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

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

Docket No. 19-0439
Issued: June 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 21, 2018 appellant filed a timely appeal from September 10 and
November 20, 2018 nonmerit decisions of the Office of Workers’ Compensation Programs
(OWCP).1 As more than 180 days has elapsed from the last merit decision, dated May 17, 2018,

1

After filing the current appeal, appellant also requested reconsideration from OWCP. By decision dated
February 20, 2019, OWCP declined to reopen appellant’s claim for consideration of the merits. The Board and OWCP
may not exercise simultaneous jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R. § 501.2(c)(3).
Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a further decision
regarding the issue(s) on appeal until after the Board relinquishes jurisdiction. Id. Thus, the February 20, 2019 OWCP
decision denying appellant’s request for reconsideration of the merits of the claim are null and void. See id.; Terry L.
Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990).

to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 6, 2017 appellant, then a 57-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, while in the performance of duty, she was walking on
uneven ground in the rain and carrying a mailbag weighing 10 to 15 pounds, when she felt her
back pop. She alleged that she sustained back and right leg pain.
On April 6, 2017 the employing establishment provided appellant with an authorization for
examination and/or treatment (Form CA-16). A physician, whose signature is illegible, completed
this part B of this form (attending physician’s report) on March 31, 2017 and reported that
appellant injured her back while delivering mail. He diagnosed intervertebral disc disorder. The
physician checked a box marked “yes” indicating that he believed that appellant’s diagnosed
condition was related to her history of injury.
On May 4, 2017 appellant reported previous employment-related spine surgery in 2013.
In a development letter dated June 13, 2017, OWCP noted that when appellant’s claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work. It,
therefore, authorized payment of a limited amount of medical expenses without formally
considering the merits of the claim. OWCP advised appellant of the deficiencies of her claim and
requested additional factual and medical evidence from appellant. It afforded her 30 days for a
response.
In a report dated May 8, 2017, Dr. Nilda Durany, a family practitioner, examined appellant
due to low back pain and radicular leg pain. She described appellant’s history of injury on
March 30, 3017 noting her 35-pound mail satchel shifted to the right and twisted her back causing
it to “pop.” Dr. Durany found spasm, tenderness, pain, and edema in the lumbosacral spine. She
reported positive straight leg raising and nerve root compression. Dr. Durany diagnosed facet
syndrome on the right at L5-S1, lumbosacral radiculopathy, degenerative disc disease of the
lumbar spine, and lumbosacral osteoarthritis. She concluded that the injury on March 30, 2017
was the direct cause of appellant’s diagnosed lumbar conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to 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.

2

By decision dated July 24, 2017, OWCP denied appellant’s traumatic injury claim finding
that the medical evidence submitted did not provide medical rationale needed to establish causal
relationship between her diagnosed lumbar conditions and her accepted employment incident of
March 30, 2017. It concluded, therefore, that the requirements had not been met to establish an
employment injury or condition.
On August 9, 2017 appellant requested reconsideration of the July 24, 2017 merit decision.
On August 4, 2017 Dr. Durany added an addendum to her May 8, 2017 note and opined that the
injury on March 30, 2017 was caused by appellant’s 35-pound mail satchel shifting to the right
which caused her back to twist and pop. She found that this injury aggravated appellant’s L5-S1
facet arthropathy, lumbar degenerative disc disease, and lumbar osteoarthritis which were
preexisting and causing lumbosacral radiculopathy. In an August 14, 2017 narrative statement,
appellant asserted that on March 30, 2017 she was carrying a full mailbag weighing 30 pounds
which caused her to walk unevenly due to the weight on her shoulders. She felt a pop or twist in
her back. Appellant’s right leg then periodically began to feel numb.
By decision dated November 8, 2017, OWCP denied modification of the July 24, 2017
decision.
On February 5, 2018 appellant requested reconsideration of the November 8, 2017 merit
decision.
On January 29, 2018 Dr. Durany opined that appellant experienced a traumatic aggravation
to her lower back on March 30, 2017 caused by her 35-pound mail satchel shifting to the right
resulting in twisting and popping of appellant’s lower back. She found that the shifting weight
caused a twisting injury to appellant’s lumbosacral spine, which permanently aggravated,
accelerated, and exacerbated her preexisting lumbosacral degenerative disc disease and L5-S1
facet arthropathy causing lumbosacral radiculopathy. Dr. Durany concluded that this aggravation
was a permanent change in appellant’s back condition.
By decision dated May 17, 2018, OWCP denied modification of the November 8, 2017
merit decision.
On June 18, 2018 appellant requested reconsideration of the May 17, 2018 merit decision.
She provided a report dated June 6, 2018 from Dr. Durany relating her history of injury on
March 30, 2017. Dr. Durany diagnosed mild active facet arthropathy on the right at L5-S1 and
explained that this condition was a currently progressive disease or abnormality of the facet joints.
She also explained that lateral recess stenosis was a narrowing of the space within the rear side of
the spinal canal. Dr. Durany further explained that on March 30, 2017 appellant’s 35-pound mail
satchel slipped on her shoulder and shifted to the right causing appellant’s back to twist. She noted
that as appellant’s lower back twisted with the added 35 pounds of force from the mailbag, it
caused the “vertebrae at L4-5 and L5-S1 to twist and rotate past its physiological limit, releasing
nitrogen gas, which caused the ‘pop’ and as the vertebrae twisted, the facet joint at L5-S1 separated
momentarily past its physiological limit and accelerated and permanently aggravated the
preexisting facet arthropathy osteoarthritis.” Dr. Durany further found that the rotational injury
also caused the L4-5 joint to rotate past its physiological limit permanently aggravating preexisting
stenosis at L4-5 and impinging the left L5 descending nerve.

3

By decision dated September 10, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
Appellant again requested reconsideration on September 20, 2018 and submitted a May 8,
2017 progress report by Dr. Durany who concluded that appellant’s diagnosed lumbar conditions
were the “direct result of her required work duties for the [employing establishment] on
March 30, 2017.” She resubmitted a portion of Dr. Durany’s May 8, 2017 narrative report
discussing causal relationship between the mechanism of the March 20, 2017 employment incident
and the diagnosed back conditions. To this report Dr. Durany added that the “injury aggravated
[appellant’s] L5-S1 facet arthropathy, lumbar degenerative disc disease and lumbar osteoarthritis
which was preexisting and is causing the lumbosacral radiculopathy.”
Appellant also resubmitted January 29 and June 6, 2018 medical reports by Dr. Durany,
who reiterated her opinion contained in the previously discussed addendum to her May 8, 2017
narrative report.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on application
by a claimant.4 One such limitation is that the request for reconsideration must be received by
OWCP within one year of the date of the decision for which review is sought.5
To require OWCP to reopen a timely application for merit review under section 8128(a) of
FECA, OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.7 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.8 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.9
6

4

5 U.S.C. § 8128(a).

5
20 C.F.R. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must
be received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
6

Supra note 4.

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.607(a).

9

A.G., Docket No. 18-1720 (issued May 7, 2019); C.F., Docket No. 18-0583 (issued October 16, 2018).

