United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
L.R., Appellant

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

Docket No. 07-202
Issued: April 17, 2007

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 October 30 2006 appellant filed a timely appeal from a September 12, 2006 decision
of the Office of Workers’ Compensation Programs’ adjudicating her schedule award claim.
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 any permanent impairment of her upper extremities
causally related to her accepted medical conditions.
FACTUAL HISTORY
On July 28, 2003 appellant, then a 54-year-old management analyst, filed a traumatic
injury claim alleging that on July 14, 2003 she sustained an injury to her back, neck, arms and
hands while moving some computer monitors at work. On August 11, 2003 the Office accepted
her claim for cervical and lumbar sprains and strains. The Office subsequently accepted bilateral
wrist sprains and bilateral carpal tunnel syndrome as causally related to the July 14, 2003

employment injury. In its acceptance letter, the Office noted that Dr. Brent N. Hisey, an
attending Board-certified neurosurgeon, was treating appellant for her cervical and lumbar
sprains. Dr. Anthony L. Cruse, an attending physician specializing in orthopedic trauma, was
treating appellant for her bilateral wrist sprains. On May 22, 2004 appellant filed a claim for a
schedule award.
On July 21, 2003 Dr. Cruse provided findings on examination and diagnosed bilateral
wrist sprains and strains. On August 4, 2003 he indicated that her wrist pain was worse. He
noted that appellant wished to change the physician treating her cervical and lumbar conditions
from Dr. C.L. Soo to another physician. On August 25, 2003 Dr. Cruse provided findings on
physical examination and indicated that appellant had wrist tenderness, pain and paresthesia. On
October 21, 2003 Dr. Cruse stated that appellant’s left wrist was about 60 percent better and the
right wrist about 50 percent better. However, there was still tenderness at the right carpal and
pain with extension of both wrists. Appellant had decreased grip strength bilaterally.
On November 18, 2003 Dr. Mehdi N. Adham, an attending Board-certified plastic
surgeon specializing in hand surgery, stated that appellant had tingling and numbness in the right
hand with stiffness. On February 3, 2004 he diagnosed carpal tunnel syndrome and cubital
tunnel syndrome. On March 30, 2004 Dr. Adham stated that appellant’s symptoms on her right
hand, pain, discomfort, numbness and tingling, were getting worse. On April 22, 2004 he
indicated that appellant’s carpal tunnel syndrome and cubital tunnel syndrome was responding to
conservative treatment.
On October 14, 2003 Dr. Hisey provided findings on physical examination for appellant’s
accepted cervical and lumbar sprains and strains. On December 29, 2003 he indicated that
appellant should undergo physical therapy for her cervical and lumbar conditions. On March 24,
2004 Dr. Hisey stated that appellant continued to have cervical and lumbar pain. He
recommended additional physical therapy.
On June 4, 2004 the Office asked Dr. Hisey to provide a report explaining whether
appellant had any upper extremity impairment causally related to her July 14, 2003 employmentrelated cervical and lumbar spine conditions. On June 14, 2004 Dr. Hisey stated that he released
appellant from treatment on May 12, 2004. He found that she had a 15 percent impairment of
the whole person based on moderate degenerative changes in the cervical and lumbar spine at
C4-5, C5-6 and L5-S1.
The Office referred the case to a district medical adviser on January 13, 2005. The
accepted conditions were listed as cervical and lumbar strains, bilateral wrist sprains and bilateral
carpal tunnel. The Office asked the district medical adviser to review the June 14, 2004 report
from Dr. Hisey in determining appellant’s impairment of her upper extremities. On February 2,
2005 an Office medical adviser advised the Office to ask Dr. Hisey whether appellant had any
impairment of the upper extremities causally related to her accepted conditions. On February 24,
2005 Dr. Hisey responded that appellant had no upper extremity impairment causally related to
her July 14, 2003 employment injury.
On April 14, 2005 an Office medical adviser stated that there was no medical evidence
establishing permanent impairment of appellant’s upper extremities.

2

By decision dated April 28, 2005, the Office denied appellant’s claim for a schedule
award on the grounds that the medical evidence did not establish that she had any permanent
impairment of her upper extremities causally related to her July 14, 2003 employment injury.
On May 30, 2005 appellant requested an oral hearing that was held on June 26, 2006.
By decision dated September 12, 2006, the Office hearing representative affirmed the
April 28, 2005 decision.1
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment4 has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.
ANALYSIS
The Office accepted appellant’s claim for cervical and lumbar sprains and strains,
bilateral wrist sprains and bilateral carpal tunnel syndrome. In its acceptance letter, the Office
noted that Dr. Hisey was treating appellant for her cervical and lumbar sprains.5 Dr. Cruse was
treating appellant for her bilateral wrist sprains. The record shows that appellant was treated for
her bilateral carpal tunnel syndrome by Dr. Adham.
On August 25, 2003 Dr. Cruse provided findings on physical examination and indicated
that appellant had wrist tenderness, pain and paresthesia. On October 21, 2003 he stated that
appellant still had tenderness at the right carpal and pain on extension of both wrists. She had

1

Subsequent to the September 12, 2006 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. § 8107.

20 C.F.R. § 10.404.
4

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

As noted, Dr. Cruse had indicated that appellant wished to change the physician treating her cervical and lumbar
conditions from Dr. Soo. Subsequently, Dr. Hisey began treating appellant for her cervical and lumbar conditions.

3

decreased grip strength bilaterally. Dr. Adham treated appellant for her bilateral carpal tunnel
syndrome and cubital tunnel syndrome.6 He found that appellant had tingling and numbness in
the right hand with stiffness. On March 30, 2004 Dr. Adham stated that appellant’s symptoms
on her right hand, pain, discomfort, numbness and tingling, were getting worse. On April 22,
2004 he indicated that appellant’s carpal tunnel syndrome and cubital tunnel syndrome were
responding to conservative treatment but provided no findings on physical examination.
The record shows that Dr. Hisey was the physician treating appellant’s accepted cervical
and lumbar sprains and strains. The Office asked him to provide an impairment rating based on
the accepted cervical and lumbar spine conditions. The Office did not ask Dr. Cruse or
Dr. Adham to provide an impairment rating based on appellant’s accepted upper extremity
conditions, bilateral wrist sprains and bilateral carpal tunnel syndrome. Dr. Hisey found that
appellant had a 15 percent impairment of the whole person based on moderate degenerative
changes in the cervical and lumbar spine. While the A.M.A., Guides provides for impairment to
the individual member and to the whole person, the Act does not provide for permanent
impairment for the whole person.7 A schedule award is not payable for the loss or loss of use of
any member of the body or function that is not specifically enumerated in section 8107 of the
Act or its implementing regulation.8 Therefore, appellant is not entitled to a schedule award for
the whole body based on her accepted cervical and lumbar sprains and strains. The Office
subsequently asked Dr. Hisey whether appellant had any impairment of the upper extremities due
to her accepted conditions. Dr. Hisey responded that appellant had no upper extremity
impairment causally related to her July 14, 2003 employment injury. A district medical adviser
stated that appellant had no impairment of the upper extremities based on Dr. Hisey’s evaluation.
The Board finds that this case is not in posture for a decision. Further development of the
medical evidence is required. The Office asked Dr. Hisey for an impairment rating based on the
accepted spinal conditions which Dr. Hisey treated. The Office failed to ask Dr. Cruse or
Dr. Adham for an impairment rating of appellant’s upper extremities based on her bilateral
carpal tunnel syndrome and bilateral wrist sprains. Dr. Cruse and Dr. Adham were the
physicians treating appellant for her accepted bilateral hand conditions.9
It is well established that proceedings under the Act are not adversarial in nature and,
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.10 The Office has an obligation to see that

6

It is unclear why the Office accepted bilateral carpal tunnel syndrome but not cubital tunnel syndrome. On
remand, the Office should determine whether appellant’s bilateral cubital tunnel syndrome is causally related to her
July 14, 2003 employment injury.
7

Phyllis F. Cundiff, 52 ECAB 439 (2001); John Yera, 48 ECAB 243 (1996).

8

Leroy M. Terska, 53 ECAB 247 (2001).

