United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrisburg, PA, Employer
__________________________________________

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

Docket No. 12-1098
Issued: September 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 23, 2012 appellant filed a timely appeal from a December 15, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and an April 6, 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 met his burden of proof to establish that he
sustained a right foot injury in the performance of duty on February 3, 2011; and (2) whether
OWCP properly denied his request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 23, 2011 appellant, then a 60-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 3, 2011 he sustained a right foot and heel injury
when he was walking his route and felt pain. He notified his supervisor on February 23, 2011.
In medical reports dated February 8 to March 30, 2011, appellant’s attending physician,
Dr. Marc Frankel, a podiatrist, reported that appellant complained of right heel foot pain, worse
when he would step down, plantar medial, poststatic dyskinesia. He noted that appellant’s x-ray
of the right foot revealed normal findings and an ultrasound examination revealed inflammation
of the proximal plantar fascia. Dr. Frankel diagnosed unspecified fasciitis, calcaneal spur,
contracture of ankle and foot joint, pain in soft tissues of the limbs, nontraumatic rupture of other
tendons of the foot and ankle and unspecified enthesopathy of the ankle and tarsus.
In a February 18, 2011 attending physician’s report (Form CA-20), Dr. Frankel stated
that appellant complained of heel pain which began while he was at work. He noted no history
of preexisting injuries and diagnosed plantar fasciitis. Dr. Frankel checked the box marked “yes”
when asked if he believed the condition was caused or aggravated by appellant’s employment
activity.
By letter dated April 13, 2011, OWCP requested additional factual and medical evidence
from appellant and asked that he respond to the provided questions within 30 days.
In an April 16, 2011 narrative statement, appellant reported that while he was walking his
morning postal route he stepped down and felt pain in his right foot. He finished his tour and
took Motrin at home. Appellant noted that he did not play any sports and did not have any prior
lower extremity conditions.
In medical reports dated April 14 to 21, 2011, Dr. Frankel diagnosed unspecified fasciitis
and pain in soft tissues of the limb. He stated that appellant was released to return to work on
April 22, 2011 with no restrictions.
By decision dated May 19, 2011, OWCP denied appellant’s claim finding that the
medical evidence of record failed to establish that his foot and ankle conditions were causally
related to the accepted February 3, 2011 employment incident.
On May 27, 2011 appellant requested review of the written record before the Branch of
Hearings and Review.
Appellant submitted a May 24, 2011 medical report from Dr. Frankel, who stated that he
disagreed with the May 19, 2011 decision. Dr. Frankel stated that appellant had a severe case of
plantar fasciitis which resulted in micro tears of the ligament and was a chronic rupturing of the
ligamentous fibers. He stated that it is was well known as an overuse injury which was typically
exacerbated by occupations that included long periods of standing, walking, climbing ladders,
etc. At times, plantar fasciitis was an insidious process that developed over time, without a
specific acute event that a particular patient could reference. Dr. Frankel noted that typically,
patients who develop this occupational-type injury continued working until he or she no longer
could. Although it was impossible to develop a causal relationship in many medical conditions,
2

appellant’s plantar fasciitis was the result of his postal work. Dr. Frankel concluded that there
was nothing else in appellant’s medical history that could possibly be a contributing factor to the
development of a severe case of ligamentous injury other than his postal work.
By decision dated December 15, 2011, the hearing representative affirmed the May 19,
2011 decision finding that the medical evidence of record failed to establish that appellant’s right
foot condition was causally related to the accepted February 3, 2011 employment incident. He
found that Dr. Frankel’s May 24, 2011 report described appellant’s condition as arising over a
period of time and that appellant could file an occupational disease claim if he attributed his
condition to long periods of walking or standing.
By letter dated January 9, 2012, appellant requested reconsideration of the December 15,
2011 OWCP decision. He stated that, prior to February 3, 2011, he did not have any medical
issues with his right foot and sustained his injury while walking on his route. Appellant
contended that Dr. Frankel’s reports were sufficient to establish causal relation. No new
evidence was submitted to the record.
By decision dated April 6, 2012, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, supra note 2.

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a causal relationship.5 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
OWCP accepted that the February 3, 2011 employment incident occurred as alleged. The
issue is whether appellant established that walking his route that day caused his right foot injury.
The Board finds that he did not submit sufficient medical evidence to support that his plantar
fasciitis injury is causally related to the February 3, 2011 employment incident.7
In medical reports dated February 8 to May 24, 2011, Dr. Frankel noted that appellant
complained of right foot pain. Upon physical examination and review of diagnostic testing, he
diagnosed plantar fasciitis, calcaneal spur, contracture of ankle and foot joint, pain in soft tissues
of the limbs, nontraumatic rupture of other tendons of the foot and ankle and unspecified
enthesopathy of the ankle and tarsus. In a February 18, 2011 Form CA-20, Dr. Frankel
diagnosed plantar fasciitis and noted that appellant complained of heel pain which began while
he was at work. He checked the box marked “yes” when asked if he believed the condition was
caused or aggravated by appellant’s employment activity.
In his May 24, 2011 report, Dr. Frankel stated that appellant had a severe case of plantar
fasciitis which resulted in micro tears of the ligament and represented a chronic rupturing of the
ligamentous fibers. He described it as an overuse injury which was typically exacerbated by
occupations that included long periods of standing and walking. Plantar fasciitis was an
insidious process that developed over time, without a specific acute event that a particular patient
could reference. Dr. Frankel noted that typically, patients who developed this occupational
injury continued working until he or she no longer could. Although it was impossible to develop
a causal relationship in many medical conditions, appellant’s plantar fasciitis was the result of
his postal work. Dr. Frankel concluded that there was nothing else in the medical history that
could possibly be a contributing factor to appellant developing the ligamentous injury and his
injury was a result of his postal work.
The Board finds that the opinion of Dr. Frankel is not well rationalized. While
Dr. Frankel diagnosed plantar fasciitis, he failed to adequately address how the accepted
February 3, 2011 incident was competent to cause or contribute to the foot injury. He provided
an opinion that appellant’s right foot injury was a result of his postal work over a long period of
5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

See Robert Broome, 55 ECAB 339 (2004).

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time but did not provide any details describing the February 3, 2011 employment incident or
what duties appellant was performing on that date. Dr. Frankel’s May 24, 2011 report notes that
plantar fasciitis could be exacerbated by occupations that included long periods of standing and
walking. This speaks to an occupational disease over multiple shifts rather than a traumatic
injury. Dr. Frankel attributed appellant’s injury to an occupational injury produced by
appellant’s work environment over a period longer than a single workday or shift rather than an
injury from a single occurrence within a single workday as alleged by appellant in this claim.8
His medical reports are not well explained on this aspect of causal relation. They do not support
appellant’s claim that he sustained a traumatic injury on February 3, 2011. Medical reports
without adequate rationale on causal relationship are of diminished probative value and do not
meet an employee’s burden of proof.9 The opinion of a physician supporting causal relationship
must rest on a complete factual and medical background supported by affirmative evidence,
address the specific factual and medical evidence of record and provide medical rationale
explaining the relationship between the diagnosed condition and the established incident or
factor of employment.10 Without adequate medical reasoning explaining how the February 3,
2011 employment incident caused or contributed to his injuries, Dr. Frankel’s reports are
insufficient to meet appellant’s burden of proof.11
As noted by the hearing representative, if appellant is alleging that his injury was
produced by his work environment over a period longer than a single workday or shift, he should
file a claim of occupational disease, and submit rationalized medical evidence from a physician
which describes his employment duties and provides an explanation on how these duties caused
him injury.12
In the instant case, the record lacks sufficient medical evidence to establish a causal
relationship between the February 3, 2011 employment incident and appellant’s plantar fasciitis.
Thus, appellant has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
8

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
9

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

10

See Lee R. Haywood, 48 ECAB 145 (1996).

