United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF THE ARMY, AIR
NATIONAL GUARD, Springfield, IL, Employer
__________________________________________

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

Docket No. 12-764
Issued: February 26, 2013

Case Submitted on the Record

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

JURISDICTION
On February 22, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) September 29, 2011 schedule award decision and February 2,
2012 nonmerit decision denying his request for 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 sustained more than 29 percent binaural (both ears)
hearing loss for which he received schedule awards; and (2) whether OWCP properly denied his
request for further merit review of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that OWCP’s medical adviser did not rule on his accepted
bilateral tinnitus condition in rating his permanent impairment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 18, 2009 appellant, then a 58-year-old aircraft maintenance technician,
filed an occupational disease claim alleging that he developed hearing loss due to noise exposure
from running aircraft and jets throughout a typical workday. He was last exposed to noise at
work on July 3, 2008, when he retired. On April 29, 2010 OWCP accepted appellant’s claim for
binaural hearing loss.
On January 12, 2010 appellant filed a claim for a schedule award (Form CA-7). An
audiogram performed at Memorial Medical Center revealed the following decibel (dB) losses at
500, 1,000, 2,000 and 3,000 hertz (Hz): 25, 25, 35 and 45 dB for the right ear and 35, 30, 30 and
50 dB for the left ear. Appellant had mild-to-moderately severe sensorineural binaural hearing
loss.
By letter dated March 24, 2010, OWCP referred appellant, together with the medical
record and a statement of accepted facts, to Dr. Gerald W. Moritz, a Board-certified
otolaryngologist, for a second opinion. In an April 23, 2010 medical report, Dr. Moritz noted
that a prior audiogram showed bilateral sensorineural hearing loss involving both ears.
Appellant had more loss in the left ear than in the right ear. His worse loss was at 4,000 Hz in
the left ear, which showed a hearing level of 65 dB. An audiogram performed on Dr. Moritz’s
behalf on April 22, 2010 showed the dB losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz:
25, 35, 40 and 45, respectively, for the right ear and 25, 40, 60 and 65, respectively, for the left
ear. He diagnosed sensorineural binaural hearing loss secondary to appellant’s employmentrelated noise exposure as an aircraft maintenance technician. There was no suggestion of
presbycusis or other etiologies for the hearing loss. Dr. Moritz recommended that appellant
undergo an annual audiogram to monitor his hearing. He concluded that appellant may be a
candidate for amplification.
On September 27, 2010 Dr. David H. Garelick, OWCP’s medical adviser, reviewed
appellant’s case file, including Dr. Moritz’s April 22, 2010 audiometric data. He determined that
appellant had 19.7 percent binaural sensorineural hearing loss based on Table 11-1 and Table
11-2 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment2 (A.M.A., Guides). Dr. Garelick noted that there was no reference
audiogram for review and agreed with Dr. Moritz that appellant’s exposure to employmentrelated noise was of sufficient quantity and intensity to have contributed to his hearing loss. He
concluded that appellant reached maximum medical improvement on April 22, 2010.
In a decision dated November 10, 2010, OWCP granted appellant a schedule award for
19.7 percent binaural sensorineural hearing loss. The award ran for 40 weeks during the period
April 22, 2010 to January 26, 2011.
By letter dated February 15, 2011, appellant requested reconsideration. He contended
that a recent audiogram showed further determination in his hearing and that he had
employment-related tinnitus. A January 10, 2004 audiogram showed the dB losses at
frequencies of 500, 1,000, 2,000 and 3,000 Hz: 10, 15, 20 and 35 dB for the right ear and 15, 15,
35, 55 dB for the left ear. An April 4, 2008 audiogram showed the dB losses at the same
2

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

2

frequencies which were 10, 10, 25, and 45, respectively, for the right ear and 10, 10, 35 and 50,
respectively, for the left ear. An audiogram performed on January 5, 2011 also showed the
decibel losses at the same frequencies: 15, 25, 25 and 55 dB for the right ear and 20, 20, 40 and
60 dB for the left ear.
On April 11, 2011 Dr. Garelick reviewed appellant’s case record to determine whether he
had any additional impairment and whether he had tinnitus as a result of his accepted workrelated noise exposure. He reiterated his prior opinion that appellant had 19.7 percent binaural
sensorineural hearing loss and reached maximum medical improvement on April 22, 2010.
Dr. Garelick stated that no additional audiometric data had been submitted since the April 22,
2010 audiometric results. He noted that tinnitus was often associated with noise hearing loss
and, thus, recommended that any tinnitus manifested by appellant should be associated with his
work-related hearing loss for which he should be compensated accordingly.
By decision dated April 20, 2011, OWCP accepted appellant’s claim for bilateral tinnitus
based on Dr. Garelick’s opinion. It found that he sustained tinnitus as a result of his
employment-related noise exposure, but that the evidence did not support a schedule award for
greater than 19.7 percent binaural sensorineural hearing loss.
On May 3, 2011 appellant filed a Form CA-7 for an additional schedule award.
By letter dated June 6, 2011, OWCP referred appellant, together with the case record and
a statement of accepted facts, to Dr. John C. Dailey, a Board-certified otolaryngologist, for a
second opinion. In a June 27, 2011 report, Dr. Dailey obtained a history of the accepted
employment injuries and appellant’s medical, family and social background. He listed findings
on physical examination. Dr. Dailey obtained an audiogram dated June 27, 2011 which showed
the dB losses at frequencies of 500, 1,000, 2,000 and 3,000 Hz: 35, 40, 45, and 55, respectively,
for the right ear and 35, 35, 55 and 65, respectively, for the left ear. He diagnosed mild-tomoderate sensorineural hearing loss in both ears with good word recognition and subjective
complaints of bilateral constant tinnitus. Dr. Dailey advised that these symptoms were
compatible with appellant’s previous exposure to loud noise in his long-time work as an airplane
maintenance technician. He stated that appellant would benefit from hearing aids for both ears
which would not only help his hearing, but would also help to mask out the ringing which
seemed to be his most bothersome complaint.
On September 12, 2011 Dr. Garelick reviewed appellant’s medical record, including
Dr. Dailey’s June 27, 2011 report. He stated that the dB sum of hearing loss was 175 dB in the
right ear and 190 dB in the left ear. Dr. Garelick determined that appellant had 29.1 percent
binaural sensorineural hearing loss. He cited Table 11-1 and Table 11-2 on pages 250 and 252,
respectively, of the sixth edition of the A.M.A., Guides as a basis for the rating. Dr. Garelick
advised that appellant reached maximum medical improvement on June 27, 2011, the date of
Dr. Dailey’s audiogram. He stated that, when compared to a reference audiogram dated July 8,
1970, there had been a significant loss in appellant’s hearing commensurate with his
employment. There had even been progression of the hearing loss when compared to an
audiogram completed last year. Consequently, Dr. Garelick advised that this new award should
represent the total hearing loss rather than an additional award. He agreed with Dr. Dailey that
appellant’s employment-related noise exposure was of sufficient quantity and intensity to have at
least contributed to his current hearing loss.
3

In a September 29, 2011 decision, OWCP granted appellant a schedule award for 29.1
percent binaural sensorineural hearing loss. As appellant previously received an award of 19.7
percent impairment he was entitled to an additional 9.4 percent. The award covered 18 weeks of
compensation for the period June 27 to October 30, 2011.
On January 6, 2012 appellant requested reconsideration. He resubmitted copies of
Dr. Dailey’s June 27, 2011 report and Dr. Garelick’s April 11 and September 12, 2011 reports.
In a December 28, 2011 prescription, Dr. Dailey advised that appellant had medical clearance for
hearing aids.
In a January 19, 2012 report, Dr. Alfred Harney, a Board-certified internist, noted
appellant’s exposure to employment-related noise on a daily basis for over 30 years. He agreed
with Dr. Dailey that appellant had employment-related bilateral tinnitus.
In a February 2, 2012 decision, OWCP denied appellant’s request for reconsideration,
finding that it neither raised substantive legal questions nor included new and relevant evidence
and, thus, was insufficient to warrant a merit review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The sixth
edition of the A.M.A., Guides, has been adopted by OWCP for evaluating schedule losses and
the Board has concurred in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 dB result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing 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 the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for

3

5 U.S.C. §§ 8101-8193.

4

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

5

See A.M.A., Guides 250.

