United States Department of Labor
Employees’ Compensation Appeals Board

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G.C., Appellant
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U.S. POSTAL SERVICE, POST OFFICE,
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New Orleans, LA, Employer
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-0681
Issued: October 18, 2016

Case Submitted on the Record

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

JURISDICTION
On February 22, 2016 appellant, filed a timely appeal of a January 7, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from January 29, 2014, the most recent OWCP merit decision, to the filing of the current
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with her appeal to the Board. The Board cannot consider this evidence
as its review is limited to evidence which was before OWCP at the time of its merit decision. 20 C.F.R.
§ 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

FACTUAL HISTORY
On June 29, 2010 appellant, then a 47-year-old clerk, filed a traumatic injury claim (Form
CA-1), which OWCP accepted for sprain of the wrist, right (tear of the lunotriquettrial ligament
of the right wrist), sprain of the wrist, radiocarpal, right (tear of the triangular fibro-cartilage
complex of the right wrist). On December 7, 2010 OWCP accepted carpal tunnel syndrome on
the right. On February 10, 2011 appellant underwent an authorized right scapholunate ligament
repair and right carpal tunnel release.3 On October 19, 2012 OWCP expanded the accepted
conditions to include scapholunate advanced collapse of the right wrist and right wrist radiocarpal sprain. It authorized an arthrotomy with arthrodesis, total, right wrist on January 24,
2013, performed by Dr. Christian Fahey, a Board-certified orthopedic surgeon. Appellant
received appropriate compensation benefits.
In a June 10, 2013 report, Dr. Fahey, noted that appellant presented for her postoperative
visit. He examined her and found that she had tenderness at the distal end of the plate.
Dr. Fahey remarked that despite his “admonition last visit, [appellant] did not make it to physical
therapy.” He indicated that appellant had not returned to work. Dr. Fahey found that,
objectively upon examination, she was no longer swollen and her fingers had full range of
motion. He determined that the wrist was fused in the proper position and appellant had good
supination and pronation. Dr. Fahey also indicated that there was no crepitus or popping around
the plate and the tendons were intact. He opined that “X-rays two views look awesome,
everything is healed in good alignment.” Dr. Fahey recommended a return to work full duty and
requested therapy. He added, however, that appellant would not be able to do her work without
problems, unless she worked on strengthening. On July 22, 2013 Dr. Fahey released her from
care and opined that she was at maximum improvement, with no limitations or restrictions.
On September 13, 2013 OWCP proposed to terminate appellant’s wage-loss
compensation as the weight of the medical evidence established that she no longer had any
residuals or disability as a result of the June 17, 2010 employment injury. It based its proposal
on the opinion of Dr. Fahey who released her to full duty.
On October 16, 2013 OWCP terminated appellant’s wage-loss compensation effective
October 20, 2013.
On December 18, 2013 appellant requested reconsideration. She did not submit any
evidence or argument regarding the request for reconsideration from the October 16, 2013
decision.4
By decision dated January 31, 2014, OWCP found that appellant’s request was
insufficient to warrant a merit review of the October 16, 2013 decision.
Thereafter, OWCP continued to receive inquiries and treatment records from appellant.
This included the results of a July 28, 2014 functional capacity evaluation, which OWCP
3

On May 5, 2011 appellant underwent an authorized right wrist hardware removal.

4

Around this time, appellant was also pursuing a schedule award. In a January 29, 2014 decision, OWCP granted
her a schedule award for 33 percent permanent impairment of the right arm. The award covered a period of 102.96
weeks from October 20, 2013 to October 10, 2015.

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authorized, indicating that appellant provided submaximal effort and that she could return to her
clerk duties.
Also received were treatment records from Dr. Kenneth A. Grinspun, a Board-certified
orthopedic surgeon. On July 1, 2014 he noted that appellant had complaints of continued pain in
the right wrist. Dr. Grinspun noted that the date of injury was June 17, 2010. He diagnosed
carpal instability and ordered additional testing. In a December 23, 2014 report, Dr. Grinspun,
advised that appellant presented with a wrist complaint. He diagnosed carpal instability. In a
January 15, 2015 report, Dr. Grinspun noted that electromyogram (EMG) scan results revealed
mild carpal tunnel syndrome and reflex sympathetic dystrophy (RSD).
A December 30, 2014 EMG scan read by Dr. Dale P. Cunningham, Board-certified in
physical medicine and rehabilitation, revealed mild right median nerve compression at the wrist.
He noted that the rest of the studies were normal. A February 2, 2015 nuclear bone joint image
read by Dr. Maria T. Brooks, a Board-certified diagnostic radiologist, revealed no evidence of
RSD.
In a February 10, 2015 report, Dr. Grinspun advised that appellant was seen for a recheck
of wrist complaint. He diagnosed mild carpal tunnel syndrome in the setting of previous left
wrist fusion. Dr. Grinspun saw appellant on May 14, 2015 and diagnosed right wrist sprain. In a
July 16, 2015 report, he advised that she was seen for a recheck of wrist complaint. The
symptoms were located in the right wrist and the date of injury was June 17, 2010. Dr. Grinspun
diagnosed right wrist sprain. In an August 20, 2015 report, he diagnosed chronic right wrist pain
with mild carpal tunnel syndrome, status post wrist fusion. Dr. Grinspun saw appellant on
September 17, 2015 and found persistent right wrist pain.
On December 14, 2015 OWCP also received a reconsideration request form, which listed
the date of the request as November 25, 2013 to October 5, 2015. On that same date, it also
received an undated letter from appellant requesting reconsideration. Appellant explained that
she was taking a lot of medication and experiencing pain and forgot about paperwork. She
argued that she was in need of compensation as she had a family to take care of and bills that she
was required to pay. Appellant requested that her compensation benefits be approved.
In a decision dated January 7, 2016, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or

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(2) award compensation previously refused or discontinued.”5
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.6 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and
explicit and must be manifest on its face that OWCP committed an error.7
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.8 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.9 It is not enough merely to establish that the evidence could be
construed so as to produce a contrary conclusion.10 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.11 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.12
ANALYSIS
In its January 7, 2016 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision, regarding the termination issue
on October 16, 2013.
Appellant’s letter requesting reconsideration was received on
December 14, 2015, more than one year after the October 16, 2013 merit decision. It was,
therefore, untimely.13 Appellant’s reconsideration request explained that she was taking a lot of
medication for pain and forgot about paperwork. To the extent that she asserts that the effects of
her medication prevented her from filing a timely reconsideration request, the Board finds this
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

8

Annie L. Billingsley, 50 ECAB 210 (1998).

9

Jimmy L. Day, 48 ECAB 652 (1997).

10

Id.

11

Id.

12

Nancy Marcano, 50 ECAB 110 (1998).

13

See supra note 6. The reconsideration request must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.

