United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Richmond, CA, Employer
__________________________________________

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

Docket No. 19-1115
Issued: November 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 22, 2019 appellant, through counsel, filed a timely appeal from a February 21,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated January 3, 2019, which became final after 30
days of issuance and is not subject to further review.2 As there was no merit decision issued by
OWCP within 180 days of the filing of this appeal, pursuant to the Federal Employees’

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

20 C.F.R. § 501.6(d); see P.S., Docket No. 18-0718 (issued October 26, 2018).

Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 14, 2010 appellant, then a 48-year-old claims authorizer, filed an occupational
disease claim (Form CA-2) alleging that she sustained right shoulder and arm strain causally
related to factors of her federal employment. OWCP accepted the claim for rotator cuff syndrome
and impingement syndrome of the right shoulder and dysthymic disorder. It assigned OWCP File
No. xxxxxx521.
OWCP had previously accepted that appellant sustained right shoulder strain on May 4,
2009 under OWCP File No. xxxxxx115 and left shoulder sprain, a partial infraspinatus tear,
tendinitis, and cervicalgia under OWCP File No. xxxxxx606. It combined the claims into OWCP
File No. xxxxxx521.
On April 30, 2012 appellant underwent a right shoulder acromioplasty with a distal clavicle
excision and labral repair. On February 24, 2014 she underwent a synovectomy, bursectomy,
ligament release, biceps tendon release, acromioplasty, debridement of the rotator cuff, and
removal of the anchor from the labrum. OWCP paid appellant wage-loss compensation for
intermittent periods of temporary total disability.
In an impairment evaluation dated February 18, 2015, Dr. Michael E. Hebrard, a Boardcertified physiatrist, found 26 percent permanent impairment of the right upper extremity and 14
percent permanent impairment of the left upper extremity due to a loss of shoulder motion pursuant
to Table 15-34 on page 477 of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment, (A.M.A., Guides).6

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the February 21, 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.
5

Docket No. 18-1297 (issued January 3, 2019).

6

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

2

On April 28, 2017 appellant filed a schedule award claim (Form CA-7).
On June 7, 2017 OWCP referred appellant to Dr. Mohinder S. Nijjar, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of any permanent
impairment of the bilateral upper extremities. The accompanying statement of accepted facts
described only appellant’s right upper extremity condition and requested that Dr. Nijjar calculate
the extent of her permanent impairment of the right upper extremity.
In a July 26, 2017 impairment evaluation, Dr. Nijjar measured normal range of motion
(ROM) of the shoulder with some tenderness over the acromioclavicular (AC) joint, anterior
acromion process, and biceps tendon. He diagnosed right shoulder impingement syndrome and a
partial rotator cuff tear, degenerative arthritis of the AC joint after surgery, and a SLAP (superior
labral lesion from anterior to posterior) lesion status postsurgical debridement and subacromial
decompression of the right shoulder. Dr. Nijjar identified the diagnosis as AC joint disease after
a distal clavicle resection or AC separation using Table 15-5 on page 403 of the A.M.A, Guides,
which yielded a default impairment of 10 percent. He further found a default impairment rating
of three percent due to appellant’s SLAP lesion using Table 15-5 on page 404, which yielded four
percent permanent impairment after application of grade modifiers, for a total right upper
extremity permanent impairment of 14 percent.
On October 12, 2017 Dr. David H. Garelick, a Board-certified orthopedic surgeon and
OWCP district medical adviser (DMA), applied the A.M.A., Guides and FECA Bulletin No. 17067 to Dr. Nijjar’s findings. He noted that Dr. Nijjar had identified the ROM as normal.
Dr. Garelick concurred with Dr. Nijjar’s finding of 10 percent right upper extremity impairment
due to the distal clavicle resection using Table 15-5 on page 403. He found that appellant could
not receive an impairment rating for both the labral lesion and the distal clavicle resection as the
A.M.A., Guides indicated that shoulder impairments often occurred together and instructed the
evaluator to select the most significant diagnosis. Dr. Garelick used the impairment rating for the
distal clavicle resection and determined that appellant had 10 percent permanent impairment of the
right upper extremity. He opined that appellant had reached maximum medical improvement on
July 26, 2017.
By decision dated November 7, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right arm. The period of the award ran for 31.2 weeks from
October 15, 2017 to a fraction of a day on May 21, 2018.8
On November 14, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
A telephonic hearing was held on April 2, 2018. Counsel questioned why OWCP had not
provided a left upper extremity rating. He further asserted that OWCP should consider the
impairment determination based on ROM from Dr. Hebrard.

7

FECA Bulletin No. 17-06 (issued May 8, 2017).

8
OWCP adjusted the beginning date of the schedule award to October 15, 2017 as appellant had received wageloss compensation for total disability through October 14, 2017.

3

By decision dated May 3, 2018, OWCP’s hearing representative affirmed the November 7,
2017 decision. He noted that OWCP should consider expanding the acceptance of appellant’s
claim to include a right shoulder labral tear based on Dr. Nijjar’s opinion. The hearing
representative also “recommend[ed]” that OWCP develop the issue of whether she had a
permanent impairment of the left upper extremity.
Appellant appealed to the Board. By decision dated January 3, 2019, the Board affirmed
the May 3, 2018 decision.9 The Board found that the opinion of the DMA constituted the weight
of the evidence and established that appellant had no more than 10 percent permanent impairment
of the right upper extremity. The Board found that Dr. Hebrard’s ROM findings were stale as
performed more than two years prior to Dr. Nijjar’s second opinion evaluation.
On February 12, 2019 appellant, through counsel, requested reconsideration. He
resubmitted the February 18, 2015 impairment evaluation from Dr. Hebrard. Counsel asserted that
OWCP had failed to adjudicate the extent of appellant’s left upper extremity impairment.
By decision dated February 21, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.10
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.11
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.12 If it chooses to grant reconsideration, it reopens

9

Supra note 5.

10

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
11
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
12

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.

4

and reviews the case on its merits.13 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
By decision dated May 3, 2018, OWCP granted appellant a schedule award for 10 percent
permanent impairment of the right upper extremity. By decision dated January 3, 2019, the Board
affirmed the May 3, 2018 decision. On February 12, 2019 appellant filed a timely request for
reconsideration of the May 3, 2018 decision. Initially, the Board finds that OWCP properly
considered her correspondence as a request for reconsideration and not as claim for an increased
schedule award as she did not submit any evidence showing increased permanent impairment or
additional exposure.15 The underlying issue on reconsideration is whether the medical evidence
demonstrates a greater permanent impairment. Thus, the Board must determine whether appellant
has presented sufficient evidence or argument regarding the extent of permanent impairment to
warrant a merit review pursuant to 5 U.S.C. § 8128(a).16
The Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. On reconsideration counsel contended that OWCP
erred in failing to determine whether appellant had a permanent impairment of the left upper
extremity.17 The sole and relevant issue before the Board, however, is the extent of her permanent
impairment of the right upper extremity. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case.18
Thus, the Board finds that appellant has not advanced a relevant legal argument not previously
considered by OWCP.19 Consequently, appellant is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(3).20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered relevant to the issue of whether she is entitled to a greater
13

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

14

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

15

See A.A., Docket No. 19-0939 (issued August 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

16

S.W., Docket No. 18-1261 (issued February 22, 2019).

17

The Board notes that OWCP’s hearing representative, in the May 3, 2018 decision, recommended that OWCP
further develop the issue of whether appellant has a permanent impairment of the left upper extremity.
18

L.C., Docket No. 18-0787 (issued September 26, 2019).

19

P.W., Docket No. 17-1911 (issued June 6, 2018).