11

C.B., Docket No. 08-1583 (issued December 9, 2008).

12

See supra note 10.

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argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.13 Section 10.608(b) of OWCP regulations
provide that, 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.14
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his January 9, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s argument was that his injury was employment related and he
referenced Dr. Frankel’s reports which were previously considered and addressed by OWCP.
The underlying issue in this case was whether his injury was causally related to the accepted
February 3, 2011 employment incident. That is a medical issue which must be addressed by
relevant medical evidence.15 A claimant may obtain a merit review of an OWCP decision by
submitting new and relevant evidence. In this case, appellant failed to submit any new and
relevant evidence addressing causal relationship.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on February 3, 2011 in the performance of duty, as alleged. OWCP
properly denied appellant’s request for reconsideration without a merit review.

13

D.K., 59 ECAB 141 (2007).

14

K.H., 59 ECAB 495 (2008).

15

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

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated April 6, 2012 and December 15, 2011 are affirmed.
Issued: September 19, 2012
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Fort Worth, TX, Employer
__________________________________________

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Appearances:
Sarah Toben, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0395
Issued: October 23, 2020

Case Submitted on the Record

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

JURISDICTION
On December 10, 2019 appellant, through counsel, filed a timely appeal from a June 17,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated March 15, 2018, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the June 17, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On January 30, 2018 appellant, then a 49-year-old plate printer, filed an occupational
disease claim (Form CA-2) alleging that, due to factors of his employment, he suffered soreness
and lower back pain one day after cleaning the floor at work. He noted that he first became aware
of his condition on December 3, 2017 and first realized its relation to factors of his federal
employment on December 4, 2017. Appellant did not stop work.
In a February 1, 2018 letter, the employing establishment controverted appellant’s claim,
asserting that his injury was not work related. It indicated that he had informed a human resources
(HR) workers’ compensation specialist on January 24, 2018 that he had awoken on December 5,
2017 with sharp back pain, which he knew was not work related. The employing establishment
further noted that appellant had informed them that his physician, a Dr. Herrera, had told him that
he had a herniated disc due to aging and not due to work, after he underwent a magnetic resonance
imaging (MRI) scan. It also asserted that the medical evidence of record was insufficient to
establish causal relationship.
In a February 2, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. In a separate letter of even date,
OWCP notified the employing establishment of appellant’s occupational disease claim and
requested additional information from a knowledgeable supervisor. It afforded both parties 30
days to submit the necessary evidence.
On February 7, 2018 the employing establishment responded to OWCP’s development
letter. It noted that it was unaware of any work-related cause for appellant’s back condition. The
employing establishment further indicated that he called-in sick on December 4, 2017 and was off
work for several weeks due to his back condition.
In a February 26, 2018 report, Dr. Marvin Van Hal, a Board-certified orthopedic surgeon,
noted that appellant presented for follow up after a transforaminal epidural steroid injection
administered on February 16, 2018. He opined that appellant’s lumbar radicular pain appeared to
be aggravated by his work activities. Dr. Van Hal diagnosed lumbar strain, disc protrusion and
herniation at the L4-L5 and L5-S1 levels, and lumbar radiculopathy. He opined that the diagnoses
were work related.
In an undated narrative statement received on March 13, 2018, appellant noted that on
December 3, 2017 he cleaned a diamond plate floor. He indicated that he was on his hands and
knees and that he was cleaning for several hours throughout the night while still operating the
printing press. Appellant reported that this involved getting up and down several times. He noted
that, in the following days, he experienced soreness and was unable to get out of bed because of
pain in the lower back that radiated into the right hip, leg, and foot. Appellant also indicated that
he had numbness in his right foot and toes.
2

By decision dated March 15, 2018, OWCP denied appellant’s occupational disease claim,
finding that the factual evidence of record was insufficient to establish specific employment factors
alleged to have caused or contributed to the presence or occurrence of his condition. It noted that
the employing establishment had asserted appellant informed them that Dr. Herrera opined that his
herniated disc was due to aging and that he had not responded to its development questionnaire.
OWCP concluded, therefore, that he had not sufficiently described specific employment factors
he believed caused injury and statements from the employing establishment were inconsistent with
his allegations.
On March 19, 2019 appellant requested reconsideration.4 He stated that, while the
employing establishment had controverted his claim asserting that he had told HR that his
condition was not work related based on the opinion of Dr. Herrera, he denied the conversation
ever occurred. Appellant described his history of medical treatment and indicated that he had been
treated by four physicians who believed years of sitting, standing, climbing, kneeling,
bending/stooping, twisting, pulling, and pushing for several hours a day contributed to his back
condition. He submitted a December 4, 2002 job assessment for the plate printer position and a
position description.
On April 25, 2019 the employing establishment responded to appellant’s request for
reconsideration noting that he had not submitted medical reports from his four physicians which
he alleged had all reported that his condition was work related.
Appellant submitted a February 16, 2018 epidurography report, which revealed lumbar
radiculopathy syndrome.
In a February 16, 2018 operative report, Dr. Van Hal diagnosed lumbar radicular syndrome
of the right lower extremity and described the details of transforaminal epidural steroid injections
at the L4-L5 and L5-S1 levels.
In an undated report, Dr. Mario Leza, a chiropractor, indicated that appellant’s repetitive
work activities could have resulted in his diagnosed herniated and bulging disc conditions.
By decision dated June 17, 2019, OWCP denied appellant’s request for reconsideration of
the merits of his claim finding that it was untimely filed and failed to demonstrate clear evidence
of error. It set forth the history of the claim, noted the evidence submitted into the record prior to
its initial denial, and explained the initial denial was because he had failed to establish fact of
injury. OWCP noted the standard of review for an untimely reconsideration request and explained
its finding that appellant’s claim was untimely. It then itemized each evidentiary submission from
appellant in support of his reconsideration request under the heading “Discussion of Evidence”
and found that while it had reviewed all of his submissions, they failed to demonstrate clear
evidence of error as he never responded to its development questionnaire which had been necessary
to establish fact of injury.

4

The reconsideration request was dated March 12, 2019, but was not received into the case record until
March 19, 2019.

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LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.6 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS).7
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.8 OWCP’s
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
request for reconsideration demonstrates clear evidence of error on the part of OWCP.9
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.10 The Board
notes that clear evidence of error is intended to represent a difficult standard.11 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.12 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.13 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.14 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.15 The Board makes an independent

5
5 U.S.C. § 8128(a); U.C., Docket No. 19-1753 (issued June 10, 2020); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8
20 C.F.R. § 10.607(b); T.C., Docket No. 19-1709 (issued June 5, 2020); Charles J. Prudencio, 41 ECAB 499,
501-02 (1990).
9

Id. at § 10.607(b); supra note 7 at Chapter 2.1602.5(a) (February 2016).

10

T.W., Docket No. 19-1821 (issued May 15, 2020).

11

R.K., Docket No. 19-1474 (issued March 3, 2020).

