United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K, Appellant
and
U.S. POSTAL SERVICE, MORGAN PARK
STATION, POST OFFICE, Chicago, IL,
Employer
__________________________________________

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

Docket No. 11-899
Issued: December 23, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 2011 appellant filed a timely appeal of an August 20, 2010 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) denying recurrence of
disability and an October 1, 2010 nonmerit decision.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued August 20, 2010, the 180-day computation begins August 21, 2010. One hundred and eighty days from
August 21, 2010 was February 16, 2011. Since using March 1, 2011, the date the appeal was received by the Clerk
of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The
date of the U.S. Postal Service postmark is February 10, 2011 which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
sustained a recurrence of disability on September 21, 2009 causally related to his November 27,
2007 employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration on the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant alleged that OWCP failed to properly develop his initial claim to
include all his back conditions due to the accepted employment injury.
FACTUAL HISTORY
On December 3, 2007 appellant, then a 50-year-old letter carrier, filed a traumatic injury
alleging that on November 27, 2007 he injured his back when he attempted to catch a coworker
who had tripped. OWCP accepted his claim for a sprain of back in the lumbar region on
December 14, 2007.
Appellant filed a recurrence of disability on January 9, 2008 and alleged that he
developed a recurrence of disability on January 4, 2008. He stopped work on that date as his
back pain became too great. Appellant noted that he had preexisting degenerative disc disease.
On March 7, 2008 OWCP informed him that his claim was open for medical treatment.
Appellant filed a second claim for recurrence on May 19, 2008 and stopped work on May 10,
2008 due to severe back and hip pain. He underwent a lumbar magnetic resonance imaging
(MRI) scan on April 15, 2008 which demonstrated advanced degenerative disc disease at L5-S1
with osteophytes and mild to moderate degenerative facet hypertrophy. Appellant’s MRI scan
also found small central disc protrusions at L3-4 and L4-5. OWCP accepted his January 5, 2008
claim for recurrence of disability on September 9, 2008. On August 11, 2009 it accepted
appellant’s May 10, 2008 recurrence of disability claim.
On July 28, 2009 appellant requested a schedule award. He submitted a November 30,
2001 MRI scan which demonstrated a herniated disc at L5-S1.
On October 6, 2009 appellant filed a recurrence of disability claim alleging on
September 21, 2009 he stopped work due to pain in both legs and hips as well as his testicles.
He filed an additional claim on October 15, 2009 alleging a recurrence on October 5, 2009. In a
note dated October 7, 2009, Dr. Martin Hall, an orthopedic surgeon, stated that appellant had low
back pain with weakness and testicular discomfort. He found no spasm on examination and no
radicular symptoms. Dr. Hall noted that appellant had L5-S1 degenerative disc based on x-rays.
He diagnosed lumbar degenerative disc. Dr. Lawrence Okafor, an internist, completed a note on
October 8, 2009 and stated that appellant experienced intermittent lumbar pain from February 28
through March 12, 2009; from September 21 through 29, 2009 and on October 5 to 12, 2009 and
that appellant’s “mail job aggravates it.”
Dr. Suneela Harsoor, a Board-certified anesthesiologist, examined appellant on
November 23, 2009 and diagnosed lumbar discogenic pain secondary to disc protrusion and
lumbar facet arthropathy. She reviewed his April 15, 2008 MRI scan. Dr. Harsoor stated that
appellant had slightly reduced range of motion in the lumbar spine and mild paraspinal muscle

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tenderness with trigger points in the gluteal muscles. Dr. Prentiss Taylor, a Board-certified
pulmonologist, examined appellant on April 30, 2010 and reviewed his history of injury. He
diagnosed pain in the right shoulder joint, pulmonary obstructive disorders, osteoarthritis, lower
back sprain, spinal stenosis and adult sleep apnea. On May 6, 2010 Dr. Taylor diagnosed lower
back sprain and recommended that appellant lose weight and exercise.
In a letter dated June 11, 2010, OWCP referred appellant for a second opinion evaluation
with Dr. Julie M. Wehner, a Board-certified orthopedic surgeon. On July 20, 2010 Dr. Wehner
noted his history of injury on November 27, 2007. She reviewed appellant’s medical history and
diagnosed a lumbar strain as resulting from the employment injury. Dr. Wehner reviewed his
present symptoms for testicular pain and pain radiating down the inside of both legs and stated
that this pain did not follow a radicular pattern and was not solely related to low back problems.
She stated that appellant’s present clinical examination was benign. Dr. Wehner stated,
“[Appellant] has intermittent exacerbations of his pain which are consistent with his preexisting
problem. He should have reached maximum medical improvement from the lumbar strain within
three months from the date of injury of November 27, 2007. Ongoing pain complaints are no
longer related to a lumbar strain. They are due to [appellant’s] underlying and preexisting disc
degeneration and disc herniation.” Dr. Wehner opined that appellant could perform full duty
except when he had intermittent exacerbation of his pain due to the degenerative disc at L5-S1
which was related to his prior decision herniation. She concluded, “However, continued
exacerbations are no longer attributable to a work-related lumbar strain from a temporary
exacerbation from November 27, 2007. They are due to the chronic problem [appellant] had
prior to this injury.”
In a letter dated August 19, 2010, OWCP requested that Dr. Taylor describe appellant’s
permanent impairment for schedule award purposes.
By decision dated August 20, 2010, OWCP denied appellant’s claim for recurrence of
disability beginning September 21, 2009. It found that the medical evidence did not establish
that the claimed recurrence resulted from the accepted work injury.
Appellant requested reconsideration of the August 20, 2010 decision on
September 17, 2010. He submitted the appeal request form by placing a checkmark alongside
the reconsideration option. Appellant resubmitted the MRI scan report dated November 30,
2001, which demonstrated a herniated disc at L5-S1.
By decision dated October 1, 2010, OWCP declined to reopen appellant’s claim for
consideration of the merits on the grounds that he failed to submit any new evidence or legal
argument with his reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his

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or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.3 Appellant
has the burden of establishing by the weight of the substantial, reliable and probative evidence, a
causal relationship between his recurrence of disability commencing September 21, 2009 and his
November 27, 2007 employment injury.4 This burden includes the necessity of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for injury on November 27, 2007 as resulting in a
sprain of back in the lumbar region. In support of his claim for a recurrence of disability on
September 21, 2009, appellant submitted medical reports from several different physicians.
Dr. Hall completed a note of October 7, 2009 and diagnosed low back pain with weakness and
testicular discomfort. He also found an L5-S1 degenerative disc based on x-rays. Dr. Hall did
not opine that appellant’s diagnosed conditions were due to his accepted employment injury and
did not distinguish between his employment-related and preexisting conditions. Due to these
deficiencies his report is not sufficiently detailed to establish that appellant’s recurrence of
disability on or after September 21, 2009 was due to his accepted back sprain.
Appellant also submitted a note dated October 8, 2009 from Dr. Okafor listing
appellant’s intermittent lumbar pain from February 28 through March 12, 2009; from
September 21 through 29, 2009 and on October 5 to 12, 2009. Dr. Okafor stated that appellant’s
work aggravated his lumbar pain. The Board has held that the mere diagnosis of “pain” does not
constitute the basis for payment of compensation.6 Furthermore, Dr. Okafor’s report did not
include a history of injury, detailed findings or medical explanation of how appellant’s work
aggravated his lumbar pain. As his report does not provide the necessary medical findings or a
clear diagnosis, his report is not sufficient to meet appellant’s burden of proof in establishing a
recurrence of disability.
Dr. Harsoor provided a report dated November 23, 2009 diagnosing lumbar discogenic
pain secondary to disc protrusion and lumbar facet arthropathy. She provided her physical
findings. Dr. Harsoor did not provide a history of injury including appellant’s preexisting
lumbar disc herniation or degenerative disc disease. She did not explain whether his current
condition was due to his accepted lumbar strain or due to his preexisting condition. Without a
complete history and with no medical opinion evidence this report is not sufficient to establish
that appellant’s current disability is related to his accepted employment injury.

3

20 C.F.R. § 10.5(x).

4

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-9 (1982).

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

Robert Broome, 55 ECAB 339 (2004).

