United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Kansas City, KS,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1466
Issued: March 10, 2014

Case Submitted on the Record

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

JURISDICTION
On June 6, 2013 appellant filed a timely appeal from a December 11, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 55 percent permanent impairment of his
lower extremities bilaterally, 45 percent impairment of the right upper extremity and 53 percent
impairment of the left upper extremity for which he has received schedule awards.
On appeal, appellant again argued that his current schedule award improperly excluded
impairment ratings for calf atrophy and limb length discrepancy and should have been calculated
under the fifth edition of the American Medical Association, Guides to the Evaluation of
1

5 U.S.C. § 8101 et seq.

Permanent Impairment (A.M.A., Guides). He further argued that the statement of accepted facts
dated May 26, 2006 and December 11, 2007 were insufficient and that any reports which relied
on these reports must be excluded due to the “fruit of the poisonous tree doctrine.” Appellant
also alleged that OWCP and its selected physicians demonstrated bias against him.
FACTUAL HISTORY
This case has previously been before the Board.2 On August 16, 1989 appellant strained
his back lifting heavy boxes at work and his claim was accepted for paraspinal muscle strain and
minimal disc herniation at L5-S1, depression and dysthymic disorder. Due to these injuries, in
1992, he received a schedule award for six percent impairment of each of his lower extremities
on December 3, 1992. Appellant filed a second claim on March 13, 1995 due to an automobile
accident which resulted in accepted conditions of subluxations of the cervical, lumbar and
thoracic vertebra at L1, L3, T4 and T11 intervertebral disc disorder, keloid scar, dysfunction of
the penis, abnormal involuntary movement, cervical spondylosis with myelopathy, recurrent
major depression and dysthymic disorder. He underwent a magnetic resonance imaging (MRI)
scan of the cervical spine on March 19, 1998 which demonstrated degenerative arthritic changes
at C5-6 with a large spur and calcified disc fragment. On June 8, 1999 a nerve conduction
velocity (NCV) test demonstrated slight to moderate L4, 5 and S1 radiculopathy on the right.
Nerve conduction studies on December 7, 1999 demonstrated slight to moderate left C6
radiculopathy. In a September 27, 2000 MRI scan, appellant was determined to have a disc
herniation at L5-S1 and disc degeneration at L5-S2.
On May 8, 2001 appellant underwent a posterior cervical partial laminectomy at C5 and
C6 with foraminotomy at C5-6 and neurolysis of C6 nerve root. Due to these injuries on
August 25, 2000 he received schedule awards for 49 percent impairment of the left upper
extremity and 8 percent impairment of the right upper extremity. On September 27, 2001
OWCP granted appellant an additional schedule award for one percent impairment of his right
lower extremity. By decision dated August 14, 2002,3 the Board remanded his claim due to an
unresolved conflict of medical opinion evidence between Dr. Robert Moore, a Board-certified
neurologist, and Dr. Sanjay J. Chauhan, a Board-certified neurologist, regarding whether the
1995 accident resulted in any permanent impairment.
By decision dated September 3, 2003, OWCP denied appellant’s claim for an additional
schedule award based on the impartial medical examiner’s report. The Branch of Hearings and
Review vacated this decision on August 4, 2004 and remanded the case for further review.
In a decision dated March 24, 2006, OWCP granted appellant a schedule award for 17
percent partial loss of use of the penis. In a separate award of the same date, appellant received
33 percent additional impairment of his right lower extremity and an additional 13 percent
2

On December 27, 1993 the Board dismissed the appeal docketed as No. 94-532 in accordance with appellant’s
request. Order Dismissing Appeal, Docket No. 94-532 (issued December 27, 1993). On January 7, 1997 the Board
remanded appellant’s appeal of a July 20, 1995 nonmerit decision for OWCP to review the merits of his schedule
award claim. Order Remanding Case, Docket No. 96-195 (issued January 7, 1997).
3

Docket No. 02-164 (issued August 14, 2002).

2

impairment to his left lower extremity resulting in a total of 40 percent impairment of the right
lower extremity and 19 percent impairment of the left lower extremity.
A request for reconsideration was filed and by decision dated June 21, 2006 the
reconsideration request was denied without reviewing the merits.
By decision dated August 15, 2006, OWCP denied appellant’s claim for an additional
schedule award due to his accepted bilateral upper extremities.
OWCP issued a decision on November 14, 2006 denying appellant’s request for an
additional lower extremity schedule award.
By decision dated March 20, 2007, OWCP found that appellant had not established an
additional permanent impairment to a scheduled member entitling him to a schedule award.
By decision dated May 28, 2008, OWCP amended appellant’s November 14, 2006 and
March 20, 2007 schedule award decisions finding that he had 55 percent impairment of each of
his lower extremities.
In a decision dated May 29, 2008 and finalized June 18, 2008, OWCP granted appellant
additional schedule awards for 37 percent impairment of the right upper extremity and 4 percent
impairment of the left upper extremity resulting in total schedule awards of 45 and 53 percent,
respectively.
Appellant requested reconsideration of the May 28, 2008 lower extremity schedule award
decision dated July 17 and October 19, 2008, stating that OWCP had not resolved the issues of
his T1 nerve root impairment based on an electromyogram (EMG), his right lower extremity
impairment due to gait derangement and impairment of his lungs.
On December 18, 2008 OWCP issued a decision denying modification of the May 28,
2008 decision.
On October 22, 2009 appellant requested reconsideration of the December 18, 2008
decision. He argued that OWCP failed to consider Dr. Chauhan’s report regarding gait
derangement and pelvic torsion. Appellant requested that his claim be evaluated in accordance
with the fifth edition of the A.M.A., Guides. He stated that there were “substantial errors and
abuses” in OWCP’s prior decisions. Appellant also requested reconsideration of his cervical
claim requesting maximum T1 and C8 impairments for sensory and motor loss to both arms.
OWCP referred appellant’s claim to the medical adviser for evaluation. In a decision
dated December 9, 2009, it denied modification of the December 18, 2008 decision. OWCP
relied on the medical adviser’s report finding no additional permanent impairment.
Appellant requested reconsideration on July 5, 2010 of the December 9, 2009 decision
denying modification of his schedule awards for upper and lower extremities. He alleged that he
had neurological impairment of T1 and C8 impacting in his upper extremities and 15 percent
impairment for use of a cane for distance walking in the right lower extremity. Appellant argued
that Dr. Chauhan was entitled to greater weight than the medical adviser. He argued that the

3

fifth edition of the A.M.A., Guides was appropriate as the appeal involved recalculating several
prior awards based on OWCP’s error.
The medical adviser reviewed the record on November 8, 2010. He noted that
appellant’s electrodiagnostic studies demonstrated findings consistent with right C8 and T1
radiculopathy, but found that there was no objective evidence on any physical examination
supporting that he had either impaired sensation or weakness in the right C8-T1 distribution. In
regard to appellant’s right leg length discrepancy, the medical adviser found that OWCP had not
accepted a pelvic injury as a result of his employment incidents. The medical adviser further
stated that appellant would not have developed a leg length discrepancy as a result of his
accepted work injury. He concluded that the sixth edition of the A.M.A., Guides did not provide
any impairment for the use of a cane as this would be duplicative of impairment due to loss of
sensation or motor weakness. The medical adviser opined that there was no increase in
appellant’s impairment to the upper or lower extremities and thus the impairment ratings should
remain the same.
By decision dated November 19, 2010, OWCP denied modification of the December 9,
2009 decision based on the medical adviser’s report.
On March 22, 2011 Dr. Chauhan completed EMG studies of both upper extremities. He
found moderate C5-8 and T1 cervical radiculopathy bilaterally. Dr. Chauhan completed a report
on March 25, 2011 addressing appellant’s permanent impairment. He diagnosed hyperreflexia of
the right lower extremity associated with cervical myelopathy due to spinal cord compression at
C5-7. Dr. Chauhan opined that this condition explained appellant’s bowel, bladder and sexual
dysfunction. He also suggested that appellant’s tinnitus was related to his cervical myelopathy.
Dr. Chauhan reviewed appellant’s electrodiagnostic studies and opined that his cervical
radiculopathy had worsened. He provided an impairment rating based on the fifth edition of the
A.M.A., Guides and noted that this was at appellant’s request. Dr. Chauhan stated that, under
the sixth edition of the A.M.A., Guides, he would rate appellant in the severe disability category.
Under the fifth edition of the A.M.A., Guides, he found that appellant had 66 percent motor
deficit and 28 percent sensory deficit of the left upper extremity for a total of 76 percent
impairment of the left upper extremity. For the right upper extremity, Dr. Chauhan found 51
percent motor deficit and 28 percent sensory deficit or 65 percent impairment of that upper
extremity. In regard to appellant’s lower extremities, he found gait derangement on the right
with abnormal bilateral reflex in both lower extremities more problematic on the right.
Dr. Chauhan also noted that appellant required a cane. He opined that appellant had an
additional 49 percent impairment of the right lower extremity due to these conditions.
Dr. Chauhan argued that appellant was entitled to additional compensation for gait derangement
on March 24, 2006. He provided an EMG and NCV study dated March 22, 2011.
On June 6, 2011 appellant requested reconsideration of the November 19, 2010 decision
denying modification of his schedule award entitlement. In a letter dated August 17, 2011, he
stated that the 2006 and 2008 schedule award decisions were improperly calculated under the
fifth edition of the A.M.A., Guides. Appellant submitted additional legal arguments in support
of his June 6, 2011 request for reconsideration on August 19, 2011. He alleged that he was not
requesting an increase in a prior schedule award, but that his prior schedule award was not
calculated correctly under the fifth edition of the A.M.A., Guides. Appellant submitted a