20

C.B., Docket No. 18-1108 (issued January 22, 2019).

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schedule award of the right upper extremity. Appellant resubmitted Dr. Hebrard’s February 18,
2015 impairment evaluation. However, the submission of evidence, which duplicates evidence
already in the case record, does not constitute a basis for reopening a case for further merit
review.21 As appellant did not provide relevant and pertinent new evidence, she is not entitled to
a merit review based on the third requirement under section 10.606(b)(3).22
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
21

T.W., Docket No. 19-0786 (issued September 18, 2019); M.C., Docket No. 18-0841 (issued September 13, 2019).

22

R.L., Docket No. 18-0175 (issued September 5, 2018).

23
See L.A., Docket No. 18-1226 (issue December 28, 2018) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HICKAM AIR FORCE BASE, HI, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0586
Issued: August 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 17, 2019 appellant, through counsel, filed a timely appeal from November 26
and December 14, 2018 nonmerit decisions of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated
December 7, 2017, to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review 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 OWCP properly denied appellant’s requests for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 21, 2003 appellant, then a 46-year-old pipefitter, filed a traumatic injury claim
(Form CA-1) alleging that on February 10, 2003 he severely twisted his back muscle when he tried
to turn off a valve with a crescent wrench when on a step ladder while in the performance of duty.
He stopped work on the date of the claimed injury and returned to light-duty work on
March 27, 2003.
On April 7, 2003 OWCP accepted appellant’s claim for lumbosacral strain with L5-S1 disc
herniation, displacement of lumbar intervertebral disc without myelopathy, intervertebral disc
disorder with myelopathy, lumbar region, and major depression, single episode, severe without
mention of psychotic behavior. It paid him temporary total disability compensation on the daily
rolls commencing April 7, 2003. On April 23, 2003 appellant was released to return to full-time,
light-duty work. Thereafter, he was off work intermittently and completely stopped work on
July 2, 2003. Appellant has not returned to work since August 3, 2003. He underwent authorized
left L5-S1 laminotomy and excision of a calcified herniated disc on August 6, 2003 and L5-S1
laminotomy and discectomy on September 8, 2004.
By decision dated June 13, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective June 14, 2016, as he had no further residuals or disability due to
his accepted February 10, 2003 employment injuries.
On June 24, 2016 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received a report dated June 10, 2016 by Dr. Eric S. Furie, a Boardcertified orthopedic surgeon. Dr. Furie diagnosed cervical degenerative disc disease at C4-5 and
C5-6. He also diagnosed status post September 2004 lumbar fusion L5-S1.
By decision dated May 2, 2017, an OWCP hearing representative affirmed the prior
decision, in part, finding that OWCP properly terminated his wage-loss compensation benefits,
but, reversed in part, as OWCP had improperly terminated his medical benefits for his accepted
emotional condition as Dr. R. Michael Prudent, Board-certified in psychiatry and neurology, noted
that it was unclear as to whether his depressive and pain symptoms would resolve and, thus, he
required further medical treatment. Following the hearing representative’s decision, OWCP
reinstated appellant’s medical benefits for his accepted emotional condition.
OWCP thereafter received a medical report dated August 2, 2017 by Dr. Erick M. Salado,
a general practitioner, who provided impressions of spinal stenosis, lumbar region, other
intervertebral disc disorders, lumbar region, cervical disc disorder, unspeciﬁed, unspeciﬁed
cervical region, cervical disc disorder with radiculopathy, high cervical region, and spinal stenosis,
cervical region. Dr. Salado advised that appellant had residual symptoms and permanent severe

2

restrictions. He concluded that appellant was unable to return to his pipefitter position, but may
be capable of performing sedentary office work with restrictions.
On September 19, 2017 appellant, through counsel, requested reconsideration of the
May 2, 2017 decision. He submitted a progress note dated July 31, 2017 from Dr. Max R. Steuer,
a Board-certified neurosurgeon. Dr. Steuer provided assessments of cervical and lumbar
spondylosis. He reviewed a description of appellant’s pipefitter position and opined that he was
totally disabled from the position.
By decision dated December 7, 2017, OWCP denied modification of the May 2, 2017
decision. It found that Dr. Salado and Dr. Steuer did not provide a rationalized opinion explaining
how appellant’s diagnosed lumbar and cervical conditions, which had not been accepted by
OWCP, and resultant disability were causally related to his February 10, 2003 employment
injuries.
OWCP subsequently received a duplicate copy of Dr. Furie’s June 10, 2016 report.
OWCP also received a report dated December 21, 2017 by Dr. Robert R. Reppy, an
attending family practitioner. Dr. Reppy provided impressions of status post L5-S1 laminectomy
and fusion, multilevel lumbar polyradiculopathy, bilateral spinal stenosis, lumbar and cervical,
cervical disc disorder with radiculopathy, benign prostatic hypertrophy, and retrograde ejaculation.
On February 26, 2018 appellant, through counsel, requested reconsideration of the
December 7, 2017 decision.
Counsel asserted that the opinions of Dr. Prudent and
Dr. Alexander N. Doman, a Board-certified orthopedic surgeon, were not entitled to the weight of
the medical evidence. She maintained that the physicians’ reports were not based on a complete
and an accurate medical history of appellant’s current condition. Counsel further maintained that
Dr. Prudent and Dr. Doman provided conclusory and inconsistent opinions without the necessary
supporting rationale. She contended that the SOAF did not contain sufficient detail of appellant’s
pipefitter duties. Lastly, counsel contended that appellant’s treatment from 2006 to 2017 was not
considered or made a part of the record.
Counsel submitted a letter dated January 18, 2018 from Dr. Reppy. Dr. Reppy diagnosed
L5-S1 disc herniation, displacement of lumbar intervertebral disc without myelopathy,
intervertebral disc disorder with myelopathy, lumbar region, and major depression, severe, without
mention of psychotic behavior. He noted that his diagnosis of lumbar disc disorder with
myelopathy was based on an electromyogram (EMG) performed by Dr. Sonal R. Hazariwala, a
Board-certified neurologist, which showed an abnormal study with electrophysiological evidence
of moderately severe, chronic multilevel lumbosacral polyradiculopathies bilaterally, worse in the
right L5 and left S1 myotomes. Dr. Reppy opined that appellant’s current lumbar conditions were
directly caused by his accepted February 10, 2003 employment injury. He related that surgery was
required to resolve his conditions, but that such treatment had failed. Dr. Reppy advised that
appellant still suffered from residuals of his above-noted accepted conditions, which prevented
him from returning to full-duty work as a pipefitter without restrictions.
By decision dated June 27, 2018, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that Dr. Furie’s June 10, 2016

