellant’s mild high frequency sensorineural hearing loss
was due in part to his workplace noise exposure. He found that the hearing loss was not ratable
for schedule award purposes although he recommended five percent binaural impairment due to
tinnitus. In a June 12, 2012 report, an OWCP medical adviser reviewed Dr. Rowin’s findings
and concurred that appellant’s hearing loss was aggravated by his employment. The medical
adviser applied OWCP’s standardized procedures to the February 27, 2012 audiogram performed
for Dr. Rowin to determine if appellant’s hearing loss was ratable for schedule award purposes.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibels losses of 15, 15, 20 and 25, respectively. These decibels were totaled at 75 and
were divided by 4 to obtain an average hearing loss at those cycles of 18.75 decibels. The
average of 18.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to equal zero percent hearing loss for the right ear. Testing for the left ear at
the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibels losses of
5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides 250 (6th ed. 2008).

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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15, 10, 15 and 20 respectively. These decibels were totaled at 60 and were divided by 4 to obtain
the average hearing loss at those cycles of 15 decibels. The average of 15 decibels was then
reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to zero which
was multiplied by the established factor of 1.5 to compute a zero percent hearing loss for the left
ear.
The medical adviser further noted that Dr. Rowin recommended five percent permanent
impairment for tinnitus but he failed to describe how the tinnitus impacted appellant’s daily
living. The medical adviser further noted that, as appellant did not have any measurable binaural
hearing impairment, no impairment based on tinnitus is available under the A.M.A., Guides.12
Thus, the medical adviser concluded that appellant had no permanent impairment of his hearing
that warranted a schedule award.
The Board finds that the medical adviser applied the proper standards to Dr. Rowin’s
report and the February 27, 2012 audiogram. The result is a zero percent monaural hearing loss
and a zero percent binaural hearing loss as set forth above. Although the record contains one
other audiogram submitted by appellant, this is insufficient to establish a ratable hearing loss.
The January 14, 2012 audiogram is of no probative value as it was not certified by a physician as
accurate.13 Further, it would not otherwise be ratable for schedule award purposes as it shows
lesser hearing loss at the pertinent frequency levels than did the audiogram performed for
Dr. Rowin. The medical adviser also properly found that there was no entitlement to a schedule
award for tinnitus as appellant had not measurable binaural hearing impairment. The Board has
held that, where a claimant’s hearing loss is not ratable, the claimant is not entitled to an award
for tinnitus.14
On appeal, appellant asserts that OWCP decision was incorrect and he should have been
awarded a schedule award since his hearing loss was accepted as work related and because of
constant ringing in his ears. As explained, while he has an accepted bilateral hearing loss, his
hearing loss is not ratable under the standards used by OWCP. Since appellant’s hearing loss is
not ratable, he also is not entitled to a schedule award for tinnitus or ringing in his ears.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award for
hearing loss.
12

See A.M.A., Guides 249.

13

See also James A. England, 47 ECAB 115, 118 (1995) (finding that an audiogram not certified by a physician
as being accurate has no probative value; OWCP need not review uncertified audiograms). See Joshua A. Holmes,
42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be certified by a physician as
being accurate before it can be used to determine the percentage of hearing loss).
14