12

U.C., supra note 5.

13

T.C., supra note 8.

14

Id.

15

R.K., supra note 11.

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determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.16
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The Board further finds, however, that appellant has
established clear evidence of error in OWCP’s March 15, 2018 merit decision.
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.17 As previously explained, timeliness is determined by the
document receipt date, i.e., the “received date” into iFECS.18 As appellant’s March 12, 2019
request for reconsideration was not received into iFECS until March 19, 2019, more than one year
after the issuance of OWCP’s March 15, 2018 merit decision, it was untimely filed.19
Consequently, he must demonstrate clear evidence of error by OWCP in its March 15, 2018 merit
decision.20
In its March 15, 2018 decision, OWCP denied appellant’s claim on a factual basis, finding
that he had not established employment factors which he alleged caused or contributed to his
condition. It also specifically found, based upon the employing establishment’s controversion of
the claim, that he had informed HR that his back condition was not work related, but awoke on
December 5, 2017 with back pain.
The Board finds, however, that on reconsideration appellant clearly described the event
that allegedly caused his employment injury in his narrative statement received on
March 13, 2018. Appellant explained that, during the night of December 3, 2017, he cleaned a
diamond plate floor for several hours while on his hands and knees. He also explained that he was
still operating the printing press while cleaning the floor and as a result he had to stand up and rise
up and down several times to complete these duties. Appellant, therefore, submitted responsive
evidence which demonstrates that OWCP erred in it March 15, 2018 merit decision.21
OWCP also, in part, denied appellant’s claim based upon the employing establishment’s
controversion and allegation that appellant had informed HR that his condition was not work
related based upon an alleged statement by Dr. Herrera. Appellant has denied that he had informed
HR that his back condition was not work related or that he had such a discussion with Dr. Herrera.
16

Id.

17

20 C.F.R. § 10.607(a).

18

Supra note 6.

19

The Board notes that OWCP did not retain the mailing envelope containing the postmark to establish date of
mailing, nor is there any other marking to designate the date that the reconsideration request was actually received by
OWCP prior to scanning into iFECS.
20

Supra note 17 at § 10.607(b).

21

S.M., 18-1499 (issued February 5, 2020) (the Board found that appellant submitted factual evidence with his
claim which demonstrated a visible medical condition which raised questions as to the correctness of OWCP’s last
merit decision which denied finding the incident had not occurred at the time, place or in the manner alleged).

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The Board finds that the record does not contain medical evidence from a Dr. Herrera, rather only
Dr. Van Hal. Therefore, the Board finds that this demonstrates clear evidence of error.
The Board finds that the March 15, 2018 merit decision was issued in error and, thus,
OWCP abused its discretion in failing to reopen appellant’s claim for further merit review. The
Board will reverse OWCP’s June 17, 2019 decision and remand the case for an appropriate
decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error in the March 15,
2018 merit decision and, thus, OWCP improperly denied his request for reconsideration of the
merits of his claim.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2019 decision of the Office of Workers’
Compensation Programs is reversed and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: October 23, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, ATLANTIC BEACH
STATION, Atlantic Beach, FL, Employer
__________________________________________

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

Docket No. 06-2049
Issued: February 26, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 5, 2006 appellant filed a timely appeal of an August 9, 2006 merit decision
of the Office of Workers’ Compensation Programs which rescinded its acceptance that he
sustained a stroke while in the performance of duty on June 15, 2000. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to rescind its acceptance that
appellant sustained a stroke in the performance of duty on June 15, 2000.
FACTUAL HISTORY
This is appellant’s second appeal before the Board. On January 19, 2006 the Board
reversed the Office’s March 8, 2005 decision rescinding acceptance of his claim.1 The Board
1

Docket No. 1176 (issued January 19, 2006). Appellant, then a 49-year-old rural carrier associate, filed a
traumatic injury claim on June 16, 2000 alleging that he sustained a mild stroke on June 15, 2000 due to the heat and
stress of deadlines. The Office accepted the claim for precipitated stroke on October 24, 2000.

found that the opinions of the Board-certified neurologists failed to address the issue of
precipitation, which was the basis of the Office’s acceptance. In addition, the Board found there
was no conflict in the medical opinion evidence at the time of referral to Dr. Bruce A. Hartig, a
Board-certified neurologist; therefore, Dr. Hartig did not examine appellant as an impartial
medical examiner. The facts and the circumstances of the case as set forth in the prior Board
appeal are hereby incorporated by reference.
Subsequent to the Board’s decision, the Office referred appellant to Dr. Gregory Howell,
a Board-certified neurologist, for a second opinion on whether his employment precipitated his
stroke on June 15, 2000. Dr. Howell, based upon a review of the medical records, statement of
accepted facts and physical examination, concluded that appellant sustained a left subcortical
stroke while he was working. He opined:
“The underlying condition that precipitated this stroke is, again, most likely small
vessel disease from hypertension, which had been previously undiagnosed and
untreated.”
Dr. Howell determined that the stroke was precipitated by appellant’s underlying undiagnosed
hypertension. He concluded that “the stroke itself was not caused by [his] job or by a ‘heat
stroke.’”
On July 5, 2006 the Office proposed to rescind acceptance of appellant’s claim on the
basis that his condition was not shown to be precipitated by his employment. By decision dated
August 9, 2006, the Office rescinded its acceptance that appellant sustained a stroke precipitated
by his employment on June 15, 2000.
LEGAL PRECEDENT
The Board has upheld the Office’s authority to reopen a claim at any time on its own
motion under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior
decision and issue a new decision. The Board has noted, however, that the power to annul an
award is not an arbitrary one and that an award for compensation can only be set aside in the
manner provided by the compensation statute.2 It is well established that, once the Office has
accepted a claim, it has the burden of justifying termination or modification of compensation
benefits.3 This holds true where the Office later decides that it has erroneously accepted a claim
for compensation. In establishing that its prior acceptance was erroneous, the Office is required
to provide a clear explanation of its rationale for rescission.4

2

Cemeish E. Williams, 57 ECAB ___ (Docket No. 06-274, issued March 16, 2006); Andrew Wolfgang-Masters,
56 ECAB ___ (Docket No. 05-1, issued March 22, 2005); see also 20 C.F.R. § 10.610.
3

Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005).

4

George A. Rodriguez, 57 ECAB ___ (Docket No. 05-490, issued November 18, 2005); Delphia Y. Jackson,
55 ECAB 373 (2004); Paul L. Stewart, 54 ECAB 824 (2003); Alice M. Roberts, 42 ECAB 747 (1991).

2

ANALYSIS
The Board finds that the Office has not established that its acceptance of appellant’s work
activities precipitated his June 15, 2000 stroke was erroneous. Dr. Howell’s opinion did not
address whether appellant’s work activities precipitated his stroke which, as noted, was the basis
of the Office’s acceptance. He stated that the stroke was most likely precipitated by “small
vessel disease from hypertension.” This conclusion does not exclude appellant’s work activities
as a precipitating factor. As to the identified work activities, Dr. Howell concluded that they did
not cause appellant’s stroke, but provided no opinion as to whether they were a precipitating
factor. The issue at hand is not whether the work activities caused the stroke, but whether they
were a precipitating factor. As noted in the prior Board decision, “Precipitation is defined as ‘A
latent condition which would not have become manifest but for the employment is said to have
been precipitated by factors of the employment.’”5 On the other hand, direct causation is defined
by the Office in its procedure manual as a type of causal relationship that is shown when the
injury or factors of employment, through a natural and unbroken sequence, result in the condition
claimed.6 As Dr. Howell failed to address whether factors of appellant’s employment
precipitated or contributed to his June 15, 2000 stroke, his opinion is insufficient to support
rescission of the Office’s acceptance of appellant’s claim.
CONCLUSION
The Office did not meet its burden of proof to rescind its acceptance that factors of
appellant’s employment precipitated his June 15, 2000 stroke for the reason that it did not
procure medical evidence directly addressing this issue.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2(d) (June 1995).

