United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1534
Issued: March 1, 2016

Case Submitted on the Record

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

JURISDICTION
On July 8, 2015 appellant filed a timely appeal from an April 10, 2015 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.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective April 12, 2013 because she no longer had any
residuals or disability causally related to her accepted employment injury; and (2) whether
appellant met her burden of proof to establish any continuing employment-related residuals or
disability after April 12, 2013.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that she sustained a work-related ankle injury. She further
contends that the employing establishment offered her a modified job assignment and then
refused to allow her to perform the job which resulted in the termination of her case.
FACTUAL HISTORY
OWCP accepted that on January 15, 2011 appellant, then a 41-year-old city carrier,
sustained a right ankle sprain when she slipped and fell while delivering mail. She stopped work
on January 21, 2011. Appellant received wage-loss compensation beginning March 19, 2011.
In medical reports dated January 21 to October 13, 2011 and undated reports, appellant’s
attending physicians, Dr. Jerome Antony, a Board-certified internist, and Dr. Stacey Bielinski, a
podiatrist, diagnosed sprain, ankylosis/insufficiency, and plantar fasciitis of the right ankle
causally related to her January 15, 2011 employment-related injury and that she was totally
disabled for work during this period.
By letter dated December 12, 2011, OWCP referred appellant, together with a statement
of accepted facts (SOAF), a list of questions, and the medical record, to Dr. James P. Elmes, a
Board-certified orthopedic surgeon, for a second opinion. In a January 3, 2012 report, Dr. Elmes
reviewed the SOAF and medical record and provided examination findings. He diagnosed right
ankle sprain, right plantar fasciitis, nonspecific right foot and right ankle pain, right ankle
deconditioning, nonspecific low back pain, and exogenous obesity. Dr. Elmes opined that
appellant’s diagnosed right ankle and right foot conditions were medically connected to her
accepted January 15, 2011 employment injury. He concluded, however, that she could return to
modified-duty work with restrictions on a graduated work schedule for six weeks and then return
to full-duty work.
On March 16, 2012 OWCP found a conflict in medical opinion between Drs. Elmes,
Antony, and Bielinski regarding whether appellant continued to have work-related disability and
need for further medical treatment. To resolve this conflict, it referred her to Dr. Jaroslaw B.
Dzwinyk, a Board-certified orthopedic surgeon, for an impartial medical examination.
In an April 23, 2012 report, Dr. Dzwinyk related a history of the January 15, 2011
employment injury and appellant’s medical treatment, and reviewed the medical record. On
physical examination, he reported that she was cooperative and exhibited no pain behaviors.
Appellant had a normal gait. On examination of the right ankle, Dr. Dzwinyk found no swelling
or discoloration. Tenderness to superficial palpation was elicited diffusely in all aspects of the
ankle, heel, etc. Passive range of motion was recorded at 20 degrees of dorsiflexion and 50
degrees of plantar flexion. Subtalar motion was unrestricted and painless. Dr. Dzwinyk
reviewed x-rays of the right ankle performed at the time of injury which revealed no
abnormalities.
A magnetic resonance imaging (MRI) scan ordered by Dr. Richard N. Egwele, a Boardcertified orthopedic surgeon, dated March 30, 2011 demonstrated nonspecific edema of the
medial talar dome, possibly bony contusion with no other abnormalities. An October 20, 2011
right ankle MRI scan showed no change from the previous study with a small area of mild bony
edema noted on the medial aspect of the talar dome. There was no associated fracture or

2

evidence of articular cartilage disruption. Dr. Dzwinyk diagnosed resolved right ankle sprain
causally related to the accepted January 15, 2011 work injury. He related that appellant’s current
symptoms were out of proportion to objective findings on physical examination and radiologic
imaging. Dr. Dzwinyk opined that she was fit to return to full duties as a city letter carrier
without any work restrictions. He concluded that no additional treatment was required for the
accepted January 15, 2011 work-related injury as this condition had resolved.
In duty status reports (Form CA-17), treatment notes, and attending physician’s reports
(Form CA-20) dated April 2, 2012 to February 7, 2013, Dr. Joseph G. Thometz, a Boardcertified orthopedic surgeon, found that appellant had a right ankle sprain causally related to her
January 15, 2011 work injury. He advised that she could return to work with restrictions as of
April 2 and June 7, 2012. A March 6, 2012 functional capacity evaluation (FCE), performed by
a physical therapist on behalf of Dr. Thometz, indicated that appellant could perform modified
light-duty work.
By notice dated February 28, 2013, OWCP advised appellant that it proposed to
terminate her wage-loss compensation and medical benefits based on Dr. Dzwinyk’s April 23,
2012 report. It afforded her 30 days to submit additional evidence or argument regarding the
proposed termination.
In a treatment note and Form CA-20 report dated March 25, 2013, Dr. Thometz reiterated
his diagnosis of right ankle sprain, opinions on causal relationship, and appellant’s capacity to
perform light-duty work. On the form report, he checked a box marked “yes” in response to a
question regarding whether appellant’s diagnosed condition was work related.
By decision dated April 12, 2013, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective that day. It found that the weight of the
medical opinion evidence rested with Dr. Dzwinyk’s April 23, 2012 report.
On April 16, 2013 appellant requested an oral hearing before an OWCP hearing
representative. In an August 7, 2013 letter, she contended that she had a life-altering right ankle
injury and other conditions that may never resolve.
Appellant submitted a December 22, 2011 work capacity evaluation (Form OWCP-5c)
from Dr. Bielinski who advised that appellant was unable to perform her usual job because she
could not walk or stand for prolonged periods, but she could work eight hours a day with
restrictions. Dr. Bielinski noted that the restrictions were indefinite. In an undated Form CA-20
report, she provided a history that appellant had fallen while delivering mail. Dr. Bielinski
diagnosed sprain, plantar fasciitis, and tarsal tunnel of the right ankle. She indicated with an
affirmative mark that the diagnosed conditions were caused or aggravated by work activity.
Dr. Bielinski advised that appellant was totally disabled from January 15, 2011 through
February 2, 2012. She concluded that appellant could perform sedentary work.
In a January 13, 2012 report, Dr. Juan Valdez, a Board-certified physiatrist, found that
nerve conduction and electromyogram (NC/EMG) studies of appellant’s right foot and ankle
were consistent with right tarsal tunnel syndrome.

3

In December 13, 2012 to July 31, 2013 form reports and treatment notes, Dr. Thometz
reiterated his diagnosis of right ankle sprain, and opinions on causal relationship and appellant’s
work capacity. His opinion on causal relationship consisted of a checkmark in a box marked
“yes” in response to whether her condition was work related.
On August 13 and September 27, 2013 Dr. Malcom D. Herzog, a podiatrist, provided a
history of the January 15, 2011 work injury. He noted appellant’s complaint of severe radiating
pain both proximally and distally along the course of the posterior tibial nerve, intermittent
burning, numbness, and tingling along the plantar aspect of the right foot, and intermittent
burning numbness and tingling in the first second and third toes of the right foot. Appellant’s
pain was becoming more severe. Dr. Herzog reviewed an August 9, 2013 MRI scan which
revealed a sprained anterior talar ligament along the anterior lateral aspect of the right ankle,
fusion within the posterior capsule recess of the ankle joint capsule with a ganglion cyst, and
degenerative osteoarthropathy involving the sub-talar joints of the right rear foot. He diagnosed
anterior talofibular ligament sprain, lateral gutter syndrome, tarsal tunnel syndrome, and bursitis
tenosynovitis of the right foot.
Dr. Herzog opined that appellant had sustained a work injury in January 2011 and that
she continued to suffer extreme pain in the anterior talofibular ligament region and the lateral
gutter area of her right foot. He noted that she had developed consequential injuries causing the
tarsal tunnel area of her right foot to be extremely active and painful. Dr. Herzog noted that if
physical therapy and conservative modalities were not approved, appellant’s condition would
worsen and result in her prolonged disability and possible surgery, including right foot tarsal
tunnel release, anterior talofibular ligament repair, and lateral gutter release. In the
September 27, 2013 report, he described the development of consequential right ankle tarsal
tunnel syndrome. Due to lateral ankle instability appellant ambulated with a supinated gait
which created a tri-plane motion consisting of simultaneous adduction, plantar flexion, and
inversion of the right foot. This created impingement of the tarsal tunnel canal and resulted in
tarsal tunnel syndrome. Dr. Herzog opined that appellant’s tarsal tunnel syndrome was a direct
result of her work-related injury. In CA-17 and CA-20 form reports dated September 17,
October 22, and November 26, 2013, he noted that the date of injury was January 15, 2011 and
diagnosed right ankle sprain. In the CA-20 form reports, Dr. Herzog indicated by checking a
box marked “no” that appellant’s right ankle sprain was not caused or aggravated by an
employment activity. He advised that she could not perform her regular work, but she could
work with permanent restrictions.
In a December 5, 2013 decision, an OWCP hearing representative affirmed the April 12,
2013 termination decision. He found that the medical evidence submitted was insufficient to
outweigh Dr. Dzwinyk’s April 23, 2012 impartial medical opinion.
On January 16, 2014 appellant requested reconsideration and a review of the written
record by an OWCP hearing representative.
In clinical notes dated September 17, 2013 to January 7, 2014, Dr. Herzog related that
appellant had continued symptoms. He reiterated his opinion that she had developed tarsal
tunnel of the medial aspect of the right ankle as a consequence of her accepted January 15, 2011
employment injury. In an undated letter, Dr. Herzog noted that he checked the wrong box on the