Juan A. Trevino, 54 ECAB 358 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 13, 2012 is affirmed.
Issued: May 2, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Monroe, LA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0600
Issued: May 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On February 9, 2016 appellant, through counsel, filed a timely appeal from
November 12, 2015 and February 3, 2016 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). As more than 180 days elapsed from December 20, 2012, the
date of the most recent OWCP merit decision, and the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 31, 2012 appellant, then a 57-year-old rural letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on October 30, 2012 her left knee “popped while turning
to push a mail cart out to load.” She stopped work on October 31, 2012.
Appellant submitted a November 1, 2012 duty status report from Dr. Floyd Jones, an
osteopath, who treated her for left lateral meniscus pain. Dr. Jones noted that appellant was
totally disabled. An October 31, 2012 x-ray of the left knee revealed no abnormalities.
By letter dated November 16, 2012, OWCP advised appellant that her claim was
originally received as a simple, uncontroverted case which resulted in minimal or no time loss
from work. Appellant’s claim had been administratively handled to allow medical payments up
to $1,500.00, but the merits of the claim had not been formally adjudicated. OWCP advised that
because appellant had not returned to full duty her claim would be formally adjudicated. It
requested that she submit additional information including a comprehensive medical report from
her treating physician with a reasoned explanation as to how the specific work factors
contributed to her claimed left knee injury.
Appellant submitted an attending physician’s report from Dr. Jones dated November 12,
2012 who diagnosed degenerative joint disease with effusion. Dr. Jones noted by checking a box
marked “yes” that appellant’s condition was caused or aggravated by an employment activity.
He returned appellant to work light duty. In a December 11, 2012 duty status report, Dr. Jones
diagnosed partial meniscus tear of the left knee, resolved. He noted that appellant could return to
work regular duty on December 11, 2012.
Appellant was treated by Dr. John Ledbetter, a Board-certified anesthesiologist, from
October 9 to December 10, 2012, for worsening neck and arm pain which radiated down the
shoulders. Dr. Ledbetter diagnosed cervicalgia in the neck, intervertebral disc with cervical
myelopathy, brachial neuritis, and cervical radiculitis. On November 12, 2012 he performed
cervical epidural steroid injections and diagnosed cervical radiculitis and intervertebral disc
disorder with myelopathy.
Appellant submitted a report from Dr. Jones dated December 12, 2012 who treated
appellant for a twisted left knee injury which had resolved. Dr. Jones noted that appellant had a
migraine which appeared to be triggered by her cervical condition.
By decision dated December 20, 2012, OWCP denied appellant’s claim for failing to
submit sufficient medical evidence to establish that the medical conditions were causally related
to the work incident.
On February 12, 2013 Dr. Jones noted treating appellant on January 30, 2013 for a
twisted left knee condition which had resolved. He noted that appellant continued to have
migraines secondary to her cervical disc condition.
In a June 27, 2013 report, Dr. Jones noted that appellant’s knee injury was denied by
OWCP as causal relationship was not established. He noted that appellant injured her knee on

2

October 30, 2012 while at work. Appellant reported pushing a cart weighing approximately 487
pounds and, when she turned, her knee “popped.” Dr. Jones diagnosed partial meniscus tear that
resolved. He noted that although appellant had mild osteoarthritis and degenerative changes he
opined that pushing the heavy cart aggravated her condition and caused the injury. Dr. Jones
indicated that he faxed the letter to OWCP and the employing establishment.
Appellant submitted a magnetic resonance imaging (MRI) scan of the left knee dated
November 8, 2012 which revealed degenerative changes of the medial joint compartment and
medial meniscus with no acute meniscal tear. She submitted a May 28, 2014 MRI scan of the
cervical spine, which revealed spinal and neural stenosis at C4-5 and C5-6, moderate disc
bulging, mild disc bulging at C6-7, and mild broad central and left paracentral disc protrusion at
C3-4.
On April 20, 2015 appellant submitted a signed appointment of representative appointing
her current counsel as her representative before OWCP. Also submitted was a letter dated
April 21, 2015 noting that she was no longer represented by her prior representative, Lenin
Perez.
In a letter dated May 20, 2015, OWCP acknowledged receipt of appellant’s authorization
to change his representative before OWCP and advised counsel that appellant’s claim had been
denied and instructed him to refer to the appeal rights attached to that decision if he wished to
appeal appellant’s claim.
In a letter dated October 24, 2015 and received on November 2, 2015, appellant
requested reconsideration. She indicated that shortly after her injury her attending physician
closed his practice which made it difficult to obtain her medical records. Appellant submitted a
floor plan of the work area which she believed explained the extenuating circumstances which
contributed to her injury. She also submitted information on the deficient equipment she was
issued at work. Appellant noted that she was released to limited duty on November 12, 2012 but
her supervisor denied her modified-duty request. She had been off work since June 17, 2014 due
to a separate work injury to her spine for which she had a spinal fusion. Appellant submitted a
statement of contributing factors to her injury on December 30, 2012, reiterated the factual
circumstances of her injury, and submitted additional information.
Appellant resubmitted the October 31, 2012 Form CA-1. She submitted a duty status
report dated November 1, 2012 from Dr. Jones who diagnosed lateral meniscus tear and cervical
disc disease. Dr. Jones noted that appellant was totally disabled. A duty status report from
Dr. Jones dated November 12, 2012 noted that appellant could return to work full time with
restrictions. In a December 3, 2012 report, he noted that appellant injured her left knee at work
on October 30, 2012. Appellant reported that while at work she turned to push a cart and her left
knee popped. Dr. Jones noted a left knee MRI scan revealed degenerative changes of the medial
joint compartment and medial meniscus. He diagnosed knee injury, swelling and degenerative
joint changes. Dr. Jones opined that appellant had osteoarthritis and degenerative joint changes
and the injury she sustained to her knee had aggravated these conditions as evidenced by the
swelling and tenderness observed in the area. He had returned appellant to light duty on
November 19, 2012.