6

Id. at Chapter 2.805.2(a) (June 1995).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2006 is reversed.
Issued: February 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Palm Beach, FL, Employer
__________________________________________

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

Docket No. 18-1287
Issued: December 28, 2018

Case Submitted on the Record

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

JURISDICTION
On June 12, 2018 appellant, through counsel, filed a timely appeal from a March 28, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days elapsed from the last merit decision, dated December 4, 2017, to the filing of this appeal,

1

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

pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 19, 2017 appellant, then a 60-year-old food service worker supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on October 14, 2017 she sustained head, neck,
back, and knee injuries when she tripped and fell over a co-employee’s walker. On the reverse
side of the claim form she indicated that there was a “correction” to her claim indicating the
following: “hit my head on walker/chair.” Appellant stopped work on October 17, 2017.
Appellant submitted a medical report dated October 17, 2017 from the employee health
unit in which Dr. Brad Gurney, Board-certified in family practice and osteopathic manipulative
therapy, noted that appellant was examined on that date for a work-related injury sustained on
October 14, 2017. Dr. Gurney advised that she could return to work with restrictions as of the date
of his examination.
OWCP subsequently received a copy of an undated job offer to appellant from the
employing establishment for a light-duty position.
In an October 19, 2017 report of contact, G.G., Chief of the Veterans Canteen Service,
indicated that on October 17, 2017 appellant informed him that she had fallen down in a front
office on October 14, 2017 and that she was feeling a little sore. He granted her request to get
checked out at the employee health unit. Appellant returned a short time later with a report that
released her to return to work with restrictions. Chief G.G. asked her what happened and she
responded that she tripped over a walker and fell, hitting her head on a cart. Appellant described
the exact location of the cart. She went back to her duties, but later decided that she had worked
enough and went home. Chief G.G. related that appellant left work without informing him and
also left her cash drawer in a register at the coffee shop. Appellant did not report to work on
October 18, 2017. On October 19, 2017 she returned to the employee health unit complaining
about dizziness. Chief G.G. related that he subsequently completed an incident report and
reviewed a video taken on the date of injury. He noted that the cart appellant described to him was
in the office, but it was removed several minutes prior to her fall and, thus, it would have been
impossible for her to hit her head on it. Chief G.G. further noted that when she signed the printed
Form CA-1, she manually corrected parts 13, 14, 35, and 36 of the form stating, “Correction, hit
2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the March 28, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

2

my head on the walker/chair.” He maintained that the walker was not visible in the video and
appellant clearly did not hit her head on a chair. Chief G.G concluded that for these reasons, he
controverted her claim.
In an October 23, 2017 letter, M.R., an employing establishment case manager, also
controverted appellant’s claim. She contended that no medical evidence had been received that
established a diagnosed medical condition related to the claimed incident.
OWCP, by development letter dated October 25, 2017, notified appellant of the
deficiencies of her claim. It advised that further factual and medical evidence was necessary to
establish her claim. Appellant was also provided a questionnaire for her completion regarding the
factual circumstances of her injury. OWCP afforded her 30 days to submit the necessary evidence.
The development letter was mailed to appellant’s last known address. Appellant did not respond.
OWCP received additional medical records from the employee health unit which noted a
date of injury as October 14, 2017 and addressed appellant’s head, cervical, and lumbosacral spine,
and left knee conditions along with her work capacity and history of medical treatment.
A November 8, 2017 duty status report (Form CA-17) with an unknown signature indicated
the date of injury as October 14, 2017. The report further indicated that appellant tripped and fell
over a walker, injuring her head, neck, lower back, and left knee. Appellant was diagnosed with
various lumbar and cervical conditions. She was excused from work on November 6 and 7, 2017
and advised to resume work with restrictions on November 9, 2017.
By decision dated December 4, 2017, OWCP denied appellant’s traumatic injury claim
because she failed to establish that the October 14, 2017 employment incident occurred as alleged.
It noted that she failed to respond to the questionnaire that was sent with the October 25, 2017
development letter.
On December 21 and 22, 2017 appellant informed OWCP that she did not receive the
development letter and, thus, contended that she did not know about the questionnaire. In
response, OWCP advised her that it would resend a copy of the development letter to her if she
submitted a signed written request for a copy. It also advised appellant to exercise her appeal
rights that accompanied the December 4, 2017 decision.
On March 21, 2018 appellant requested reconsideration of the December 4, 2017 decision.
She did not submit additional evidence.
By decision dated March 28, 2018, OWCP denied further merit review of appellant’s
claim. It found that her request for reconsideration neither raised substantive legal questions, nor
included new and relevant evidence.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application

3

by a claimant.4 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).5 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 Section 10.608(b) provides that, when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim.
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law or advance a relevant legal argument not previously considered by OWCP.
Appellant contended that she had not received OWCP’s October 25, 2017 development letter and,
thus, she did not know about the questionnaire. However, the record reveals that the development
letter and questionnaire were sent to appellant’s last known address. The Board has found that,
absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of
business is presumed to have been received. This is known as the mailbox rule.8 Appellant did
not submit sufficient evidence to rebut the presumption of receipt.9 For the reasons provided, the
Board finds that appellant’s contention is insufficient to warrant reopening her claim for further
merit review. Moreover, OWCP subsequently indicated that, if she submitted a signed written
request for a copy, they would resend the development letter. No further correspondence was
received.
The Board further finds that appellant has failed to submit relevant and pertinent new
evidence not previously considered by OWCP in support of her request for reconsideration. The
underlying issue in this case is whether appellant submitted sufficient factual evidence to establish
that an employment incident occurred on October 14, 2017, as alleged. Appellant did not submit
factual evidence in support of her request for reconsideration.

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.608(a).

6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(b).

8

James A. Gray, 54 ECAB 277 (2002).

9
See J.W., Docket No. 16-0773 (issued August 24, 2016); D.D., Docket No. 15-291 (issued May 22, 2015); D.S.,
Docket No. 07-0841 (issued July 16, 2007).