3

report was repetitious. OWCP further found that Dr. Reppy’s December 21, 2017 and January 18,
2018 reports were irrelevant as he did not provide a rationalized opinion explaining the causal
relationship between appellant’s diagnosed conditions and resultant disability and the accepted
February 10, 2013 employment injury.
In a letter received on November 15, 2018 by OWCP, counsel requested reconsideration
of OWCP’s decision. She reiterated her prior contentions that the opinions of Dr. Prudent and
Dr. Doman did not constitute the weight of the medical evidence, the SOAF was deficient, and
appellant’s treatment from 2006 to 2017 was not considered or made a part of the record. Counsel
maintained that he still suffered from residuals of his accepted conditions.
Counsel submitted an additional letter dated November 6, 2018 from Dr. Reppy who
repeated the exact findings and conclusions made in his January 18, 2018 report. She also
submitted an undated report from Dr. Reppy. Dr. Reppy advised that, based on subjective and
objective findings of continuing residuals of the accepted lumbar conditions, appellant was unable
to perform the duties of his pipefitter position. He related that, while an EMG performed by
OWCP’s second opinion physician was a surface EMG conducted by a nurse and not as accurate
as the later EMG that showed an abnormal study, with electrophysiological evidence of moderately
severe, chronic multilevel lumbosacral polyradiculopathies bilaterally, worse in the right L5 and
left S1 myotomes. Dr. Reppy claimed that Dr. Doman did not review the more recent EMG
performed on January 25, 2017, which showed chronic multilevel lumbosacral polyradiculopathies
bilaterally. He maintained that the January 25, 2017 EMG was more accurate as it was an
intermuscular EMG while Dr. Prudent’s EMG was only a surface EMG. Additionally, Dr. Reppy
indicated that a new magnetic resonance imaging (MRI) scan was also not reviewed by the second
opinion physicians. He concluded that these objective tests conﬁrmed physical examination results
which showed that appellant was physically incapable of performing his physical work duties.
By decision dated November 26, 2018, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a), finding that the evidence
submitted was repetitious.
On December 4, 2018 counsel requested reconsideration. She continued to assert that
appellant still suffered from residuals of his accepted conditions. Counsel again reiterated her
prior contentions that the opinions of Dr. Prudent and Dr. Doman did not constitute the weight of
the medical evidence, the SOAF was deficient, and appellant’s treatment from 2006 to 2017 was
not considered or made a part of the record.
OWCP, by decision dated December 14, 2018, denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a), again finding that the
evidence submitted was repetitious or irrelevant.

4

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. It may review an award for or against payment
of compensation at any time based on its own motion or on application.3
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence which: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.4 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.5 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. In her November 15 and December 3, 2018 requests for
reconsideration, counsel contended that the opinions of Dr. Prudent and Dr. Doman, OWCP’s
referral physicians, were not entitled to the weight of the medical evidence as their reports
contained conclusory and speculative opinions without a complete and an accurate medical history
of appellant’s current condition and necessary rationale explaining why his current conditions were
not causally related to the accepted employment injury. She maintained that the physicians relied
upon a deficient SOAF as it did not sufficiently detail his pipefitter duties. Counsel further
maintained that OWCP failed to consider appellant’s treatment from 2006 to 2017 was not
considered or made a part of the record. She, however, presented no new arguments, rather she
reiterated arguments previously addressed by OWCP in its June 27, 2018 decision. The Board has
held that the submission of evidence or argument which repeats or duplicates evidence or argument
already in the case record and the submission of evidence or argument, which does not address the
particular issue involved does not constitute a basis for reopening a case.7 Because these
arguments have been previously considered, they were insufficient to require OWCP to conduct a
merit review.

3

Id. at § 8128(a).

4
20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
5

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

6

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

7

See S.B., Docket No. 18-1535 (issued April 3, 2019); M.N., Docket No. 16-1410 (issued June 28, 2017).

5

Accordingly, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP in support of his request for reconsideration. Appellant
submitted a November 6, 2018 from Dr. Reppy, while new, repeated the exact findings and
conclusions made in his January 18, 2018 report. Similarly, Dr. Reppy’s undated report is new,
but reiterated his prior opinion on the causal relationship between appellant’s current lumbar
conditions and disability and the accepted February 10, 2003 employment injuries. The reports of
Dr. Reppy, therefore, do not constitute relevant and pertinent new evidence related to the issue of
causal relationship.8 Accordingly, appellant is not entitled to a review of the merits of his claim
based on the third above-noted requirements under section 10.606(b)(3).
As appellant has not met any of the requirements of 20 C.F.R. § 10.606(b)(3), pursuant to
20 C.F.R. § 10.608 OWCP properly denied merit review.9
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

H.M., Docket No. 17-1436 (issued June 20, 2018).

9

See S.M., Docket No. 18-0673 (issued January 25, 2019); A.R., Docket No. 16-1416 (issued April 10, 2017); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the December 14 and November 26, 2018 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 9, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Chillicothe, OH, Employer
__________________________________________

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

Docket No. 13-1054
Issued: September 9, 2013

Case Submitted on the Record

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

JURISDICTION
On March 28, 2013 appellant, through his attorney, filed a timely appeal from the
February 21, 2013 Office of Workers’ Compensation Programs’ (OWCP) merit decision.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury causally related to factors of his federal employment.
FACTUAL HISTORY
On April 9, 2012 appellant then a 48-year-old equipment clerk, filed a claim alleging that
on March 13, 2012 he sustained a recurrence of his September 30, 2008 employment injury. He
1

5 U.S.C. § 8101 et seq.

noted that he was on limited duty and that his condition began to worsen when he was moving
some equipment at work. Appellant indicated that his left leg began to grow numb and the pain
was unbearable. On July 5, 2012 he alternatively filed a traumatic injury claim alleging that on
March 12, 2012 he sustained an injury to his back and both legs while moving equipment in the
performance of duty. Appellant alleged that he was at work moving some equipment and putting
it in order when he had pain. He stopped work on March 12, 2012.
In a March 16, 2012 treatment note, Dr. Carl Otten, Board-certified in preventative
medicine, noted that appellant was totally disabled for the period March 16 to April 7, 2012. He
indicated that appellant related that he was unable to work since he was sent home from work on
March 12, 2012. Dr. Otten indicated that appellant advised him that he had received injections
from another physician and had the “worst pain that he has had for the past three years.” He
examined appellant and provided findings to include tenderness with allodynia over the
lumbosacral soft tissue and antalgic restlessness along with distress. Dr. Otten diagnosed neck,
thoracic and lumbar degenerative disease. In an April 5, 2012 treatment note, he advised that
appellant was totally disabled through May 5, 2012. In a May 3, 2012 report, Dr. Otten
diagnosed thoracic disc, lumbar disc, cervical osteoarthritis and degenerative thoracic disc. He
advised that appellant had not worked since March 12, 2012 and that he related that his inability
to work was due to a job assignment from his supervisor beginning on March 1, 2012, which
required working in excess of his written physical limitations over a five-day week. Dr. Otten
indicated that appellant related that his job tasks included bending, squatting, twisting, pushing
and pulling. He also noted that appellant had anxiety symptoms. In a May 4, 2012 report,
Dr. Otten opined that the work assignments during the week of March 1, 2012 exceeded
appellant’s physical limitations and caused an exacerbation of his allowed conditions. He
continued to treat appellant and submit reports.
In a July 17, 2012 letter, OWCP advised appellant that he filed a claim for a traumatic
injury which originally appeared to be for a minor injury resulting in minimal or no lost time. It
advised him that his claim was reopened because of telephone contact from him under another
claim, No. xxxxxx314, indicated medical concerns and wage loss that would exceed a minor
injury status.2 OWCP informed appellant of the type of evidence needed to support his claim
and requested that he submit such evidence within 30 days.
By decision dated August 22, 2012, OWCP denied appellant’s claim finding that the
evidence was not sufficient to establish that the claimed events occurred as alleged.3
On August 31, 2012 appellant’s representative requested a telephonic hearing, which was
held on December 17, 2012. In a November 27, 2012 treatment note, Dr. Otten provided a
statement of causality. He noted that at the time of his evaluation on October 6, 2012 appellant
denied prior similar problems and that x-rays on the date showed cervical and lumbar
degenerative disc disease and thoracic degenerative changes. Dr. Otten diagnosed work-related

2

Claim number xxxxxx314 pertains to an injury to the lower/cervical back on September 8, 2008 and is not
presently before the Board.
3

OWCP noted that it was treating the claim as an occupational disease.