9

The Board notes that the Office hearing representative, in her September 12, 2006 decision, stated that the
accepted conditions in this case were cervical and lumbar strains. She failed to mention the accepted conditions of
bilateral wrist sprains and bilateral carpal tunnel syndrome.
10

See Udella Billups, 41 ECAB 260 (1989).

4

justice is done.11 Once the Office undertakes development of the record, it has the responsibility
to do so in a proper manner.12 The Office obtained an impairment rating opinion from Dr. Hisey
based only on appellant’s accepted spinal conditions. On remand, the Office should further
develop the medical evidence as to whether appellant had any permanent impairment of her
upper extremities due to her accepted bilateral upper extremity conditions, wrist sprains and
carpal tunnel syndrome. On remand, the Office should also determine whether appellant’s
bilateral cubital tunnel syndrome is causally related to her July 14, 2003 employment injury.
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 as
to whether she has any permanent impairment of the upper extremities causally related to her
accepted upper extremity conditions. After such further development as the Office deems
necessary, it should issue an appropriate final decision on appellant’s entitlement to a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2006 is remanded for further action consistent
with this decision.
Issued: April 17, 2007
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

11

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

12

See Henry G. Flores, Jr., 43 ECAB 901 (1992).

5


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-89
Issued: August 6, 2008

Case Submitted on the Record

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

JURISDICTION
On October 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated October 30, 2006 and May 21, 2007. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule
award decision.
ISSUE
The issue is whether appellant has more than a 19 percent permanent impairment to his
right upper extremity.
FACTUAL HISTORY
This is the second appeal before the Board.1 Appellant, a 48-year-old custodian, injured
his right thumb on June 24, 2002. The Office accepted a claim for right thumb crush injury.

1

Docket No. 05-356 (issued August 2, 2005).

In a report dated April 10, 2003, Dr. Nicholas P. Diamond, an attending osteopath,
determined that appellant had a 27 percent impairment of the right upper extremity based on the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) fifth edition. On September 8, 2003 an Office medical adviser found that appellant had
a nine percent impairment of his right thumb based on the A.M.A., Guides. On September 23,
2003 it granted appellant a schedule award for a nine percent permanent impairment of the right
upper extremity. By decision dated August 19, 2004, an Office hearing representative affirmed
the September 23, 2003 decision. In an August 2, 2005 decision, the Board set aside the Office’s
September 23, 2003 schedule award. The Board found that the Office hearing representative
erred in finding that the impairments for appellant’s September 27, 1997 right shoulder injury
and June 24, 2002 thumb injury should be rated separately. The Board noted that in determining
the amount of a schedule award for a member of the body that sustained an employment-related
permanent impairment, preexisting impairments of the body are to be included.2 The Board
remanded the case to the Office for consolidation of appellant’s claims and for referral to an
appropriate medical specialist in order to obtain an assessment of appellant’s right upper
extremity impairment. The facts of this case are set forth in the Board’s August 2, 2005 decision
and are herein incorporated by reference.
In a report dated November 17, 2005, Dr. Richard Sacks, Board-certified in orthopedic
surgery, found that appellant had a 19 percent impairment of the right upper extremity,
combining impairments of the right arm and of the right thumb. Regarding the right thumb, he
found four percent impairment for 20 degrees flexion of the interphalangeal (IP) joint under
Figure 16-12 page 456 and four percent impairment for 20 degrees flexion of the
metatarsophalangeal (MP) joint under Figure 16-15 page 457. This totaled eight percent
impairment of the thumb for loss of range of motion. Dr. Sacks found that an eight percent
thumb impairment represented three percent impairment of the right hand pursuant to Table
16-1, page 438. In turn, three percent impairment of the right hand represented three percent
upper extremity impairment under Table 16-2 at page 439.
For the right shoulder, Dr. Sacks found that a 120 degree flexion for the right shoulder
represented four percent upper extremity impairment and 130 degrees of abduction was a two
percent upper extremity impairment. He rated 10 percent impairment for a resection arthrotomy
under Table 16-27. The range of motion of 6 percent was combined with the 10 percent
impairment to total 16 percent impairment for the right shoulder. Using the Combined Values
Chart, Dr. Sacks found a total 19 percent impairment of the right upper extremity after
combining the shoulder loss with the 3 percent for the upper extremity due to the thumb.
In a decision dated December 19, 2005, the Office found that appellant had 19 percent
right upper extremity impairment based on Dr. Sacks’ opinion. As appellant had previously

2

See Dale B. Larson, 41 ECAB 481, 490 (1990); Pedro M. DeLeon, Jr., 35 ECAB 487, 492 (1983). The Board
has held that where the residuals of an injury to a member of the body specified in the schedule award provisions of
the Federal Employees’ Compensation Act extend into an adjoining area of a member also enumerated in the
schedule, such as an injury of the finger into the hand, of a hand into the arm or of a foot into the leg, the schedule
award should be made on the basis of the percentage of loss of use of the larger member. See Tonya D. Bell,
43 ECAB 845, 849 (1992).

2

received a schedule award for 33 percent impairment of the right arm, he was not entitled to any
additional award.
On December 22, 2005 appellant’s attorney requested an oral hearing, which was held on
April 26, 2006. Appellant did not submit any additional medical evidence with his request.
By decision dated July 11, 2006, an Office hearing representative affirmed that appellant
had 19 percent right upper extremity impairment. However, the Office’s December 19, 2005
decision was set aside. The hearing representative directed the district office to compute the
amount of compensation appropriate for a 19 percent permanent impairment of the right upper
extremity, utilizing a pay rate of $718.00, at the augmented compensation rate. The hearing
representative stated that, if the amounts actually paid to appellant amounted to less than the
amount due under the current award, he should be paid the difference. If he was not entitled to
additional compensation the Office should issue a formal decision outlining the basis for such
determination.
By decision dated October 30, 2006, the Office found that appellant was not entitled to
any additional schedule award compensation. It noted that a schedule award for 19 percent
impairment of the right arm, from November 17, 2005 to January 5, 2007, using a pay rate of
$718.00 at the augmented ¾ rate would result in total compensation in the amount of $34,403.53.
The Office determined that, for the two schedule awards previously paid, appellant had received
total compensation in the amount of $41,373.17. It found that appellant was not entitled to any
additional compensation.
On November 2, 2006 appellant’s attorney requested an oral hearing, which was held on
February 21, 2007. He argued that the Office erred in finding appellant should be paid a
schedule award for a 19 percent right upper extremity impairment, in light of the May 19, 2005
decision finding that he had a 23 percent right upper extremity impairment from the 1997
shoulder injury. Appellant’s attorney further argued that the 23 percent award was paid at the
incorrect pay rate. He contended that the Office needed to determine whether appellant was
entitled to additional compensation based on payment of the award at the correct pay rate.
By decision dated May 21, 2007, an Office hearing representative affirmed the
October 30, 2006 decision.
LEGAL PRECEDENT
The schedule award provision of the Act3 set forth the number of weeks of compensation
to be paid for permanent loss or loss of use of the members of the body listed in the schedule.
Where the loss of use is less than 100 percent, the amount of compensation is paid in proportion
to the percentage loss of use.4 However, the Act does not specify the manner in which the
percentage of loss of use of a member is to be determined. For consistent results and to ensure