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evaluating hearing loss.6 The Board has also noted OWCP’s policy to round the calculated
percentage of impairment to the nearest whole number.7
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.8 It may follow the advice of its
medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a binaural sensorineural hearing loss and
bilateral tinnitus due to work-related noise exposure. On November 10, 2010 appellant received
a schedule award for 19.7 percent binaural sensorineural hearing loss. On May 3, 2011 he
requested an additional schedule award. OWCP developed this claim by referring appellant to
Dr. Dailey who examined appellant and obtained an audiogram on June 27, 2011. Dr. Dailey
diagnosed binaural sensorineural hearing loss and bilateral tinnitus. He opined that these
conditions were caused by appellant’s employment-related noise exposure as an aircraft
maintenance technician. On September 12, 2011 Dr. Garelick, OWCP’s medical adviser,
properly applied OWCP’s standardized procedures to the June 27, 2011 audiogram performed
for Dr. Dailey. He found that appellant had 175 dB loss in the right ear and 190 dB loss in the
left ear, resulting in 29.1 percent binaural sensorineural hearing loss based on Table 11-1 and
Table 11-2 on pages 250 and 252, respectively of the sixth edition of the A.M.A., Guides.
The June 27, 2011 audiogram recorded decibel losses at frequencies of 500, 1,000, 2,000
and 3,000 Hz for the right ear: 35, 40, 45 and 55, respectively or a total loss of 175 dB. The
average of this figure is 43.75 dB. This average was then reduced by 25 dB to 18.75, which was
multiplied by the established factor of 1.5 to result in a 28.125 or 28.1 percent monaural loss of
hearing in the right ear.10 The application of the formula, as well as, the rating provided by,
Table 11-1 results in 28.1 percent right ear hearing loss impairment. Testing for the left ear at
the frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibel losses of 35, 35, 55 and
65, respectively or a total loss of 190 dB. The average of this figure is 47.5. This average is then
reduced by 25 dB to 22.5, which is multiplied by the established factor of 1.5 to result in a 33.75

6

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

7

J.H., Docket No. 08-2432 (issued June 15, 2009); Robert E. Cullison, 55 ECAB 570 (2004). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b) (September 2010).
8

See G.M., Docket No. 11-1295 (issued January 25, 2012).

9

J.S., Docket No. 11-1634 (2012); see Paul Fierstein, 51 ECAB 381 (2000); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Payment of Schedule Awards, Chapter 2.808.7(b)(2) (April 1995).
10

The Board notes that OWCP policy is to round the calculated percentage of impairment to the nearest whole
number. Federal (FECA) Procedure Manual, supra note 7 at Chapter 3.700.3(b) (October 1990). See J.H., supra
note 7.

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or 33.8 percent monaural hearing loss of the left ear.11 The application of the formula, as well as,
the rating provided by Table 11-1 results in 33.8 percent left ear hearing loss impairment.
Dr. Garelick concluded that appellant had 29.1 percent binaural hearing loss12 and
OWCP’s September 29, 2011 schedule award decision found 29.1 percent binaural hearing
impairment which it reduced by 19.7 percent, the amount of his previous schedule award for
binaural hearing loss, to reflect 9.4 percent.
The Board notes that OWCP policy is to round the calculated percentage of impairment
to the nearest whole number.13 Thus, appellant’s binaural hearing loss should be rounded to nine
percent impairment. This error is harmless as OWCP’s September 29, 2011 decision reflects that
the period of the award, June 27 to October 30, 2011, represents the number of weeks
compensation was paid in proportion to the percentage loss of use for permanent loss of
appellant’s hearing. The amount of compensation is paid in proportion to the percentage loss of
use when the loss of use is less than 100 percent.14 The compensation schedule in FECA
provides that the maximum number of weeks of compensation for hearing loss in both ears is
200 weeks.15 Nine percent of 200 weeks is 18 weeks of compensation, which is the period that
OWCP paid appellant. Thus, the 18 weeks of compensation added to the 40 weeks of
compensation appellant previously received for the 19.7 percent binaural hearing loss, which
represents 20 percent binaural hearing loss, totals 58 weeks of compensation, which appellant
received 29 percent of 200 weeks yields 58 weeks of compensation.
Appellant argued on appeal that the schedule award should have accounted for his
tinnitus. The A.M.A., Guides provides that if tinnitus interferes with activities of daily living
such as sleeping, reading and other tasks requiring concentration, up to five percent may be
added to a measurable binaural hearing impairment.16 The Board has held, however, that a
claimant is not entitled to an additional schedule award where the record contains no medical
evidence directly addressing the impact of tinnitus on appellant’s activities of daily living.17 In
this case, OWCP accepted that appellant had tinnitus, but there is not medical evidence
addressing whether the tinnitus interfered with his activities of daily living. Appellant, therefore,
has not established entitlement to compensation due to tinnitus.

11

Id.

12

When calculating binaural hearing loss, the lesser hearing loss percentage, 28.1 percent for the right ear, is
multiplied by 5, then added to the greater loss percentage of 33.8 percent and divided by 6, which results in a
binaural hearing loss of 29.05 or 29.1 percent.
13

See supra note 10.

14

See J.H., supra note 10.

15

5 U.S.C. § 8107(c)(13)(B).

16

See A.M.A., Guides 249. See also R.D., 59 ECAB 127, 131 (2007).

17

R.D., id.

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,18
OWCP’s regulation provide that 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.19 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.20 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS -- ISSUE 2
On January 6, 2012 appellant disagreed with OWCP’s September 29, 2011 decision
granting him a schedule award for a total 29.1 percent binaural sensorineural hearing loss. The
relevant issue on reconsideration is whether he submitted sufficient medical evidence to establish
additional bilateral hearing impairment due to his employment-related noise exposure.
Dr. Dailey’s December 28, 2011 prescription found that appellant had medical clearance
for hearing aids. He did not address the relevant issue of whether appellant had any additional
bilateral hearing loss causally related to his employment-related noise exposure. As this
evidence does not address the relevant issue of causal relationship, the Board finds that it is
insufficient to reopen appellant’s claim for further merit review.21 Likewise, Dr. Harney’s
January 19, 2012 report is insufficient to warrant merit review of appellant’s claim. He found
that appellant had employment-related bilateral tinnitus, but failed to provide a medical opinion
addressing whether the diagnosed condition caused any additional impairment.22
Appellant resubmitted copies of Dr. Dailey’s June 27, 2011 report and Dr. Garelick’s
April 11 and September 12, 2011 reports. This evidence is duplicative of evidence contained in

18

Supra note 3. Under section 8128 of FECA, the 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).
19

20 C.F.R. § 10.606(b)(1)-(2).

20

Id. at § 10.607(a).

21

S.J., Docket No. 08-2048 (issued July 9, 2009); R.M., 59 ECAB 690 (2008); D. Wayne Avila, 57 ECAB 642
(2006); Betty A. Butler, 56 ECAB 545 (2005) (evidence that does not address the particular issue involved does not
constitute a basis for reopening a claim).
22

Id.