4

When reviewing an OWCP decision denying merit review, the function of the Board is to
determine whether OWCP properly applied the standards set forth at section 10.606(b)(3) to the
claimant’s application for reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
The underlying issue on appeal was whether appellant submitted sufficient rationalized
medical opinion evidence to establish a back condition causally related to her accepted March 30,
2017 employment incident. With her reconsideration requests, appellant did not attempt to show
that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by OWCP. Consequently, she was not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(3).11
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
submitted new medical evidence from Dr. Durany, which addressed the relevant issue of causal
relationship. Her May 8, 2017 progress note and narrative both addressed causal relationship
between the diagnosed back conditions and the accepted March 30, 2017 employment incident. In
the May 8, 2017 narrative report, Dr. Durany opined that the March 30, 2017 “injury aggravated
her L5-S1 facet arthropathy, lumbar degenerative disc disease and lumbar osteoarthritis which was
preexisting and is causing the lumbosacral radiculopathy.” In her June 6, 2018 report, she offered
a medical explanation of the physiological processes by which appellant’s March 30, 2017
employment incident aggravated her preexisting conditions of facet arthropathy osteoarthritis and
stenosis at L4-5 resulting in impingement of the left L5 descending nerve.
The Board finds that the opinions and reasoning expressed in Dr. Durany’s May 8, 2017
addendum and her June 8, 2018 report, constitute relevant and pertinent new evidence not
previously considered by OWCP. Dr. Durany’s opinions directly addressed the basis upon which
OWCP denied appellant’s claim as it addressed the issue of causal relationship between her
accepted employment incident and her diagnosed aggravations of preexisting lumbar conditions.12
In support of a request for reconsideration, an appellant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.13 He or she needs only to submit
relevant, pertinent evidence not previously considered by OWCP.14 The Board thus finds that

10

20 C.F.R. § 10.608(b).

11

T.G., Docket No. 18-1064 (issued April 26, 2019).

12

Id.

13

Id.; J.F., Docket No. 17-1508 (issued March 28, 2018).

14

T.G., supra note 11.

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appellant’s request for reconsideration met one of the standards for obtaining a merit review of her
case. Accordingly, she is entitled to a merit review.15
The Board will, therefore, set aside OWCP’s September 10, and November 20, 2018
decisions. Following such further development of the evidence as might be necessary, OWCP
shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s requests for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 20 and September 10, 2018 decisions
of the Office of Workers’ Compensation Programs are set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: June 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

15

The Board notes that where an employing establishment properly executes a Form CA-16 authorizing medical
treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim. See
Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to
60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c)

6


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

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

Docket No. 08-2307
Issued: June 19, 2009

Case Submitted on the Record

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

JURISDICTION
On August 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 6, 2008 merit decision concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$2,066.20 overpayment of compensation; and (2) whether the Office properly determined that
appellant was at fault in creating the overpayment, thereby, precluding waiver of recovery of the
overpayment.
FACTUAL HISTORY
In January 2004, the Office accepted that appellant, then a 53-year-old custodian,
sustained a temporary aggravation of arthritis of his right thumb. It paid him compensation for

periods of disability. Effective April 22, 2005, appellant elected to receive benefits from the
Office of Personnel Management (OPM).1
The record contains documents which establish that on May 14, 2005 the Office issued
appellant a $2,382.36 compensation check covering the period April 17 to May 14, 2005.2
Appellant’s bank statement shows that he deposited the $2,382.36 check into his account on
May 18, 2005.
In a May 21, 2008 notice, the Office advised appellant that it had made a preliminary
determination that he received a $2,066.20 overpayment of compensation because he elected to
receive benefits from OPM beginning April 22, 2005 but continued to receive compensation
benefits under the Federal Employees’ Compensation Act through May 14, 2005. It made a
preliminary determination that he was at fault in the creation of the overpayment because he was
aware or should have been aware that he was not entitled to receive dual benefits. Regarding the
calculation of the overpayment, the Office stated:
“The claimant was compensated for the period of April 17, 2005 through May 14,
2005 (28 days) and was only entitled to compensation from April 17, 2005
through April 21, 2005 (5 days) creating an overpayment for 23 days. The
claimant received a gross compensation of $2,515.38 which was divided by the 28
day cycle: $2,515.38 divided by 28 days = $89.8350 x 23 days of overpayment =
$2,066.20.”
In an overpayment questionnaire completed on June 14, 2008, appellant requested waiver
of the claimed overpayment and argued that he was not at fault in its creation. He stated that he
did not receive his first retirement check from OPM (in the amount of $1,772.29) until July 11,
2005, adding: “That last workman’s compensation check helped me, my wife and four sons to
survive at that time for two months before I started to receive my first retirement check.”
In an August 6, 2008 decision, the Office finalized its preliminary determination that
appellant received a $2,066.20 overpayment of compensation because he elected to receive
benefits from OPM beginning April 22, 2005 but continued to receive Office compensation
benefits through May 14, 2005. It further found that he was at fault in the creation of the
overpayment because he knew or should have known from the check payment dates and voucher
that the Office paid him through May 14, 2005 while he was receiving OPM benefits for the
period April 22 to May 14, 2005.3
1

On July 11, 2005 appellant received his first OPM benefits check, a $1,772.29 check covering the period
April 22 to June 30, 2005. The record contains a document which advised him regarding the period covered by this
check.
2

The gross amount of compensation appellant received was $2,515.38 but the actual check was for $2,382.36
because insurance premium obligations were deducted from the gross amount.
3

The Office directed appellant to send it a check in the amount of $2,066.20. As recovery from continuing
compensation benefits under the Federal Employees’ Compensation Act is not involved in this case, the Board has no
jurisdiction over the amount the Office determined that appellant should repay each month. Levon H. Knight, 40
ECAB 658, 665 (1989).

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Act provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”5
Section 8116(a) of the Act provides that, while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.6
ANALYSIS -- ISSUE 1
The evidence of record establishes that appellant received a $2,066.20 overpayment of
compensation. On May 14, 2005 the Office issued appellant a $2,382.36 compensation check
covering the period April 17 to May 14, 2005.7 Appellant’s bank statement shows that he
deposited the check into his account on May 18, 2005. However, effective April 22, 2005,
appellant elected to receive benefits from OPM. Therefore, he was not entitled to receive
compensation under the Act for the portion of the check which covered the period April 22 to
May 14, 2005 as this created a double recovery.8 The Office properly calculated that the portion
of the check to which appellant was not entitled equaled $2,066.20.9 For these reasons, it
properly found that appellant received a $2,066.20 overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that, where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.10 The only exception to this requirement is a
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a).

7

The gross amount of Office compensation that appellant received was $2,515.38.

8

See supra note 6 and accompanying text.

9

The Office noted that the $2,515.38 gross compensation payment covered a period of 28 days and then
calculated that the per day rate of compensation was $89.8350. It multiplied this per day rate of compensation times
the 23 days of compensation that appellant was not entitled to receive (April 22 to May 14, 2005) to find that
appellant received a $2,066.20 overpayment.
10

5 U.S.C. § 8129(a).

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situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”11 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.12
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to
be incorrect….”13
Section 10.433(c) of the Office’s regulations provides:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”14
ANALYSIS -- ISSUE 2
The evidence of record shows that appellant accepted monies that he knew or should
have known to be incorrect. The evidence of record clearly confirms that appellant was advised
that his OPM benefits would begin April 22, 2005 and that he would not be entitled to receive
benefits from the Office under the Act after April 21, 2005. In mid May 2005, appellant
received a check for workers’ compensation (in the gross amount of $2,515.38) and was advised
that the check covered the period April 17 to May 14, 2005. He knew or should have known that
he was not entitled to that portion of the check covering the period April 22 to May 14, 2005.
Appellant had no reason to believe that the portion of the check covering the period April 22 to
May 14, 2005 represented compensation to which he was entitled. He did not receive his first

11

Id. at § 8129(b).

12

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

13

20 C.F.R. § 10.433(a).

14

Id. at § 10.433(c).