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By decision dated November 12, 2015, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
On November 17, 2015 appellant, through counsel, again requested reconsideration.
Counsel asserted that the June 27, 2013 report from Dr. Jones was a reconsideration request. He
noted that the report did not contain the words “reconsideration” but indicated that there is no
requirement for those words to appear on the request. Counsel indicated that the report from
Dr. Jones dated June 27, 2013 constituted a valid and timely request for reconsideration and
should be sufficient for OWCP to conduct a merit review.
By decision dated February 3, 2016, OWCP denied appellant’s request for
reconsideration finding it was untimely filed and failed to demonstrate clear evidence of error. It
determined that Dr. Jones was not appellant’s authorized representative and appellant did not
request that her file be reviewed.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.2 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of the
OWCP decision for which review is sought.3 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.4
OWCP may not deny a reconsideration request solely because it was untimely filed.
When a claimant’s application for review is untimely filed, OWCP must nevertheless undertake
a limited review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.5
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant
to the issue that was decided by OWCP,6 is positive, precise, and explicit, and manifests on its
face that OWCP committed an error.7 The evidence must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must also
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
2

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

3

20 C.F.R. § 10.607(a).

4

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

5

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
6

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

7

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

4

show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.8
ANALYSIS
OWCP issued a merit decision in appellant’s claim on December 20, 2012. Appellant
requested reconsideration on October 24 and November 17, 2015. Both reconsideration requests
were more than one year after OWCP’s December 20, 2012 decision. Thus, the requests were
untimely filed.
In the most recent reconsideration request, counsel contends that the June 27, 2013 report
from Dr. Jones was a timely reconsideration request after the December 20, 2012 decision. He
acknowledged that the report did not contain the words “reconsideration” but indicated that there
is no requirement for those words to appear on a reconsideration request. Counsel also
contended that the report from Dr. Jones dated June 27, 2013 constituted a valid and timely
request for reconsideration and should be sufficient for OWCP to conduct a merit review.
However, appellant did not submit that document. In each of the examples provided by counsel
where a document was considered to be a request for reconsideration, the document had been
submitted by either appellant or his or her counsel or representative of record. The document in
this case was submitted by appellant’s treating physician.9 Dr. Jones was not appellant’s
authorized representative and thus could not act in her stead.10 OWCP regulations state that “an
employee (or representative)” may seek a reconsideration request.11 Appellant, therefore, did not
file a timely reconsideration request after OWCP’s December 20, 2012 decision. She must
therefore demonstrate clear evidence of error on the part of OWCP in the December 20, 2012
decision.
Appellant has failed to submit any evidence or argument which manifests on its face that
OWCP committed an error in its decision. In a letter dated October 24, 2015, and her statement
of contributing factors, appellant indicated that shortly after her injury her attending physician
closed his practice which made it difficult to obtain her medical records. Her assertions included
that she was required to use deficient equipment to perform her job and that her supervisor
denied her request for modified duty. Appellant submitted a statement of contributing factors to
her injury on December 30, 2012, reiterated the factual circumstances of her injury, and
submitted information supporting her challenge to OWCP’s denial of her knee injury claim.
While she addressed her disagreement with OWCP’s denial of her traumatic injury claim,
8