2

lumbar, thoracic and cervical strains. He opined that the preexisting degenerative findings
contributed to appellant’s delayed recovery.
In a December 17, 2012 statement, Daniel P. Riley, a coworker, explained that in
March 2012, he was going into the equipment room where appellant was working. He noted that
appellant indicated that he was doing the inventory and checking serial numbers by taking
everything out and moving it back in its place. Dr. Riley indicated that appellant informed him
that he was experiencing burning and tingling in his left foot and leg.
By decision dated February 21, 2013, OWCP’s hearing representative affirmed OWCP’s
August 22, 2012 decision, as modified. He found that the work activity occurred as alleged.
However, the medical evidence failed to establish a diagnosed condition causally related to the
work activity.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.7
4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

Id.

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ANALYSIS
The evidence establishes that appellant has a neck, shoulder and back condition and was
involved in activities such as pushing and pulling heavy machinery at work. However, appellant
submitted insufficient medical evidence to establish that his lumbosacral condition was caused or
aggravated by these activities or any other specific factors of his federal employment.
Appellant submitted several reports from Dr. Otten. In his May 3, 2012 report, Dr. Otten
diagnosed thoracic disc, lumbar disc, cervical osteoarthritis and degenerative thoracic disc. He
indicated that appellant related that his inability to work was due to a job assignment beginning
on March 1, 2012, which required working in excess of his written physical limitations over a
five-day week. The Board finds that while the physician noted that appellant believed that his
condition was related to his work, Dr. Otten did not offer his own opinion on causal relationship.
To the extent that this report supports causal relationship, Dr. Otten did not provide medical
rationale in which he explained why particular work factors contributed to a diagnosed condition.
In a May 4, 2012 report, he opined that the work assignments during the week of March 1, 2012
exceeded appellant’s limitations and exacerbated appellant’s allowed conditions. However,
Dr. Otten did not adequately explain exactly what incident or incidents at work to which he was
referring and how such particular incidents may have exacerbated a particular condition. His
November 27, 2012 report noted that he had previously offered work-related diagnoses.
However, this report does not specifically explain why particular work factors caused or
aggravated appellant’s diagnosed condition.
Other reports from Dr. Otten are insufficient to establish the claim because, while they
note appellant’s status, they do not specifically address how particular work factors contributed
to a diagnosed medical condition. Medical evidence which does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.8 Consequently, the Board finds that this evidence is insufficient to establish
appellant’s claim.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a neck, shoulder or back condition, appellant has not met his burden of
proof in establishing that he sustained a medical condition in the performance of duty causally
related to factors of his employment.
8

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

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

10

Id.

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2013
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, NORTHLAND
STATION, Columbus, OH, Employer
__________________________________________

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

Docket No. 09-1860
Issued: March 22, 2010

Case Submitted on the Record

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

JURISDICTION
On July 14, 2009 appellant filed a timely appeal from a June 23, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for a left knee condition.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant sustained a left knee condition in the performance of duty.
FACTUAL HISTORY
On December 13, 2006 appellant, then a 42-year-old mail carrier, filed an occupational
disease claim alleging that he sustained an injury to his left knee caused by his job duties,
including standing, lifting and walking. He first became aware of his condition on
May 10, 2006. Appellant stated that he had been off work since January 20, 2006. He

underwent back surgery on March 20, 2006.1 On September 25, 2006 appellant underwent a
total left knee replacement. He contended that his accepted back condition also contributed to
his left knee condition.
In an October 27, 2006 report, Dr. Scott J. Van Steyn, an attending Board-certified
orthopedic surgeon, stated that he had treated appellant for numerous musculoskeletal conditions
since August 1998, including bilateral osteoarthrosis of the knees and lumbar spine with
resulting degenerative disc disease and spinal stenosis. Despite these chronic conditions, he
continued to work as a mail carrier. In March 2006, appellant underwent a spinal fusion and
decompression at L5-S1 due to his lumbar spine osteoarthritis and spinal stenosis. As a result of
his arthritic conditions, he underwent a total left knee replacement in September 2006.
Dr. Van Steyn opined that appellant’s 22-year history as a mail carrier contributed to the
progressive deterioration of his knees and back and the development of his arthritis.
By letter dated February 20, 2007, the Office asked Dr. Van Steyn to provide a detailed
medical report identifying the specific employment activities that contributed to appellant’s left
knee arthritis and a rationalized medical opinion as to whether his left knee condition was caused
or aggravated by his employment.
In a March 12, 2007 report, Dr. Van Steyn stated that appellant had experienced pain,
swelling and stiffness in his knees for the past five years. He opined that appellant’s daily job
requirements contributed to the advanced osteoarthritis in both knees, requiring total knee
replacement surgery.
By decision dated March 19, 2007, the Office denied appellant’s claim, finding that the
evidence did not establish that his left knee condition was causally related to factors of his
federal employment.
On April 3, 2007 appellant requested reconsideration. In a May 16, 2007 report,
Dr. Van Steyn noted that appellant’s job required a significant amount of walking, bending,
lifting, stair climbing and squatting. These repetitive nature and duration of these activities
during his workday put significant force on his knees and accelerated the progression of arthritis
in his knees. Due to the acceleration of appellant’s arthritis, he had to undergo bilateral knee
replacements.
In a July 31, 2007 report, Dr. James H. Rutherford, a Board-certified orthopedic surgeon
and an Office referral physician, reviewed appellant’s medical history and provided findings on
physical examination. Appellant noted that he sustained a work-related right knee injury on
November 22, 1999 when he tripped at a construction site where he was delivering mail. There
was no history of work-related trauma to his left knee. Dr. Rutherford opined that appellant’s
left knee arthritis and surgery was not caused or aggravated by his work activities. He described
1

Appellant has a separate claim accepted for aggravation of lumbar stenosis under OWCP File No. xxxxxx986.
He was released to return to work as on September 27, 2006 but he did not return to work following his left knee
surgery on September 25, 2006. Appellant had surgery in 1995 for a nonwork-related right knee condition and in
1998 following a motor vehicle accident in May 1998. He sustained a work-related injury to his right knee on
November 22, 1999 that was accepted under OWCP File No. xxxxxx093.

2

the work activities as essentially medium type work activities. Dr. Rutherford stated that the
1999 traumatic work injury to appellant’s right knee contributed to a permanent aggravation of
his preexisting right knee arthritis leading to a total right knee replacement. In an addendum
report dated August 30, 2007, he clarified that the progression of appellant’s right knee arthritis
resulting in surgery in 2007 was caused by the 1999 traumatic injury, not to his daily work
activities. Dr. Rutherford stated that his daily work activities did not affect the degenerative
conditions in either knee.
By decision dated September 21, 2007, the Office affirmed the March 19, 2007 decision.
On September 12, 2008 appellant requested reconsideration. In a July 28, 2008 report,
Dr. Martin D. Fritzhand, a Board-certified urologist, reviewed the medical history and provided
findings on physical examination. He noted that appellant had experienced left knee pain and
discomfort since 1999, culminating in a total knee replacement. Dr. Fritzhand opined that there
was a causal relationship between appellant’s left knee condition and the inherent nature of his
work activities, as well as an additional relationship to his right knee and low back injuries. He
stated that appellant’s more than 20 years as a mail carrier could easily account for his left knee
arthritic changes. In addition, the ongoing pain and discomfort involving his right knee and low
back resulted in a favoring of the left knee, putting additional stress on the left knee joint and
further accelerating arthritic change.
By decision dated June 23 2009, the Office denied modification of the September 21,
2007 decision.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit 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 compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.2 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.3