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OPM check until July 2005 and there would have been no reason for him to have been confused
about the source of the Office check he received in May 2005 or the period that it covered.15
For these reasons, appellant was at fault in the creation of the $2,066.20 overpayment of
compensation. An individual who is at fault in the creation of an overpayment is not entitled to
waiver of that overpayment.16 Therefore, the Office properly determined that appellant was not
entitled to waiver of the $2,066.20 overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received a $2,066.20
overpayment of compensation. The Board further finds that the Office properly determined that
appellant was at fault in the creation of the overpayment and that, therefore, the overpayment
was not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 6, 2008 decision is affirmed.
Issued: June 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

In an overpayment questionnaire completed on June 14, 2008, appellant indicated that he did not receive his
first retirement check from OPM until July 11, 2005 and stated, “That last workman’s compensation check helped
me, my wife and four sons to survive at that time for two months before I started to receive my first retirement
check.” He provided no explanation for why he felt that he was actually entitled to receive Office compensation for
the period beginning April 22, 2005.
16

See supra note 12 and accompanying text.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, SANTA FE POST
OFFICE, Santa Fe, NM, Employer
__________________________________________

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

Docket No. 21-0774
Issued: January 11, 2022

Case Submitted on the Record

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

JURISDICTION
On April 28, 2021 appellant filed a timely appeal from a March 3, 2021 merit decision and
an April 8, 2021 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a back
condition causally related to the accepted factors of her federal employment; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 7, 2021 appellant, then a 47-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained chronic back pain, spondylosis, joint degeneration,
and posterior displacement causally related to factors of her federal employment including
carrying over 75 pounds daily up and down stairs, as well as repetitive bending, twisting, and
lifting for over 24 years. She indicated that she first became aware of her condition and its
relationship to her federal employment on November 4, 2020. Appellant stopped work on
December 1, 2020.
Appellant explained in a narrative statement dated January 5, 2021 that she began to
experience lower back pain in November 2014, which was severe when she stood or lifted. She
made an appointment to see her physician on November 24, 2014 and saw him for chronic lower
back pain at least twice a year thereafter. The pain had progressed and worsened every year.
Appellant noted that duties of her federal employment included daily lifting of over 75 pounds,
reaching for parcels and mail, and walking/twisting during mail delivery. She stated that the
damage to her back and body had caused her to be unable to perform her required dut ies of
employment.
In a report dated November 24, 2014, Dr. Mustapha Abouda, a Board-certified family
practitioner, examined appellant for complaints of low back pain with an onset two months prior.
On physical examination of appellant’s back, he observed tenderness to palpation of the sacroiliac
joint. Dr. Abouda diagnosed low back pain. On January 11, 2016 he examined appellant for
complaints of spastic pain of her lower back and tingling/numbness of the fingers of her left hand.
Dr. Abouda noted that appellant had discogenic disease of the lumbar spine. On physical
examination he observed a positive Phalen’s test of the left hand. Dr. Abouda diagnosed left carpal
tunnel syndrome and low back pain.
On September 21, 2016 Dr. Abouda screened appellant for depression and diagnosed a
moderate single current episode of major depressive disorder. On January 16, 2017 he examined
appellant for low back pain. Dr. Abouda diagnosed low back pain, and a moderate single current
episode of major depressive disorder. On July 10, 2017 he examined appellant for complaints of
exacerbation of low back pain. Dr. Abouda noted a history of arthritis and discogenic disease of
the lumbar spine. On physical examination of the back, he observed tenderness to palpation and
a positive Patrick’s test. Dr. Abouda diagnosed low back pain. On May 14, 2018 he examined
appellant for complaints of right shoulder and right-sided low back pain with radiation to her right
leg. Dr. Abouda noted that an x-ray taken a few years prior demonstrated degenerative disc
disease. On physical examination of the right shoulder he observed some discomfort on range of
motion testing, as well as tenderness on palpation anteriorly and laterally. Dr. Abouda diagnosed
acute pain of the right shoulder, lumbago with sciatica, and other chronic pain.
In a report dated January 17, 2019, Dr. Abouda examined appellant for complaints of leftsided chest wall pain. On physical examination, he observed tenderness along the lower ribs of
the left side. Dr. Abouda diagnosed chest wall pain. On September 18, 2019 he examined
appellant for shoulder and back pain. Dr. Abouda noted that she presented with complaints of
exacerbation of her low back pain. On physical examination he observed that her back was normal
with no tenderness on palpation to the lumbar spine, a normal straight leg test, and a negative

2

Patrick’s test. Dr. Abouda diagnosed right-sided lumbago with sciatica. On July 7, 2020 he
examined appellant for low back pain. Dr. Abouda noted that appellant had a long history of low
back pain due to discogenic disease. On physical examination he noted a negative straight leg test
bilaterally. Dr. Abouda diagnosed bilateral lumbago with sciatica and other chronic pain. On
December 17, 2020 he examined appellant for complaints of exacerbation of lower back pain. On
physical examination Dr. Abouda observed a positive straight leg test on the right. He diagnosed
right-sided lumbago with sciatica.
An x-ray of the lumbar spine obtained on December 17, 2014 demonstrated limited
degenerative changes in the lower lumbar spine with moderate facet arthropathy and moderate-tomoderately significant discogenic degeneration at the lumbar sacral junction.
A magnetic resonance imaging (MRI) scan of the lumbar spine obtained on September 23,
2019 demonstrated degenerative changes predominantly at L4-5 and L5-S1, with lateral recess
stenosis on the right and descending nerve root impingement, as well as right neural f oraminal
stenosis.
An MRI scan of the lumbar spine obtained on December 23, 2020 demonstrated multilevel
spondylosis with a disc bulge at L3-4, resulting in abutment of the descending L4 nerve roots
bilaterally in the subarticular zones, a disc bulge at L4-5 with superimposed extrusion resulting in
abutment of the descending L5 nerve roots bilaterally, a disc bulge at L5-S1 with superimposed
extrusion resulting in posterior displacement of the descending S1 nerve roots bilaterally and very
mild neuroforaminal stenosis, and multilevel hypertrophic facet joint degeneration.
In a letter dated January 14, 2021, the employing establishment challenged appellant’s
occupational disease claim.
In a development letter dated January 22, 2021, OWCP informed appellant that the
evidence submitted was insufficient to establish her claim. It advised her of the type of medical
evidence needed, including a report containing a medical diagnosis and a comprehensive narrative
report from a qualified physician explaining how factors of her federal employment caused,
contributed to, or aggravated a diagnosed condition. OWCP afforded appellant 30 days to respond
and submit additional evidence.
In a report dated February 10, 2021, Dr. Abouda stated that appellant had been his patient
since 2011. He noted that she had a long history of low back pain with sciatica and that MRI scans
of her lower back demonstrated advanced degenerative disc disease. Dr. Abouda stated that her
pain had been fluctuating from moderate to severe and that it had impacted her daily life, including
her sleep and her mood. Appellant had completed physical therapy and had been on pain
management for her symptoms, which had worsened as of late. Dr. Abouda opined that her duties
of her federal employment including heavy lifting, bending, and twisting had exacerbated her
condition and that he believed that her position as a mail carrier “may have” contributed to and
agitated this condition.
On February 11, 2021 appellant replied to OWCP’s development questionnaire. She
explained that, while she had first made an appointment with her physician in November 2014 for
her low back pain, she was not aware at the time of the relationship between her condition and her

3

federal employment. Appellant only became aware of this relationship in November 2020 when
her condition worsened and filed her claim approximately eight weeks after she became aware.
By decision dated March 3, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted factors of her f ederal employment.
On March 30, 2021 appellant requested reconsideration. With her request, she submitted
a March 23, 2021 report by Dr. Abouda, who noted that appellant had a long history of chronic
low back pain, ranging from moderate to severe for which she underwent physical therapy and
pain management treatments. He reported that heavy lifting, bending and twisting mail have
exacerbated her condition. Dr. Abouda concluded that he believed appellant’s occupation as a
mail carrier “has contributed and agitated her condition.”
Additionally, appellant submitted a March 29, 2021 unsigned note on the letterhead of a
medical facility. The statement explained that medical evidence demonstrated that the diagnosis
of multilevel spondylosis was caused by wear and tear, and that having a job requiring repetitive
movement and weight-bearing involving the spine was a direct contributor to spondylosis. It noted
that appellant had performed duties of her federal employment, including repetitive movements
and continuous heavy lifting, for over 24 years. The statement contained an opinion that these
repetitive movements and heavy lifting over that time period was the direct cause of her
progressive degenerative disease, specifically multilevel spondylosis. It noted that there was an
MRI scan that evidenced nerve root compression and that appellant was unable to perform her
demanded job duties and requirements.
By decision dated April 8, 2021, OWCP denied modification of its March 3, 2021 decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury. 3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which

2

Id.