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the record and was previously considered by OWCP. The Board finds, therefore, that appellant
has not established a basis for reopening his case for further merit review.23
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his January 6, 2012 request for reconsideration.24
CONCLUSION
The Board finds that appellant did not establish that he sustained greater than 29 percent
binaural hearing loss for which he received schedule awards. The Board further finds that
OWCP properly denied appellant’s request for further merit review of his claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed and the September 29, 2011 decision of OWCP is
affirmed, as modified.
Issued: February 26, 2013
Washington, DC

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

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

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

23

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. F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).
24

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without
reopening the case for a review on the merits).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.N., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Benning, GA, Employer
__________________________________________

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

Docket No. 07-2197
Issued: September 16, 2008

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 August 29, 2007 appellant filed a timely appeal of a June 20, 2007 decision of the
Office of Workers’ Compensation Programs denying his request for reconsideration pursuant to
5 U.S.C. § 8128(a). As the most recent merit decision of record, dated September 20, 2005, was
issued over one year prior to the filing of this appeal, the Board lacks jurisdiction to review the
merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 18, 1984 appellant, then a 31-year-old file clerk, filed an occupational
disease claim alleging that he sustained peripheral neuropathy secondary to Isoniazid (INH)
1

20 C.F.R. §§ 501(2)(c) and 501.3(d)(2).

therapy.2 The Office accepted appellant’s claim for peripheral neuropathy secondary to INH
therapy. It paid appropriate compensation and medical benefits. Appellant returned to work in a
sedentary job effective February 26, 1989. The employing establishment initiated removal
action for recurring absences and failure to submit medical documentation, but appellant was
allowed to resign effective January 25, 1990.
By decision dated September 23, 1991, the Office found that, as appellant resigned from
a suitable job which was available to him, he was not entitled to compensation for loss of wages
on or after January 25, 1990. This decision was affirmed by an Office hearing representative on
March 19, 1993. As appellant did not provide sufficient reason or justification for refusing
suitable work secured for him, he was precluded from receiving compensation effective
January 25, 1990 pursuant to 5 U.S.C. § 8106(c)(2) and 20 C.F.R. § 10.124(e). Appellant filed
requests for reconsideration but modification was denied in decisions dated August 4, 2004 and
September 20, 2005.
After the September 20, 2005 decision, appellant submitted numerous documents,
including medical reports dated March 22 through November 30, 2006 by Dr. Ben C. Wouters, a
Board-certified neurologist, who diagnosed neuropathy secondary to vasculitis secondary to
INH. In a note dated March 22, 2006, Dr. Wouters noted that vasculytic neuropathy is very rare
and may have been initially misdiagnosed. He noted that appellant could not work long hours
consistently due to pain that he experienced in his feet, but that he could do “[v]ery, very light
sedentary work.” However, Dr. Wouters noted that appellant would need frequent breaks and
would probably miss some days because of pain. He concluded, “Because of this, he is not truly
employable as a practical matter, although technically he is.”
Appellant also submitted brief progress notes by Dr. Clemmie Palmer, III, a Boardcertified psychiatrist. He was treated from August 17, 2005 through April 25, 2007 for chronic
anxiety and poor sleep.
The record also contains an undated letter from appellant’s former supervisor who had
worked with appellant at the time he first developed his occupational disease. She noted that
appellant had been transferred to the information desk, where he could sit and work in the hopes
that his attendance would improve. However, there was little or no improvement in attendance
due to constant pain in his right side. She noted that appellant was eventually fired for
unacceptable attendance and failure to provide the required medical excuses for absenteeism.
Subsequently, an administrative law judge changed appellant’s status from “fired” to
“resignation.”
In an undated letter to appellant’s congressman received by the Office on February 28,
2007 appellant requested reconsideration. He reiterated the history of his case and discussed his
return to work.

2

Appellant explained that, when he worked for the employing establishment, it was mandatory for all employees
to take an annual physical which included a TB Tine test. He noted that he tested positive for tuberculosis and was
sent to the Columbus Health Department which prescribed INH therapy. Appellant took the therapy and one night
awoke to severe pain, a numb leg and jerking. He noted that he was later diagnosed with peripheral neuropathy.

2

By decision dated March 9, 2007, the Office denied appellant’s request as it was not
timely filed and failed to establish clear evidence of error.
By letter to the Office dated April 2, 2007, a constituent services representative from the
office of appellant’s congressman advised that appellant had contacted their office on August 4,
2006 requesting assistance in obtaining reconsideration. The representative noted that she had
mistakenly believed that the information had been sent to the Office on the same date. Appellant
proceeded under the belief that his case had been sent to the proper agency and based on the
congressman’s office’s assurance, took no additional action while awaiting the decision. The
Congressional office asked for assistance in correcting this error and protecting appellant’s due
process rights.
In a decision dated June 20, 2007, the Office found that, due to the intervention of
appellant’s Congressional office, his initial request for reconsideration of the September 20, 2005
decision was timely and the evidence submitted since the last merit decision of September 20,
2005 was reviewed. However, the Office denied reconsideration, finding that the evidence was
either previously reviewed, not relevant, or repetitive to the issue upon which his case was
denied.
LEGAL PRECEDENT
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.3
A timely request for reconsideration may be granted if the Office determines that the
employee has represented 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.4
ANALYSIS
Appellant’s claim was accepted for peripheral neuropathy secondary to INH therapy and
compensation was paid. However, the Office found that appellant was not entitled to
compensation for loss of wages after January 25, 1990 as he resigned from a suitable position.
Appellant requested reconsideration and the Office denied appellant’s request.
The underlying issue in this case is whether the Office properly determined that appellant
was not entitled to compensation for loss of wages on or after January 25, 1990 due to his
resignation from a suitable job. In support of his request for reconsideration, appellant submitted
3

20 C.F.R. § 10.606.

4

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

progress notes from his psychiatrist dated from August 17, 2005 through April 25, 2007, notes
from his neurologist dated from March 22 through November 30, 2006 and a note from his most
recent supervisor detailing the fact that he resigned from his position after initially being fired for
absenteeism and failure to submit medical documentation. The Board finds that none of this
evidence establishes that, as of January 25, 1990, appellant was disabled from performing the
sedentary job found suitable.
Dr. Wouter’s reports do not address whether appellant was incapable of performing the
duties of the selected position due to the effects of the employment injury. Thus, his notes are
irrelevant. The notes from appellant’s psychiatrist, Dr. Palmer, simply consist of listing of brief
comments from appellant’s sessions and are irrelevant to the period in question, when appellant
left employment. The supervisor who submitted the statement was not appellant’s supervisor at
the time he left his employment and it is not relevant to the underlying issue of whether appellant
abandoned suitable work after it was secured for him. Accordingly, the Board finds that the new
evidence submitted by appellant does not constitute relevant and pertinent new evidence.
Furthermore, appellant did not show that the Office erroneously applied or interpreted a specific
point of law nor did he advance a legal argument not previously considered by the Office. As he
has not met any of the criteria for requiring merit review of his claim, the Office properly denied
his request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 20 and March 9, 2007 are affirmed.
Issued: September 16, 2008
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
INSTALLATIONS COMMAND, San Diego, CA,
Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0089
Issued: July 1, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 21, 2015 appellant, through counsel, filed a timely appeal from an April 29,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined appellant’s pay rate for compensation
purposes.
FACTUAL HISTORY
On July 27, 2012 appellant, then a 46-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury at work on July 12, 2012 due to placing a
1