4

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10
On appeal counsel contends that OWCP’s March 28, 2018 decision is contrary to fact and
law. However, for the reasons explained herein, OWCP did not abuse its discretion in refusing to
reopen appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 28, 2018
Washington, DC

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

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

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

10
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
SMITHSONIAN INSTITUTION, NATIONAL
ZOOLOGICAL PARK, Washington, DC,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0749
Issued: August 19, 2019

Case Submitted on the Record

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

JURISDICTION
On February 11, 2019 appellant, through counsel, filed a timely appeal from an August 30,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 30, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective September 16, 2018, as she no longer had residuals
or disability causally related to her June 5, 1996 employment injury.
FACTUAL HISTORY
On June 6, 1996 appellant, then a 34-year-old animal caretaker, filed a traumatic injury
claim (Form CA-1) alleging that on June 5, 1996 she sustained injuries to her left shoulder and
neck when she used the shift doors (overhead pulley) to move and shift animals at the zoo while
in the performance of duty. She stopped work on June 7, 1996. OWCP assigned the claim File
No. xxxxxx035 and accepted “other affections of the left shoulder region.”4 It commenced wageloss compensation benefit payments on the supplemental rolls, effective August 6, 1996.
On November 12, 1996 appellant underwent OWCP-approved left shoulder acromioplasty,
subacromial decompression, and resection of the distal clavicle with Dr. Sheldon Mandel, a Boardcertified orthopedic surgeon.
After completing vocational rehabilitation services, appellant returned to work full time on
February 2, 2004 as a customer service representative/clerk at a tack shop.5
On December 22, 2004 OWCP found that appellant was no longer totally disabled and
finalized the reduction of her wage-loss compensation based upon her capacity to earn wages of
$280.00 per week as a customer service representative/clerk. The loss of wage-earning capacity
(LWEC) determination found that the position fairly and reasonably represented her wage-earning
capacity and was vocationally suitable since she had performed the duties of the job for the past
two months.
On March 19, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), the case file, and a set of questions, to Dr. Robert Moore, a Board-certified orthopedic
surgeon, for a second opinion examination regarding the status of her June 5, 1996 employment
injury. The SOAF, dated December 2, 2014, noted that appellant’s claim was accepted for other
affections of the left shoulder region. It indicated that she had been employed as a plant and animal
worker, but currently worked as a hostess/server.
In a May 10, 2018 report, Dr. Moore noted his review of the SOAF and indicated that there
were limited medical records regarding appellant’s initial medical treatment for her June 5, 1996
employment injury. He reported that appellant’s claim was accepted for left shoulder impingement
syndrome and related her current complaints of occasional left shoulder pain. Upon physical
examination, Dr. Moore observed mild tenderness over the anterior aspect of the left shoulder and
no atrophy. He provided range of motion (ROM) measurements and related appellant’s complaints
of mild discomfort at the end ranges of abduction and internal rotation. Impingement sign was
4

Under OWCP File No. xxxxxx128, appellant has an accepted traumatic injury claim for bilateral shoulder
impingement syndrome, which arose in the performance of duty on November 24, 1995. OWCP combined File Nos.
xxxxxx128 and xxxxxx035 and designated the latter claim as the master file.
5

OWCP adjusted her wage-loss compensation benefits to reflect her actual earnings of $280.00 per week.

2

negative. Dr. Moore diagnosed a history of subacromial impingement and partial rotator cuff tear
of the left shoulder, improved following arthroscopic subacromial decompression and distal
clavicle excision.
In response to OWCP’s questions, Dr. Moore opined that appellant’s accepted left shoulder
subacromial impingement had completely resolved. He explained that there were no objective
findings to support that her work-related conditions were still active. Dr. Moore noted that
appellant had full ROM and negative impingement signs. He reported that appellant currently had
no work restrictions due to her accepted left shoulder condition and was capable of returning to
her date-of-injury job as an animal caretaker.
On July 18, 2018 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because she no longer had residuals or disability due to her June 5, 1996
employment injury. It found that the weight of medical evidence rested with Dr. Moore’s May 10,
2018 second opinion report, which noted that appellant’s work-related condition and disability
causally related to the June 5, 1996 employment injury had ceased. OWCP explained that the
medical evidence of record was sufficient to meet its burden of proof to terminate benefits and was
also sufficient to negate an LWEC determination due to a material change in her medical condition.
It provided appellant 30 days to submit additional evidence and argument if she disagreed with the
proposed termination.
In an August 9, 2018 letter, appellant related that her June 5, 1996 injury was accepted for
other affections of both shoulders. She claimed that she was diagnosed with bilateral impingement
syndrome. Appellant discussed the medical treatment she received for both shoulders and
indicated that, after extensive physical therapy, her physician had informed her that her injury was
“career ending” due to the 100-pound lifting requirement for an animal caretaker. She alleged that
if she were to work as an animal caretaker, the injury would eventually return in a more severe
state.
By decision dated August 30, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective September 16, 2018, finding that the weight of
the medical opinion evidence rested with Dr. Moore, the second opinion examiner, who concluded
in a May 10, 2018 report that appellant ceased to have residuals or disability due to her accepted
June 5, 1996 employment injury.6
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of compensation benefits.7 It may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.8
6

OWCP further found that, since it determined that she no longer had residuals of her accepted work-related injury
and was no longer disabled from work as a result of the accepted injury, formal modification of her LWEC
determination was unnecessary.
7

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

A.G., Docket No. 18-0749 (issued November 7, 2018); see also Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).

3

OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.9 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.10 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.11
It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF.12 Its procedures provide that the claims examiner is responsible
for ensuring that the SOAF is correct, complete, unequivocal, and specific. When an OWCP
medical adviser, second opinion specialist, or referee physician renders a medical opinion based
on a SOAF which is incomplete or inaccurate, or does not use the SOAF as the framework in
forming his or her opinion, the probative value of the opinion is seriously diminished or negated
altogether.13
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 16, 2018.
In his May 10, 2018 report, Dr. Moore, an OWCP second opinion examiner, reviewed the
SOAF provided by OWCP and noted that appellant’s claim had been accepted for left shoulder
impingement syndrome. He provided examination findings and opined that appellant’s workrelated left shoulder condition had completely resolved. Dr. Moore reported that appellant was
capable of returning to her date-of-injury position as an animal caretaker.
The Board finds, however, that OWCP improperly terminated appellant’s compensation
based on Dr. Moore’s report because his opinion on her disability status was based on a deficient
SOAF. In securing the opinion of a medical specialist, OWCP provided information through the
preparation of the SOAF in order to ensure that the report was based on a proper factual
background.14 Its procedures require that the SOAF include appellant’s accepted conditions.15 In
this case, however, the December 2, 2014 SOAF did not note that appellant had a previously
accepted claim under OWCP File No. xxxxxx128 for bilateral impingement syndrome or that
previous claim and current claim had been combined. As the SOAF was deficient, Dr. Moore’s

9

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

11

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

12

N.W., Docket No. 16-1890 (issued June 5, 2017); K.V., Docket No. 15-0960 (issued March 9, 2016).

13
Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see also R.P., Docket No. 18-0900 (issued February 5, 2019).
14

FECA Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.4(a)(4)
(September 2009); M.C., Docket No. 18-1199 (issued April 5, 2019).
15

Id.

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opinion was not based on a proper history or background because the SOAF failed to address all
of appellant’s accepted conditions under her previous claim.16
The Board finds, therefore, that OWCP erred in terminating appellant’s wage-loss
compensation and medical benefits, effective September 16, 2018, based on Dr. Moore’s May 10,
2018 second opinion report.17
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 16, 2018.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 19, 2019
Washington, DC

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

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

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

16

See N.G., Docket No. 15-0567 (issued April 27, 2015).