4

November 26, 2013 Form CA-20 report. He should have responded “yes” to the question
whether the diagnosed condition was caused or aggravated by an employment activity.
In CA-20 and CA-17 form reports dated September 17, 2013 to March 25, 2014,
Dr. Herzog reiterated his diagnoses of anterior talofibular ligament sprain, lateral gutter
syndrome, tarsal tunnel syndrome, and bursitis tenosynovitis of the right foot. In the CA-20
form reports, he indicated with an affirmative mark that the diagnosed conditions were caused or
aggravated by an employment activity. Dr. Herzog advised that appellant was totally disabled
commencing August 13, 2013.
In an April 4, 2014 decision, OWCP denied appellant’s request for a review of the
written record. As she had previously received an oral hearing, appellant was not entitled to a
second hearing or a review of the written record as a matter of right. OWCP considered the
request within its discretion and found that the matter could be equally well addressed through
reconsideration.
On April 19, 2014 appellant requested reconsideration of the April 12, 2013 decision and
submitted evidence. In CA-20 and CA-17 form reports and clinical notes dated February 25 to
June 10, 2014, Dr. Herzog noted appellant’s continuing right ankle and right foot symptoms. He
reiterated his diagnoses of anterior talofibular ligament sprain, lateral gutter syndrome, tarsal
tunnel syndrome, and bursitis tenosynovitis of the right foot. Dr. Herzog also reiterated that
appellant was totally disabled as of August 13, 2013. In the April 29, 2014 CA-20 form report,
he again indicated with an affirmative mark that the diagnosed conditions were caused or
aggravated by work activity.
In a July 7, 2014 decision, OWCP denied modification of the April 4, 2014 decision. It
found that the medical evidence submitted was insufficient to outweigh the special weight
accorded to Dr. Dzwinyk’s April 23, 2012 impartial medical opinion.
On January 15, 2015 appellant requested reconsideration. In CA-20 form reports dated
June 10 to November 18, 2014, Dr. Herzog again indicated with a checkmark that appellant’s
anterior talofibular ligament sprain, lateral gutter syndrome, tarsal tunnel syndrome, and bursitis
tenosynovitis of the right foot were caused or aggravated by the January 5, 2011 employment
incident. He advised that she could return to light-duty work on August 18, 2014. In CA-17
form reports, an excuse/return to work note, and a light-duty status report dated July 8 to
October 17, 2014, Dr. Herzog reiterated his diagnosis of right ankle sprain and opinion regarding
appellant’s work capacity. In CA-17 form reports dated September 16, October 17, 2014, he
advised her that she could return to full-time regular work with restrictions. In a February 3,
2015 Form CA-17 report, Dr. Herzog released appellant to full-time regular work with no
restrictions. In reports and a clinical note dated July 8 and 15, 2014, he again opined that she had
right foot tarsal tunnel syndrome as a result of her January 15, 2011 work injury and that her
condition would worsen if the necessary medical treatment was not approved. Dr. Herzog also
reiterated the development of injury provided in his previous September 27, 2013 report. In
clinical notes dated September 16 and November 18, 2014, and January 6, 2015, he
recommended that appellant could return to light-duty work with a slight increase in her work
duties until she could perform full-duty tasks. On September 16, 2014 Dr. Herzog ordered an
FCE.

5

By decision dated April 10, 2015, OWCP denied modification of the July 7, 2014
decision. It found that Dr. Herzog’s reports were insufficient to establish that appellant had any
continuing residuals or disability due to her January 15, 2011 work injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.2 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
The burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.4 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.5 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.6
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.7 For a conflict to arise the opposing physicians viewpoints must be of virtually
equal weight and rationale.8 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well reasoned and based upon a proper factual background, must be given special
weight.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of April 12, 2013. OWCP accepted that on January 15,
2011 appellant sustained a right ankle sprain while in the performance of duty. She stopped
work on January 21, 2011. OWCP determined that a conflict in medical evidence had been
created between the opinions of appellant’s treating physicians, Dr. Antony and Dr. Bielinski,
and the OWCP referral physician, Dr. Elmes, as to whether appellant continued to be disabled
2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

A.P., Docket No. 08-1822 (issued August 5, 2009); James F. Weikel, 54 ECAB 660 (2003); Pamela K.
Guesford, 53 ECAB 727 (2002).
7

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

8

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

9

Gary R. Sieber, 46 ECAB 215, 225 (1994).

6

due to residuals of her accepted condition. It referred appellant to Dr. Dzwinyk for an impartial
medical examination pursuant to 5 U.S.C. § 8123(a).
Dr. Dzwinyk conducted an impartial medical examination on April 23, 2012 and
reviewed appellant’s history of injury and medical history. He diagnosed resolved right ankle
sprain causally related to the accepted January 15, 2011 work injury. Dr. Dzwinyk performed an
extensive review of the medical records and found essentially normal findings on examination
which led him to opine that appellant’s accepted injury had resolved. He advised that her current
symptoms were out of proportion to objective findings on physical examination and radiologic
imaging. Dr. Dzwinyk opined that appellant was fit to return to full duties as a city letter carrier
without any work restrictions. He concluded that no additional treatment was required for the
accepted January 15, 2011 work-related injury.
The Board finds that Dr. Dzwinyk’s report represents the weight of the medical evidence.
Dr. Dzwinyk provided a detailed report reviewing the medical and employment injury history,
medical records, and physical examination findings. He concluded, with supporting medical
rationale, that appellant had no residuals from the accepted right ankle condition and was able to
return to full-duty work without limitations. As Dr. Dzwinyk’s report is based on a proper
factual history, he provided findings and included rationalized medical reasoning, supporting his
conclusions, the Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits.10
The Board further finds that the additional medical evidence submitted by appellant prior
to the termination of benefits is insufficient to overcome the weight accorded to Dr. Dzwinyk or
to create a new medical conflict. Dr. Thometz’s form reports and treatment notes dated April 2,
2012 to February 7, 2013 are of diminished probative value. In the Form CA-20 reports, he used
only an affirmative mark to relate his opinion on causal relationship. The Board has held that an
opinion on causal relationship which consists only of a physician checking “yes” on a medical
form report without further explanation or rationale is of little probative value.11 Other reports
from Dr. Thometz also did not provide any medical rationale to support that appellant had
continuing residuals or disability attributable to the January 15, 2011 right ankle sprain.12 Thus,
this evidence is of limited probative value.
The Board finds that OWCP met its burden of proof to terminate appellant’s benefits
effective April 12, 2013.
LEGAL PRECEDENT -- ISSUE 2
It is well established that after termination or modification of benefits, clearly warranted
on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
In order to prevail, appellant must establish by the weight of the reliable, probative, and
10

See Bryan O. Crane, 56 ECAB 713 (2005).