4

corrected version of his reconsideration request on June 8, 2011. He submitted a supplemental
request for reconsideration on August 19, 2011. Appellant argued that he was entitled to
schedule awards for gait derangement and calf atrophy, which were not included in the 2006 and
2008 schedule awards.
On August 2, 2011 OWCP referred appellant’s claim to Dr. Christopher R. Brigham, a
physician Board-certified in occupational medicine and an OWCP medical adviser, who
completed a report dated September 6, 2011 reviewing the findings in Dr. Chauhan’s March 25,
2011 report and applying the sixth edition of the A.M.A., Guides. Dr. Brigham provided a
summation of Dr. Chauhan’s impairments ratings under the fifth edition of the A.M.A., Guides
and noted that appellant’s claims were largely subjective in nature including his incontinence and
penile impairments. He stated that other medical evaluations were not available but that
Dr. Chauhan noted a wide range of findings by those physicians. Dr. Brigham recommended
additional examination and impairment by a Board-certified neurologist.
Dr. Brigham applied the sixth edition of the A.M.A., Guides to Dr. Chauhan’s motor and
sensory findings in the upper extremities and noted that radiology reports were not available. He
noted that Dr. Chauhan’s reports lacked specificity as to the muscles tested and that there were
no reports of atrophy or other clinical findings to be reasonably expected with muscle grading of
3/5. Dr. Brigham also found that Dr. Chauhan’s findings regarding sensation were without
explanation of how the sensation loss was determined and with no indication of the extensive
involvement as would reasonably be expected from cervical MRI scan to correlate with the
functional findings reported. He determined that appellant had mild C5 motor abnormality with
grade 2 clinical studies modifier and grade 4 functional history modifier which differed by
2 values and must be excluded from the final net adjustment as was physical examination.
Dr. Brigham reached six percent impairment of the upper extremities due to C5 motor
abnormality. He also found mild C5-6 sensory deficit with a default rating of 1. Dr. Brigham
found a clinical studies modifier 2 and excluded physical examination and functional history to
reach one percent upper extremity impairment for the C5 sensory abnormality. He found a
similar impairment for C6 bilaterally, reaching six percent for motor deficit and one percent for
sensory deficit. Dr. Brigham reached 14 percent impairment for each of the upper extremities.
In regard to appellant’s lower extremities, Dr. Brigham noted the distinction between
chiropractic and medical subluxations and found that there was no evidence of segmental
instability of the lumbar spine. He did find evidence of radiculopathy L5-S1. Dr. Brigham
stated, “There is no evidence, other than a recent report of hyperreflexia that would appear to
support that the lower extremity findings are a result of cervical cord compression.” He opined
that there was little by way of objective testing to relate the lower extremity problems to cord
compression in the neck. Dr. Brigham rated appellant’s right lower extremity based on S1 motor
abnormality and excluded the physical examination modifier as it was used to determine the
class. He found that clinical studies including an EMG and MRI scan revealed a mild S1
radiculopathy for grade 1. Dr. Brigham determined functional history modifier 2 based on
appellant’s significant Trendelenberg’s sign as supported by his functional leg length difference
and used a cane due to chronic low back pain. He found four percent lower extremity rating for
S1 motor involvement. In regard to S1 sensory abnormality, Dr. Brigham stated, “Again
physical examination is excluded as it is used to determine the class. Clinical studies support a
mild S1 involvement. Functional history was used with motor assessment so is excluded to

5

avoid duplication. This offers a net adjustment of zero for a final [one] percent lower extremity
rating for S1 sensory deficit.” He found no sensory or motor deficits in the left lower extremity
resulting in no ratable impairment to that member.
Dr. Brigham noted that Dr. Chauhan assigned an additional 49 percent lower extremity
impairment for gait abnormality. He opined that gait was only to be used in cases in which no
other methodology applied. Dr. Brigham found that the appropriate method for rating the lower
extremities was through spinal nerve root dysfunction rather than gait. He noted the dearth of
description of appellant’s “spasticity.” Finally, Dr. Brigham noted appellant’s leg length
discrepancy of two centimeters, but found no indication that he suffered from an anatomically
short leg that would support consideration for additional permanent impairment. He concluded,
“It is more probable that the aforementioned leg discrepancy, if confirmed, is secondary to
antalgia and postural abnormalities secondary to his pain.” Dr. Brigham found that appellant had
14 percent impairment of each upper extremity and 5 percent impairment of his right lower
extremity. He noted that appellant had previously received schedule awards exceeding these
amounts and was not entitled to additional compensation for these members.
On September 21, 2011 appellant completed a second reconsideration request addendum
and alleged due process errors in the development of his schedule award claim. In a letter dated
September 23, 2010, he added additional legal argument in support of his reconsideration
request, that the May 29, 2008 schedule award did not include calf atrophy or gait disorder. On
September 27, 2011 appellant submitted a reconsideration request addendum. He requested that
OWCP ensure that his entitlements previously granted for calf atrophy and gait were restored
and alleged that these impairments were subjected to improper rescission under the fifth edition
of the A.M.A., Guides. Appellant alleged that Dr. Brigham was biased and lacked understanding
of the A.M.A., Guides and that Dr. Chauhan was entitled to the weight of the medical evidence.
In a letter dated October 4, 2011, appellant submitted additional arguments in support of
his request for reconsideration. He alleged that an improper rescission occurred when his
conditions of calf atrophy, limb length and gait disorders were not included in his 2008 schedule
award.
OWCP requested a supplemental report on October 19, 2011 from Dr. Brigham noting
that it was providing all the medical reports including March 19, 1998 and November 16, 2006
MRI scans.
In a report dated November 2, 2011, Dr. Brigham submitted a supplemental report noting
that Dr. Chauhan had applied the fifth edition rather than the sixth edition, that he would apply
the sixth edition to these findings and that he would determine if any additional impairment was
appropriate. He stated that he had reviewed all the medical records and determined that there
was no additional impairment to the lower extremities as a result of the accepted spinal
conditions. Dr. Brigham stated that, as other physicians were unable to substantiate
Dr. Chauhan’s sensory or motor deficits in the extremities, Dr. Chauhan’s findings were deemed
unreliable for rating purposes. He reviewed reports from Dr. Jordan and Dr. Sophon, which he
found listed normal sensory and motor findings. Dr. Brigham reviewed the diagnostic testing
and noted that Dr. Chauhan’s findings were significant for bilateral multilevel radiculopathy, but
showed no evidence of lumbar nerve root compromise. He concluded that there was no ratable