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In a report dated April 30, 2010, Dr. Taylor reviewed appellant’s history of injury and
provided multiple diagnoses including pain in the right shoulder joint, pulmonary obstructive
disorders, osteoarthritis, lower back sprain, spinal stenosis and adult sleep apnea. He completed
an additional report on May 6, 2010 again diagnosing lower back sprain. While Dr. Taylor noted
appellant’s accepted employment injury, he did not provide the history of a herniated disc in
2001. He also failed to offer a clear opinion as to whether he believed that appellant’s current
lower back sprain was due to the 2007 employment injury. As Dr. Taylor failed to provide a
detailed medical history and opinion evidence regarding the relationship of appellant’s current
back condition to his accepted employment injury, his report is insufficient to establish that
appellant’s condition on or after September 2009 was due to a recurrence of employment-related
disability.
The Board finds that the medical evidence submitted by appellant is insufficient to meet
his burden of proof in establishing a recurrence of disability on or after September 21, 2009.
OWCP undertook further development of the medical evidence and referred appellant to
Dr. Wehner for evaluation. In her July 20, 2010 report, Dr. Wehner related his history of injury
and reviewed his medical history. She diagnosed a lumbar strain as resulting from the
employment injury. Dr. Wehner found that appellant’s present symptoms did not follow a
radicular pattern and therefore were not related to low back problems. She stated that he should
have reached maximum medical improvement from the lumbar strain and that ongoing pain
complaints are not causally related to the accepted condition. Dr. Wehner instead attributed
appellant’s pain to his preexisting disc degeneration. The Board finds that OWCP’s second
opinion physician, Dr. Wehner’s report negates rather than supports a causal relationship
between his current condition and his accepted employment injury. As Dr. Wehner attributed
appellant’s current condition to his preexisting disc degenerative, this report does not support his
claim for a recurrence of disability on or after September 21, 2009. Based on the medical
evidence in the record, the Board finds that appellant has failed to establish his claimed
recurrence.
On appeal, appellant alleged that OWCP failed to consider all the aspects of his condition
when accepting his claim for lumbar sprain. The Board notes that the record establishes that in
2001 he had a herniated disc. However, there is no evidence before the Board that this
diagnosed condition was employment related. The record does not establish that appellant filed
a claim or that this condition was due to an earlier employment injury. Furthermore, appellant
has not submitted medical evidence that his November 2007 employment injury resulted in more
than the accepted lumbar strain. Based on the record as currently constructed, the Board finds
that he has not established the claimed recurrence of disability on September 21, 2009.
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.

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LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.7
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.8 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.9
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of OWCP’s August 20, 2010 decision on
September 17, 2010 by selecting the option of reconsideration on the appeal request form. In
support of his reconsideration request, he resubmitted the MRI scan report dated
November 30, 2001. Appellant did not submit any additional evidence or argument in support of
his request.
The November 30, 2001 MRI scan report was before OWCP at the time of the August 20,
2010 decision. As this medical evidence is not new it is not sufficient to require OWCP to
reopen appellant’s claim for consideration of the merits.11 Appellant did not provide OWCP
with any additional evidence of argument and therefore the Board finds that OWCP properly
declined to reopen his claim for consideration of the merits.

7

5 U.S.C. §§ 8101-8193, 8128(a).

8

20 C.F.R. § 10.606.

9

Id. at § 10.608.

10

M.E. 58 ECAB 694 (2007).

11

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB
393, 398 (1984).

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CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establishing a
recurrence of disability on or after September 21, 2009. The Board further finds that OWCP
properly declined to reopen his claim for consideration of the merits on October 1, 2010.
ORDER
IT IS HEREBY ORDERED THAT the October 1 and August 20, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 23, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Deer Lodge, MT,
Employer
__________________________________________

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

Docket No. 17-0925
Issued: December 14, 2017

Case Submitted on the Record

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

JURISDICTION
On March 23, 2017 appellant, through counsel, filed a timely appeal from a January 20,
2017 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 established an occupational disease causally related to
exposure to chemicals on July 8 and 10, 2009 in the performance of his federal employment
duties.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as set forth in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On July 15, 2009 appellant, then a 36-year-old seasonal maintenance worker, filed an
occupational disease claim (Form CA-2) alleging that on July 11 and 12, 2009 he experienced
tingling, nerve spasms, loss of muscle control, numbness, rapid and heavy breathing, tightness in
chest, sweating, panic, and emotional stress after he cleaned out hazardous materials (hazmat)
storage sheds on July 8 and 10, 2009. He stopped work on July 31, 2009.
The employing establishment provided an incident investigation report by Robert Glover,
an accident investigator. This report related that on July 8 and 10, 2009 appellant and three other
Youth Conservation Crew (YCC) members cleaned out a building spill in a hazmat storage shed.
Mr. Glover related that the shed contained a 55-gallon barrel of boiled linseed oil, which was 80
percent of the contents of the spill reservoir, and the other 20 percent of the spill were unknown
organic and nonorganic solvents. He noted that the workers used rubber gloves, latex gloves,
wide putty knives, paint stripper, Grez-Off, and N95 respirators. The employing establishment
also provided various statements from appellant’s supervisors, which described events that
occurred from July 8 to 13, 2009 relating to the chemical exposure.
In reports dated July 22 and August 21, 2009, Dr. Patrick J. McGree, a Board-certified
family practitioner, described that on July 8 and 10, 2009 appellant cleaned out a storage
container with multiple chemicals and that on July 11 and 12, 2009 he experienced episodes of
cramps and numbness. He also related that appellant continued to complain of tremors, chest
pain, and difficulty breathing. Dr. McGree reviewed appellant’s history and reported an
essentially normal physical examination. He opined that appellant had chemical exposure,
multiple spasms and contractures, and a history of hepatitis C.
By letter dated August 17, 2009, OWCP advised appellant that the evidence submitted
was insufficient to establish his occupational disease claim. It requested that he submit
additional factual information regarding the July 8 and 10, 2009 exposure incident at work and
medical evidence to establish a diagnosed medical condition as a result of the alleged exposure at
work. A similar letter was sent to the employing establishment. Appellant was afforded 30 days
to submit the additional evidence.
The employing establishment provided a September 17, 2009 letter from an employee
relations specialist for the employing establishment, who described appellant’s complaints of
feeling “light-headed” and having to “spit junk out of his throat.” The employee relations
3

Docket No. 16-0374 (issued November 2, 2016).

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specialist indicated that appellant did not take any time off work until July 22, 2009 and that the
other staff members did not notice anything unusual with him at work. The employing
establishment also provided an inventory list dated May 15, 2009 of the 62 materials stored in
the hazmat shed and several material safety data sheets (MSDS) for the various materials in the
hazmat shed. It also submitted a position description for a maintenance worker, the results of the
analysis screening of the spilled material, and an August 25, 2009 Investigative Activity Report.
In a decision dated February 4, 2010, OWCP denied appellant’s occupational disease
claim. It accepted that on July 8 and 10, 2009 he was exposed to various chemicals at work, but
denied the claim finding that the medical evidence of record was insufficient to establish a
diagnosed medical condition causally related to the accepted employment factors.
Appellant requested a telephone hearing before an OWCP hearing representative on
March 9, 2010.
By report dated April 19, 2010, Dr. Shawn M. Smith, a Board-certified neurologist,
related that appellant’s December 4, 2009 brain magnetic resonance imaging (MRI) scan and
electroencephalogram (EEG) were within normal limits. He noted that appellant had episodic
twitching movements, which may not have been physiologically caused by his employment
exposure, but may be secondary to somatization due to psychosocial stressors regarding the
event.
A telephone hearing was held on June 8, 2010. Counsel related that appellant was unable
to provide a well-rationalized medical report because the physicians in his town were unfamiliar
with chemical exposure cases.
Dr. Kaye H. Kilburn, Board-certified in internal and occupational medicine, began to
treat appellant in June 2010. In a June 9, 2010 report, he described appellant’s exposure to
hazardous materials and fumes on July 8 and 10, 2009 and his complaints of nausea, confusion,
seizures, convulsions, headache, repeated body electric muscle contractions, numbness, hands
locking up, freezing contractures, muscle contractions, and twitching in the face after appellant’s
chemical exposure. Dr. Kilburn reviewed appellant’s history and indicated essentially normal
findings on physical and neurological examination. He reported that cerebellar signs
demonstrated unsteady gait, ataxic normal dysmetria, and slowed rapid alternating movements.
Neurophysiological tests demonstrated abnormal balance measured by sway speed with eyes
open and closed. Blink reflex latency was abnormal on the right and normal on the left.
Dr. Kilburn diagnosed chemical encephalopathy, peripheral neuropathy, and chemical
intolerance due to pyrethroids and similar chemicals. He opined that appellant suffered multiple
chemical exposures at his workplace in July 2009, resulting in lack of concentration, recent and
long-term memory loss, instability of mood, loss of balance, extreme fatigue, shortness of breath,
headache, nausea, and insomnia. Dr. Kilburn indicated that there was probably a single causal
factor for these manifestations, which was pyrethroid exposure. He noted that pyrethroids were
included in the inventory list of 64 chemicals in the hazmat shed.
By decision dated July 29, 2010, OWCP’s hearing representative remanded the case for
further development of the medical evidence. He found that Dr. Kilburn’s report was sufficient
to warrant further development of the medical evidence.