3

C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

4

compensation is claimed; and (3) rationalized medical evidence establishing that the diagnosed
condition is causally related to the identified employment factors. 4
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 5 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.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment.
In support of her occupational disease claim, appellant provided a letter dated February 10,
2021 from Dr. Abouda, who opined that factors of her federal employment including heavy lifting,
bending, and twisting had exacerbated her condition and that he believed that her position as a
mail carrier may have contributed to and agitated this condition. His opinion is speculative in
nature as he stated that her position as a mail carrier “may have” contributed to her condition. The
Board has held that medical opinions that are speculative or equivocal are of diminished probative
value.7
Appellant also submitted a series of reports from Dr. Abouda dated from November 24,
2014 through December 17, 2020. In these reports, Dr. Abouda did not offer an opinion on the
causal relationship between appellant’s diagnosed discogenic disease of the lumbar spine and
duties of her federal employment. The Board has held that medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 8
The record contains reports summarizing diagnostic testing. The Board has held that
diagnostic studies, standing alone, lack probative value on the issue of causal relationship, as they
do not address whether the employment incident caused any of the diagnosed conditions. 9 Thus,
these reports are insufficient to establish appellant’s claim.
4

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
5

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
6

D.J., Docket No. 19-1301 (issued January 29, 2020).

7

J.I., Docket No. 20-1374 (issued March 3, 2021); H.A., Docket No. 18-1455 (issued August 23, 2019).

8

See C.G., Docket No. 20-0957 (issued January 27, 2021); L.G., Docket No. 20-0433 (issued August 6, 2020);
S.D., Docket No. 20-0413 (issued July 28, 2020); S.K., Docket No. 20-0102 (issued June 12, 2020); L.B., Docket No.
18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
9

K.S., Docket No. 19-1623 (issued March 19, 2020); M.J., Docket No. 19-1287 (issued January 13, 2020).

5

As appellant has not submitted rationalized medical evidence explaining causal
relationship between her back conditions and the accepted factors of her federal employment, the
Board finds that she has not met her burden of proof.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 10
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 11
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 12 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 13 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In appellant’s timely March 30, 2021 request for reconsideration, she did not argue that
OWCP erroneously applied or interpreted a specific point of law or advance a relevant legal
10

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
11

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
12

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
13

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

14

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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argument not previously considered by OWCP. Thus, she was not entitled to a review of the merits
of her claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).15
In support of her March 30, 2021 reconsideration request, appellant submitted an unsigned
March 29, 2021 note from a medical facility. The Board has held that a medical note containing
an illegible signature or which is unsigned has no probative value, as it is not established that the
author is a physician. 16 As such, this document did not constitute medical evidence and is
irrelevant to the underlying medical issue involved in this case. 17
Appellant also submitted a March 23, 2021 report by Dr. Abouda which was substantially
similar to his February 10, 2021 report of record. The Board has held that evidence that either
repeats or duplicates information already in the record does not constitute a basis for reopening a
claim.18 Therefore, it is insufficient to require OWCP to reopen the claim for consideration of the
merits. Because appellant has not provided relevant and pertinent new evidence, she was not
entitled to a review of the merits based on the third requirement under section 10.606(b)(3). 19
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back condition
causally related to the accepted factors of her federal employment. The Board further finds that
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).

15

See C.S., Docket No. 19-0851 (issued November 18, 2019); J.B., Docket No. 17-0628 (issued June 28, 2017).

16

See Z.G., 19-0967 (issued October 21, 2019); see R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB
1568 (1982) (where the Board held that a medical report may not be considered as probative medical evidence if there
is no indication that the person completing the report qualifies as a physician as defined in FECA).
17

A.W., Docket No. 21-0298 (issued August 26, 2021); M.K., Docket No. 18-1623 (issued April 10, 2019);
Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).
18

S.F., Docket No. 18-0516 (issued February 21, 2020); James W. Scott, 55 ECAB 606, 608 n.4 (2004).

19

See 20 C.F.R. § 10.606(b)(3)(iii).

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ORDER
IT IS HEREBY ORDERED THAT the March 3 and April 8, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: January 11, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., widow of S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WAINWRIGHT MEMORIAL MEDICAL
CENTER, Walla Walla, WA, Employer
__________________________________________

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

Docket No. 19-1629
Issued: April 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On July 29, 2019 appellant, through counsel, filed a timely appeal from a May 24, 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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that counsel did not appeal from the April 2, 2019 OWCP hearing representative’s decision,
which affirmed the denial of appellant’s recurrence of disability claim beginning June 26, 2018. Therefore, the Board
has not exercised jurisdiction over that decision. See 20 C.F.R. § 501.3(c)(4).

ISSUE
The issue is whether appellant has met her burden of proof to establish that the employee’s
death on August 6, 2018 was causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On April 10, 2013 the employee, then a 45-year-old housekeeping aid supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on March 19, 2013 he injured his lower back
when he lifted a desk while in the performance of duty. OWCP accepted his claim for left thoracic
or lumbosacral neuritis. It subsequently expanded acceptance of appellant’s claim to include
postlaminenctomy syndrome. OWCP paid wage-loss compensation on the supplemental rolls for
intermittent periods of total disability beginning February 5, 2016.
The employee underwent several OWCP-approved back surgeries and was intermittent ly
on and off work.5 On October 27, 2016 he returned to part-time, limited duty for six hours per
day. The employee returned to full-time light duty on November 28, 2016. He continued to
receive medical treatment.
In a May 29, 2018 report, Dr. Craig Flinders, Board-certified in anesthesiology and pain
medicine, noted that the employee was three months’ status post endoscopic discectomy, but still
complained of back pain. He diagnosed chronic residual complex back pain with history of
multilevel decompression and fusion and fatigue.
On August 8, 2018 appellant notified OWCP that the employee had passed away on
August 6, 2018. An August 13, 2018 death certificate, certified by Dr. Richard Greenwood, the
medical examiner, listed the cause of death as myocardial infarction with elevated troponin level.
Appellant submitted a claim for continuance of compensation benefits (Form CA-12). In
a narrative statement, she asserted that the employee’s death was related to his accepted
employment injury. Appellant explained that he suffered from serious sleep deprivation since his
January 2016 surgery and she believed that the sleep deprivation contributed to his heart attack.
She indicated that she was submitting medical documentation which showed that the employee
suffered from poor sleep. Appellant submitted various news and medical journal articles about
4

Docket No. 19-0866 (issued September 17, 2019). By decision dated September 17, 2019, the Board set aside the
February 20, 2019 OWCP decision, which denied appellant’s request for reconsideration of the merits under 5 U.S.C.
§ 8128(a). The Board found that counsel provided a new legal argument relevant to the employee’s schedule award
claim.
5

Appellant underwent L2-3 microdiscectomy with L3-4 laminectomy and decompression on October 28, 2014;
anterior lumbar interbody and posterolateral arthrodesis at L1-2, L2-3, and L3-4, posterior spinal instrumentation at
L1-S1, laminectomies at L1-L5 to S1 for compression on January 19, 2016; and hardware removal and revision with
posterolateral fusion at L4-5, L5-S1 on August 22, 2016.