5 U.S.C. § 8101 et seq.

hold on a coworker’s right arm during a training exercise. OWCP accepted that he sustained a
sprain of his right elbow (radial collateral ligament) and forearm, right carpal tunnel syndrome,
and lesion of the right radial nerve. On the same form, appellant’s immediate supervisor
indicated that his regular schedule involved working from 9:30 p.m. to 6:00 a.m. on Sunday,
Monday, Tuesday, Friday, and Saturday for 40 hours per week.2
On November 29, 2012 appellant filed a claim for compensation (Form CA-7) alleging
wage-loss compensation for total disability beginning November 18, 2012 and continuing
through December 1, 2012. On the Form CA-7, a human resources official for the employing
establishment indicated that appellant was sent home on November 18, 2012 because no work
was available within his medical restrictions.3 Appellant received disability compensation on the
daily rolls beginning November 18, 2012. He later filed several claims for disability after
December 1, 2012 and continuing.4
In a July 3, 2014 e-mail to OWCP, an employing establishment official noted:
“When an employee has two separate basic tours of duty on Sunday, he or she is
entitled to Sunday premium pay for performing work during each tour of duty.
For example, if an employee works 8 hours during a basic tour of duty that begins
on Saturday and ends on Sunday, and also works 8 hours during a basic tour of
duty that begins on the same Sunday and ends on Monday, the employee is
entitled to 16 hours of Sunday premium pay.”
In an undated letter received on September 26, 2014, appellant requested a formal
decision with appeal rights on the issue of his pay rate for compensation purposes.
On October 17, 2014 appellant filed a Form CA-7 claiming a schedule award due to his
accepted work injuries.
In a December 9, 2014 decision, OWCP granted appellant a schedule award for 14
percent permanent impairment of his right upper extremity. The award ran from November 16,
2014 to September 17, 2015 for 43.68 weeks. It was based on an impairment rating conducted
on December 2, 2014 by an OWCP medical adviser using the October 31, 2014 examination
findings of Dr. Michael S. McManus, an attending Board-certified occupational medicine
physician.

2

The record reflects that appellant had a base salary (including locality adjustment) of $47,333.16 per year at the
time of his July 12, 2012 work injury.
3

The human resources official indicated on the form that, on and about November 18, 2012, appellant had a base
salary of $22.68 per hour (GS-6/Step 7), night differential pay of $2.27 per hour, and Sunday premium pay of $5.67
per hour.
4

In a Form CA-7 dated February 25, 2014, appellant claimed that his wage-loss compensation should include
five hours of “gun up” pay for each two-week pay period between August 30, 2012 and February 25, 2014.

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In a March 30, 2015 letter, counsel argued that appellant received “gun up” pay that
constituted administratively uncontrollable overtime (AUO) which should be included in
appellant’s pay rate calculations.
By decision dated April 29, 2015, OWCP determined that appellant had a weekly pay
rate of $1,046.87. It noted that the initial period of compensation claimed was November 18 to
December 1, 2012, as reported on the initial Form CA-7 received on November 29, 2012.
OWCP pointed out that the effective pay rate date was determined to be the date that appellant’s
disability began, i.e., November 18, 2012. Per the initial Form CA-7, appellant’s hourly rate on
November 18, 2012 was $22.68 per hour, night differential pay was $2.27 per hour, and Sunday
premium pay was $5.67 per hour. Appellant’s schedule was noted to be a fixed 40 hour per
week schedule, with shifts from 9:30 p.m. to 6:00 a.m. on Sunday, Monday, Tuesday, Friday,
and Saturday. OWCP explained that the weekly base rate was calculated as follows: $22.68 per
hour times 2,087 hours per year equaled $47,333.16 in base wages per year. It noted that
$47,333.16 base wages per year divided by 52 weeks per year equaled a weekly base pay rate of
$910.25.
In its April 29, 2015 decision, OWCP then calculated the weekly premium pay. Night
differential pay of $2.27 per hour times 2,087 hours per year equaled $4,737.49 night differential
pay per year and this figure divided by 52 weeks per year equaled $91.11 weekly night
differential pay. OWCP indicated that Sunday premium pay of $5.67 per hour times the product
of 8 hours per week divided by 40 hours per week was then multiplied by 2,087 hours per year to
derive $2,366.67 in Sunday premium pay per year. The $2,366.67 figure for Sunday premium
pay per year was divided by 52 weeks to equal $45.51 in weekly Sunday premium pay. The total
pay rate was derived by adding the weekly base pay rate, night differential pay, and Sunday
premium pay: $910.25 per week, $91.11 per week, and $45.51 per week equaled a $1,046.87
weekly pay rate.
LEGAL PRECEDENT
Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of his
monthly pay, which is known as his basic compensation for total disability.”5 Section 8101(4) of
FECA defines “monthly pay” for purposes of computing compensation benefits as follows:
“[T]he monthly pay at the time of injury, or the monthly pay at the time disability begins, or the
monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,

5

5 U.S.C. § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).

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whichever is greater....”6 OWCP’s regulations define “disability” as “the incapacity, because of
an employment injury, to earn the wages the employee was receiving at the time of injury.”7
In computing pay rate, section 8114(e) provides for the inclusion of certain premium pay
received and, where the evidence indicates additional amounts received in Sunday premium or
night differential pay fluctuated or may have fluctuated, OWCP determines the amount of
additional pay received during the one-year period prior to injury.8 Section 8114(e)(1) provides
that, in computing an employee’s monthly pay for compensation purposes, overtime pay is not
included.9 OWCP has administratively determined, however, that premium pay for AUO under
5 U.S.C. § 5545(c)(2), is to be included in pay rate calculations.10
The relevant part of section 5545(c)(2) provides:
“The head of an agency, with the approval of the [Office of Personnel
Management (OPM)] may provide that -- an employee in a position in which the
hours of duty cannot be controlled administratively, and which requires
substantial amounts of irregular, unscheduled, overtime duty with the employee
generally being responsible for recognizing, without supervision, circumstances
which require the employee to remain on duty, shall receive premium pay for this
duty on an annual basis instead of premium pay provided by other provisions of
this subchapter, except for regularly scheduled overtime, night, and Sunday duty,
and for holiday duty. Premium pay under this paragraph is an appropriate
percentage, not less than 10 percent nor more than 25 percent, of the rate of basic
pay for the position, as determined by taking into consideration the frequency and
duration of irregular, unscheduled overtime duty required in the position.”11
ANALYSIS
On July 12, 2012 appellant sustained a work-related injury and OWCP accepted sprain of
his right elbow (radial collateral ligament) and forearm, right carpal tunnel syndrome, and lesion
6

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002). The Board has held that if an employee has one recurrence of disability which meets the requirements
of 8101(4), any subsequent recurrence would also meet such requirements and would entitle the employee to a new
recurrence pay rate. Carolyn E. Sellers, 50 ECAB 393 (1999).
7

20 C.F.R. § 10.5(f).

8

5 U.S.C. § 8114(e); Lottie M. Williams, 56 ECAB 302 (2005).

9

Id. at § 8114(e)(1); Calvin E. King, 51 ECAB 394 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.6(b)(7)
(March 2011).
11

5 U.S.C. § 5545(c)(2); see also FECA Program Memorandum No. 106 (issued October 30, 1969) (provides for
inclusion of premium pay in pay rate for compensation purposes under section 5545(c)(2)); FECA Bulletin No. 8926 (issued September 29, 1989) (by administrative determination, pursuant to section 5545(c)(2), OWCP includes
premium pay for AUO in computing compensation).