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OWCP referred appellant’s claim, along with a statement of accepted facts (SOAF) and
the medical record, to Dr. Edward Cetaruk, Board-certified in emergency medicine with a
subspecialty in medical toxicology, for a second opinion examination, to determine whether
appellant sustained a condition causally related to chemical exposure on July 8 and 10, 2009 at
work.
In an August 2, 2010 addendum, Dr. Kilburn reported that appellant was disabled from
employment because of a chemical brain injury, also called chemical encephalopathy. He
explained that the “hours of exposure to cleaning, sorting, and disposing of stored chemicals and
waste in the storage shed on July 8 and 10, 2009, were the major exposure to pyrethroids
(pesticides) that caused the impairment and symptoms.” Dr. Kilburn also noted that appellant
used hydrocarbon solvents to clean the hazmat shed, which caused lightheadedness, dizziness,
loss of concentration and memory, and muscle twitching.
In a December 17, 2010 report, Dr. Cetaruk described the July 8 and 10, 2009 chemical
exposure and the symptoms that appellant experienced following the incident. He reviewed
appellant’s history and noted that he had preexisting disability, hepatitis C, and polysubstance
abuse. Dr. Cetaruk reported essentially normal physical and neurological examination. He
opined that he did not believe that appellant’s exposure while cleaning the hazardous materials
shed were related to his current complaints. Dr. Cetaruk explained that he reviewed the
inventory list of materials in the hazmat shed and none of the compounds would be expected to
cause the episodes appellant experienced on July 11 and 12, 2009 or his continued symptoms.
By decision dated January 20, 2011, OWCP again denied appellant’s claim. It found that
Dr. Cetaruk’s second opinion report constituted the weight of the medical opinion evidence and
established that appellant did not have a medical condition causally related to the accepted
chemical exposure.
On February 17, 2011 appellant again requested a telephone hearing before an OWCP
hearing representative. A telephone hearing was held on June 9, 2011. Dr. Kilburn testified that
appellant had chemical encephalopathy as a result of exposure to chemicals, specifically
pyrethroids, on July 8 and 10, 2009 at work. He also noted the differences between specialties in
neurotoxicology and toxicology.
Dr. Kilburn provided reports commencing January 24, 2011 wherein he indicated that the
30 objective tests that he performed on appellant revealed brain impairment. He noted that
exposure to pyrethroid, which was found in indoor insect foggers, adequately explained all of
appellant’s movement disorders, disturbance balance, deficient memory, slowed blink reflex,
diminished grip strength, and blind spots. In a July 15, 2011 report, Dr. Kilburn related that
appellant was physically and neurologically normal prior to the hazmat clean up job on July 8
and 10, 2009, but later experienced nausea, confusion, seizures, headaches, strong unexpected
muscle contractions, numbness, hands locking up and freezing, and twitching of the face, neck,
lips, eyelids, and eyes.
By decision dated September 1, 2011, OWCP’s hearing representative again remanded
the case to OWCP for further development. He found that Dr. Cetaruk’s opinion required
clarification as to whether the substances appellant had cleaned from the floor of the hazmat shed

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had been tested and identified and whether they may have been a cause of appellant’s medical
condition.
OWCP requested that Dr. Cetaruk provide clarification of his December 17, 2010 second
opinion report. It advised him to review the lab results of the testing performed on the materials
contained in the hazmat shed and the MSDS sheets of the substances and provide an opinion on
whether the nature and extent of appellant’s exposure in the hazmat shed contributed to chemical
encephalopathy condition as suggested by Dr. Kilburn.
In an April 19, 2012 supplemental report, Dr. Cetaruk indicated that he re-reviewed the
medical record and the new additional documentation forwarded to him since his December 17,
2010 report. He opined that, based on the toxicology of all compounds in the matter and the
history obtained by appellant, he found no demonstration of an exposure pathway or
documentation of toxicological chemical exposure to pyrethroid compounds. Dr. Cetaruk also
reported that none of the pesticides listed on the May 15, 2009 Inventory List were known to
cause the history of appellant’s complaints. He disagreed with Dr. Kilburn’s medical opinion
and asserted that nothing on the record supported that appellant was exposed to over 60
compounds. Dr. Cetaruk opined that there was no epidemiological data to support a valid causal
relationship between appellant’s current complaints and his potential exposure to pyrethroids
and/or the other compounds in the hazmat shed.
By decision dated May 7, 2012, OWCP again denied appellant’s claim. It found that
Dr. Cetaruk’s opinion constituted the weight of the medical opinion evidence and established
that the substances on the hazmat shed floor were not pyrethroid compounds.
On May 15, 2012 appellant requested another telephone hearing before an OWCP
hearing representative.
In a June 25, 2012 letter, Dr. Kilburn clarified that neurotoxicology was a specialty in
neurology and toxicology, which used many quantitative measurements of brain function, but
that toxicology was a poison control function of doctors in emergency medicine without special
training in neurology.
On June 29, 2012 OWCP’s hearing representative vacated the May 7, 2012 denial
decision and remanded the case for further medical development. She found that a conflict
existed in the medical opinion evidence between Dr. Kilburn and Dr. Cetaruk as to whether
appellant had a medical condition causally related to the accepted employment incident. The
hearing representative found that appellant should be referred for an impartial medical
evaluation.
On remand from the June 29, 2012 hearing representative decision, OWCP referred
appellant’s case, along with an updated SOAF, to Dr. Scott Phillips, Board-certified in internal
and emergency medicine with a subspecialty in medical toxicology, for an impartial medical
examination to resolve the conflict of medical opinion between Dr. Kilburn, appellant’s treating
physician, and Dr. Cetaruk, an OWCP referral physician, regarding whether appellant’s exposure
to chemicals or substances on July 8 and 10, 2009 caused or contributed to a medical condition.

5

In a September 26, 2012 report, Dr. Phillips related that on July 8 and 10, 2009 appellant
cleaned up spilled linseed oil in a hazmat shed that contained several containers of various
substances. He described appellant’s immediate symptoms and reported that since the
employment incident appellant complained of muscle spasms in his face, difficulty talking, and
spasms of his arms, primarily on the right side. Dr. Phillips reviewed appellant’s medical
records, including Dr. Cetaruk’s December 17, 2010 and April 19, 2012 reports and
Dr. Kilburn’s various reports. He noted that Dr. Kilburn opined that appellant suffered from
pyrethroid poisoning, but he clarified that pyrethroids did not cause this cluster of symptoms as
described by appellant.
Upon examination, Dr. Phillips observed some intermittent twitching movements
primarily involving the right side of appellant’s face and the right upper extremity. He reported
normal findings on physical and neurological examination of the head, ears, nose, throat, chest,
abdomen, extremities, and skin. Mental status was described as grossly normal with some
pressured speech at times. Dr. Phillips indicated that appellant did not demonstrate any signs or
symptoms after leaving the office. He diagnosed other and unspecified factitious illness,
episodic mood disorder, and hepatitis C without coma. Dr. Phillips opined that, based on his
evaluation of the exposure history and consideration of the chemicals being provided, he did not
believe there was “a causal nexus between the work in the hazardous materials shed and the
complaints proffered by [appellant] and supported by Dr. Kilburn.” He explained that this
opinion was supported by the focality of the symptoms, signs displayed by appellant, his training
and experience in medical toxicology, and peer-reviewed scientific literature. Dr. Phillips
reported that the chemicals listed were not known to cause the types of symptoms claimed by
appellant which were supported by Dr. Kilburn and that there was no evidence of pesticide
poisoning, particularly pyrethroid poisoning. He reiterated that the alleged exposures on July 8
and 10, 2009 neither caused nor contributed to any medical condition in this claimant.
Dr. Phillips opined that appellant was not totally disabled and was able to perform full duty.
By decision dated October 10, 2012, OWCP denied appellant’s claim, finding that the
special weight of medical evidence rested with the impartial medical opinion of Dr. Phillips.
On October 17, 2012 OWCP received appellant’s request for another telephone hearing.
Appellant submitted an August 23, 2012 report from Dr. Michael Gray, Board-certified in
occupational medicine, a December 6, 2012 report from Dr. Kilburn, and a February 27, 2013
report by Dr. Raymond Singer, a clinical neuropsychologist, which supported his occupational
disease claim.
By decision dated April 26, 2013, OWCP’s hearing representative affirmed the
October 10, 2012 denial decision, finding that the additional medical evidence was insufficient to
overcome the special weight of evidence attributed to Dr. Phillips’ September 26, 2012 referee
medical report.
On July 18, 2013 OWCP received appellant’s request, through counsel, for
reconsideration. In a decision dated August 20, 2013, it denied appellant’s reconsideration
request, finding that the evidence submitted was insufficient to warrant further merit review.