11

Alberta S. Williamson, 47 ECAB 569 (1996).

12

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

7

substantial evidence that she had an employment-related disability or residuals which continued
after termination of compensation benefits.13
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained a right ankle sprain. It properly terminated her
wage-loss compensation and medical benefits effective April 12, 2013 based on the opinion of
Dr. Dzwinyk, the referee physician, who found that the accepted right ankle sprain had ceased
without residuals and that appellant could return to her regular work duties with no restrictions.
The burden then shifted to appellant to demonstrate that she continued to have residuals or
disability for work on and after April 12, 2013 due to the accepted injury.14
After the termination of benefits, appellant submitted numerous medical reports. Reports
from Dr. Herzog dated August 13 and September 27, 2013 listed findings and diagnosed
appellant with anterior talofibular ligament sprain, lateral gutter syndrome, tarsal tunnel
syndrome, and bursitis tenosynovitis of the right foot. He opined that she continued to have
residuals and consequential injuries from the accepted January 2011 work injury as she had
extreme pain in the anterior talofibular ligament region and lateral gutter area of her right foot.
Dr. Herzog related that appellant’s consequential right ankle tarsal tunnel syndrome resulted
from lateral ankle instability which caused her to ambulate with a supinated gait that created a
tri-plane motion consisting of simultaneous adduction, plantar flexion, and inversion of the right
foot which created impingement of the tarsal tunnel canal.
While Dr. Herzog supported causal relationship, he did not clearly explain the
mechanism through which the January 15, 2011 accepted right ankle sprain caused the tarsal
tunnel syndrome. Medical reports without adequate rationale on causal relationship are of
diminished probative value and do not meet an employee’s burden of proof.15 Dr. Herzog also
provided various Form CA-20 reports which indicated with an affirmative mark that the
diagnosed condition was caused by the accepted January 15, 2011 employment injury. The
Board has held, however, that when a physician’s opinion on causal relationship consists only of
checking a box marked “yes” to a form question, that opinion has little probative value and is
insufficient to establish causal relationship.16 Consequently, these form reports are of diminished
probative value and insufficient to meet appellant’s burden of proof.
Appellant also provided an undated Form CA-20 report from Dr. Bielinski which also
indicated with an affirmative mark that appellant had a sprain, plantar fasciitis, and tarsal tunnel
of the right ankle causally related to the accepted January 15, 2011 injury. As explained, a
physician’s opinion on causal relationship, which consists only of checking a box marked “yes”
to a form question has little probative value.17 Furthermore, Dr. Bielinski was on one side of the
13

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

14

Virginia Davis-Banks, id.

15

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

16

See supra note 11; see also Lillian M. Jones, 34 ECAB 379 (1982).

17

Id.

8

conflict in medical evidence that was resolved by Dr. Dzwinyk. The Board has held that
submitting a report from a physician who was on one side of a medical conflict that an impartial
specialist resolved is, generally, insufficient to overcome the weight accorded to the report of the
impartial medical examiner or to create a new conflict.18 Similarly, Dr. Thometz provided Form
CA-20 reports subsequent to the termination of benefits which provided diagnoses and checked a
box “yes” on the form as to whether appellant’s condition was work related. He did not provide
any medical rationale to support his opinion on causal relationship. Thus, this evidence is of
limited probative value and insufficient to meet appellant’s burden of proof.
Other medical evidence received by OWCP after the termination of benefits is of limited
probative value as it does not specifically address whether appellant’s condition is causally
related to the January 15, 2011 right ankle sprain. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.19
For these reasons, the medical evidence submitted after OWCP’s termination of benefits
is insufficient to meet appellant’s burden of proof to establish continuing residuals or disability
due to her accepted right ankle condition.
On appeal, appellant contends that she sustained a work-related ankle injury. She further
contends that the employing establishment offered her a modified job assignment and then
refused to allow her to perform the job which resulted in the termination of her case. OWCP
accepted appellant’s claim for a right ankle sprain and paid compensation benefits. As discussed
above, her wage-loss compensation and medical benefits were terminated because the medical
evidence established that she no longer had any residuals or disability causally related to her
accepted January 15, 2011 employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective April 12, 2013. The Board further finds that appellant failed to meet
her burden of proof to establish any continuing employment-related residuals or disability after
April 12, 2013.

18

Jaja K. Asaramo, 55 ECAB 200 (2004).

19

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); K.W.,
59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, id.; Michael E. Smith, 50 ECAB 313 (1999).

9

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


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

)
)
)
)
)
)
)
)

Appearances:
Bruce Didriksen, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0813
Issued: October 29, 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 March 2, 2020 appellant, through her representative, filed a timely appeal from a
February 14, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to expand acceptance of her
claim to include additional medical conditions causally related to the accepted employment injury.
FACTUAL HISTORY
On July 24, 2018 appellant, then a 55-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed arthritis in both of her knees and a frayed tendon
in her left ankle due to the factors of her federal employment, including constant walking, climbing
stairs and hills, and heavy lifting. She noted that she first became aware of her conditions on
February 21, 2017 and first realized they were caused or aggravated by factors of her federal
employment on December 19, 2017. Appellant did not stop work. She indicated that she had
previously filed a Form CA-2, but that the employing establishment had not filed it with OWCP.3
In a February 20, 2017 medical report, Dr. Dorothy Scarpinato, a Board-certified
orthopedic surgeon, evaluated appellant for low back pain radiating down her right side. Appellant
informed Dr. Scarpinato that she had encountered difficulty lifting and walking the stairs at work.
Dr. Scarpinato referred to an x-ray of the lumbar spine and diagnosed: spondylolisthesis, lumbar
region; spondylosis without myelopathy or radiculopathy, lumbosacral region; and a strain of the
fascia and tendon of the lower back.
In a February 28, 2017 diagnostic report, Dr. Kapil Desai, a Board-certified diagnostic
radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine and
diagnosed degenerative disc disease, facet arthrosis, and various subluxations. He found no cause
for her right-sided radiculopathy.
Medical reports dated from May 22 to July 17, 2017, note that Dr. Scarpinato evaluated
appellant for bilateral knee pain. On evaluation Dr. Scarpinato diagnosed unilateral primary
osteoarthritis in appellant’s right and left knee. She administered multiple steroid injections to
appellant’s knees and advised her to perform home exercise and ice treatments.
In a July 18, 2017 medical report, appellant informed Dr. Scarpinato that she had
experienced a sharp pain in her left ankle for the past two years. She reported that the pain was
not caused by an injury or trauma and stated that she now has difficulty walking. Appellant
informed Dr. Scarpinato that she was a postal worker and that her left ankle pain increased with
walking long distances. Dr. Scarpinato referred to an x-ray of the left ankle and diagnosed
posterior tibial tendinitis, left leg and a calcaneal spur in the left foot.
Dr. Desai reported that a July 20, 2017 MRI scan of appellant’s left ankle revealed a flatfoot
deformity with arthritis, moderate plantar fasciitis with Baxter neuropathy, mild Achilles
tendinosis and partial-thickness tearing, mild tenosynovitis of the extensor digitorum tendons and
3

The case record reveals that on January 2, 2018 appellant filed a Form CA-2 for the same conditions and provided
the same description of employment factors. Appellant indicated that she initially became aware of her conditions on
February 21, 2017 and related them to factors of her federal employment on December 19, 2017. OWCP received
this claim form from the employing establishment on February 2, 2019.

