United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

C.A., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMINISTRATION, 

Tampa, FL, Employer 

__________________________________________ 

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Docket No. 15-1203 

Issued: November 23, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On May 5, 2015 appellant filed a timely appeal from a December 18, 2014 merit decision 

and a March 11, 2015 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether appellant met her burden of proof to establish a schedule 

award; and (2) whether OWCP properly denied appellant’s request for further review of the 

merits of her claim pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On March 26, 2013 appellant, then a 62-year-old nurse filed an occupational disease 

claim (Form CA-2) alleging that she sustained respiratory conditions due to her exposure to 

harmful fumes at work while renovations were being carried out.2 She indicated that she first 

became aware of her claimed condition and its relationship to her work on August 2, 2012. 

OWCP accepted that appellant sustained unspecified asthma with acute exacerbation, acute 

bronchitis, and other respiratory abnormality. Appellant received disability compensation on the 

daily rolls beginning February 15, 2013. She later received disability compensation on the 

periodic rolls. 

In an October 25, 2013 form report, Dr. Leonard Cosmo, an attending Board-certified 

pulmonologist, opined that appellant reached maximum medical improvement on October 25, 

2013 and had a pulmonary impairment rating of 39 percent. 

On October 25, 2013 appellant filed a claim for a schedule award (Form CA-7) due to her 

accepted work injuries. 

OWCP requested that Dr. Cosmo provide an impairment rating in accordance with the 

standards of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides) (6th ed. 2009). In a December 10, 2013 form report, Dr. Cosmo 

again opined that appellant reached maximum medical improvement on October 25, 2013 and 

had a pulmonary impairment rating of 39 percent. 

On January 14, 2014 Dr. Eric Puestow, a Board-certified internist serving as an OWCP 

medical adviser, noted that the record did not contain a satisfactory pulmonary study on which to 

base a schedule award. Dr. Cosmo was asked to submit an impairment rating report based on 

pulmonary testing, but he did not respond to this request. 

In a February 27, 2014 report, Dr. Perry R. Lloyd, a Board-certified pulmonologist 

serving as an OWCP referral physician, discussed appellant’s factual and medical history and 

reported findings from a February 26, 2014 examination. He noted that he found no clinical 

findings to support residuals of the accepted work injuries. Dr. Lloyd noted that maximum 

medical improvement had been reached and that there was no data to support the existence of 

acute bronchitis, respiratory abnormality, or asthma with acute exacerbation. He noted that 

appellant stated that she did not have problems walking and could go up and down stairs readily. 

Thus, appellant could perform her regular work as a nurse. In an attached February 26, 2014 

work restrictions form, Dr. Lloyd opined that she was capable of working as a nurse without 

restrictions. 

 2

 OWCP accepted that in 2011 and 2012 appellant was exposed to chemical fumes from cleaning solutions, dust 

particles, and construction debris from this renovation work. The air transfer system was deemed insufficient to 

remove these harmful substances. 
3

On March 13, 2014 Dr. Puestow discussed Dr. Lloyd’s report noting that it showed 

appellant ceased to have a work-related respiratory condition. He noted that calculation of a 

schedule award was “not appropriate in this case.”3 

By decision dated March 21, 2014, OWCP denied appellant’s claim for a schedule award. 

It found that the medical evidence of record did not show a measurable respiratory impairment 

under the sixth edition of the A.M.A., Guides. 

In an April 3, 2014 letter, OWCP advised appellant that it proposed to terminate her 

wage-loss compensation and medical benefits based on the report of Dr. Lloyd, the referral 

physician. It afforded her 30 days to submit evidence and argument challenging the proposed 

termination action. 

Appellant submitted an April 24, 2014 report in which Dr. Cosmo noted that her 

abnormal pulmonary function test results consistently indicated respiratory insufficiency. 

Dr. Cosmo noted that this was objective evidence that residual effects of the work-related 

conditions continued. He noted that testing showed that appellant’s asthma was not well 

controlled and that she had not returned to her preinjury status. 

In a May 12, 2014 report, Dr. Eduardo L. Gonzalez, an attending Board-certified 

anesthesiologist, noted that he concurred with Dr. Cosmo’s opinion on continuing work-related 

residuals. He discussed appellant’s pulmonary function testing from April 16, 2014 and noted 

that the diagnosed conditions were causally related “to the event that happened during the course 

of employment and within the scope of compensable work factors, and that there are 

consequential injuries developed after the prolonged exposure to chemical fumes, construction 

debris, and treatment.” 

OWCP then determined that there was a conflict in the medical opinion evidence 

regarding continuing work-related residuals between Dr. Lloyd, the referral physician, and 

appellant’s attending physicians, Dr. Cosmo and Dr. Gonzalez. In order to resolve the conflict, it 

referred appellant, pursuant to section 8123(a) of FECA, to Dr. Stuart M. Brooks, a Boardcertified pulmonologist, for an impartial medical examination and an opinion on the matter. 