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of the right radial nerve. He received disability compensation on the daily rolls beginning
November 18, 2012. In September 2014, appellant requested a formal decision with appeal
rights on the issue of his pay rate for compensation purposes. By decision dated April 29, 2015,
OWCP determined that appellant had a weekly pay rate of $1,046.87.
The Board finds that OWCP’s calculation of appellant’s pay rate for compensation
purposes is in need of further development. In order to explain which aspects of OWCP’s pay
rate calculation need development, the Board will discuss the various components of its
calculation.
The Board finds that OWCP properly determined that appellant’s base salary should be
calculated with respect to its amount on the date disability began, November 18, 2012.12 The
Board notes that the record contains a Form CA-7 completed on November 29, 2012 by human
resources official for the employing establishment showing that, at or about the time disability
began November 18, 2012, appellant had a salary at the GS-6/step 7 level which equaled an
hourly base wage of $22.68. OWCP multiplied this figure times 2,087 work hours per year to
derive an annual base salary of $47,333.16 per year.13 However, there is no document in the
record precisely identifying appellant’s annual base salary on November 18, 2012.
On appeal, counsel argued that appellant received “gun up” pay for the 30 minutes he
“armed up” prior to starting work each day and that such pay should be included in the
calculation of his pay rate as AUO.
The Board finds that the record presently does not contain evidence that appellant
received additional pay for AUO of the type described in 5 U.S.C. § 5545(c)(2), in the form of
“gun up” pay or any other form of pay. The type of AUO contemplated by section 5545(c)(2) is
premium pay that is paid on an annual basis as a percentage of an employee’s base pay,
regardless of the actual hours worked.14 The record does not currently show that appellant
received this type pay such that he received AUO pay within the meaning of FECA. As noted
above, any wages appellant might have received for working overtime are to be excluded from
OWCP’s pay rate for compensation purposes determination.15 The Board also notes, however,
that it remains unclear from the record whether OWCP asked the employing establishment if
appellant received AUO in the year prior to his injury.

12

See supra note 6 regarding the pay rate standards of 5 U.S.C. § 8101(4). In the present case, there is no basis
for use of a recurrent pay rate as there was no recurrence beginning “more than six months after the injured
employee resumes regular full-time employment with the United States.” Moreover, there is no indication that
appellant earned more on the date of injury, July 12, 2012, than on the date disability began, November 18, 2012.
See id.
13

The General Accountability Office has determined that the average work year has 2,087 work hours. The
record also contains a Standard Form 50 showing that appellant went from the GS-6/step 6 level to the GS-6/step 7
level on August 14, 2011 and thus had an annual salary of $47,331.00 on that date.
14

See supra notes 10 and 11.

15

See supra note 9; see also M.W., Docket No. 11-0759 (issued September 15, 2011).

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The Board further finds that the matter of appellant’s Sunday premium and night
differential pay, and its inclusion in the calculation of appellant’s pay rate, is also in need of
further development. The Board notes that when there is fluctuation of premium pay, such as
Sunday premium and night differential pay, OWCP determines the amount of additional pay
received during the one-year period prior to injury.16 A human resources official for the
employing establishment indicated on the Form CA-7 appellant completed on November 29,
2012 that appellant had night differential pay of $2.27 per hour and Sunday premium pay of
$5.67 per hour. However, there is no indication in the record whether appellant’s Sunday
premium and night differential pay fluctuated and, if so, how much additional pay in these
categories he received during the one-year period prior to injury. OWCP appears to have based
its calculations on a determination that, in the year prior to the injury, appellant had eight hours of
Sunday premium pay each week and 2,087 hours of night differential pay in total, but it did not
identify the source for these figures. It is not clear from the record that these calculations are
accurate. For example, with regard to the calculation of Sunday premium pay, there is some
suggestion in the record that appellant might have received 16 hours of Sunday premium pay for
each Sunday worked.
Under FECA, although it is the burden of an employee to establish his or her claim,
OWCP also has a responsibility in the development of the factual evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.17 Therefore, the case shall be remanded to OWCP for further development
of appellant’s pay rate for compensation purposes in accordance with this decision of the Board.
After carrying out this development, OWCP shall issue a de novo decision regarding appellant’s
pay rate.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly determined appellant’s pay rate for compensation purposes.

16

See supra note 8.

17

Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: July 1, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Reno, NV, Employer
__________________________________________

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

Docket No. 15-1661
Issued: November 3, 2015

Case Submitted on the Record

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

JURISDICTION
On August 3, 2015 appellant filed a timely appeal from a March 19, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability from May 1 to 12, 2014 causally related to the accepted February 21,
2010 employment injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 19, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
On March 1, 2010 appellant, then a 51-year-old carpenter, filed a traumatic injury claim
(Form CA-1) alleging that on February 21, 2010 he strained his left knee when he was removing
snow from the premises of the employing establishment. He did not stop work.
Appellant was initially examined in the hospital by Dr. Frederick S. Drach, Boardcertified in emergency medicine. In a February 22, 2010 report, Dr. Drach related that appellant
injured his left knee the previous day when on a snow removal crew. Appellant noted that he
continued to experience pain and difficulty ambulating. Upon examination of his left knee,
Dr. Drach observed no redness, effusion, or swelling. Range of motion was full with occasional
pain in the lateral joint space. Dr. Drach noted no pain in the joint space on palpation and no calf
swelling or Baker’s cyst. He reported that appellant had a left knee injury and advised minimal
weight bearing.
OWCP accepted appellant’s claim for left knee sprain and left knee chondromalacia
patellae. Appellant continued to receive medical treatment from Dr. Anthony E. Twite, a Boardcertified orthopedic surgeon, and Dr. William R. Ford, a Board-certified orthopedic surgeon. No
medical evidence was received by OWCP from 2010 to 2014.
On May 31, 2014 appellant filed a recurrence claim alleging that on May 1, 2014 he
sustained a recurrence of the February 21, 2010 employment injury. He stopped work and
returned on May 12, 2014. Appellant indicated that since the original injury he had worked light
duty. Appellant’s supervisor noted on the claim form that appellant was given modified duty
although no medical documents were provided which indicated that modified duty was
necessary. The employing establishment also asserted that there was no evidence to demonstrate
that his current condition was related to the February 21, 2010 employment injury.
By letter dated June 12, 2014, OWCP advised appellant that no evidence was submitted
to establish his recurrence claim. It requested that he submit additional evidence to substantiate
the factual elements of his claim and additional medical evidence to establish that he was unable
to work as a result of his February 21, 2010 employment injury.
On March 2, 2014 appellant underwent a magnetic resonance imaging (MRI) scan by
Dr. Mitchell N. Terrill, a Board-certified diagnostic radiologist. He reported that appellant had a
tear of the medial meniscus with displacement from midline and small associated contusion,
intrameniscal degeneration of lateral meniscus, and low grade chondromalacia patella.
In a March 14, 2014 report, Dr. William J. Gray, a Board-certified orthopedic surgeon,
related that appellant worked as a maintenance man and injured his left knee three or four years
ago. He noted that appellant now complained of a three-month long history of knee clicking and
feeling very unstable. Appellant denied any injury or new pain but explained that he had lost
confidence in his knee. Upon examination of the left knee, Dr. Gray observed tenderness along
both the medial and lateral joint line. Range of motion was to 130 degrees. Dr. Gray indicated
that there was no significant edema or effusion. Medial McMurray’s test was positive. Dr. Gray
reviewed appellant’s history and noted that a March 2, 2014 MRI scan of the left knee revealed
evidence of chondrocalcinosis and a tear of the posterior horn of the medial meniscus. He

2

diagnosed symptomatic medial meniscus tear and left knee chondrocalcinosis. Dr. Gray
indicated that appellant was not experiencing much pain but was concerned about the sensation
of instability. He reported that appellant decided to proceed with surgery.
On May 2, 2014 appellant underwent left knee arthroscopy and partial medial
meniscectomy.
In an August 7, 2014 decision, OWCP denied appellant’s recurrence of disability claim.
It found that the medical evidence was insufficient to establish that he had disability due to a
change or worsening of his accepted February 21, 2010 work-related conditions.
On August 19, 2014 OWCP received appellant’s request for a review of the written
record by an OWCP hearing representative. Appellant stated that from the time of his
February 21, 2010 employment-related knee injury until his most recent surgery in May 2014 he
was not informed by any of his supervisors or given any information regarding his rights and
procedures for workers’ compensation. He indicated that he was enclosing a CD of his records
regarding his February 21, 2010 knee injury.
By decision dated March 19, 2015, an OWCP hearing representative affirmed the
August 7, 2014 decision. He noted that appellant had submitted a CD which contained the
March 2, 2014 MRI scan study. The hearing representative concluded that appellant had not met
his burden of proof to establish that his current left knee conditions were causally related to the
accepted employment injury.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.3
Appellant has the burden of proof to establish by the weight of the substantial, reliable,
and probative evidence, a causal relationship between his recurrence of disability and the
accepted employment injury. This burden includes the necessity of furnishing medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.4
ANALYSIS
OWCP accepted that on February 21, 2010 appellant sustained a left knee sprain and
chondromalacia patellae as a result of removing snow from the employing establishment’s