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argument unpersuasive. The record contains no probative medical evidence to support that
appellant’s medication rendered her unable to communicate in any way such that she could not
timely request reconsideration.14 Consequently, appellant must demonstrate clear evidence of
error on the part of OWCP in issuing the October 16, 2013 decision.
The Board also finds that appellant has not established clear evidence of error on the part
of OWCP. OWCP terminated her wage-loss compensation, effective October 20, 2013. On
reconsideration appellant explained that she needed compensation as she had a family to take
care of and bills that she was required to pay. She requested that her compensation benefits be
approved. However, these assertions from appellant do not establish clear evidence of error.
The Board notes that OWCP terminated her wage-loss compensation effective October 20, 2013,
as the weight of the medical evidence established that she was no longer disabled from work as a
result of her June 17, 2010 employment injury. This argument is not relevant as the issue is
medical in nature.15
OWCP also received July 1, 2014 to September 17, 2015 reports from Dr. Grinspun, who
noted that appellant had complaints of continued pain in the right wrist dating back to her
June 17, 2010 employment injury. These reports documented her status including her claimed
continuing symptoms and diagnoses. They did not specifically address whether appellant was
disabled on or after October 20, 2013 due to an accepted condition. This evidence does not raise
a substantial question as to the correctness of OWCP’s merit decision. Furthermore, even if
these reports offered reasoned support for causal relationship of the claimed disability, they
would be insufficient to demonstrate clear evidence of error. Clear evidence of error is intended
to represent a difficult standard. The submission of a detailed, well-rationalized medical report
which, if submitted before the merit decision was issued, would have created a conflict in
medical opinion requiring further development, is not clear evidence of error.16 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of OWCP.17
OWCP also received a December 30, 2014 EMG read by Dr. Cunningham, which
revealed mild right median nerve compression at the wrist and a diagnostic report dated
February 2, 2015 read by Dr. Brooks, which, revealed no evidence of RSD. As noted above,
these reports do not address whether appellant was disabled on or after October 20, 2013 due to
an accepted condition. This evidence does not raise a substantial question as to the correctness
of OWCP’s merit decision and they are insufficient to demonstrate clear evidence of error.
OWCP also received a July 28, 2014 functional capacity evaluation from a physical
therapist. Physical therapists are not considered physicians as defined under FECA and thus

14

See 20 C.F.R. § 10.607(c).

15

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).
16

James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.5(a) (October 2011).
17

Supra note 10.

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their reports do not constitute competent medical evidence.18 Consequently, these reports are
insufficient to establish clear error by OWCP with respect to the underlying medical issue.
On appeal, appellant repeated the arguments on reconsideration. However, as explained,
her request for reconsideration was untimely filed and she has not demonstrate clear evidence of
error by OWCP. Because of this, OWCP properly denied a merit review of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

18

Id.; J.M., 58 ECAB 448 (2007); G.G., 58 ECAB 389 (2007); David P. Sawchuck, 57 ECAB 316, 322 n.11
(2006); Allen C. Hundley, 53 ECAB 551 (2002).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
NEW MEXICO HEALTH CARE SYSTEM,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 12-1657
Issued: January 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 1, 2012 appellant filed a timely appeal of the February 15 and May 23, 2012
merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying his claim
for compensation. He also filed a timely appeal from the June 26, 2012 decision denying
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury in the
performance of duty on November 28, 2011, as alleged; and (2) whether OWCP properly denied
his request for reconsideration pursuant to 20 C.F.R. § 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that he was injured while packing fluid bags at the
employing establishment. He submitted new evidence in support of his claim on appeal.2
FACTUAL HISTORY
On January 9, 2012 appellant, then a 50-year-old inventory management specialist, filed
a traumatic injury claim alleging a back condition on November 28, 2011, while boxing two
pallets full of fluids and placing them in carts. He did not submit any evidence with his claim.
By letter dated January 13, 2012, OWCP informed appellant of the evidence needed to
support his claim.
In a January 9, 2012 report, Dr. Michael F. Hartshorne, a Board-certified radiologist,
noted that appellant’s x-rays of his chest, left wrist and knees were normal.
In a January 9, 2012 progress report, Dr. Elizabeth Toman, a Board-certified internist,
noted that in the last week of November, appellant did some warehouse work for his job and had
increased lumbar and thoracic spine pain. She assessed him with chronic low back pain, much
worse in the past one to two months since he was doing heavy labor at work in November.
Dr. Toman noted that appellant had pain in chest, chronic abdominal and scrotal pain, knee pain,
ankle pain, impaired glucose tolerance and hyperlipidemia. In a January 18, 2012 progress
report, she assessed him with chronic low back pain with work-related exacerbation. In a
January 27, 2012 report, Dr. Toman stated that appellant was being followed for the following
problems: chronic back pain, abdominal pain of unspecified site; impaired fasting glucose; knee:
arthralgia; hyperlipidemia and gastroesophageal reflux disease. She noted that in the last week
of November he did some warehouse work for his employment, including, heaving lifting.
Appellant had an increase in lumbar and thoracic spine pain since that time. Dr. Toman noted
that he stopped working prior to his January 9, 2012 evaluation and that she advised him to
continue to remain off work.
By decision dated February 15, 2012, OWCP denied appellant’s claim. It accepted that
the November 28, 2011 incident occurred as alleged. The claim was denied because appellant
did not submit sufficient medical evidence to establish causal relation.
On March 8, 2012 appellant requested reconsideration.
On January 18 and February 27, 2012 Dr. Toman completed work slips excusing
appellant from work.
On February 22, 2012 Dr. Brad W. Cushnyr, a Board-certified radiologist, interpreted
two magnetic resonance imaging (MRI) scans. The lumbar spine MRI scan was negative for
moderate or severe neural foraminal or spinal canal stenosis. Dr. Cushnyr noted mild multilevel
degenerative changes of the lumbar spine. With regard to the thoracic spine, he noted no
significant findings.
2

The Board lacks jurisdiction to review evidence that was not before OWCP, for the first time on appeal. See 20
C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB 126 (2005).

2

By decision dated May 23, 2012, OWCP determined that the new evidence was not
sufficient to warrant modification of its February 15, 2012 decision.
On June 15, 2012 appellant again requested reconsideration. In support of his request, he
submitted medical records from his physical therapist.
By decision dated June 26, 2012, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
OWCP’s 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.3 An employee
seeking benefits under FECA has the burden of establishing the essential elements of his or her
claim, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
the FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
3

20 C.F.R. § 10.5(ee).

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

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

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factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
OWCP accepted that the November 28, 2011 an employment incident occurred as
alleged. Appellant packed fluid bags for his employer. However, it found that the medical
evidence failed to establish that he sustained a back condition as a result of the accepted incident.
The Board finds that appellant has failed to provide sufficient medical evidence to establish that
he sustained a back condition causally related to the November 28, 2011 employment incident.
On January 9, 2012 Dr. Hartshorne reviewed appellant’s x-rays of his chest, left wrist and
knees and determined that they were normal. Dr. Cushnyr reviewed appellant’s MRI scans of
February 22, 2012 and noted mild multilevel degenerative changes of the lumbar spine, but
indicated that there were no other significant findings. Neither Dr. Hartshorne nor Dr. Cushnyr
discussed the accepted employment incident. The reports are not sufficient to establish a
medical condition causally related to the accepted November 28, 2011 employment incident.
Dr. Toman noted that appellant had chronic pain in his lumbar and thoracic spine since the last
week of November 2011 when he performed some warehouse work at the employing
establishment. The Board has held that pain is generally considered a symptom, not a firm
medical diagnosis.9 Dr. Toman did not provide sufficient rationale explaining how appellant’s
back pain or disability were causally related to the employment incident. Accordingly, the Board
finds that there is insufficient rationalized probative medical evidence of record to establish that
appellant sustained a back injury causally related to the accepted November 28, 2011
employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,10
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.11 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
8

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

9

Robert Broome, 55 ECAB 339 (2004); see also N.C., Docket No. 12-761 (issued November 1, 2012).

10

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(3).

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application for review within one year of the date of that decision.12 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.13
ANALYSIS -- ISSUE 2
Appellant did not contend that OWCP erroneously applied or interpreted a specific point
of law or advance a relevant legal argument not previously considered. In support of his request
for reconsideration, appellant submitted physical therapy progress notes. However, while the
underlying issue is medical in nature, reports from a physical therapist are not relevant because a
physical therapist is not a physician under FECA.14 Accordingly, appellant has not submitted
evidence sufficient to require OWCP to reopen the case for further merit review.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on November 28, 2011, as alleged. The Board further finds that OWCP
properly denied his request for reconsideration pursuant to 20 C.F.R. § 8128(a).