3

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

4

5 U.S.C. § 8107(c)(19).

3

equal justice under the law to all claimants, the Office has adopted the A.M.A., Guides fifth
edition as the standard to be used for evaluating schedule losses.5
ANALYSIS
The Board finds that appellant has not established more than 19 percent permanent
impairment of the right upper extremity. Dr. Sacks found 19 percent right upper extremity
impairment based on impairments to appellant’s right thumb and right shoulder. He rated four
percent impairment for 20 degrees flexion of the IP joint under Figure 16-12 at page 456 and
four percent impairment for 20 degrees flexion of the MP joint under Figure 16-15 at page 457.
This totaled eight percent impairment of the thumb, which Dr. Sacks then converted to upper
extremity impairment he found that an eight percent thumb impairment was three percent
impairment of the right hand under Table 16-1 at page 438. Dr. Sacks then found that a three
percent impairment of the right hand was three percent upper extremity impairment under Table
16-2 at page 439. He measured appellant’s right shoulder range of motion and applied these
findings to Figure 16-40 and Figure 16-43 of the A.M.A., Guides. Dr. Sacks found that
120 degrees flexion of the right shoulder was four percent impairment and 130 degrees of
abduction was a two percent upper extremity impairment. He also allowed a 10 percent
impairment for a resection arthrotomy under Table 16-27. Dr. Sacks combined the range of
motion loss with the arthroscopic loss to total 16 percent impairment for the right shoulder.
Using the Combined Values Chart, he found a total 19 percent impairment of the right upper
extremity. This award was proper and is in conformance with the A.M.A., Guides.
The Office properly determined that the rating by Dr. Sacks represented the weight of the
medical evidence. As appellant previously reviewed a schedule award for 23 percent permanent
impairment of the upper extremity, he is not entitled to an additional award. The Office properly
computed the amount of appellant’s schedule award utilizing the pay rate of $718.00 at the
augmented compensation rate, or $34,403.53, and comparing it to the amount of compensation
paid to appellant in the prior schedule award, or $41,373.17. As the amount paid under the prior
schedule award exceeds the amount appellant would be entitled to for 19 percent permanent
impairment for the right arm, the Office properly found that he was not entitled to additional
schedule award compensation.
There is no other probative medical evidence establishing that appellant sustained
additional permanent impairment. The Board will affirm the Office’s October 30, 2006 and
May 21, 2007 decisions finding that appellant sustained 19 percent permanent impairment to his
right upper extremity.
CONCLUSION
The Board finds that appellant has no more than a 19 percent impairment of the right
upper extremity.

5

20 C.F.R. § 10.404.

4

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2007 and October 30, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 08-2379
Issued: July 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 2, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 19, 2007 and August 22, 2008 merit decisions concerning
her wage-earning capacity. 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 the Office met its burden of proof to reduce appellant’s
compensation effective December 23, 2007 based on its determination that her wage-earning
capacity was represented by the constructed position of administrative assistant.
FACTUAL HISTORY
In March 1998 the Office accepted that appellant, then a 38-year-old mail handler,
sustained temporary aggravation of preexisting extrinsic asthma due to exposure to allergens at

work including dust and chemical fumes. The file number for this claim is xxxxxx315.
Appellant stopped work and received compensation for periods of disability.1
In reports dated in late 2005, Dr. Deborah J. Joyner, an attending Board-certified allergist
and immunologist, indicated that appellant was totally disabled due to employment-related
asthma. On February 28, 2006 Dr. Michael R. Mardiney, a Board-certified allergist and
immunologist who served as an Office referral physician, found that appellant could perform
limited-duty work.
To resolve a conflict in medical opinion between Dr. Joyner and Dr. Mardiney, the Office
referred appellant to Dr. Peter Oroszlan, a Board-certified specialist in internal, preventive,
occupational and environmental medicine, for an impartial medical evaluation. Dr. Oroszlan
provided reports dated August 23 and September 21, 2006 and April 30, 2007. He concluded
that appellant was able to work on a full-time basis with restrictions such as pushing and pulling
no more than 30 pounds and lifting no more than 30 pounds. Dr. Oroszlan indicated that he did
not feel that appellant required any specific accommodations due to her history of asthma if she
were to return to work. He noted that an allergy evaluation conducted in 2005 revealed that
appellant was allergic only to house dust and cat dander and indicated that the only
environmental allergen at work was the nuisance dust generated by the bags of mail.
Dr. Oroszlan stated that a high efficiency particulate air (HEPA) filter, a simple and costeffective accommodation, could be used on the dust particles generated by the mail to alleviate
her propensity for an asthma attack while at work.
In October 2006 appellant began participating in a vocational rehabilitation program.
She was not successfully placed in a job and her rehabilitation counselor determined that she was
vocationally and physically capable of working as an administrative assistant. The position was
clerical in nature and only required lifting up to 10 pounds. The constructed position was found
to be reasonably available in appellant’s commuting area with an average salary of $458.00 per
week.
In an October 24, 2007 notice, the Office advised appellant that it proposed to reduce her
compensation based on its determination that she could work as an administrative assistant.
Appellant responded that she was unable to work for 40 hours a week as an administrative
assistant because of her severe bronchial asthma and her reactions to the medications used to
control her attacks. She contended that her condition was exacerbated by environment allergens,
changes in climate, and physical activity and that she had to use HEPA machines as well as
nebulizers several times a day. Appellant asserted that she was allergic to perfume, carpeting,
and cigarette smoke and indicated that any potential workplace would not be sufficiently allergen
free for her to work.

1

Appellant filed claims in 1994 and 1995 for work-related exposures and their impact on her preexisting
congenital childhood asthma. The Office accepted these occupational disease claims for aggravation of preexisting
asthma under file numbers xxxxx933 and xxxxx129. Both claims were combined into the instant case. In a May 18,
2001 decision, the Office denied appellant’s claim for employment-related bronchial asthma and lung disease under
case file number xxxxx297. This file was combined into the instant case as it was determined that it appeared to be
a duplication of appellant’s prior accepted claims.

2

In a December 19, 2007 decision, the Office reduced appellant’s compensation effective
December 23, 2007 based on its determination that her wage-earning capacity was represented
by the constructed position of administrative assistant.
Appellant requested a telephone hearing with an Office hearing representative. At the
hearing, appellant’s attorney argued that the decision should be set aside and a new referee
examination scheduled because the opinion from Dr. Oroszlan was stale as his initial report was
dated August 23, 2006. Counsel also argued that the employing establishment improperly
contacted Dr. Oroszlan, citing a March 26, 2007 letter from the employing establishment’s nurse
care manager to Dr. Oroszlan and his response of April 30, 2007. He argued that this contact
negated the impartiality of the impartial medical specialist. Appellant testified that she stopped
working in 2000 and had been hospitalized six times for her condition. She indicated that she
becomes anxious and suffers from panic attacks when she has to leave her house and when she is
exposed to an allergen, such as perfume. Appellant previously received psychological treatments
and therapy when she was a teenager, but had not received any psychiatric treatment after that
time until January 2008 when her allergist changed the medication that she had been using for
eight years, causing various emotional problems.2
In an August 22, 2008 decision, the Office hearing representative affirmed the
December 19, 2007 decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent her wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity, or if the employee has no actual earnings, her wageearning capacity is determined with due regard to the nature of her injury, her degree of physical
impairment, her usual employment, her age, her qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect her
wage-earning capacity in her disabled condition.5 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment

2

Appellant submitted a February 5, 2008 medical report containing the diagnoses of bipolar disorder, depression
(severe with psychotic features) and anxiety.
3

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

3

conditions.6 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.7
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.8
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”9 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.10 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11
ANALYSIS
In March 1998 the Office accepted that appellant sustained temporary aggravation of
preexisting extrinsic asthma extrinsic due to exposure to allergens at work including dust and
chemical fumes. Appellant stopped work and received Office compensation for periods of
disability.
In late 2007, appellant’s vocational rehabilitation counselor determined that appellant
was able to perform the position of administrative assistant and that state employment services
showed the position was available in sufficient numbers so as to make it reasonably available
within appellant’s commuting area. The Office properly relied on the opinion of the
rehabilitation counselor that appellant was vocationally capable of performing the administrative
6

Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34 ECAB 409, 411 (1982).

7

Id.

