United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRUBUTION CENTER,
Capitol Heights, MD, Employer
__________________________________________

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Appearances:
Richard A. Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1934
Issued: January 15, 2015

Case Submitted on the Record

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

JURISDICTION
On August 31, 2014 appellant, through her representative, filed a timely appeal from a
March 31, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of each
arm, for which she received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated June 16, 2011, the
Board reversed a February 23, 2010 decision terminating appellant’s compensation for refusing
1

5 U.S.C. § 8101 et seq.

suitable work.2 The Board determined that the medical evidence was insufficient to establish
that appellant met the physical requirements of the offered position. The facts and circumstances
as set forth in the prior decision are hereby incorporated by reference. The facts relevant to the
present appeal are set forth below.
OWCP accepted that appellant, a contract technician, sustained bilateral carpal tunnel
syndrome and bilateral wrist tendinitis causally related to factors of her federal employment.
Electrodiagnostic testing performed in October 1999 revealed moderate carpal tunnel syndrome
of the right wrist and mild carpal tunnel syndrome of the left wrist. Appellant underwent a right
carpal tunnel release on October 29, 1999. She returned to part-time work on March 27, 2000.
OWCP accepted that appellant experienced a recurrence of disability beginning March 6, 2001.
In September 2009, appellant retired from the employing establishment and began receiving
retirement benefits from the Office of Personnel Management.
On December 6, 2012 appellant filed a claim for a schedule award. In an impairment
evaluation dated October 26, 2012, Dr. David Weiss, an osteopath Board-certified in family
practice, reviewed the medical records, including the results of electrodiagnostic testing. He
noted that nerve conduction studies (NCS) performed on July 30, 1999 revealed moderate right
carpal tunnel syndrome and mild left carpal tunnel syndrome. A December 6, 2006 NCS was
normal and a March 10, 2010 NCS showed mild carpal tunnel syndrome bilaterally. Dr. Weiss
diagnosed bilateral carpal tunnel syndrome post releases. Citing the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009),
he identified the diagnosis as entrapment neuropathy of the wrists under Table 15-23 on page
449. Dr. Weiss applied grade modifiers bilaterally of one for test findings, three for history, and
one for physical examination, which yielded an average modifier of two and an upper extremity
impairment of five percent. He advised that the QuickDASH (Disabilities of the Arm, Shoulder
and Hand) score of 93 on the right and 95 on the left moved the impairment finding over one
place to the left. Dr. Weiss concluded that appellant had a six percent permanent impairment of
each upper extremity.
On January 29, 2013 an OWCP medical adviser reviewed the evidence of record. He
determined that Dr. Weiss’ findings in his October 26, 2012 report were sufficient to reach a
schedule award rating. The medical adviser concurred with Dr. Weiss’ determination that
appellant had a five percent upper extremity impairment using Table 15-23. He found, however,
that it was unclear how Dr. Weiss found a QuickDASH score given that he did not perform an
examination. The medical adviser thus concluded that appellant had a five percent rather than a
six percent impairment of each upper extremity.
On April 15, 2013 OWCP referred appellant to Dr. Stuart J. Gordon, a Board-certified
orthopedic surgeon, for an impairment evaluation. In a report dated April 30, 2013, Dr. Gordon
discussed her complaints of hand pain worse on the right and difficulty performing activities
such as brushing her hair, using dinner ware, and bathing. On examination he found full range of
motion, mild thenar atrophy, and intact flexor and extensor function. Dr. Gordon noted that
x-rays showed bilateral ulnar variance and mild arthritis of the carpometacarpal (CMC) joint. He
2

Docket No. 10-2142 (issued June 16, 2011).

2

diagnosed bilateral carpal tunnel syndrome and “unrelated carpometacarpal arthritis.” Using
Table 15-23 of the A.M.A., Guides, Dr. Gordon applied grade modifiers of one for test findings
based on the results of electrodiagnostic testing of mild to normal findings, two for history based
on subjective complaints and one for physical findings of mild thenar atrophy with normal
sensation. He rounded the modifiers to find a grade modifier of one and a two percent
impairment of each upper extremity.
On May 13, 2013 an OWCP medical adviser concurred with Dr. Gordon’s findings of a
two percent permanent impairment of each upper extremity. Dr. Gordon opined that his opinion
was entitled to more weight than Dr. Weiss as he was a Board-certified orthopedic surgeon and
had performed a physical examination.
By decision dated July 25, 2013, OWCP granted appellant a schedule award for a two
percent permanent impairment of each upper extremity. The period of the award ran for 12.48
weeks from April 30 to July 26, 2013.
On November 13, 2013 appellant, through her representative, requested reconsideration.
In support of the request, she submitted a September 17, 2013 report from Dr. Weiss, who
reviewed her complaints of stiffness, pain, numbness, tingling, and weakness in her hands and
difficulty performing activities of daily living. Appellant had a QuickDASH score of 90 on the
left side and 95 on the right side. On examination of the right hand and wrist, Dr. Weiss found
no thenar or hypothenar atrophy and a positive Tinel’s sign and Phalen’s test. For the left wrist
he found thenar flattening and atrophy and a positive Tinel’s sign, Phalen’s test, and carpal
compression test. Dr. Weiss measured range of motion of the wrists bilaterally, grip and pinch
strength, and two-point discrimination. He diagnosed repetitive trauma disorder and bilateral
carpal tunnel syndrome. Using Table 15-23 on page 449, Dr. Weiss found grade modifiers of
one for test findings, three for history, and three for physical examination due to loss of pinch
strength, which yielded a five percent permanent impairment of each upper extremity. He
increased the rating to six percent for each upper extremity based on the QuickDASH scores.
On March 23, 2014 an OWCP medical adviser noted that Dr. Weiss’ findings on physical
examination differed substantially from Dr. Gordon even though his examination was only five
months later. He indicated that the most recent electromyogram showed “mild abnormalities
with no documentation of motor conduction block.” The medical adviser found that
Dr. Gordon’s opinion was entitled to the most weight as he was a Board-certified orthopedic
surgeon. He concurred with Dr. Gordon’s finding of a grade modifier of one for test results
based on the lack of a motor conduction block, a grade modifier of two for history, and a grade
modifier of one for physical findings of normal sensation. The medical adviser opined that
Dr. Weiss’ QuickDASH recommendation was “totally inconsistent with Dr. Gordon’s
examination and, therefore, it is negated.”
By decision dated March 31, 2014, OWCP denied modification of its July 25, 2013
decision.
On appeal, appellant’s representative argues that the medical adviser erred in finding that
Dr. Weiss’ opinion was entitled to less weight than that of Dr. Gordon. He advises that

3

Dr. Weiss is qualified as an orthopedic surgeon. The representative argues that a conflict in
medical opinion exists between Dr. Weiss and Dr. Gordon.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that FECA allows ratings for
extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments.7 OWCP has adopted this approach for rating impairment to the
upper or lower extremities caused by a spinal injury.8 The impairment is premised on evidence
of radiculopathy affecting the upper and/or lower extremities.9
Section 8123(a) provides that, 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.10 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

Federal (FECA) Procedure Manual, id. at Chapter 3.700, Exhibit 4 (January 2010); see R.M., Docket No.
12-1811 (issued March 14, 2013).
8

Id.

9

Id.