6

impairment to the upper or lower extremities as a result of the spinal conditions. Dr. Brigham
reaffirmed that Dr. Chauhan’s findings were deemed unreliable for rating purposes.
Dr. Chauhan completed a report on December 21, 2011. He conducted NCV studies on
December 20, 2011 which demonstrated moderate chronic L3-5 and S1-2 lumbar radiculopathy
bilaterally. The study was negative for polyneuropathy.
OWCP requested a review of the medical record by the district medical adviser on
February 8, 2012.
In a report dated March 6, 2012, Dr. Chauhan provided appellant’s history of injury
including appellant’s employment injuries on March 3, 1989 and March 3, 1995. He listed
appellant’s subjective complaints involving his back, gait, neck, tinnitus, incontinence, breathing
gastrointestinal issues, depression and insomnia. Dr. Chauhan noted that appellant was
diagnosed with diverticulitis in 1999. He related appellant’s surgeries including partial
laminectomy of C5, vertebrectomy of C4, foramintomy of C5-6, neurolysis of C6 nerve on
May 8, 2001. Dr. Chauhan provided findings on neurological examination including diminished
sensation bilaterally at C5-7 and T1 dermatomes. He also found sensation reduced at L3-5 and
S1 bilaterally. Dr. Chauhan stated that appellant’s gait was antalgic due to neck and low back
conditions causing motor and sensory deficits in both arms and legs as well as hyperreflexia in
the right lower extremity. He reported loss of motor strength in all four limbs with slight
spasticity in the right lower extremity. Dr. Chauhan found moderate tenderness and spasm of the
bilateral paracervical muscles worse on the right than the left. He noted appellant’s accepted
conditions of chronic airway obstruction,4 major depression, dysthymic disorder, morbid obesity,
hypertension, obstructive sleep apnea, thoracic or lumbosacral neuritis or radiculitis,
displacement of lumbar intervertebral disc dislocation lumbar vertebra, dislocation of C5,
dislocation of thoracic vertebra, cervical disc disorder with myelopathy, cervical spondylosis
with myelopathy, abnormality of gait, keloid scar and disorders of the penis and bladder.
Dr. Chauhan added additional diagnoses of chronic allergic rhinitis and tinnitus as consequences
of appellant’s pulmonary claim, diverticulitis aggravated due to daily anti-inflammatory use as a
consequence of his lumbar claim and dysphagia as a complication of his 2001 cervical surgery.
He recommended additional therapy and cervical surgery.
Dr. Chauhan addressed Dr. Brigham’s report and noted that he personally conducted all
electrodiagnostic studies of appellant. He further asserted that appellant did not have diabetes or
other abnormalities found through blood studies. Dr. Chauhan stated that monofilament testing
was not required during a neurological sensory examination. He provided an impairment rating
in accordance with the fifth edition of the A.M.A., Guides and opined that appellant
demonstrated hyperreflexia as well as ankle clonus due to his chronic cervical myelopathy.
Dr. Chauhan also attributed appellant’s symptomatology of the urinary and reproductive system
to cervical myelopathy and stated that these conditions should be rated under the A.M.A.,
Guides.
In a report dated March 25, 2011, Dr. Chauhan opined that appellant had 28 percent
impairment of the right upper extremity due to sensory deficit and 51 percent impairment of the
4

Claim No. xxxxxx314.

7

right upper extremity due to motor deficit or 65 percent impairment of the right upper extremity
under the A.M.A., Guides. He further found that appellant had 28 percent impairment of the left
upper extremity due to sensory deficit and 66 percent impairment due to motor deficits for
76 percent impairment of the left upper extremity under the fifth edition of the A.M.A., Guides.
Dr. Chauhan evaluated appellant’s lower extremities and found on the right spastic gait
disorder with abnormal bilateral reflex in both lower extremities. He stated that frequent jerking
in the right leg was a typical neurologic symptom of intervertebral disc disorder with myelopathy
at C5-7. Dr. Chauhan applied the fifth edition of the A.M.A., Guides whole person impairment
and converted to right lower extremity impairment of 49 percent. He stated that Dr. M. Michael
Mahdad attributed appellant’s gait derangement to cervical myelopathy on May 22, 2003.
In a letter dated April 19, 2012, appellant submitted reconsideration argument. He
described his right lower extremity gait disorder resulting from the March 3, 1995 cervical cord
injury and prior lifting injury. Appellant cited to the fifth edition of the A.M.A., Guides as
entitling him to an impairment rating due to cane use in 2003. He argued that FECA Bulletin
09-03 provided that recalculations resulting from reconsiderations did not require recalculation
under the sixth edition of the A.M.A., Guides as OWCP had discretionary authority. Appellant
stated that OWCP could not justify rescission of the award six percent for calf atrophy and limb
length discrepancy. He stated that OWCP could apply either the fifth or sixth edition, but that
the percentages must remain the same to make him whole.
By decision dated June 6, 2012, OWCP reviewed the merits of appellant’s claims noting
his argument that his schedule awards should be developed under the fifth edition of the A.M.A.,
Guides and should include 6 percent for right lower leg atrophy and limb length discrepancy as
well as 49 percent for right lower leg impairment due to gait derangement as a result of cervical
myelopathy and 43 percent impairment to the upper extremities bilaterally due to C8 and T1
nerve root impairments. It found that the sixth edition of the A.M.A., Guides was appropriate for
evaluating appellant’s impairment for schedule award purposes. OWCP further found that as
Dr. Chauhan utilized the fifth edition of the A.M.A., Guides his impairment rating was not
appropriate. It had referred his report to the medical adviser who found deficiencies under the
sixth edition of the A.M.A., Guides. OWCP determined that appellant had not established
grounds to modify its prior decision.
On August 23, 2012 appellant requested reconsideration of the June 6, 2012 decision. In
support of his reconsideration request, he referenced a report dated March 6, 2012 from
Dr. Chauhan and alleged error in OWCP’s decision. Appellant requested schedule award
compensation for right lower extremity impairment due to cervical myelopathy based on medical
reports from Dr. Moore dated 2001, Dr. Mahdad dated 2003 and Dr. Lama dated 2004. He
alleged that there were inaccurate statements of accepted facts that must be excluded and alleged
that compensation for calf atrophy and limb length discrepancy was improperly rejected by the
medical adviser. Appellant argued that OWCP was not required to apply the sixth edition of the
A.M.A., Guides in the June 6, 2012 decision.
Dr. Chauhan completed reports on August 28, September 11 and 20, 2012. On
August 28, 2012 his report repeated the history, findings and diagnoses of his March 6, 2012
report. In his September 11, 2012 report, Dr. Chauhan repeated appellant’s history of injury and

8

reported a two-centimeter limb length discrepancy on the right with right-sided gait derangement
due to pelvic torsion from the automobile accident.
In a letter dated September 19, 2012, appellant argued that he was entitled to 51 percent
impairment of the right lower extremity due to his cervical condition under the fifth edition of
the A.M.A., Guides. In a letter dated September 28, 2012, he requested that his claim be
expanded to include diverticulitis as a result of pain medication to treat his accepted low back
condition.
In a decision dated December 11, 2012, OWCP denied modification of its prior decisions.
It found that any new decision on appellant’s entitlement to a schedule award must be based on
the sixth edition of the A.M.A., Guides. OWCP noted that he had not alleged a worsening of his
employment-related conditions, but instead argued that there were errors in the previous
schedule award decisions made under the fifth edition, which require revision under the fifth
edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.7
In Harry D. Butler,8 the Board noted that Congress delegated authority to the Director of
OWCP regarding the specific methods by which permanent impairment is to be rated. Pursuant
to this authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.9 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.10 The applicable date of the sixth
5

5 U.S.C. §§ 8101-8193, 8107.

6

20 C.F.R. § 10.404.

7

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

43 ECAB 859 (1992).

9

Id. at 866.

10

FECA Bulletin No. 09-03 (March 15, 2009). FECA Bulletin was incorporated in supra note 7 at Chapter
2.808.6(a) (January 2010).

9

edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed.
If a claimant who has received a schedule award calculated under a previous edition of
the A.M.A., Guides is entitled to additional benefits, the increased award will be calculated
according to the sixth edition. Should the subsequent calculation result in a percentage of
impairment lower than the original award (as sometimes occurs), a finding should be made that
the claimant has no more than the percentage of impairment originally awarded, that the
evidence does not establish an increased impairment and that OWCP has no basis for declaring
an overpayment. Similarly, awards made prior to May 1, 2009 (the effective date for use of the
sixth edition) should not be reconsidered merely on the basis that the A.M.A., Guides have
changed. All permanent partial impairment calculations made on or after May 1, 2009 must be
based on the sixth edition.11
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.12 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.13 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.14 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.15
Neither, FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.16 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.17 The sixth edition of the A.M.A., Guides (2009) does not provide a specific
methodology for rating spinal nerve extremity impairment.18 It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the FECA procedure manual.19 Specifically, it will

11

Supra note 7, Schedule Awards, Chapter 2.808.7(b)(4) (January 2010).

12

C.B., Docket No. 13-1516 (issued December 6, 2013); Anna V. Burke, 57 ECAB 521 (2006).

13

5 U.S.C. § 8107(c).

14

Id.

15

Id.; 20 C.F.R. § 10.404(b).

16

Id.; see Jay K Tomokiyo, 51 ECAB 361 (2000).

17

Supra note 7, Schedule Awards, Chapter 2.808.6a (January 2010).

18

The methodology and applicable tables were published in the July/August 2009 edition of The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition.
19

Supra note 7, Chapter 3.700 (January 2010).