8

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).
9

5 U.S.C. § 8123(a).

10

William C. Bush, 40 ECAB 1064, 1975 (1989).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

assistant position and a review of the evidence reveals that appellant is physically capable of
performing the position. Appellant did not submit sufficient evidence or argument to show that
she could not vocationally or physically perform the administrative assistant position.
The Office properly relied on the medical opinion of the impartial medical specialist,
Dr. Oroszlan, a Board-certified specialist in internal, preventive, occupational and environmental
medicine, in determining that appellant could physically perform the administrative assistant
position. It properly determined that there was a conflict between Dr. Joyner, the attending
physician, and Dr. Mardiney, the Office physician, and referred appellant to Dr. Oroszlan for an
impartial medical evaluation.12 The Office found that Dr. Oroszlan’s well-rationalized opinions
represented the weight of the medical evidence regarding appellant’s ability to work. The
reports showed that appellant could perform the limited clerical duties required by the position
and that appellant’s asthma would not prevent her from performing its duties. Dr. Oroszlan
concluded that appellant was able to work on a full-time basis with restrictions such as pushing
and pulling no more than 30 pounds and lifting no more than 30 pounds. The administrative
assistant position only requires lifting up to 10 pounds and the work restrictions recommended
by Dr. Oroszlan would not prevent appellant from performing its limited duties. Dr. Oroszlan
further explained that an allergy evaluation conducted in 2005 revealed that appellant was
allergic only to house dust and cat dander and indicated that the only environmental allergen at
work was the nuisance dust generated by the bags of mail. He stated that a HEPA filter, a simple
and cost-effective accommodation, could be used on the dust particles generated by the mail to
alleviate the claimant’s propensity for an asthma attack while at work
Counsel argued that Dr. Oroszlan’s opinion was stale in that the first evaluation occurred
in September 2006 but he did not provide adequate support for this position. He also argued that
the employing establishment improperly contacted Dr. Oroszlan. According to a March 26, 2007
letter, the employing establishment’s nurse care manager contacted Dr. Oroszlan to get
clarification of the type of HEPA mask that would be appropriate for appellant. The Board finds
that there was no attempt to influence Dr. Oroszlan’s opinion and appellant’s attorney has not
adequately established bias or violation of procedures pertaining to impartial medical specialists.
The February 5, 2008 medical report, which contained diagnoses of bipolar disorder, depression
(severe with psychotic features) and anxiety, did not provide a rationalized opinion that appellant
could not perform the administrative assistant position.
The Office considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of administrative assistant represented appellant’s wage-earning
capacity.13 The weight of the evidence of record establishes that appellant had the requisite
physical ability, skill and experience to perform the position of administrative assistant and that
such a position was reasonably available within the general labor market of appellant’s
commuting area. Therefore, the Office properly reduced appellant’s compensation effective
December 23, 2007 based on her capacity to earn wages as an administrative assistant.

12

Both Dr. Joyner and Dr. Mardiney are Board-certified in allergy and immunology medicine.

13

See Clayton Varner, 37 ECAB 248, 256 (1985).

5

CONCLUSION
The Board finds that the Office met its burden of proof to reduce appellant’s
compensation effective December 23, 2007 based on its determination that her wage-earning
capacity was represented by the constructed position of administrative assistant.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 22, 2008 and December 19, 2007 decisions are affirmed.
Issued: July 1, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)

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

Docket No. 07-59
Issued: March 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 6, 2006 appellant filed a timely appeal from an August 4, 2006 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for an oral
hearing and a January 20, 2006 decision, which denied his schedule award claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over both the merit and nonmerit
decisions.
ISSUES
The issues are: (1) whether appellant is entitled to a schedule award for hearing loss; and
(2) whether the Office properly denied appellant’s request for an oral hearing as untimely.
FACTUAL HISTORY
On August 17, 2004 appellant, then a 65-year-old shipwright, filed an occupational
disease claim alleging that he developed bilateral hearing loss during his employment. He first
became aware of his hearing loss and related it to his employment on July 21, 1994. Appellant
did not stop work.

In support of his claim, appellant submitted an August 11, 2004 report from Dr. John T.
Kalafsky, a Board-certified otolaryngologist, who concluded that appellant had “asymmetric
sensorineural hearing loss with the left ear more affected than the right.” He informed
Dr. Kalafsky that he was exposed to noise during his tenure as a shipwright and was currently
driving a forklift, a position in which he was exposed to diesel engine noise. Dr. Kalafsky
conducted tests to rule out biological causes of appellant’s hearing loss and found that
appellant’s speech reception, discrimination and tympanograms were essentially normal. He
opined that appellant’s hearing loss had a “noise-induced component.”
Appellant also submitted audiograms conducted on May 14 and 24, 2004 and a
May 14, 2004 report from Dr. Kalafsky. The May 14, 2004 audiogram reflected testing at the
500, 1,000, 2,000 and 3,000 Hertz (Hz) levels and recorded the following decibel losses: 5, 15,
20, 20 for the right ear and 5, 15, 20 and 55 for the left ear. The May 24, 2004 audiogram was
incomplete, as speech and tympanogram tests were not performed; however, the audiogram
reflected testing at the 500, 1,000, 2,000 and 3,000 Hz levels and revealed the following decibel
losses: 10, 10, 25 and 20 for the right ear and 10, 15, 25 and 55 for the left ear. The audiologist
stated that appellant’s hearing loss had remained “essentially unchanged” since the May 14, 2004
audiogram.
Appellant submitted an August 17, 2004 statement and audiograms covering the period
from 1975 through 2004. He worked for the employing establishment from October 1976
through 2004 and was exposed to noise from various industrial sources, including “chipping,
grinding steel, deck grinding and sandblasting.” Appellant indicated that he was also exposed to
noise from large machinery such as forklifts and cranes, as well as to noise from small power
tools including “drills, band saws, wood planers, radial arm saws.” He stated that he wore
earplugs whenever he was exposed to loud noise.
On September 30, 2004 the Office requested additional information concerning
appellant’s claim.
On October 14, 2004 appellant responded to the Office’s request for information and
submitted an October 7, 2004 report from Dr. Kalafsky, noting that appellant had a long history
of noise exposure at work and that appellant currently had asymmetric bilateral sensorineural
hearing loss.
The employing establishment submitted position descriptions, additional copies of
appellant’s audiograms and medical records and a supervisor’s statement concurring with
appellant’s statements. The employing establishment also submitted an undated report from
Dr. Andrea Palencar, an occupational physician with the Norfolk Naval Shipyard Branch
Medical Clinic. Dr. Palencar stated that appellant had been exposed to noise from saws over the
course of his employment and that he did not have any hobbies involving loud noises.
On October 6, 2004 the Office referred appellant for otologic evaluation. In a
November 8, 2004 report, Dr. Alan S. Keyes, a Board-certified otolaryngologist and Office
referral physician, noted examining appellant on that date. Dr. Keys referenced a November 8,
2004 audiogram performed on his behalf. He concluded that appellant had sensorineural hearing

2

loss, “which was most likely noise induced.” The audiogram reflected testing at the 500, 1,000,
2,000 and 3,000 Hz levels and revealed the following decibel losses: 0, 15, 15 and 20 for the
right ear and 5, 15, 25 and 55 for the left ear.
On December 1, 2004 the Office accepted appellant’s claim for binaural hearing loss.
Appellant requested a schedule award on December 13, 2004.
On March 29, 2005 an Office medical adviser reviewed Dr. Keyes’ audiometric test
results and concluded that appellant had a nonratable hearing loss. The medical adviser stated
that appellant’s hearing loss was sensorineural and related to noise exposure he encountered as a
federal employee. Appellant’s date of maximum medical improvement was November 18, 2004.
By decision dated January 20, 2006, the Office informed appellant that his hearing loss
was not ratable for schedule award purposes.
Appellant requested an oral hearing on May 31, 2006. By decision dated August 4, 2006,
the Office denied appellant’s hearing request as untimely. The Office expressed its discretion
and determined that appellant’s case could be equally well addressed through a request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of schedule members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.3
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.4 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at
each frequency are added up and averaged.5 Then the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.6 The remaining amount is
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (2002).

3

Id.

4

A.M.A., Guides at 250 (5th ed. 2001).

5

Id.

6

Id.