2

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

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Section 8123(a) of the Federal Employees’ Compensation Act provides that “if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary [of Labor] shall appoint a third physician who shall
make an examination.”4
ANALYSIS
Dr. Van Steyn stated that he had treated appellant for numerous musculoskeletal
conditions since August 1998, including bilateral osteoarthrosis of the knees and lumbar spine
with resulting degenerative disc disease and spinal stenosis. Despite these chronic conditions,
appellant continued to work as a mail carrier. In March 2006, he underwent a spinal fusion and
decompression at L5-S1 due to his lumbar spine osteoarthritis and spinal stenosis. As a result of
his arthritic conditions, appellant underwent a total left knee replacement in September 2006.
Dr. Van Steyn opined that appellant’s 22-year history as a mail carrier contributed to the
progressive deterioration of his knees and back and the development of his arthritis. He stated
that appellant had experienced pain, swelling and stiffness in his knees for the past five years.
Dr. Van Steyn opined that appellant’s daily job requirements contributed to the advanced
osteoarthritis in both knees, requiring knee replacements. He noted that appellant’s job required
a significant amount of walking, bending, lifting, stair climbing and squatting. These repetitive
nature and duration of these activities during his workday put significant force on his knees and
accelerated the progression of arthritis in his knees. Due to the acceleration of his arthritis, he
had to undergo bilateral knee replacements.
Dr. Rutherford reviewed appellant’s medical history and provided findings on physical
examination. He noted a work-related right knee injury on November 22, 1999 when appellant
tripped at a construction site where he was delivering mail. There was no history of work-related
trauma to his left knee. Dr. Rutherford opined that appellant’s left knee arthritis and surgery was
not caused or aggravated by his work activities. He described the work activities as essentially
medium type work activities. Dr. Rutherford opined that the 1999 traumatic work injury to
appellant’s right knee contributed to a permanent aggravation of his preexisting right knee
arthritis leading to a total right knee replacement. In an addendum report, Dr. Rutherford
clarified that the progression of appellant’s right knee arthritis, resulting in surgery in 2007, was
caused by the 1999 traumatic injury, not to his daily work activities. He stated that appellant’s
daily work activities did not affect the degenerative conditions in either knee.
The Board finds that this case is not in posture for a decision. There is a conflict in the
medical opinion evidence between Dr. Van Steyn and Dr. Rutherford, both Board-certified
orthopedic surgeons, as to whether appellant’s left knee condition was causally related to his
work activities, necessitating referral to a referee physician.5 On remand, of the case, the Office

4

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
5

The Board notes that Dr. Fritzhand’s opinion regarding causal relationship is of diminished probative value as
he is a Board-certified urologist, not a specialist in a medical discipline involving a musculoskeletal condition, such
as orthopedic medicine. See Mary S. Brock, 40 ECAB 461 (1989).

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should refer appellant to an appropriate Board-certified specialist, for an examination and
evaluation to resolve the conflict in the medical opinion evidence.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to an appropriate medical specialist for an examination and evaluation to
resolve the conflict in the medical opinion evidence regarding his left knee condition. After such
further development as the Office deems necessary, it should issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2009 is set aside and the case is remanded for further
action consistent with this decision.
Issued: March 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

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

Docket No. 18-0374
Issued: August 28, 2018

Case Submitted on the Record

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

JURISDICTION
On December 13, 2017 appellant filed a timely appeal from a June 21, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that OWCP’s
March 13, 1998 loss of wage-earning capacity (LWEC) determination should be modified.
FACTUAL HISTORY
This case has previously been before the Board. By decisions dated July 23, 2013 and
June 16, 2016, the Board found that appellant failed to establish a basis for modifying OWCP’s

1

5 U.S.C. § 8101 et seq.

March 13, 1998 LWEC determination.2 The facts and circumstances as set forth in the Board’s
prior decisions are incorporated herein by reference. The relevant facts are as follows.
On April 12, 1994 appellant, then a 41-year-old welder, injured his left thumb and wrist
while in the performance of duty. OWCP accepted the claim for left thumb ulnar collateral
ligament tear and authorized surgery.3 Appellant was unable to resume his regular duties as a
welder. The employing establishment terminated his employment, effective October 28, 1994.
OWCP subsequently paid him wage-loss compensation for temporary total disability. Appellant
received wage-loss compensation on the periodic compensation rolls as of December 1994.
In February 1995, OWCP referred appellant for vocational rehabilitation services.
Appellant completed vocational testing and began training at a technical college for an engineering
graphics certification. He independently found a position as a container maintenance mechanic
(land base) with the International Longshoremen’s Association (ILA) and began work there on a
trial basis, effective August 18, 1997. In correspondence dated August 27, 1997, appellant
informed his rehabilitation counselor that “an opportunity of a lifetime” had arisen (with ILA) and
he had begun temporary employment there. He informed the counselor that the position had been
approved by his physician, Dr. Howard Brilliant, a Board-certified orthopedic surgeon, and was
less demanding and strenuous than his welder position at the employing establishment.4 In
December 1997, appellant began working full time as a container maintenance mechanic at ILA.
By decision dated March 13, 1998, OWCP determined that appellant’s full-time
reemployment with ILA fairly and reasonably represented his wage-earning capacity. The
decision noted that, effective December 7, 1997, appellant earned $520.00 per week as a container
maintenance mechanic. Because his current earnings with ILA were less than those earned in his
date-of-injury welder position, OWCP compensated him based on his loss of earning capacity.
By decision dated August 6, 1998, OWCP granted appellant a schedule award for 55
percent permanent impairment of the left thumb.
Appellant worked as a private sector container maintenance mechanic with ILA through
October 2005. It is unclear why he stopped work entirely in October 2005.5 OWCP continued to
pay wage-loss compensation based on the March 13, 1998 LWEC determination. In August 2009,
it expanded acceptance of appellant’s claim to include left wrist post-traumatic degenerative

2

Docket No. 13-1105 (issued July 23, 2013); Docket No. 16-0679 (issued June 16, 2016).

3

On April 26, 1994 Dr. L.W. Mulbry, a Board-certified psychiatrist who practices hand surgery, performed closed
reduction and percutaneous pinning of the rupture ulnar collateral ligament, left thumb metacarpophalangeal (MCP)
joint.
4

Dr. Brilliant provided two disability certificates dated August 25, 1997. One certificate indicated that appellant
“may return to work at new welding job.” The other certificate noted that he “may return to work as [a] container
maintenance mechanic....”
5
On an EN1032 form signed by appellant on October 11, 2005, he indicated that he was not working due to “injury
on job.”