10

address lower extremity impairments originating in the spine through Table 16-11 and upper
extremity impairment originating in the spine through Table 15-14.20
ANALYSIS
Appellant has received several schedule awards from OWCP resulting in total
impairment ratings of 55 percent impairment of his lower extremities bilaterally, 45 percent
impairment of the right upper extremity and 53 percent impairment of the left upper extremity.
These impairment ratings are based on his accepted spinal conditions of paraspinal muscle strain
and minimal disc herniation at L5-S1 as well as subluxations of the cervical, lumbar and thoracic
vertebra at L1, L3, T4 and T11, interverbral disc disorder and cervical spondylosis with
myelopathy.
As noted above, for decisions after May 1, 2009, the sixth edition of the A.M.A., Guides
are applicable. Appellant has made several repeated arguments that this edition of the A.M.A.,
Guides is not applicable to his claim. The Board finds that these arguments are without merit.
The Board has adopted the application of FECA Bulletin No. 09-0321 which clarifies that any
recalculations of previous awards which result from reconsiderations decisions issued on or after
May 1, 2009 should be based on the sixth edition of the A.M.A., Guides.22 Appellant is
attempting to increase the amount of his compensation by receiving an increased schedule award.
He does not, therefore, fall within the exception of FECA Bulletin No. 09-03 allowing
application of a previous edition of the A.M.A., Guides.23
Appellant submitted arguments regarding the weight of the medical evidence. He
proposed discounting several of the physicians used by OWCP based on allegations of bias and
allegations that certain of the statements of accepted facts relied upon are not correct. While the
Board reviewed the extensive factual record including the reports mentioned by appellant, the
Board is not persuaded of the relevance of his arguments. The legal status of his claim is that
after May 1, 2009 he must establish by the weight of the medical evidence that he has more than
55 percent impairment of his lower extremities bilaterally, 45 percent impairment of the right
upper extremity and 53 percent impairment of the left upper extremity under the sixth edition of
the A.M.A., Guides if he wishes to receive additional compensation benefits for permanent
impairment. As appellant has not submitted medical evidence complying with the sixth edition
of the A.M.A., Guides, the remainder of his arguments are not relevant to his current claim.
The only medical evidence applying the sixth edition of the A.M.A., Guides to the
findings in appellant’s claim are the reports from Dr. Brigham dated September 6 and
November 2, 2011. Dr. Brigham applied the appropriate provisions of the A.M.A., Guides for
20

A.M.A., Guides 533, 425.

21

FECA Bulletin No. 09-03 (issued March 15, 2009).

22

C.K., Docket No. 09-2371 (issued August 18, 2010).

23

Id. The Bulletin provides that if the percentage of the award is affirmed but the case remanded for further
development of some other issue, such as pay rate, then recalculation of the award under the sixth edition is not
required.

11

spinal impairments and determined that appellant had mild C5 motor abnormality with grade 2
clinical studies modifier and reached six percent impairment of the upper extremities due to C5
motor abnormality. He also found mild C5-6 sensory deficit with a default rating of 1, clinical
studies modifier 2 to reach one percent upper extremity impairment for the C5 sensory
abnormality. Dr. Brigham found a similar impairment for C6 bilaterally, reaching six percent for
motor deficit and one percent for sensory deficit. He reached 14 percent impairment for each of
the upper extremities.
Dr. Brigham rated appellant’s right lower extremity based on S1 motor abnormality and
found that clinical studies including an EMG and MRI scan revealed a mild S1 radiculopathy for
grade 1. He determined functional history modifier 2 and found four percent lower extremity
rating for S1 motor involvement. In regard to S1 sensory abnormality, Dr. Brigham determined
that clinical studies supported a mild S1 involvement and a net adjustment of zero for a final one
percent lower extremity rating for S1 sensory deficit. He found no sensory or motor deficits in
the left lower extremity resulting in no ratable impairment to that member. Dr. Brigham
determined that appellant had 14 percent impairment of each upper extremity and 5 percent
impairment of his right lower extremity. He noted that appellant had previously received
schedule awards exceeding these amounts and was not entitled to additional compensation for
these members.
Dr. Chauhan completed reports with greater impairment ratings based on the fifth edition
of the A.M.A., Guides. He opined that appellant had 28 percent impairment of the right upper
extremity due to sensory deficit and 51 percent impairment of the right upper extremity due to
motor deficit or 65 percent impairment of the right upper extremity under the A.M.A., Guides.
Dr. Chauhan also found that appellant had 28 percent impairment of the left upper extremity due
to sensory deficit and 66 percent impairment due to motor deficits for 76 percent impairment of
the left upper extremity under the fifth edition of the A.M.A., Guides. He evaluated appellant’s
lower extremities and found on the right spastic gait disorder with abnormal bilateral reflex in
both lower extremities. Dr. Chauhan stated that frequent jerking in the right leg was a typical
neurologic symptom of intervertebral disc disorder with myelopathy at C5-7. He applied the
fifth edition of the A.M.A., Guides whole person impairment and converted to right lower
extremity impairment of 49 percent.
Unlike Dr. Chauhan, Dr. Brigham referenced the appropriate provisions for rating spinal
nerve extremity impairment under the sixth edition of the A.M.A., Guides, which have been
incorporated in the FECA Procedure Manual. Dr. Brigham properly indicated that to evaluate
the peripheral nerve impairments in appellant’s upper and lower extremities resulting from spinal
injuries, he was applying the standards contained in the procedure manual. He concluded that
appellant had a 14 percent impairment of each upper extremity and 5 percent impairment of his
right lower extremity and a 0 percent permanent impairment of his left leg. In reaching this
conclusion, Dr. Brigham chose default values for peripheral spinal nerve impairments based on
the findings of record. He modified these values based on the appropriate grade modifiers.
Futhermore, in reaching these determinations, Dr. Brigham extensively discussed the medical
findings of record.
The Board finds that Dr. Brigham’s impairment rating is consistent with FECA and the
A.M.A., Guides and thus, represents the weight of the medical evidence regarding the extent of

12

appellant’s impairment. The record does not include any credible evidence demonstrating that
appellant has greater than impairment ratings of 14 percent impairment of each upper extremity
and 5 percent impairment of his right lower extremity under the sixth edition of the A.M.A.,
Guides.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 55 percent impairment of his lower
extremities bilaterally, 45 percent impairment of the right upper extremity and 53 percent
impairment of the left upper extremity for which he has received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
EDUCATION & TRAINING COMMAND,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0076
Issued: March 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 20, 2015 appellant filed a timely appeal from a June 30, 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.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to a February 1, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the June 30, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that he is still injured from landing on his right knee at
work and cannot go to the physician specialist because his insurance will not cover it.
FACTUAL HISTORY
On February 3, 2015 appellant, a 27-year-old aircraft attendant, filed a traumatic injury
claim (Form CA-1) alleging that he injured his right knee on February 1, 2015. He stated that he
was helping to push back a T-6 aircraft for tire roll over inspection when his right foot slipped
and his right knee hit the ground.
Appellant submitted hospital records dated February 4, 2015 and reports dated
February 9 through April 1, 2015 from a physician assistant who reported that appellant injured
his right knee while lifting at work and diagnosed right knee pain. The submissions included a
February 9, 2015 return to work form from a Dr. T. Sanchez who noted that appellant was unable
to work that day and could work thereafter with restrictions of no prolonged walking or standing
and no bending of the right knee. Also submitted were physical therapy records.
OWCP authorized an April 9, 2015 magnetic resonance imaging (MRI) scan of the right
knee, which revealed mild lateral patellar subluxation and tilting with mild chondromalacia
patellae.
In a May 12, 2015 letter, OWCP advised appellant that his claim had been received, it
appeared to be a minor injury, and there was minimal or no lost time from work. Based on these
criteria, and because the employing establishment did not controvert continuation of pay (COP)
or challenge the case, payment of a limited amount of medical expenses was administratively
approved. As the medical bills had exceeded $1,500.00, the case was reopened. OWCP
requested additional evidence and afforded appellant 30 days to respond to its inquiries.
Appellant submitted reports dated March 24 through May 21, 2015 from the physician
assistant who had diagnosed patellar dislocation and dislocated patella. This included a May 14,
2015 physician assistant report, noting that appellant’s injury occurred while pushing a T-6
aircraft on February 1, 2015.
In a June 10, 2015 duty status report (Form CA-17), Dr. Ira Floyd, an orthopedic surgeon,
diagnosed right patellar subluxation. He checked a box marked “yes” to indicate that the history
provided by appellant was consistent with the history provided on the employing establishment’s
side of the form report. In a separate report of the same date, Dr. Floyd released appellant to
regular duty effective June 10, 2015. The employing establishment advised that appellant had
returned to full-time, full-duty work on June 10, 2015.
By decision dated June 30, 2015, OWCP accepted that the February 1, 2015 incident
occurred as alleged but denied appellant’s claim finding that he failed to submit evidence
containing a medical diagnosis in connection with the injury or events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
2

the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA, that an injury3 was sustained in the performance of
duty, as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.6
ANALYSIS
OWCP has accepted that the employment incident of February 1, 2015 occurred at the
time, place, and in the manner alleged. The Board finds, however, that appellant did not meet his
burden of proof to establish that he sustained an injury related to the February 1, 2015
employment incident. Appellant has not submitted medical evidence supporting that the
February 1, 2015 work incident caused or contributed to a diagnosed medical condition.
In a June 10, 2015 duty status report (Form CA-17), Dr. Floyd diagnosed right patellar
subluxation and checked a box “yes” to indicate that the history provided by appellant was
consistent with the history provided on the employing establishment’s side of the form report.
The Board has held that a physician’s opinion that consists of checking a box on a form report
without more in the way of rationale, is of diminished probative value in establishing causal
Dr. Floyd failed to provide a rationalized opinion explaining how the
relationship.7
3

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. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
5

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

6

Id. See Gary J. Watling, 52 ECAB 278 (2001).