3

multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.8 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.9
ANALYSIS -- ISSUE 1
The Office medical adviser applied the Office’s standardized procedures to the
November 8, 2004 audiogram obtained for Dr. Keyes. The audiogram recorded frequency levels
at the 500, 1,000, 2,000 and 3,000 Hz levels and recorded decibel losses of 0, 15, 15 and 20 for
the right ear. The total decibel loss in the right ear is 50 decibels. When divided by 4, the result
is an average hearing loss of 12.5 decibels. The average loss of 12.5 decibels is reduced by the
“fence” of 25 decibels to equal -12.5 decibels, which when multiplied by the established factor
of 1.5, results in a -18.75 percent monaural hearing loss for the right ear, rounded to 0 percent.
Testing for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 Hz revealed
decibel losses of 5, 15, 25 and 55 decibels respectively, for a total decibel loss of 100 decibels.
When divided by 4, the result is an average hearing loss of 25 decibels. The average loss of
25 decibels is reduced by the “fence” of 25 decibels, to equal 0 decibels, which when multiplied
by the established factor of 1.5, yields a 0 percent monaural hearing loss for the left ear.
The Board notes that appellant submitted two uncertified audiograms, conducted on
May 14 and 24, 2004. These audiograms were not conducted under the supervision of a
physician and consequently, although the Office medical adviser may certify them, the Office is
not required to review them.10 The Board has held that it is appellant’s burden to submit a
properly certified audiogram to the Office for review or if appellant objects to the audiogram
selected by the Office for the determination of the degree of appellant’s hearing loss.11 The
Office does not have to review an audiogram which has not been certified by a physician. The
May 14, 2004 audiogram is not ratable and the May 24, 2004 audiogram is incomplete.
Dr. Kalafsky did not certify the audiograms or explain the May 24, 2004 audiogram’s incomplete
status.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary is entitled, on
7

Id.

8

Id.

9

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
10

Joshua A. Holmes, 42 ECAB 231 (1990).

11

Id.

4

request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.12 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.13 The Office’s regulations provide that the request
must be sent within 30 days of the date of the decision for which a hearing is sought and also that
the claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.14
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,15 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.16 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Board precedent.17
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s oral hearing request, as it was
untimely filed. Appellant requested an oral hearing in response to a decision issued on
January 20, 2006. His oral hearing request was dated May 30, 2006 and postmarked May 31,
2006, more than 30 days after the decision was issued.
Although the Office determined that appellant’s request was untimely, it nevertheless
exercised its discretion by examining appellant’s request for an appeal. The Office determined
that the appellant’s case would be best served by his submission of a request for reconsideration
along with new supporting evidence. Accordingly, the Board finds that the Office acted within
its discretion in denying appellant’s hearing request as untimely, because appellant failed to file
the request within the statutory time.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he has
a ratable binaural hearing loss and that the Office properly denied appellant’s hearing request as
untimely.

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616(a).

15

5 U.S.C. §§ 8101-8193.

16

Marilyn F. Wilson, 52 ECAB 347 (2001).

17

Teresa M. Valle, 57 ECAB __ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 4 and January 20, 2006 are affirmed.
Issued: March 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF STATE, BUREAU OF
DIPLOMATIC SECURITY, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, for the appellant
Office of Solicitor, for the Director

Docket No. 15-584
Issued: May 4, 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 January 23, 2015 appellant, through his representative, filed a timely appeal from the
August 12, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s disability from December 15, 2013 to April 10, 2014
was causally related to his June 18, 2013 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 18, 2013 appellant, a 52-year-old courier, sustained a traumatic injury in the
performance of duty while pushing a large, heavy crate off the back of a truck in an embassy
compound. He felt a pop in his right knee. Appellant did not stop working.
When the pain did not go away, appellant saw Dr. Randall S. Peyton, a Board-certified
orthopedic surgeon, in September 2013. An imaging study showed a horizontal tear of the
posterior horn and body of the right medial meniscus.
On January 2, 2014 Dr. Peyton noted that appellant’s symptoms were moderate to severe
and constant. Aggravating factors included walking down stairs, walking, and bearing weight.
Relieving factors included elevation, pain medication, and rest. Appellant indicated that his
symptoms had worsened. His knee locked up once and was very painful. Appellant had
numbness and pain that went up on the right thigh. Pain was not constantly 7/10, but it was now
much more painful most of the day. Appellant was no longer able to sit for prolonged periods of
time. He wanted to discuss the merits of stopping work for a while until he got things sorted out
at work to get a more definitive treatment for his knee. Appellant was awaiting OWCP’s
approval of surgery. Physical examination showed moderate effusion, tenderness at the medial
joint line, mild crepitation, a positive McMurray’s test, positive valgus stress with pain, limited
active range of motion, and passive painful range of motion. Dr. Peyton diagnosed right medial
meniscal tear, right medial collateral ligament tear/sprain/strain, right knee internal derangement,
and unspecified joint effusion. He advised that appellant was still a candidate for surgery.
Dr. Peyton found that appellant was currently unable to perform more than sedentary activities
so he imposed work restrictions.
On January 28, 2014 Dr. Peyton wrote a work status note indicating his history of
treatment, aggravating factors, and the fact that appellant has constant knee pain. He advised
that appellant needed surgery and that, if the meniscal tears were left untreated, the right knee
would continue to worsen, and there would be further damage to the articular cartilages in the
joint. Dr. Peyton found that appellant was unable to stand, walk, sit for prolonged periods of
time, climb stairs, or rest comfortably. Appellant would not be able to return to work until he got
the right knee surgically treated.
Dr. Peyton completed an attending physician’s form report indicating that appellant was
totally disabled for work beginning January 28, 2014. He explained that meniscal tears, even
with treatment, were likely to cause degeneration of the cartilage in the knee, and were likely to
cause pain, swelling, and necessitate further treatment.
Appellant claimed a recurrence of disability beginning December 16, 2013. He noted
that he previously had continued to work until the joint failed on December 11, 2013.
On March 6, 2014 Dr. Peyton performed a right partial medial meniscectomy and
chondroplasty of the patella.
On April 9, 2014 Dr. Peyton provided a fitness-for-duty report. He noted the history of
injury and the successful treatment appellant received through arthroscopic knee surgery.

2

Appellant was greatly improved and ready to return to work. It was very possible, however, that
he would need further treatment in the future including further surgery. Dr. Peyton opined,
“Finally, [appellant] may return to work 14 April 2014.”
Shortly thereafter OWCP accepted appellant’s claim for a tear of the right medial
meniscus. It advised that, if the injury resulted in lost time from work, appellant could claim
compensation using Form CA-7.
Appellant filed a claim seeking wage-loss compensation from December 15, 2013 to
April 10, 2014. He submitted a time analysis form. The employing establishment indicated that
appellant used annual leave from December 23 to 27, 2013, sick leave from December 30, 2013
to March 27, 2014, and leave without pay from March 28 to April 4, 2014.
In a decision dated August 12, 2014, OWCP denied appellant’s claim for wage-loss
compensation. It noted that Dr. Peyton did not explain the additional medical conditions and
treatment appellant received during the time in question, including right knee internal
derangement and right knee effusion. Further, OWCP had requested but did not receive a time
analysis form and leave buyback worksheet/certification.
On appeal, appellant argues that Dr. Peyton’s June 2, 2014 note provided a rationalized
opinion based on an accurate medical history that the compensable right knee meniscus tear
rendered him unable to perform his job duties until April 14, 2014.2
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.4
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submitting medical evidence
for each period of disability claimed.5 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.6 To meet this
burden, a claimant must submit rationalized medical opinion evidence, based on a complete
factual and medical background, supporting a causal relationship between the alleged disabling
condition and the accepted injury.7
2

Dr. Peyton’s June 2, 2014 fitness-for-duty report was identical to his April 9, 2014 fitness-for-duty report.

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

C.S., Docket No. 08-2218 (issued August 7, 2009).

