United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Cheektowaga, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-2015
Issued: January 23, 2014

Case Submitted on the Record

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

JURISDICTION
On September 3, 2013 appellant, through her attorney, filed a timely appeal from a
July 31, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration. Because more than 180 days elapsed from July 31,
2012, the date of the most recent merit decision, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen her claim for
further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 1, 2012 appellant, then a 48-year-old contact representative, filed a traumatic
injury claim (Form CA-1) alleging that on May 30, 2012, she twisted her back while moving
four chairs. She claimed a low back condition with sciatica.
In a report dated May 31, 2012, Dr. Braun diagnosed appellant with low back pain,
sciatic radiculitis, pain of the thoracic spine and myospasm. He listed a history that she was
trying to move her chair around another chair when she twisted and her mid and lower back no
longer supported her.
In an excuse slip dated June 12, 2012, a physician’s assistant noted that appellant would
be off work from May 30, 2012 until further notice.
In an attending physician’s report dated June 14, 2012, Dr. Zair Fiskin, an orthopedic
surgeon, stated that appellant reinjured her back on May 30, 2012. He checked a box indicating
that her condition was caused or aggravated by employment activity, explaining that the incident
of May 30, 2012 had aggravated a previous condition.
In an e-mail dated June 21, 2012, the employing establishment noted that appellant had
back surgery on May 15, 2012 to treat a nonwork-related injury of January 3, 2012. It advised
that May 30, 2012 reflected the alleged date of reinjury.
By letter dated June 29, 2012, appellant noted that she had a chair as reasonable
accommodation that she used at work. She needed to move another person’s chair to put hers
into place. While moving chairs to make room for her own, appellant twisted her back and felt
something pop. The incident occurred on May 30, 2012 between 3:45 p.m. and 4:00 p.m.
Appellant listed the physicians she had visited for treatment in the following days. She had a
similar condition of low back herniation and sciatica and included magnetic resonance imaging
(MRI) scan reports from 2011 and 2012.
In a report dated June 14, 2011, Dr. Stuart J. Rubin, a Board-certified radiologist,
obtained an MRI scan of appellant’s lumbar spine. He noted varying degrees of degenerative
disc disease at L4-5 and L5-S1; a moderate broad-based right foraminal and far lateral disc
protrusion at L4-5 with compression of the exiting right L4 nerve root; a small broad-based left
lateral recess disc protrusion at L5-S1 in close proximity to the left S1 nerve root; varying
degrees of bilateral facet joint osteoarthritis at L3-4, L4-5 and L5-S1; and a small broad-based
right paracentral disc protrusion at T12-L1.
In a report dated June 15, 2012, Dr. Krish Kartha, a Board-certified radiologist, examined
an MRI scan of appellant’s lumbar spine. He noted a prior left laminotomy at L5-S1, along with
a small left paracentral disc herniation and an effacement of the fat along the undersurface of the
exiting left L5 nerve root; annular tears and small right foraminal disc herniation at L4-5; a small
central to right paracentral disc herniation at T12-L1; and a moderate central disc herniation at
T11-12.
In a report dated June 12, 2012, Dr. Kevin G. Cleary, a Board-certified internist,
diagnosed back ache with sciatica. He noted that appellant had an L5-S1 discectomy on
2

May 15, 2012. On May 30, 2012 appellant was moving chairs when she developed pain of the
lower back at the site of surgery. Dr. Cleary stated that she was unable to return to work.
By decision dated July 31, 2012, OWCP denied appellant’s claim. It found that the
May 30, 2012 incident occurred but denied the claim as the medicl evidence did not sufficient
address causal relation.
By letter dated July 26, 2013, appellant, through her representative, requested
reconsideration of OWCP’s July 31, 2012 decision. She submitted records from Dr. Fishkin. On
June 6, 2013 Dr. Fishkin diagnosed a herniated nucleus pulposus at L4-S1 and C5-6. He noted
that appellant had a prior microdiscectomy at L5-S1. Based on appellant’s history and the results
of the diagnostic studies, it was Dr. Fishkin’s opinion that a motor vehicle accident was the
aggravating cause of her previous lumbar spinal conditions and the cause of her current
complaint of cervical pain.
In a surgical report dated June 11, 2013, Dr. Fishkin performed an anterior retro
peritoned surgery on appellant’s lumbar spine. He noted that she had a long history of low back
pain with radiation to the left lower extremity. Dr. Fishkin stated that appellant had a previous
miscrodiscectomy and was recovering well after surgery, until a motor vehicle incident had
aggravated her symptoms.
By decision dated July 31, 2013, OWCP declined appellant’s request for reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.3
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.4 The Board also has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.5
While the reopening of a case may be predicated solely on a legal premise not previously

2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); K.H., 59 ECAB 495, 499 (2008).

4

See Daniel Deparini, 44 ECAB 657, 659 (1993).

5

P.C., 58 ECAB 405, 412 (2007); Ronald A. Eldridge, 53 ECAB 218, 222 (2001); Alan G. Williams, 52 ECAB
180, 187 (2000).

3

considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.6
ANALYSIS
OWCP issued a July 31, 2012 decision denying appellant’s claim for compensation. On
July 26, 2013 appellant requested reconsideration of this decision.
The issue on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen her case for review of the merits. In her July 26,
2012 request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a new and relevant legal argument not previously
considered.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence. Appellant submitted two reports from Dr. Fishkin dated June 6 and 11, 2013. The
June 6, 2013 report of Dr. Fishkin addressed to Dr. Cleary diagnosed herniated nucleus pulposus
at L4-S1 and C5-6. Based on appellant’s history and the results of diagnostic studies, it was his
opinion that a motor vehicle incident was the aggravating cause of her previous lumbar spinal
conditions and the cause of her current complaint of cervical pain. In the June 11, 2013 surgical
report, Dr. Fishkin stated that appellant had a previous miscrodiscectomy and was recovering
well after surgery, until a motor vehicle incident had aggravated her symptoms.
The Board finds that the evidence submitted is not relevant to the July 31, 2012 denial of
appellant’s claim. The evidence from Dr. Fishkin failed to address the May 30, 2012 incident at
work in which appellant moved chairs. Rather, Dr. Fishkin attributed appellant’s lumbar and
cervical conditions and need for surgery on June 11, 2013 to a motor vehicle accident on an
unspecified date. The underlying issue in this case pertains to the causal relationship of
appellant’s low back condition to her federal employment. Dr. Fishkin did not mention the
incident at work. His reports are insufficient to warrant reopening the case for further merit
review, because they are not relevant to the underlying issue of causal relation.7
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her claim for
further merit review under section 8128.

6

Vincent Holmes, 53 ECAB 468, 472 (2002); Robert P. Mitchell, 52 ECAB 116, 119 (2000).