2

the correlation between poor sleep and insomnia and an increased risk of fatal heart attacks and
strokes.
OWCP received various medical reports dated from July 11, 2016 to February 2, 2017
regarding the employee’s treatment for chronic lower back pain, lumbar disc disease, lumbar
radiculitis, sleep apnea, fatigue, and restless leg syndrome. It also received a February 7, 2013 and
December 1, 2016 sleep study note and testing regarding the employee.
Appellant submitted reports dated July 3 and August 2, 2018 by Dr. Andrew Park, a Boardcertified orthopedic surgeon. Dr. Park noted the employee’s complaints of persistent low back
pain, less left testicle pain, and left thigh numbness and pain. He indicated that the employee saw
Dr. Flinders on June 26, 2018 for complaints of severe insomnia due to increased back muscle
spasm. Dr. Park also noted that the employee’s restless leg symptoms had worsened after surgery
in 2016. He reported that a sleep study performed on December 1, 2016 showed a reduced sleep
efficiency, including nearly two hours of wake after sleep onset. Dr. Park conducted an
examination and diagnosed thoracolumbar radiculopathy, myofascial pain syndrome, restless leg
syndrome, and lumbar radiculopathy.
In a letter dated September 7, 2018, OWCP advised appellant of the type of medical
evidence needed to establish that the employee’s accepted employment injury contributed to his
death. It provided her with a claim form for compensation by widow, widower, and/or children
(Form CA-5) for requesting survivor benefits.
On September 17, 2018 appellant filed a Form CA-5 requesting survivor benefits.
Dr. Flinders completed the medical portion of the CA-5 form on September 25, 2018. He reported
that the contributory cause(s) of death were severe chronic pain/radiculopathy, severe
hypogonadism, severe insomnia due to pain, and severe vitamin D deficiency. Dr. Flinders
checked a box marked “yes” indicating that the employee’s death was due to the injury. He
reported: “It was in my opinion a contributing factor.”
Appellant submitted a February 27, 2018 operative report by Dr. Flinders, which indicated
that the employee underwent endoscopic discectomy, left T12-L1. Dr. Flinders noted a
preoperative diagnosis of thoracolumbar radiculopathy with disc herniation at T12-L1. He also
completed a March 15, 2018 postoperative note, which noted that the employee’s back pain had
improved.
Dr. Flinders provided examination findings and diagnosed thoracolumbar
radiculopathy and myofascial pain.
In an October 1, 2018 letter, OWCP informed Dr. Flinders that the employee’s accepted
conditions were postlaminectomy syndrome and left thoracic or lumbosacral neuritis or radiculitis.
It requested that Dr. Flinders provide a narrative medical report with rationale explaining how
these accepted conditions contributed to the additional factors that he identified as contributing to
the employee’s death.
By decision dated January 18, 2019, OWCP denied appellant’s claim for survivor’s
benefits finding that the medical evidence of record was insufficient to establish a causal
relationship between the employee’s death and his March 19, 2013 employment injury.

3

On January 25, 2019 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
OWCP received a June 26, 2018 report by Dr. Flinders, who noted the employee’s
complaints of exacerbation of chronic back and groin pain. Dr. Flinders also noted that appellant
had complained of fatigue and mental cloudiness. He conducted an examination on that date and
diagnosed acute exacerbation of chronic back pain with radiculopathy, severe hypogonadism, and
vitamin D deficiency.
Appellant also submitted a July 3, 2018 work capacity evaluation (Form OWCP-5c) by
Dr. Park. Dr. Park noted the employee’s accepted condition of postlaminectomy syndrome. He
reported that, on that date, the employee had increased restless leg syndrome, increased low back
pain, and was unable to sleep or work due to complication from surgery.
On April 23, 2019 a telephonic hearing was held. Counsel was present and asserted that
Dr. Flinders had indicated in his initial note that there were multiple factors regarding the causation
of the employee’s death.
Following the hearing, OWCP received a May 14, 2019 letter by Dr. Flinders. Dr. Flinders
opined that the employee’s work-related postlaminectomy pain syndrome and thoracic and
lumbosacral neuritis resulted in the need for ongoing opioid medication which led to the
hypogonadism from which the employee suffered. He also noted that the employee was under a
tremendous amount of stress due to the pain, which contributed to severe insomnia. Dr. Flinders
concluded that these circumstances were “major contributing factors which ultimately contributed
to [the employee’s] heart disease and eventually resulted in his death.”
By decision dated May 24, 2019, an OWCP hearing representative affirmed the January 18,
2019 decision.
LEGAL PRECEDENT
The United States shall pay for compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty. 6 Appellant has the burden of proof to
establish by the weight of the reliable, probative, and substantial evidence that the employee’s
death was causally related to his federal employment. 7 This burden includes the necessity of
furnishing medical opinion evidence, based upon a complete and accurate factual and medical
background, showing causal relationship between the employee’s death and an accepted
employment injury or factors of his or her federal employment. 8
The mere showing that an employee was receiving disability compensation at the time of
death does not establish that the employee’s death was causally related to his or her federal

6

5 U.S.C. § 8102(a).

7

L.W. (K.W.), Docket No. 19-0569 (issued August 16, 2019).

8

M.L., Docket No. 19-0020 (issued May 2, 2019); L.R. (E.R.), 58 ECAB 369 (2007).

4

employment.9 The Board has held that it is not necessary that there is a significant contribution of
employment factors to establish causal relationship. 10 If the employment contributed to the
employee’s death, then causal relationship is established. 11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
employee’s death on August 6, 2018 was causally related to his accepted March 19, 2013
employment injury.
OWCP accepted the employee’s claim for left thoracic or lumbosacral neuritis and
postlaminectomy syndrome. The death certificate dated August 13, 2018 listed the cause of death
as myocardial infarction with elevated troponin level. Appellant filed a Form CA-5 alleging that
the employee’s employment-related injury caused or contributed to his death.
Dr. Flinders completed the medical portion of appellant’s Form CA-5. In support of her
claim, appellant submitted several of his medical reports in connection with treatment of the
employee. Dr. Flinders listed the contributory causes of the employee’s death as severe chronic
pain/radiculopathy, severe hypogonadism, severe insomnia due to pain, and severe vitamin D
deficiency. He checked a box marked “yes” indicating that the employee’s death was due to the
injury and noted that it was a contributing factor. The Board has held that when a physician ’s
opinion on causal relationship consists only of checking “yes” to a form question, without
explanation or rationale, that opinion is of diminished probative value and is insufficient to
establish a claim. 12 Therefore, the Form CA-5 physician’s note is insufficient to establish
appellant’s claim.
In reports dated February 27 to June 26, 2018, Dr. Flinders noted continued treatment of
the employee for chronic back pain. He diagnosed acute exacerbation of chronic back pain with
radiculopathy, severe hypogonadism, and vitamin D deficiency. In a May 14, 2019 letter,
Dr. Flinders opined that the employee’s work-related postlaminectomy pain syndrome and
thoracic and lumbosacral neuritis required ongoing opioid medication, which further resulted in
the employee’s hypogonadism. He also reported that the employee was under a tremendous
amount of stress due to his pain, which contributed to severe insomnia. Dr. Flinders opined that
these circumstances were “major contributing factors” that contributed to the employee’s heart
disease and subsequent death noting that the back condition caused other conditions which were
factors in the death. He did not explain, however, how or why those conditions were due to the
accepted condition in this claim or why they were sufficient to result in the employee’s death. A
medical report is of limited probative value on the issue of causal relationship if it contains a

9

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001); Edna M. Davis (Kenneth L. Davis), 42 ECAB
728 (1991).
10

T.H. (M.H.), Docket No. 12-1018 (issued November 2, 2012).