In an August 18, 2014 report, Dr. Brooks provided an extensive discussion of appellant’s 

factual and medical history, including the results of various pulmonary tests. He noted that he 

reviewed allergy testing results, but discerned no strongly positive allergen prick skin test 

response to any of the numerous allergens tested. Dr. Brooks noted that appellant’s pulmonary 

function testing from April 16, 2014 showed oxygen saturation of 99 percent while breathing and 

therefore did not show pulmonary dysfunction. He reported the findings of his own examination 

of appellant, noting that she reported breathing problems upon exertion. Dr. Brooks opined that 

she ceased to have residuals of her accepted work-related injuries, unspecified asthma with acute 

exacerbation, acute bronchitis, and other respiratory abnormality. He opined that appellant could 

return to her regular work as a nurse. Dr. Brooks found that there was convincing objective 

 3

 The record contains a March 20, 2014 report stating “per [the sixth edition of the A.M.A., Guides] rating 39 

percent from respiratory impairment due to respiratory disorders table that shows impairment classifications.” 

However, the report is not signed and it is unclear who produced it. 
4

medical evidence supporting the diagnosis of extrathoracic airway obstruction, a condition 

localized outside of her lungs and in the trachea/larynx/vocal cord areas. The condition of 

extrathoracic airway obstruction was not connected, in any way, to the claimed workplace 

exposures. 

On September 17, 2014 OWCP requested that Dr. Brooks provide a supplemental report 

clarifying whether appellant could work on a full-time basis in her regular job as a nurse. In an 

October 3, 2014 report, Dr. Brooks clarified that she could work on a full-time basis in her 

regular job as a nurse as appellant did not currently have any work restrictions due to the 

accepted work injuries.4

 

By decision dated September 22, 2014, OWCP affirmed its March 21, 2014 decision 

denying appellant’s claim for a schedule award. It discussed the opinion of Dr. Brooks, the 

impartial medical specialist, finding that she ceased to have residuals of a work-related 

respiratory condition, and noted that the medical evidence did not show that she had any 

permanent impairment. 

In an October 21, 2014 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits effective October 21, 2014 based on the August 18 and October 3, 2014 

reports of Dr. Brooks, the impartial medical specialist. It found that the weight of the medical 

evidence regarding continuing work-related residuals rested with the well-rationalized opinion of 

Dr. Brooks.5

Appellant subsequently submitted medical treatment notes from August 2014. 

By decision dated December 18, 2014, OWCP affirmed its September 22, 2014 decision 

denying appellant’s claim for a schedule award. It again discussed the opinion of Dr. Brooks 

finding that she ceased to have residuals of a work-related respiratory condition, and noted that 

she had not met her burden of proof to establish permanent impairment for a schedule award. 

In a letter received on February 17, 2015, appellant requested reconsideration of OWCP’s 

December 18, 2014 decision. She submitted May 8, 2014 and January 2, 2015 treatment reports 

of Dr. Cosmo. 

By decision dated March 11, 2015, OWCP denied appellant’s request for further review 

of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that she filed a timely request 

for reconsideration of its December 18, 2014 decision on February 17, 2015, but found that she 

did not submit new and relevant argument or evidence requiring reopening of her claim. OWCP 

indicated that appellant submitted May 8, 2014 and January 2, 2015 treatment reports of 

Dr. Cosmo, but that these reports did not contain any permanent impairment rating. Therefore, 

 4

 Dr. Brooks noted that appellant might need some restrictions during the first two weeks she returned to work. 

However, these would not be due to her accepted work-related injuries, but rather due to the fact that she had not 

worked for a considerable period of time. 

5

 It is noted that the matter of OWCP’s termination of appellant’s wage-loss compensation and medical benefits 

effective October 21, 2014 is not currently before the Board. 
5

they were not relevant to the issue of the December 18, 2014 decision, i.e., appellant’s claim for 

schedule award compensation. 

LEGAL PRECEDENT -- ISSUE 1 

An employee seeking compensation under FECA has the burden of establishing the 

essential elements of his or her claim, including that he or she sustained an injury in the 

performance of duty as alleged and that an employment injury contributed to the permanent 

impairment for which schedule award compensation is alleged.6

 The medical evidence required 

to establish a causal relationship is rationalized medical opinion evidence. Rationalized medical 

opinion evidence is medical evidence which includes a physician’s rationalized opinion on the 

issue of whether there is a causal relationship between the claimant’s diagnosed condition and 

the implicated employment factors. The opinion of the physician must be based on a complete 

factual and medical background of the claimant, must be one of reasonable medical certainty, 

and must be supported by medical rationale explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.7

The schedule award provision of FECA8

 and its implementing regulations9 set forth the 

number of weeks of compensation payable to employees sustaining permanent impairment from 

loss, or loss of use, of scheduled members, or functions of the body. However, FECA does not 

specify the manner in which the percentage of loss shall be determined. For consistent results 

and to ensure equal justice under the law to all claimants, good administrative practice 

necessitates the use of a single set of tables so that there may be uniform standards applicable to 

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the 

appropriate standard for evaluating schedule losses.10 

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between 

the physician making the examination for the United States and the physician of the employee, 

the Secretary shall appoint a third physician who shall make an examination.”11 When there are 

opposing reports of virtually equal weight and rationale, the case must be referred to an impartial 

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical 

evidence.12 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

 6 See Bobbie F. Cowart, 55 ECAB 476 (2004). 

7 Victor J. Woodhams, 41 ECAB 345, 351-52 (1989). 

8

 5 U.S.C. § 8107. 

9

 20 C.F.R. § 10.404 (1999). 

10 See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,

Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 

(January 2010). 