7

See J.P., 58 ECAB 289, 295 (2007); Freddie Mosley, 54 ECAB 255, 256-7 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the July 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2014
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-38
Issued: June 11, 2012

Case Submitted on the Record

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

JURISDICTION
On October 12, 2011 appellant filed a timely appeal from a September 20, 2011 schedule
award 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 met his burden of proof to establish that he sustained a
ratable hearing loss entitling him to a schedule award.
FACTUAL HISTORY
On October 13, 2010 appellant, then a 70-year-old retired crane operator, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss as a result of
1

5 U.S.C. § 8101 et seq.

employment-related noise exposure from cranes and loud noises. Appellant first became aware
of his condition on January 1, 1990 and of its relationship to his employment on
September 1, 2010. He stated that he delayed in filing because he was not aware that he could
file an OWCP claim. The employing establishment noted that appellant had retired in
May 1993.
Appellant provided dates of his employment history and reported that he was a federally
employed crane operator from 1966 to 1993 for the employing establishment. From 2000 to
2007 he worked in non-Federal employment as a crane operator for Schnitzer Steel Industries.2
Appellant submitted a history of audiograms from his non-Federal employment dated
February 19, 2001 to October 13, 2010.
In an October 15, 2010 medical report, Dr. Gerald G. Randolph, a Board-certified
otolaryngologist, reported that appellant developed hearing loss over the last 10 years and
experienced tinnitus in his left ear for the last 15 years. An October 13, 2010 audiogram
revealed the following decibel (dBA) losses at 500, 1,000, 2,000 and 3,000 hertz (Hz): 25, 25,
35 and 55 for the right ear and 20, 20, 45 and 80 for the left ear. Dr. Randolph noted that
appellant’s audiograms revealed bilateral sensorineural hearing loss with speech reception
thresholds of 30 decibels in both ears. Discrimination scores were measured at 88 percent in
both ears. He further stated that appellant’s hearing loss was a result of a combination of past
noise exposure and the aging process. Using the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment,3 (A.M.A., Guides),
Dr. Randolph stated that appellant had a ratable hearing loss of 15 percent in the right ear, 24.375
percent in the left ear and a binaural hearing loss ratable at 16.56 percent with no additional
rating for tinnitus.4
By letter dated December 29, 2010, OWCP requested the Department of the Navy
provide a copy of all medical examinations pertaining to appellant’s hearing or ear problems,
including any preemployment examinations and all audiograms. By letter dated December 29,
2010, it requested additional factual evidence from appellant.
By letter dated January 10, 2011, appellant reported that he underwent yearly hearing
tests while employed at the employing establishment. He stated that his immediate supervisor at
the employing establishment had knowledge of his employment-related hearing loss and notified
him that he had a baseline shift in hearing and should undergo further testing.

2

On June 6, 2007 the Department of Labor & Industries awarded appellant 17.25 percent binaural hearing loss in
the amount of $13,129.05 for hearing loss sustained in his non-Federal employment with Schnitzer Steel Industries.
The Board notes that OWCP does not apportion hearing loss claims.
3

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

4

Dr. Randolph noted that appellant left his federal employment at Puget Sound Naval Shipyard in 1993 and that
review of appellant’s employing establishment industrial audiograms would allow him to make a determination
regarding how much hearing loss he had at or near the time he left that employment.

2

Appellant submitted a June 9, 2006 medical report from Dr. Richard W. Seaman, a
Board-certified otolaryngologist, who reported that appellant began to experience hearing loss
and tinnitus in 1990 when he was working at the employing establishment. Dr. Seaman reported
that appellant’s October 2005 audiogram revealed bilateral high-frequency hearing loss and left
ear tinnitus which he opined was directly related to industrial noise exposure.
On March 31, 2011 OWCP requested Dr. Randolph provide clarification on his report
and provided him with a series of questions. A statement of accepted facts was submitted
providing details regarding appellant’s employment history. OWCP noted that appellant’s
federal employment spanned from 1966 to 1993 where he worked as a crane operator for the
employing establishment. From 2000 to 2007, appellant was employed by Schnitzer Steel
Industries in non-Federal employment.
In an April 15, 2011 otologic report, Dr. Randolph reviewed the statement of accepted
facts and reported that the employing establishment did not supply him with the necessary
industrial audiograms to determine the degree of hearing loss appellant may have had at or near
the time he left his federal employment in 1993. He noted that appellant’s bilateral sensorineural
hearing loss was due to a combination of noise exposure and the aging process. Dr. Randolph
stated that appellant’s hearing loss would probably not have been as severe when he left his
federal employment in 1993 and opined that appellant’s noise exposure at Schnitzer Steel
Industries likely aggravated the hearing loss he already had at the time he left his federal
employment.
By decision dated April 26, 2011, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On May 5, 2011 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
A history of audiograms was submitted dated June 8, 1976 to June 30, 1992. Appellant’s
June 30, 1992 audiogram revealed the following dBA losses at 500, 1,000, 2,000 and 3,000 Hz:
15, 15, 10 and 35 for the right ear and 15, 15, 15 and 55 for the left ear.
By letter dated June 21, 2011, OWCP requested Dr. Randolph review appellant’s past
industrial audiograms and complete its questionnaire.
In a June 24, 2011 otologic report, Dr. Randolph reviewed appellant’s past audiograms
and stated that the earliest audiogram of June 8, 1976 revealed evidence of high tone
sensorineural hearing loss in the left ear ratable at zero percent and that hearing was relatively
normal in the right ear. He also reviewed appellant’s June 30, 1992 audiogram, the last
audiogram taken prior to appellant’s departure from his federal employment in 1993.
Dr. Randolph noted that the audiogram showed bilateral high-frequency sensorineural hearing
loss compatible with hearing loss due to noise exposure. In accordance with the sixth edition of
the A.M.A., Guides, appellant would have had a ratable hearing loss of zero percent in both ears
based on the June 30, 1992 audiogram. Dr. Randolph noted that appellant would have been a
candidate for hearing aid evaluation at that time. He further stated that from appellant’s June 30,
1992 audiogram to his most recent audiogram performed on October 13, 2010, appellant’s

3

hearing had degenerated significantly resulting in a ratable hearing loss of 15 percent in the right
ear and 24.375 percent in the left ear with binaural hearing loss ratable at 16.56 percent.
Dr. Randolph noted that appellant’s workplace exposure was of sufficient intensity and duration
to have caused or aggravated his hearing loss. He concluded that the increase in appellant’s
hearing loss since his last industrial audiogram of June 30, 1992 would not have been due to his
federal employment industrial noise exposure and that his hearing loss was likely aggravated
from his non-Federal employment.
On September 1, 2011 OWCP referred the case file to an OWCP medical adviser to
determine the extent of appellant’s permanent partial impairment and date of maximum medical
improvement.
On September 7, 2011 an OWCP medical adviser reviewed appellant’s case file and
diagnosed work-related binaural sensorineural hearing loss. He noted that the closest audiogram
to appellant’s last known federal workplace noise exposure was his October 13, 2010 audiogram.
Using the October 13, 2010 audiogram, the medical adviser calculated 24.38 percent monaural
hearing impairment on the left, 15 percent monaural hearing impairment on the right and 16.6
percent total binaural hearing loss based upon the sixth edition of the A.M.A., Guides.5 He
recommended hearing aids and noted the maximum date of medical improvement as
October 13, 2010.
By decision dated September 20, 2011, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable. It noted that
according to Dr. Randolph’s June 24, 2011 report, appellant had a ratable hearing loss of zero
percent in both ears based upon the June 30, 1992 audiogram and that his current hearing loss
was aggravated by his non-Federal employment.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
5

A.M.A., Guides 250.