6

On October 30, 2013 appellant, through counsel, again requested reconsideration. In
support of this request for reconsideration, it received an October 3, 2013 report from
Dr. Kilburn. In this report, Dr. Kilburn related that appellant was exposed to at least 64 hazmat
chemicals on July 8 and 10, 2009 while at work. He noted that he picked pyrethroids as the best
fit to appellant’s impaired brain function, as evidenced by measurements for balance, color,
vision, peg placement, memory verbal recall, and long-term memory. Dr. Kilburn reviewed
Dr. Cetaruk’s and Dr. Phillips’ reports and noted his disagreement with their opinions. He
related that he had practiced in neurotoxicology for over 30 years and published 70 peer
reviewed papers on the subject. Dr. Kilburn alleged that his credentials and examination of
appellant, based on objective testing, treatments, and follow up, should be accepted as the
definitive medical opinion.
By decision dated November 14, 2013, OWCP denied modification of the April 26, 2013
decision.
On September 16, 2014 appellant, through counsel, requested reconsideration of the
November 14, 2013 decision. Counsel submitted an April 3, 2014 report by Dr. Singer who
expressed his disagreement with OWCP’s decision which granted the special weight of medical
opinion to Dr. Phillips.
Dr. Singer alleged that appellant should be evaluated by a
neuropsychologist experienced in neurotoxicology in order to determine whether he is suffering
from a mental health disorder due to a mental health issue or a neurotoxic cause.
By decision dated August 11, 2015, OWCP denied modification of its November 14,
2013 decision.
Appellant appealed to the Board. In a decision dated November 2, 2016, the Board
determined that impartial medical examiner Dr. Phillips’ September 26, 2012 report was not
sufficiently well rationalized and therefore insufficient to resolve the conflict in medical opinion
evidence.4 The Board set aside OWCP’s August 11, 2015 decision and remanded the case for
OWCP to obtain a supplemental report from Dr. Phillips that provided a well-rationalized
medical opinion regarding whether appellant sustained a medical condition causally related to
the accepted work exposure.
By letter dated December 8, 2016, OWCP requested that Dr. Phillips review the
additional medical evidence that OWCP received and provided a supplemental report with a
well-rationalized medical opinion regarding whether appellant sustained chemical
encephalopathy causally related to exposure to chemicals on July 8 and 10, 2009.
In a January 12, 2017 supplemental report, Dr. Phillips clarified that he was a Boardcertified internist eligible for Board-certification in medical toxicology. He explained the
scientific discipline of medical toxicology and described his medical toxicology training.
Dr. Phillips noted that he had authored and published approximately 200 scientific articles and
peer-reviewed papers and attached his curriculum vitae. He related that he reviewed the new
materials received by OWCP after his September 2012 report, including Dr. Kilburn’s
December 6, 2012, July 9 and 10, 2013, and October 3, 2013 letters and Dr. Singer’s reports
4

Docket No. 16-0374 (issued November 2, 2016).

7

dated February 22 to August 20, 2013. Dr. Phillips explained the basic toxicological causation
methodology processes, which included dose response relationship, target organ specificity,
requirement for physical contact with chemical, and cause and effect relationship. He noted that
neither Dr. Kilburn nor Dr. Singer were Board-certified toxicologists and asserted that
Drs. Kilburn and Singer’s conclusions were based on circular reasoning, in that they relied on
appellant’s symptoms and ailments to explain that sufficient exposure and causal relationship
had occurred.
Dr. Phillips explained that the most generally accepted methodology for establishing
causation was to follow the nine “Hill Criteria” and described how appellant’s case did not meet
the various steps. Regarding strength and consistency, he asserted that appellant’s complaints of
“uncontrollable movements and episodic agitation” were inconsistent with pyrethroid exposure
and toxicity and that there were no specific epidemiological studies that linked exposure to the
pyrethroids to those symptoms. Dr. Phillips also noted that pyrethroids may cause seizure
activity, but this was not experienced or reported by appellant. Regarding temporality, he
indicated that appellant’s alleged exposure and symptoms did not come prior to the onset of his
illness. Dr. Phillips reported that neither Dr. Kilburn nor Dr. Singer provided data on how much
pyrethroid chemical appellant was exposed to. Regarding plausibility, coherence, experiment,
and analogy, he explained that Dr. Kilburn’s methodology cited no objective, scientific literature
or existing theory, knowledge, or human epidemiological studies that supported a causal
association between appellant’s symptoms and exposure to pyrethroids.
By decision dated January 20, 2017, OWCP again denied modification of its
November 14, 2013 decision. It found that the special weight of the medical evidence rested
with the medical opinion of Dr. Phillips, the impartial medical examiner, who concluded in his
September 26, 2012 and January 12, 2017 reports that the medical evidence of record was
insufficient to establish that appellant’s claimed condition was causally related to the chemical
exposure at work on July 8 and 10, 2009.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.7 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which

5

Supra note 2.

6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).

8

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
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 an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.11 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.12 When there exists 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.13
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report.14 When the impartial medical specialist’s statement of clarification or
elaboration is not forthcoming or if the specialist is unable to clarify or elaborate on the original
report or if the specialist’s supplemental report is also vague, speculative or lacks rationale,
OWCP must submit the case record together with a detailed SOAF to another impartial medical
specialist for a rationalized medical opinion on the issue in question.15

8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
12

20 C.F.R. § 10.321.

13

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

14

Raymond A. Fondots, 53 ECAB 637 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
15

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

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ANALYSIS
In the prior appeal, the Board remanded the case to OWCP for a supplemental opinion
from Dr. Phillips, the impartial medical examiner, providing further elaboration and clarification,
based on medical rationale, regarding whether appellant sustained any condition due to the
accepted work exposure to chemical substances on July 8 and 10, 2009.
In a January 12, 2017 supplemental report, Dr. Phillips clarified that he was a Boardcertified internist and Board eligible in medical toxicology. He explained what the scientific
discipline of medical toxicology was, described his medical toxicology training, and reviewed
his credentials. Dr. Phillips related that he reviewed the new materials received by OWCP after
his September 2012 report, including Dr. Kilburn’s letters and Dr. Singer’s reports. He noted
that neither Dr. Kilburn nor Dr. Singer were Board-certified toxicologists and asserted that their
conclusions were based on circular reasoning, in that they used appellant’s symptoms and
ailments to explain that sufficient exposure and causal relationship had occurred.
Dr. Phillips explained that the most generally accepted methodology for establishing
causation was to follow the nine “Hill Criteria” and described how appellant’s case did not meet
the various steps. He asserted that appellant’s complaints of uncontrollable movements and
episodes of agitation were not consistent with pyrethroid exposure and toxicity and explained
that there were no specific epidemiological studies that linked exposure to the pyrethroids to
those symptoms. Dr. Phillips also noted that pyrethroids may cause seizure activity, but this was
not seen or reported by appellant. He indicated that appellant’s alleged exposure and symptoms
did not come prior to the onset of his illness. Dr. Phillips reported that neither Dr. Kilburn nor
Dr. Singer provided a dosage of how much pyrethroids chemical that appellant was exposed to in
order to determine whether appellant’s symptoms resulted from his chemical exposure. He
further alleged that Dr. Kilburn’s methodology cited no objective, scientific literature or existing
theory, knowledge, or human epidemiological studies that supported a causal association
between appellant’s symptoms and exposure to pyrethroids. Dr. Phillips expressed his
disagreements with Dr. Kilburn and Dr. Singers’ credentials and opinion on causal relationship
based on poisoning by pyrethroids. He alleged that neither medical opinion met the weight of
evidence using the widely accepted Hill methodology.
The Board finds that Dr. Phillips’ supplemental opinion is insufficient to resolve the
outstanding conflict in this case. Dr. Phillips reiterated his opinion that there was not a “causal
nexus” between appellant’s accepted work exposure and his various symptoms. The Board
finds, however, that Dr. Phillips did not provide sufficient medical rationale to support his
conclusion. A medical report is of limited probative value on the issue of causal relationship if it
contains a conclusion regarding causal relationship which is unsupported by medical rationale.16
Dr. Phillips based his conclusion mainly on his disagreement with Dr. Kilburn and Dr. Singer’s
affirmative opinions on causation and articulated the problems with their methodology in
determining causation. However, he failed to provide any further explanation of his own opinion
on the issue of whether appellant did not sustain any diagnosed medical condition causally

16

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

related to his employment exposure on July 8 and 10, 2009 as requested by OWCP.17
Dr. Phillips provided a generalized description of the methodology used to determine
toxicological causation, specifically the “Hill Criteria,” but did not cite to any specific clinical
findings from appellant’s case or other medical findings in the record as requested by the Board
in its prior decision. When an impartial medical report lacks medical reasoning to support
conclusory statements about the claimant’s condition, it is insufficient to resolve a conflict in the
medical evidence.18
Moreover, the Board notes that Dr. Philips’ medical opinion focuses on his disagreement
with Dr. Kilburn and Dr. Singer’s conclusions that appellant’s chemical encephalopathy resulted
from exposure to pyrethroids. He did not, however, address any of the other chemicals that
appellant was exposed between July 8 and 10, 2009 and did not provide any medical explanation
as to why appellant’s diagnosed medical condition was not caused or aggravated by the accepted
chemical work exposure.
The Board finds, therefore, that there remains an unresolved conflict of medical opinion
in this case. As OWCP has not obtained a sufficiently well-rationalized impartial medical report,
referral to another impartial medical specialist to resolve the conflict is necessary.19 The Board
will set aside OWCP’s January 20, 2017 decision and remand the case for referral to a new
impartial medical specialist to resolve the conflict as to whether appellant’s accepted work
exposure caused or contributed to any medical condition. After such further development of the
medical evidence as may become necessary, OWCP shall issue an appropriate de novo decision
on appellant’s occupational disease claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

17

See J.R., Docket No. 13-2020 (issued March 5, 2014).