10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

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ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
wrist tendinitis due to factors of her federal employment. On December 6, 2012 appellant filed a
claim for a schedule award and, in support of her claim, submitted an October 26, 2012
impairment evaluation from Dr. Weiss based on his review of the medical evidence. Dr. Weiss
diagnosed bilateral carpal tunnel syndrome post releases. He noted that the most recent NCS
revealed bilateral mild carpal tunnel syndrome. Dr. Weiss applied Table 15-23 on page 449,
relevant to determining impairments due to entrapment neuropathy under the sixth edition of the
A.M.A., Guides. He found that appellant had a grade modifier of one for test findings or clinical
studies, a grade modifier of three for functional history, and a grade modifier of one for physical
examination, which yielded an average grade modifier for the identified condition of entrapment
neuropathy of two and a default impairment value of five percent. Dr. Weiss applied the
QuickDASH score of 93 on the right and 95 on the left to move the default impairment over one
place and concluded that appellant had a six percent permanent impairment of each upper
extremity.12
OWCP referred appellant to Dr. Gordon for a referral examination. In a report dated
April 30, 2013, Dr. Gordon diagnosed bilateral carpal tunnel syndrome and arthritis of the CMC
joint. On examination he found full range of motion and mild thenar atrophy. Dr. Gordon
utilized Table 15-23 of the A.M.A., Guides and found that appellant had grade modifiers of one
for test findings, two for history based on subjective complaints, and one for physical findings of
mild thenar atrophy with normal sensation, which yielded a two percent permanent impairment
of each upper extremity.
On September 17, 2013 Dr. Weiss examined appellant and found a positive Tinel’s sign
and Phalen’s test bilaterally and a thenar flattening, atrophy and a positive carpal compression
test on the left. He applied grade modifiers for test findings or clinical studies of one, functional
history of three, and physical examination of three to find a five percent permanent impairment
of each upper extremity, which he increased to six percent due to the QuickDASH scores of 90
on the left side and 95 on the right side.
On March 23, 2014 an OWCP medical adviser indicated that the findings of Dr. Weiss
and Dr. Gordon on physical examination differed significantly. He determined that Dr. Gordon’s
opinion constituted the weight of the evidence as he was a Board-certified orthopedic surgeon
and as electrodiagnostic testing did not reveal a motor conduction block.
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion. Dr. Weiss provided an impairment rating in conformance with the protocols under the
sixth edition of the A.M.A., Guides and found six percent permanent impairment of each upper
extremity. Dr. Gordon, an OWCP referral physician, also properly applied the A.M.A., Guides
to his clinical findings and determined that appellant had two percent permanent impairment.
12

On January 29, 29013 an OWCP medical adviser indicated that Dr. Weiss properly found that appellant had a
five percent upper extremity impairment using Table 15-23. He indicated, however, that it was not clear how
Dr. Weiss arrived at a QuickDASH score and opined that appellant had a five rather than a six percent impairment of
each upper extremity.

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Section 8123(a) of FECA provides that if there is a 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.13 On remand, OWCP should refer
appellant to an appropriate physician for an impartial medical examination. Following this and
any further development deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: January 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

13

5 U.S.C. § 8123(a).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lyndhurst, NJ, Employer
__________________________________________

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Appearances:
Jason Lomax, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0492
Issued: May 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 2, 2020 appellant, through counsel, filed a timely appeal from a July 11, 2019
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a low back condition
causally related to the accepted November 15, 2018 employment incident.
FACTUAL HISTORY
On November 29, 2018 appellant, then a 34-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on November 15, 2018 he was descending stairs after
delivering mail and fell, injuring his low back while in the performance of duty. He stopped work
on November 19, 2018.
On November 20, 2018 Dr. Marivi De Jesus, a Board-certified anesthesiologist, treated
appellant for low back pain with radicular symptoms. She noted that x-rays of the lumbar spine
revealed lumbar spondylosis. Dr. De Jesus recommended medication, physical therapy, and
limitation of activities. She returned appellant to work on November 26, 2018.
On November 26, 2018 Dr. Michael Acanfora, a chiropractor, reported treating appellant
on November 19, 2018 for severe low back and hip pain. He returned appellant to work on
December 3, 2018.
Appellant was treated in the emergency room on November 28, 2018 by an unidentified
healthcare provider who diagnosed lumbosacral radiculopathy at S1, lumbar disc herniation, and
elevated blood pressure.
In a November 29, 2018 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care for sprain and strain of the
middle back.
In a December 19, 2018 development letter, OWCP advised that, when appellant’s claim
was received, it appeared to be a minor injury that resulted in minimal or no lost time for work.
Therefore, payment of a limited amount of medical expenses was administratively approved
without formal consideration of the merits of his claim. OWCP opened appellant’s claim for
consideration of the merits. It advised him of the deficiencies of his claim and requested that he
submit additional factual and medical evidence. OWCP afforded appellant 30 days to respond.
OWCP received an x-ray of the lumbar spine dated August 31, 2018 which revealed a
15-millimeter anterolisthesis of L5 on S1, suspected bilateral spondylolysis, and L5-S1 disc space
narrowing. A November 28, 2018 magnetic resonance imaging (MRI) scan of the lumbar spine
revealed mild disc bulges at L3-4 and L4-5, spondylolisthesis at L5-S1, loss of height and defect
along the inferior endplate of L5, and mild impaction injury at S1.
On December 14, 2018 Dr. Acanfora treated appellant for back and hip pain, which began
on November 11, 2018. He reviewed an MRI scan revealing severe lumbar spinal issues and
recommended chiropractic adjustments, physical therapy, and therapeutic exercise.
Appellant was seen in consultation by Dr. Alfred A. Steinberger, a neurosurgeon, on
December 19, 2018 for back pain radiating into his left leg. His history was significant for a motor
2

vehicle accident in 2005 in which he sustained a back injury. Dr. Steinberger reported appellant’s
current symptoms began after a work-related accident on November 15, 2018 when he slipped
during a snow storm and fell backwards onto his left low back and developed severe low back and
leg pain and numbness radiating into the buttocks, calf, ankle, and foot. Findings on examination
revealed limited range of motion of the back, tenderness of the lumbar vertebral, paraspinal
tenderness, pain with straight leg raising, antalgic gait, weakness of the left leg, and patchy
decreased sensation of the left foot and calf. Dr. Steinberger reviewed the November 28, 2018
MRI scan and diagnosed grade II spondylolisthesis at L5-S1, severe degenerative disc disease,
foraminal stenosis, and diminished L5 vertebral body. In separate note dated December 19, 2018,
he diagnosed spondylolisthesis, severe degenerative disc disease, loss of vertebral height at L5,
and severe foraminal stenosis. Dr. Steinberger reported that appellant had a preexisting condition,
but he was doing well and carrying out all his normal activities of daily living until the workrelated accident of November 15, 2018. He opined that “It is clearly the work-related accident that
unequivocally exacerbated his preexisting condition….” Dr. Steinberger recommended surgery.
By decision dated February 7, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted November 15, 2018 employment incident.
On February 19, 2019 appellant requested a telephonic oral hearing before a representative
of OWCP’s Branch of Hearings and Review. The hearing was held on May 29, 2019.
OWCP continued to receive evidence. Appellant was treated in follow-up by
Dr. Steinberger on March 27, 2019 and reported persistent symptoms of back pain, left leg pain,
numbness, paresthesias, and weakness in the left leg. Dr. Steinberger diagnosed grade II
spondylolisthesis L5-S1, severe degenerative disc disease, foraminal stenosis, and diminished L5
vertebral body. He returned appellant to light duty and again recommended surgical intervention.
On June 14, 2019 Dr. Steinberger advised that appellant’s symptoms were markedly exacerbated
after the work-related accident on November 15, 2018 when he slipped and fell during a snow
storm. He noted that appellant had preexisting spinal degenerative condition, but was functioning
normally until the November 15, 2018 accident. Dr. Steinberger diagnosed grade II
spondylolisthesis L5-S1, severe degenerative disc disease, foraminal stenosis, diminished L5
vertebral body. He opined that this accident was responsible for the exacerbations of his symptoms
which required surgery.
By decision dated July 11, 2019, an OWCP hearing representative affirmed the February 7,
2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

3

Id.