3

20 C.F.R. § 10.5(x).

4

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

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premises.5 On May 1, 2014 appellant filed a recurrence of disability claim alleging that he did
not work from May 1 to 12, 2014 as a result of his February 21, 2010 employment injury.
OWCP denied his claim finding insufficient medical evidence to establish that his current left
knee condition and inability to work from May 1 to 12, 2014 was a result of the February 21,
2010 employment injury.
The Board finds that appellant has not established that he sustained a recurrence of
disability from May 1 to 12, 2014 causally related to his accepted employment injury.
Appellant received medical treatment from Dr. Gray who noted in a March 14, 2014
report that appellant worked as a maintenance man and injured his left knee three or four years
ago. Dr. Gray indicated that appellant was not claiming a new injury. Upon examination of the
left knee, he observed tenderness along both the medial and lateral joint line and range of motion
to 130 degrees. Dr. Gray reported that there was no significant edema or effusion. A
McMurray’s test was positive. Dr. Gray diagnosed symptomatic medial meniscus tear and left
knee chondrocalcinosis.
The Board notes that Dr. Gray provided examination findings and medical diagnoses
which were different than the accepted left knee conditions. Dr. Gray did not discuss whether
appellant’s current diagnoses and his inability to work were causally related to the February 21,
2010 employment injury. He also did not provide an opinion as to whether appellant’s accepted
left knee condition had worsened to cause the newly diagnosed conditions and inability to work.
As such, Dr. Gray has not substantiated that appellant sustained a spontaneous change in the
accepted medical conditions, causing disability from work.
Similarly, Dr. Terrill, in the March 2, 2014 MRI scan report, did not provide any opinion
on the cause of the diagnosed tear of appellant’s left knee medical meniscus, intrameniscal
degeneration of the lateral meniscus, and low grade chondromalacia. He also did not provide
any opinion regarding appellant’s inability to work. As previously noted, when establishing a
recurrence of disability an employee has the burden of proof to demonstrate that he or she has a
disabling condition which was caused by the accepted injury.6 Appellant has not provided any
such evidence in this case. Therefore, the Board finds that appellant did not meet his burden of
proof to establish that he was unable to work from May 1 to 12, 2014 due to his February 21,
2010 employment injury.
On appeal appellant described the February 21, 2010 employment injury. He asserted
that the VA medical records demonstrated that he continued to have problems with his knees and
5

While appellant performed modified work duties following the accepted injury, the employing establishment
has explained that medical evidence had never been submitted which substantiated a need for light work. The term
“recurrence” 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 is withdrawn or
when the physical requirements of such an assignment are altered so that they exceed appellant’s established
physical limitations. The record does not substantiate that appellant’s light-duty assignment was made specifically
to accommodate appellant’s work-related physical restrictions.
See L.F., Docket No. 15-1069 (issued
August 12, 2015).
6

Supra note 4.

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required shots and anti-inflammatory drugs in order to work. Appellant alleged that his left knee
worsened so he sought treatment from Dr. Gray who concluded that there was sufficient damage
done to his knee from the February 21, 2010 employment injury to require surgery. He also
noted that he was unaware that he had to make sure his employing establishment knew that his
claim was not settled. Although appellant has asserted that Dr. Gray determined that his current
knee condition was related to the February 2010 left knee injury, he does not provide any
medical evidence to establish this assertion. As previously noted above, Dr. Gray’s March 14,
2014 report is insufficient to establish that appellant was unable to work from May 1 to 12, 2014
causally related to the February 21, 2010 employment injury. Appellant also received treatments
from Drs. Drach, Twite, and Ford. None of their reports address the issue of causation relating
his symptoms to his original injury on March 1, 2010.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a recurrence of disability from May 1 to 12, 2014 causally related to the February 21,
2010 employment injury.

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ORDER
IT IS HEREBY ORDERED THAT the March 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, DISTRIBUTION
CENTER, San Francisco, CA, Employer
__________________________________________

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

Docket No. 16-1715
Issued: May 15, 2017

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 August 24, 2016 appellant filed a timely appeal from an April 1, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from March 24, 2015, the date of the most recent merit decision, to the filing of this
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.
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.
FACTUAL HISTORY
On March 7, 2003 appellant, then a 55-year-old mark-up clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed pain in her hands, wrists, arms,
1

5 U.S.C. § 8101 et seq.

shoulders, neck, and back as a result of repetitive keyboard use. She was assigned modified
work on March 7, 2003. On March 21, 2003 OWCP accepted appellant’s claim for bilateral
wrist tendinitis.
On August 24, 2006 OWCP granted appellant a schedule award for 46 percent permanent
impairment of her bilateral upper extremities.
OWCP accepted the additional condition of left shoulder tendinitis on August 24, 2007.
On February 3, 2009 OWCP granted appellant an additional award for 13 percent
permanent impairment of her left upper extremity, for a total of 36 percent permanent
impairment of the left upper extremity.
On October 21, 2009 OWCP accepted right shoulder impingement syndrome.
In a report dated April 22, 2013, Dr. Robert Harrison, Board-certified in occupational
medicine, rendered 13 percent permanent impairment rating for appellant’s upper extremities on
the basis of a bilateral shoulder labral tear and 2 percent upper extremity permanent impairment
rating on the basis of bilateral carpal tunnel syndrome. The date of maximum medical
improvement (MMI) was April 1, 2013.
A district medical adviser (DMA) reviewed Dr. Harrison’s report on May 19, 2013. She
noted that he had not applied the modifiers correctly for appellant’s shoulders. The DMA noted
that the total permanent impairment of the right upper extremity equaled two percent and the left
upper extremity equaled nine percent under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). She further
noted that this represented no additional impairment, given appellant’s previous schedule
awards.
By decision dated August 7, 2013, OWCP denied an additional schedule award for
appellant’s bilateral shoulder conditions or carpal tunnel syndrome.
On March 3, 2014 appellant requested reconsideration of OWCP’s August 7, 2013
decision. With her request, she provided a December 19, 2013 report from Dr. Harrison. Using
the A.M.A., Guides, he calculated that appellant had 13 percent upper extremity permanent
impairment due to shoulder impingement and 2 percent upper extremity permanent impairment
due to bilateral carpal tunnel syndrome.
On May 27, 2014 OWCP reviewed the merits of appellant’s claim and denied
modification of its August 7, 2013 decision. It noted that the December 19, 2013 report from
Dr. Harrison was similar to his April 22, 2013 report and failed to provide an additional
percentage of impairment.
On September 23, 2014 appellant requested reconsideration of OWCP’s May 27, 2014
decision. With her request, she submitted a letter from Dr. Harrison, which again provided an
impairment rating of 13 percent for appellant’s right shoulder.