7

See Calvin E. King, 51 ECAB 394 (2000).

3

February 1, 2015 work incident caused or contributed to a diagnosed medical condition. Thus,
the Board finds that the reports from Dr. Floyd are insufficient to establish that appellant
sustained an injury causally related to the February 1, 2015 employment incident.
Dr. Sanchez reported on a February 9, 2015 return to work form that appellant was
unable to return to work that day and could work in the future with restrictions. However, he
neither provided a history of injury, a diagnosis, findings on examination, nor addressed the issue
of causal relationship. As such, his report is of diminished probative value and is insufficient to
establish appellant’s claim.8
The April 9, 2015 MRI scan of the right knee is of limited probative value as it does not
specifically address whether the February 1, 2015 employment incident caused or contributed to
the diagnosed conditions.9
Appellant also submitted evidence from a physician assistant and physical therapists.
These documents do not constitute competent medical evidence because neither a physician
assistant nor a physical therapist is a “physician” as defined under FECA.10 As such, this
evidence is also insufficient to meet appellant’s burden of proof.
Consequently, the Board finds that appellant has not met his burden of proof as he has
not submitted competent medical evidence addressing how the February 1, 2015 work incident
caused or contributed to a diagnosed medical condition.
On appeal appellant contends that he is still injured from landing on his right knee at
work and cannot go to the physician specialist because his insurance does not cover it. Based on
the findings and reasons stated above, the Board finds that appellant has not met his burden of
proof to establish a work injury and therefore his current arguments on appeal fail to address the
relevant issue of the case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in
the performance of duty on February 1, 2015.
8

See T.G., Docket No. 13-76 (issued March 22, 2013); Lee R. Haywood, 48 ECAB 145 (1996).

9

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (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).
10

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants); Jennifer L. Sharp, 48 ECAB
209 (1996) (physical therapists). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2
ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the submission of
probative medical evidence from a physician).

4

ORDER
IT IS HEREBY ORDERED THAT the June 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed
Issued: March 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-699
Issued: June 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 31, 2014 appellant filed a timely appeal from a January 10, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $5,178.80 from May 23, 2010 to October 19, 2013; and
(2) whether it abused its discretion in denying waiver of the overpayment.

1
2

5 U.S.C. § 8101 et seq.

Appellant has another appeal pending before the Board and is being addressed separately under Docket No.
15-267.

FACTUAL HISTORY
This case has previously been before the Board. By order dated July 19, 2005, the Board
remanded the case to OWCP for reconstruction of the record.3 By decision dated March 18,
2014, the Board found that OWCP had properly denied a review of the merits of appellant’s
claim for a schedule award, as appellant had failed to meet the criteria for a merit review,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b).4
Appellant, a 34-year-old mail carrier, filed a Form CA-2, occupational disease claim on
March 6, 2000, alleging that she developed a bilateral foot condition causally related to
employment factors. OWCP accepted the claim for bilateral joint derangement, bilateral
calcaneal spur, bilateral bunion, and bilateral plantar fibromatosis. Appellant received wage-loss
compensation for temporary total disability until June 12, 2009 when she was placed on the
periodic rolls.
Appellant’s treating physician released her to return to work part time and appellant was
provided notice by OWCP of suitable work on December 2, 2009. Shortly thereafter appellant
underwent additional surgery for her accepted condition and her treating physician removed her
from work.
Appellant applied for disability retirement in 2010.
By decision dated March 25, 2011, OWCP reduced appellant’s wage-loss compensation
because the weight of the medical evidence established that she was no longer totally disabled
for work due to effects of her accepted bilateral foot conditions and that the evidence of record
showed that the constructed position of receptionist represented her wage-earning capacity.
By Form EN1032 dated October 31, 2011, appellant reported that she had been assigned
a CSA number, but denied having received any disability retirement or regular retirement
payments during the past 15 months.5
Appellant requested reconsideration and, by decision dated November 18, 2011, OWCP
denied modification of its wage-earning capacity decision.
By letter dated July 2, 2012, OPM advised appellant that it had approved her application
for disability retirement. It informed her that she was not entitled to receive annuity payments
from both OPM and OWCP for the same period of time and could elect which benefit she
wanted to receive.
Appellant again requested reconsideration and, by decision dated August 22, 2012,
OWCP again denied modification of the March 25, 2011 wage-earning capacity decision.
3

Docket No. 05-142 (issued July 19, 2005).

4

Docket No. 13-2147 (issued March 18, 2014).

5

A CSA number is received upon application for retirement from the Office of Personnel Management (OPM).

2

In response to OPM’s July 2, 2012 letter, on March 21, 2014 appellant elected to
continue receiving OWCP compensation benefits under FECA.
On April 2, 2013 appellant completed a Federal Employees’ Health Benefits (FEGLI)
Standard Form 2818, entitled “Continuation of Life Insurance Coverage as an Annuitant or
Compensationer” on which she checked boxes indicating that she elected “No Reduction” as the
level of her basic life insurance in retirement/compensation.
By letter dated June 21, 2013, OPM advised OWCP that appellant was eligible to
continue receiving coverage under the FEGLI program. It indicated that the premiums were
based on the “No Reduction” to basic option which appellant elected in choosing her
postretirement life insurance, with a “Basic” salary of $54,619.00; the commencing date for
postretirement life insurance deductions was May 23, 2010. The letter asked OWCP “please
deduct for Code Y1,” with basic and optional coverage to begin on OWCP’s commencing date.
After an August 12, 2013 request for reconsideration, OWCP again, by decision dated
September 4, 2013, denied modification of the March 25, 2011 wage-earning capacity decision.6
On November 26, 2013 OWCP issued a preliminary determination that an overpayment
had occurred in the amount of $5,178.80 from May 23, 2010 to October 19, 2013. It noted that
the overpayment had occurred because the appropriate life insurance premiums had not been
deducted from her continuing compensation payments for that period.7 OWCP further advised
that she had been found without fault for the creation of the overpayment. It advised appellant
that if she disagreed with the fact or amount of the overpayment she could submit new evidence
in support of her contention or request a prerecoupment hearing. OWCP further advised
appellant that when she was found without fault in the creation of the overpayment, recovery
might not be made if it could be shown that such recovery would defeat the purpose of the law or
would be against equity and good conscience.
On December 18, 2013 appellant responded to the November 26, 2013 determination by
requesting waiver of the overpayment. She submitted the Form OWCP-20 overpayment
questionnaire and listed her expenses and assets.
In a decision dated January 10, 2014, OWCP finalized the preliminary determination
regarding the overpayment of $5,178.80. It found that appellant was not entitled to waiver
because she had failed to complete the attached Form OWCP-20 overpayment questionnaire and
had failed to submit any supporting documentation.
6

That decision is currently on appeal to the Board. Supra note 2.

7

In OWCP pay rate worksheets dated November 12, 2013, it was indicated that appellant had an overpayment of
$5,178.80 based on postretirement, zero reduction premiums not being deducted from her monthly compensation
checks from May 23, 2010 to October 19, 2013. It calculated the overpayment by adding the deductions from three
periods: May 23 to June 5, 2010, in which it multiplied $4.05 times 14 days, for a total of $56.70; June 6, 2010 to
January 14, 2012, multiplying $113.39 times 21 pay periods (based on a 28-day pay period), totaling $2,381.19; and
January 15, 2012 to October 19, 2013 multiplying $119.17 times 23 pay periods (based on a 28-day pay period),
totaling $2,740.91, for an overall overpayment of $5,178.80.