6

5 U.S.C. §§ 8101-8193.

7

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

4

losses at each frequency are added up and averaged. 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.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. 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. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.9
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish his or her claim, OWCP also has a
responsibility in the development of the evidence.10
ANALYSIS
The Board finds that this case is not in posture for decision. OWCP accepted appellant’s
claim for bilateral sensorineural hearing loss. The issue is whether appellant sustained a ratable
hearing loss from his federal employment entitling him to a schedule award.
OWCP sent Dr. Randolph appellant’s industrial audiograms dated June 8, 1976 to
June 30, 1992 prior to his retirement from federal employment in 1993. From 2000 to 2007,
appellant worked as a crane operator for Schnitzer Steel Industries in a non-Federal employment.
In his June 24, 2011 report, Dr. Randolph used appellant’s June 30, 1992 audiogram to
determine that appellant developed bilateral high frequency sensorineural hearing loss due to
noise exposure prior to his departure from federal employment in 1993. According to the
A.M.A., Guides, appellant would have had a ratable hearing loss of zero percent in both ears
based on the June 30, 1992 audiogram. Dr. Randolph noted that appellant’s most recent
audiogram of October 13, 2010 showed that his hearing had degenerated significantly resulting
in a ratable hearing loss of 15 percent in the right ear and 24.375 percent in the left ear with
binaural hearing loss ratable at 16.56 percent. Dr. Randolph concluded that the increase in
appellant’s hearing loss since his last industrial audiogram of June 30, 1992 would not have been
due to his federal employment noise exposure and was likely aggravated from his non-Federal
employment.
OWCP properly referred the medical evidence to an OWCP medical adviser for a rating
of permanent impairment in accordance with the A.M.A., Guides.11 In a September 7, 2011
report, the medical adviser used appellant’s October 13, 2010 audiogram to determine that
appellant sustained 16.6 percent binaural hearing loss, noting that it was the closest audiogram to

8

See supra note 4.

9

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
10

See Claudia A. Dixon, 47 ECAB 168 (1995).

11

See Hildred I. Lloyd, 42 ECAB 944 (1991).

5

appellant’s last known federal workplace noise exposure.12 He recommended hearing aids and
noted the maximum date of medical improvement as October 13, 2010. The medical adviser did
not address or calculate appellant’s hearing impairment based on the June 30, 1992 audiogram.
In its September 20, 2011 decision, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable. It relied on
Dr. Randolph’s June 24, 2011 report which found that appellant had a ratable hearing loss of
zero percent in both ears at the time of the June 30, 1992 audiogram and that his current hearing
loss was aggravated by his non-Federal employment after he left the employing establishment.
In its schedule award decision, OWCP did not address the medical adviser’s findings.
OWCP’s procedure manual provides that the claims examiner should review the medical
adviser’s findings and, “if he or she believes that the impairment has not been correctly described
or that the percentage is not reasonable, a new or supplemental evaluation should be obtained.
The claims examiner should not attempt to assign a different percentage of impairment without
In this instance, OWCP relied exclusively on
benefit of further medical advice.”13
Dr. Randolph’s June 24, 2011 report which based his impairment rating on the June 30, 1992
audiogram to determine that appellant’s hearing loss was not severe enough to be considered
ratable, noting that appellant retired from his federal employment in 1993. OWCP’s medical
adviser’s report, however, provided an impairment rating of 16.6 percent binaural hearing loss.
While the medical adviser’s impairment rating was based on the October 13, 2010 audiogram,
the Board has long recognized that a claimant may be entitled to an award for an increased
hearing loss, even after exposure to employment hazardous noise has ceased, if causal
relationship is supported by the medical evidence of record.14 Thus, OWCP failed to follow its
procedures to further develop the medical evidence.
Once OWCP undertakes development of the record it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.15 Given the
deficiency in the medical adviser’s report, OWCP should not have denied appellant’s claim
regarding whether he sustained a ratable impairment of hearing loss for a schedule award.
Accordingly, the Board will remand the case to OWCP for further appropriate medical
development.

12

Supra note 4.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6.d(2) (January 2010).
14

The Board held in Adelbert E. Buzzell, 34 ECAB 96 (1982) that it is not a per se rule that noise-induced hearing
loss does not progress following cessation of occupational noise exposure, but indicated that such a conclusion must
be based on a well-rationalized medical opinion. See H.H., Docket No. 11-938 (issued December 23, 2011)
(concurring opinion of Michael E. Groom, Alternate Member); Louis E. Brown, Docket No. 96-600 (issued
June 9, 1998).
15

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002);
Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

6

On remand, OWCP should ask the medical adviser to clarify his opinion on whether
appellant sustained a ratable hearing loss causally related to his federal employment.16 If so, the
medical adviser should determine the appropriate audiogram to use in calculating appellant’s
employment-related hearing loss and provide medical rationale supporting the selection of that
audiogram. He should also determine whether appellant had any ratable hearing loss causally
related to factors of his federal employment and whether any progression of hearing loss since
his last occupational noise exposure could be attributed to his federal employment.17 If the
medical adviser is unable or unwilling to provide such clarification, then OWCP should refer
appellant to another specialist for an opinion on the relevant issue. Following this and any other
further development deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s schedule award claim.18
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
sustained a ratable hearing loss entitling him to a schedule award.

16

When a medical evaluation is made at its request, OWCP has the responsibility of obtaining a proper
evaluation. Leonard Gray, 25 ECAB 147, 151 (1974).
17

Paul R. Reedy, 45 ECAB 488 (1994).

18

See P.K., Docket No. 08-2551 (issued June 2, 2009); see also Horace Langhorne, 29 ECAB 820 (1978).

7

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: June 11, 2012
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
CAPITOL POLICE, U.S. HOUSE OF
REPRESENTATIVES, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Harold M. Vaught, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1920
Issued: March 12, 2007

Case Submitted on the Record

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

JURISDICTION
On August 15, 2006 appellant filed a timely appeal of the May 25, 2006 decision of the
Office of Workers’ Compensation Programs which denied his reconsideration request. Because
more than one year has elapsed between the most recent merit decision dated February 17, 2005
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(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On February 25, 2003 appellant, then a 31-year-old police officer, filed a traumatic injury
claim alleging that on December 18, 2002 he slipped when stepping off a curb and injured his
low back. The Office accepted the claim for low back sprain/strain. Appellant stopped work on
December 19, 2002.