12

Id. at § 10.607(a).

13

Id. at § 10.608(b).

14

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008) (records from a physical
therapist do not constitute competent medical opinion in support of causal relation; a physical therapist is not a
physician as defined under FECA).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 26, May 23 and February 15, 2012 are affirmed.
Issued: January 17, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
DOBBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 07-381
Issued: April 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 27, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ nonmerit decision dated November 15, 2006 and a September 19, 2006
hearing loss decision. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this appeal.
ISSUES
The issues are: (1) whether appellant has more than a four percent monaural hearing loss
of his right ear, for which he has already received a schedule award; and (2) whether the Office
properly refused to reopen appellant’s case for reconsideration of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On December 23, 2005, appellant, a 51-year-old firefighter, filed a claim for benefits,
alleging that he sustained a bilateral hearing loss causally related to factors of his federal
employment. A statement of accepted facts dated May 2006 indicated that appellant had been

exposed to hazardous noise from diesel engines, turbine engines, grinding tools, milling
machines, rivet guns and portable air compressors.
In an audiologic and otologic evaluation dated June 9, 2006, Dr. Arnold Goodman, a
Board-certified otolaryngologist, noted findings on audiological evaluation based on a June 9,
2006 audiogram. At the frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz), the following
thresholds were reported: right ear -- 15, 20, 15 and 60 decibels; left ear -- 20, 15, 5 and
30 decibels. Dr. Goodman concluded that appellant had an employment-related hearing loss and
recommended hearing aids.
In a memorandum dated August 11, 2006, an Office medical adviser, relying on
Dr. Goodman’s audiogram results and calculations, determined that appellant had a four percent
permanent, right-sided monaural hearing loss.
On September 19, 2006 the Office granted appellant a schedule award for a four percent
monaural hearing loss for the right ear for the period from June 9 to 23, 2006, for a total of
2.08 weeks of compensation.
On November 3, 2006 appellant requested reconsideration.
additional medical evidence with his request.

He did not submit any

By decision dated November 15, 2006, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and the
implementing federal regulation2 set forth the number of weeks of compensation to be paid for
permanent loss of use of specified members, functions and organs of the body listed in the
schedule.3 However, neither the Act nor the regulation specify the manner in which the
percentage loss of a member, function or organ shall be determined. The method of determining
this percentage rests in the sound discretion of the Office.4 To ensure consistent results and
equal justice under the law to all claimants, good administrative practice requires the use of
uniform standards applicable to all claimants.5

1

5 U.S.C. § 8107 et seq.

2

20 C.F.R. § 10.304.

3

See Donald A. Larson, 41 ECAB 947 (1990); Danniel C. Goings, 37 ECAB 781 (1986); Richard Beggs,
28 ECAB 387 (1977).
4

Id.

5

Henry King, 25 ECAB 39, 44 (1973); August M. Buffa, 12 ECAB 324, 325 (1961).

2

Under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides,) hearing loss is evaluated by determining decibel loss at the
frequency levels of 500, 1,000, 2,000 and 3,000 Hz. The losses at each frequency are added up
and averaged and a “fence” of 25 decibels is deduced since, as the A.M.A., Guides point out,
losses below 25 decibels result in no impairment in the ability to hear everyday speech in
everyday conditions.6 Then the remaining amount is multiplied by 1.5 to arrive at the percentage
loss of monaural loss. The binaural loss is determined by calculating the loss in each ear using
the formula for monaural loss. The lesser loss is multiplied by five, then added to the greater
loss and the total is divided by six to arrive at the amount of binaural hearing loss.7
ANALYSIS -- ISSUE 1
The Board finds that appellant is entitled to no greater than four monaural awards for
hearing loss in his right ear, for which he has already received an award. With regard to the right
ear, Dr. Goodman’s June 9, 2006 audiogram indicated that, at the frequencies of 500, 1,000,
2,000 and 3,000 Hz, the following thresholds were reported for the right ear -- 15, 20, 15 and
60 decibels. These decibels, totaled to 110 and divided by 4, obtained an average hearing loss at
those cycles of 27.5 decibels. The average of 27.5 decibels, when reduced by 25 decibels (the
first 25 decibels were discounted as discussed above), equals 2.5 decibels, which when
multiplied by the established factor of 1.5 computes a 3.75 percent hearing loss in the right ear.
This loss was rounded off for a total four percent loss in the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed
decibel losses of 20, 15, 5 and 30 respectively. These decibels amounted to 70, which, when
divided by 4, obtains an average hearing loss at those cycles of 17.5 decibels. The average of
17.5 decibels, reduced by 25 decibels (the first 25 decibels were discounted as discussed above),
equals negative 5, which when multiplied by the established factor of 1.5 amounts to a 0 percent
hearing loss in the left ear. The Office medical adviser, relying on these audiogram results and
calculations, properly determined that appellant had a four percent monaural hearing loss in his
right ear, for which the Office awarded him a schedule award on September 19, 2006.
The Board notes that the Office medical adviser properly applied the applicable standards
of the A.M.A., Guides, to determine that appellant was entitled to a four percent monaural award
for his right-sided hearing loss. The Board affirms this award, as there was no other probative
evidence in the record establishing that appellant sustained any greater impairment.8

6

A.M.A., Guides, page 250 (5th ed. 2001).

7

Id. See Danniel C. Goings, supra note 3.

8

The record contains several audiograms obtained by the employing establishment, but none of these were
certified by a physician as accurate. The Board has held that if an audiogram is prepared by an audiologist it must
be certified by a physician as being accurate before it can be used to determine the percentage of hearing loss.
Joshua A. Holmes, 42 ECAB 231, 236 (1990).

3

LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.9 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.10
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by the Office; and he has not constituted relevant and pertinent evidence not
previously considered by the Office. The evidence he submitted is not pertinent to the issue on
appeal. The Board has held that the submission of evidence which does not address the
particular issue involved in the case does not constitute a basis for reopening the claim.11
Appellant has not submitted any new medical evidence which addresses the relevant issue of
whether he sustained any additional hearing loss.12 His reconsideration request failed to show
that the Office erroneously applied or interpreted a point of law nor did it advance a point of law
or fact not previously considered by the Office. The Office did not abuse its discretion in
refusing to reopen appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that appellant has no more than a four percent monaural hearing loss of
his right ear. The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

10
11

Howard A. Williams, 45 ECAB 853 (1994).
See David J. McDonald, 50 ECAB 185 (1998).

12

Appellant contested the number of weeks he was to receive compensation pursuant to his award. However, an
Office schedule award calculator contained in the record confirms that an award for a four percent monaural hearing
loss confers compensation for a period of 14.56 days or 2.08 weeks.