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

9

See id.; see also Nancy Marcano, 50 ECAB 110 (1998) (where the Board found that OWCP’s regulations
regarding the representation of claimants clearly requires that a written notice, signed by the claimant, appointing a
representative be sent to OWCP authorizing him to act as appellant’s official representative before OWCP for the
purpose of filing a reconsideration request).
10

See Ira D. Gray, 45 ECAB 445, 447 (1994).

11

See 20 C.F.R. § 10.606 (regarding how reconsideration is to be requested).

5

appellant’s general allegations do not raise a substantial question as to the correctness of
OWCP’s decision. OWCP properly found that appellant’s statements did not establish clear
evidence of error.
Following OWCP’s December 20, 2012 decision, appellant also submitted additional
medical evidence. In reports dated June 27 and December 3, 2013, Dr. Jones noted that
appellant’s knee injury was denied by OWCP as causal relationship was not established. He
noted that appellant injured her knee on October 30, 2012 pushing a cart weighing approximately
487 pounds when she turned and her knee “popped.” Dr. Jones diagnosed partial meniscus tear
that resolved. He noted that although appellant had mild osteoarthritis and degenerative changes
he opined that pushing the heavy cart aggravated her condition and caused the injury. Appellant
submitted duty status reports dated November 1 and 12, 2012 from Dr. Jones who diagnosed
lateral meniscus tear and cervical disc disease. Dr. Jones noted appellant’s disability status. In
reports dated December 12, 2012 and February 12, 2013, he noted treating her for a twisted left
knee injury which had resolved. Appellant also provided reports of diagnostic testing. Although
some of these reports support causal relationship, they are insufficient to demonstrate clear
evidence of error. 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 clear evidence of error.12 This evidence is not so positive, precise, and
explicit that it manifests on its face that OWCP committed an error. Consequently, the Board
finds that this medical evidence is insufficient to raise a substantial question as to the correctness
of OWCP’s decision. Thus, appellant has not demonstrated clear evidence of error.
On appeal, counsel reiterates assertions made before OWCP indicating that the report
from Dr. Jones dated June 27, 2013 constitutes a valid and timely request for reconsideration and
should be sufficient to warrant a merit review. As noted above, there is no evidence that
Dr. Jones was authorized to represent appellant on July 3, 2013. Section 10.700(a) of OWCP’s
implementing federal regulations regarding the representation of claimants clearly indicates that,
for a representative to be recognized by OWCP, a written notice, signed by the claimant,
appointing a representative must be sent to OWCP.13 As explained, appellant also has not
demonstrated clear evidence of error by OWCP.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

12

D.G., 59 ECAB 455 (2008); M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011).
13

20 C.F.R. § 10.700.

6

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2016 and November 12, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 25, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
FRESNO VA MEDICAL CENTER-VA
CENTRAL CALIFORNIA, Fresno, CA,
Employer
__________________________________________

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

Docket No. 20-0170
Issued: August 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 29, 2019 appellant, through counsel, filed a timely appeal from a
September 30, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1

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

The Board notes that, following the September 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Pursuant to the 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 her burden of proof to establish disability from work
for the period August 1 through October 3, 2018, causally related to her accepted June 15, 2018
employment injury.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On June 28, 2018 appellant then a 43-year-old nursing assistant filed a Form CA-1 alleging
that on June 15, 2018 she slipped on spilled coffee and fell while in the performance of duty. She
contended that she reinjured her left knee, left hip, left elbow, left shoulder, neck, and back.
OWCP assigned the claim OWCP File No. xxxxxx131.5
In a June 19, 2018 report, Dr. Daniel B. Brubaker, an osteopath, noted that appellant had
experienced a second fall at work.
In a July 9, 2018 report, Dr. Brubaker described appellant’s history of injury on June 15,
2018 and noted that she was on modified sedentary duty due to her accepted left meniscal tear and
lumbosacral radiculopathy when the second incident occurred.6 He diagnosed cervical spine
strain/sprain, cervical muscle spasm, cervicalgia, possible annular disc tears, thoracic spine strain,
spasm, and pain, and possible annular disc tear of the thoracic spine. Dr. Brubaker recommended
magnetic resonance imaging (MRI) scans to confirm whether appellant had annular disc tears in
her cervical and thoracic region. He indicated that she was totally disabled until July 31, 2018. In
a July 30, 2018 note, Dr. Brubaker opined that appellant was totally disabled from July 30 through
August 30, 2018 due to her cervical and thoracic back pain and possible disc tears. In a report of
even date, he indicated that appellant was continuing to work in her sedentary job.