Appellant submitted records from Dr. Dennis A. Carlini, a Board-certified orthopedic
surgeon, dated December 23, 2002 to October 1, 2003. Dr. Carlini noted a history of injury and
appellant’s complaints of persistent low back pain and radiculopathy. He recommended physical
therapy and a work-hardening program. Dr. Carlini noted that appellant continued to experience
persistent low back pain and he suspected a significant facet joint problem. On September 3,
2003 he returned appellant to work at a desk job for four hours per day. On October 6, 2003
Dr. Carlini advised that appellant was permanently disabled from work for six weeks due to facet
joint instability. A magnetic resonance imaging (MRI) scan of the lumbar spine dated May 29,
2003 revealed no abnormalities. Appellant also submitted reports dated August 6 and 20, 2003
from Dr. Martin McLaren, a Board-certified anesthesiologist, who noted a history of injury and
diagnosed lumbar facet syndrome and lumbar radiculopathy.
On December 8, 2003 the Office referred appellant to Dr. Robert A. Smith, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated January 20,
2004, Dr. Smith discussed appellant’s work history. He opined that appellant’s accepted
condition of soft tissue strain of the back was resolved. Dr. Smith advised that he reached
maximum medical improvement and could return to work in a regular-duty capacity.
On February 9, 2004 the Office issued a notice of proposed termination of compensation
benefits on the grounds that Dr. Smith’s report dated January 20, 2004 established no residuals
of the work-related employment injury.
Appellant submitted reports dated October 27, 2003 to February 20, 2004 from
Dr. William Tham, Board-certified in physical medicine and rehabilitation, who noted a history
of injury and diagnosed lumbar spondylosis on the left side at L3, L4, L5 and S1 with
mechanical lower back pain, lumbar radiculitis and facet arthropathy. Dr. Tham advised that
appellant was totally disabled. On February 11, 2004 Dr. Carlini recommended testing to rule
out conversion tendencies that may be magnifying or prolonging symptoms.
By decision dated March 10, 2004, the Office terminated appellant’s wage-loss and
medical benefits effective that day on the grounds that the weight of the medical evidence
established that he had no continuing disability resulting from his accepted employment injury.
By letter dated March 25, 2004, appellant requested an oral hearing before an Office
hearing representative. Appellant submitted a report from Dr. Tham dated July 1, 2004.
On August 10, 2004 the Office made a preliminary finding that appellant had been
overpaid benefits in the amount of $13,264.00. The Office noted that the overpayment occurred
because appellant was incorrectly paid wage-loss compensation for the period March 21 to
July 10, 2004, after his compensation benefits were terminated on March 10, 2004. The Office
determined that appellant was at fault in creating the overpayment as he accepted payment which
he knew or should have been expected to know was incorrect.
On September 7, 2004 appellant requested a hearing on the overpayment decision and
submitted an overpayment questionnaire. The hearing was held on October 26, 2004. Appellant
submitted chiropractor treatment notes dated July 8 to August 2, 2004. Also submitted were
reports from Dr. Tham dated October 5 and 27, 2004.

2

By decision dated February 17, 2005, the hearing representative affirmed the March 10,
2004 decision which terminated appellant’s wage-loss and medical benefits. The hearing
representative further found that appellant received a $13,264.00 overpayment of compensation
from March 21 to July 10, 2004 for which he was without fault in creating.
On February 15, 2006 appellant, through his attorney, requested reconsideration and
submitted additional medical evidence. Appellant referenced an attached statement of a
physician which addressed the purported deficiency cited by the hearing representative’s
decision; however, there was no statement attached to the reconsideration request. He submitted
a prescription note from Dr. Tham dated July 1, 2004, for a trial of chiropractic therapy. Also
submitted were duplicative chiropractor notes dated July 13 and July 14, 2004.
By decision dated May 25, 2006, the Office denied appellant’s reconsideration request on
the grounds that his request neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Act,1 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulation,2 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
Appellant’s February 15, 2006 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b).

3

20 C.F.R. § 10.608(b).

3

Additionally, appellant did not advance a relevant legal argument not previously considered by
the Office.
Appellant’s request for reconsideration referenced an attached statement of a physician
which addressed the purported deficiency cited by the hearing representative; however, no such
statement was attached to the reconsideration request. His letter did not show how the Office
erroneously applied or interpreted a point of law nor did it advance a point of law or fact not
previously considered by the Office. Consequently, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered appellant submitted a July 1, 2004 note from Dr. Tham, who prescribed a
trial of chiropractic therapy. However, this note is not relevant because it does not address the
underlying issue of whether appellant continued to have residuals of his accepted condition of
low back sprain/strain. Appellant did not otherwise provide any new and relevant evidence
pertaining to the issue of whether he continued to have residuals of his accepted condition or
whether the Office properly determined that an overpayment of compensation was created.
Therefore, the Office properly determined that this evidence did not constitute a basis for
reopening the case for a merit review.
Also submitted were chiropractor notes dated July 13 and 14, 2004. However, this
evidence was duplicative of evidence already contained in the record,4 and was previously
considered by the Office in its decision dated February 17, 2005 and found deficient. Therefore,
the Office properly determined that this evidence did not constitute a basis for reopening the case
for a merit review.
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did he submit
relevant and pertinent evidence not previously considered by the Office.5 Consequently,
appellant was not entitled to a review of the merits of his claim pursuant to any of the three
requirements under section 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.6