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arthritis.6 By decision dated September 24, 2009, OWCP denied appellant’s claim for an
additional schedule award.
By decision dated October 1, 2012, OWCP denied appellant’s claim for additional wageloss compensation. Appellant then appealed to the Board. In its July 23, 2013 decision, the Board
found that he had not established a basis for modifying the March 13, 1998 LWEC determination.
The Board reviewed the relevant medical evidence and the arguments presented and found that
appellant had not met any of the three criteria for modification. Accordingly, the Board affirmed
OWCP’s October 1, 2012 decision.7
In April 2013 OWCP referred appellant to Dr. James F. Bethea, a Board-certified
orthopedic surgeon for a second opinion evaluation. In an on April 30, 2013 report, Dr. Bethea
indicated that appellant’s accepted conditions had not resolved and opined that he could not return
to work as a welder for the employing establishment.8
Appellant again requested modification in April 2014 and submitted additional medical
evidence including a December 11, 2013 report from Dr. Bright McConnell, III, a Board-certified
orthopedic surgeon, who had previously conducted a second opinion evaluation on June 5, 2009.
In the December 11, 2013 report, Dr. McConnell diagnosed osteoarthritis of the left wrist and hand
and found that appellant had increasing problems with his left thumb and wrist which caused
difficulty in completing his current work requirements. He indicated that the restrictions found in
2009 were permanent.9 Dr. McConnell further noted that he did not have access to a formal job
description for a container maintenance mechanic position and opined that if that position did not
accommodate appellant’s left hand restrictions, then he would not be able to continue in that
specific occupation.
By decision dated May 8, 2014, OWCP found the evidence of record insufficient to
establish a material worsening of appellant’s accepted left thumb and wrist condition and denied
modification.
On April 7, 2015 appellant again requested modification of the March 13, 1998 LWEC
determination. He argued that the May 8, 2014 decision was erroneous because OWCP had not
relied on a reasonably current medical examination in determining that the “constructed job of
container maintenance mechanic” was medically suitable. Appellant submitted an April 24, 2014
letter from ILA Local 1422-A President, L.B., who provided a general description of the duties of
an ILA mechanic in the maritime industry. L.B. explained that mechanics performed
In an order dated May 18, 2012, the Board dismissed appellant’s September 13, 2011 appeal. It found that there
was no final OWCP decision within the Board’s jurisdiction. Docket No. 11-2032 (issued May 18, 2012).
6

7

Supra note 2.

8
Dr. Bethea noted that appellant accepted a light-duty assignment with ILA and worked there approximately eight
years. He, however, did not specifically comment on whether appellant was able to work in a light-duty capacity.
The Board notes that the most recent statement of accepted facts of record, dated April 21, 2011, does not indicate
that appellant worked in private employment from 1997 to 2005.
9
The restrictions applied by Dr. McConnell in 2009 included left hand restrictions of one to two hours of reaching
and reaching above the shoulder, repetitive movements of the wrist, and a five-pound lifting restriction for one to two
hours.

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maintenance/repair on intermodal chassis and containers, which included chassis tire
maintenance/repair utilizing a 25-pound hammer and a ¾-inch impact gun. He also noted that
tractor-trailer tires weighed approximately 75 pounds. L.B. further indicated that chassis repair
required basic electrical knowledge and welding, and that repairing containers involved using a
25-pound hammer to straighten large steel panels. The steel panels and similarly sized sheets of
flooring had to be manually lifted into place. Lastly, L.B. identified various tools utilized by
mechanics and explained that the job required frequent bending, climbing, pushing, pulling, and
lifting.
By decision dated May 26, 2015, OWCP denied modification of its March 13, 1998 LWEC
determination. It explained that it had been based on appellant’s actual earnings as a container
maintenance mechanic, not a selected/constructed position he did not hold, and because the
decision was based on his actual earnings, a reasonably current medical evaluation was not
required. OWCP further noted that he had performed the ILA container maintenance mechanic
position for nearly eight years, and there was nothing to suggest that this work, and the earnings
derived from it, were not representative of his wage-earning capacity. Consequently, it found that
appellant had not established a basis for modifying the March 13, 1998 LWEC determination.
Because of a typographical error in the May 26, 2015 decision, OWCP made a minor correction
and reissued the decision on June 8, 2015.
On June 24, 2015 appellant again requested modification. He submitted a report dated
May 29, 2015 in which Dr. McConnell diagnosed osteoarthritis of the wrist and hand, and advised
that appellant’s work restrictions had not changed since he was last seen in 2013. Dr. McConnell
found that appellant could not perform the duties of an ILA mechanic.
By decision dated September 10, 2015, OWCP found that Dr. McConnell’s May 29, 2015
report was insufficient to establish a material change in the nature and extent of appellant’s injuryrelated condition. Consequently, it denied modification of the March 13, 1998 LWEC
determination.
Appellant then filed another appeal with the Board. In its June 16, 2016 decision, the Board
found that he had not established a basis for modifying the March 13, 1998 LWEC determination
and affirmed OWCP’s September 10, 2015 decision.10 The Board reviewed the relevant medical
evidence and the arguments presented and again found that appellant had not met any of the three
criteria for modification.
On March 27, 2017 appellant again requested modification. He indicated that he was
submitting new evidence that established a change in his injury-related condition and that the
March 13, 1998 LWEC determination was erroneous, thereby warranting modification.
In a December 22, 2015 report, Dr. McConnell again reported that appellant had significant
post-traumatic degenerative changes of his left wrist, MCP joint, and CMC joint of the left thumb,
as clearly seen on x-ray. He again noted his review of the ILA description of job duties for
maintenance and repair, and advised that the accepted condition could have been impacted by his
work as a container maintenance mechanic from 1997 through 2005. Dr. McConnell indicated

10

Supra note 2.

4

that restrictions placed on appellant by Dr. Mulbry, an attending hand surgeon, were permanent.11
He noted appellant’s report that, during his employment as a container maintenance mechanic from
1997 through 2005, he had to perform activities which materially aggravated his left hand
condition. Dr. McConnell concluded that appellant’s condition was materially and permanently
aggravated by performing the job requirements listed for repair and maintenance of containers
which would, more likely than not, cause significant aggravation of his preexisting degenerative
changes.
Appellant also submitted a June 23, 2016 letter from L.B. In a word-for-word copy of his
April 24, 2014 letter, L.B. provided a general description of the duties of an ILA mechanic in the
maritime industry.
By decision dated June 21, 2017, OWCP denied modification of the March 13, 1998
LWEC determination. It noted that the June 23, 2016 letter from L.B. was a duplicate of his
April 24, 2014 letter that had previously been reviewed by the Board. OWCP found
Dr. McConnell’s December 22, 2015 report of diminished probative value because he relied on an
inaccurate and incomplete employment history. It further noted that a formal job description of
appellant’s duties in the container maintenance position was not provided.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of injury
or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is
entitled to compensation computed on loss of wage-earning capacity.12 A loss of wage-earning
capacity determination is a finding that a specific amount of earnings, either actual earnings or
earnings from a selected/constructed position, represents a claimant’s ability to earn wages.13
Generally, an employee’s actual earnings best reflect his wage-earning capacity.14 Absent
evidence that actual earnings do not fairly and reasonably represent the employee’s wage-earning
capacity, such earnings must be accepted as representative of the individual’s wage-earning
capacity.15
Compensation payments are based on these determinations, and OWCP’s finding remains
undisturbed until properly modified.16 Modification of a wage-earning capacity determination is
unwarranted unless there is a material change in the nature and extent of the injury-related

11

A report from Dr. Mulbry identifying work restrictions cannot be found in the case record.

12

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

13

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

14

Hayden C. Ross, 55 ECAB 455, 460 (2004).

15

Id.