18

A.R., Docket No. 12-443 (issued October 9, 2012).

19

See S.T., Docket No. 13-1977 (issued March 18, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the January 20, 2017 merit decision of the Office
of Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: December 14, 2017
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.E., Appellant
and
DEPARTMENT OF THE NAVY,
CONSOLIDATED CIVIL PERSONNEL
OFFICE, Washington, DC, Employer
__________________________________________

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Appearances:
Harold L. Levi, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1618
Issued: March 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 2, 2010 appellant, through her representative, filed for review of an April 12,
2010 nonmerit decision of the Office of Workers’ Compensation Programs which denied her
request for reconsideration as untimely and not establishing clear evidence of error. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this nonmerit decision.2

1
2

5 U.S.C. § 8101 et seq.

The most recent merit decision of record is the Board’s August 15, 2008 decision. Thereafter, appellant had one
year in which to seek reconsideration before the Office. See 20 C.F.R. § 10.607(a). Appellant underwent surgery
for an L4-5 lumbar laminectomy in 1987. On August 4, 1992 she underwent a partial hemilaminectomy on the right
at L4-5 with excision of a herniated disc.

ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to show clear evidence of error in the denial of
her claim.
FACTUAL HISTORY
This case has previously been before the Board.3 The Office accepted that appellant
sustained cervical and lumbar strains on May 5, 1995 when a drafting table collapsed. Following
referral to an impartial medical specialist, it terminated her compensation benefits in a March 24,
1997 decision. The Office subsequently reopened the case as appellant was involved in a thirdparty action involving the original impartial medical specialist. On September 29, 2003
appellant was referred to Dr. Mark S. Klein, a Board-certified orthopedic surgeon, selected as the
impartial medical specialist. After obtaining several supplemental reports from Dr. Klein, the
Office denied her claim of residual disability after March 24, 1997 in a June 7, 2007 merit
decision. In an August 15, 2008 decision, the Board found that appellant failed to establish that
she had any work-related disability or residuals after March 24, 1997. It found that the opinion
of Dr. Klein was well rationalized and entitled to the special weight of an impartial medical
specialist.4 The facts of the case, as set forth in the Board’s prior decision, are incorporated
herein by reference.
On November 24, 2009 appellant, through her representative, requested reconsideration.
Counsel requested that the Office reexamine the record, contending that the Office had an
obligation to contact Dr. Joel L. Falik, a Board-certified orthopedic surgeon, to correct
information regarding the injury date and circumstances of the injury.5 Appellant submitted an
August 31, 2009 letter from Dr. Falik, who stated that he had reviewed the Board’s decision and
his prior correspondence to the Office. Dr. Falik noted that his April 7, 2003 letter to the Office
was “not nonresponsive to the Office’s request for a supplemental report but rather responsive to
[the Office’s] inaccuracies and uncertainties which I posed.” He stated that it was his opinion
that appellant sustained an aggravation of a preexisting medical condition when a drafting table
collapsed on May 5, 1995 and that he disagreed with the opinion of Dr. Klein that the
aggravation was temporary rather than permanent.
In an April 12, 2010 decision, the Office denied appellant’s request for reconsideration.
It found that the request was not filed within one year of the Board’s August 15, 2008 merit
decision and that the evidence did not manifest clear error on the part of the Office in the denial
of her claim. The Office found that the 2009 letter of Dr. Falik referenced procedural issues in
the case and he had been replaced as the impartial medical specialist of record.

3

Docket No. 08-288 (issued August 15, 2008).

4

At footnote 7, the Board addressed the Office’s referral to other designated impartial medical examiners and the
reasons for their disqualification prior to the selection of Dr. Klein.
5

Appellant was referred to Dr. Falik for an impartial medical examination prior to the referral to Dr. Klein.

2

On appeal, appellant’s representative contends that the weight of medical opinion should
be with Dr. Falik and that the Office engaged in doctor shopping to obtain a friendly opinion.
LEGAL PRECEDENT
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
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought.6 The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in the most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.7
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed,
well-rationalized medical report which, if submitted prior to the Office’s denial, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error
and would not require a review of the case on the Director’s own motion.8 When an application
for review is not timely filed, the Office must undertake a limited review to determine whether
the application establishes clear evidence of error.9 Office regulations and procedure provide
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear
evidence of error on the part of the Office.10 To establish clear evidence of error, a claimant
must submit evidence relevant to the issue which was decided by the Office. The evidence must
be positive, precise and explicit and must manifest on its face that the Office committed an
error.11

6

A right to reconsideration within one year also accompanies any subsequent merit decision on the issues,
including those of the Board. See Robert F. Stone, 57 ECAB 292 (2005).
7

20 C.F.R. § 10.607.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

9

See 20 C.F.R. § 10.607(b); D.D., 58 ECAB 206 (2006); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(d)
(January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the [Office] made an error (for
example, proof that a schedule award was miscalculated). Evidence such as 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 not clear evidence of error.” Id. at Chapter 2.1602.3c.
11

Robert F. Stone, supra note 6; Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB
143 (2003).

3

ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Appellant’s November 24, 2009 request for reconsideration was filed more than one
year following the Board’s August 15, 2008 decision, the most recent merit decision on the
issues. Therefore, it was untimely and she must demonstrate clear evidence of error by the
Office in denying her claim for benefits after March 24, 1997.
In alleging clear evidence or error, appellant contends that the Office engaged in doctor
shopping when it selected Dr. Klein to be an impartial medical referee following her examination
by Dr. Falik in 2001. She presented an August 31, 2009 letter from Dr. Falik, who stated his
disagreement with the Board’s characterization of his status as an impartial medical specialist,
the responsiveness of his reports to the Office, and advised that he disagreed with Dr. Klein as to
the nature of the aggravation of appellant’s back condition.
The record reflects that appellant was referred to Dr. Falik, as an impartial medical
specialist on August 22, 2001. Dr. Falik provided a September 27, 2001 report in which he
noted a “long history of multiple neck and spine problems beginning in 1985 when she was
involved in an automobile accident.” He listed appellant’s fall in a hotel on August 31, 1996 and
her total disability status following a May 5, 1995 fall at work. In addressing his findings,
Dr. Falik noted that she did not sustain any permanent damage as a result of the August 31, 1996
fall as there was no objective evidence to substantiate any specific injury with the exception of a
self-limiting back sprain. He opined that appellant would have reached maximum medical
improvement six months after the accident and advised that no additional treatment was
recommended. Absent the 1996 slip and fall, Dr. Falik noted that she would have the same
current clinical neurological status. In reviewing this report, the Office disqualified him as the
impartial specialist as his opinion focused on the August 31, 1996 nonemployment-related fall at
a hotel and not the accepted 1995 injury at work. Further, Dr. Falik was not responsive to the
Office’s request for clarification. In this regard, his April 7, 2003 letter to the Office advised that
he had evaluated appellant “for an injury she sustained while at a hotel lobby on
August 31, 1996. At that time, [appellant] had a slip and fall.” Dr. Falik stated that the Office’s
letter to him referred to an accident dated “August 28, 1995,” a reference to a date of injury other
than the May 5, 1995 injury accepted in this case. “If you can clear up the confusion and make
specific reference to a January 1995 accident with medical records, I would be happy to
reevaluate the patient.” The Board’s prior decision affirmed the Office in disqualifying Dr. Falik
as the impartial medical specialist.
This limited review establishes that Dr. Falik provided reports that addressed causal
relation with regard to appellant’s August 31, 1996 slip and fall in a hotel. While he stated on
August 31, 2009 that his 2001 report had “carefully reviewed” her entire medical history as
summarized, this is not reflected in the report of record. The additional evidence submitted from
Dr. Falik is not sufficient to establish that the Office engaged in doctor shopping. The reports of
Dr. Falik were considered by the Office and the Board and found deficient for the reasons stated.
Appellant has not established clear error by the Office in subsequently referring her for a new
impartial medical evaluation by Dr. Klein. As noted, the term “clear evidence of error” is
intended to represent a difficult standard. The evidence submitted on reconsideration does not
raise a substantial question concerning the correctness of the Office’s decision denying benefits
4

after March 24, 1997 or shift the weight of evidence in appellant’s favor. The 2009 letter from
Dr. Falik does not manifest that the Office committed error in referring appellant for a new
impartial medical evaluation after consideration of his reports of 2001 and 2003.
CONCLUSION
The Board finds that appellant’s November 24, 2009 request for reconsideration was
untimely and failed to establish clear evidence of error by the Office in the denial of her claim
for compensation after March 24, 1997.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
BUREAU OF ENGRAVING & PRINTING,
Washington, DC, Employer
__________________________________________