4

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
5

20 C.F.R. § 10.606(b).

6

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2006 is affirmed.
Issued: March 12, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
COMBAT COMMAND, RANDOLPH AIR
FORCE BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-750
Issued: June 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 10, 2015 appellant, through counsel, filed a timely appeal from a
November 25, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days has elapsed between the last merit decision dated
September 5, 2013 to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of her case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
On appeal, counsel argues that appellant has established his claim and clear evidence of
error.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 19, 2013 appellant, then a 45-year-old work/life consultant, filed a traumatic
injury claim alleging that on February 4, 2013 he injured his lower back when he slipped and fell
on an icy walkway.
In a February 6, 2013 report, Dr. John M. Harris, a treating physician, related that
appellant was seen that day for complaints of pain which began two days prior. Appellant stated
that he had slipped and fallen on ice at work. A physical examination revealed posterior spinal
and coccyx tenderness with no paravertebral spasm, edema, or abnormality. Review of an x-ray
interpretation of the sacrum and coccyx showed no fracture. Dr. Harris diagnosed a tailbone
injury.
In an April 1, 2013 report, Ronnie L. Reese, a certified physician assistant, reported that
appellant was seen for back pain and that appellant has a history of chronic low back pain.
Appellant stated that he has had increased low back pain since February 4, 2013 when he slipped
on ice, landed on his tailbone, and then fell flat onto his back. He also informed Mr. Reese that
he continued working following the incident. Complaints included lumbosacral moderate back
pain which was worsening. Appellant related that his pain radiated to the left leg and that it was
exacerbated by bending. A physical examination of the low back revealed no palpable spasm,
decreased range of motion due to pain, and diffuse lumbar spine tenderness. Mr. Reese
diagnosed low back pain which had been exacerbated by the fall on February 4, 2013.
In a follow-up visit on May 15, 2013, Mr. Reese diagnosed low back pain. Physical
examination findings included low back diffuse tenderness which was mostly muscular,
decreased range of motion due to pain, and some left sciatic tenderness.
In a July 8, 2014 report, Dr. Wesley L. Smeal, an examining Board-certified physiatrist,
diagnosed lumbar strain, lumbar radiculitis, and low back pain radiating into the left leg. Under
history of illness, he related that appellant had intermittent buttock and leg symptoms and back
pain following a February 4, 2013 slip and fall on ice at work. A physical examination revealed
some L1-2 discomfort and at the lumbosacral joint going into the buttock.
By letter dated July 23, 2013, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. Appellant was advised as to the medical and factual evidence
required and given 30 days to submit this information.
In a July 29, 2013 attending physician’s form report (Form CA-20), Dr. Larry L. Brown,
a treating Board-certified internist, diagnosed acute and chronic low back pain which had been
aggravated by the February 4, 2013 slip and fall at work.
By decision dated September 5, 2013, OWCP denied appellant’s claim for traumatic
injury finding that he had not submitted sufficient medical evidence to establish a causal
relationship between his diagnosed condition and the February 4, 2013 incident. It also noted
that the medical evidence failed to establish any aggravation of a preexisting condition and
explained the evidence required to support an aggravation.

2

On September 16 and 22, 2014 OWCP received appellant’s September 12, 2014 request
for reconsideration. In support of the reconsideration request, appellant submitted a
September 12, 2014 report from Dr. Smeal, who related that he first saw appellant on July 8,
2013 for a February 4, 2013 slip and fall at work. Dr. Smeal related that prior to the February 4,
2013 incident appellant stated that he had a history of low back pain. He then related the
treatment provided to appellant for his significant increase in symptoms following the
February 4, 2013 incident. In concluding, Dr. Smeal opined that appellant’s preexisting lumbar
condition had been exacerbated by the slip and fall on February 4, 2014 based on appellant’s
description of the incident and increased musculoskeletal and discogenic low back pain.
By decision dated November 25, 2014, OWCP denied appellant’s request for
reconsideration as it was untimely and failed to establish clear evidence of error on the part of
OWCP. It stated that the September 12, 2014 request for reconsideration was not received
within one year from the September 5, 2013 decision and was not received and imaged until
September 22, 2014 and are therefore, untimely. OWCP further found that the evidence
submitted with the untimely request for reconsideration did not establish clear evidence of error
and was not sufficient to require it to reopen appellant’s claim for consideration of the merits.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.2
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.3
OWCP, however, may not deny an application for review solely because the application
was not timely filed. When an application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.4 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise, and explicit and must
2

20 C.F.R. § 10.607(a).

3

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

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

5

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011).
OWCP procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.5(a).
6

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

3

manifest on its face that OWCP committed an error.7 OWCP procedures were changed effective
August 29, 2011. Section 10.607 of the new regulations provide that the date of the
reconsideration request for timeliness purposes was changed from the date the request was
mailed to the date the request was received by OWCP.8 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.12
ANALYSIS
The only decision before the Board on this appeal is that of OWCP dated November 25,
2014 in which it declined to reopen appellant’s case on the merits because the request was not
timely filed, and did not show clear evidence of error. OWCP denied appellant’s traumatic
injury claim as there was insufficient medical evidence to establish that his February 4, 2013
employment incident resulted in an injury as alleged. In its September 5, 2014 decision, it
specifically noted that there was no medical evidence based on a proper factual background
which established that his preexisting back condition had been aggravated by the February 4,
2013 incident. Appellant submitted a request for reconsideration received by OWCP on
September 16 and 22, 2014. As the received date is more than one year following OWCP’s
September 5, 2014 merit decision, the Board finds that appellant’s reconsideration request is
untimely.
The Board also finds that appellant failed to show clear evidence of error. With his
request for reconsideration, he submitted additional medical evidence from Dr. Smeal opining
that his preexi++sting lumbar condition had been exacerbated by the slip and fall on February 4,
2014 based on his description of the incident and increased musculoskeletal and discogenic low
back pain. However, this report is insufficient to establish clear evidence of error. To establish
clear evidence of error, it is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. The term clear evidence of error is intended to represent a
difficult standard. The submission of a detailed well-rationalized medical report, which, if
7

See Leona N. Travis, 43 ECAB 227, 240 (1991).

8

20 C.F.R. § 10.607.

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See supra note 7.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

Leon D. Faidley, Jr., supra note 3.

4

submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.13 This evidence is not so positive,
precise, and explicit that it manifests on its face that OWCP committed an error. Consequently,
the Board finds that Dr. Smeal’s report submitted on reconsideration is insufficient to raise a
substantial question as to the correctness of OWCP’s decision. Thus, appellant has not
established clear evidence of error by OWCP in its November 25, 2014 decision.
On appeal, counsel argued that OWCP was too stringent in the September 5, 2014
decision regarding appellant’s burden of proof and whether the February 4, 2013 incident
aggravated his preexisting back condition. He argued that as appellant was asymptomatic prior
to the incident that the fact that he became symptomatic following the slip and fall on
February 4, 2013 supports a finding of aggravation. In addition, counsel argues that Dr. Smeal’s
September 12, 2014 report establishes the fact that appellant’s preexisting back condition had
been aggravated by the February 4, 2013 incident. Contrary to appellant’s contention the mere
fact that he was asymptomatic prior to the February 4, 2013 incident is insufficient, without
sufficient rationale, to establish a causal relationship between his preexisting back condition and
aggravation.14 Furthermore, as explained above, Dr. Smeal’s report is insufficient to establish
clear evidence of error.
The Board finds that in its November 25, 2014 decision, OWCP properly declined to
reopen appellant’s claim on the basis that his request for reconsideration was not timely filed
within the one-year time limitation period set forth in 20 C.F.R. § 10.607 and did not show clear
evidence of error was proper and did not constitute an abuse of discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to show clear evidence of error.