3

The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he was disabled for work as a result of the accepted employment injury.8
ANALYSIS
Appellant did not stop working when he injured his right knee on June 18, 2013. When
the pain did not cease after three months, he saw Dr. Peyton, an orthopedic surgeon, who
discovered that appellant had a tear of the right medial meniscus.
Appellant continued to work until, as he explained in his recurrence claim, the joint failed
on December 11, 2013. He claimed compensation for wage loss beginning December 15, 2013,
but the record contains no medical evidence from October 4, 2013 to January 2, 2014.
Dr. Peyton saw appellant on January 2, 2014, but he did not find appellant totally disabled for
work. He wanted to discuss the merits of stopping work, but he found that appellant could work
with restrictions.
It was not until his January 28, 2014 work status note that Dr. Peyton found appellant
disabled for work. He had already described positive clinical findings during the January 2,
2014 physical examination. Appellant was now unable to stand, walk, sit for prolonged periods
of time, climb stairs, or rest comfortably. He would not be able to return to work until he
underwent right knee surgery.
The Board finds that the medical evidence is insufficient to establish that appellant’s
June 18, 2013 work injury caused disability for work beginning December 15, 2013, as appellant
claimed. The record is devoid of medical evidence to support this. However, the medical
evidence does support that appellant was unable to work beginning January 28, 2014. He was
clearly disabled for work as a result of the March 6, 2014 surgery Dr. Peyton performed to repair
the accepted medical condition. Further, it seems reasonable that this surgery disabled appellant
for approximately five weeks, during which time he greatly improved and was ready to return to
work on April 14, 2014.
The Board will set aside OWCP’s August 12, 2014 decision denying appellant’s wageloss claim and will remand the case for further development of the medical opinion evidence on
the issue of disability for work. OWCP shall provide Dr. Peyton a statement of accepted facts
and a description of the physical demands of appellant’s position as a courier. Following such
further development as may be necessary, it shall issue a de novo decision on appellant’s wageloss claim.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development is
warranted.
8

Sandra D. Pruitt, 57 ECAB 126 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: May 4, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Miami, AZ, Employer
)
_________________________________________ )
L.G., Appellant

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

Docket No. 10-2387
Issued: August 2, 2011

Case Submitted on the Record

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

JURISDICTION
On September 13, 2010 appellant filed a timely appeal from a March 22, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s right to compensation
benefits on the grounds that she refused to submit to a medical examination pursuant to 5 U.S.C.
§ 8123(d).
On appeal appellant argues, inter alia, that the statement of accepted facts contained
discrepancies, that all documents were not forwarded to the impartial medical examiner, that
OWCP erroneously stated that appellant became hostile and angry during a second opinion

1

20 C.F.R. § 501.3(a).

examination, that the medical evidence demonstrates that she still has residuals from her
accepted injury and that she has been harassed by OWCP.
FACTUAL HISTORY
On August 11, 1987 appellant, then a 34-year-old part time flexible clerk/carrier, filed an
occupational disease claim alleging that she suffered from low back pain and muscle spasms as a
result of carrying mail and lifting parcels in excess of 60 to 70 pounds. OWCP accepted her
claim for lumbar strain, left shoulder strain and cervical condition. Appellant received
appropriate wage-loss compensation and medical benefits. Total disability compensation was
approved beginning April 26, 1988 and terminated on July 28, 1998.
On March 18, 2009 OWCP informed appellant that she was scheduled for a second
opinion with Dr. John D. Douthit, a Board-certified orthopedic surgeon.
By letter dated April 2, 2009, appellant wrote a letter to OWCP asking for all information
sent to the second physician, noting that she was concerned that the information sent to the
doctor was incomplete. In a report of a telephone call dated April 13, 2009, OWCP reported that
Dr. Douthit telephoned and indicated that appellant arrived with a male companion and that he
refused to leave the examination room. The note indicated that, while Dr. Douthit was
performing the evaluation, both appellant and her friend became hostile and angry and appellant
took a recorder out and started recording the conversation. Dr. Douthit indicated that he felt very
uncomfortable and that appellant was yelling and making a scene, and the doctor asked appellant
to leave.
On April 15, 2009 OWCP proposed suspension of appellant’s compensation because
Dr. Douthit reported that he was unable to complete the examination due to noncooperation on
appellant’s part. It advised appellant that when a claimant refuses to cooperate with a medical
examination required by OWCP, all compensation benefits, including medical expenses are
suspended, through the date of full compliance. OWCP gave appellant 14 days from the date of
the letter to submit, in writing, her reasons for noncooperation and to submit evidence.
In a letter to appellant dated April 15, 2009, OWCP responded to appellant’s April 2,
2009 letter by noting that OWCP judiciously provides the entire file to the examining physicians
without compromise, and that if she believed records were missing, that she should feel free to
forward them for inclusion in the file.
In a letter dated April 16, 2009, appellant requested review of the written record. She
argued, inter alia, that OWCP did not properly and timely respond to various requests.
Appellant argued that the statement of accepted facts was incorrect and that the record was
incomplete. She alleged numerous discrepancies, including, inter alia, job duties, dates of
employment and differing interpretations of medical reports. Appellant indicated, inter alia, that
he spent little time reviewing the record, that he arbitrarily chose some pages from the record for
his assistant to copy, that she asked him numerous questions about her case and noted his
responses. She further stated that when he found out that she was recording the appointment, he
told her to leave. Appellant stated that a copy of the recording she made was submitted for
evidence. She disputed Dr. Douthit’s conclusions. In an April 20, 2009 letter, appellant stated

2

that she did cooperate with Dr. Douthit’s examination, but that he refused to examine her once he
found out that she was recording the examination. She noted that Dr. Douthit stated that he
would prefer that her partner not stay in the examination, but that he was allowed to stay.
Appellant also stated that she would not be the victim anymore and in the future will record
second opinion examinations.
In April 13 and 27, 2009 letters, OWCP informed appellant that a determination had been
made that a second opinion examination was warranted because no medical evidence established
an ongoing diagnosis that was causally related to the accepted work injury. OWCP stated that all
requests for treatment are pending receipt of a second opinion evaluation.
In another April 27, 2009 letter, OWCP stated that in light of appellant’s statement, the
proposed suspension was withdrawn, and that she would be sent to a new appointment with a
different physician. It instructed appellant that the physician has sole discretion and authority to
allow voice recording of the examination and the presence of a male companion. OWCP also
stated that it would request a female physician, if possible.
By letter to OWCP dated May 1, 2009, appellant stated, inter alia that she was “through
with your antics and suppositions.” She stated that OWCP’s statements have no reliability and
that she was “worn out by the rebuttal process you continue to force on me.” Appellant
contended that the “true medical records hold more weight than your fictitious statements.” She
stated that OWCP’s reason for requesting a second opinion was based on a lie.
On May 11, 2009 OWCP referred appellant to Dr. Robert Philip Mack, a Board-certified
orthopedic surgeon, for a second opinion.
In response to appellant’s April 13, 2009 letter identifying alleged discrepancies in the
statements of accepted facts of March 16, 2009, OWCP stated that a second review of all factual
information in the file supported the factual basis of the statement of accepted facts. It stated that
it reviewed with the employing establishment a breakdown identifying weekly work hours and a
spreadsheet used in verifying average hours worked. OWCP also considered appellant’s request
to rephrase the medical questions to the second opinion examiner and found no difference in
appellant’s phrasing, and found that there was insufficient substantive argument to warrant
changing the questions to the examiner dated March 16, 2009.
Appellant was seen by Dr. Mack, who issued a report dated June 5, 2009. Dr. Mack
stated that it was his impression that appellant’s current symptoms were not related to her injury
of 22 years ago. He opined that her ongoing symptoms are related to age and ongoing
mechanical stress. Dr. Mack opined that her current physical limitations are not the result of her
work-related injury, and that he does not consider her to be disabled from that injury. He opined
that appellant can continue doing the type of work that she has been doing for the last 20 years.
By letter dated August 17, 2009, OWCP found that a conflict existed between appellant’s
physicians and Dr. Mack and OWCP’s medical adviser. It set an appointment with Dr. Stephen
Dinenberg, an orthopedic surgeon, for an impartial medical examination on September 4, 2009.
By letter dated August 19, 2009, appellant contended that there was no conflict as the
opinion of her treating physician should be given greater weight. She also alleged that OWCP
3