4

ORDER
IT IS HEREBY ORDERED THAT the November 15 and September 19, 2006
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: April 13, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
& PLANT HEALTH INSPECTION SERVICE,
Riverdale, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
Jim C. Gordon, Jr., Esq., for the Director

Docket No. 13-1636
Issued: June 16, 2014

Oral Argument March 5, 2014

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2013 appellant filed a timely appeal from a June 12, 2013 merit decision of the
Office of Workers’ Compensation Programs (OWCP) denying her emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On December 14, 2012 appellant, then a 54-year-old communications outreach specialist,
filed an occupational disease claim alleging that she sustained headaches, anxiety, depression,
1

5 U.S.C. § 8101 et seq.

gastroesophageal reflux disease/nonerosive reflux disease, loss of memory, insomnia, high blood
pressure and obesity due to factors of her federal employment.
In a statement dated December 3, 2012, appellant related that she experienced anxiety
attacks and chronic insomnia due to working in a hostile environment beginning in 2007. She
described her diagnoses and the settlement of an Equal Employment Opportunity (EEO) claim.
Appellant indicated that the administrative judge recommended that she seek a remedy through
workers’ compensation. She asserted that she was seeking medical expenses rather than
wage-loss compensation. In another December 3, 2012 statement, appellant related that
beginning in 2006 she experienced emotional and physical reactions due to stress. She described
past and anticipated future medical expenses.
On September 23, 2010 the employing establishment approved appellant’s request for
reasonable accommodation due to problems with concentration, fatigue and migraines and
granted her up to five days of telework per week. It also changed her duty station.
In a statement dated December 3, 2012, Diana R. Mitchell, a unit director, related that she
had worked with appellant “the last year or so as both colleague and acting supervisor.” She
asserted that she was “personally unaware of events or workplace environments that may have
adversely affected [appellant] for the last five years or so.”
On December 18, 2012 OWCP telephoned the employing establishment and talked to
Ms. Mitchell, who indicated that she was a new supervisor. Ms. Mitchell related that there was
“no one currently at the [employing establishment], who has not retired that can verify any of
this information.”
On January 8, 2013 OWCP requested that appellant submit a detailed statement
describing the factors of employment that she believed caused her stress-related conditions and a
medical report from her attending physician addressing the cause of any emotional condition. In
another January 8, 2013 letter, it requested that a knowledge supervisor with the employing
establishment review appellant’s statement and explain whether it concurred or disagreed with
her contentions. OWCP informed it that without a reply it could accept appellant’s allegations as
factual.
On January 24, 2011 the Equal Employment Opportunity (EEO) Commission accepted
appellant’s complaint of harassment and discrimination based on sex, race and disability and
referred it for investigation. It noted that she asserted harassment due to her former supervisor
cancelling an action changing her duty station on August 25, 2010, management telling her it had
authorized travel in error on October 18, 2010 and management requiring her to work from home
rather than in an office after she was granted reasonable accommodation in November 2010.
In an order dated November 16, 2011, an administrative judge with the EEO Commission
granted appellant’s motion to amend her claim of sexual and racial harassment to include
reprisal.
In an EEOC settlement agreement signed February 2, 2012, appellant and the employing
establishment resolved that she would not have to pay any amount claimed by the employing
establishment and would not receive back pay, compensation, medical expenses or attorney’s
2

fees.2 She agreed to withdraw her EEO complaint. The settlement provided that the employing
establishment did not admit to any wrongdoing in entering into the agreement.
On February 4, 2013 appellant asserted that the administrative judge for her EEO
settlement had advised her to seek compensation through OWCP. She enclosed information
regarding her EEO claim. Appellant related that the employing establishment forced her to
relocate by changing her duty station and that she “endured years of sexual harassment and [a]
racially charged environment.” She also maintained that it erred in investigating her for
wrongdoing.
In a February 10, 2011 statement to the employing establishment, appellant asserted that
the issue was not her assigned duty station but instead the sexual harassment she experienced
from 2006 to January 2010.
In a statement to the employing establishment dated March 28, 2011, appellant related
that in the late fall 2007, the person against whom she filed her EEO complaint told her that he
wanted to find a married person to f**k. The person repeatedly shared graphic details of his sex
life with his wife and mistress. He made comments on two separate occasions about the size of
his penis. The person referred to appellant as his “bulldog.” In management meetings appellant
had to listen to “locker room talk that ranged from the mundane jock bantering to crude and lewd
remarks.” The regional director referred to a rape victim as “taking it.” At a meeting where
appellant was the only black person, an individual made a joke about a baby looking like a
monkey and at another meeting recounted a joke about a black person portrayed in a movie as
looking like a gorilla. In 2009, the person against whom appellant had filed a grievance made
sexually explicit comments to a new female hire, who asked for appellant’s help getting out of a
car trip with the individual. Appellant convinced management to let the woman fly to the
conference but received criticism for her actions.
By decision dated June 12, 2013, OWCP denied appellant’s claim after finding that the
evidence was insufficient to show that she sustained an emotional condition in the performance
of duty. It determined that she had not established any compensable employment factors.
On appeal, appellant contends that OWCP improperly denied her claim based on its
finding that she had not substantiated her allegations of sexual harassment and a hostile work
environment based on race. She related that she did not describe every instance that created the
hostile work environment but instead provided a sample of events. The individual who harassed
appellant also retaliated against her and the EEO administrative judge allowed her to incorporate
her allegations of retaliation into her EEO claim. Appellant maintains that the fact that the
employing establishment settled her EEO claim and that her claim survived summary judgment
establishes a factual basis for her allegations. OWCP did not ascertain her credibility and failed
to review the medical evidence. Appellant argues that she met the threshold for establishing
sexual harassment.
In response, the Director contends that appellant has not met her burden of proof to
establish her emotional condition claim. He maintains that the EEO documents are insufficient
2

On February 11, 2013 appellant submitted medical evidence.

3

as the agreement does not award any back pay or relief to her and provided that the employing
establishment did not admit to wrongdoing. The Director concedes that the employing
establishment did not respond to the January 8, 2013 request for comments from a supervisor
regarding appellant’s allegations and thus OWCP could have accepted the allegations as factual
under 20 C.F.R. § 10.117(b). He asserts that in this case, however, the employing establishment
advised that there was no one that could address appellant’s allegations, and that she should have
access to any records submitted by the employing establishment in connection with her EEO
claim.
Appellant submitted a supplemental pleading on April 10, 2014. She argued that the
employing establishment failed to controvert her allegations and challenges the assertion that all
persons with knowledge of the identified incidents had retired. Appellant asserts that OWCP
failed to assist in the development of her claim.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.3 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.5 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.6
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
3

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
6

See William H. Fortner, 49 ECAB 324 (1998).

7

Ruth S. Johnson, 46 ECAB 237 (1994).

4

employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.9 The issue is whether the claimant has submitted sufficient evidence
under FECA to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.10 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by OWCP and the Board.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.13
OWCP regulations provide that the employing establishment who has reason to disagree
with an aspect of the claimant’s report shall submit a statement to OWCP that specifically
describes the factual allegation or argument with which it disagrees and provide evidence or
argument to support that position.14 The applicable regulations further provide that the
employing establishment may include supporting documents such as witness statements, medical
reports or records or any other relevant information.15 If the employing establishment does not
submit a written explanation to support its disagreement, OWCP may accept the claimant’s
report of injury as established.16

8

See Michael Ewanichak, 48 ECAB 364 (1997).

9

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

10

See James E. Norris, 52 ECAB 93 (2000).

11

Beverly R. Jones, 55 ECAB 411 (2004).

12

Dennis J. Balogh, 52 ECAB 232 (2001).

13

Id.

14

20 C.F.R. § 10.117(a).

15

Id.

16

Id. at § 10.117(b).