11

J.P. (E.P.), Docket No. 18-1739 (issued May 3, 2019).

12

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

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conclusion regarding causal relationship which is unsupported by medical rationale. 13
reports, therefore, are insufficient to establish appellant’s claim.

These

The employee was also treated by Dr. Park. In reports dated July 3 and August 2, 2018,
Dr. Park indicated that the employee had complained of severe insomnia due to increased muscle
spasm and worsening restless leg symptoms after surgery in 2016. He provided examination
findings and diagnosed thoracolumbar radiculopathy, myofascial pain syndrome, restless leg
syndrome, and lumbar radiculopathy. In a July 3, 2018 OWCP-5c form, Dr. Park indicated that
the employee was unable to sleep due to complications from surgery. He did not, however, offer
an opinion regarding the cause of the employee’s death. Without an opinion on the cause of the
employee’s death, these reports, therefore, are insufficient to meet appellant’s burden of proof.14
Appellant also provided various periodical and medical journal articles which noted the
correlation between poor sleep and heart attacks. However, materials from periodicals, journals ,
and magazines are of no probative value to support a claim for compensation under FECA.15
Medical evidence must be in the form of rationalized opinion by a qualified physician based on a
complete and accurate medical and factual history. 16
On appeal counsel alleges that OWCP’s decision was contrary to fact and law. As
explained above, however, appellant has not submitted medical evidence containing a rationalized
medical opinion that the employee’s accepted conditions contributed to his August 6, 2018 death.
Accordingly, she has not met her burden of proof to establish her claim.17
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 the
employee’s death on August 6, 2018 was causally related to his accepted March 19, 2013
employment injury.

13

See V.T., Docket No. 18-0881 (issued November 19, 2018); S.E., Docket No. 08-2214 (issued May 6, 2009);
T.M., Docket No. 08-0975 (issued February 6, 2009).
14

See W.C. (widow of R.C.), Docket No. 18-0531 (issued November 1, 2018); J.P. (T.P.), Docket No. 17-0563
(issued June 20, 2018).
15

S.G., Docket No. 17-1054 (issued September 12, 2017).

16

Id.; see also John D. Baskette, 30 ECAB 761 (1979).

17

W.C. (R.C.), supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 7, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Valley Stream, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-282
Issued: March 23, 2015

Case Submitted on the Record

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

JURISDICTION
On November 19, 2014 appellant, through counsel, filed a timely appeal from a
September 12, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
January 3, 2013.
FACTUAL HISTORY
The case was before the Board on a prior appeal.2 As the Board noted in its prior
decision, on January 15, 2013 appellant, then a 50-year-old investigator, filed a traumatic injury
1

5 U.S.C. § 8101 et seq.

2

Docket No. 14-291 (issued May 19, 2014).

claim (Form CA-1) alleging that he sustained injuries in a motor vehicle accident (MVA) on
January 3, 2013. He described an injury to the left side of his head, neck, right lower back, right
arm, and right shoulder. OWCP accepted that appellant was involved in a motor vehicle
accident in the performance of duty on January 3, 2013.
Regarding appellant’s burden to establish that he sustained an injury as a result of this
incident, the Board found there was no rationalized medical opinion on causal relationship
between a diagnosed condition and the employment incident. An attending physician, Dr. Ali
Guy, a Board-certified physiatrist, had opined in a March 31, 2013 report that appellant had
sustained a permanent injury as a result of the motor vehicle accident. The Board noted that
Dr. Guy had provided several diagnoses, including C3-7 disc herniations, right shoulder rotator
cuff tear and a tear of the superior and anterior labrum (SLAP), right shoulder adhesive
capsulitis, and acute traumatic C5-7 cervical radiculopathy. Dr. Guy did not, however, clearly
explain an opinion on the issue of causation. It was not clear which diagnoses constituted the
“permanent injury” nor did Dr. Guy address a preexisting shoulder condition.
On July 8, 2014 appellant, through his representative, requested reconsideration. He
submitted a May 24, 2014 report from Dr. Kenneth McCulloch, an orthopedic surgeon, who
provided a history of injury and indicated that appellant was first seen on March 18, 2013.
Dr. McCulloch provided results on examination and stated that a March 8, 2013 MRI scan
demonstrated a full thickness tear of the supraspinatus and infraspinatus tendons. According to
him, appellant underwent right shoulder arthroscopic subacromial decompression/SLAP
debridement, labral and rotator cuff debridement on September 12, 2013. Dr. McCulloch stated
that appellant had a complete retracted rotator cuff tear, and was status postsurgery. He opined
that based on his review of the evidence, radiographic and intraoperative findings, appellant had
sustained a right shoulder injury as a result of the January 3, 2013 MVA. Dr. McCulloch noted
that appellant had a prior surgery to the rotator cuff, but prior to the January 3, 2013 employment
incident appellant had satisfactory function of the right shoulder. After the accident, appellant
had limitations on range of motion, and loss of muscle strength. Dr. McCulloch stated the
rotator cuff tear appellant sustained as a result of the MVA was so large it could not completely
be repaired and appellant would continue to require physical therapy.
By decision dated September 12, 2014, OWCP reviewed the case on its merits and denied
modification. It stated that the record did not contain the March 8, 2013 MRI scan or the
September 12, 2013 surgery report.
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.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of and in the course of
employment.”4 An employee seeking benefits under FECA has the burden of establishing that

3

5 U.S.C. § 8102(a).

4

Valerie C. Boward, 50 ECAB 126 (1998).

2

he or she sustained an injury while in the performance of duty.5 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
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.6
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
In the prior decision, the Board reviewed the medical evidence of record as of
October 21, 2013 and found that the record did not contain a rationalized medical opinion on the
issue presented. Dr. Guy, for example, did not provide a sufficient medical history or clearly
explain how a diagnosed condition was causally related to the January 3, 2013 MVA.
On reconsideration, appellant submitted a new medical report from Dr. McCulloch dated
May 24, 2014. The Board has reviewed this report and finds it is sufficient to require further
development. Dr. McCulloch indicated that he initially examined appellant on March 18, 2013.
He has opined that appellant sustained a rotator cuff tear from the January 3, 2013 MVA, based
on his review of the evidence and the diagnostic and operative findings. Dr. McCulloch also
discussed appellant’s medical history with respect to the right shoulder, noting a prior rotator
cuff surgery.
The Board finds that the Dr. McCulloch has provided an uncontroverted medical opinion,
based on a complete background, supporting causal relationship between a right shoulder rotator
cuff tear and the January 3, 2013 motor vehicle accident. The evidence is sufficient to require
OWCP to further develop the medical evidence on the issue of causal relationship.8 While
appellant has the burden of proof to establish the claim, OWCP shares responsibility in the
development of the evidence to see that justice is done.9 On remand it should further develop the
medical evidence as necessary and secure any necessary diagnostic or operative reports. After
such further development as OWCP deems appropriate, OWCP should issue a proper decision
with respect to appellant’s claim.
5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

8

See John J. Carlone, supra note 6.

9

A.V., Docket No. 14-748 (issued October 3, 2014); William J. Cantrell, 34 ECAB 1223 (1983).