was not acting in a nonadversarial manner. Appellant submitted with her letter a copy of an
August 20, 2009 letter from Michael P. Curiel, M.D., who stated that appellant was injured at
work carrying a heavy mailbag in 1987 and that because of the work-related injury, she
developed a stress fracture at L5 and had to stop doing that type of work. Dr. Curiel noted that
his first contact with appellant was in May 2005 and that from that time he has repeatedly stated
that her current condition is related to her initial work injury. He stated that the chronic pain she
suffers, as stated in his January 13, 2009 letter are conditions that were caused by the workrelated injury and not simply age-related phenomenon.
By letter dated August 24, 2009, appellant informed OWCP that she would not be able to
keep the appointment due to previously scheduled appointments and because Dr. Mack did not
have a magnetic resonance imaging (MRI) scan because one of OWCP’s contract doctors lost it
and that a complete examination cannot be completed without the document.
By letter dated September 23, 2009, OWCP indicated that it intended to reschedule the
previously scheduled appointment with an impartial medical examiner. Appellant responded by
letter dated October 6, 2009 stating that she did not agree with the necessity to schedule the
appointment, as the medical evidence already confirms that her current medical condition was
either caused by or directly related to the job injury. She enclosed a report on a new MRI scan
taken on September 17, 2009.
On October 14, 2009 OWCP again scheduled appellant for an impartial medical
examination with Dr. Dinenberg on October 27, 2000. By letter dated October 20, 2009,
appellant stated that she could not keep the appointment because it required her to drive 100
miles one way and because she will not attend the appointment without her partner or witness.
She forwarded a copy of a September 21, 2009 medical report by a Dr. Kenneth A. Pettine.
A report of a phone call on October 23, 2009 indicated that Dr. Dinenberg’s office called
and stated that appellant rescheduled her appointment for November 9, 2009. By letter to
OWCP dated November 1, 2009, appellant stated that Dr. Dinenberg must be informed that
appellant will be allowed to tape record the appointment and have someone in the examination
room with her at all times. She again noted discrepancies in the statement of accepted facts,
including disputes about her job duties and different interpretations as to what the medical
evidence stated. Appellant also stated that she has not worked since July 2007 whereas the
statement of accepted facts stated that she has not worked since 2008. By letter dated
November 6, 2009, she stated that she called Dr. Dinenberg’s office and they informed her that
they would not allow a tape recorder or another person in the examining room.
By letter dated November 9, 2009, OWCP proposed suspending appellant’s
compensation because she failed to report to the referee examinations on October 27 or
November 9, 2009. It considered her request but determined that no exceptional circumstances
exist warranting the presence of another person or a recording device in the examining room.
Furthermore, OWCP found no exceptional circumstances existed warranting a “male” (sic)
referee. It provided appellant 14 days from the date of the letter to show good cause for not
suspending her medical benefits. On November 23, 2009 OWCP suspended her benefits.

4

In a letter dated November 20, 2009, appellant again objected, inter alia, to the
scheduling of an impartial medical examination, stated that OWCP did not forward to
Dr. Dinenberg a copy of her “noted discrepancies” with the statement of accepted facts and that
without this, he did not know the “true” facts of the case. Further, appellant related that
Dr. Dinenberg’s office stated that they would not allow another person in the examination room
or let her record and reiterated that she did not want to be alone with a male physician.
By letter dated December 3, 2009, appellant requested a review of the written record. In
addition to the arguments she made previously, she stated that it was only 14 days between the
proposed suspension of benefits and the suspension of benefits, which did not allow 14 days
between receipt and response time.
By decision dated March 22, 2010, the hearing representative affirmed OWCP’s
November 23, 2009 decision.
LEGAL PRECEDENT
Section 8123 of the Act authorizes OWCP to require an employee, who claims disability
as a result of employment, to undergo a physical examination as it deems necessary.2 The
determination of the need for an examination, the type of an examination, the choice of locales
and the choice of medical examiners are matters within the province and discretion of OWCP.3
OWCP’s regulations at section 10.320 provide that a claimant must submit to examination by a
qualified physician as often and at such time and places as it considers reasonably necessary.4
Section 8123(d) of the Act and section 10.323 of its regulations provide that, if an employee
refuses to submit to or obstructs a directed medical examination, her right to compensation is
suspended until the refusal or obstruction ceases.5 OWCP’s procedures provide that before
OWCP may invoke these provisions, the employee is to be provided a period of 14 days within
which to present in writing the reasons for the refusal or obstruction.6 If good cause or the
refusal or obstruction is not established, entitlement to compensation is suspended in accordance
with section 8123(d) of the Act.
ANALYSIS
OWCP directed appellant to submit to an impartial medical examination with
Dr. Dinenberg on October 27, 2009. The purpose of this appointment was to resolve the conflict
between appellant’s treating physicians, including, Dr. Curiel, and the second opinion
physicians, including Dr. Mack, with regard to whether appellant still had residuals from her
2

5 U.S.C. § 8123.

3

M.B., Docket No. 10-1755 (issued March 24, 2011); J.T., 59 ECAB 293 (2008).

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

6

Federal (FECA) Procure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (July 2000); J.T., supra note 3.

5

accepted employment condition that occurred over 20 years prior to the date the appointment
was set. Appellant rescheduled the appointment to November 9, 2009 and then failed to keep
that appointment.
The Board has recognized OWCP’s responsibility in developing claims.7 Section 8123
of the Act authorizes it to require an employee, who claims a medical condition as a result of
federal employment, to undergo a physical examination as OWCP deems necessary. The
determination of the need for an examination, the type of examination, the choice of locale and
the choice of medical examiners are matters within the province and discretion of OWCP. The
only limitation on this authority is that of reasonableness.8 The referral to an appropriate
specialist in appellant’s area at OWCP’s expense cannot be considered unreasonable. In this
case, OWCP clearly acted within its discretion in referring appellant for an impartial medical
examination to resolve a conflict with regard to whether appellant had residuals from the
accepted condition. When appellant failed to attend, OWCP properly advised her of its intention
to suspend compensation benefits and, after a 14-day period, suspended her benefits. In its
November 9, 2009 letter proposing suspension of benefits, OWCP clearly gave appellant 14 days
from the date of that letter to file a response. Accordingly, the termination dated November 23,
2009 was properly issued.
The Board finds that appellant did not demonstrate good cause for her failure to report to
the scheduled appointment. Appellant alleged various discrepancies in the statement of accepted
facts and the questions submitted to the physician. She also stated that all information was not
forwarded to the physician. The Board finds that appellant’s objections to the statement of
accepted facts are not a valid excuse to refuse to attend an impartial medical examination nor are
her allegations regarding submission of evidence submitted to the physician.9 Similarly,
appellant, barring exceptional circumstances, has no right to record an examination, have another
person present at the examination, or to demand a female physician. Pursuant to OWCP’s
regulations, an employee is not entitled to have anyone else present at the examination unless
OWCP decides that exceptional circumstances exist.10 The fact that appellant has a lack of trust
in the opinions of impartial medical examiners does not amount to exceptional circumstances.
Appellant makes numerous arguments about whether an impartial medical examination
was necessary. She may not decide whether the circumstances warrant an impartial medical
examination. There is no discretion for her to exercise in this matter.11

7

Scott R. Walsh, 56 ECAB 353 (2005).

8

20 C.F.R. § 10.320; see J.T., supra note 3.

9

See V.H., Docket No. 07-1200 (issued September 10, 2008).

10

20 C.F.R. § 10.320; see also Ida L. Townsend, 45 ECAB 750 (1994) (where the Board found that under section
5 U.S.C. § 8123(a) a claimant has the right to have another physician present during a second opinion examination
directed by the Office; however, a claimant does not have the right to have a family member or her representative
participate in the second opinion examination).
11

See G.M., Docket No. 09-1835 (issued June 21, 2010).

6

OWCP has shown a great deal of good faith in its interactions with appellant. When
there appeared to be some sort of verbal altercation between her and Dr. Douthit, OWCP
scheduled a new examination. OWCP reviewed her objections to the statement of accepted facts
and other arguments, but determined that they were without merit. Appellant was permitted to
reschedule her first appointment with Dr. Dinenberg.
The Board further finds that as the issue is whether appellant’s compensation was
properly suspended for her failure to attend the impartial medical examination, appellant’s
arguments with regard to the weighing of the medical evidence are not relevant.12 OWCP
properly exercised its discretion in determining that appellant refused to submit to a properly
scheduled medical examination and suspended her right to compensation benefits.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s right to compensation
benefits on the grounds that she refused to submit to a medical examination.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 22, 2010 is affirmed.
Issued: August 2, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION & SAFETY
ADMINISTRATION, HOUSTON HOBBY
AIRPORT, Houston, TX, Employer
_________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 09-495
Issued: September 10, 2009