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

Docket Nos. 09-1509 & 09-1682
Issued: May 4, 2010

Case Submitted on the Record

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

JURISDICTION
On May 11, 2009 appellant filed an appeal from an April 27, 2009 decision of the Office
of Workers’ Compensation Programs. On June 24, 2009 he filed an appeal from a May 29, 2009
Office decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of these cases.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was disabled
from April 1, 2008 to April 30, 2009.1

1

The Board notes that the April 27, 2009 Office decision denied appellant’s claim for compensation for the
period November 1, 2008 to February 28, 2009. The May 29, 2009 decision denied appellant’s claim for the period
April 1, 2008 to April 30, 2009.

FACTUAL HISTORY
On May 5, 2006 appellant, then a 49-year-old plate printer, sustained a traumatic injury
to his right thigh and foot when a 55-pound ink drum fell off a jack and struck him. He stopped
work that day and did not return. On May 19, 2006 appellant was admitted to Inova Fairfax
Hospital for a severe right leg infection and underwent two surgical procedures for debridement
of necrotic tissue, drainage of deep abscesses and four-compartment fasciotomies of the distal
right lower extremity. He was discharged on May 26, 2006. Appellant was admitted to
Georgetown University Hospital and underwent debridement and skin graft procedures to his
right lower extremity on May 28 and 30, 2006. On June 10, 2006 he was discharged to a
rehabilitation center with diagnoses including necrotizing fasciitis, other early complications of
trauma and open wound of lower extremity. Appellant was discharged from the rehabilitation
facility on July 4, 2006.
On July 26, 2006 the Office accepted that appellant sustained employment-related
contusions of the right thigh and foot. Appellant filed CA-7 claims for compensation beginning
on May 19, 2006. In February 2007, the Office referred him to Dr. Eric Reines, Board-certified
in internal medicine, for a second opinion evaluation. In a March 20, 2007 report, Dr. Reines
reviewed the history of injury and provided findings on physical examination. He diagnosed a
deep-seated infection and compartmental syndrome due to blood hematoma from the
employment injury that led to necrosis of the foot, necrotizing fasciitis and widespread infection
in the ankle and foot. In response to specific Office questions, Dr. Reines advised that appellant
could not stand for a prolonged period of time or walk significant distances. He concluded that
appellant was disabled from work due to the injury and could return to work in May or June.
On July 17, 2007 the Office paid appellant wage-loss compensation for the period
June 20, 2006 through June 29, 2007. Appellant filed claims for compensation through
February 28, 2009 and the Office paid wage-loss compensation from July 1, 2007 through
April 30, 2008 and June 1 through October 31, 2008. On May 8, 2008 the Office accepted that
he sustained employment-related right necrotizing fasciitis.
In letters dated September 5, 2008 to March 13, 2009, the Office requested that appellant
provide detailed medical evidence to support his claims for disability compensation. Appellant
submitted an April 18, 2008 report from Dr. Ivica Ducic, Board-certified in plastic surgery,2 who
advised that appellant had a significant injury on May 5, 2006 which developed into necrotizing
fasciitis and compartment syndrome. Dr. Ducic described the surgical procedures performed
which, he opined, saved appellant’s leg. In an August 28, 2008 report, Dr. John E. Toerge, an
osteopath Board-certified in physical medicine and rehabilitation, noted the history of injury and
appellant’s subsequent hospitalizations.3 He found that he needed multiple surgical procedures
and prolonged care to restore circulation, muscle function and skin closure of the injury.
Appellant had multiple physical therapy treatments and progressed to walking independently
2

Dr. Ducic is an associate professor in the Department of Plastic Surgery at Georgetown University Hospital.

3

Dr. Toerge is Chief of the Department of Rehabilitation Medicine at Georgetown Hospital, Chair of Physical
Medicine and Rehabilitation at Washington Hospital Center and Vice President, Medical Affairs, at National
Rehabilitation Hospital.

2

with the use of an orthosis and rocker bottom shoe. On physical examination, the right lower
extremity revealed preserved motor and sensory function with decreased strength and endurance
and restricted motion of the foot at most major joints. Dr. Toerge recommended that appellant
return to physical therapy to increase his strength and endurance and advised that the prognosis
was good but still needed to advance. He reviewed appellant’s position description and
projected a return to work in December 2008 or January 2009, provided physical therapy was
reinstated, and appellant was highly motivated to work.
In an April 27, 2009 decision, the Office denied appellant’s claim for compensation from
November 2, 2008 to February 28, 2009 finding that he failed to submit sufficient medical
evidence to establish his disability.
Appellant requested reconsideration and submitted a discharge summary from
Georgetown University Hospital regarding his admission from May 26 to June 10, 2006 and
Dr. Toerge’s treatment notes dated July 25, 2008 to March 9, 2009. Dr. Toerge advised that
appellant had retired on disability.4 By letter dated March 22, 2009, appellant contended that he
had been forced to retire.
In a May 29, 2009 decision, the Office denied disability compensation for the period
April 1, 2008 to April 30, 2009.
LEGAL PRECEDENT
Section 2.811 of the Office procedure manual describes the procedures to be followed in
the early management of disability claims.5 Subsections 8 and 9 distinguish payments on the
daily and periodic compensation rolls and describe the procedures to be followed in maintaining
a claimant on each payment roll.6 The procedures provide that the daily roll is to be used where
the term of disability is not likely to exceed 60 days.7 When the period of disability is likely to
be prolonged, or over 90 days, or permanent disability is expected, compensation for wage loss
should be paid on the periodic rolls.8
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.9

4

The handwritten notes are difficult to decipher.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Early Management of Disability Claims, Chapter 2.811
(July 1997).
6

Id. at Chapter 2.811.8.9 (July 1997).

7

Id. at Chapter 2.811.7.a(1) (July 1997).

8

Id. at Chapter 2.812.4 (October 2005).

9

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

3

The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.10
ANALYSIS
The Board finds that the Office abused its discretion in retaining appellant on the daily
compensation rolls for a period that exceeded one year.11 As noted, Office procedures provide
that the daily rolls is to be used where the term of disability is not likely to exceed 60 days.
When the period of disability is likely to exceed 90 days, the claimant is to be placed on the
periodic rolls. Appellant’s employment injury occurred on May 5, 2006, and that he received
wage-loss compensation on the daily rolls from June 20, 2006 through April 30, 2008 and June 1
through October 31, 2008, approximately a 28-month period. Shortly after the May 5, 2006
employment injury, appellant was hospitalized on two occasions and underwent four surgical
procedures due to an infection of his right leg. On June 10, 2006 he was discharged to a
rehabilitation center with diagnoses including necrotizing fasciitis of the right lower extremity
and was not discharged until July 4, 2006. Office procedures further provide that it is the
responsibility of the claims examiner to request medical information which is to include an
inquiry about the reasons and objective findings that support continuing injury-related disability
and reasons for continuing absence from work.12 While the Office compensated appellant on the
daily rolls there is no evidence that it attempted to secure medical information until
February 2007, nine months after the May 5, 2006 employment injury, when appellant was
referred to Dr. Reines for a second opinion evaluation.
In his March 20, 2007 report, Dr. Reines diagnosed a deep-seated infection due to the
employment injury that led to necrosis of the foot, necrotizing fasciitis and widespread infection,
a serious medical condition. At that time he found that appellant was disabled from all work
because he could not stand or walk. On August 28, 2008 Dr. Toerge advised that appellant
needed prolonged medical care and advised that he could possibly return to work in
December 2008 or January 2009 if physical therapy were reinstated. There is no indication in
the record that physical therapy was approved prior to the May 29, 2009 decision.
In accordance with Office procedures, appellant should have been placed on the periodic
rolls and not maintained on the daily rolls for 28 months. Consequently, the Office has the
burden of proof to establish that appellant had no further disability due to his accepted
employment injuries. Appellant was entitled to a pretermination notice. The Office should have
provided him notice of the proposed action and given him the opportunity to submit relevant
evidence or argument to support continued compensation prior to denying his claims. It failed to
meet its burden of proof to terminate appellant’s compensation as it failed to provide a
pretermination notice and maintained appellant on the daily rolls.