5

ANALYSIS
Appellant has not alleged that she developed an emotional condition due to the
performance of her regular or specially assigned duties or out of a specific requirement imposed
by her employment under Cutler.17 She asserted that the employing establishment erred in
changing her duty station, notifying her that it had incorrectly authorized travel on
October 18, 2010, investigating her and requiring her to work from home in November 2010
after it granted her request for reasonable accommodation.
An employee’s emotional reaction to administrative or personnel matters taken by the
employing establishment is not covered under FECA absent a finding of error or abuse by it as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee.18 The Board finds that appellant has
not presented any evidence of error or abuse in the part of the employing establishment with
respect to its handling of the above-noted administrative and personnel matters.19 Consequently,
appellant has not established error or abuse in an administrative matter as a compensable work
factor.
Appellant also attributed her condition primarily to sexual harassment and a hostile work
environment. She maintained that in 2007 a manager told her that he wanted to find someone
who was married and shared explicit details of his sexual encounters with both his wife and
mistress. At two different times the manager referenced the size of his penis. He referred to
appellant as his “bulldog.” In 2009, the manager made graphic sexual comments about a new
female hire. In meetings with managers, appellant was subjected to “locker room talk” and
crude banter. The regional director referred to a female rape victim as “taking it.” At one
meeting a person joked about a baby looking like a monkey. Appellant was the only black
person at the meeting. At another meeting, an individual told a joke about a black person
portrayed in a movie as appearing like a gorilla.
For harassment to give rise to a compensable disability there must be evidence that the
harassment occurred.20 A claimant’s mere perception of harassment is not compensable.21
While appellant has provided some details regarding her allegations, the record is similarly
deficient with respect to evidence contradicting her assertions. She submitted a detailed
statement raising allegations of sexual and racial harassment without, however, specifically
identifying the individuals involved. In a December 18, 2012 telephone call, a supervisor with
the employing establishment informed OWCP that every person who could comment on her
allegations had retired. On January 8, 2013 OWCP requested that a knowledgeable supervisor
17

See Lillian Cutler, supra note 3.

18

See Thomas D. McEuen, supra note 6.

19

See Charles D. Edwards, 55 ECAB 258 (2004); Linda K. Mitchell, 54 ECAB 748 (2003); James E. Norris, 52
ECAB 193 (2000).
20

See Donna J. DiBernardo, 47 ECAB 700 (1996).

21

See Joel Parker, Sr., 43 ECAB 220 (1991).

6

address appellant’s contentions and properly informed the employing establishment that without
a response it could accept her allegations as factual.22 It did not receive a response from the
employing establishment.
The case will be remanded to OWCP to request that the employing establishment provide
a detailed statement from appellant’s supervisor or knowledgeable individual addressing the
accuracy of all statements provided by her regarding her claim. If the employing establishment
does not respond to the request, OWCP may accept appellant’s allegations as factual in
accordance with its regulations.23 It should also request that she identify the individuals involved
in the incidents she described as causing her emotional condition. After such further
development as OWCP deems necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.24
Issued: June 16, 2014
Washington, DC

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

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

22

See 20 C.F.R. § 10.117(b).

23

See Alice F. Harrell, 53 ECAB 713 (2002).

24

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Southeastern, PA, Employer
__________________________________________

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

Docket No. 07-864
Issued: July 13, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 8, 2007 appellant timely appealed the October 16, 2006 merit decision of
the Office of Workers’ Compensation Programs, which affirmed a schedule award for permanent
impairment of the upper extremities. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has greater than 2 percent impairment of the left upper
extremity and greater than 13 percent impairment of the right upper extremity.
FACTUAL HISTORY
Appellant, a 55-year-old mail processor/flat sorter machine operator, has an accepted
occupational disease claim for bilateral shoulder tendinitis, lumbosacral strain and right thumb
strain, which occurred on or about October 14, 2001. On December 3, 2003 the Office granted a

schedule award for 30 percent impairment of the right thumb.1 The award covered a period of
22.5 weeks from July 17 to December 21, 2003.
On September 17, 2004 appellant, with the assistance of counsel, filed a request for
reconsideration. The request was accompanied by an August 9, 2004 impairment rating from
Dr. David Weiss, a Board-certified osteopath, who diagnosed cumulative and repetitive trauma
disorder, bilateral shoulder acromioclavicular arthropathy, carpometacarpal (CMC) arthropathy
of the right thumb, low grade CMC arthropathy of the left thumb and bilateral median nerve
dysfunction by history. He found a 23 percent impairment of the left upper extremity based
upon a combination of impairments, including left shoulder loss of range of motion (2 percent),
left thumb motor strength deficit, abduction (18 percent ) and pain (3 percent). With respect to
the right upper extremity, he found an overall impairment of 37 percent. This included
impairment due to pain (3 percent), right thumb motor strength deficit, abduction (18 percent)
and right pinch key strength deficit (20 percent).
The Office referred the claim to its medical adviser, Dr. Arnold T. Berman, a Boardcertified orthopedic surgeon, who concurred with Dr. Weiss’ finding of two percent left upper
extremity impairment due to loss of range of motion in the shoulder.2 With respect to the right
upper extremity, Dr. Berman disagreed with Dr. Weiss’ assignment of 18 percent impairment for
right thumb motor strength deficit. He explained that there was no basis for an award for
neurological deficit because there was no evidence of carpal tunnel syndrome or median nerve
deficit. Dr. Berman found that appellant had a loss of function of the right thumb basilar joint as
previously determined by Dr. Mandel in July 2003. The 30 percent impairment of the right
thumb represented 11 percent impairment of the right upper extremity. Dr. Berman also
recommended that appellant receive an additional 2 percent impairment for pain, for a total right
upper extremity impairment of 13 percent.
By decision dated February 7, 2006, the Office granted a schedule award for two percent
impairment of the left upper extremity. Appellant also received an additional two percent
impairment of the right upper extremity. The award covered a period of 12.48 weeks from
December 22, 2003 to March 18, 2004.3
Appellant requested a hearing, which was held on July 13, 2006. At the hearing, his
counsel challenged the December 3, 2003 schedule award. Counsel argued that instead of
granting 30 percent impairment of the right thumb (22.5 weeks), appellant should have been
awarded 11 percent impairment of the right upper extremity impairment (34.32 weeks). She
claimed that appellant was entitled to at least an additional 11.82 weeks of compensation.
1

The December 3, 2003 schedule award was based on the July 17, 2003 examination and findings of
Dr. Richard Mandel, a Board-certified orthopedic surgeon and Office referral physician.
2

Dr. Berman did not specifically comment on the upper extremity impairment Dr. Weiss attributed to appellant’s
left thumb/hand/wrist impairment. The Office had not accepted that appellant injured his left thumb/hand/wrist in
the performance of duty on or about October 14, 2001 and Dr. Weiss did not identify the left thumb/hand/wrist
impairment as a preexisting condition.
3

Although the February 7, 2006 decision indicated that appellant would be compensated at the basic rate of 66⅔
percent, the Office actually paid appellant at the augmented rate of 75 percent due to his dependent spouse.

2

Counsel also argued that the Office should have based the February 7, 2006 schedule award on
Dr. Weiss’ August 9, 2004 impairment rating.4
In a decision dated October 16, 2006, the hearing representative affirmed the Office’s
February 7, 2006 schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act set forth the number of weeks
of compensation to be paid for the permanent loss of use of specified members, functions and
organs of the body.5 The Act, however, does not specify the manner by which the percentage
loss of a member, function or organ shall be determined. To ensure consistent results and equal
justice under the law, good administrative practice requires the use of uniform standards
applicable to all claimants. The implementing regulations have adopted the American Medical
Association, Guides to the Evaluation of Permanent Impairment as the appropriate standard for
evaluating schedule losses.6 Effective February 1, 2001, schedule awards are determined in
accordance with the A.M.A., Guides (5th ed. 2001).7
ANALYSIS
As a preliminary matter, the Board notes that hearing representative’s October 16, 2006
decision erroneously indicated that appellant’s accepted conditions included bilateral carpal
tunnel syndrome. On February 21, 2002 the Office mistakenly advised appellant that his claim
had been accepted for bilateral carpal tunnel syndrome and that the surgery recommended by
Dr. Corder had been approved. However, appellant’s October 27, 2001 claim did not identify
carpal tunnel syndrome as one of the claimed conditions and the record does not include a
surgical request or recommendation from a Dr. Corder. The employing establishment brought
this error to the Office’s attention and on February 26, 2002, the Office wrote appellant
explaining that the February 12, 2002 acceptance letter should be disregarded. The Office stated
that the prior letter was intended for a totally different injured worker whose case number was
similar to appellant’s case number. In a separate letter, also dated February 26, 2002, the Office
informed appellant that his claim was accepted for right thumb strain, lumbosacral strain and
bilateral shoulder tendinitis. By letter dated October 13, 2004, the Office similarly advised
appellant’s counsel that carpal tunnel syndrome was not an accepted condition. Accordingly, the
Office hearing representative erred in identifying bilateral carpal tunnel syndrome as an accepted
condition.