13

D.G., 59 ECAB 455 (2008); Joseph R. Santos, 57 ECAB 554 (2006); see Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011).
14

Michael S. Mina, 57 ECAB 379 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 25, 2014 is affirmed.
Issued: June 12, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Milwaukee, WI, Employer
)
___________________________________________ )
R.B., Appellant

Appearances:
Marie Delvecchio, for the appellant
Office of Solicitor, for the Director

Docket No. 13-961
Issued: January 23, 2014

Case Submitted on the Record

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

JURISDICTION
On March 28, 2013 appellant filed a timely appeal from the January 31, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination.
ISSUES
The issues are: (1) whether appellant established more than 29 percent permanent
impairment of his right upper extremity and 27 percent permanent impairment of his left upper
extremity, for which he received schedule awards; and (2) whether appellant established a back
condition causally related to the accepted injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a September 12, 2005
decision, the Board found that there was no medical evidence establishing that appellant had

more than 27 percent impairment of the right and left arms, for which he received schedule
awards.1 In a December 18, 2007 decision,2 the Board found that he had not established that he
had more than 29 percent impairment of the right upper extremity and 27 percent impairment of
the left upper extremity. The facts and the history contained in the prior appeals are incorporated
by reference.
The relevant facts include that OWCP accepted appellant’s claim for right ulnar
neuropathy and authorized right ulnar nerve transposition surgery. OWCP also accepted his
claim for bilateral C7, C8 cervical radiculopathy with surgery and aggravation of cervical
spondylosis. It authorized a redo ulnar nerve transposition on May 4, 1998 on the right arm. On
November 3, 1998 OWCP accepted appellant’s claim for a left elbow strain and authorized
diagnostic studies. Additionally, it authorized a posterior cervical decompressive laminectomy
and anterior fusion from C3-7 on May 15, 2000. On July 12, 2001 OWCP accepted appellant’s
claim for major depression, single episode, resolved on June 27, 2001 and on December 28, 2001
it accepted his claim for recurrence of depression on December 28, 2001. On March 26, 2002
OWCP combined appellant’s files under File No. xxxxxx786.3 It also later accepted thoracic or
lumbosacral neuritis or radiculitis. Appellant received compensation benefits.
In a September 1, 2011 report, Dr. Diane Braza, a Board-certified physiatrist, noted that
appellant needed an updated disability assessment. She examined him and provided findings.
Dr. Braza advised that appellant had changes due to his laminectomies at C3 through C7. She
noted a posterior bony fusion from C3 through T2 with metallic instrumentation from C6 to T2
and no complication. Dr. Braza opined that, given his additional cervicothoracic spine surgery,
with restricted cervical mobility and chronic neck pain, she assessed 30 percent whole person
impairment using combined values from the A.M.A., Guides. She opined that appellant had 19
percent whole person cervical impairment plus 14 percent whole person thoracic impairment.
By letter dated November 16, 2011, OWCP advised appellant that schedule awards for
permanent impairment may not be paid for the spine. He was advised that he should provide a
copy of the letter to his physician and if there was a work-related spinal nerve injury which had
caused permanent impairment to the upper or lower extremities, the approach to the evaluation
of spinal nerve impairment (such as radiculopathy affecting the extremities) was consistent with
the A.M.A., Guides and was discussed in the July/August issue of The Guides Newsletter.4
On November 19, 2011 and May 27, 2012 appellant filed claims for an increased
schedule award. In a December 20, 2011 work capacity evaluation, Dr. Braza advised that
appellant was totally disabled and unable to work. She indicated that he had reached maximum
medical improvement.

1

Docket No. 05-456 (issued September 12, 2005).

2

Docket No. 007-1034 (issued December 18, 2007).

3

File No. xxxxxx786, File No. xxxxxx585 and File No. xxxxxx318.

4

Rating Spinal Nerve Extremity Impairment using the sixth edition, The Guides Newsletter (A.M.A., Chicago,
IL), July/August 2009.

2

In a January 11, 2012 report, Dr. Trinh G. Truong, a Board-certified physiatrist, noted
appellant’s history of injury and treatment and examined appellant. He diagnosed degenerative
L3-4 and L4-5 spondylolisthesis with bilateral radiculopathy and noted it was a CDX class 4
pursuant to Table 17-4 of the A.M.A., Guides.5 Dr. Truong noted increased pain with normal
activities and explained that his functional history adjustment was a grade 2 modifier. He
advised that physical examination adjustment warranted a grade 1 for diminished light touch and
4/5 strength in quadriceps and hip flexors. Dr. Truong indicated that the clinical studies
adjustment was grade 2 for segmental instability. He utilized the net adjustment formula and
opined that appellant had a class 4 grade A which was equal to “25 percent impairment rating for
permanent and stationary leg pain total (25 percent total for both legs).”
On February 15, 2012 OWCP determined that appellant had no wage-earning capacity or
reemployment potential for the indefinite future.
In a letter dated May 22, 2012, appellant’s representative noted that while a schedule
award was not payable for the back, the back could be considered to the extent that it resulted in
a permanent impairment of the extremities. He noted that appellant had a prior award for his
cervical injury and how it affected his upper extremities. Appellant’s representative advised that
appellant also had an accepted lumbar condition and provided the report from Dr. Truong.
In a May 28, 2012 report, OWCP’s medical adviser noted that appellant’s case was
reviewed for the purpose of determining bilateral upper and lower extremity impairment due to
the accepted condition of cervical radiculopathy. He noted that no lower extremity conditions
were accepted as work related. The medical adviser also indicated that appellant had already
received awards in the amount of 29 percent to right upper extremity and 27 percent to the left
upper extremity for a herniated disc.6 He reviewed Dr. Truong’s January 11, 2012 report, in
which he indicated that appellant had complaints of low back pain radiating into the posterior
thighs and legs and advised that the pain was associated with numbness in the lateral aspect of
the legs as well as intermittent buckling of the knees. The medical adviser noted that physical
examination demonstrated loss of lumbar spine range of motion and the straight leg raise and
femoral stretch tests were negative bilaterally. He also noted that Dr. Truong conducted manual
muscle testing which revealed slight loss of strength in the quadriceps bilaterally. The medical
adviser found that x-rays of the lumbar spine revealed degenerative changes and disc space
narrowing at L3-4 and L4-5 and that a magnetic resonance imaging (MRI) scan of the lumbar
spine revealed central canal stenosis at L3-4 and L4-5. He noted that Dr. Truong recommended
25 percent impairment based upon Table 17-4 of the A.M.A., Guides. However, the medical
adviser explained that Dr. Truong’s rating should be disregarded as Table 17-4 addressed whole
person impairments, which were not recognized by OWCP. He further explained that
appellant’s claim was not accepted for any lumbar condition. The medical adviser opined that
there was no basis for any additional impairment to the upper or lower extremities.

5

Table 17-4 rates whole person impairment. A.M.A., Guides 570-74.

6

The record indicates that the previous schedule awards were paid with regard to C7-8 radiculopathy, cervical
spondylosis, a left elbow strain and right ulnar neuropathy.