10

Id.

11

Lan Thi Do, 46 ECAB 366 (1994).

12

Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.600.6.b(3), (4) (November 1996).

4

CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits.13
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 29 and April 27, 2009 be reversed.
Issued: May 4, 2010
Washington, DC

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

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

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

13

The Board notes that appellant submitted a medical report subsequent to the May 29, 2009 decision of the
Office. The Board cannot consider this evidence as its review of the case is limited to that evidence before the
Office at the time of its final decision. 5 U.S.C. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
FEDERAL JUDICIARY, U.S. SUPREME
COURT, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0422
Issued: December 2, 2020

Case Submitted on the Record

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

JURISDICTION
On December 13, 2019 appellant, through counsel, filed a timely appeal from October 29
and 31, 2019 merit decisions of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (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

The Board notes that, following the October 31, 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.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly determined that appellant was not entitled to
consumer price index (CPI) adjustments from 1999 to 2017 in calculating the pay rate for his lower
extremity schedule awards.
FACTUAL HISTORY
On July 29, 1998 appellant, then a 45-year-old assistant clerk/mail messenger, filed an
occupational disease claim (Form CA-2) alleging that he sustained a left knee condition causally
related to factors of his federal employment. OWCP accepted the claim for an aggravation of a
medial meniscal tear and an aggravation of osteoarthrosis of the left lower leg. It subsequently
expanded acceptance of the claim to include an aggravation of arthritis of the right ankle.
On August 21, 1998 appellant underwent a high tibial osteotomy.
A November 9, 1999 notification of personnel action (Form SF-50) indicated that appellant
had resigned from the employing establishment effective October 23, 1999 to take a position at
another federal agency.
On September 26, 2000 appellant underwent a left total knee replacement.4 In
December 2009, he underwent a total replacement of the right ankle. On June 23, 2014 appellant
underwent a revision of the right ankle replacement.
In a report dated June 28, 2017, Dr. David E. Eichten, an osteopath, opined that appellant
had 43 percent permanent impairment of the left knee according to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).5 He advised that appellant had reached maximum medical improvement (MMI) by the
time of appellant’s March 27, 2017 examination.
On September 27, 2017 Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving
as a district medical adviser (DMA), reviewed Dr. Eichten’s findings and opined that appellant
had 34 percent permanent impairment of the left lower extremity. He advised that he had obtained
MMI on June 28, 2017.

4
By decision dated January 15, 2015, OWCP found that appellant had not established a recurrence of the need for
medical treatment beginning December 11, 2013 causally related to his July 8, 1998 employment injury. By decision
dated October 22, 2015, an OWCP hearing representative affirmed the January 15, 2015 decision. By decision dated
November 7, 2016, OWCP denied modification of the October 22, 2015 decision. By decision dated January 31,
2018, it vacated the November 7, 2016 decision and found that appellant had established a recurrence of the need for
medical treatment. OWCP further expanded acceptance of his claim to include an aggravation of arthritis of the right
ankle as a consequential condition.
5

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

2

On March 9, 2018 OWCP requested that Dr. Eichten review the DMA’s findings and
address whether appellant had more than 34 percent permanent impairment of the left lower
extremity.6
In an April 13, 2018 report, Dr. Eichten opined that appellant had 37 percent permanent
impairment of the left lower extremity. He indicated that appellant had reached MMI on
March 27, 2017. On August 21, 2018 Dr. Hammel concurred with his impairment rating.
In a September 25, 2018 schedule award memorandum, OWCP found that appellant’s
weekly pay rate for compensation purposes was $478.92 based on a pay rate date of November 9,
1999, the date of last exposure. It indicated that he had reached MMI on June 28, 2017 which was
also the start date for CPI adjustments.
By decision dated September 25, 2018, OWCP granted appellant a schedule award for 37
percent permanent impairment of the left lower extremity. The period of the award ran for 106.56
weeks from June 28, 2017, the date of MMI, to July 13, 2019. OWCP found that the effective pay
rate date was November 9, 1999, which yielded a weekly pay rate of $478.92. It multiplied
$478.92 by the augmented rate of three-quarters of appellant’s weekly pay for a claimant with
dependents to find a weekly pay rate $359.19. OWCP indicated that this amount remained
unchanged after applying cost-of-living adjustments (COLAs).
On June 26, 2019 appellant filed a claim for a schedule award (Form CA-7) for the right
lower extremity.
In a report dated July 25, 2019, Dr. Brian Doerr, a podiatrist, determined that appellant had
59 percent permanent impairment of the right lower extremity due to his right ankle condition. He
discussed appellant’s history of a total ankle replacement on December 16, 2009 and revision on
June 23, 2014. Dr. Doerr advised that on February 20, 2017 appellant had undergone an
osteoplasty of the talus and tibia. He opined that the initial right ankle replacement was unrelated
to the accepted employment injury, but the latter two surgeries were causally related to the
accepted employment injury as OWCP had accepted an aggravation of appellant’s right ankle
condition. Dr. Doerr opined that appellant had obtained MMI on March 11, 2019.
On August 7, 2019 appellant, through counsel, requested reconsideration of the
September 25, 2018 schedule award decision. Counsel indicated that appellant’s pay rate on the
date of injury (DOI) was $478.92, for a weekly compensation rate for claimants with dependents
of $359.19. He observed that OWCP had specified the pay rate date as November 8, 1999
apparently based on appellant’s SF-50. Counsel did not dispute the DOI pay rate date or that
appellant had reached MMI on June 28, 2017. He contended, however, that appellant was entitled
to CPI adjustments from 1999 to 2017. Counsel indicated that he had provided an affidavit that
appellant was disabled and also received disability benefits from the Social Security
Administration (SSA).

6
On March 29, 2018 a DMA found that the proposed surgical reversal/replacement of appellant’s left knee joint
was causally related to the accepted condition and medically necessary. In a letter dated May 11, 2018, appellant’s
representative advised that he had decided against having the proposed revision of the total knee replacement.

3

In an April 2, 2019 affidavit, appellant advised that he had not resumed his usual
employment with the employing establishment after his August 21, 1998 surgery. He stopped
work on October 18, 1999 because the employing establishment could not accommodate his
physician’s finding that he should work part time.
On October 17, 2019 Dr. Hammel concurred with Dr. Doerr’s finding that appellant had
59 percent permanent impairment of the right lower extremity. He opined that appellant had
reached MMI on March 23, 2017.
By decision dated October 29, 2019, OWCP denied modification of its September 25, 2018
schedule award decision. It found that appellant had not sustained prior periods of disability and
thus he was only entitled to CPI increases during the period of the schedule award.
By decision dated October 31, 2019, OWCP granted appellant a schedule award for 59
percent permanent impairment of the right lower extremity. The period of the award ran from
July 14, 2019 to a fraction of a day on October 15, 2022. OWCP found that appellant had reached
MMI on March 23, 2017 and that his weekly pay rate for compensation purposes was $478.92,
which when multiplied by the augmented rate for the claimant with dependents yielded a weekly
pay rate of $359.19. It found that this amount was unchanged after application of COLAs.7
LEGAL PRECEDENT
Under FECA, monetary compensation for disability or impairment due to an employment
injury is paid as a percentage of monthly rate.8 Section 8101(4) provides that “monthly pay”
means the monthly pay at the time of injury or the monthly pay at the time disability begins or the
monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater.9 The compensation rate for schedule awards is the same as compensation
for wage loss.10
Section 8146(a) of FECA provides that compensation payable on account of disability or
death which occurred more than one year before the effective date of a cost-of-living increase
(determined in accordance with the provisions of the section) shall be increased by the percent of
the increase.11 Legislative history shows that this phrase means compensation payable for an

7

OWCP indicated that appellant’s weekly compensation after COLAs was $478.92, his pay rate before multiplying
by the rate for a claimant with a dependent. This appears to be a typographical error, as the four-week payment is
$1,436.76 based on a weekly pay rate of $359.19.
8

See 5 U.S.C. §§ 8105-8107.

9

Id. at § 8101(4).

10

See 20 C.F.R. § 10.404(b); K.H., 59 ECAB 495 (2008).