2

By decision dated March 24, 2015, OWCP reviewed the merits of appellant’s claim and
denied modification of its May 27, 2014 decision. It noted that appellant had no additional
permanent impairment beyond the previously awarded 36 percent permanent impairment of the
right upper extremity and 23 percent permanent impairment of the left upper extremity.
On April 14, 2015 appellant requested reconsideration of OWCP’s March 24, 2015
decision. She included with her request a letter outlining her restrictions and requesting an
additional schedule award.
By decision dated June 11, 2015, OWCP denied appellant’s request for reconsideration,
finding that she had not submitted any new and relevant evidence with her request.
On June 16, 2015 appellant again requested reconsideration of OWCP’s March 24, 2015
decision. With her request, she attached a June 8, 2015 note from Dr. Harrison, which discussed
a physical examination and appellant’s work restrictions.
By decision dated June 25, 2015, OWCP denied appellant’s request for reconsideration.
It noted that the June 8, 2015 note from Dr. Harrison did not provide an impairment rating.
On March 28, 2016 appellant again requested reconsideration of OWCP’s March 24,
2015 decision. She noted that her physician had rendered seven percent permanent impairment
rating and argued that her left and right shoulder injuries should have been considered separate
claims. Appellant attached a September 21, 2015 report from Dr. Abdullah Khafagy, a specialist
in preventative medicine, including the results of an examination and discussion of her work
restrictions. Dr. Khafagy stated that appellant had intermittent numbness and tingling in all
digits, as well as weakness. He diagnosed her with bilateral shoulder impingement; bilateral
carpal tunnel syndrome; tenosynovitis of the hand and wrist; bilateral unspecified disorders of
the bursae and tendons of the shoulder region; and rotator cuff syndrome. On examination
Dr. Khafagy noted that appellant had limited range of motion of the bilateral wrists. He further
noted limited range of motion of the fingers of the right hand, and normal range of motion of the
fingers of the left hand. Dr. Khafagy observed that appellant’s right shoulder was not aligned
and drooped compared to the left. Both the left and right shoulders had limited range of motion,
greater on the right than the left.
By decision dated April 1, 2016, OWCP denied appellant’s request for reconsideration.
It found that her request was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.2 The Board has found that the imposition of the one-year

2

20 C.F.R. § 10.607(a).

3

limitation does not constitute an abuse of the discretionary authority granted to OWCP under
section 8128(a) of FECA.3
OWCP may not deny an application for review solely on the grounds that the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.4 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise, and explicit, and must
manifest on its face that OWCP committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.10
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.11 In order to establish clear evidence of error, the evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or
establish a clear procedural error, but must be of sufficient probative value to prima facie shift
the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.12

3

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

4

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

5

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5(a) (February 2016). OWCP’s procedures further provides, “The term ‘clear evidence of error’ is intended
to represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate.”
6

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

7

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

8

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

9

See Leona N. Travis, supra note 7.

10

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

11

See Pete F. Dorso, 52 ECAB 424, 427 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

12

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

4

ANALYSIS
In the present case, OWCP issued a merit decision with respect to a schedule award dated
March 24, 2015. Appellant submitted a request for reconsideration that was received on
March 28, 2016. When the underlying compensation issue is a schedule award, an initial
question is whether the claimant is requesting reconsideration or claiming an increased schedule
award. Even if appellant has requested reconsideration, if there is new and relevant evidence
with respect to an increased permanent impairment, then a claimant may be entitled to a merit
decision on the issue,13 but when a claimant does not submit any relevant evidence with respect
to an increased schedule award, then OWCP may properly determine that appellant has filed an
application for reconsideration of a schedule award decision.14 In this case, she did not submit
any relevant evidence with respect to an increased permanent impairment, and therefore OWCP
properly considered her submission as an application for reconsideration.
In its April 1, 2016 decision, OWCP properly determined that appellant failed to file a
timely application for review. Its regulations provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP merit decision.15
Appellant’s request for reconsideration was received on Monday, March 28, 2016, four days
after the one-year deadline of March 24, 2016. Because her request was untimely filed, she must
demonstrate clear evidence of error on the part of OWCP in issuing its March 24, 2015 decision.
The Board finds that appellant has failed to demonstrate clear evidence of error on the
part of OWCP in issuing its March 24, 2015 decision. Appellant did not submit the type of
positive, precise, and explicit evidence manifesting on its face that OWCP committed an error.
With her request for reconsideration, appellant submitted a report from Dr. Khafagy,
which did not provide an impairment rating or a date of MMI. This report did not evaluate
appellant’s permanent impairment pursuant to the A.M.A., Guides.16 This report, therefore, did
not establish that appellant’s prior schedule award was clearly erroneous, or that she might be
entitled to an additional schedule award.17 As such, it does not raise a substantial question
regarding the degree of appellant’s permanent impairment. Appellant’s own statement, which
was not medical evidence, also does not establish that the previous schedule awards were clearly
erroneous.18
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s March 24, 2015 decision, and OWCP properly
determined that appellant did not demonstrate clear evidence of error in that decision.
13

See Linda T. Brown, 51 ECAB 115 (1999).

14

See W.J., Docket No. 12-1746 (issued February 5, 2013).

15

20 C.F.R. § 10.607(a).

16

J.M., Docket No. 15-1634 (issued September 16, 2016).

17

Id., see also K.D., Docket No. 15-524 (issued August 3, 2015).

18

Supra note 16.

5

Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
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 April 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2017
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Mitchell, KY, Employer
__________________________________________

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

Docket No. 10-2281
Issued: June 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On September 10, 2010 appellant filed a timely appeal of a March 24, 2010 Office of
Workers’ Compensation Programs’ merit decision granting a schedule award. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than two percent impairment of her right leg for
which she received a schedule award.
On appeal, appellant contends that she should have received the same impairment rating
for her right leg as her left.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 6, 2004 appellant, then a 39-year-old distribution clerk, filed an
occupational disease claim alleging that she developed plantar fasciitis in the left foot and heel.
She underwent a magnetic resonance imaging (MRI) scan of the left foot on February 2, 2004
which demonstrated findings consistent with plantar fasciitis, but no complete disruption of the
plantar fascia and longitudinal splitting peroneus brevis. The Office accepted appellant’s claim
for left foot plantar fasciitis on April 9, 2004. On December 14, 2004 Dr. Matthew G.
Enzweiller, a podiatrist, performed a bilateral partial plantar fasciectomy. By decision dated
January 30, 2007, the Office granted appellant a schedule award for five percent impairment of
the left leg. Appellant requested reconsideration on May 31, 2007. By decision dated June 22,
2007, the Office denied further consideration of the merits.
Appellant filed a notice of recurrence of disability on October 31, 2006 and alleged that
her foot condition never improved. She filed a claim for compensation and requested a schedule
award on May 29, 2007 for her right foot. On June 13, 2007 the Office explained that
appellant’s left foot condition was open for medical treatment and that her work-related
condition had been accepted for her left foot only.
On March 14, 2008 appellant filed a claim for compensation for a schedule award. She
again requested a schedule award for her right foot. Appellant filed a notice of occupational
disease on June 16, 2008 alleging that she developed a consequential right foot condition as a
result of her accepted left foot plantar fasciitis. By decision dated January 9, 2009, the Office
accepted right foot plantar fasciitis as related to her federal employment.
Appellant filed a claim for compensation requesting a schedule award on July 13, 2009
for her right foot. She submitted a report from Dr. Enzweiller dated October 23, 2009 finding
that appellant had reached maximum medical improvement on January 12, 2006. Dr. Enzweiller
reported that appellant exhibited 5 to 10 degrees of dorsiflexion with normal strength and no
evidence of atrophy. He noted that appellant had pain with walking and occasional swelling.
Dr. Enzweiller opined that appellant had 10 percent impairment to the whole person due to pain
affecting her gait.
The Office medical adviser reviewed the medical evidence on January 15, 2010 and
found that appellant had two percent impairment of the right leg. He completed a worksheet
complying with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.2 Appellant’s diagnosed condition of plantar fasciitis had a default
grade of one percent impairment.3 The Office medical adviser found appellant’s functional
history and physical history each warranted a grade modifier of two. Applying the appropriate

2

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

A.M.A., Guides 501, Table 16-2.