3

In a June 5, 2012 telephone call memorandum, OWCP noted that appellant’s
representative called to inquire whether a lumbar condition had been accepted. However,
OWCP advised the representative that a lumbar condition had not been accepted.
By decision dated June 6, 2012, OWCP found that appellant was not entitled to receive a
greater schedule award. It also noted that it had not accepted a lumbar condition.
In a letter dated October 11, 2012, appellant’s representative advised OWCP that on
November 17, 2010, OWCP expanded the claim to include lumbosacral neuritis/radiculitis. She
argued that “this condition was for the lumbar spine, not the thoracic spine. Appellant’s
representative noted that there was nothing in the record prior to OWCP’s expansion letter that
would indicate that a thoracic condition even existed. She explained that the medical record
indicated that a lumbar condition existed. Appellant’s representative requested that the statement
of accepted facts be amended to include Dr. Truong’s impairment rating to the lower extremities.
On October 22, 2012 OWCP received a letter from appellant’s representative requesting
reconsideration. She argued that appellant’s back condition should be accepted. Appellant’s
representative alleged that the medical evidence supported that appellant developed a workrelated lumbar condition.
In a September 7, 2012 report, Dr. Nanjapareddy Muni Reddy, Board-certified in
physiatry, noted that appellant complained of chronic back pain for the past 17 years. He
indicated that it started while working at the employing establishment as a clerk, which required
working at a machine, standing up and lifting mailbags that weighed 20 to 50 pounds.
Additionally, the duties included bending, lifting and carrying the mailbags. Dr. Reddy advised
that appellant developed back pain after working at the employing establishment for 15 years.
He advised that appellant received treatment for his neck pain, including the C3-7 decompression
and fusion for cervical myelopathy and radiculopathy. Dr. Reddy advised that he previously
received imaging of his lower back pain in 2010 and therapy, which helped. He diagnosed
chronic lumbar strain with probable cumulative trauma and accelerated degenerative joint
disease (DJD), long-term opiate use for chronic pain, no radiculopathy, cervical decompression
and fusion for cumulative trauma and accelerated degeneration probable right greater
trochanteric bursitis (GTB), unrelated to low back pain and depression.
By decision dated January 31, 2013, OWCP denied modification of its prior decision. It
found that the medical evidence was insufficient to establish an additional back condition due to
the original injury of August 16, 1995.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

4

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.10
For decisions issued after May 1, 2009, the sixth edition will be used.11
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).12 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.14 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.15
ANALYSIS -- ISSUE 1
In support of his claim for an additional schedule award, appellant’s representative
submitted two reports. In a September 1, 2011 report, Dr. Braza opined that appellant had 30
percent whole person impairment. The Board notes that FECA, however, does not provide a
schedule award based on whole person impairments.16 Thus, this report is of limited probative
value.
Appellant also provided a January 11, 2012 report, from Dr. Truong, who diagnosed
degenerative L3-4 and L4-5 spondylolisthesis with bilateral radiculopathy, and opined that
appellant had a 25 percent impairment rating for permanent and stationary leg pain. However,
this is not an accepted condition and Table 17-4 of the A.M.A., Guides, under which he rated
impairment, provides for whole person impairment. As noted, whole person impairment cannot
be awarded under FECA.17 In a May 28, 2012 report, OWCP’S medical adviser also asserted
9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

11

FECA Bulletin No. 09-03 (issued March 15, 2009).

12

A.M.A., Guides 389-412; see J.B., Docket No. 09-2191 (issued May 14, 2010).

13

A.M.A., Guides 411.

14

L.J., Docket No. 10-1263 (issued March 3, 2011).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
16

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither FECA, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
17

See id.

5

that the additional evidence provided by appellant provided no basis on which to issue any
additional schedule award. As the reports from appellant’s physicians did not explain how any
additional impairment to a scheduled body member was calculated pursuant to the A.M.A.,
Guides, they are of limited probative value and insufficient to establish entitlement to an
additional schedule award.18 There is no medical evidence in the record establishing that
appellant had more than the 29 percent impairment of the right and 27 percent impairment of the
left upper extremities for which he received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.19 Causal relationship is a medical issue and the medical issue
generally required to establish causal relationship is rationalized medical opinion evidence.20
Rationalized medical opinion evidence is medical evidence, which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors.21 The opinion of the physician
must be based on a complete factual and medical background of the claimant22 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.23
ANALYSIS -- ISSUE 2
OWCP accepted appellant’s claim for right ulnar neuropathy and authorized right ulnar
nerve transposition surgery. It also accepted appellant’s claim for bilateral C7, C8 cervical
radiculopathy with surgery and aggravation of cervical spondylosis. OWCP authorized a redo
ulnar nerve transposition on May 4, 1998 on the right arm. On November 3, 1998 it accepted
appellant’s claim for a left elbow strain and authorized diagnostic studies. Additionally, OWCP
authorized a posterior cervical decompressive laminectomy and anterior fusion from C3-7. It
also accepted thoracic or lumbosacral neuritis or radiculitis. Appellant’s representative requested

18

See Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative
value in determining the extent of a claimant’s impairment).
19

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

20

John J. Montoya, 54 ECAB 306 (2003).

21

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

22

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

23

Judy C. Rogers, 54 ECAB 693 (2003).

6

that OWCP expand her claim for an additional back condition, but it was denied. The Board
finds that OWCP properly denied appellant’s claim for an additional work-related back injury.
The evidence submitted by appellant included a September 7, 2012 report from
Dr. Reddy, who noted that appellant complained of chronic back pain for the past 17 years.
Dr. Reddy noted that appellant’s work duties as a clerk, required working at a machine, standing
up and lifting and carrying mailbags that weighed 20 to 50 pounds. He advised that appellant
developed back pain after working at the employing establishment for 15 years. Dr. Reddy
diagnosed chronic lumbar strain with probable cumulative trauma and accelerated DJD,
long-term opiate use for chronic pain, no radiculopathy, cervical decompression and fusion for
cumulative trauma and accelerated degeneration probable right GTB, unrelated to low back pain
and depression.
The Board notes that, although she diagnosed a lumbar strain, she did not explain how
this diagnosis related to the accepted 1995 injury. The evidence generally required to establish
causal relationship is rationalized medical opinion evidence. The claimant must submit a
rationalized medical opinion that supports a causal connection between her current condition and
the employment injury. The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the accepted work injury.24 Here,
Dr. Reddy has not explained the reasons why particular work factors or accepted conditions
caused or aggravated a particular diagnosed medical condition. Other medical evidence
submitted by appellant did not explain why any additional back condition is causally related to
the accepted work injury. Thus, appellant did not meet his burden of proof to establish a back
condition causally related to the accepted injury.
On appeal, appellant’s representative argued that Dr. Reddy’s September 7, 2012 report
supported that the low back condition was work related. She also argued that there was no
contradictory evidence, and it was unclear why OWCP did not further develop the record with
regard to the back condition. However, as found above, the medical evidence did not provide
sufficient support to establish an additional work-related back condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained more than 29 percent permanent impairment of his right upper extremity and 27
percent permanent impairment of his left upper extremity, for which he received schedule
awards. The Board further finds that appellant has not established a back condition as a
consequence of the accepted injuries.