Case Submitted on the Record

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

JURISDICTION
On December 10, 2008 appellant filed a timely appeal from the September 17, 2008
decision of the Office of Workers’ Compensation Programs which denied his reconsideration
requests as untimely filed and failing to establish clear evidence of error. Because more than one
year has elapsed between the most recent Office merit decision of May 9, 2007 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue on appeal is whether the Office properly determined that appellant’s
reconsideration request was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On August 20, 2005 appellant, then a 21-year-old transportation security screener was
lifting heavy bags and injured her low back. The Office accepted her claim for sprain/strain of

the lumbar region and sprain/strain of the thoracic region and a herniated lumbar disc at L5-S1
with lumbar radiculitis.
Appellant came under the treatment of Dr. Jeffrey D. Reuben, a Board-certified
orthopedic surgeon, from October 17, 2005 to February 23, 2007. Dr. Reuben treated appellant
conservatively and opined that she was totally disabled due to her work-related injury of
August 20, 2005.
The Office referred appellant to a second opinion physician and also to an impartial
medical examiner. The referee physician diagnosed chronic lumbar strain syndrome and opined
that appellant could return to work full time, light duty with occasional lifting limited to 20
pounds, frequent lifting limited to 10 pounds, twisting, bending, stooping, squatting and climbing
occasionally and pushing, pulling and lifting limited to 20 pounds. On October 23, 2006
appellant underwent a functional capacity evaluation which revealed that she could work in the
light physical demand level.
On February 15, 2007 the employing establishment offered appellant a light-duty job
effective February 16, 2007 with duties including monitoring exit points, operating a walk
through metal detector and x-ray screen monitor, wanding with hand held metal detector and
monitoring the declaration monitor, subject to the restrictions set forth by the referee physician.
On February 20, 2007 appellant contended that she was unable to return to work.
In a March 5, 2007 letter, the Office advised appellant that the job offer constituted
suitable work. Appellant was informed that she had 30 days to accept the position or provide
reasons for refusing it; otherwise, she risked termination of her compensation benefits.
Appellant submitted a February 8, 2007 operative report from Dr. Vidal Omar, a Boardcertified orthopedic surgeon, who performed an intradiscal steroid injection at L4-5. Dr. Omar
diagnosed lumbar back pain, lumbar radiculopathy and herniated disc. Appellant submitted
physical therapy notes from February 13 to 22, 2007.
On April 5, 2007 the Office advised appellant that the offered position was suitable work.
It considered that the reasons given by appellant for refusing the position were unacceptable.
The Office afforded appellant 15 additional days to accept the job offer.
Appellant submitted a physical therapy report dated February 7, 2007. Also submitted
were reports from Dr. Reuben dated April 9 to 16, 2007. Dr. Reuben treated appellant for low
back pain radiating into her left leg and opined that she was totally disabled from work.
In a decision dated May 9, 2007, the Office terminated appellant’s monetary
compensation, effective May 13, 2007, on the grounds that she refused an offer of suitable work.
Appellant submitted reports from Priscilla Alaniz, a chiropractor, dated April 24 to
November 13, 2007. Dr. Alaniz diagnosed lumbar disc syndrome, sciatic neuritis and
myospasm. She summarized a history of appellant’s medical treatment and opined that appellant
had 14 percent whole person impairment. Dr. Reuben treated appellant from May 30, 2007 to
July 21, 2008 for low back pain radiating into her left leg. He recommended a course of physical

2

therapy and opined that appellant was totally disabled due to constant lumbar pain. Appellant
submitted physical therapy notes October 30, 2007 to July 21, 2008.
In an appeal request form dated August 20, 2008, appellant requested reconsideration of
the May 9, 2007 Office decision.
On September 17, 2008 the Office denied appellant’s reconsideration request finding that
the request was not timely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation 20 C.F.R. § 10.607(a)
provides that the Office will not review a decision unless the application for review is filed
within one year of the date of that decision.2
However, the Office will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation, if the claimant’s application for review shows clear evidence of error
on the part of the Office in its most recent merit decision. To establish clear evidence of error, a
claimant must submit evidence relevant to the issue that was decided by the Office. The
evidence must be positive, precise and explicit and must be manifested on its face that the Office
committed an error.3
Evidence that does not raise a substantial question concerning the correctness of the
Office’s decision is insufficient to establish clear evidence of error.4 It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion.5 This entails a
limited review by the Office of the evidence previously of record and whether the new evidence

1

5 U.S.C. § 8128(a).

2

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

3

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

4

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

5

Id.

3

demonstrates clear error on the part of the Office.6 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of the
Office.7
ANALYSIS
In its September 17, 2008 decision, the Office properly determined that appellant failed
to file a timely application for review. It rendered its most recent merit decision on May 9, 2007.
Appellant’s request for reconsideration was dated August 20, 2008, more than one year after
May 9, 2007. Thus, her request was not timely filed.
The Board also finds that appellant has not established clear evidence of error on the part
of the Office. Appellant’s August 20, 2008 request was accompanied by reports from
Dr. Alaniz, who diagnosed lumbar disc syndrome, sciatic neuritis and myospasm and opined that
appellant had 14 percent whole person impairment.8 Dr. Alaniz, a chiropractor, did not diagnose
a spinal subluxation based on x-ray. She is not considered a physician as defined under the Act
and her reports are of no medical value. A chiropractor is considered to be a physician under the
Act only to the extent that she treats a spinal subluxation as demonstrated by x-ray.9 Similarly,
the physical therapist reports are of no probative medical value as a physical therapist is not a
physician under the Act.10 This evidence is of no medical value with regard to whether the job
offer of February 12, 2007 was suitable.
Dr. Reuben noted appellant’s complaints of low back pain radiating into her left leg. He
recommended a course of physical therapy and opined that appellant was totally disabled due to
constant lumbar pain. However, Dr. Reuben did not review the job offer or provide any opinion
relevant to appellant’s capacity for work at the time the job was offered. As noted, clear
evidence of error is intended to represent a difficult standard.11 These reports do not raise a
substantial question as to the correctness of the Office’s prior decision. Furthermore, the Board
notes that clear evidence of error is intended to represent a difficult standard. The submission of
a detailed well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
6

Id.

7

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

8

On May 21, 2007 appellant filed a claim for a schedule award. On June 3, 2008 the medical adviser opined that
appellant had 17 percent impairment of the left lower extremity. The Office has not issued a final decision with
regard to the schedule award claim.
9

See 5 U.S.C. § 8101(2); Mary A. Ceglia, 55 ECAB 626 (2004) (in assessing the probative value of chiropractic
evidence, the initial question is whether the chiropractor is a physician as defined under 5 U.S.C. § 8101(2); a
chiropractor is not considered a physician under the Act unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist).
10

See 5 U.S.C. § 8101(2); David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physical therapists
are not competent to render a medical opinion under the Act).
11

Id.

4

evidence of error.12 The reports of Dr. Reuben are not relevant to the underlying issue in this
case.
On appeal, appellant contended that she received the May 9, 2007 decision terminating
her compensation for refusal of suitable work on June 19, 2008, over a year after issuance;
therefore, she could not timely respond. The record supports that the Office’s May 9, 2007
decision was sent to appellant at her address of record and does not indicate that it was returned
as undeliverable. Under the “mailbox rule,” it is presumed, absent evidence to the contrary, that
a notice mailed to an individual in the ordinary course of business was received by that
individual.13 The presumption arises after it appears from the record that the notice was duly
mailed and the notice was properly addressed.”14
Appellant also alleged that she received inconsistent information from the Office
regarding her right to a schedule award when her compensation was terminated due to refusal of
suitable work. However, the Board notes that it does not have jurisdiction over any matter
pertaining to a schedule award as the Office’s September 17, 2008 decision did not adjudicate
appellant’s entitlement to a schedule award.15
Appellant has not provided any argument or evidence sufficient to shift the weight of the
evidence in her favor or raise a substantial question as to the correctness of the Office’s
decision.16
CONCLUSION
The Board finds that appellant’s request for reconsideration dated August 20, 2008 was
untimely filed and did not demonstrate clear evidence of error.

12

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3c (January 2004).
13

A.C. Clyburn, 47 ECAB 153 (1995).

14

Id.

15

See 20 C.F.R. § 501.2(c) (the Board only has jurisdiction over final decisions of the Office).

16

On appeal, appellant submitted new evidence. However, the Board’s jurisdiction is limited to the evidence that
was before the Office at the time of its final decision. See id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6