4

At the July 13, 2006 hearing, counsel did not challenge the Office’s award of 2 percent impairment of the left
upper extremity.
5

For a total, or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1) (2000).
6

20 C.F.R. § 10.404 (2006).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

3

As to the extent of appellant’s upper extremity permanent impairment, the Board finds
that the case is not in posture for decision. With respect to appellant’s right upper extremity
impairment, the Office erred in determining the percentage the current award should be offset by
the prior award dated December 3, 2003.8 Dr. Berman found a current right upper extremity
impairment of 13 percent; 11 percent of which he attributed to loss of function of the right thumb
basilar joint. As appellant previously received a schedule award for impairment of the right
thumb basilar joint, the Office reduced the February 7, 2006 award to two percent (6.24 weeks)
for the right upper extremity. The Office ostensibly based its reduction on the belief that
appellant previously received a schedule award for 11 percent impairment of the right upper
extremity. However, as counsel correctly noted at the July 13, 2006 hearing, appellant was only
awarded 30 percent impairment of the right thumb, which corresponded to 22.5 weeks’
compensation.9 In contrast, 11 percent impairment of the right upper extremity entitles a
claimant to 34.32 weeks’ compensation10 and a 13 percent impairment of the right upper
extremity corresponds to 40.56 weeks’ compensation. Appellant received a total of 28.74
weeks’ compensation for impairment attributable to his right upper extremity. Although counsel
raised the offset issue at the July 13, 2006 hearing, the Office hearing representative did not
address it in her October 16, 2006 decision. Accordingly, the Office erred in calculating the
amount of offset.
The February 7, 2006 schedule award, which the hearing representative affirmed on
October 16, 2006, is also deficient in that Dr. Berman, whose finding the Office relied upon,
failed to explain why appellant should receive an additional two percent impairment for pain.
Dr. Weiss assigned three percent impairment due to pain and Dr. Berman reduced it to two
percent. Both physicians cited Figure 18-1, A.M.A., Guides 574, as support for assigning
additional impairment due to pain. But neither physician offered a clear explanation as to why
the additional pain rating was justified. The A.M.A., Guides limit the circumstances under
which a pain-related impairment may be assessed under Chapter 18. If an impairment can be
adequately rated on the basis of the body and organ impairment systems given in other chapters
of the A.M.A., Guides, such as Chapters 13, 16 and 17, then pain-related impairments should not
be assessed using Chapter 18.11 The A.M.A., Guides provide for an incremental adjustment of
up to three percent for pain when the conventional rating system does not adequately encompass
the burden of the individuals condition. Where the pain-related impairment appears to increase
the burden of the individual’s condition “slightly,” the physician can increase the percentage
found under the conventional rating system by up to three percent.12
8

Any previous impairment to the member under consideration is included in calculating the percentage of loss
except when the prior impairment is due to a previous work-related injury, in which case the percentage already paid
is subtracted from the total percentage of impairment. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards & Permanent Disability Claims, Chapter 2.808.7(a)(2) (November 1998).
9

For a total or 100 percent loss of use of a thumb, an employee shall receive 75 weeks’ compensation. 5 U.S.C.
§ 8107(c)(6) (30 percent multiplied by 75 weeks’s compensation = 22.5 weeks).
10

See 5 U.S.C. § 8107(c)(1) (11 percent multiplied by 312 weeks’s compensation = 34.32 weeks).

11

A.M.A., Guides 571, section 18.3b.

12

A.M.A., Guides 573, section 18.3d; A.M.A., Guides 574, Figure 18-1.

4

Because neither Dr. Weiss nor Dr. Berman explained why the conventional impairment
rating provided under Chapter 16 was ostensibly inadequate, an additional two percent
impairment for pain is unjustified in the instant case.13 The Office medical adviser did not
explain why he reduced Dr. Weiss’ pain assessment from three percent to two percent.
Dr. Berman also failed to explain why he disagreed with Dr. Weiss’ assignment of 20 percent
upper extremity impairment for right pinch key strength deficit. In light of the noted deficiencies
in the Office medical adviser’s impairment rating, the case is remanded to the Office for further
medical development, followed by a de novo decision regarding appellant’s entitlement to a
schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: July 13, 2007
Washington, DC

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

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

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

13

See Mark A. Holloway, 55 ECAB 321, 326 (2004); Philip A. Norulak, 55 ECAB 690, 696 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD YOUTH CHALLENGE PROGRAM,
Dillon, MT, Employer
__________________________________________

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Appearances:
Chuck Wall, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2382
Issued: June 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 20, 2007 appellant filed a timely appeal from the January 11, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his claim for a traumatic
injury. He also filed a timely appeal of the June 14, 2007 decision denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to
review the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury on
November 14, 2006, as alleged; and (2) whether the Office properly refused to reopen his claim
for further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 14, 2006 appellant, then an 18-year-old student/cadet, was struck in the
face, fell down stairs and was kicked in the head during an unprovoked assault by another cadet.

The claim alleged possible head injury, possible broken nose, laceration to head and possible
concussion. Appellant was treated at the Barrett Memorial Hospital emergency room.
By letter dated November 29, 2006, the Office informed appellant that his claim could
not be accepted as there was no medical evidence to support his claim. A memorandum to file
dated December 11, 2006 indicated that this letter was returned as undeliverable. This letter was
resent to appellant’s address as written on the claim form. However, no further evidence was
submitted.
By decision dated January 11, 2007, the Office denied appellant’s claim. The Office
found that, although the evidence established that the claimed event occurred as alleged, there
was no medical evidence that provided a diagnosis that could be related to the incident.
Therefore, the Office received a report from the Barrett Memorial Hospital and Health
Care emergency room signed by a physician’s assistant on November 14, 2006. The report
noted that appellant was hit by another cadet, that his head struck a wall and that he was punched
in the nose and fell to the ground, at which time he was kicked in the head. Appellant had
bruising on the right side of his face and a one centimeter scalp wound to the back of the head
with tissue softness and hematoma. The wound was scrubbed and closed with two staples.
Appellant was released in good condition and given aftercare instructions.
On June 11, 2007 appellant requested reconsideration. Appellant noted that on
November 14, 2006 he was assaulted by another cadet, knocked down the stairs and kicked in
the head. He submitted the Barrett Memorial Hospital records in support of his claim.
By decision dated June 14, 2007, the Office denied reconsideration without merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim. When the employee claims injury in
the performance of duty, he must submit sufficient evidence to establish that he sustained a
specific incident at the time, place and in the manner alleged and that such incident caused an
injury.2 The mere fact that a condition manifests itself or worsens during a period of
employment does not raise an inference of causal relationship.3
To establish a causal relationship between an employee’s condition and an alleged
employment injury, appellant must submit rationalized medical opinion from a physician based
on a complete and accurate medical and factual background.4 The physician’s opinion must be
expressed in terms of reasonable medical certainty and must be supported by medical rationale
1

5 U.S.C. §§ 8101-8193.

2

See John W. Montoya, 54 ECAB 308 (2003).

3

See Louis T. Blair, 54 ECAB 348 (2003).