3

LEGAL PRECEDENT
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in basic life insurance with one or more options. The coverage for basic
life is effective unless waived and premiums for basic and optional life coverage are withheld
from the employees’ pay. With certain restrictions, insurance benefits continue postretirement.
Insurance remains in effect until canceled and premiums due are to be deducted from the injured
employees’ compensation payments.8 When FEGLI premiums, including postretirement
insurance premiums are incorrectly withheld, the entire amount of the unpaid premium is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM
upon discovery of the error.9
OWCP procedures state that the reason for any overpayment must be clearly stated in the
preliminary decision and OWCP should provide a clearly written explanation indicating how the
overpayment was calculated.10
ANALYSIS
The record shows that appellant received compensation during the period May 23, 2010
to October 19, 2013. OWCP determined that an overpayment had been created because
postretirement life insurance premiums had not been properly deducted from her compensation
for that period. It provided worksheets explaining that premiums based on the postretirement
basic life premiums at the “No Reduction” level had not been deducted during the three different
premium periods from May 23, 2010 to October 19, 2013, for a total overpayment of $5,178.80.
OWCP failed to explain why these premiums would have been retroactive to May 23, 2010. The
letter from OPM is dated June 21, 2013 yet it states, without explanation, that the “commencing
date” for the postretirement deductions was May 23, 2010. OWCP must provide the reason for
the overpayment and it has failed to properly explain the basis for the retroactive commencement
date of May 23, 2010. There is no evidence in the record that establishes the accuracy of that
date. Although there is some indication that appellant had applied for disability retirement in
2010 and appellant had been on the periodic rolls since June 12, 2009, appellant’s 2013 election
of the “No Reduction” level of basic life insurance does not provide the evidence necessary for
the retroactive commencement date for those premiums.
Accordingly, the Board finds that, without supporting documentation, OWCP improperly
found that appellant received an overpayment of compensation of $5,178.80 during that period.11

8

20 C.F.R. §§ 870-73.

9

See James Lloyd Otte, 48 ECAB 334, 337 (1997).

10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4a
(May 2004).
11

In light of this disposition, the Board finds it premature to address the waiver issue.

4

CONCLUSION
The Board will set aside OWCP’s finding of fact of overpayment. Upon return of the
case record, OWCP shall further develop the case as necessary and thereafter issue an
appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded in accordance with this opinion.
Issued: June 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rainier, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1114
Issued: February 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 20, 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 the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of her
medical conditions causally related to her March 9, 2002 employment injury.
FACTUAL HISTORY
On March 11, 2002 appellant, then a 48-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) indicating that her arm, back, and leg had been
bothering her for some time and that on March 9, 2002 her condition worsened after she heard a
1

5 U.S.C. § 8101 et seq.

“pop.” OWCP accepted the claim for left gluteus muscle strain.2 The record indicates that
appellant stopped work on July 3, 2002, returned to light duty on April 3, 2003, and returned to
full duty on July 8, 2003.
Appellant filed a recurrence of disability on May 14, 2004 alleging that on May 12, 2004
she again stopped work due to the March 9, 2002 employment injury. By decision dated July 21,
2004, OWCP expanded her claim to include lumbar strain and lumbar herniated nucleus
pulposus and accepted that she had sustained disability as of May 12, 2004. Additional
conditions of sprain of lumbosacral (joint)/(ligament) and displacement of lumbar intervertebral
disc without myelopathy were also accepted. The record substantiates that appellant received
wage-loss benefits on the short-term rolls from May 12, 2004 until June 3, 2005. OWCP
terminated appellant’s wage-loss compensation regarding this claim by decision dated
June 3, 2005.
On March 2, 2015 appellant filed a claim for a recurrence of disability (Form CA-2a) for
medical treatment of the accepted injury-related back conditions. She claimed her back
condition has not resolved. Appellant stated that her doctor treated her injuries under both the
current claim and claim number xxxxxx974, which was accepted for bilateral carpal tunnel
syndrome, but failed to submit bills to OWCP when she was treated for her back injury. She
stated that her work-related back injury remained static until recently. Appellant indicated that
her treating doctor retired and her accepted claim for back conditions had been closed, but that
she now needed a new doctor and additional medical treatment. The employing establishment
noted on the claim form that appellant was on OWCP periodic compensation rolls under claim
number xxxxxx974. No medical evidence was submitted with her recurrence claim.
In a February 13, 2015 letter, appellant explained that she saw the same doctor for her
back and carpal tunnel syndrome conditions. She alleged that the doctor mistakenly thought she
needed reports for her carpal tunnel claim and had focused on her wrist injury, which she
indicated had caused pain for the past years and for which she receives compensation. Appellant
stated that every three or four months, she saw her doctor for her back injury, but the doctor’s
office failed to bill under the correct claim number. She subsequently learned that OWCP was
not paying the bills for medical treatment of her back.
In a March 4, 2015 letter, OWCP noted that there was limited evidence of medical
treatment for appellant’s accepted back conditions since April 24, 2007. It requested that she
provide additional factual evidence along with copies of all medical records for the work-related
lumbar condition and a comprehensive, narrative medical report from her treating physician,
which contained an opinion supported by medical rationale as to the relationship between her
current medical conditions and the accepted injury. Appellant was afforded 30 days to submit
the requested evidence.
In response, OWCP received correspondence from appellant and OWCP regarding her
authorized representatives; correspondence pertaining to a request for extension of time;
2

Appellant also has an accepted claim for bilateral/lateral epicondylitis, with a date of injury of June 14, 2002
under OWCP File No. xxxxxx943, and an accepted claim for bilateral carpal tunnel syndrome under OWCP File
No. xxxxxx974.

2

correspondence regarding bill payment issues; appellant’s supplemental statements of April 3, 6,
and 9, 2015 and copies of diagnostic testing from 2014.
Authorization requests and treatment reports from different physicians covering the
period February 25, 2010 through March 26, 2015 were submitted.3
Medical reports from Dr. Donald S. Orr, a Board-certified neurologist, from 2010
through 2014 were received. The majority of the reports pertained to appellant’s upper extremity
conditions and occasionally mentioned low back pain syndrome. In treatment notes dated
April 22, 2013 through September 16, 2014, Dr. Orr mentioned a low back condition, back pain,
and lumbar-related conditions. In a July 17, 2014 report, he reported that appellant had
significant low back pain, right upper extremity pain, and fully resolved left wrist pain. With
respect to the back, Dr. Orr diagnosed low back pain syndrome. He noted that he was suspicious
of an underlying discogenic lumbar pain component and noted results from an April 30, 2003
magnetic resonance imaging (MRI) scan of the lumbar spine. In a September 16, 2014 report,
Dr. Orr reported that appellant recognized, over the past week, a pain in her left groin and
beginning today, a pronounced discomfort at her left hemipelvic area when she placed weight
onto her left lower extremity. An assessment of lumbar disc herniation without myelopathy,
sacroiliac pain, and low back pain syndrome was provided. Appellant received left-sided S1
joint injection. Dr. Orr noted that he was suspicious that appellant’s low back generator was that
of a damaged intervertebral disc with an internal annual tear. He suspected that she has
developed, secondarily due to mechanical stresses, subluxation of her left sacroiliac joint, which
manifested as left groin pain and gait difficulty.
In a January 2, 2015 report, Dr. Orr summarized that on November 6, 2014 appellant was
found to have a fracture in her left hip at the femoral neck. Appellant recalled in retrospect that
in late August or early September she tripped going up steps at home and went back down about
five of those steps while somehow maintaining an upright position as she landed hard on her
feet. Dr. Orr noted that it now seemed that appellant very likely sustained the fracture at that
time. After appellant was seen in mid-September her left hip pain intensified and her primary
care physician took a radiograph of her left hip, which was read as normal. Dr. Daniel
Nicholson, a Board-certified orthopedic surgeon, had appellant undergo a left hip MRI scan,
which showed the fracture. Appellant was to undergo a bone density study. Dr. Orr advised that
the bone density scan showed osteopenia at her femoral heads, just past borderline osteoporosis
in her lumbar spine. He noted that Dr. Daniel Kingloff, a Board-certified orthopedic surgeon,
had indicated that appellant would not require surgery for the nondisplaced fracture of the left
femoral head. Dr. Orr related that appellant understood that her hip injury/fracture lay outside
the purview of workers’ compensation. No assessment/diagnosis was provided regarding
appellant’s back condition.
Reports from Dr. Daniel A. Nicholson, a Board-certified orthopedic surgeon, were
received and contained handwritten comments. In an October 15, 2014 report, he noted that
appellant reported an onset of left hip pain/groin pain three weeks previously, but that there was
no injury that caused the onset of the pain. The pain worsened approximately one week prior,
3

Medical reports received for the period February 25, 2010 to March 19, 2013 pertained to treatment of
appellant’s carpal tunnel and upper extremity conditions.