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limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a low back
condition causally related to the accepted November 15, 2018 employment incident.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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On December 19, 2018 Dr. Steinberger diagnosed spondylolisthesis, severe degenerative
disc disease, loss of vertebral height at L5, and severe foraminal stenosis. Appellant reported a
preexisting low back condition, but was asymptomatic until the work-related accident of
November 15, 2018. Dr. Steinberger opined that “It is clearly the work-related accident that
unequivocally exacerbated his preexisting condition…” Similarly, in another report dated
December 19, 2018 report, he diagnosed grade II spondylolisthesis at L5-S1, severe degenerative
disc disease, and foraminal stenosis diminished L5 vertebral body and noted that appellant’s
current low back symptoms began after a work-related accident on November 15, 2018. The
Board has held that the mere fact that symptoms arise during a period of employment or produce
symptoms revelatory of an underlying condition does not establish a causal relationship between
a diagnosed condition and employment factors.11 A medical opinion must explain how the
implicated employment factors physiologically caused, contributed to, or aggravated the specific
diagnosed conditions.12 Lacking such an explanation, Dr. Steinberger’s opinion is insufficient to
meet appellant’s burden of proof.13
Appellant was treated in follow up by Dr. Steinberger on March 27, 2019 who reiterated
his previous diagnoses. However, Dr. Steinberger did not render an opinion on causation. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.14
On June 14, 2019 Dr. Steinberger again reiterated his diagnoses and noted that appellant
had preexisting spinal degenerative condition, but was asymptomatic until the accident on
November 15, 2018. He opined that the work-related slip and fall on November 15, 2018 was
responsible for the exacerbations of appellant’s symptoms and required surgery. Dr. Steinberger,
however, did not provide medical rationale supporting his conclusory opinion. The Board has held
that a medical opinion is of limited value if it is conclusory in nature.15 A medical opinion must
explain how the implicated employment factors physiologically caused, contributed to, or
aggravated the specific diagnosed conditions.16 Without this explanation, Dr. Steinberger’s
reports are insufficient to meet appellant’s burden of proof to establish his claim.17
On November 20, 2018 Dr. De Jesus treated appellant for lower back pain with radicular
symptoms. She noted that x-rays of the lumbar spine revealed lumbar spondylosis. However,
Dr. De Jesus did not offer a medical diagnosis or provide an opinion as to whether a diagnosed
condition was causally related to the accepted employment incident. The Board has held that
medical evidence that does not include a firm diagnosis or an opinion regarding the cause of an
11

A.S., Docket No. 19-1955 (issued April 9, 2020).

12

C.M., Docket No. 19-0360 (issued February 25, 2020).

13

C.M., id.

14

Id.

15

C.M., supra note 12; B.H., Docket No. 18-1219 (issued January 25, 2019).

16

C.M., id.; K.G., Docket No. 18-1598 (issued January 7, 2020).

17

Id.

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employee’s condition is of no probative value on the issue of causal relationship.18 This report is,
therefore, insufficient to establish appellant’s claim.
Appellant was treated by Dr. Acanfora, a chiropractor, on November 11 and 26, 2018 for
severe low back and hip pain. Dr. Acanfora reviewed an MRI scan, which revealed severe lumbar
spinal issues. Under FECA,19 the term physician includes chiropractors only to the extent that
their reimbursable services are limited to treatment consisting of manual manipulation of the spine
to correct a subluxation as demonstrated by x-ray to exist. OWCP’s regulations at 20 C.F.R.
§ 10.5(bb) have defined subluxation as an incomplete dislocation, off-centering, misalignment,
fixation or abnormal spacing of the vertebrae which must be demonstrable on an x-ray film to an
individual trained in the reading of x-rays.20 If the diagnosis of a subluxation as demonstrated by
x-ray is not established, the chiropractor is not a physician as defined under FECA and his or her
report is of no probative value to the medical issue presented.21 The Board notes that Dr. Acanfora
did not diagnose subluxations as demonstrated by an x-ray and he is, therefore, not considered a
physician under FECA.22
Appellant submitted an emergency room note dated November 28, 2018 from an
unidentified care provider. The Board has held that a medical note containing an illegible signature
or which is unsigned has no probative value, as it is not established that the author is a physician.23
Appellant also submitted multiple diagnostic studies including an x-ray of the lumbar spine and
an MRI scan of the lumbar spine. The Board has held that diagnostic studies, standing alone, lack
probative value as they do not provide an opinion on causal relationship between accepted
employment factors and a claimant’s diagnosed conditions.24 This evidence is, therefore,
insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his injury is
causally related to the accepted November 15, 2018 work accident, the Board finds that he has not
met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

18

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

19

5 U.S.C. § 8101 et seq.

20

20 C.F.R. § 10.5(bb).

21

R.P., Docket No. 18-0860 (issued December 4, 2018); Mary A. Ceglia, 55 ECAB 626 (2004); Jack B. Wood, 40
ECAB 95, 109 (1988).
22

5 U.S.C. § 8101 et seq.; 20 C.F.R. § 10.5(bb).

23

See Z.G., 19-0967 (issued October 21, 2019); see R.M., 59 ECAB 690 (2008); Bradford L. Sullivan, 33 ECAB
1568(1982) (where the Board held that a medical report may not be considered as probative medical evidence if there
is no indication that the person completing the report qualifies as a “physician” as defined in FECA).
24

See I.C., Docket No. 19-0804 (issued August 23, 2019).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a low back
condition causally related to the accepted November 15, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.25
Issued: May 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

25

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 may
constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed. The
form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 10-338
Issued: September 13, 2010

Case Submitted on the Record

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

JURISDICTION
On November 18, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated October 22, 2009 which denied her reconsideration
request on the grounds that it was untimely filed and failed to present clear evidence of error.
Because more than one year has elapsed since the Office’s most recent merit decision dated
March 29, 2005 and the filing of this appeal on November 18, 2009, the Board lacks jurisdiction
to review the merits of her claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly determined that appellant’s October 14, 2009
request for reconsideration was not timely filed and failed to present clear evidence of error.

1

For Office decisions issued prior to November 19, 2008 a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
This is the second appeal in the present case.2 In an August 12, 2009 decision, the Board
affirmed Office decisions dated December 14, 2007 and September 18, 2008 denying appellant’s
requests for reconsideration finding that they were untimely filed and failed to establish clear
evidence of error. The facts and the circumstances of the case up to that point are set forth in the
Board’s prior decision and incorporated herein by reference.3
Following the Office’s September 18, 2008 decision, appellant submitted a
September 23, 2008 lumbar spine computerized tomography (CT) scan report from
Dr. Kathleen A. Barry, a Board-certified diagnostic radiologist, who noted findings and an
impression of degenerative joint disease of the lumbar spine.
On October 14, 2009 appellant requested reconsideration. Her attorney indicated that the
request was being made within one year of the August 12, 2009 decision and was based on the
April 14, 2008 report of Dr. Ernest P. Chiodo, a Board-certified internist, whose report was
previously of record. Dr. Chiodo opined that appellant’s work injury of March 20, 1997 caused
her musculoskeletal disease which resulted in her current disability. Appellant asserted that the
Board’s decision of August 12, 2009 should be vacated.
By decision dated October 22, 2009, the Office denied appellant’s application for
reconsideration on the grounds that the request was not timely and that she did not present clear
evidence of error by the Office.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a)

2

On March 19, 2000 appellant, then a 48-year-old letter carrier filed an occupational disease claim alleging that
she developed bursitis from carrying mail. The Office accepted her claim for temporary aggravation of the left
shoulder bursitis and costochondritis of the chest wall. In its March 29, 2005 merit decision, the Office denied
modification of prior decisions that denied appellant’s claim for disability beginning June 30, 2000.
3

Docket No. 09-253 (issued August 12, 2009).