3

CONCLUSION
The Board finds the case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2014 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 23, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, VALLEY HI POST
OFFICE, San Antonio, TX, Employer
__________________________________________

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Appearances:
Victor O. Enriquez, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1097
Issued: December 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 8, 2020 appellant, through counsel, filed a timely appeal from an October 15,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more
than 180 days has elapsed from OWCP’s last merit decision, dated August 4, 2015, to the filing of

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from October 15, 2019, the date of OWCP’s last decision, was
April 12, 2020. As this fell on a Sunday, appellant had until the following business day, Monday, April 13, 2020, to
file the appeal. Since using April 14, 2020, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is April 8, 2020, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On May 27, 2005 appellant, then a 47-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 26, 2005 he sustained hearing loss, pain, ringing in both ears,
and a headache when lightning struck a tree that was 50 feet away from where he was delivering
mail while in the performance of duty. He did not stop work. OWCP accepted appellant’s claim
for binaural hearing loss and tinnitus. It subsequently expanded acceptance of his claim to include
abnormality of gait, bilateral peripheral vertigo, bilateral vertigo of central origin, and variants of
migraine.
Appellant filed a claim for a schedule award (Form CA-7) on July 20, 2007. In support of
the claim, he submitted an August 9, 2006 attending physician’s report by Dr. Charles A.
Syms, III, Board-certified in otolaryngology and neurotology, who provided diagnoses of
sensorineural hearing loss and tinnitus.
Based on the examination of the second opinion physician, Dr. William Carl Smith, a
Board-certified otolaryngologist, and concurred in by Dr. R. Meador, an OWCP district medical
adviser (DMA), on March 3, 2008 OWCP granted appellant a schedule award for 10 percent
binaural hearing loss. The period of the award ran for 20 weeks September 10, 2007 to
January 27, 2008.
On July 23, 2014 appellant filed a claim for an increased schedule award (Form CA-7).
Appellant submitted an August 22, 2014 letter from Dr. Lance E. Jackson, a Boardcertified otolaryngologist and neurologist, who reported that he had conducted a hearing evaluation
on January 7, 2014, to determine appellant’s level of impairment to both hearing and the whole
body. Dr. Jackson indicated that, according to the American Medical Association, Guides to the

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the issuance of the October 15, 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.

2

Evaluation of Permanent Impairment (A.M.A., Guides),5 appellant had .63 percent permanent
impairment due to binaural hearing loss and 0 percent whole person impairment.
In a September 30, 2014 memorandum of a telephone call (Form CA-110), appellant
informed OWCP that he was trying to obtain a schedule award for his accepted conditions, other
than hearing loss. In an October 28, 2014 Form CA-110, OWCP advised him that his remaining
additional conditions were not ratable conditions for purposes of receiving another schedule award.
On May 29, 2015 OWCP referred appellant to Dr. John D. Edwards, a Board-certified
otolaryngologist, for a second opinion evaluation. In a June 29, 2015 report, Dr. Edwards noted
appellant’s history of injury and medical treatment. An audiogram performed that day
demonstrated that at the frequency levels of 500, 1,000, 2,000, and 3,000 Hertz (Hz), right ear
decibel (dB) losses were 25, 20, 25, and 25, and left ear dB losses were 25, 20, 25, and 20,
respectively. Dr. Edwards noted appellant’s examination findings and diagnosed binaural hearing
loss and tinnitus. He opined that appellant’s conditions were due to appellant’s federal
employment. Dr. Edwards indicated that appellant’s hearing loss had been stable since 2006. He
applied the sixth edition of the A.M.A., Guides and calculated that appellant had no additional
permanent impairment. Dr. Edwards reported that appellant had reached maximum medical
improvement (MMI) as of the date of appellant’s examination.
In a July 29, 2015 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as a DMA, opined that appellant sustained binaural hearing loss due to federal noise
exposure. He noted that appellant had previously received a schedule award for 10 percent
binaural hearing loss. The DMA utilized the June 29, 2015 audiogram and determined that,
according to the A.M.A., Guides, appellant was not entitled to an additional schedule award due
to his binaural hearing loss.
By decision dated August 4, 2015, OWCP denied appellant’s claim for an increased
schedule award. It found that he had not submitted evidence demonstrating greater permanent
impairment than the 10 percent previously awarded for binaural hearing loss.
Appellant continued to receive medical treatment for his accepted conditions and submitted
medical reports, including referral forms, physical therapy treatment records and audiological
testing dated July 31, August 31, and December 12, 2018.
On August 27, 2019 appellant requested reconsideration and submitted additional medical
evidence. In an August 21, 2019 letter, he alleged that he was requesting reconsideration because
his hearing loss and tinnitus had increased considerably over the past three years.
In a June 21, 2018 letter, Dr. Syms indicated that appellant was a patient in his office and
was diagnosed with mild-to-moderate sensorineural hearing loss in the right ear and mild
sensorineural hearing loss in the left ear. He reported that appellant also had tinnitus in both ears
and was medically cleared for hearing aids.

5

A.M.A., Guides (6th ed. 2009).

3

OWCP also received a March 8, 2019 impairment rating evaluation report by
Dr. Kesturkoppal Muralidhara, who specializes in pediatric medicine. Dr. Muralidhara reviewed
appellant’s history of injury and noted that he had previously received a schedule award for 10
percent binaural hearing loss. He noted physical examination findings and diagnosed bilateral
tinnitus, binaural sensorineural hearing loss, abnormal gait, bilateral peripheral vertigo, bilateral
origin vertigo, and other migraine. Dr. Muralidhara indicated that appellant was referred to their
office for a repeat examination in order to determine whether appellant had developed worsening
of his hearing. He reported that an audiogram performed on March 11, 2019 demonstrated that at
the frequency levels of 500, 1,000, 2,000, and 3,000 Hz, appellant had a right ear dB loss of 275
and a left ear dB loss of 300. Dr. Muralidhara utilized Table 11-2 of the sixth edition of the
A.M.A., Guides and calculated that appellant had 67.2 percent permanent impairment due to
binaural hearing loss, which converted to 24 percent whole person impairment for hearing loss.
He also noted that appellant had additional five percent permanent impairment for bilateral
tinnitus, which was not awarded on his initial schedule award. Dr. Muralidhara concluded that,
because appellant was previously awarded 10 percent permanent impairment, he was entitled to
an additional 19 percent permanent impairment for his binaural hearing loss.
In a March 11, 2019 report, Dr. Pedro S. Montano, a Board-certified otolaryngologist,
recounted that appellant was evaluated for complaints of progressing hearing loss and dizziness.
He conducted an examination and diagnosed vertigo, airway obstruction, nose septum deviation,
tinnitus of both ears, noise-induced hearing loss of both ears, and intractable migraine without
aura. Dr. Montano reported that according to the sixth edition of the A.M.A., Guides appellant
had 24 percent whole person impairment for hearing loss and an additional 5 percent permanent
impairment for bilateral tinnitus.
By an October 15, 2019 decision, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.6 Timeliness is determined by the document receipt date of
the request for reconsideration as is indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS).7 The Board has found that the imposition of the oneyear time limitation does not constitute an abuse of the discretionary authority granted OWCP
under section 8128(a) of FECA.8
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited

6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

G.L., Docket No. 18-0852 (issued January 14, 2020).

4

review to determine whether the request demonstrates clear evidence of error.9 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.11 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.12 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 evidence of error on the
part of OWCP.13 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP such that it abused its discretion in
denying merit review in the face of such evidence.14
In schedule award cases, a distinction is made between an application for a schedule award
and a request for reconsideration of the denial of a schedule award. When a claimant is asserting
that the original award was erroneous based on his or her medical condition at that time, this is a
request for reconsideration.15 OWCP’s procedures provide that, if a claimant is seeking an
increased schedule award due to increased impairment and/or additional exposure, but not
contesting the decision or prior award, this should not be treated as a reconsideration request.16
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration by
adjudicating his schedule award claim under the standard for untimely reconsideration requests.