16

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

5

condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.17 The burden of proof is on the party seeking modification.18
ANALYSIS
The Board finds that appellant failed to establish a basis for modifying OWCP’s March 13,
1998 LWEC determination.
Appellant asserts on appeal that the March 13, 1998 LWEC determination was erroneous
because the record does not contain evidence that the position on which it was based, a container
maintenance mechanic position with ILA, was a full-time position. The record, however, supports
that, in August 1997, appellant, who found the position on his own, began work on an “on call”
basis with ILA as a container maintenance mechanic, and that on December 6, 1997 he began a
regular 40-hour per week employment position. Appellant continued in this position until
October 2005.
Appellant also asserts that the evidence, based on Mr. Bailey’s June 23, 2016 letter,
established error in the March 13, 1998 LWEC determination. As to L.B.’s June 23, 2016 letter,
this is a word-for-word duplicate of his letter dated April 24, 2014 which was previously reviewed
by OWCP and the Board. Findings made in prior Board decisions are res judicata absent any
further review by OWCP under section 8128 of FECA.19 There is, therefore, no evidence to
support that the March 13, 1998 LWEC determination was erroneous.
The Board also finds that Dr. McConnell’s December 22, 2015 report did not establish a
material change in his employment-related condition. In his December 22, 2015 report,
Dr. McConnell noted that he had reviewed the ILA container maintenance mechanic duties
provided by L.B. and advised that appellant was unable to perform these duties. As the Board
explained in its June 16, 2016 decision, while Dr. McConnell indicated that appellant could not
perform certain ILA mechanic duties as outlined by L.B., the current record did not demonstrate
that appellant regularly performed the duties described by L.B. when he was employed by ILA
from August 1997 through October 2005. The Board noted that, when appellant accepted the
container maintenance mechanic position in August 1997, he represented that it was “less
demanding” and “less strenuous” than his prior position with the employing establishment, and
that some of the duties L.B. described clearly exceeded the physical requirements of appellant’s
date-of-injury welder position, and were, therefore, inconsistent with appellant’s previous
representation that his new ILA job was less demanding and less strenuous. L.B. provided only a
“general description” of what was required of an ILA mechanic and did not address appellant’s
specific employment history from August 1997 through October 2005, and he did not mention
appellant by name in either his April 24, 2014 or June 23, 2016 correspondence. Appellant
submitted no specific evidence describing his employment for that period. There is, therefore, no
probative evidence to establish his job duties from August 1997 through October 2005.
17
20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part
2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
18

J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

19

See B.R., Docket No. 17-0294 (issued May 11, 2018).

6

Thus, as Dr. McConnell relied on an inaccurate and incomplete history, his December 22,
2015 report is insufficient to establish a material change in the nature and extent of appellant’s
injury-related condition. The burden is on appellant to establish that the March 13, 1998 LWEC
determination should be modified.20 The Board finds that the evidence submitted with appellant’s
most recent request for modification is insufficient to establish a basis for modifying OWCP’s
March 13, 1998 LWEC determination.21
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that OWCP’s
March 13, 1998 LWEC determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 28, 2018
Washington, DC

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

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

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

20

Supra note 18.

21
See D.Q., Docket No. 17-1220 (issued May 18, 2018). The Board also notes that OWCP procedures regarding
suitable work, is not relevant to the merit issue in this case, which is modification of an LWEC determination.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Anchorage, AK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1840
Issued: January 20, 2015

Case Submitted on the Record

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

JURISDICTION
On August 20, 2014 appellant, through counsel, filed a timely appeal from a May 15,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for further merit review. As more than 180 days elapsed from the last merit decision of
March 19, 2013 to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this claim and only has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 23, 2010 appellant, then a 49-year-old window clerk, filed a traumatic injury
claim alleging that on January 16, 2010 she experienced lower back pain radiating down both
legs in the performance of her duties. On January 21, 2011 OWCP accepted the claim for
1

5 U.S.C. § 8101 et seq.

temporary aggravation of intervertebral disc protrusion (disc bulge) at L4-L5.
returned to full-time light-duty work.

Appellant

On January 11, 2013 appellant filed a Form CA-7 claim for wage loss for total disability
for the period December 6, 2012 to January 11, 2013.
By letter dated February 1, 2013, OWCP requested contemporaneous medical evidence
explaining why appellant’s back condition prevented her from performing her employment
activities during the claimed period. It noted that medical reports from Dr. Stinson and Dr. Rice
requesting that leave be granted pending surgery and for recovery from surgery were received,
but there was no medical evidence giving objective findings showing that her back condition
prevents her from working during the claimed period.
By decision dated February 20, 2013, OWCP denied appellant’s request for lumbar spine
surgery (L4-L5 discectomy), she underwent on December 4, 2012.
Appellant submitted a February 19, 2013 statement along with medical reports dated
March 7, July 31, August 8, and October 8, 2012.
By decision dated March 19, 2013, OWCP denied the claim for wage loss for the period
December 6, 2012 through January 11, 2013. It found that while the March 7, July 31, August 8,
and October 8, 2012 reports described appellant’s work-related medical condition and treatment
given, her treating physician failed to provide any medical explanation as to why and how she
was placed off work during the claimed period.
On March 4, 2014 appellant requested reconsideration. In a February 15, 2014 statement,
she acknowledged that she had no medical documentation to support that she was totally
disabled for the period December 6, 2012 to January 11, 2013. Appellant alleged that during the
time she was waiting for OWCP to approve her surgery, it used nearly eight weeks of her time,
capriciously toying with her. She claimed that OWCP had no intentions for her to have surgery,
but provided no basis for this claim. Appellant indicated that OWCP caused the delay for her
surgery; therefore, she was asking for compensation for the period December 6, 2012 to
January 11, 2013.
Medical reports from Dr. James E. Rice, a Board-certified orthopedic surgeon, were
received. These included progress reports dated December 3 and 19, 2012. In a January 11,
2013 report, Dr. Rice indicated that appellant was under his care since December 5, 2012 and
would remain under his care until the end of her recovery period from the microdiscectomy
surgery. He indicated at appellant’s first medical appointment on December 5, 2012, he
determined, based on a review of her medical record, diagnostic testing, and examination
findings, that appellant was in need of a lumbar microdiscectomy surgery of the L4-L5 disc.
Dr. Rice noted that the surgery was scheduled for December 13, 2012, but OWCP denied the
surgical request stating further medical information was needed. He performed additional testing
on appellant and came to the same conclusion that surgery was needed. Dr. Rice excused her
from performing any work duties from December 5, 2012 until his release after she recovers
from surgery.
By decision dated May 15, 2014, OWCP denied reconsideration without reviewing the
merits of the case.
2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
The underlying issue on reconsideration is whether appellant has submitted new evidence
relevant and pertinent to the issue of whether she was totally disabled during the period
December 6, 2012 through January 11, 2013. It is noted that appellant underwent an
unauthorized lumbar spine surgery on February 7, 2013. Her request for reconsideration neither
alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Rather, appellant asserted that Dr. Rice was ready to perform the lumbar surgery on December 6,
2012, but OWCP did not want her to have the lumbar surgery and caused the delay in the
surgery. Because OWCP caused the delay, appellant requested that she be compensated.
However, the issue of whether she is disabled during the claimed period is a medical issue,
which can only be addressed by contemporaneous medical evidence from her physician
explaining how and why she was disabled from her work duties due to her accepted condition
during the claimed period. Consequently, appellant was not entitled to a review of the merits
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(2).
The Board also finds that appellant did not provide any relevant or pertinent new
evidence warranting the reopening of the case on the merits. Submission of evidence which
repeats or duplicates evidence already in the record does not constitute a basis for reopening a
case.6 The evidence submitted was repetitive and duplicative of evidence previously of record.
The progress notes from Dr. Rice dated December 3 and December 19, 2012 did not
contain any explanation of why appellant was unable to perform her light-duty work and was
placed off work during the claimed period. In his January 11, 2013 report, Dr. Rice excused
appellant from performing any work duties from December 5, 2012 until his release after she
recovers from surgery. However, he failed to provide any new explanation as she was disabled
from performing her work duties during this period. As noted, OWCP denied appellant’s request
2

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

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

3

for lumbar spine surgery by decision dated February 20, 2013.
insufficient to reopen her claim for further merit review.