4

5 U.S.C. § 8128(a).

2

provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.5
However, the Office will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation, if the claimant’s application for review shows clear evidence of error
on the part of the Office in its most recent merit decision. To establish clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision.7
Evidence that does not raise a substantial question concerning the correctness of the
Office’s decision is insufficient to establish clear evidence of error.8 It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion.9 This entails a
limited review by the Office of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of the Office.10 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.11
ANALYSIS
In its October 22, 2009 decision, the Office properly determined that appellant failed to
file timely applications for review. It rendered its most recent merit decision on March 29, 2005.
Appellant’s request for reconsideration was dated October 14, 2009, more than one year after
March 29, 2005. Although appellant’s attorney asserted that the reconsideration request was
made within one year of the Board’s August 12, 2009 decision, the Board notes that the one year
period for requesting reconsideration only accompanies merit decisions on the point at issue,
including merit decisions of the Board.12 The Board notes that its August 12, 2009 decision in
Docket No. 09-253 was not a merit decision as it affirmed Office decisions finding that
5

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

6

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, supra note 5.

8

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

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1)
(January 2004).

3

appellant’s reconsideration request was untimely filed and did not present clear evidence of
error. Thus, this reconsideration request was not timely filed.
The Board also finds that appellant has not established clear evidence of error on the part
of the Office. Appellant asserted that the August 12, 2009 decision should be vacated. While
she addressed her disagreement with the Office’s decision to deny her recurrence claim, her
general allegations do not establish clear evidence of error as her arguments do not raise a
substantial question as to the correctness of the Office’s decision. The Board notes that the
underlying issue is medical in nature and that appellant submitted no new medical evidence
sufficient to shift the weight of the evidence in her favor and establish that the Office erred in
denying her recurrence of disability beginning June 30, 2000. Therefore the Office properly
found that her statement and letter of October 14, 2009 did not establish clear evidence of error.
Appellant submitted an April 14, 2008 report from Dr. Chiodo who opined that her
traumatic occupational injury on March 20, 1997 caused her musculoskeletal disease which
resulted in her current disability. However, the Office had previously considered this evidence
and appellant, in submitting these documents, did not explain how this evidence was positive,
precise and explicit in manifesting on its face that the Office committed an error in denying her
recurrence of disability beginning June 30, 2000. Resubmission of these documents is sufficient
to raise a substantial question as to the correctness of the Office’s decision. Following the
Office’s September 18, 2008 decision, appellant also submitted a September 23, 2008 lumbar
spine CT scan report from Dr. Barry. However, this report is insufficient to show clear evidence
of error as Dr. Barry did not address whether the work injury caused disability.13 Furthermore,
the Board notes that clear evidence of error is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
still not clear evidence of error.14
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of the Office’s decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.

13

Evidence that is not germane to the issue on which the claim was denied is insufficient to demonstrate clear
evidence of error. F.R., 61 ECAB ___ (Docket No. 09-575, issued January 4, 2010).
14

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3(c) (January 2004).

4

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 13, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
FACILITY, El Centro, CA, Employer
__________________________________________

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

Docket No. 10-2013
Issued: July 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 3, 2010 appellant filed a timely appeal from a June 28, 2010 merit decision of
the Office of Workers’ Compensation Programs regarding her schedule award claim. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 14 percent impairment of the right upper
extremity and more than 14 percent impairment of the left upper extremity, for which she
received schedule awards.
FACTUAL HISTORY
This is the third time this case has been before the Board. In a May 22, 2008 decision,
the Board set aside the Office’s September 5, 2007 decision, which denied appellant’s claim for
1

5 U.S.C. § 8101 et seq.

an increased schedule award beyond 14 percent permanent impairment previously awarded for
each arm.2 The Board found that an Office medical adviser did not adequately explain how he
reached his impairment rating. The Board remanded the case for the Office to request
clarification from its medical adviser. In an April 22, 2009 decision, the Board set aside the
Office’s June 24, 2008 decision, which denied appellant’s claim for an increased schedule
award.3 The Board found that the Office’s medical adviser’s supplemental report did not
adequately explain why appellant would have bilateral pain impairment rating based on a
decreased sensation to the ulnar nerve as opposed to the median nerve. The Board noted that
appellant’s physician, Dr. James R. Moitoza, a Board-certified orthopedic surgeon, found that
appellant’s numbness and tingling and dysesthesias and loss of sensation arose from the median
nerve distribution. The Board remanded the case to the Office for further medical development.
The facts and circumstances of the case as set forth in the Board’s prior decisions are
incorporated herein by reference.
On remand the Office determined a conflict in medical evidence existed between
Dr. Moitoza, appellant’s attending physician, and the Office’s medical adviser, with regard to
whether a neurologic deficit in the upper extremities existed and what kind of neurologic deficit.4
The Office referred appellant, together with the case record and a statement of accepted facts, to
Dr. Edwin B. Fuller, a Board-certified orthopedic surgeon, for an impartial medical examination.
In an April 2, 2010 report, Dr. Fuller reviewed appellant’s history and medical records
and reported findings on examination. Diagnoses provided were: bilateral carpal tunnel
syndrome with surgical releases of both right and left carpal tunnel; bilateral ulnar neuropathy at
the elbow with postoperative status anterior transposition of both left and right ulnar nerve at the
elbow; bilateral de Quervain’s tenosynovitis with postoperative status release of both right and
left first dorsal compartment; no electromyogram (EMG) or nerve conduction evidence of
persistent ulnar nerve neuropathy; and electrodiagnostic evidence of improved median nerve
pathology at the wrist.
Dr. Fuller advised that appellant reached maximum medical
improvement on or about December 20, 2006. Under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (hereinafter A.M.A., Guides),
Dr. Fuller opined that appellant had 7 percent total impairment of the right arm and 11 percent
impairment of the left arm. Under Table 15-3, page 395, he found appellant at maximum
medical improvement due to de Quervain’s tenosynovitis and assigned class 1 or one percent
impairment to the right wrist and class 1 or one percent impairment to the left wrist. Under
Table 15-21, page 443, Dr. Fuller assigned each elbow class 1 category due to moderate sensory
deficit verified on physical examination or 2 percent impairment of the arm. Under Table 15-21,
2

Docket No. 08-13 (issued May 22, 2008).

3

Docket No. 08-1995 (issued April 22, 2009).

4

In his March 22, 2007 report, Dr. Moitoza opined that appellant’s numbness and tingling and dysesthesias and
loss of sensation arose from the median nerve distribution with no ulnar nerve symptoms present. In later
evaluations, he opined that appellant continued to have a neurologic deficit in either upper extremity. In his June 9,
2008 report, the Office medical adviser disagreed on the extent of appellant’s bilateral median nerve sensory
impairment. The medical adviser concluded that appellant’s chronic problems with bilateral median nerve/median
neuropathy and bilateral cubital tunnel/ulnar neuropathy, with no evidence of a neurologic deficit in either arm,
would cause her symptoms to wax and wane with time.