2

tendinosis, and tenosynovitis of the posterior tibial tendon with multi-compartment flexor
tenosynovitis. He also observed evidence of a prior lateral ankle sprain.
In medical reports dated from July 28, 2017 to April 9, 2018, Dr. Scarpinato continued to
treat appellant for pain she experienced in her knees and left foot. Appellant informed her that she
continued to work, but experienced difficulty moving around, walking distances, and climbing
stairs. In a December 19, 2017 progress note, Dr. Scarpinato noted that her job duties as a postal
carrier required her to carry and lift buckets and trays of mail, sort mail, walk long distances and
slopes, and climb in and out of a truck multiple times a day. She listed appellant’s diagnoses and
opined that the type of work she performed was causally related to the worsening of the
osteoarthritis in both of her knees and difficulty with physical activities. Dr. Scarpinato also
performed additional steroid injections to treat appellant’s bilateral knee osteoarthritis.
In a June 18, 2018 statement, appellant detailed her employment duties which consisted of
lifting carrying buckets and trays of mail on her route and sorting the mail into cases. She noted
that she loads and pushes mail trays to the dock where she then loads them onto her truck before
departing on her route.
In a development letter dated August 1, 2018, OWCP advised appellant of the deficiencies
of her claim and instructed her as to the factual and medical evidence necessary to establish her
claim. It also provided a factual questionnaire for her completion and requested a narrative medical
report from appellant’s treating physician, which contained a detailed description of findings and
diagnoses, explaining how her work activities caused, contributed to, or aggravated her medical
conditions. OWCP afforded appellant 30 days to respond.
Dr. Jonathan Lerner, a Board-certified diagnostic radiologist, reported that a June 1, 2006
MRI scan of appellant’s left knee revealed a maceration of the posterior horn, body segment and
anterior horn of the lateral meniscus and a meniscal tear.
A diagnostic report with an illegible signature revealed that appellant underwent a June 30,
2008 MRI scan of her right knee which revealed a complex tear of the anterior horn and body of
the lateral meniscus.
A September 17, 2014 MRI scan of appellant’s left shoulder performed by Dr. Mark
Decker, a Board-certified diagnostic radiologist, revealed severe degenerative changes.
In an August 15, 2018 medical report, Dr. Scarpinato noted a history of treatment relating
to appellant’s complaints of chronic pain in her lower back and bilateral knees, as well as difficulty
walking long distances and on stairs. Appellant informed her that her employment duties required
her to carry a postal bag and walk long distances in a specific amount of time, causing her
difficulty. Dr. Scarpinato diagnosed bilateral osteoarthritis in both knees, left shoulder adhesive
capsulitis, spondylolisthesis, lumbar region, spondylosis without myelopathy or radiculopathy,
lumbosacral region, strain of muscle, fascia and tendon of lower back, left leg posterior tibial
tendinitis, and a left foot calcaneal spur. She concluded, in her professional opinion, based on the
diagnostic tests and physical examination, that appellant’s medical conditions may have been
caused by, and definitely aggravated by, her federal employment. Dr. Scarpinato explained that

3

the degenerative process that leads to the arthritis is caused by constant wearing of the joints and
lower back by carrying heavy bags and walking long distances repetitively.
In an August 23, 2018 response to OWCP’s development questionnaire, appellant again
described her work duties consisting of taking buckets and trays of mail to her route, lifting them
to her counter and reaching to sort the mail. She noted that she walks to retrieve additional mail
and parcels for sorting which required additional lifting and sorting. Appellant then lifts the mail
and prepares it for delivery by loading it to a cart that is pushed to the dock for loading onto her
truck before departing for her route. She explained that her route takes seven and a half hours and
she must perform additional climbing in and out of her truck, walking up hills and slopes and
carrying baggage weighing up to 35 pounds on her shoulder. Appellant indicated that she has
worked in her position for 19 years and that over the past 5 to 10 years the amount of mail she has
had to process and deliver has steadily increased. She asserted that she had no additional hobbies
that contributed to her conditions.
By decision dated September 4, 2018, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed medical conditions and the accepted factors of her federal employment.
On September 27, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In a November 6, 2018 progress note, Dr. Scarpinato diagnosed bilateral osteoarthritis in
both knees, left shoulder adhesive capsulitis, spondylolisthesis, lumbar region, spondylosis
without myelopathy or radiculopathy, lumbosacral region, strain of muscle, fascia and tendon of
lower back, left leg posterior tibial tendinitis and a left foot calcaneal spur. She clarified her
previous statement, opining that appellant’s medical conditions were caused by and definitely
progressively aggravated by her federal employment. Dr. Scarpinato explained again that the
degenerative process that leads to the arthritis is caused by constant wearing of the joints and lower
back by carrying heavy bags and walking long distances repetitively over the years.
An oral hearing was held before an OWCP hearing representative on February 4, 2019.
Appellant’s representative detailed a 2003 left knee injury in which appellant fell in a sinkhole, as
well as a 2006 meniscal tear, which were subsequently accepted by OWCP.4 He reasoned that this
information was not considered in OWCP’s previous decision. Appellant explained that her work
duties had become more demanding to the point that she was still walking a full day even with
reasonable accommodations. The hearing representative suggested that appellant’s physician
clarify her opinion and held the case record open for 30 days for the submission of additional
evidence. No additional evidence was received.

4

Appellant previously filed a traumatic injury claim on March 24, 2003 for a left leg injury under OWCP File No.
xxxxxx032. On May 25, 2005 OWCP accepted her claim for an effusion of the joint of the left lower leg. On
March 28, 2008 it accepted appellant’s claim for a recurrence. The Board notes that there is no evidence that OWCP
accepted a claim for a 2006 meniscus tear.

4

By decision dated March 18, 2019, OWCP’s hearing representative affirmed the
September 4, 2018 decision.
On March 28, 2019 appellant, through her representative, requested reconsideration of
OWCP’s March 18, 2019 decision. In an attached March 20, 2019 progress note, Dr. Scarpinato
again detailed appellant’s employment duties and detailed her history of extensive conservative
treatment over the years and noted her multiple diagnostic reports revealing multiple medical
conditions. She explained that the type of work appellant undertakes, along with the consistent
and repetitive duties, with reasonable medical certainty were consistent with the diagnoses of
osteoarthritis in both knees as well as her ankle issues. Dr. Scarpinato explained that slipping and
sliding in the snow and ice, stumbling on uneven terrain throughout her career, as well as her
altered gait while carrying a heavy weighted satchel increased the stress on her knees and ankle
and contributed to her diagnosed conditions. She diagnosed bilateral primary osteoarthritis in both
knees, left leg posterior tibial tendinitis and a left foot calcaneal spur.
By decision dated June 26, 2019, OWCP denied modification of its March 18, 2019
decision.
OWCP continued to receive evidence. In a November 25, 2019 narrative medical report,
Dr. Scarpinato detailed her history of treatment for appellant and diagnosed bilateral knee
osteoarthritis, left shoulder adhesive capsulitis, lumbar region spondylolisthesis, lumbosacral
region spondylosis, a lumbar back strain, left leg posterior tibial tendinitis, and a left foot calcaneal
spur. She explained the cause of bilateral knee osteoarthritis and reasoned that prolonged walking
and appellant’s employment activities required the bones of her knees to wear on the cartilage,
causing it to become progressively thinner and resulting in her osteoarthritis. Dr. Scarpinato then
explained the cause of adhesive capsulitis and provided that appellant’s left shoulder carried the
weight of her loaded satchel for six hours a day, which prevented shoulder movement and caused
the tissue of the shoulder to thicken. She also described the cause of lumbosacral spondylosis and
opined that appellant’s bending, twisting and lifting with regularity while working caused her
vertebrae and/or the intervertebral discs in her spine to erode or break, causing her pain and
discomfort. Dr. Scarpinato continued by explaining that lumbar region spondylolisthesis was
caused by damage to bone or intervertebral discs and is often a byproduct of lumbosacral
spondylosis. She opined that as degeneration continued, appellant’s spinal components became
more prone to misalignment and caused her condition. Dr. Scarpinato noted that when appellant
lifted heavy objects at work the lower back was where the stress of the weight was focused. She
reasoned that this repetitive lifting constantly expanded her back muscles beyond normal elasticity
and caused her lumbar strain. Dr. Scarpinato discussed the cause of tendinitis and provided that
each time a forward step is taken, the tendon along the ankle is stretched. She opined that appellant
constantly climbed steps was especially demanding on her posterior tibial tendon and caused her
left leg posterior tibial tendinitis. Dr. Scarpinato further explained that constant stress on a calcium
deposit of a bone can cause a spur and concluded by stating that appellant’s calcaneal spur was
directly related to the constant stress on her heel from the ambulation and climbing that she
performed during her employment duties.
On December 6, 2019 appellant requested reconsideration of OWCP’s June 26, 2019
decision.