4

See Kathryn E. Demarsh, 56 ECAB 677 (2005).

2

explaining the nature of the relationship between the diagnosed condition and the claimant’s
employment factors.5
ANALYSIS -- ISSUE 1
The Office accepted that the employment incident occurred as alleged. The issue on
appeal, therefore, is whether appellant submitted sufficient medical evidence to establish that he
sustained an injury as a result of this accepted incident. At the time of the January 11, 2007
decision, appellant had not submitted any medical evidence in support of his claim. Without
medical evidence, the Office properly denied appellant’s claim for compensation.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
his belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.6 As appellant failed to submit such evidence, the Office
properly denied his claim.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under 5 U.S.C. § 8128(a), the
Office’s regulations provide that the application for reconsideration must set forth arguments and
contain evidence that either: (1) shows that the Office erroneously applied or interpreted a
specific point of law; (2) advances a legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.7
A timely request for reconsideration may be granted if the Office determines that the
employee has submitted evidence and/or argument that meet at least one of these standards. If
reconsideration is granted, the case is reopened and is reviewed on the merits.8
ANALYSIS -- ISSUE 2
In the instant case, appellant did not meet any of the criteria for requiring the Office to
reopen his case for merit review. Appellant did not argue that the Office erroneously applied or
interpreted a specific point of law nor did he raise legal arguments not previously considered.
Appellant did submit the medical records from the Barrett Memorial Hospital emergency room
showing that he was treated on the date of the accepted incident. However, these reports were
signed by a physician’s assistant. A physician’s assistant is not a “physician” as defined under
5

See Charles W. Downey, 54 ECAB 421 (2003).

6

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

7

20 C.F.R. § 10.606.

8

5 U.S.C. §§ 8101-8193, § 8128(a). The Board has found that the imposition of the one-year limitation does not
constitute an abuse of discretionary authority granted the Office under section 8128(a) of the Act. See Adell Allen
(Melvin L. Allen), 55 ECAB 390 (2004).

3

the Act. This report does not constitute probative medical evidence and is accordingly
irrelevant.9 Therefore, the Office properly determined that this evidence did not constitute a
basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
November 14, 2006, as alleged. The Board further finds that the Office properly refused to
reopen his claim for further merit review under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 14 and January 11, 2007 are affirmed.10
Issued: June 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
9

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2). Section 8101(2) provides as
follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by state law. See Merton J. Sills, 39
ECAB 572, 575 (1988).
10

The Board notes that the record on appeal contains evidence which the Office received after its June 14, 2007
decision denying reconsideration. The Board lacks jurisdiction to review this evidence for the first time on appeal.
5 U.S.C. § 501.2(c). This, however, does not preclude appellant from having such evidence considered by the
Office as part of a reconsideration request before the Office.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Upland, CA, Employer
__________________________________________

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

Docket No. 14-680
Issued: June 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 6, 2014 appellant filed a timely appeal of an October 16, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs. Because over 180 days elapsed
from the most recent merit decision of June 17, 2013 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of appellant’s case, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 14, 2013 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim alleging a tendon tear on the right side of his right foot on August 1, 2012 as a
1

5 U.S.C. § 8101 et seq.

result of his employment-related right plantar fasciitis. He submitted a narrative statement and
asserted that his current right foot condition was the result of walking and standing in the
performance of duty and an abnormal gait due to his accepted plantar fasciitis. Appellant
submitted a treatment note dated February 26, 2013 from Dr. James R. LaRose, a podiatrist, who
diagnosed a peroneal brevis tendon tear of the right ankle. Dr. LaRose noted that appellant had
no direct injury to his right ankle or foot, just continuous use.
In a letter dated March 27, 2013, OWCP requested additional factual and medical
evidence from appellant. On April 12, 2013 appellant responded that he stood and walked from
six to seven hours a day and had an abnormal gait from his employment-related plantar fasciitis.
By decision dated June 17, 2013, OWCP denied appellant’s claim. It found that
Dr. LaRose’s February 26, 2013 note did not provide sufficient medical rationale to establish that
his right foot condition was causally related to his employment.
Appellant requested reconsideration on July 18, 2013. He stated that he was submitting
additional medical evidence from his physician. The record, however, does not contain any
additional medical evidence.
In a decision dated October 16, 2013, OWCP declined to reopen appellant’s claim for
reconsideration of the merits on the grounds that he failed to support his request for
reconsideration with new evidence or argument.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.3 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.4
ANALYSIS
Appellant requested reconsideration of OWCP’s June 17, 2013 merit decision denying
his occupational disease claim on July 18, 2013. He noted that he was submitting additional
medical evidence in support of his request for reconsideration, but the record does not contain
2

5 U.S.C. §§ 8101-8193, 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.608.

2

any new evidence following the June 17, 2013 decision. As appellant failed to show that OWCP
erroneously applied or interpreted a specific point of law, failed to advance a relevant legal
argument not previously considered by OWCP and failed to include relevant and pertinent new
evidence not previously considered by OWCP, the Board finds that OWCP properly declined to
reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that OWCP properly declined to reopen appellant’s claim for
reconsideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
_________________________________________

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

Docket No. 12-1025
Issued: December 5, 2012

Case submitted on the record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 16, 2012 appellant filed a timely appeal from the February 6, 2012 decision of
the Office of Workers’ Compensation Programs’ (OWCP), which denied her claim for a
recurrence. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of partial
disability beginning January 7, 2011 causally related to her April 29, 2010 employment injury.
FACTUAL HISTORY
On May 25, 2010 appellant then a 46-year-old mail handler, filed an occupational disease
claim alleging that she sustained carpal tunnel syndrome as a result of repetitive grasping,
squeezing, gripping and stacking hampers. She did not stop work. On July 19, 2010 OWCP
1

5 U.S.C. § 8101 et seq.

accepted right carpal tunnel syndrome and authorized a right carpal tunnel release on August 31,
2010, which was performed by Dr. Christopher Glock, a Board-certified orthopedic hand
surgeon. Appellant returned to work on October 15, 2010 with a 10-pound lifting restriction.
She subsequently stopped working on January 7, 2011.
In an October 25, 2010 report, Dr. Glock noted that appellant was seen in for follow up to
her right carpal tunnel release and for her left carpal tunnel syndrome. He explained that her
wounds healed well and there was no sign of infection. Dr. Glock diagnosed right carpal tunnel
release with stiffness and pilar pain. He recommended formal therapy.
In a January 7, 2011 report, Dr. Glock found some right wrist stiffness, hyper-sweating in
the palm area along with swelling and mild limitation of range of motion. He indicated that there
was “no longer any numbness or tingling in the median nerve distribution.” Appellant’s right
carpal tunnel release had progressed with postoperative pain to the point that he was concerned
that she now had reflex sympathetic dystrophy (RSD). Dr. Glock referred her for a stellate
ganglion block evaluation and opined that her condition was a direct result of not being allowed
access to therapy. In a disability certificate also dated January 7, 2011, he placed appellant off
work pending approval for an RSD evaluation.
Appellant filed notice of a recurrence of disability on January 13, 2011 commencing on
October 25, 2010. She stopped work on January 7, 2011 due to RSD symptoms.
In a January 25, 2011 letter, OWCP notified appellant that it had received her recurrence
claim. It advised her that if she was working in a light-duty position before she stopped working
and she believed that her light-duty assignment changed such that it no longer met the
restrictions set by her physician or if she believed that she stopped work due to a worsening in
her work-related condition, then she should submit a narrative report from her physician to
establish her claim.
In a January 19, 2011 attending physician’s report, Dr. Glock diagnosed bilateral carpal
tunnel syndrome and checked a box “yes” in response to whether he believed that the condition
found was caused or aggravated by an employment activity. Appellant’s symptoms had
improved when she was away from the job and were constant over the prior few months.
Dr. Glock placed her off work pending an RSD evaluation.
In a January 31, 2011 report, Dr. Glock stated that “since I [ha]ve last seen [appellant]
and placed her off work, rather than allow her to be seen by a pain management physician and
rather than approve the therapy, they have asked for a narrative report to justify her being off
work or they are not going to pay her. It seems to me that they are one of the proximate causes
of her disability. They are certainly a reason why she is getting worse. I think that it is wholly
unreasonable for them to continue to deny her care.” Dr. Glock opined that appellant was off
work because attempts at keeping her at light duties had not met with success. Without attention
from a pain management physician, a stellate ganglion block or therapy, Dr. Glock stated that
appellant would have permanent residuals directly related to her accepted condition. If forced to
do work with her hand without being treated, appellant would experience pain, increasing
swelling, increasing stiffness and further lack of function. In a February 28, 2011 report,
Dr. Glock noted that she still awaited approval for the requested therapy procedures. He related