2

page 439, he assigned class 1 impairment class for median nerve below the forearm and assigned
four percent impairment of the arms for both the right and left wrists due to moderate sensory
deficit of the hands. Under Table 15-32, page 473, Dr. Fuller also assigned four percent
impairment due to loss of ulnar deviation in the left wrist.
On June 25, 2010 another Office medical adviser reviewed the file and used Dr. Fuller’s
April 2, 2010 report to determine the impairment of the right and left upper extremities. She
advised date of maximum improvement was April 2, 2010. The medical adviser found the total
impairment for the right arm was six percent and for the left arm was six percent. For
impairment due to bilateral carpal tunnel syndrome, she found four percent impairment to each
arm. Under Table 15-23, page 449, the medical adviser found grade modifier 1 for test findings;
grade modifier 3 for history; and grade modifier 2 for physical findings with an average grade
modifier of 2. She then used the functional scale value 1, mild, as a modifier. For impairment
due to cubital tunnel syndrome, the medical adviser found two percent impairment to each arm.
Under Table 15-23, page 449, she indicated grade modifier 1 for test findings, grade modifier 3
for history, grade modifier 2 for physical findings, with an average grade modifier of 2. Using
the functional scale value 1, mild, as a modifier, the medical adviser found the upper extremity
impairment was four percent. Because the cubital tunnel syndrome was a second entrapment
neuropathy, she found the A.M.A., Guides only allowed half the value or two percent
impairment for each arm. The Office medical adviser advised that Dr. Fuller incorrectly applied
Table 15-21 as Table 15-23, the entrapment neuropathy table, should have been applied. She
also noted that the A.M.A., Guides do not allow for the addition of range of motion deficit and
de Quervain’s disease.
By decision dated June 28, 2010, the Office denied appellant’s claim for an increased
schedule award. Determinative weight was accorded to the Office’s medical adviser.
LEGAL PRECEDENT
The schedule award provision of the Act and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of the Office.6 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
5

20 C.F.R. § 10.404.

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

3

For evaluating impairment related to dysfunction of the median nerves, the sixth edition
of the A.M.A., Guides contains Appendix 15-B (Electrodiagnostic Evaluation of Entrapment
Syndromes). It provides that the criteria for carpal tunnel syndrome include distal motor latency
longer than 4.5 milliseconds for an 8 centimeter (cm) study; distal peak sensory latency longer
than 4.0 cm for a 14 cm distance; and distal peak compound nerve latency of longer than 2.4
milliseconds for a transcarpal or midpalmar study of 8 cm. If different distances were used in
testing, correction to the above-stated distances could be accomplished by assuming each 1 cm
of distance required 0.2 milliseconds.9
If carpal tunnel syndrome is found under the standards of Appendix 15-B, impairment is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.10 In Table 15-23, grade modifiers are described
for test findings, history and physical findings. A survey completed by a given claimant, known
by the name QuickDASH, is used to further modify the grade and to choose the appropriate
numerical impairment rating.11 If carpal tunnel syndrome is not found under the standards of
Appendix 15-B, impairment due to median nerve dysfunction is evaluated under the scheme
found in Table 15-21 (Peripheral Nerve Impairment: Upper Extremity Impairments).12 Under
Table 15-21, observed conditions are placed into classes (ranging from class 0 to class 4) based
on diagnosis and the severity of the condition. After the class is identified, the precise degree of
the impairment can be modified by various factors, including functional history, physical
examination and clinical studies.13
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.14 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.15 When the Office secures an opinion
from an impartial medical specialist for the purpose of resolving a conflict in the medical
evidence and the opinion from the specialist requires clarification or elaboration, the Office has
the responsibility to secure a supplemental report from the specialist for the purpose of correcting
a defect in the original report.16

9

A.M.A., Guides 487, Appendix 15-B.

10

See id. at 449, Table 15-23.

11

Id. at 448.

12

Id. at 437-40, Table 15-21 (portion relating to median nerves).

13

Id. at 406-09.

14

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

15

Manuel Gill, 52 ECAB 282 (2001).

16

See Nathan L. Harrell, 41 ECAB 402 (1990).

4

Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.17 The Board has held that, to properly resolve a conflict
in medical opinion, it is the impartial medical specialist who should provide a reasoned opinion
as to a permanent impairment to a scheduled member of the body in accordance with the
A.M.A., Guides. An Office medical adviser may review the opinion, but the resolution of the
conflict is the responsibility of the impartial medical specialist.18
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome, bilateral
lesion of the ulnar nerve and right radial styloid tendinitis and granted her schedule awards for 14
percent impairment of each arm. After she claimed an increased schedule award, the Office
determined that a conflict in the medical evidence was created between Dr. Moitoza, an
attending Board-certified orthopedic surgeon, and an Office medical adviser regarding the nature
and degree of appellant’s impairment. It properly referred appellant to Dr. Fuller, Boardcertified in orthopedic surgery, for an impartial evaluation.
On April 2, 2010 Dr. Fuller examined appellant and found that she reached maximum
medical improvement on or about December 20, 2006. Under the sixth edition of the A.M.A.,
Guides, he opined that appellant had 7 percent impairment of the right arm and 11 percent
impairment of the left arm. This was based on a diagnosis-based impairment rating using the
wrist regional grid, Table 15-3 page 395, wrist range of motion Table 15-32, page 473, and Table
15-21, Peripheral Nerve Impairment: Upper Extremity Impairments, pages 439 and 443. The
Office medical adviser reviewed Dr. Fuller’s examination findings and applied them to the
A.MA., Guides and opined that appellant had six percent impairment of each arm. This was
based on Table 15-23, Entrapment/Compression Neuropathy Impairment, for impairment due to
bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. Appellant disagreed with
certain of Dr. Fuller’s findings. The Office found that the weight of the medical evidence rested
with the Office medical adviser. This was error. As noted, to properly resolve a conflict in
medical opinion, it is the impartial medical specialist who should provide a reasoned opinion as
to a permanent impairment to a scheduled member of the body in accordance with the A.M.A.,
Guides. An Office medical adviser may review the opinion, but the resolution of the conflict is
the responsibility of the impartial medical specialist.19 If there were errors perceived by the
medical adviser in Dr. Fuller’s report, the Office should have obtained a supplemental report
from Dr. Fuller.20
The Board also finds that Dr. Fuller’s impairment rating is incomplete. As noted, with
respect to evaluating impairment related to dysfunction of the median nerves, Appendix 15-B
17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
18

See Richard R. LeMay, 56 ECAB 341 (2005); Thomas J. Fragale, 55 ECAB 619 (2004).

19

See supra note 18.

20

See supra note 16.

5

(Electrodiagnostic Evaluation of Entrapment Syndromes) contains criteria for evaluating whether
carpal tunnel syndrome is present. If carpal tunnel syndrome is found under the standards of
Appendix 15-B, impairment is evaluated under the schedule found in Table 15-23. If carpal
tunnel syndrome is not found under the standards of Appendix 15-B, impairment due to median
nerve dysfunction is evaluated under the scheme found in Table 15-21. There is no indication
that Dr. Fuller considered Appendix 15-B or sufficiently explained why he chose to evaluate
appellant’s case under the separate criteria of Table 15-21 or Table 15-23, respectively.21
As further clarification is required from Dr. Fuller, the Board will set aside the Office’s
June 28, 2010 decision and remand the case for further development of the medical evidence.
The Office shall request a supplemental report from Dr. Fuller resolving whether carpal tunnel or
cubital tunnel syndrome is found under the standards of Appendix 15-B so an impairment
determination may be evaluated under the correct criteria. The physician shall obtain any further
diagnostic testing as he deems appropriate and shall provide a reasoned opinion regarding
permanent impairment to appellant’s arms under the applicable provisions of the A.M.A.,
Guides. After such development as it deems necessary, the Office shall issue an appropriate
merit decision regarding appellant’s entitlement to schedule award compensation.
While appellant asserts on appeal that she should be entitled to an increased schedule
award, the case is not in posture for decision on this matter as the Board is remanding the case
for further medical development.
CONCLUSION
The Board finds that clarification is required from the impartial specialist and the case
requires further development.

21

The Board notes that section 15.4f page 432-33 advises that, if the impairment is calculated under an
entrapment neuropathy, then additional impairment values are not permitted for decreased grip strength, loss of
motion or pain.