3

5 U.S.C. § 8101 et seq.

4

Docket No. 19-0953 (issued October 7, 2019).

5

Appellant has two prior claims. On November 3, 2014 appellant filed a Form CA-1 alleging that she sustained a
right wrist sprain on October 30, 2014 when a patient kicked her in the right wrist while she was in the performance
of duty. That claim was administratively closed. On May 26, 2016 appellant filed a traumatic injury claim (Form
CA-1) alleging that on May 12, 2016 she sustained a left knee injury when her left knee struck a stairway wall during
an evacuation drill while in the performance of duty. OWCP assigned that claim OWCP File No. xxxxxx726 and, on
August 18, 2016, accepted it for lumbosacral radiculopathy and left knee cystic meniscus. Beginning July 10, 2016,
it paid her wage-loss compensation on the supplemental rolls and, effective December 10, 2016, placed her on the
periodic compensation rolls. On September 5, 2017 appellant returned to full-time, limited-duty work.
6

Dr. Brubaker recommended both lumbar and left knee surgeries for the previously accepted conditions.

2

On August 15, 2018 OWCP accepted the June 15, 2018 traumatic injury claim for cervical
sprain, thoracic sprain, and muscle spasm.
On August 27, 2018 appellant filed a claim for compensation (Form CA-7) requesting
leave without pay compensation for disability from work from August 1 through August 27, 2018.
In a September 12, 2018 development letter, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of additional evidence required and afforded her 30 days
to respond.
On August 23, 2018 Dr. Brubaker reviewed appellant’s history of injury on June 15, 2018,
conducted an examination and repeated his diagnoses. He recounted that appellant reported that
she was physically unable to continue her modified duties. Dr. Brubaker found that appellant was
totally disabled from work August 30 through December 31, 2018.
On October 3, 2018 appellant filed a Form CA-7 claim for wage-loss compensation for
disability from work for the period August 23 through October 3, 2018.
In an October 4, 2018 report, Dr. Brubaker reviewed appellant’s left knee and back MRI
scans and reported no significant findings. He recounted that appellant reported frequent falling
and a high pain level, which did not correlate with her diagnostic studies. Dr. Brubaker continued
to support appellant’s total disability through November 5, 2018.
In an October 10, 2018 report, Dr. Robert R. McIvor, Board-certified orthopedic surgeon,7
reviewed appellant’s medical history and recommended left knee surgery. He completed a work
capacity evaluation and provided restrictions including walking two hours, standing three hours,
and one hour of bending and stooping. Dr. McIvor found appellant could not squat, kneel, or
climb. He limited appellant’s pushing, pulling, and lifting to 15 pounds, no more than one hour
per day.
On November 5, 2018 Dr. Brubaker found that appellant had no evidence of disc pathology
in her cervical or thoracic spine. He opined that appellant either exaggerated her pain or had an
extremely low pain tolerance. Dr. Brubaker concluded that appellant’s cervical and thoracic
conditions had resolved and that she could return to her sedentary job due to her accepted lumbar
and left knee conditions.
By decision dated March 13, 2019, OWCP denied appellant’s claim for disability for the
period August 1 through October 3, 2018. On March 19, 2019 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review.
During the hearing held on July 17, 2019, appellant testified that when she returned to work
in January 2019, following the June 15, 2018 employment injury, the employing establishment
7

Dr. McIvor was designated as an impartial medical adviser to resolve a conflict of medical opinion regarding
appellant’s need for surgical treatment of her back and left knee due to the accepted May 12, 2016 employment
injuries.