Thus, this information is

The Board finds that appellant did not show that OWCP erroneously interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not
meet any of the regulatory requirements and OWCP properly declined to reopen her claim for
further merit review.7
On appeal, counsel argues the decision is contrary to law and fact. However, for the
reasons discussed above, appellant has failed to establish entitlement to wage-loss compensation
for the claimed period of December 6, 2012 to January 11, 2013.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2015
Washington, DC

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

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

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

7

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued
August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the
case for a review on the merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-59
Issued: October 13, 2009

Case Submitted on the Record

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

JURISDICTION
On October 9, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 16, 2008, finding she was not entitled
to a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has a ratable permanent impairment to a scheduled
member or function of the body under 5 U.S.C. § 8107 causally related to her employment
injuries.
FACTUAL HISTORY
The case has been before the Board on prior appeals. In a decision dated February 27,
2003, the Board affirmed a July 23, 2002 Office decision denying compensation for wage loss
for intermittent periods July 5, 1997 to March 5, 2001.1 By decision dated December 3, 2007,
1

Docket No. 02-2231 (issued February 27, 2003).

the Board set aside a May 3, 2007 Office decision and remanded the case for a merit decision on
the schedule award issue.2 The history of the case as provided in the Board’s prior decisions is
incorporated herein by reference.
With respect to the schedule award issue, appellant had submitted an October 20, 2003
report from Dr. Charles Kistler, a Board-certified osteopath, opining that she had permanent
impairment to her arms and legs under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). A physician selected as a second
opinion examiner, Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon, submitted a
January 22, 2004 report, noting no objective findings to show the accepted conditions of
cervical, thoracic, lumbar strains and fibromyalgia were still active. He opined that appellant
had no permanent impairment under the A.M.A., Guides.
The Office found a conflict existed in the medical evidence with respect to permanent
impairment and continuing employment-related disability.
The case was referred to
Dr. Thomas Bender, a Board-certified orthopedic surgeon, as a referee physician. In a report
dated August 13, 2004, he provided a history and results on examination. Dr. Bender stated:
“It is my understanding [appellant] has a claim number xxxxxx497 with a date of
injury on July 13, 1996. The claim recognizes the condition of ‘cervical, thoracic,
and lumbar strains and fibromyalgia. [Appellant] remains clinically symptomatic
at this time from degenerative lumbar disc disease as well as what appears to be a
heightened perception of personal dysfunction and pain. She does not have
elements of cervical, thoracic or lumbar strain. [Appellant] does not have the
classic elements of fibromyalgia. She does not have a trigger area or nodularities
in the typical 18 areas as described by the American College of Rheumatology.
On an objective basis, the conventional x-rays and MRI [magnetic resonance
imaging] scan verify that [appellant] has diffuse degenerative disc disease and
spondylosis and the axial skeleton. In terms of the conditions allowed in the
claim including cervical, thoracic and lumbar strains, as well as the fibromyalgia,
she does not have objective physical findings of ongoing disease entities or
dysfunction. My utilization of the A[.]M[.]A[.,] Guides would not provide the
patient any impairment. [Appellant] is considered at maximum medical
improvement nine months after the date of injury or the time of April 1, 1997.
This would have allowed the soft tissue elements of the axial spinal strains to
have resolved.”
Dr. Bender concluded that the degenerative disc disease was related to the aging process,
independent of the employment injuries.
Based on Dr. Bender’s report, the Office terminated compensation in a May 2, 2005
decision. It also found that appellant was not entitled to a schedule award under
5 U.S.C. § 8107.

2

Docket No. 07-1545 (issued December 3, 2007).

2

Appellant submitted medical evidence from Dr. James Rutherford, a Board-certified
orthopedic surgeon. In a report dated January 7, 2005,3 Dr. Rutherford opined that she had
ongoing symptoms in her back and multiple areas associated with fibromyalgia related to her
claim. In a June 30, 2005 report, he stated that not all soft tissue injuries resolve in 10 weeks and
fibromyalgia was a chronic condition. Dr. Rutherford stated that Dr. Bender did not recognize
that appellant was on restricted work until her retirement on July 23, 2002 and she continued to
have the same restrictions. He stated that, while some of the ongoing symptoms could be
attributed to degenerative disc disease, appellant did have continuing symptoms related to the
employment injuries.
In a report dated January 17, 2005, Dr. Maria Haller, an osteopath, opined that appellant
continued to have fibromyalgia. By report dated September 6, 2005, Dr. Kistler indicated that
appellant continued to need treatment for fibromyalgia.
In a report dated June 6, 2006, Dr. Rutherford opined that appellant had six percent right
upper extremity impairment, based on loss of range of motion for right shoulder flexion and
abduction. He opined that the impairment was a consequence of cervical strain as well as
fibromyalgia.
By decision dated March 3, 2008, the Office found that the medical evidence did not
establish a permanent impairment to a scheduled member of the body causally related to the
employment injuries.
Appellant requested an oral hearing before an Office hearing
representative, which was held on July 8, 2008. In a decision dated September 16, 2008, the
hearing representative affirmed the March 3, 2008 decision. He found that the weight of the
evidence was represented by Dr. Bender.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.4 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.5 The permanent impairment must be causally related to an accepted
employment injury.6

3

The first page of the report is dated January 7, 2004, but subsequent pages are dated January 7, 2005. Since
Dr. Rutherford discusses Dr. Bender’s August 2004 report, it is presumed the date of the report is January 7, 2005.
4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid, additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

Rosa Whitfield Swain, 38 ECAB 368 (1987).

3

A rationalized medical report is a report based on a complete factual and medical
background with an opinion supported by medical rationale.7 It is well established that when a
case is referred to a referee examiner for the purpose of resolving a conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual and medical background,
must be given special weight.8
ANALYSIS
In this case there was a conflict in the medical evidence with respect to a permanent
impairment causally related to the accepted employment injuries. Dr. Kistler found an
employment-related permanent impairment to both the arms and the legs, while the second
opinion physician, Dr. Fisher, found no permanent impairment causally related to employment.
Pursuant to 5 U.S.C. § 8123(a), appellant was referred to a referee physician to resolve the
conflict.9
The referee physician, Dr. Bender, provided a rationalized medical opinion on the issue.
He reviewed the medical evidence and explained that appellant did not have findings consistent
with a continuing employment-related condition. Dr. Bender opined that appellant did not have
a permanent impairment under the A.M.A., Guides causally related to an accepted employmentrelated condition. His rationalized medical report is entitled to special weight.
Dr. Rutherford opined that appellant had a six percent right arm impairment due to loss of
right shoulder motion and that the impairment was causally related to employment.10 While he
indicated that he disagreed with Dr. Bender, his report is not sufficient to overcome the special
weight accorded to the referee physician. Dr. Rutherford opined that the impairment was related
to both cervical strain and fibromyalgia, without adequately explaining why a right shoulder
motion limitation was related to an employment injury. As he noted, appellant had symptoms
that could be attributed to degenerative disc disease.
The weight of the medical evidence rests with Dr. Bender regarding a permanent
impairment causally related to employment.
He found no employment-related permanent
impairment and the Office properly determined that appellant was not entitled to a schedule
award.

7

See Donald W. Wenzel, 56 ECAB 390 (2005).

8

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

9

The Act provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).
10

The hearing representative incorrectly found that Dr. Rutherford was on one side of the conflict resolved by
Dr. Bender, the reports from Dr. Rutherford were not submitted until after Dr. Bender’s August 13, 2004 report.

4

CONCLUSION
The Board finds that the conflict in the medical evidence was properly resolved and the
weight of the evidence does not establish an employment-related permanent impairment entitling
appellant to a schedule award under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 16 and March 3, 2008 are affirmed.
Issued: October 13, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5