3

after she stumbled and fell, landing on her left leg.4 Dr. Nicholson found that appellant had a
herniated lumbar disc, but no other back issues. Appellant had no previous history of injury to
the hip and had not had any treatment. Dr. Nicholson noted that at this point in time the etiology
of appellant’s pain was unclear. There were no radiographic signs of acetabular impingement or
significant degenerative joint disease. Dr. Nicholson advised appellant’s known lumbar
pathology may be playing a role in her complex of symptoms. However, he noted the majority
of the pain appeared to be in the left groin. Additional diagnostic testing was recommended.
In an October 27, 2014 report, Dr. Nicholson reported that appellant had a fractured hip.
In an October 30, 2014 report, Dr. Nicholson diagnosed a closed fracture at the base of
the neck of the femur, along with joint pain involving the pelvic region and thigh. Appellant was
scheduled for surgery on November 3, 2014 for left hip percutaneous pinning.
In a January 28, 2015 report, Dr. Kevin Sheahan, a Board-certified anesthesiologist and
certified pain specialist, noted that appellant was seen for upper extremity pain. An assessment
of reflex sympathetic dystrophy (RSD) upper extremity, lumbar spondylosis without myelo/facet
arthrophy, and carpal tunnel syndrome was provided.
In a March 13, 2015 report, Dr. Damon Kimes, a Board-certified family practitioner,
reported that appellant was a new patient. He reported that appellant had seen another physician
for her chronic lower back and left hip pain for over seven years, but the physician had retired
and closed his office. Appellant reported a history of a work-related back strain in 2002
followed by disc disease. She reported a left hip fracture in September, which a prior MRI scan
showed was a fractured femoral head. Dr. Kimes noted his review of appellant’s records from
Southeastern Interventional Pain Associates, including Dr. Orr’s notes, and provided
examination findings. The following assessments were provided: encounter for long-term
(current) use of other medications; lumbago; facet arthropathy lumbar and cervical; carpal tunnel
syndrome; chronic pain syndrome; pain hip; sacroiliitis; lumbosacral radiculopathy; and cervical
radiculopathy. Follow-up reports from Dr. Kimes dated March 26, 2015 contained the same
assessments.
By decision dated April 10, 2015, OWCP denied the recurrence claim and found that
medical treatment was not authorized because the medical evidence was insufficient to establish
a recurrence of appellant’s accepted conditions causally related to the March 9, 2002 accepted
back conditions.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.5 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
4

A handwritten note on the report stated, “never told him I fell … told him about when @ park with/ kids, when I
hit that tree root hard & Tim had to help me back to the car.”
5

20 C.F.R. § 10.5(y).

4

treatment nor is an examination without treatment.6 As distinguished from a recurrence of
disability, a recurrence of a medical condition does not involve an accompanying work
stoppage.7
It is the employee’s burden to establish that the claimed recurrence is causally related to
the original injury.8 Causal relationship is a medical issue that can generally be resolved only by
rationalized medical opinion evidence.9 This requires furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and who supports that conclusion
with sound medical reasoning.10 Where no such rationale is present, medical evidence is of
diminished probative value.11
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between her present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.12
ANALYSIS
OWCP accepted that appellant’s March 9, 2002 employment injury resulted in left
gluteus muscle strain, sprain of back, lumbar region, sprain of lumbosacral (joint)/(ligament),
and displacement of lumbar intervertebral disc without myelopathy. Appellant returned to work.
She was eventually totally disabled as a result of conditions in other accepted claims and placed
on the periodic compensation rolls. On March 2, 2015 OWCP received appellant’s Form CA-2a
claim for a recurrence due to her March 9, 2002 employment injury.
Appellant submitted authorization requests and treatment reports from different
physicians covering the period February 25, 2010 through March 26, 2015. The medical records
from February 25, 2010 to March 19, 2013 do not mention a back condition. Rather, they are
treatment notes for carpal tunnel and upper extremity problems. In treatment notes for the period
April 22, 2013 through September 16, 2014, Dr. Orr mentioned a low back condition, back pain
and lumbar-related conditions, but provided no opinion with medical rationale as to how the
diagnoses were due to, caused by, or related to the original injury. 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.13 Although Dr. Orr did not formally discharge
6

Id.

7

Id. at § 10.5(x).

8

Id. at § 10.104. See also Mary A. Ceglia, 55 ECAB 626, 629 (2004).

9

See Jennifer Atkerson, 55 ECAB 317 (2004).

10

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956).

11

Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

12

Mary A. Ceglia, 55 ECAB 626 (2004).

13

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

5

appellant from treatment for her back conditions, a sufficiently lengthy gap in treatment has the
same effect as a formal discharge.14 Appellant has the burden of proof to establish that her need
for medical treatment beginning April 22, 2013 through September 16, 2014 was causally related
to her March 9, 2002 employment injury.
In September 2014 appellant reported left groin pain and discomfort in her left
hemipelvic area, which was later diagnosed as left hip fracture at the femoral neck. In his
September 16, 2014 report, Dr. Orr reported that appellant recognized, over the past week, a pain
in her left groin and beginning today, a pronounced discomfort at her left hemipelvic area when
she placed weight onto her left lower extremity. An assessment of lumbar disc herniation
without myelopathy, sacroiliac pain, and low back pain syndrome was provided. Dr. Orr
subsequently related in his January 2, 2015 report that appellant was found to have a fracture in
her left hip at the femoral neck. He noted that appellant recalled in retrospect that in late August
or early September she tripped while walking up steps at home and fell back down
approximately five of those steps while somehow maintaining an upright position as she landed
hard on her feet onto the landing. Dr. Orr noted that she very likely sustained fracture at that
time. While he previously suspected a damaged intervertebral disc with an annual tear, and
subluxation of her left sacroiliac joint secondarily due to mechanical stresses, which manifested
as left groin pain and gait difficulty, it is not possible to verify that appellant’s current condition
is causally related to the original injury due to the void of ongoing treatment records or any
medical evidence bridging the gap of treatment. Furthermore, the history of injury reflects that
appellant either tripped going up steps or stumbled over a tree root and fell.
The October 15, 2014 treatment note from Dr. Nicholson provided a history that
appellant stumbled and fell landing on her left leg. The handwritten note on the report alleged
that “never told him I fell … told him about when @ park with/ kids, when I hit that tree root
hard & Tim had to help me back to the car.” This exposure over stumbling over a tree root and
falling and/or tripping while walking up steps are incidents which break the chain of causation to
establish a recurrence of disability. Additionally, the medical histories provided to Dr. Orr and
Dr. Nicholson are inconsistent and cast doubt on the validity of the claim.
Appellant also submitted reports dated January 28, 2015 from Dr. Sheahan, and
March 13, 2015 from Dr. Kimes. While these physicians provided diagnoses of appellant’s
conditions, they did not offer any opinion regarding the cause of the diagnosed conditions or
whether they required further medical treatment. The other medical reports submitted fail to
provide a rational medical opinion with an accurate factual and medical history causally relating
appellant’s current condition to the March 9, 2002 injury.
The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish a causal connection between the alleged recurrence of her medical conditions and the
accepted employment injury. Appellant had the burden of submitting sufficient medical
evidence to document the need for further medical treatment. She did not submit such evidence
as required and failed to establish a need for continuing medical treatment.15
14

See Kent W. Rasmusen, Docket No. 04-1137 (issued August 4, 2004).

15

See P.Q., Docket No. 14-1905 (issued May 26, 2015); J.F., 58 ECAB 331 (2006).

6

On appeal appellant notes her frustration with an OWCP claims examiner and her desire
to reopen her claim. In a separate letter, she also expressed her belief that her former physician,
Dr. Orr, engaged in improper billing practices and that this gave the appearance that she stopped
treatment for her back. As noted, appellant’s recurrence claim was denied as the medical
evidence lacked adequate rationale to establish a causal connection between the alleged
recurrence of her medical condition and the accepted employment injury. She did not submit
such evidence as required and failed to establish a need for continuing medical treatment.
Appellant may submit new evidence or argument as part of a formal 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 recurrence
of her medical conditions causally related to her March 9, 2002 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 10, 2015 is affirmed.
Issued: February 1, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0811
Issued: November 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 7, 2018 appellant, through counsel, filed a timely appeal from a February 8,
2018 nonmerit decision of the Office of Workers’ Compensation Programs. As more than 180
days elapsed from the last merit decision dated July 1, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 18, 2015 appellant, then a 50-year-old supervisor, filed a traumatic injury claim
(Form CA-1) alleging that she developed post-traumatic stress disorder (PTSD) on May 5, 2015
at 12:30 p.m. when she witnessed an attempted robbery. On the reverse of the form, appellant’s
supervisor indicated that appellant was injured in the performance of duty.
By development letter dated May 27, 2015, OWCP requested that appellant provide
additional factual and medical evidence in support of her emotional condition claim. Appellant’s
manager completed a statement dated May 14, 2015 and described the events of May 5, 2015. She
noted that a postal carrier alleged that a customer approached her postal vehicle and pulled out a
gun. Appellant was present near this site, parked in a vehicle a short distance from the carrier.
She provided a statement asserting that she observed an individual approaching the nearby carrier’s
vehicle, reached into his pants pocket, and pulled something out, but she did not indicate that she
had seen a weapon. Appellant’s manager noted that appellant provided both an oral and a written
statement regarding the events of May 5, 2015, but did not stop work until May 18, 2015.
In notes dated May 19, 2015, Dr. Jameelad D. Strickland, an internist, diagnosed PTSD.
She indicated that appellant should remain off work from May 18 through 29, 2015.
Appellant completed a narrative statement on June 4, 2015. She described conducting a
supervisory inspection of a postal carrier on her route on May 5, 2015. Appellant noted that the
carrier was parked at a convenience store on her route and appellant parked behind her. At 12:30
p.m. a male in his mid-thirties walked to the carrier’s vehicle and as he approached pulled
something out of his pocket. He then noticed appellant and began to walk backwards rapidly. The
carrier then jumped from her vehicle and informed appellant that the man had pulled a gun on her.
Appellant began to try to telephone the police, but the carrier returned to her vehicle and left the
parking lot following the man. She noted, “I’m saying to myself, where is she going?” Appellant
started her vehicle and “as I was pulling off I see a vision in my mind. I see us in a hail of bullets
and got scared.” She honked her horn and followed the carrier. The carrier reached the man and
talked with him as he explored the contents of his pants pockets. She followed him for
approximately 1000 feet and then got out of her vehicle and returned to appellant. The carrier
informed appellant that she was going to contact a police officer on her route who had knowledge
of the man’s behavior.
Appellant contacted 911 and then realized that a police officer was directly behind her
performing a traffic stop. She received his assistance following the stop. Appellant then
telephoned her manager. The carrier alleged that the same person had drawn a gun the day before
at a business on her route. She repeatedly opined that the man was hiding in bushes and was
waiting for the police to leave. The carrier was unable to complete her route. Appellant and the
carrier returned to the employing establishment and appellant felt overwhelmed. She informed the