11

5 U.S.C. § 8146(a).

4

employment-related condition where the entitlement to such compensation occurred more than
one year before the effective date of the cost-of-living increase.12
In cases of disability, a beneficiary is eligible for COLAs under section 8146(a) where
injury-related disability began more than one year prior to the date the COLA took effect. The
employee’s use of continuation of pay, as provided by section 8118, or of sick or annual leave
during any part of the period of disability does not affect the computation of the one-year period.13
The disability need not have been continuous for the whole year before the increase.14
When an injury does not result in disability, but compensation is payable for permanent
impairment, a beneficiary is eligible for COLAs under section 8146(a) of FECA where the award
for such impairment began more than one year prior to the date the COLA took effect.15
OWCP procedures provide that, in determining the pay rate for schedule awards in
occupational disease claims, the DOI is the date of last exposure to the employment factors that
caused the condition.16 When there is prior injury-related disability, OWCP procedures indicate
that the CPI start date for the schedule award is the effective date of the applicable pay rate.17
When there is no prior injury-related disability, the CPI start date is the date of MMI.18 The
schedule award start date is also the date of MMI.19
OWCP’s procedures further provide, regarding CPIs, that “[w]here the schedule awards
represents the first payment for compensable disability, the claimant’s entitlement to CPIs does
not begin until one year after the award begins.”20 Its procedures additionally indicate that when
a claimant has no disability for work before the date of MMI, “the one-year waiting period begins
on the starting date of the award. This date represents the claimant’s first entitlement to
compensation, even though the effective date of the pay rate DOI is earlier.”21
The period covered by a schedule award typically commences on the date that the employee
reaches MMI from the residuals of the employment injury. MMI means that the physical condition
12

Franklin L. Armfield, 29 ECAB 500 (1978) (claimant not eligible for a cost-of-living increase, as provided by
section 8146(a), unless the date of his entitlement to compensation occurred more than a year before the effective date
of the cost-of-living increase).
13

20 C.F.R. § 10.420(a).

14

Id.

15

Id. at § 10.420(b).

16
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900 Exhibit
(September 2011).
17

Id. See also D.G., Docket No. 16-1855 (issued August 28, 2017).

18

Id.

19

Id.

20

Supra note 16 at Chapter 2.808.7(h) (February 2013).

21

Id. note 16 at Chapter 2.901.16(a)(5) (February 2013).

5

of the injured member of the body has stabilized and will not improve further.22 The determination
of the date of MMI is factual in nature and depends primarily on the medical evidence.23 The date
of MMI is usually considered to be the date of the evaluation accepted as definitive by OWCP.24
OWCP procedures provide that a schedule award “begin[s] on the date of MMI, unless
circumstances show a later date should be used.”25
ANALYSIS
The Board finds that OWCP properly determined that appellant was not entitled to CPI
adjustments from 1999 to 2017 in calculating the pay rate for his left lower extremity schedule
award.
OWCP’s procedures provide that, a schedule award based on an occupational disease
should have a pay rate date based on the DOI, the date disability begins, or the date of recurrence
of disability, whichever is greater.26 Appellant has not received wage-loss compensation from
OWCP for any period of disability due to his accepted employment injury. Consequently, his pay
rate for schedule award purposes is his DOI pay rate. In an occupational disease, where the
claimant remains exposed to the employment factors claimed, the DOI is the date of last exposure
to the employment factors that resulted in appellant’s condition.27 Appellant resigned from the
employing establishment effective October 23, 1999, which is the DOI for pay rate purposes.
While OWCP found that the DOI was November 9, 1999, the date of the Form SF-50 advising of
his retirement instead of the date of last exposure, there is no evidence that his salary changed from
October 23 to November 9, 1999.
As discussed, section 8146(a) of FECA provides that compensation payable on account of
disability or death which occurred more than one year before the effective date of a COLA shall
be increased by the percentage of the increase.28 Counsel alleged that OWCP should have applied
CPI adjustments to the DOI pay rate beginning in 1999 in calculating appellant’s pay rate for
schedule award purposes. However, the CPI adjustment start date for a claimant without prior
disability in calculating the pay rate for a schedule award is the date of MMI.29 OWCP properly
determined that appellant had obtained MMI for the left lower extremity on June 28, 2017 the date
of the impairment evaluation accepted by OWCP for schedule award purposes.30 Appellant has
22

S.B., Docket No. 17-1665 (issued January 28, 2019); Adela Hernandez-Piris, 35 ECAB 839 (1984).

23

J.B., Docket No. 11-1469 (issued February 14, 2012); Franklin L. Armfield, 28 ECAB 445 (1977).

24

Supra note 16 at Chapter 3.700.3(a)(1)(c) (January 2010).

25

Id. at Chapter 2.808.7(b) (February 2013).

26

Id.

27

Id. at Chapter 2.900.5(a) (September 2011); Patricia K. Cummings, 53 ECAB 623 (2002).

28

Supra note 11.

29

Supra note 15; see also David M. Chillemi, Docket No. 95-2546 (issued August 14, 1997).

30

Supra note 23.

6

not demonstrated that he had injury-related disability and thus is entitled to a CPI adjustment start
date as of the date of MMI, June 28, 2017.31 While he contended that SSA found that he was
disabled, the findings of other government agencies are not dispositive with regard to questions
arising under FECA.32 As appellant lost no time from work due to his accepted employment injury,
his CPI adjustment start date is the date of MMI.33
FECA’s implementing regulations at section 10.420(b), regarding application of COLAs,
provides that a schedule award “[w]here an injury does not result in disability, but compensation
is payable for permanent impairment of a covered member, organ, or function of the body, a
beneficiary is eligible for COLAs under 5 U.S.C. § 8146 where the award for such impairment
began more than one year prior to the date the cost-of-living adjustment took effect.”34 OWCP’s
procedures and Board precedent incorporate the regulations’ principle that, where a “schedule
award represents the first payment for compensable disability, the claimant’s entitlement to [CPIs]
does not35 begin until one year after the award begins.” Appellant was thus not entitled to CPI
adjustments from 1999 to 2017 in calculating his pay rate for schedule award purposes for his left
lower extremity schedule award.
The Board further finds, however, that the case is not in posture for decision regarding
whether OWCP properly found that appellant was not entitled to CPI adjustments in calculating
his pay rate for schedule award purposes for the right lower extremity schedule award as further
development is needed to determine the date of MMI.
As discussed, OWCP properly found that the applicable pay rate for schedule award
purposes was the DOI. It determined that appellant had reached MMI for the right lower extremity
on March 23, 2017 and that the period of the award ran from July 14, 2019 to a fraction of a date
on October 15, 2022. The impairment evaluation upon which OWCP based the award, however,
was the July 25, 2019 report from Dr. Doerr, who found that he had reached MMI on
March 11, 2019. Dr. Doerr noted that appellant had undergone surgery on his right ankle on
February 20, 2017. The DMA determined that he had retroactively reached MMI for the right
lower extremity on March 23, 2017, but provided no rationale for his conclusion. As discussed,
the date of MMI is usually considered to be the date of the evaluation accepted as definitive by
OWCP.36 The Board has noted a reluctance of find a date of MMI which is retroactive to the
award, as retroactive awards often result in payment of less compensation benefits. The Board,

31

See F.P., Docket No. 07-2315 (issued April 18, 2008). See also Thomas Donaghue, 39 ECAB 336 (1988) the
legislative history of section 8146(a) makes it clear that the intent was to have cost-of-living increases apply only in
situations where an employee has already been receiving compensation for more than one year prior to the effective
date of the increase).
32

See A.M., Docket No. 17-1192 (issued September 19, 2018).

33

Supra note 15; see also N.F., Docket No. 08-2117 (issued April 21, 2009).

34

20 C.F.R. § 10.420(b).

35

Moe I. Friedman, 98-0468 (issued December 27, 1999); David M. Chillemi, Docket No. 95-2546 (issued
August 14, 1997); Franklini J. Armfield, supra note 12; supra note 16 at Chapter 2.808.7(h) (February 2013).
36

Supra note 23.

7

therefore, requires persuasive proof of MMI in the selection of a retroactive date of MMI.37 The
DMA’s selection of March 23, 2017, a date retroactive to the start of the schedule award, is
unexplained. Consequently, the case will be remanded for OWCP to have the DMA provide
rationale for his selection of March 23, 2017 as the date of MMI. OWCP should then provide a
clear explanation of how it calculated appellant’s pay rate for compensation purposes, including
the application of any CPI adjustments.38 Following this and any subsequent development deemed
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant was not entitled to CPI
adjustments from 1999 to 2017 in calculating the pay rate for his left lower extremity schedule
award. The Board further finds that the case is not in posture for decision regarding whether
OWCP properly found that he was not entitled to CPI adjustments in calculating the pay rate for
the right lower extremity schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board. The October 29, 2019 decision
is affirmed.
Issued: December 2, 2020
Washington, DC

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

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
37

C.H., Docket No. 19-1639 (issued April 3, 2020); R.M., Docket No. 18-1313 (issued April 11, 2019).

38

See K.G., Docket No. 15-1476 (issued May 6, 2016).

8