9

20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

10

Id.; supra note 7 at Chapter 2.1602.5(a).

11

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663,
665 (1997).
12

See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

13

B.W., supra note 11.

14

Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

15
L.D., Docket No. 17-1946 (issued August 23, 2018); C.M., Docket No. 17-0310 (issued February 15, 2017); J.F.,
Docket No. 13-0112 (issued November 6, 2013); see also B.K., 59 ECAB 228 (2007) (where it was evident that the
claimant was seeking a schedule award based on new and current medical evidence, OWCP should have issued a
merit decision on the schedule award claim rather than adjudicate an application for reconsideration).
16

Supra note 7 at Chapter 2.1602.3(b) (February 2016).

5

On August 27, 2019 appellant requested reconsideration of the August 4, 2015 decision
denying additional schedule award. He alleged that his hearing loss and tinnitus had increased
considerably over the past three years and provided new medical evidence.
Appellant submitted a March 8, 2019 impairment rating evaluation report by
Dr. Muralidhara, who reviewed appellant’s history of injury and provided physical examination
findings. Dr. Muralidhara referred to a March 11, 2019 audiogram and indicated that appellant
had a right ear dB loss of 275 and a left ear dB loss of 300. He utilized Table 11-2 of the sixth
edition of the A.M.A., Guides and calculated that appellant was entitled to an additional 19 percent
permanent impairment for his binaural hearing loss. Dr. Muralidhara also reported that appellant
had an additional five percent permanent impairment for bilateral tinnitus, which was not awarded
on appellant’s initial schedule award.
Similarly, Dr. Montano reported on March 11, 2019 that based on the sixth edition of the
A.M.A., Guides appellant had an additional five percent permanent impairment for bilateral
tinnitus.
As in Paul R. Reedy,17 OWCP’s October 15, 2019 decision treated appellant’s claim as a
request for reconsideration. The Board finds, however, that he was not seeking reconsideration of
the previous August 4, 2015 schedule award determination, but submitted new evidence and
argument showing increased hearing loss for schedule award purposes.18 As noted, OWCP’s
procedures provide that if a claimant is seeking an increased schedule award due to increased
impairment and/or additional exposure, but not contesting the decision or prior award, this should
not be treated as a reconsideration request.19 Herein, appellant submitted a more recent March 8,
2019 impairment rating report, which referenced a more recent audiogram, showing an increase in
both right and left ear hearing loss levels.20 The record, therefore, has clearly established that he
was not seeking reconsideration of OWCP’s decision, but was seeking a schedule award based on
new medical evidence.21
Thus, the Board finds that OWCP improperly denied appellant’s reconsideration request
and failed to issue an appropriate decision regarding his claim for an increased schedule award.
On remand, OWCP shall review and develop the medical evidence as is necessary and thereafter
issue a de novo decision regarding his claim for an increased schedule award.22

17

45 ECAB 488 (1994).

18

See E.G., Docket No. 17-1710 (issued January 4, 2018); R.B., Docket No. 16-1863 (issued April 3, 2017).

19

Supra note 16.

20

W.H., Docket No 15-1167 (issued November 10, 2015).

21

T.C., Docket No. 17-0800 (issued May 2, 2018); K.D., Docket No. 15-0524 (issued August 3, 2015).

22

D.S., Docket No. 17-0407 (issued May 24, 2017).

6

CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration by
adjudicating his schedule award claim under the standard for untimely reconsideration requests.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PERRY POINT VA MEDICAL CENTER,
Perry Point, MD, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0716
Issued: December 10, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 12, 2021 appellant, through counsel, filed a timely appeal from a February 25,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards assigned Docket No. 21-0716.2
On December 30, 2019 appellant, then a 60-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on December 26, 2019 she sustained a left ankle sprain when detangling
an oxygen tube while in the performance of duty. She stopped work on December 26, 2019 and
returned to work on December 30, 2019.

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 February 25, 2021 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.

In support of her claim, appellant submitted medical evidence from a physician assistant.
In a January 8, 2020 development letter, OWCP advised appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed to establish her claim and afforded her 30 days to submit the necessary evidence.
OWCP subsequently received a December 26, 2019 urgent care note by Dr. Charisse C.
Davenport, a Board-certified internist, who performed an examination and diagnosed a sprain of
other ligament of the left ankle.
In a January 23, 2020 response to OWCP’s questionnaire, appellant related that, while
assisting a patient on December 26, 2019, she reached across his bed and felt a severe pain in her
left heel, ankle and calf.
By decision dated February 14, 2020, OWCP denied appellant’s traumatic injury claim
finding that the evidence was insufficient to establish that the diagnosed left ankle condition was
causally related to the accepted December 26, 2019 employment incident.
By letter dated and received on February 5, 2021 appellant, through counsel, requested
reconsideration of OWCP’s February 14, 2020 decision. In support of the request, she submitted
reports of Dr. Alan J. Kleiman, a podiatric surgeon, dated July 20 and August 21 and 23, 2020;
Dr. Lemeneh Tefera, an emergency medicine specialist, dated October 5, 2020; and Dr. Jennifer R.
Seifert, a podiatrist Board-certified in foot and ankle surgery, dated October 25, 2020.
On February 11, 2021 appellant, through counsel, indicated that he was submitting
additional evidence “in support of the pending [r]equest for [r]econsideration.” He submitted a
letter dated February 1, 2021 by Dr. Seifert outlining treatment she provided to appellant for left
ankle injuries which had occurred as the result of a work-related incident on December 26, 2019
and a nonwork-related incident on October 5, 2020. Also attached to the letter was an undated and
unsigned summary of events and treatment for both incidents. OWCP also received reports of
various diagnostic studies.
By decision dated February 25, 2021, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It indicated that her request for reconsideration was “received on February 19, 2021.”
The Board has duly considered this matter and finds that OWCP improperly determined
that appellant’s request for reconsideration was untimely filed. 3
By letter dated February 5, 2021, appellant’s counsel requested reconsideration of the
February 14, 2020 decision; outlined various arguments; and enclosed medical records not
previously considered. OWCP noted a received date for the letter and enclosures in the Integrated
Federal Employees’ Compensation System (iFECS) of February 5, 2021. The Board finds that the

3

Order Remanding Case, J.C., Docket No. 20-1360 (issued March 12, 2021); I.A., Docket No. 19-1910 (issued
September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued June 29, 2020); E.S., Docket No.
17-0698 (issued July 14, 2017).

2

February 5, 2021 letter, received by OWCP on February 5, 2021, constituted a timely request for
reconsideration of OWCP’s February 14, 2020 merit decision. 4
As the February 5, 2021 request for reconsideration was received within one year of
OWCP’s February 14, 2020 merit decision, 5 it was timely filed.6 Therefore, OWCP should have
applied the standard applicable to timely reconsideration requests as set forth in 20 C.F.R.
§ 10.606(b)(3), rather than the more stringent clear evidence of error standard for untimely
reconsideration requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the
evidence submitted in support of appellant’s reconsideration request under the more stringent clear
evidence of error standard which applies to untimely filed reconsideration requests, the Board will
remand the case for review of this evidence under the proper standard of review for t imely
reconsideration requests. 7
Thus, the Board finds that this case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by a n appropriate decision.
Accordingly,

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(a) (February 2016).

5

Id.; R.T., Docket No. 20-0298 (issued August 6, 2020).

6

J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B., Docket
No. 13-1732 (issued January 28, 2014).
7

Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).

3

IT IS HEREBY ORDERED THAT the February 25, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 10, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4