17

S.B., Docket No. 18-0700 (issued January 9, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE NAVY, PUBLIC
WORKS CENTER, San Diego, CA, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1304
Issued: November 25, 2014

Case Submitted on the Record

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

JURISDICTION
On May 21, 2014 appellant, through her attorney, filed a timely appeal from the May 2,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective May 5, 2012 on the grounds that she no longer had
any residuals or disability causally related to her accepted employment-related injuries; and
(2) whether she had any continuing employment-related residuals or disability after May 5, 2012.
On appeal, counsel contends that the reports of an attending physician are sufficiently
rationalized to establish that appellant has continuing residuals and disability due to her
employment-related injuries. Alternatively, he contends that there is a conflict in medical
1

5 U.S.C. § 8101 et seq.

opinion between the attending physician and an OWCP referral physician regarding whether
appellant has any continuing employment-related residuals and disability.
FACTUAL HISTORY
OWCP accepted that on May 2, 1978 appellant, then a 41-year-old warehouse employee,
sustained a back sprain and exacerbation of preexisting congenital lumbar spondylosis without
myelopathy when she picked up a box of paper at work. She stopped work on May 3, 1978 and
returned to work on August 1, 1978. Appellant again stopped work on February 5, 1979 and has
not returned to work. She underwent authorized lumbosacral fusion on July 24, 1979.2
By letter dated February 6, 2012, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Jonathan D. Black, a Board-certified orthopedic
surgeon, for a second opinion to determine whether she had any continuing employment-related
residuals or total disability. In a February 27, 2012 medical report, Dr. Black reviewed a history
of the May 2, 1978 employment injuries and appellant’s employment. He also reviewed the
statement of accepted facts and medical record. Under a review of his systems, Dr. Black stated
that appellant denied any of the following relevant conditions: joint swelling, muscle or bone
pain in other extremities, or loss of coordination. On examination of the lumbar spine, he found
no step-off or bruising. Lumber alignment was normal. Sagital and coronal balance was neutral.
There was a well-healed midline scar. Dr. Black reported generalized tenderness to palpation
along the course of the lumbosacral spine. There was also decreased range of motion in flexion
and extension of the lumbar spine with pain on these maneuvers; motor strength was five out of
five in the bilateral lower extremities; deep tendon reflexes were equal and symmetric in the
bilateral lower extremities with no evidence of hyperreflexia, Babinski and clonus; gait and
station were normal; appellant ambulated unassisted; and straight leg raise and crossed straight
leg raise test were negative. On neurological examination, Dr. Black reported good coordination
and no weakness or sensory deficit and deep tendon reflexes were intact. He reviewed medical
reports including: a January 16, 1985 lumbar x-ray which revealed a solid arthrodesis at L5, L6
and S1 and a 6-bone lumbar spine; a January 17, 1985 lumbar computerized tomography (CT)
scan report revealed a solid arthrodesis with no evidence of disc herniation; an April 7, 1987
lumbar x-ray revealed a solid arthrodesis; lumbar CT scans dated April 7, 1987 and August 17,
1989 revealed no evidence of disc herniation or stenosis (the latter CT scan also showed
unilateral spondylosis at left L5); and a June 12, 1997 lumbar magnetic resonance imaging
(MRI) scan demonstrated postoperative changes and spondylolisthesis at the lumbosacral
junction with no evidence of stenosis (the appearance was stable compared to a prior study).
Dr. Black advised that the work-related lumbar strain had resolved. He noted that it was
determined ultimately that appellant had an exacerbation of preexisting spondylolisthesis which
was treated with arthrodesis. All studies suggested that this fusion had healed and no studies
suggested pseudarthrosis. Dr. Black stated that there were no objective findings of current
2

On January 5, 1982 appellant was involved in a nonwork-related motor vehicle accident. She was hospitalized
from January 5 to 18, 1982 and diagnosed as having recurrent lumbar disc syndrome. In January 1993 appellant
sustained a back injury while getting into her car. She was unable to walk for six days. On February 19, 1983
appellant’s legs gave out as she got up from a seated position and fell to the ground. She was unable to walk for
several days. In December 1984 appellant reinjured her back in a second nonwork-related motor vehicle accident.

2

disability due to the work-related exacerbation of preexisting spondylolisthesis. He further
stated that, on examination, appellant was completely neurologically intact. Although she
described weakness in her left leg, she could get up and down from the examination table
without difficulty and walk without assistive devices. Dr. Black advised that there were no
objective findings to support ongoing disabling residuals from the work-related condition nor did
appellant need further treatment for the employment-related conditions. He opined that she had
disability based on a nonwork-related right total knee arthroplasty that developed a methicillin
resistant staphylococcus aureus (MRSA) infection, advanced age, deconditioning, and
endometrial cancer. Dr. Black opined that appellant had no physical restrictions due to her
work-related injury. He advised that she could handle 10 pounds occasionally and she was
capable of performing sedentary duties. Dr. Black concluded that appellant’s back sprain had
resolved and her spondylolisthesis had been successfully surgically treated.
On March 12, 2012 OWCP issued a notice of proposed termination of appellant’s wageloss compensation and medical benefits based on Dr. Black’s medical opinions. Appellant was
advised that she had 30 days to submit additional evidence in response to the proposed
termination.
In a March 29, 2012 letter, appellant contended that a cadre of OWCP physicians and her
own physician concurred that she was permanently disabled and unable to work. She did not
understand how Dr. Black found that her 1978 surgical fusion was successful when he took no
x-rays or performed other diagnostic tests to form an educated opinion. Appellant asserted that
prior MRI scans and x-rays showed that the fusion was not successful.
In a referral form dated March 27, 2012, Dr. J. Mandume Kerina, an attending Boardcertified orthopedic surgeon, diagnosed stenosis. In an accompanying narrative report, he noted
that appellant presented with lower back pain. Dr. Kerina provided normal findings on physical
examination and assessed lumbar and lumbosacral disc degeneration and low back pain.
In an April 17, 2012 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective May 5, 2012. It found that the medical evidence submitted was
insufficient to outweigh the weight accorded to Dr. Black’s opinion.
On April 21, 2012 appellant requested a review of the written record by an OWCP
hearing representative.
In an April 18, 2012 lumbar CT scan report, Dr. Mahrad Paymani, a Board-certified
radiologist, found two-millimeter anterolisthesis at L5-S1 with an associated mild right pars
interarticularis defect. He also found moderate spinal canal narrowing at L3-L4 secondary to
mild symmetrical disc protrusion along with degenerative hypertrophic changes of the posterior
elements. There was mild associated bilateral neural foraminal narrowing. There was no severe
spinal canal narrowing. Degenerative changes of the articular facets were present.
By letter dated May 15, 2012, appellant requested an oral hearing before an OWCP
hearing representative rather than a review of the written record.
In a December 26, 2012 report, Dr. Kerina reported that appellant’s April 18, 2012 CT
scan with 3-D reconstruction showed a pars interarticularis defect on the right side of the L4 and
3