5

By decision dated February 14, 2020, OWCP denied appellant’s claim for bilateral knee
osteoarthritis, lumbar spondylosis, lumbar region spondylolisthesis, and a left foot calcaneal spur
finding that the evidence of record was insufficient to establish whether the accepted employment
factors caused or contributed to these diagnosed conditions.5
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such a causal
relationship.7 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.8 The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.10 For example, if
a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.11 Herein, appellant has an accepted
claim for an effusion of the joint of the left lower leg under OWCP File No. xxxxxx032. However,

5

By separate decision dated February 14, 2020, OWCP accepted appellant’s claim for adhesive capsulitis of the
left shoulder, a lumbar strain, and posterior tibial tendinitis, left leg. That decision was not adverse and therefore is
not before the Board on the present appeal. See 20 C.F.R. § 501.3.
6

S.B., Docket No. 19-0634 (issued September 19, 2019).

7

T.K., Docket No. 18-1239 (issued May 29, 2019).

8

R.P., Docket No. 18-1591 (issued May 8, 2019).

9

Id.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
11
Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T.,
Docket No. 17-0432 (issued August 17, 2018).

6

the evidence pertaining to OWCP File No. xxxxxx032 are not part of the case record presented
before the Board.
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File No. xxxxxx032 so it can properly determine
whether appellant has submitted sufficient evidence to demonstrate that osteoarthritis in her knee
was causally related to factors of her federal employment.
The Board further finds that the case is not in posture for decision as to whether her
diagnosed conditions of lumbosacral spondylosis, lumbar region spondylolisthesis and calcaneal
spur are causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted Dr. Scarpinato’s November 25, 2019 narrative
medical report in which she detailed her history of treatment for appellant related to pain she
experienced in her lower back, knees, and left ankle. Dr. Scarpinato explained that the bending,
twisting, and lifting appellant performed with regularity caused her vertebrae and/or the
intervertebral discs in her spine to erode or break, causing her lumbosacral spondylosis. She
continued by providing that lumbar region spondylolisthesis was caused by damage to bone or
intervertebral discs and is often a byproduct of lumbosacral spondylosis. Dr. Scarpinato opined
that as degeneration continued in appellant’s spine, her spinal components became more prone to
misalignment and caused her lumbar region spondylolisthesis. She also explained that constant
stress on a calcium deposit of a bone can cause a spur. Dr. Scarpinato reasoned that appellant’s
calcaneal spur was directly related to the constant stress on her heel from the ambulation and
climbing she performed during her employment duties.
The Board finds that, although Dr. Scarpinato’s November 25, 2019 narrative medical
report is not fully rationalized, it is relevant evidence in support of appellant’s claim, as it explains
the physiological process by which her accepted factors of federal employment caused or
aggravated her diagnosed conditions. Dr. Scarpinato’s November 25, 2019 narrative medical
report therefore raise an uncontroverted inference of causal relationship between her claimed
medical conditions and the accepted factors of her federal employment. Further development of
appellant’s claim is therefore required.12
On remand OWCP shall prepare a statement of accepted facts (SOAF) setting forth the
employment factors which have been established and refer appellant to an appropriate second
opinion physician for an examination and a rationalized medical opinion as to whether her accepted
employment factors either caused or aggravated her diagnosed conditions.13 If the second opinion
disagrees with the explanation provided by Dr. Scarpinato, he or she must provide a fullyrationalized explanation explaining why their opinions are unsupported. After this and other such
further development deemed necessary, OWCP shall issue a de novo decision.

12

See A.T., Docket No. 19-1972 (issued June 25, 2020); K.T., Docket No 19-1436 (issued February 21, 2020);
John J. Carlone, 41 ECAB 354, 356-57 (1989).
13
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

7

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2020 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: October 29, 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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 11-1729
Issued: March 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 19, 2011 appellant, through her representative, filed a timely appeal from the
April 12, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which calculated her compensation for partial disability. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether OWCP properly determined appellant’s monetary compensation
from February 20, 2001 to April 15, 2007 based on actual earnings.
FACTUAL HISTORY
On March 9, 2001 appellant, a 43-year-old rural letter carrier, filed an occupational
disease claim alleging that she developed carpal tunnel syndrome in her left wrist and a pinched
1

5 U.S.C. § 8101 et seq.

nerve in her neck as a result of repetitive motion in the course of her employment. When she
stopped work on February 20, 2001 her regular work hours were 7:00 a.m. to 4:15 p.m., Monday
through Friday. OWCP accepted appellant’s claim for permanent aggravation of cervical
radiculopathy.
Following her injury, appellant earned wages in various other employment. To calculate
her entitlement to wage-loss compensation for each period of employment, OWCP verified the
current pay rate for appellant’s grade and step on the date of injury. On March 8, 2006 the
employing establishment advised that, although appellant’s salary on the date of injury was
$47,533.00, “if the claimant’s route was still evaluated at 46 hours then her current salary would
be $56,510.00.”
OWCP inquired why the current pay rate decreased following the date of injury. The pay
rate on the date of injury, $48,203.00, dropped to $45,166.00 effective October 3, 2001 and
dropped again to $42,163.00 effective November 16, 2002, before increasing in following years.
The employing establishment explained that appellant was a rural carrier and that route
reevaluations caused fluctuations in salary.
In a decision dated July 19, 2010, OWCP calculated appellant’s entitlement to monetary
compensation from February 20, 2001 to April 15, 2007 based on her actual earnings in other
employment. Taking information from yearly income tax returns and W2 forms, OWCP
determined how much of appellant’s income was attributable to wages earned. For each period
of employment, OWCP determined that her wage-earning capacity by comparing appellant’s
wages with the current pay rate for the job she held when injured, then multiplying the
percentage by her weekly pay rate when injured. It then multiplied the loss of wage-earning
capacity by the compensation rate of 66 2/3 percent, applied any cost-of-living increases, and
multiplied by four to find the new compensation rate each four weeks. Because appellant had
already collected Office of Personnel Management (OPM) benefits, OWCP made deductions
from her compensation to reimburse OPM.
Appellant requested a review of the written record and in a decision dated April 12, 2011
an OWCP hearing representative affirmed the July 19, 2010 decision.
On appeal, appellant’s representative argued that OWCP retroactively applied a $480.00
wage-earning capacity determination to represent earnings from February 20, 2001 to April 15,
2007, and that OWCP should have based appellant’s wage-earning capacity on actual wages. He
also argued that, even if the pay rate for the date-of-injury position decreased, appellant should
receive the benefit of the higher pay rate at the time of injury. Counsel stated that the weekly
pay rate for a rural carrier, Step 11, was $991.42 effective November 16, 2002, which was higher
than the rate OWCP applied. He also argued that OWCP “appears to still include income from
appellant’s receipt of OPM benefits,” which was improper.

2

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.3
Where injury-related impairments prohibit the employee from returning to the
employment held at the time of injury, or from earning equivalent wages, but do not render her
totally disabled for all gainful employment, the employee is considered partially disabled and is
entitled to compensation for loss of wage-earning capacity.4
If the disability is partial, the United States shall pay the employee during the disability
monthly monetary compensation equal to 66 2/3 percent of the difference between her monthly
pay and her monthly wage-earning capacity after the beginning of the partial disability.5 To
satisfy this requirement, compensation for partial disability is computed using the Shadrick
formula.
In the case of Albert C. Shadrick,6 the Board set forth the principle that if current actual
earnings are used as one of the factors in computing an employee’s wage-earning capacity, then
the current increased wage for the employee’s original job should also be used to avoid any
distortions caused by changes in business conditions since the injury. Following this principle,
OWCP established the Shadrick formula as the method of computing compensation when
determining an injured worker’s wage-earning capacity.7
The salaries of rural letter carriers may vary over the life of the claim due to reevaluations
of the employee’s route.8 The “current pay of job held when injured” is defined according to
whether the boundaries of the carrier’s route have changed. If not, the hourly rate for the
employee’s grade and step when injured is multiplied by the number of hours representing the
route’s current evaluation. If so, the date-of-injury job when injured no longer exists. Therefore,

2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of Compensation, Chapter 2.901.15.a
(October 2009).
5

5 U.S.C. § 8106(a).

6

5 ECAB 376 (1953).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.2 (December 1993). For the formula itself, see supra note 4, Computation of Compensation, Chapter
2.901.15.c. (October 2009).
8

Id. at Chapter 2.901.15.f(2).