11 5 U.S.C. § 8123(a). 

12 William C. Bush, 40 ECAB 1064, 1975 (1989). 
6

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.13

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained unspecified asthma with acute exacerbation, 

acute bronchitis, and other respiratory abnormality due to exposure to harmful substances in the 

workplace. Appellant filed a claim for a schedule award due to her accepted work injuries, but 

OWCP denied her claim because the medical evidence did not establish the existence of 

permanent impairment for a schedule award. 

The Board finds that appellant did not meet her burden of proof to establish a schedule 

award compensation. 

Appellant submitted October 25 and December 10, 2013 form reports in which 

Dr. Cosmo, an attending Board-certified pulmonologist, opined that she reached maximum 

medical improvement on October 25, 2013 and had a pulmonary impairment rating of 39 

percent. However, Dr. Cosmo did not explain how she had a work-related condition that caused 

disability under the standards of the sixth edition of the A.M.A., Guides.14 Appellant did not 

submit any other medical evidence addressing permanent impairment. 

In addition, the record contains medical evidence suggesting that appellant did not have 

permanent impairment. In August 18 and October 3, 2014 reports, Dr. Brooks, a Board-certified 

pulmonologist serving as an impartial medical specialist, found that she ceased to have residuals 

of her accepted work conditions, unspecified asthma with acute exacerbation, acute bronchitis, 

and other respiratory abnormality.15 

On appeal, appellant argued that she continued to have residuals of her accepted work 

injuries and claimed a schedule award. However, she did not explain how the medical evidence 

of record supported this argument. For these reasons, appellant did not meet her burden of proof 

to establish a schedule award. 

Appellant may request a schedule award or increased schedule award based on evidence 

of a new exposure or medical evidence showing progression of an employment-related condition 

resulting in permanent impairment or increased impairment. 

 13 Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980). 

14 See supra note 10. 

15 OWCP found that there was a conflict in the medical opinion evidence on this matter between Dr. Lloyd, a 

Board-certified pulmonologist serving as an OWCP referral physician, and appellant’s attending physicians, 

Dr. Cosmo and Dr. Gonzalez, a Board-certified anesthesiologist. See supra notes 11 through 13. 
7

LEGAL PRECEDENT -- ISSUE 2 

To require OWCP to reopen a case for merit review under section 8128(a) of FECA,16

OWCP’s regulations provide that the evidence or argument submitted by a claimant must: 

(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a 

relevant legal argument not previously considered by OWCP; or (3) constitute relevant and 

pertinent new evidence not previously considered by OWCP.17 To be entitled to a merit review 

of an OWCP decision denying or terminating a benefit, a claimant’s application for review must 

be received within one year of the date of that decision.18 When a claimant fails to meet one of 

the above standards, OWCP will deny the application for reconsideration without reopening the 

case for review on the merits.19 The Board has held that the submission of evidence or argument 

which repeats or duplicates evidence or argument already in the case record20 and the submission 

of evidence or argument which does not address the particular issue involved does not constitute a 

basis for reopening a case.21 While a reopening of a case may be predicated solely on a legal 

premise not previously considered, such reopening is not required where the legal contention 

does not have a reasonable color of validity.22 

ANALYSIS -- ISSUE 2 

In her timely February 17, 2015 application for reconsideration of OWCP’s 

December 18, 2014 decision, appellant did not show that OWCP erroneously applied or 

interpreted a specific point of law. She did not identify a specific point of law or show that it 

was erroneously applied or interpreted. Appellant did not advance a new and relevant legal 

argument. The underlying issue in this case is a medical issue which must be addressed by 

relevant medical evidence.23 

A claimant may be entitled to a merit review by submitting pertinent new and relevant 

evidence, but appellant did not submit any in this case. Appellant submitted May 8, 2014 and 

January 2, 2015 treatment reports of Dr. Cosmo, but these reports do not contain any permanent 

impairment rating. Therefore, they are not relevant to the issue of the December 18, 2014 

decision, i.e., her entitlement to schedule award compensation. The Board has held that 

submission of previously submitted evidence which does not address the particular issue involved 

 16 Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of 

compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a). 

17 20 C.F.R. § 10.606(b)(3). 

18 Id. at § 10.607(a). 

19 Id. at § 10.608(b). 

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

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

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

23 Supra note 6. 
8

does not constitute a basis for reopening a case does not require reopening of a claim for merit 

review.24 

The Board accordingly finds that appellant did not meet any of the requirements of 20 

C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a 

specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION 

The Board finds that appellant did not meet her burden of proof to establish a schedule 

award. The Board further finds that OWCP properly denied appellant’s request for further 

review of the merits of her claim pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the March 11, 2015 and December 18, 2014 

decisions of the Office of Workers’ Compensation Programs are affirmed. 

Issued: November 23, 2015 

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 

 24 See supra note 21.