L5 facet with grade 1 spondylolisthesis of L4 on L5. She also had significant facet arthropathy
of the L4 and L5 facet. The pars interarticularis defect led to the instability pattern that was seen
and facet arthropathy. There was evidence of significant arthrosis of the right L4-L5 facet
secondary in part to the pars interarticularis defect and instability. The left facet was also
degenerative although there was no left-sided pars defect noted. The instability pattern affected
the facet on the left side. Dr. Kerina advised that these findings entirely explained appellant’s
low back pain. He further advised that these findings, in their entirety, were secondary to her
original injury. Dr. Kerina concluded that appellant’s instability pattern and CT scan findings
were consistent with nonhealing of any attempted past fusion.
In an April 16, 2013 report, Dr. Kerina reviewed Dr. Black’s February 27, 2012 report.
He disagreed with Dr. Black’s opinion that appellant’s back sprain had resolved, that her
spondylosis had been successfully treated surgically and that her current disability from work
was due to nonwork-related medical issues. Dr. Kerina advised that her current disability
remained related to her May 2, 1978 work injury. He related that, although appellant underwent
surgical intervention for her spondylosis, recent diagnostic tests revealed findings consistent with
nonhealing of an attempted fusion. Dr. Kerina stated that the April 18, 2012 CT scan findings
were secondary to her May 2, 1978 employment injury and were objective evidence supporting
her subjective complaints and continuing disability. He opined that appellant continued to be
disabled because of her accepted work condition of exacerbation of preexisting congenital
lumbar spondylosis without myelopathy.
In a January 9, 2014 report, Dr. Kerina noted that appellant’s low back pain had
worsened and that she had not returned to work. He also noted her medical, family and social
background. Dr. Kerina assessed ongoing low back pain.
In a June 12, 2013 decision, an OWCP hearing representative affirmed the April 17, 2012
decision. He found that the evidence submitted by appellant was insufficient to outweigh the
weight accorded to Dr. Black’s opinion.
By letter dated April 2, 2014, appellant, through her attorney, requested reconsideration.
In a March 31, 2014 report, Dr. Kerina stated that he did not just consider the
radiologists’ reports. He looked at the actual scans and tests to determine objective findings.
Dr. Kerina noted that all of the objective tests performed on appellant showed objective
problems consistent with her accepted condition of exacerbation of preexisting congenital
spondylosis without myelopathy. He further referenced his April 16, 2013 report and findings.
Dr. Kerina stated that he was aware of appellant’s intervening injuries and stated that they were
relatively minor in nature and did not require ongoing, significant medical care. He noted that
appellant indicated that she had continuous pain complaints since her May 1978 employment
injury. Dr. Kerina stated that her medical work-up and imaging studies were consistent with the
alleged symptomatology. He reiterated his opinion that appellant was disabled due to her
accepted May 1978 injury. Dr. Kerina added comments that his opinion was sufficient to refer
appellant to a referee physician.

4

In a May 2, 2014 decision, OWCP denied modification of its termination decision. It
found that Dr. Kerina’s May 31, 2014 report was not sufficiently rationalized to outweigh the
weight accorded to Dr. Black’s report or to create a conflict in the medical opinion evidence.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.4 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.5 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a back sprain and exacerbation of preexisting
congenital lumbar spondylosis without myelopathy while in the performance of duty. It,
therefore, has the burden of proof to justify the termination of compensation for temporary total
disability.
OWCP found that the opinion of Dr. Black, an OWCP referral physician, represented the
weight of the medical evidence. On February 27, 2012 Dr. Black reported an essentially normal
examination with the exception of generalized tenderness to palpation along the course of the
lumbosacral spine and decreased range of motion in flexion and extension of the lumbar spine
with pain on these maneuvers. He stated that his review of prior diagnostic test results suggested
3

5 U.S.C. § 8102(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

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

8

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

9

5 U.S.C. § 8123(a).

5

that appellant’s fusion had healed and there was no pseudarthrosis. Dr. Black advised that there
were no objective findings to support ongoing disabling residuals from the accepted May 2, 1978
work-related injuries. He found that her employment-related back sprain had resolved and her
spondylolisthesis had been successfully surgically treated. Dr. Black attributed appellant’s
current disability to nonwork-related right total knee arthroplasty that developed an MRSA
infection, advanced age, deconditioning, and endometrial cancer. He concluded that she could
perform sedentary work duties.
The Board, however, finds that Dr. Kerina’s opinions are of equal weight to the opinion
of Dr. Black. Dr. Kerina was the attending physician. In reports dated April 16, 2013 and
March 31, 2014, he took issue with Dr. Black’s findings. On April 16, 2013 and March 31, 2014
Dr. Kerina found that appellant’s current disability remained related to her accepted May 2, 1978
work-related exacerbation of preexisting congenital lumbar spondylosis without myelopathy. He
explained that, although she underwent surgical intervention for her spondylosis, recent
diagnostic tests revealed findings consistent with nonhealing of an attempted fusion. Dr. Kerina
stated that the April 18, 2012 CT scan findings were secondary to appellant’s May 2, 1978
employment injury and were objective evidence supporting her subjective complaints and
continuing disability. His December 26, 2012 letter set forth the April 18, 2012 lumbar CT scan
findings. Dr. Kerina advised that these findings explained appellant’s current low back pain, and
they were related to the accepted employment injury. He concluded that the CT scan findings
were consistent with nonhealing of her previous fusion.
Pursuant to 5 U.S.C. § 8123(a), there is a disagreement between the physician making the
examination for the United States and the physician of the employee on the issue of whether
appellant had any continuing residuals and disability causally related to the May 2, 1978
employment injuries. OWCP should have referred appellant to an impartial medical specialist.10
Without a resolution of the conflict, the Board finds that OWCP improperly terminated
appellant’s wage-loss compensation and medical benefits. The Board will reverse OWCP’s
May 2, 2014 decision.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof.11

10

M.D., Docket No. 11-928 (issued December 1, 2011).

11

In light of the Board’s disposition on the first issue, the second issue is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2014 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: November 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
T.S., Appellant

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

Docket No. 07-584
Issued: June 22, 2007

Case Submitted on the Record

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

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from the January 13 and
November 8, 2006 decisions of the Office of Workers’ Compensation Programs granting a
schedule award. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the schedule award appeal.
ISSUE
The issue is whether appellant has established that he has more than six percent
impairment to his right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On August 16, 2001 appellant, then a 61-year-old accountant, sustained injury to his left
knee and hands in a slip and fall.1 The claim was accepted for a right shoulder strain/sprain and
1

The record indicates that the employing establishment was aware of the fall and appellant received conservative
medical treatment.

she received appropriate compensation benefits. On February 2, 2002 appellant stopped working
for the employing establishment and sought alternative employment. On October 31, 2003 the
Office accepted a recurrence of disability occurring on June 19, 2002 following a second opinion
examination with Dr. Don Leon Fong, a Board-certified orthopedic surgeon. In his October 17,
2003 report, Dr. Fong indicated that appellant had a normal examination, with full range of
motion and normal motor strength with no residual impairment from the shoulder injury.
On April 26, 2004 appellant filed a claim for a schedule award. In a December 12, 2003
report, Dr. Laurence H. Altshuler, a Board-certified internist, noted the history of injury and his
review of appellant’s medical records. His examination revealed a significant decrease in motor
strength, as well as limited range of shoulder motion. Dr. Altshuler opined, in accordance with
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides), that appellant had 25 percent impairment of the whole
person due to his shoulder injury. He advised the determination of permanent impairment due to
the shoulder injury was based on Figures 15-3, 40-43 and 46, Tables 15-15, 15-16, 16-14 and
16-18 of the A.M.A., Guides.
In a September 22, 2004 report, an Office medical adviser reviewed the medical record.
He was unable to provide a probative impairment rating because of the discrepancy between the
range of motion findings between Dr. Altshuler and Dr. Fong. A second opinion examination
was recommended.
Appellant was referred, together with his case file, a statement of accepted facts and a list
of questions, to Dr. Dennis Ice, a Board-certified physiatrist. In a December 1, 2004 report,
Dr. Ice stated that he based his impairment rating on loss of range of motion as he found no
sensory or motor impairment to the right upper extremity or any specific diagnosis or specific
disorders. He opined that appellant had seven percent upper extremity impairment. Under
Figure 16-40, page 476 of the A.M.A., Guides, Dr. Ice found flexion of 135 degrees equaled
three percent impairment and the unaffected side flexed to 150 degrees. Dr. Ice subtracted the
difference to find one percent impairment. Under Figure 16-40, page 476 of the A.M.A., Guides,
an extension of 70 degrees equaled zero percent impairment. Under Figure 16-43, page 477 of
the A.M.A., Guides, Dr. Ice found an abduction of 110 degrees equaled three percent impairment
and the unaffected side abducted to 160 degrees or one percent impairment. He subtracted the
difference to find two percent impairment. Under Figure 16-43, page 477 of the A.M.A.,
Guides, Dr. Ice found an adduction of 85 degrees equaled zero percent impairment. Under
Figure 16-46, page 479, of the A.M.A., Guides external rotation of 90 degrees equaled a zero
percent impairment and internal rotation of 30 degrees equaled four percent impairment.2
In a March 15, 2006 report, the Office medical adviser noted that there was a discrepancy
between the degree of internal rotation noted in Dr. Ice’s examination findings of 80 degrees and
the 30 degrees used to base an impairment rating. He requested that the Office obtain
clarification from Dr. Ice as to the internal rotation measurement. In an April 8, 2005 response,
Dr. Ice stated that he found 80 degrees of internal rotation for the right shoulder but had