2

formula, he determined that appellant had a class 1E or two percent impairment of the right
lower extremity.
By decision dated March 24, 2010, the Office granted appellant a schedule award for two
percent impairment of the right lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of the Office. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The Office evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides.
The Act does not authorize the payment of schedule awards for the permanent
impairment of the whole person.6 Payment is authorized only for the permanent impairment of
specified members, organs or functions of the body. Because neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the whole person
no claimant is entitled to such an award.7
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and the Office may rely on the opinion
of its medical adviser to apply the A.M.A., Guides to the findings of the attending physician.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9

4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

Ernest P. Govednick, 27 ECAB 77 (1975).

7

Timothy J. McGuire, 34 ECAB 189 (1982).

8

Linda Beale, 57 ECAB 429 (2006).

9

A.M.A., Guides 411.

3

ANALYSIS
Appellant requested a schedule award for her right leg and submitted a report from her
attending physician, Dr. Enzweiller, who found that she had reached maximum medical
improvement. Dr. Enzweiller found dorsiflexion of 5 to 10 degrees, normal strength and no
atrophy. He reported pain and occasional swelling. Dr. Enzweiller rated 10 percent impairment
to the whole person. This report does not comport with the A.M.A., Guides. Dr. Enzweiller did
not provide any citations to the A.M.A., Guides or explain his findings in the terms of the
A.M.A., Guides. As noted, the Act does not provide for impairment ratings to the whole person.
Due to these deficiencies, Dr. Enzweiller’s impairment rating is of diminished probative value
and does not support appellant’s claim to a schedule award in the amount listed.
The Office medical adviser reviewed the medical evidence on January 15, 2010. He
agreed with the diagnosis of right plantar fasciitis and provided an impairment rating. The
A.M.A., Guides provide that plantar fasciitis is a class one condition when significant consistent
palpatory findings or radiographic findings are present.10 The Office medical adviser completed
the appropriate formula11 finding that appellant had a functional history adjustment of grade 2
modifier due to a limp, a moderate problem.12 He also found that appellant had a physical
history adjustment of grade 2 modifier due to moderate palpatory findings consistently
documented. The Office medical adviser noted that clinical studies adjustment was not
applicable. Applying the appropriate formula, he concluded that appellant had a class 1E or two
percent impairment of the right lower extremity.13 The Board finds that the weight of the
medical evidence establishes that appellant has no more than two percent impairment of her right
lower extremity for which she received a schedule award.14
On appeal, appellant argued that her schedule award for the right leg should be the same
as that she received for her left leg. In Harry D. Butler,15 the Board noted that Congress
delegated authority to the Director regarding the specific methods by which permanent
impairment is to be rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as
a uniform standard applicable to all claimants and the Board has concurred in the adoption.16 On
March 15, 2009 the Director exercised authority to advise that as of May 1, 2009 all schedule

10

Id. at 501, Table 16-2.

11

Id. at 521.

12

Id. at 516, Table 16-6.

13

Id. at 501, Table 16-2.

14

For new decisions issued after May 1, 2009, the Office began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
15

43 ECAB 859 (1992).

16

Id. at 866.

4

award decisions of the Office should reflect use of the sixth edition of the A.M.A., Guides.17
The applicable date of the sixth edition is as of the schedule award decision reached. It is not
determined by either the date of maximum medical improvement or when the claim for such
award was filed. The Board finds that the Office applied the appropriate edition of the A.M.A.,
Guides to appellant’s request for a schedule award and, as noted above, the medical evidence
properly correlated with the A.M.A., Guides does not support more than two percent impairment
of the right lower extremity.
CONCLUSION
The Board finds that appellant has not established that she has more than two percent
impairment of her right lower extremity for which she has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hendersonville, NC, Employer
__________________________________________

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

Docket No. 13-2163
Issued: March 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 23, 2013 appellant filed a timely appeal from the May 9, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review this decision.
ISSUE
The issue is whether appellant sustained an occupational disease in the performance of
duty.
FACTUAL HISTORY
On December 13, 2012 appellant, a 54-year-old rural carrier, filed an occupational
disease claim alleging that the bone-to-bone condition of her left thumb was a result of her
federal employment: “The more I hold mail, left hand, the more it hurt and would swell. Very
1

5 U.S.C. § 8101 et seq.

sharp, stinging pains, weakness, dropping mail at times. Couldn’t get relief, so I went to doctor.”
She indicated that she first became aware of this condition on July 27, 2012.
On July 27, 2012 Dr. James S. Thompson, a Board-certified orthopedic surgeon, saw
appellant for a left thumb problem that started one and a half years earlier while putting new
z-chains on in snow. Appellant’s left hand slipped and rammed into the tire. She had pain and
weakness in the thumb and using it at work was painful. Dr. Thompson diagnosed osteoarthritis,
primary, any joint of the hand including the carpometacarpal joint of the thumb. He also found a
probably healing fracture at the base of the first metacarpal, superimposed on trapeziometacarpal
arthrosis.
Dr. Christopher T. Lechner, a Board-certified orthopedic hand surgeon and associate of
Dr. Thompson, saw appellant on October 25, 2012. He noted that she was a mail carrier who
complained that constant pinching with the left thumb and index finger over time had caused
pain and swelling. Dr. Lechner diagnosed carpometacarpal arthritis, left thumb, chronic “and
related to her work as a mail carrier.”
Dr. Lechner completed an attending physician’s form report on November 5, 2012. He
indicated with an affirmative mark that appellant’s diagnosis was caused or aggravated by
employment activity.
The employing establishment confirmed that appellant did use her hands and thumbs as a
letter carrier, “as in other activities in her daily life that are not work related.” It provided a
position description describing the duties and responsibilities of a rural carrier.
In a decision dated May 9, 2013, OWCP denied appellant’s claim for compensation. It
found that she failed to establish the element of fact of injury. The evidence did not support that
the injury or events occurred as alleged, and even if it did, appellant did not submit any medical
evidence to establish that her diagnosed medical condition was causally related to the work
injury or events.
On appeal, appellant explains that the incident with the z-chains happened in 2003 and
involved her right thumb, not her left. There was never an injury to her left thumb from an
accident, only constant use from being a mail carrier 6 days a week for over 20 years.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or

2

5 U.S.C. § 8102(a).

2

exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS
Appellant attributes her left thumb condition to the duties she performed as a rural
carrier, in particular, using her left hand to hold mail. There is no dispute that she performed
such activities at work. The employing establishment confirmed that she did use her hands and
thumbs as a letter carrier. The activities appellant described were consistent with the position
description the employing establishment presented. Accordingly, the Board finds that appellant
has met her burden to establish that she experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged.
The issue is whether such work activities as holding mail with her left hand caused or
aggravated any diagnosed medical condition. The medical opinion evidence submitted in this
case offers some support. Dr. Thompson, the orthopedic surgeon, related appellant’s history that
using her left thumb at work was painful, but he offered no opinion on the element of causal
relationship. His associate, Dr. Lechner, the orthopedic hand surgeon, found that appellant’s
chronic left thumb carpometacarpal arthritis was “related to her work as a mail carrier.” In his
attending physician’s form report, he indicated with an affirmative mark that appellant’s
diagnosis was caused or aggravated by employment activity.
However, Dr. Lechner offered no medical rationale to support his opinion. As the Board
noted earlier, any opinion on causal relationship must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the established
incident or factor of employment. Dr. Lechner did not discuss from an orthopedic perspective
how holding mail in the left hand, or any other employment activity, caused or aggravated to the
diagnosed arthritis, or on what basis he could make such a determination.

3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

Medical conclusions unsupported by rationale are of little probative value.8 As
Dr. Lechner did not support his opinion with sound medical reasoning, the Board finds that
appellant has not met her burden to establish the critical element of causal relationship. The
Board will therefore affirm the May 9, 2013 decision denying her claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained an
occupational disease in the performance of duty. The medical opinion evidence, although
supportive, is insufficiently rationalized to establish the element of causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 19, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3