6

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to the Office for
proceedings consistent with this decision of the Board.
Issued: July 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 20-0651
Issued: November 12, 2020

Case Submitted on the Record

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

JURISDICTION
On February 3, 2020 appellant filed a timely appeal from an August 14, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted June 21, 2018 employment incident.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 14, 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.

FACTUAL HISTORY
On July 11, 2018 appellant, then a 65-year-old rigger, filed a traumatic injury claim (Form
CA-1) alleging that on June 21, 2018 he was assisting with the installation of a metal cover when
the cover shifted and pulled his right arm while in the performance of duty. He stopped work on
June 22, 2018.
In a June 22, 2018 statement, appellant noted that on June 21, 2018 he was assisting with
the installation of a crane gear box cover when he lifted the cover and it shifted pulling his arm
down injuring his muscle in his right arm.
On June 22 and July 6, 2018 appellant was treated at the employing establishment clinic
by Dr. Elizabeth C. Merrell, an osteopath and Board-certified internist, for a right shoulder injury.
Dr. Merrell checked a box indicating that he was temporarily totally disabled from work. In a
June 22, 2018 medical referral form, she noted that appellant was assisting with the installation of
a metal cover to a gear box and pulled a muscle in his arm/shoulder. Dr. Merrell referred him to
his primary physician for further care.
In a narrative statement dated July 9, 2018, appellant indicated that as he was assisting with
the installation of a crane gear box cover when the cover shifted and pulled his right arm down
causing an injury to the arm muscle. He reported the incident to his zone manager and iced his
arm overnight. Appellant indicated that the next morning his arm was worse, but he reported to
work and was escorted to the dispensary to be examined by a physician.
In a July 9, 2018 duty status report (Form CA-17), Dr. Kenneth Putland, a Board-certified
family practitioner, noted tenderness of the deltoid of the right shoulder and diagnosed right
shoulder strain. He advised that appellant was temporarily disabled from work. In an attending
physician’s report (Form CA-20) of even date, Dr. Putland indicated that appellant was injured at
work on June 21, 2018 when he was lifting a heavy object with another person who dropped the
item causing a strain to appellant’s right shoulder. He diagnosed acute right shoulder pain and
checked a box marked “Yes” indicating that appellant’s condition had been caused or aggravated
by an employment activity. Dr. Putland noted that appellant was totally disabled from work
beginning June 25, 2018, pending an evaluation with an orthopedist.
In a Form CA-20 dated July 10, 2018, Dr. John R. Barley, an osteopath and Board-certified
family practitioner, indicated that appellant was injured at work on July 10, 2018 when he was
lifting a heavy object with another person who suddenly dropped the item. He diagnosed acute
right shoulder pain and checked a box marked “Yes” indicating that appellant’s condition had been
caused or aggravated by an employment activity. Dr. Barley advised that appellant was totally
disabled from work beginning July 10, 2018. In a Form CA-17 dated July 11, 2018, he diagnosed
right shoulder strain and again advised that appellant was temporarily totally disabled from work.
In a July 23, 2018 development letter, OWCP informed appellant that the evidence
submitted 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. OWCP afforded appellant 30
days to submit the requested information. No additional evidence was received.

2

By decision dated August 23, 2018, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish the June 21, 2018 incident occurred as described. It noted
that he did not respond to the July 23, 2018 development letter. OWCP concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
A July 7, 2018 magnetic resonance imaging (MRI) scan of the right shoulder revealed highgrade partial tears throughout both supraspinous tendon and infraspinatus tendon with a fullthickness tear in the supraspinous tendon, severe tendinopathy, high-grade partial tear in the
subscapularis tendon, diminished superior posterior labrum, tear of the anterior inferior labrum,
and severe acromial clavicle (AC) joint arthropathy.
On July 25, 2018 Dr. Thomas E. Fithian, a Board-certified orthopedist, treated appellant
for right shoulder pain with an acute onset on June 21, 2018. Appellant reported lifting a 50-pound
metal cover with the help of another person and felt an abrupt pull and pain in the right upper arm
as though something “gave way.” He reviewed the MRI scan and noted a complex full-thickness
tear of the supraspinous tendon and infraspinatus tendon with thinning at the margins and marked
impingement. Findings on examination revealed nontender AC joint, no atrophy or scapular
winging, intact long head biceps tendon, mild external rotation weakness, and positive
impingement sign. X-rays obtained that day revealed moderate type II acromion, dramatic greater
tuberosity changes consistent with mechanical impingement, and mild-to-moderate degenerative
changes to the AC joint. Dr. Fithian diagnosed impingement syndrome of the right shoulder, mild
osteoarthritis of right glenohumeral joint, arthritis of the right AC joint, and traumatic complete
tear of right rotator cuff. He recommended surgical intervention.
In a Form CA-17 dated July 27, 2018, Dr. Fithian diagnosed right shoulder rotator cuff tear
and impingement and returned appellant to work with restrictions. In a Form CA-20 dated July 31,
2018, he indicated that appellant was injured at work on June 21, 2018 while lifting a 50-pound
metal cover with the help of another person and felt an abrupt pull and pain in the right upper arm
as though something gave way. Dr. Fithian diagnosed traumatic right rotator cuff tear and checked
a box marked “Yes” indicating that appellant’s condition had been caused or aggravated by an
employment activity. He advised that appellant was partially disabled from July 26, 2018.
On October 19, 2018 appellant requested reconsideration.
OWCP subsequently received additional medical evidence. Dr. Fithian treated appellant
in follow-up on November 5, 2018 for right shoulder pain. He diagnosed right shoulder rotator
cuff tear and adhesive capsulitis. Dr. Fithian returned appellant to sedentary work with
restrictions.
In a work restriction form dated November 6, 2018, Dr. Ernest L. Fair, a Board-certified
physiatrist and employing establishment physician, noted that appellant had a right shoulder injury
and could perform sedentary work with temporary restrictions.
By decision dated November 29, 2018, OWCP denied modification of the August 23, 2018
decision.
On July 11, 2019 appellant requested reconsideration and submitted additional evidence.
In order notes dated November 5, December 5 and 31, 2018 and April 17, 2019, Dr. Fithian treated
3

appellant for right shoulder pain, which began on June 21, 2018. He diagnosed right shoulder
rotator cuff tear and adhesive capsulitis and recommended surgery. Dr. Fithian returned appellant
to modified sedentary duty with restrictions on the right arm.
In progress notes dated December 5, 2018; and February 6, April 17, and June 17, 2019,
Dr. Fithian diagnosed impingement syndrome of the right shoulder, mild osteoarthritis of right
glenohumeral joint, arthritis of the right AC joint, and traumatic complete tear of right rotator cuff
and recommended surgical intervention. He noted that appellant reported continued improvement
of the right shoulder and declined surgical intervention. Dr. Fithian continued appellant’s work
restrictions of sedentary light-duty activities with the right arm.
Appellant attended physical therapy treatment from November 9 to December 4, 2018.
OWCP also received appellant’s July 5, 2019 response to its development questionnaire.
Appellant asserted that the injury occurred when he was assisting with the installation of a crane
gear box cover. He was lifting the cover when it shifted and pulled his right arm downward causing
the injury to his right upper arm and shoulder muscle. Appellant reported the injury to his zone
manager and iced it overnight. The next day he noted that he could barely move his right upper
arm, but reported to work and was escorted to the dispensary to be examined by the physician.
Appellant then sought treatment from his primary care physician. He indicated that he did not
sustain any other injury on or off duty between the date of the injury and the date he first reported
it to his supervisor and physician. Appellant noted that his right upper arm condition between the
date of the injury and the date he first received medical attention was initially sore, but not swollen
and over time his arm and shoulder became very sore and he could barely move them. He advised
that he did not have any similar disability or symptoms prior to the injury.
By decision dated August 14, 2019, OWCP modified its November 29, 2018 decision to
find that appellant had established that the June 21, 2018 employment incident occurred as alleged,
and that he sustained a strain of muscles and tendons of the rotator cuff of the right shoulder.
However, the claim remained denied as the medical evidence of record was insufficient to establish
causal relationship between the diagnosed medical condition and the accepted June 21, 2018
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

Id.