2

postmaster that she was “shook up.” The carrier asked why this happened to her and appellant
was unable to cope with the carrier’s distress.
Appellant telephoned the Employee Assistance Program after she arrived home. She
described the events of the day and a prior, similar situation to the counselor. Appellant noted
that, over a year ago, when she was the last employee left in the employing establishment, a man
threatened to break all the windows when she refused to open the door after hours. This man went
from door to door knocking and kicking at the glass. Appellant telephoned a coworker for help
and called the police. Police dispatch informed appellant that officers had the man in custody, and
asked appellant to step outside. Appellant opened the door and the man kicked the door so hard it
shattered. She telephoned maintenance to repair the door. The counselor allegedly informed
appellant that her current condition was due to both incidents.
Appellant stated that she was unable to cry following the May 5, 2015 incident even though
she wanted to do so. She required extra sleep for the next three days and on May 7, 2015 noticed
that she was angry.
Appellant submitted a copy of the police report regarding the May 5, 2015 incident.
According to the report, while the carrier was delivering mail on St. Clair Avenue, a man
approached the carrier and instructed her to give him rubber bands and displayed a handgun. The
carrier knew the man as he was a postal customer on her route. Appellant approached and the man
fled. She informed the police that she could not see what the man pulled from his pocket.
Appellant submitted a copy of the carrier’s statement noting that, while she and appellant
were at lunch on St. Clair Avenue, a man she knew from her route walked towards her, reached in
his pocket, and pulled out a gun. She alleged that when the man saw appellant parked behind her
in another postal vehicle, he put the gun back in his pocket and backed away. The man asked if
the carrier had any rubber bands. The carrier shouted, “No.” She then jumped out of her vehicle
and ran to appellant who indicated that she would call the police. The carrier looked in the store
and saw the man inside. When the man exited the store, she pulled along beside him in her vehicle
and began asking why he threatened her. The carrier indicated that appellant remained behind her
in her car honking the horn and instructing her to keep going as the man was armed. She stopped
her vehicle and the man disappeared through the parking lot.
When the police arrived the carrier identified the man with the gun based on a photograph.
She noted that she had been his mail carrier for three or four years. The carrier asserted that a
customer had informed her that the man had attempted a robbery at gunpoint the previous day.
She indicated that the same man had harassed her on several occasions asking for money or if she
wanted to shoot dice. The carrier alleged that she had reported this harassment to the employing
establishment.
In a report dated June 22, 2015, Dr. Roopa K. Chavda, a psychiatrist, noted treating
appellant since May 18, 2015. She described the incident of May 5, 2015 as appellant witnessing
a man pull a gun on her colleague. Dr. Chavda noted that appellant felt threatened, was fearful for
her life, and was worried that there would be a shootout. She also noted that appellant was
experiencing flashbacks of a prior incident when she felt threatened by a drunken man who entered
her workplace when she was alone. Dr. Chavda diagnosed PTSD. She opined, “In my opinion

3

[appellant] is suffering from symptoms of acute PTSD secondary to exposure to a traumatic
incident at work. She is experiencing nightmares, increased physiological distress when subjected
to events or instances that remind her of her past traumatic events, mood changes -- anxiety and
irritability. [Appellant] is unable to tolerate situations that cause her to be hyper vigilant and
anxious as these trigger panic attacks.” Dr. Chavda completed a form report on the same date and
indicated that appellant could return to work on June 25, 2015.
By decision dated July 1, 2015, OWCP denied appellant’s traumatic emotional condition
claim finding that she had not established that she was in the performance of duty at the time the
alleged incident occurred. It found, “Although [appellant] your description is difficult to follow,
it is clear that you and your coworker went outside the boundaries of being in the performance of
duty upon pursuing the man with a handgun. You should have immediately contacted the police
and your postal manager while in the parking lot of the convenience store instead of pursuing your
coworker, who in turn was pursuing a man both you were conscious of possessing handgun.”3
On June 30, 2016 counsel requested reconsideration of the July 1, 2015 decision. In
support of his request, he provided additional medical evidence as well as resubmitting
Dr. Chavda’s June 22, 2015 report. Appellant submitted treatment notes from Eliot W. Gutow, a
licensed social worker, beginning May 18, 2015 as well as notes from Siobhan D. Malave, a
licensed social worker, beginning on July 16, 2015. Dr. Chavda examined appellant on May 28,
and June 12, 2015. Dr. Shila J. Mathew, a Board-certified psychiatrist, examined appellant on
July 21 and 22, 2015 for psychiatric consultation due to a traumatic event which occurred in
May 2015. Appellant also provided treatment notes from Dr. Joshua H. Zarowitz, an osteopath,
who examined her on August 27, November 16, and December 18, 2015, January 29 and
March 16, 2016 due to PTSD, anxiety, and depression. Dr. Cheryl Wills, a Board-certified
psychiatrist, completed reports on May 3 and 9, 2016 and diagnosed major depressive disorder as
well as chronic PTSD triggered by workplace trauma.
By decision dated February 8, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim. It noted that her claim was denied as she was found not to be in the
performance of duty at the time her injury occurred. OWCP found that appellant failed to submit
factual evidence supporting her contention that she was in the performance of duty at the time her
alleged injury occurred. It contended that she voluntarily deviated from her federal duties when
she chose to leave the parking lot of the convenience store and pursue a man who potentially had
a handgun.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.4
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether to review
an award for or against compensation. OWCP may review an award for or against payment of
3

Appellant appealed this decision to the Board on December 8, 2015. On June 15, 2016 counsel requested that the
Board dismiss the appeal. On August 17, 2016 the Board issued an Order Dismissing Appeal.
4

20 C.F.R. § 10.607(a).

4

compensation at any time based on its own motion or on application.5 To require OWCP to reopen
a case for merit review under section 8128(a) of FECA, OWCP’s regulations provide that the
evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously considered
by OWCP; or (3) constitute relevant and pertinent new evidence not previously considered by
OWCP.6 If the request is timely, but fails to meet at least one of the requirements for
reconsideration, OWCP will deny the request for reconsideration without reopening the case for
review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an
OWCP decision denying merit review, the function of the Board is to determine whether OWCP
properly applied the standards set for at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.10
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also held
that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case. While the 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.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim.
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered by OWCP. Consequently, appellant was not entitled to a review of the merits based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).

5

5 U.S.C. § 8128(a); A.D., Docket No. 18-0497 (issued July 25, 2018).

6

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

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

9

C.F., Docket No. 18-0360 (issued July 19, 2018); Mark H. Dever, 53 ECAB 710 (2002).

10

C.F., id.; Annette Louise, 54 ECAB 783 (2003).

11

M.E., 58 ECAB 694 (2007).

5

The Board further finds that appellant has failed to submit relevant and pertinent new
evidence in support of reconsideration. While appellant submitted additional medical evidence,
this evidence is not relevant to the reasons for which OWCP denied her claim.12 The issue in her
claim was factual and legal, not medical, whether she was in the performance of duty at the time
her injury occurred. As noted above, the submission of argument/evidence which does not address
the particular issue involved does not constitute a basis for reopening a case.13
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
constitute relevant and pertinent new evidence not previously considered.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

Appellant also provided a series of treatment notes from Eliot W. Gutow and Siobhan D. Malave, licensed social
workers. Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social
workers are not considered “physician[s]” as defined under FECA. R.B., Docket No. 17-0890 (issued October 18,
2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t).
13

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2018
Washington, DC

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

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

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

7