2

that appellant could not perform her regular job and repeated his recommendation for additional
treatment. OWCP also received physical therapy notes.2
By decision dated April 13, 2011, OWCP denied appellant’s claim for a recurrence of
disability finding the medical evidence was insufficient to establish that it was due to her
accepted work injury.
On May 13, 2011 appellant requested a review of the written record. In disability
certificates dated February 28 and March 31, 2011, Dr. Glock stated that she remained off work
until further notice. On March 31, 2011 appellant was seen by Dr. Roger Bailey, Board-certified
in pain medicine. Dr. Glock noted that Dr. Bailey agreed with his diagnosis and thought
appellant would be “an excellent candidate for ganglion blocks as well as continued therapy.”
He would turn over her care to Dr. Bailey and would see her after she was finished treatment
with him. Dr. Glock stated that appellant’s “wound is well healed. There is no sign of infection.
[Appellant] no longer has any evidence of carnal tunnel syndrome but still has a stigmata of the
RSD.” On May 7, 2011 she continued to have hyperhydrosis with increased exertion; but no
longer had any numbness or tingling. Dr. Glock determined that her wounds had healed and
there was no sign of infection, no numbness or tingling. He recommended a functional capacity
evaluation and indicated that there was no change to appellant’s work status.
In a July 25, 2011 decision, the hearing representative affirmed the April 13, 2011
decision finding that appellant had not established a recurrence of disability beginning
January 7, 2011.
On November 8, 2011 appellant requested reconsideration. She indicated that the
decision letter had someone else’s name on it and her claim may have been mixed up. OWCP
received additional evidence including copies of previously submitted reports. A June 2, 2011
disability certificate from Dr. Glock advised that appellant could return to work with a restriction
keeping the right wrist at medium level. In March 24 and April 27, 2011 treatment reports,
Dr. Bailey stated that she had carpal tunnel symptoms since February 2010. On March 24, 2011
he stated that appellant’s right hand pain continued. Dr. Bailey diagnosed CRPS and right hand
pain and noted treatment options. On April 27, 2011 he stated that appellant was progressing
quite well with physical therapy, her pain had decreased and that she had a good prognosis.
By decision dated February 6, 2012, OWCP denied modification of the July 25, 2011
decision.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. The term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
2

OWCP authorized physical therapy treatment in 2011.

3

is withdrawn (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.5 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.6 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.8
ANALYSIS
Appellant’s claim was accepted for right carpal tunnel syndrome and OWCP authorized
right carpal tunnel release on August 31, 2010. She alleged a recurrence of disability beginning
January 7, 2011. On January 25, 2011 OWCP advised appellant of the type of medical and
factual evidence needed to establish her claim for a recurrence of disability.
Appellant has not alleged a particular change in the nature and extent of her light-duty
job requirements. She must thus provide medical evidence establishing that she was disabled
due to a worsening of her accepted work-related conditions.9
3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

5

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

6

Duane B. Harris, 49 ECAB 170, 173 (1997).

7

Gary L. Fowler, 45 ECAB 365, 371 (1994).

8

Walter D. Morehead, 31 ECAB 188 (1986).

9

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, supra note 4 at 222.

4

Appellant submitted reports from Dr. Glock. On January 7, 2011 Dr. Glock saw her for
follow up of her right carpal tunnel release. He stated that there was “no longer any numbness or
tingling in the median nerve distribution” but noted that postoperative pain had progressed.
Dr. Glock was concerned that she had RSD that was a direct result of not being allowed access to
therapy. He placed appellant off work pending approval for an RSD evaluation. The Board
notes that Dr. Glock did not offer any opinion to establish that she was disabled due to a
worsening of her accepted right carpal tunnel syndrome. Dr. Glock merely expressed that he
believed that appellant had RSD and placed her off work pending an evaluation. The Board
notes that RSD is not an accepted condition and he was speculating that her condition had
worsened.10 Furthermore, his argument that appellant did not have physical therapy does not
appear to be valid as the record contains numerous physical therapy reports. In a January 19,
2011 attending physician’s report, he diagnosed bilateral carpal tunnel syndrome and checked a
box “yes” that this condition was caused by employment noting that her symptoms improved
when she was away from the job. Dr. Glock placed appellant off work pending an RSD
evaluation. The Board notes that OWCP accepted her claim for right carpal tunnel syndrome;
the left side has not been accepted. Additionally, checking of the box “yes” that the disability
was causally related to employment is insufficient without fortifying explanation or rationale, to
establish causal relationship.11 Dr. Glock did not explain how appellant’s disability beginning
January 7, 2011 was caused by a spontaneous change in her accepted right carpal tunnel
syndrome. On January 31, 2011 he advised that she was off work and that it was “wholly
unreasonable” for OWCP to deny her care. Dr. Glock stated that appellant’s attempt to work
light duty was not successful, that she had signs of RSD or CRPS with pain, stiffness and
swelling. However, RSD and CRPS are not accepted conditions and he did not explain how her
disability was due to a spontaneous change in her accepted right carpal tunnel syndrome or how
the denial of any care for her accepted condition caused disability. In February 28, March 31
and May 4, 2011 reports, Dr. Glock indicated that appellant was disabled and noted her treatment
by Dr. Bailey. However, he did not offer an opinion as to the cause of any disability
commencing on January 7, 2011. Likewise, other reports from Dr. Glock indicate that appellant
was disabled but do not specifically explain how appellant’s disability was due to a spontaneous
change in her accepted right carpal tunnel syndrome. The reports are of limited probative value
and do not establish a recurrence of disability beginning January 7, 2011.
In March 24 and April 27, 2011 reports, Dr. Bailey noted appellant’s status but he did not
specifically address how her disability beginning January 7, 2011 was causally related to her
accepted right carpal tunnel syndrome. His reports are therefore insufficient to establish the
claim.

10

See T.M., Docket No. 08-975 (issued February 6, 2009) (where a claimant claims that a condition not accepted
or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the
condition is causally related to the employment injury through the submission of rationalized medical evidence).
11

Barbara J. Williams, 40 ECAB 649 (1989).

5

The record also contains physical therapy reports. Health care providers such as physical
therapists are not physicians under FECA. Thus, their opinions do not constitute medical
evidence and have no weight or probative value.12
There are no other medical reports of record from a physician that explain how
appellant’s disability beginning January 7, 2011 is causally related to her accepted right carpal
tunnel syndrome.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements, which would prohibit her from performing the light-duty position she
assumed after she returned to work.
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 did not meet her burden of proof to establish a recurrence
of disability beginning January 7, 2011 causally related to her April 29, 2010 employment injury.

12

See Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

6

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7