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. The first component is whether the employee actually experienced the employment
incident that allegedly occurred.8 The second component is whether the employment incident
caused a personal injury.9 An employee may establish that an injury occurred in the performance
of duty as alleged, but fail to establish that the disability or specific condition for which
compensation is being claimed is causally related to the employment incident.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
specific employment incident.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted June 21, 2018 employment incident.
In support of his claim, appellant submitted a series of medical reports from Dr. Fithian
dated July 25 to December 31, 2018 and February 6 to June 17, 2019. Dr. Fithian repeated
appellant’s history of injury and diagnosed impingement syndrome of the right shoulder, mild
osteoarthritis of right glenohumeral joint, arthritis of the right AC joint, and traumatic complete
tear of right rotator cuff. The mere recitation of patient history does not suffice for purposes of

5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016).

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

T.H., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

establishing causal relationship between a diagnosed condition and the employment incident.14
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship.15
In a July 31, 2018 Form CA-20 report, Dr. Fithian diagnosed traumatic right rotator cuff
tear and indicated by checking a box marked “Yes” indicating that appellant’s condition had been
caused or aggravated by an employment activity. In a Form CA-20 dated July 9, 2018, Dr. Putland
indicated that appellant was injured at work on June 21, 2018 and diagnosed acute right shoulder
pain and checked a box marked “Yes” indicating that appellant’s condition had been caused or
aggravated by an employment activity. Similarly, in a Form CA-20 attending physician’s report
dated July 10, 2018, Dr. Barley diagnosed acute right shoulder pain. In this report he checked a
box marked “Yes” indicating that appellant’s condition had been caused or aggravated by an
employment activity. However, the Board has held that an opinion on causal relationship with an
affirmative check mark, without more by way of medical rationale, is insufficient to establish the
claim.16 As such, these reports are insufficient to establish appellant’s claim.
In a Form CA-17 dated July 27, 2018, Dr. Fithian diagnosed right shoulder rotator cuff tear
and impingement and returned appellant to work with restrictions. However, he did not address
whether appellant’s employment was sufficient to have caused or aggravated a diagnosed medical
condition. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition or disability is of no probative value on the issue of causal relationship.17
In duty status reports dated July 9 and 11, 2018, Drs. Putland and Barley diagnosed right
shoulder strain and noted that appellant was temporarily disabled from work. Similarly, on
November 6, 2018, Dr. Fair treated appellant for a right shoulder injury and returned him to
sedentary work. On June 22 and July 6, 2018 Dr. Merrell treated appellant for a right shoulder
injury. She noted that on June 22, 2018 he was assisting with the installation of a metal cover to
a gear box and pulled a muscle in his arm/shoulder. As these notes do not address causation, they
are of no probative value and insufficient to meet appellant’s burden of proof.18
Appellant submitted reports from a physical therapist. However, certain healthcare
providers such as physician assistants, nurse practitioners, physical therapists, and social workers’

14

N.S., Docket No. 19-0167 (issued June 21, 2019); J.G., Docket No. 17-1382 (issued October 18, 2017).

15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
17

See supra note 15.

18

Id.

6

are not considered “physician[s]” as defined under FECA.19 Consequently, these reports do not
constitute competent medical evidence.20
Appellant also submitted a July 7, 2018 MRI scan report of the right shoulder. The Board
has held, however, that diagnostic test reports, standing alone, lack probative value as they do not
provide an opinion on causal relationship between an employment incident and a diagnosed
condition.21
As the record lacks rationalized medical evidence establishing causal relationship between
appellant’s claimed conditions and the accepted June 21, 2018 employment incident, the Board
finds that he has not met his burden of proof.
On appeal appellant asserts that he submitted sufficient medical evidence in support of his
claim for compensation. However, as explained above, there was no rationalized medical evidence
by a physician of record at the time OWCP issued its August 14, 2019 decision. As such, appellant
has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted June 21, 2018 employment incident.

19
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); R.L., Docket No. 19-0440 (issued July 8, 2019) (physical therapists are not considered physicians under
FECA).
20

N.B., Docket No. 19-0221 (issued July 15, 2019).

21

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
GOVERNMENT PRINTING OFFICE,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0867
Issued: October 24, 2017

Case Submitted on the Record

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

JURISDICTION
On March 10, 2017 appellant, through counsel, filed a timely appeal from a
September 12, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days have elapsed from the last merit decision of OWCP dated
September 14, 2015, to the filing of this appeal, pursuant to the Federal Employees’

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.

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 his claim pursuant to 5 U.S.C. § 8128(a).
On appeal counsel asserts that appellant’s claims for a recurrence of disability and
schedule award were improperly denied.
FACTUAL HISTORY
OWCP accepted that on June 8, 2012 appellant, then a 44-year-old fork/clamp truck
operator, sustained left ankle ligament instability when he slipped and rolled his left ankle on
fluid on the floor at work. He stopped work on the date of injury and returned to regular-duty
work on October 2, 2012.
On August 12, 2013 OWCP granted appellant a claim for a schedule award (Form CA-7)
for 11 percent permanent impairment of the left lower extremity based on a July 10, 2013
medical opinion of an attending physician, Dr. Kevin E. McGovern, a Board-certified orthopedic
surgeon and an OWCP district medical adviser (DMA). The period of the award ran from
February 18 to September 27, 2013.
In a September 10, 2013 letter postmarked September 12, 2013 and received on
September 18, 2013, appellant requested a telephone hearing with an OWCP hearing
representative. In an October 30, 2013 decision, OWCP denied appellant’s request for a hearing
because it was not timely filed within 30 days of its August 12, 2013 decision. It also exercised
its discretion and determined that the issue in the case could equally well be addressed through
the reconsideration process.
On November 15, 2013 appellant filed a recurrence of disability claim (Form CA-2a)
commencing on October 29, 2013, which was causally related to his accepted June 8, 2012
employment-related injury. OWCP, in a January 6, 2014 decision, denied appellant’s recurrence
claim, finding that the evidence of record was insufficient to establish that he was disabled due to
a material worsening of his accepted work-related condition.
In an undated letter, received by OWCP on March 6, 2014, appellant requested
reconsideration of the January 6, 2014 recurrence decision. He claimed that he sustained a new
2

5 U.S.C. § 8101 et seq.

3

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). By order dated July 25, 2017, the Board exercised its discretion and denied the
request, finding that the arguments presented on appeal could adequately be addressed based on review of the case
record. Order Denying Oral Argument, Docket No. 17-0867 (issued July 25, 2017). The Board’s Rules of
Procedure provide that any appeal in which a request for oral argument is not granted by the Board will proceed to a
decision based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).