3

the current pay for the grade and step when injured should be multiplied by the number of hours
representing the route’s evaluation at the time of injury.9
ANALYSIS
A thorough review of OWCP’s July 19, 2010 decision shows that OWCP applied the
Shadrick formula to determine appellant’s wage-earning capacity based on actual earnings for
particular periods.10 The Board notes that appellant’s pay rate on February 19, 2001 appears
unsettled. OWCP found that appellant’s weekly pay rate when injured was $925.06, or
$48,103.00 a year. This is the figure shown on a January 8, 2004 Form CA-7. An April 13,
2001 Form CA-3, however, listed appellant’s current pay rate as $47,533.00. Indeed, the
employing establishment later confirmed that appellant’s pay rate on the date of injury was
$47,533.00, a pay rate that was effective on November 4, 2000.
This is critical to the proper calculation of appellant’s loss of wage-earning capacity. The
Board will remand the case for clarification of appellant’s pay rate on February 19, 2001 (step 1
of the Shadrick formula). OWCP must obtain documentation from the employer verifying
appellant’s salary.
OWCP’s procedure manual also explains that the salaries of rural letter carriers may vary
over the life of the claim due to reevaluation of the employee’s route. The employing
establishment noted this when OWCP inquired why the pay rate for appellant’s position
decreased after the date of injury. The procedure manual further explains that for a rural letter
carrier, the “current pay of job held when injured” is defined according to whether the
boundaries of the carrier’s route have changed. It appears from the record that this was the case,
resulting in a pay rate decrease on October 3, 2001 and November 16, 2002 and a pay rate
increase in following years. Accordingly, the date-of-injury job when injured is considered no
longer to exist. OWCP must multiply the current pay for the grade and step when injured by the
number of hours representing the route’s evaluation at the time of injury. Appellant’s claim form
shows that she worked more than 40 hours a week. The employing establishment advised on
March 8, 2006 that appellant’s route was evaluated at 46 hours.
The July 19, 2010 decision gives no indication that OWCP considered the number of
hours representing appellant’s route evaluation at the time of injury. The Board will therefore
remand the case for clarification of those hours and for a proper determination of the various
current pay rates for the job and step when injured (step 2 of the Shadrick formula).
Appellant argued that OWCP retroactively applied a $480.00 wage-earning capacity
determination to represent earnings from February 20, 2001 to April 15, 2007. This is not the
case. OWCP based appellant’s wage-earning capacity on actual wages. For each period, it
compared actual wages, which varied from period to period, to the current pay rate for the job
9

Id. at Chapter 2.901.15.f(2)(d).

10

Although it is not shown in each calculation, the record confirms that OWCP increased the Step 7
compensation rate by applicable cost-of-living increases before multiplying by 4 to obtain the Step 8 new
compensation rate each four weeks.

4

and step when injured. This resulted in a wage-earning capacity that varied from period to
period with her actual wages.
Appellant’s representative argued that even if the pay rate for the date-of-injury position
decreased, appellant should receive the benefit of the higher pay rate at the time of injury.
OWCP’s procedure manual is specific on this point. When the carrier’s route is reevaluated, the
current pay for the grade and step when injured is multiplied by the number of hours representing
the route’s evaluation at the time of injury. At step 2 of the Shadrick formula, appellant will
receive the benefit of her route’s evaluation at the time of injury, but this must be applied to the
current pay of the date-of-injury job, which may vary due to reevaluations.
As for the assertion that the weekly pay rate effective November 16, 2002 was in fact
higher than the rate OWCP used, appellant’s representative offers no authority for the
information. OWCP used figures obtained from the employing establishment. If appellant
disagrees with those figures, he may attempt to resolve the matter after the case is remanded for
further development.
Appellant’s representative asserts that OWCP “appears to still include income from
appellant’s receipt of OPM benefits,” but offered no further detail. He does not point to any
particular evidence to support the assertion. The Board is unable to identify an error. Again,
appellant may attempt to resolve the matter with OWCP on remand.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
evidence is warranted.

5

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: March 15, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cordova, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1537
Issued: December 1, 2017

Case Submitted on the Record

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

JURISDICTION
On July 6, 2017 appellant, through counsel, filed a timely appeal from a May 19, 2017
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.
ISSUE
The issue is whether appellant met her burden of proof to establish a right shoulder injury
causally related to the accepted November 12, 2015 employment incident.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel asserts that appellant submitted probative evidence establishing
causation.
FACTUAL HISTORY
On December 2, 2015 appellant, then a 41-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, while delivering mail on November 12, 2015, she tore her right
shoulder rotator cuff when reaching behind to get a package. She stopped work on
November 16, 2015 and returned on December 1, 2015.
By letter dated December 8, 2015, OWCP informed appellant of the evidence needed to
perfect her claim. In answers to a form questionnaire, signed by her on December 15, 2015,
appellant indicated that she informed her supervisor that her shoulder hurt when she returned to
the employing establishment on November 12, 2015. She also indicated that she had similar
work-related injuries. In a December 17, 2015 statement, an employing establishment supervisor
indicated that appellant reported a work injury on November 12, 2015.
On December 24, 2015 Dr. Thomas W. Throckmorton, a Board-certified orthopedic
surgeon, noted a history of right shoulder pain since November 12, 2015 when appellant felt
sharp pain while reaching for something in her mail truck. He described physical examination
findings, noting that it was significant for a positive Hawkins sign. Dr. Throckmorton diagnosed
right rotator cuff strain. He advised that appellant could return to work with a lifting restriction
of five pounds and no overhead work.
Appellant also submitted a prior occupational disease claim (Form CA-2) dated
March 31, 2006, and medical evidence which dated back from March 30 to May 17, 2006.3
These medical reports included diagnoses of shoulder, wrist, and arm pain.
By decision dated January 12, 2016, OWCP denied appellant’s claim. It accepted that
the November 12, 2015 incident occurred as alleged, but found that the evidence submitted in
support of her claim was insufficient to establish that her medical condition was caused by the
accepted November 12, 2015 employment incident.
On March 29, 2016 appellant requested reconsideration.4 In a January 5, 2016 treatment
note, Dr. Throckmorton indicated that appellant felt her shoulder had somewhat improved, but
that her pain had not resolved. He recommended a magnetic resonance imaging (MRI) scan. On
February 1, 2016 Dr. Throckmorton indicated that when appellant reached for a parcel in her
mail truck on November 12, 2015 she felt a pull or pop in her right shoulder, and that this action
was the direct cause of her current shoulder condition. On a February 1, 2016 attending
physician’s report (Form CA-20), he noted a positive Hawkins sign, diagnosed bursitis and right
shoulder rotator cuff impingement, and reiterated appellant’s physical restrictions.
3

The occupational disease claim, assigned File No. xxxxxx593, was for bilateral shoulder and hand pain. The
claim was adjudicated by OWCP on June 16, 2006 and was denied. File No. xxxxxx593 is not before the Board in
the present appeal. The instant claim was adjudicated by OWCP under File No. xxxxxx693.
4

Appellant had initially requested a review of the written record with OWCP’s Branch of Hearings and Review.
On March 18, 2016 she withdrew the request.