2

On examination, Dr. Ice advised that appellant had an internal rotation of 80 degrees.

2

erroneously listed it as 30 degrees. He noted that internal rotation would yield zero percent
impairment. Dr. Ice recommended a three percent total impairment for the right upper extremity.
On May 26, 2005 the Office medical adviser reviewed the file. Based on his
December 1, 2004 and April 8, 2005 reports, Dr. Ice found that appellant reached maximum
medical improvement on December 1, 2004. He related impairment as six percent right of the
upper extremity impairment. The Office medical adviser stated that the difference was based on
the fact that Dr. Ice had subtracted the left side shoulder range of motion from the right side.
By decision dated June 28, 2005, the Office granted a schedule award for a six percent
permanent impairment of the right upper extremity. Appellant received 18.72 weeks of
compensation for the period December 1, 2004 through April 11, 2005.
On July 5, 2005 appellant disagreed with the June 28, 2005 decision and requested an
oral hearing. A telephonic hearing was held on November 21, 2005. Appellant submitted
statements regarding how his right shoulder has affected his ability to perform his job and his life
style. No new medical evidence was provided.
By decision dated January 13, 2006, an Office hearing representative affirmed the
June 28, 2005 schedule award.
In an October 21, 2006 letter, appellant requested reconsideration. In a February 20,
2006 letter, he addressed the medical care of his right shoulder and how his injury prevented him
from effectively doing his job. In an October 21, 2006 statement, appellant advised that
Dr. Jacob George, a Board-certified orthopedic surgeon, performed testing after two years of rest
and recovery from his injury. He submitted copies of medical reports, including the July 15 and
September 9, 2004 medical reports from Dr. George, chart notes and an April 19, 2004 magnetic
resonance imaging (MRI) scan report, all previously of record.
By decision dated November 8, 2006, the Office denied modification of its January 13,
2006 decision.
On appeal, appellant contends that his work-related shoulder injury prevented him from
performing necessary job tasks.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. However,
neither the Act nor the regulations specify the manner in which the percentage of impairment
shall be determined. For consistent results and to ensure equal justice for all claimants, the

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

3

Office adopted the A.M.A., Guides as a standard for determining the percentage of impairment
and the Board has concurred in such adoption.5
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.6 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.7
Office procedures indicate that referral to an Office medical adviser is appropriate when a
detailed description of the impairment from a physician is obtained.8
ANALYSIS
Appellant received a schedule award for six percent impairment to the right upper
extremity based on the opinion of the Office medical adviser. An Office hearing representative
found that a greater impairment was not warranted on the basis of the medical evidence.
In a December 12, 2003 report, Dr. Altshuler advised that under the A.M.A., Guides
appellant had a 25 percent impairment of the whole person due to his shoulder injury. While he
cited to various figures and tables within the A.M.A., Guides, Dr. Altshuler failed to address how
he applied the tables to arrive at his impairment rating or indicate how his examination findings
conformed with the cited figures and tables.9 Without this information, the Board finds that
Dr. Altshuler’s report is of diminished probative value. Moreover, Dr. Altshuler expressed his
impairment rating in terms of whole man impairment rather than providing an estimate for the
right upper extremity.
As Dr. Altshuler’s report was not probative for a determination on the extent of
appellant’s permanent impairment, the Office properly referred appellant for a second opinion
examination with Dr. Ice. The Office medical adviser reviewed the reports of Dr. Ice and
determined that appellant had a six percent impairment to the right upper extremity. Under
Figure 16-40, page 476 of the A.M.A., Guides, 135 degrees flexion equals three percent
impairment and 70 degrees extension equals zero percent impairment. Under Figure 16-43, page
5

See Joseph Lawrence, Jr., 53 ECAB 331 (2002).

6

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

8

See Thomas J. Fragale, 55 ECAB 619 (2004). Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation
of Schedule Awards, Chapter 2.808.6(d) (August 2002).
9

See James R. Hill, 57 ECAB ___ (Docket No. 05-1899, issued May 12, 2006) (schedule awards are to be based
on the A.M.A., Guides; an estimate of permanent impairment is irrelevant and of diminished probative value where
it is not based on the A.M.A., Guides).

4

477 of the A.M.A., Guides, 110 degrees of abduction equals three percent impairment and 85
degrees adduction equals zero percent impairment. Under Figure 16-46, page 479 of the
A.M.A., Guides, 80 degrees internal rotation and 90 degrees external rotation equal zero percent
impairment. The Office medical adviser properly did not concur with Dr. Ice’s impairment
rating which offset the right arm loss of range of motion impairments with these involving the
left side.10 The medical evidence of record therefore establishes that appellant has six percent
impairment to the right upper extremity due to loss of motion.
Appellant’s arguments pertaining to how his shoulder injury prevents him from
effectively doing his job at the employing establishment has no basis in establishing a schedule
award.11 He has contended that he has more than six percent impairment to his right upper
extremity. However, the issue in this claim is medical in nature and must be resolved by the
submission of probative medical evidence.12 Appellant did not submit any medical evidence
addressing the extent of his permanent impairment. The reports of Dr. George noted appellant’s
status and examination but the physician did not provide any impairment rating pursuant to the
A.M.A., Guides, nor provide findings that correlated to the A.M.A., Guides.
The Board finds that appellant has no more than six percent impairment to the right arm
based on loss of motion.
CONCLUSION
The Board finds that appellant has no more than a six percent impairment to the right
upper extremity, for which he received a schedule award.

10

See John Constantin, 39 ECAB 1090 (1988) (in calculating a schedule award, all claimants must be measured
against the range of motion listed in the A.M.A., Guides so that the Office can reach consistent results in schedule
award determination).
11

See Kimberly M. Held, 56 ECAB ___ (Docket No. 05-1050, issued August 16, 2005) (factors such as
employability or limitations on daily activities have no bearing on the calculation of a schedule award).
12

See Jaja K. Asaramo, 55 ECAB 200, 206 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 8, 2006 is affirmed.
Issued: June 22, 2007
Washington, DC

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

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

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

6