2

left lower limb injury due to the accepted June 8, 2012 work injury. Appellant also requested
that his claim be expanded to include the acceptance of right hip and leg, and lower back
injuries.
In support of his reconsideration request, appellant submitted an occupational disease
claim (Form CA-2) alleging that he sustained thoracic lumbosacral neuritis and radiculitis,
displacement of intervertebral disc without myelopathy, contusion of the left foot, lumbosacral
joint sprain, enthesopathy of the right hip, and post-traumatic neuritis of the left foot as a result
of the June 8, 2012 employment incident. He alleged that he first became aware of these
conditions and their relationship to his employment on October 28, 2013.
On April 2, 2014 appellant requested reconsideration of the August 12, 2013 schedule
award decision.
In a May 15, 2014 decision, OWCP denied modification of the January 6, 2014
recurrence decision. It found that the medical evidence appellant submitted addressed his back
condition which was not accepted as work related and, thus, he did not have a recurrence of
disability causally related to his accepted June 8, 2012 work injury. On May 28, 2014 appellant
requested reconsideration of this decision. OWCP, in a June 3, 2014 decision, denied
reconsideration, finding that appellant did not raise substantive legal questions or include new
and relevant evidence sufficient for further merit review.
In a June 11, 2014 decision, OWCP denied modification of the August 12, 2013 schedule
award decision, finding the DMA’s opinion continued to carry the weight of the medical
evidence. On June 23, 2014 appellant requested reconsideration.
OWCP received additional medical evidence, which included a medical report dated
July 21, 2014 and a progress note dated October 29, 2014 from Dr. Eric L. Weisbrot, a family
practitioner. Dr. Weisbrot noted his history of injury which included the June 8, 2012
employment injury, but indicated that the date of injury was June 6, 2012, and a
September 27, 2014 fall at home. He examined appellant and diagnosed chronic causalgia of the
lower limb, chronic displacement of a lumbar intervertebral disc without myelopathy, and
chronic sprain and strain of unspecified site of the left ankle. In the October 29, 2014 progress
note, Dr. Weisbrot advised that appellant was unable to work from October 28, 2014 through
January 14, 2015. In the July 21, 2014 report, he opined that the diagnosed conditions were
causally related to the June 6, 2012 accident. Dr. Weisbrot noted that appellant had been off
work since October 28, 2013 and that he could engage in activity as tolerated. On October 31,
2014 OWCP received a February 26, 2014 report from Dr. Gary Pushkin, a Board-certified
orthopedic surgeon who reported that appellant had no permanent impairment of his left leg.
In a November 20, 2014 decision, OWCP denied modification of its prior schedule award
decision as the evidence presented was insufficient to establish that appellant had more than 11
percent permanent impairment of the left leg. It also found that, based on Dr. Pushkin’s report,
further development of the medical evidence was required as that physician reported that
appellant had no impairment of the left lower extremity.

3

OWCP, in January 16 and March 10, 2015 decisions, denied modification of its prior
recurrence decisions as the medical evidence was insufficient to establish that appellant sustained
a recurrence of disability on October 29, 2013 or a back condition causally related to his
accepted left ankle condition.
On January 22, 2015 OWCP notified appellant that a second opinion medical
examination had been scheduled in his claim.
After further development of the medical evidence on the extent of appellant’s left leg
impairment, OWCP, in a March 19, 2015 letter, informed appellant that it had rescinded its
November 20, 2014 decision. It issued a decision on March 19, 2015, finding that the medical
evidence was sufficient to establish that appellant had no more than 11 percent permanent
impairment of the left lower extremity based on the second opinion report of Dr. Robert A.
Smith, a Board-certified orthopedic surgeon and an OWCP referral physician.
In a June 26, 2015 letter received on June 30, 2015, appellant requested reconsideration
of the March 19, 2015 schedule award decision. In a June 28, 2015 letter also received on
June 30, 2015, he requested reconsideration of the March 10, 2015 recurrence decision.
OWCP, in a September 14, 2015 decision, denied modification of its March 10, 2015
recurrence decision. It again found that the medical evidence submitted by appellant was
insufficient to establish that he sustained a back condition causally related to the accepted June 8,
2012 employment injury.
In a separate September 14, 2015 decision, OWCP denied modification of its March 19,
2015 schedule award decision. It found that the medical evidence submitted by appellant was
insufficient to outweigh the opinions of the DMA and Dr. Smith.
On February 11, 2016 appellant requested reconsideration, a review of the written record,
before an OWCP hearing representative, a decision with appeal rights concerning his
occupational disease claim filed on October 28, 2013, and an amended schedule award. He
contended that he sustained additional injuries for which he filed the October 28, 2013 Form CA2 and which resulted in greater permanent impairment and not a recurrence of disability as
adjudicated by OWCP.
In a May 11, 2016 decision, OWCP denied appellant’s request for reconsideration of the
merits of his claim. It found that it was not clear which September 14, 2015 decision he was
appealing.
OWCP received a May 19, 2016 progress note in which Dr. Weisbrot examined appellant
and again diagnosed chronic causalgia of the lower limb, chronic displacement of a lumbar
intervertebral disc without myelopathy, and chronic sprain and strain of unspecified site of the
left ankle.
In a June 13, 2016 letter received on June 14, 2016, appellant requested reconsideration
of the May 11, 2016 decision. He again requested a formal decision regarding his October 28,
2013 Form CA-2 claim. Appellant asserted that OWCP either had abused its discretion by
continuously denying his claim as a recurrence claim or erred in not assigning a file number to
4

his Form CA-2 claim. He contended that the medical evidence of record was sufficient to
establish his claim. OWCP also received duplicate copies of Dr. Weisbrot’s July 21, 2014 report
and October 29, 2014 progress note.
By decision dated September 12, 2016, OWCP denied further merit review of appellant’s
claim. It found that his 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 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
OWCP issued an August 12, 2013 merit decision granting appellant a schedule award for
11 percent permanent impairment of the left lower extremity due to his accepted June 8, 2012
employment-related left ankle ligament instability condition. In a January 6, 2014 decision, it
denied his claim for a recurrence of disability commencing on October 29, 2013 due to the
accepted work injury. Subsequently, OWCP issued a series of decisions, denying modification
of both decisions. It rescinded its November 20, 2014 decision, denying modification of its
schedule award decision for further development of the medical evidence. In a March 19, 2015
decision, OWCP found that the weight of the medical evidence established that appellant had no
more than 11 percent permanent impairment of the left leg. By decision dated September 14,
2015, it denied modification of this decision. In a separate decision also dated September 14,
2015, OWCP denied modification of its recurrence decision. On May 11, 2016 it denied
appellant’s request for a merit review of his claim as it was not clear which September 14, 2015
decision he was appealing. On June 14, 2016 appellant requested reconsideration. OWCP
declined his request for reconsideration in a September 12, 2016 nonmerit decision.
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).

5

The Board does not have jurisdiction over OWCP’s merit decisions and can consider
only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which would
prompt OWCP to reopen the case for merit review. The underlying issues on reconsideration are
medical in nature, whether appellant met his burden of proof to establish that he had more than
11 percent permanent impairment of the left lower extremity, for which he previously received a
schedule award, and whether he sustained a recurrence of disability commencing October 29,
2013 due to his accepted work condition.
The Board finds that in his June 14, 2016 request for reconsideration, appellant did not
show that OWCP erroneously applied or interpreted a specific point of law, or advance a new
and relevant legal argument not previously considered. He reiterated his contention that OWCP
should adjudicate his October 28, 2013 Form CA-2 claim as he sustained a new injury due to the
accepted June 8, 2012 employment injury and not a recurrence of disability. Evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.8 Therefore, appellant’s contentions are
insufficient to warrant further merit review of his claim.
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered. Appellant resubmitted copies of Dr. Weisbrot’s July 21, 2014 report
and October 29, 2014 progress note. As noted, evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.9 The Board finds, therefore, that the evidence submitted by appellant is
insufficient to reopen his claim for a merit review.
The Board accordingly finds that appellant did not meet 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 argues the merits of appellant’s claim and asserts that his claims for a
recurrence of disability and schedule award were improperly denied. The Board, as noted above,
only has jurisdiction over OWCP’s September 12, 2016 nonmerit decision which denied
appellant’s request for reconsideration and, therefore, is precluded from conducting a merit
review.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in increased permanent impairment.

8

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

9

Id.

10

See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,
Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006);
(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).

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 12, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2017
Washington, DC

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

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

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

7