2

A February 24, 2016 MRI scan of the right shoulder was normal. In a treatment note
dated February 24, 2015, Dr. Throckmorton noted that appellant had significant right shoulder
pain. He described the MRI scan findings and noted the positive biceps tenderness and Hawkins
tests. Dr. Throckmorton diagnosed right shoulder impingement and right biceps tendinitis. He
recommended right shoulder arthroscopic surgery.
In a June 27, 2016 decision, OWCP denied modification of the prior decision. It found
the medical evidence of record insufficient to establish the claim.
On March 1, 2017 appellant, through her present counsel, requested reconsideration. A
form operative report dated July 25, 2016 indicated that Dr. Throckmorton performed right
shoulder arthroscopic surgery. In a treatment note dated August 22, 2016 he referenced his
February 1, 2016 report. Dr. Throckmorton advised that appellant was first treated by a
Dr. Murphy on November 16, 2015 and was then referred to him for treatment of right shoulder
pain. At that time appellant reported a roughly two-day history that, when she was reaching back
for a parcel, she heard a popping in her shoulder that led to progressive pain.
An August 28, 2016 emergency department report, completed by Dr. Timothy Edward
Long, a Board-certified internist, noted that appellant was three weeks post right shoulder
surgery and had right arm pain and swelling. He described examination findings and diagnosed
swelling of upper extremity, carpal tunnel syndrome, hypertension, and diabetes.
A September 7, 2016 electromyogram (EMG) demonstrated severe right brachial
plexopathy involving all peripheral nerves in the right upper extremity, with the median nerve
distribution most affected.
On September 9, 2016 Dr. Throckmorton discussed the EMG findings and noted physical
examination findings which demonstrated a resting tremor in the right hand. He advised that
appellant essentially could not be examined due to pain. Dr. Throckmorton diagnosed status post
right shoulder arthroscopy with biceps tenodesis, subacromial decompression, and labral
debridement, and right reflex sympathetic dystrophy versus Parsonage-Turner syndrome. In a
September 16, 2016 application for leave under the Family and Medical Leave Act,
Dr. Throckmorton noted positive EMG findings and advised that appellant could work with one
hand only.5
On January 16, 2017 Dr. Apurva R. Dalal, Board-certified in orthopedic surgery, noted a
history of previous surgery and ongoing severe right shoulder pain and loss of range of motion.
He described physical examination findings noting minimal tenderness over the
acromioclavicular (AC) joint and diminished right shoulder motion. Right shoulder ultrasound
demonstrated fluid collection in the subacromial space and moderate arthrosis of the AC joint
with a normal-appearing rotator cuff. Dr. Dalal injected appellant’s right shoulder. On
January 23, 2017 he noted full right shoulder range of motion with negative supraspinatus and
impingement tests. Dr. Dalal diagnosed right shoulder rotator cuff tendinitis.

5

The record does not indicate when appellant stopped work.

3

On February 16, 2017 Dr. Dalal noted that appellant’s right shoulder was doing well, but
that she had significant problems in the median nerve distribution with burning pain and
significantly decreased pinch strength. He noted the EMG findings and reported evidence of
brachial plexopathy and carpal tunnel syndrome on examination with positive Phalen’s and
Tinel’s tests. Dr. Dalal diagnosed right carpal tunnel syndrome and injected appellant’s right
hand.
Appellant also submitted a traumatic injury claim form (Form CA-1) dated March 8,
1998 for a head and neck injury. Medical evidence dated March 18, 1998 included diagnoses of
cervical strain and musculoskeletal pain.6 An April 17, 2006 form report included a diagnosis of
carpal tunnel syndrome. This report was signed by a nurse and included an additional signature
which was illegible.
In a merit decision dated May 19, 2017, OWCP denied modification. It noted that the
only medical evidence of record that addressed causal relationship was Dr. Throckmorton’s
August 22, 2016 note. OWCP again found that the medical evidence submitted did not contain
sufficient explanation addressing how the accepted November 12, 2015 employment incident
caused or aggravated a right shoulder condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,8 including that he or she is an employee within the meaning of FECA and that he or
she filed the claim within the applicable time limitation.9 The employee must also establish that
he or she sustained an injury in the performance of duty as alleged and that his or her disability
from work, if any, was causally related to the employment injury.10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at

6

The record before the Board contains no additional evidence regarding a 1998 claim.

7

Supra note 2.

8

J.P., 59 ECAB 178 (2007).

9

R.C., 59 ECAB 427 (2008).

10

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989). OWCP regulations define a traumatic injury as a condition
of the body caused by a specific event or incident or series of events or incidents within a single workday or shift.
20 C.F.R. § 10.5(ee). OWCP regulations define the term “occupational disease or illness” as a condition produced
by the work environment over a period longer than a single workday or shift.” 20 C.F.R. § 10.5(q).

4

the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.11
Causal relationship is a medical issue, and the medical evidence required to establish
causal relationship is rationalized medical evidence.12 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment incident identified by
the employee.13 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.14
ANALYSIS
There is no dispute that the employment incident of November 11, 2015 occurred as
alleged. The Board finds, however, that the medical evidence submitted by appellant is
insufficient to establish how the accepted employment incident caused or aggravated any of her
diagnosed right shoulder conditions.
In support of her claim appellant submitted diagnostic testing reports. The reports of her
February 24, 2016 right shoulder MRI scan and September 7, 2016 EMG study did not provide a
cause of any diagnosed conditions. Medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.15 Moreover, the MRI scan was within normal limits.
Appellant also submitted medical reports from Dr. Dalal who provided treatment,
reviewed diagnostic testing results, and diagnosed right shoulder rotator cuff tendinitis and
carpal tunnel syndrome on the right. She also submitted a report from Dr. Long who provided
examination findings postsurgery. However, none of the reports from these physicians contain
an opinion as to the cause of any diagnosed condition and are therefore of limited probative
value on the issue of causal relationship.
Appellant also provided the medical reports of Dr. Throckmorton in support of her claim.
The only evidence of record that addresses causal relationship are Dr. Throckmorton’s
February 1 and August 22, 2016 treatment notes. In the February 1, 2016 report, he noted that
when appellant reached for a parcel in her mail truck on November 12, 2015 and felt a pull or
pop in her right shoulder, that this action was the direct cause of her current shoulder condition.
On August 22, 2016 Dr. Throckmorton referenced his February 1, 2016 report and also noted
11

T.H., 59 ECAB 388 (2008).

12

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

13

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

14

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

15

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

5

that at that time she reported a roughly two-day history of reaching back for a parcel when she
heard a popping in her shoulder that led to progressive pain. Medical reports that merely assert
causal relationship cannot discharge appellant’s burden of proof.16 A physician’s opinion on
causal relationship between a claimant’s disability and an employment injury is not conclusive
simply because it is rendered by a physician. To be of probative value, the physician must
provide rationale for the opinion reached. Where no such rationale is present, the medical
opinion is of diminished probative value.17
The Board finds that the reports of
Dr. Throckmorton lack sufficient explanation addressing how the accepted work incident of
November 12, 2015 would have caused or aggravated any of the diagnosed right shoulder
conditions.18
Dr. Throckmorton also indicated that appellant was first treated by a Dr. Murphy on
November 16, 2015 who referred her to him for treatment of right shoulder pain. The record
before the Board does not contain a report from Dr. Murphy. Furthermore, it does not contain a
copy of the full July 25, 2016 operative report which would have described any operative
findings.
It is appellant’s burden of proof to establish an injury causally related to the accepted
November 12, 2015 employment incident. Contrary to counsel’s assertion on appeal, the record
contains insufficient evidence to establish an injury caused by this incident.
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 a right
shoulder injury causally related to the accepted November 12, 2015 employment incident.

16

See Sedi L. Graham, 57 ECAB 494 (2006).

17

See T.M., Docket No. 08-975 (issued February 6, 2009).

18

Supra note 16.

6

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF JUSTICE, MARSHALS
SERVICE, Alexandria, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lawrence Berger, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1823
Issued: January 4, 2016

Case Submitted on the Record

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

JURISDICTION
On August 29, 2015 appellant, through counsel, filed a timely appeal from March 2, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more
than 180 days elapsed between OWCP’s last merit decision of February 16, 2012 and the filing
of the current appeal, pursuant to the Federal Employee’s Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely and failed to establish clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The appeal was stamped as received by the Board on September 4, 2015. Pursuant to Board procedure, since
using the date of receipt as the filing date would result in a loss of appeal rights, the date of the postmark is
considered the date of filing. 20 C.F.R. § 501.3(f)(1). The date of the postmark was August 29, 2015, which
renders the appeal timely filed.