3

required additional work duties including making beds. Appellant asserted that she had been
totally disabled from work since August 1, 2018.
By decision dated September 30, 2019, OWCP’s hearing representative affirmed the
March 13, 2019 denial of appellant’s claim for disability compensation, finding that she had not
met her burden of proof to establish that she was totally disabled from work beginning August 1,
2018 due to her accepted cervical and thoracic sprains.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.8 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.9 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.10
Under FECA, the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.11 The question of whether
an employee is disabled from work is an issue that must be resolved by competent medical
evidence.12 The employee is responsible for providing sufficient medical evidence to justify
payment of any compensation sought. For each period of disability claimed, the employee has the
burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.13
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.14 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of

8

Supra note 3.

9

B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018);
Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
10

20 C.F.R. § 10.5(f); B.O., id.; N.M., Docket No. 18-0939 (issued December 6, 2018); R.C., 59 ECAB 546,
551 (2008).
11

Id.; T.A., Docket No. 18-0431 (issued November 7, 2018); Amelia S. Jefferson, 57 ECAB 183 (2005).

12

S.A., Docket No. 18-0399 (issued October 16, 2018); R.C., 59 ECAB 546, 551 (2008).

13

S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon
Kharabi, 52 ECAB 291, 293 (2001).
14

S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

4

the relationship between the diagnosed condition and the specific employment factors identified
by the employee.15
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period August 1 through October 3, 2018, causally related to her accepted June 15,
2018 employment injury.
In support of her claims for compensation, appellant submitted reports from Dr. Brubaker
beginning July 9 through August 23, 2018 describing her history of injury on June 15, 2018.
Dr. Brubaker diagnosed cervical spine strain/sprain, cervical muscle spasm, cervicalgia, possible
annular disc tears, thoracic spine strain, spasm, and pain, and possible annular disc tear of the
thoracic spine. He determined that appellant was totally disabled through December 31, 2018 due
to the diagnosed cervical and thoracic conditions. The Board finds that these reports lack sufficient
probative value to establish employment-related disability during the period claimed.
Dr. Brubaker did not discuss how the accepted employment injury was competent to cause
disability during the claimed periods. The Board has held that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.17 As such, these reports are insufficient
to establish appellant’s claim for compensation.
On August 23, 2018 Dr. Brubaker recounted that appellant continued to report that she was
physically unable to continue her modified duties. This note is insufficient to meet appellant’s
burden of proof to establish a period of disability as Dr. Brubaker did not provide an opinion that
appellant was totally disabled, instead he relied on appellant’s assessment of her condition. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship.18
Therefore, this note is also insufficient to establish appellant’s claim for compensation.
Likewise, in his October 4 and November 5, 2018 reports, Dr. Brubaker did not provide an
opinion on the causal relationship between appellant’s claimed disability and her accepted June 15,
15
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
16

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

17

M.N., Docket No. 18-0741 (issued April 2, 2020); L.G., Docket No. 19-0142 (issued August 8, 2019); C.M.,
Docket No. 14-0088 (issued April 18, 2014).
18

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

2018 employment injury. Accordingly, these reports are also of no probative value and are
insufficient to establish appellant’s claim for compensation.19
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work during the claimed period as a result of the accepted
employment injury.20 Because the medical opinion evidence of record is insufficient to establish
employment-related disability during the period August 1 through October 3, 2018 as a result of
her accepted cervical and thoracic conditions, the Board finds that she has not met her burden of
proof to establish her claim for disability compensation.
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 disability from
work for the period August 1 through October 3, 2018, causally related to her accepted June 15,
2018 employment injury.

19

Id.; see also J.T., Docket No. 19-1813 (issued April 14, 2020); M.J., Docket No. 19-1287 (issued January 13,
2020); M.M., Docket No. 18-0817 (issued May 17, 2019); M.C., Docket No. 16-1238 (issued January 26, 2017).
20

Supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7