On appeal, through counsel, appellant contends that the claim was improperly denied due
to administrative errors on the part of OWCP. He also contends that appellant’s request for
reconsideration was timely filed.
FACTUAL HISTORY
On December 2, 2011 appellant, then a 38-year-old deputy marshal, filed a traumatic
injury claim (Form CA-1) alleging that on November 29, 2011 while returning to the office after
a late night prisoner transport, he was stopped at a red-light traffic signal and the government
vehicle he was driving was rear-ended by a drunk driver. He alleged that, as a result of this
accident, he sustained lower back pain.
By letter dated January 12, 2012, OWCP instructed appellant to submit information with
regard to the third party who may have caused the accident. In another letter of the same date, it
informed him that he had not submitted evidence to support his claim, and afforded him 30 days
to supply the necessary evidence. Both of these letters contained appellant’s OWCP file number.
Appellant did not file a timely response to either of OWCP’s letters.
By decision dated February 16, 2012, OWCP denied appellant’s claim as he had
submitted no medical evidence in support of his claim.
By letter dated January 15, 2013, appellant requested that his case be reopened. He
contended that, after he completed the claim form, he initially decided to wait and see if the pain
in his back resolved before seeking medical treatment. Appellant noted that he was informed by
the district OWCP liaison that his paperwork would be maintained in the event that he sought
medical care in the future. He indicated that he attempted to seek treatment four weeks later, but
that he was told that he needed a workers’ compensation claim number in order to make an
appointment. Appellant notified the district liaison, who told him that he should contact
OWCP’s liaison for the employing establishment. He noted that when he went home that
evening he received a letter from OWCP stating that his case was under review and required
supplemental documentation. Appellant stated that the following day the liaison told him that
she had researched the issue and, because the paperwork had been prematurely sent to OWCP
and due to the case status, he would be unable to secure a workers’ compensation number. He
argued that this created an untenable situation in that no doctor would allow him to make an
appointment without the workers’ compensation number, his motor vehicle insurance would not
cover an appointment because he was injured in a government-owned vehicle, and his private
health insurance would not cover an appointment because it was for a work injury. Appellant
stated that he has tried in vain over the past year to find a doctor who would accept a workers’
compensation claim without an OWCP claim number. He also submitted a copy of the
New Jersey Police Crash Investigation Report.
By decision dated July 29, 2014, OWCP denied appellant’s request for reconsideration
without conducting a merit review of the claim.
On December 9, 2014 appellant again requested reconsideration. He submitted new
medical evidence that he alleged established the medical diagnoses and established a causal
relationship between the diagnosed condition and his traumatic injury claim. In support thereof,

2

appellant submitted a report by Dr. Ryan McCormick, a Board-certified family practitioner,
wherein he stated that on July 28, 2014 appellant presented to his office with bilateral leg pain
and paresthesias of both legs and feet. He noted that the recent magnetic resonance imaging
(MRI) scan results showed rather severe degenerative changes most likely related to his motor
vehicle accident of November 29, 2011 and the injuries sustained therein. Dr. McCormick
discussed the accident and noted that appellant indicated that he was unable to get medical
attention due to administrative errors with the processing of his workplace injury claim.
Dr. McCormick noted that appellant had been his patient for 10 years, that he had
previously had an MRI scan on February 9, 2006 for testicular pain to rule out additional
pathology from the back, and that the new MRI scan of appellant’s spine obtained on July 30,
2014 showed extensive degenerative injuries and compressive lesions of the lumbar sacral spine.
He noted that appellant now has severe foraminal stenosis at L5-S1, associated synovial cyst
formation, multilevel bulging discs of the lumbar spine, multilevel foraminal stenosis, and
multilevel degenerative joint disease. Because of the severity of the degenerative disease,
Dr. McCormick explained that the foraminal stenosis and synovial cyst formation could be
attributed to sequelae of the motor vehicle accident. He opined that appellant had some
underlying issues with his back, but that the injuries sustained in the 2011 motor vehicle accident
significantly accelerated the degenerative process in his lumbar spine, leading to the formation of
multiple new synovial cysts, multilevel foraminal stenosis, bulging discs, and the development of
additional levels of severe degeneration such as the L5-S1 region in particular. Dr. McCormick
noted that appellant needed to follow up with an orthopedic surgeon and physical therapy.
Appellant also submitted results of the MRI scan taken on February 10, 2006 and the
MRI scan taken on July 30, 2014 by Dr. Jonathan Jaksha, a Board-certified radiologist.
Dr. Jaksha interpreted the July 30, 2014 MRI scan as showing scoliosis complex left with
changes of Schumann’s disease, multilevel degenerative disc disease, severe at L1-2 and L2-3,
facet degenerative joint disease that is severe at L5-S1, marrow edema in the left L5 and S1
pedicles that is likely degenerative and less likely stress reaction, 15-millimeter (mm) cyst
posterior to the left L5-S1, L2-3 disc bulge with right lateral extension and mild right foraminal
narrowing, mild L3-4 disc bulge, L4-5 disc bulge with forminal narrowing that is more
pronounced on the left, and severe left L5-S1 foraminal narrowing with an 8 x 3 mm synovial
cyst extending into the foramen.
By decision dated March 2, 2015, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for review must be received by OWCP within one year of the date of that
decision.3 The Board has found that the imposition of the one-year limitation does not constitute
an abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4 The
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

3

one-year period begins on the date of the original decision. However, a right to reconsideration
within one year accompanies any subsequent merit decision on the issues. This includes any
hearing or review of the written record decision, any denial of modification following
reconsideration, any merit decision by the Board, and any merit decision following action by the
Board.5
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.6 OWCP 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 application for review shows clear evidence of error on the part of OWCP.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.8 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP decision.13

5

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

6

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

7

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011).
OWCP procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. See also at Chapter 2.1602.5a.
8

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

9

See Leona N. Travis, 43 ECAB 227, 240 (1991).

10

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

11

See supra note 9.

12

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

Leon D. Faidley, Jr., supra note 4.

4

ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits as the request was untimely filed and did not establish clear
evidence of error.
Appellant most recently requested reconsideration on December 9, 2014. As this request
for reconsideration was received more than one year after the last merit decision, dated
February 16, 2012, the Board finds that the request for reconsideration was untimely.
The Board finds that appellant has not established clear evidence of error on the part of
OWCP in denying his claim. Appellant did not submit any medical evidence until he submitted
the July 28, 2014 report of Dr. McCormick. Dr. McCormick’s report was written over two and
one-half years after the November 29, 2011 employment-related motor vehicle accident. He
reached his conclusion that the motor vehicle accident had significantly accelerated the
degenerative process in appellant’s spine after comparing a July 30, 2014 MRI scan to an earlier
MRI scan taken prior to the accident on February 10, 2006. Dr. McCormick does not discuss
any other possible contributing factors in the eight years between the MRI scans. He indicated
that he had been appellant’s physician for 10 years, but there is no evidence that he saw appellant
after the accident, or at any time until July 28, 2014. There is no evidence of bridging symptoms
between the date of accident and the date of Dr. McCormick’s report. Accordingly,
Dr. McCormick’s report is not rationalized. Furthermore, the Board notes that the term clear
evidence of error is intended to represent a difficult standard. Even evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
required further development of the evidence, does not constitute clear evidence of error.14
On appeal, appellant’s counsel argues that administrative errors made by OWCP and
others caused appellant’s failure to file timely medical evidence. Counsel contends that
appellant initially could not get a medical opinion because his claim was prematurely filed, that
when he attempted to get medical care he did not have a claim number, and that his claim was
administratively denied prior to the February 15, 2012 decision denying his claim. This
argument finds no support in the record. Appellant signed his claim form on December 2, 2011.
On January 12, 2012 OWCP sent appellant two letters with regard to his claim and both
contained his claim number. Appellant admitted that he received these two letters. Furthermore,
his claim was not administratively denied prior to February 16, 2012. Appellant had a claim
number and was provided with instructions as to how to submit medical evidence and was given
30 days to submit such evidence. However, he did not submit medical evidence in support of his
claim for over two and one-half years. Therefore, appellant’s assertions do not raise a substantial
question as to the correctness of OWCP’s decision.
Accordingly, the Board finds that OWCP properly denied appellant’s untimely
reconsideration request. The Board will affirm OWCP’s March 2, 2015 decision.

14

D.G., 59 ECAB 455 (2008); see also D.C., Docket No. 15-0293 (issued September 11, 2015).

5

CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2015 is affirmed.
Issued: January 4, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6