24

Joan R. Donovan, 54 ECAB 615 (2003); Tomas Martinez, 54 ECAB 623 (2003).

7

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


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

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0229
Issued: June 22, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 9, 2016 appellant, through counsel, filed a timely appeal from a June 30,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than nine
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On September 14, 2009 appellant, then a 50-year-old letter carrier filed a traumatic injury
claim (Form CA-1) alleging that, on September 9, 2008, he twisted his knee when he ascended
steps while delivering mail in the performance of duty. Following the injury, he began working
with restrictions. Appellant returned to full-duty work on October 2, 2009, but due to increased
pain, returned to working with restrictions on October 5, 2009.
OWCP accepted appellant’s claim for a tear of the posterior horn of the medial meniscus,
right knee and partial rupture of a Baker’s cyst, right knee. On December 9, 2009 appellant
underwent medial meniscus repair, performed by his treating physician, Dr. Thomas Corcoran, a
Board-certified orthopedic surgeon. He then returned to light-duty work on January 23, 2010.
Appellant received wage-loss compensation benefits.
On June 16, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letters dated July 17 and 20, 2015, counsel noted that he had enclosed medical evidence
from Dr. David Weiss, an osteopath Board-certified in sports medicine and nonsurgical
orthopedics, dated May 15, 2014. He also indicated that Dr. Weiss had provided an updated report
dated July 3, 2015, in which he provided a permanent impairment rating of 24 percent to the right
lower extremity utilizing x-rays performed on the right knee on April 27, 2015.
The April 27, 2015 x-ray reports, read by Dr. Sheldon Karasick, a Board-certified
radiologist, revealed minimal narrowing of the joint space on the weight-bearing side and
additional degenerative changes were present involving the patellofemoral articulation.
Dr. Karasick diagnosed minimal-to-moderate degenerative joint disease involving the right knee.
In a May 15, 2014 report, Dr. Weiss noted that appellant’s history included that, on
October 15, 2009, he was diagnosed with a right knee effusion and right knee medial meniscus
tear, from which synovial fluid was aspirated from the right knee. He advised that a magnetic
resonance imaging (MRI) scan of the right knee performed on October 20, 2009, revealed
tricompartmental osteoarthritic changes in the medial compartment and patellofemoral horn joint,
extruded medial meniscus with a tear of the posterior horn, and small joint effusion and Baker’s
cyst. Dr. Weiss also noted that the December 9, 2009 arthroscopy of the right knee, partial medial
meniscectomy, chondroplasty of the patella, medial femoral condyle, and lateral tibial plateau on
December 9, 2009 as performed by Dr. Corcoran. He examined appellant and noted that he
ambulated with a slight right lower extremity limp and explained that calcaneal and equinus gait
are carried through within normal limits. Dr. Weiss found that the right knee examination revealed
well-healed portal arthroscopy scars with no effusion. He determined that range of motion
revealed flexion extension of 1-130/140 degrees. Dr. Weiss found patellofemoral compression
that produced crepitus, but no retro patellar pain and nontenderness over the medial joint line and

2

medial femoral condyle. He also indicated that the knee was stable to both valgus and varus stress
testing. Dr. Weiss also found a Lachman and drawer sign that was negative along with the Apley
grind test. He advised that the quadriceps circumference as at 10 millimeters above the patella
measure and 47 centimeters on the right and 49.5 centimeters on the left. Dr. Weiss diagnosed
post-traumatic internal derangement to the right knee with a medial meniscus tear, post-traumatic
chondromalacia of the patellofemoral joint, aggravation of preexisting age-related degenerative
joint disease of the right knee, status post arthroscopic surgery with partial medial meniscectomy,
and status post chondroplasty of the patellofemoral joint of the right knee. He indicated that
appellant had subjective complaints of right knee pain and stiffness, which was daily and constant.
Dr. Weiss also noted that changes in the weather would exacerbate the pain. He further related
that appellant’s activities of daily living were restricted.
Dr. Weiss referenced the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (A.M.A., Guides)3 and referred to Table 16-3, page 511 of
the A.M.A., Guides to find that appellant fell into a class 1 for right primary knee joint arthritis, or
seven percent. He referred to Table 16-6, page 516, for functional history and explained that
appellant fell into category 2. Dr. Weiss referred to Table 16-7, page 517 for grade modifier
physical examination and found that appellant fell into category 2. He utilized the net adjustment
formula and found a net adjustment of 2. Dr. Weiss determined that appellant had nine percent
right lower extremity permanent impairment. He advised that appellant had reached maximum
medical improvement (MMI) on May 15, 2014.
By letter dated July 17, 2015, counsel for appellant provided an updated report from
Dr. Weiss dated July 3, 2015. He explained that Dr. Weiss utilized updated x-rays performed on
appellant’s right knee on April 27, 2015.
In the July 3, 2015 update, Dr. Weiss utilized the A.M.A., Guides. He advised that x-rays
of the right knee performed on April 27, 2014 revealed medial joint space of two millimeters and
lateral joint space of four millimeters. Dr. Weiss referred to Table 16-3, page 511 of the A.M.A.,
Guides and found that appellant fell into a class 2 for right primary knee joint arthritis, or 20
percent. He referred to Table 16-6, page 516, for functional history and explained that appellant
fell into category 2. Dr. Weiss referred to Table 16-7, page 517 for grade modifier physical
examination and found that appellant fell into category 2. He utilized the net adjustment formula
and found a net adjustment of 2. Dr. Weiss determined that appellant had 24 percent right lower
extremity permanent impairment. He again confirmed that appellant reached MMI on
May 15, 2014.
In an August 18, 2015 report, Dr. Corcoran examined appellant and found synovitis along
with medial joint line tenderness and range of motion from 0 to 95 degrees. He diagnosed right
knee degenerative joint disease and right knee synovitis.
On October 8, 2015 OWCP requested that a district medical adviser (DMA) provide an
impairment rating.

3

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

3

In an October 14, 2015 report, OWCP’s DMA noted appellant’s history of injury and
treatment. He reviewed the reports from Dr. Weiss. The DMA explained that appellant underwent
a partial medial meniscectomy and had moderately advanced osteoarthritis, which meant that the
calculation would be made on the basis of the meniscus alone. However, because there was
preexisting osteoarthritis, under the A.M.A., Guides it was required that the calculation be made
utilizing the arthritis formula, “basically stating that calculation is made on the entire extremity ‘as
you find it.’” The DMA referred to Table 16-3, page 511 of the A.M.A., Guides, Knee Regional
Grid --Lower Extremity Impairment, class 1 -- right knee joint arthritis, default value, class 1,
grade C = seven percent impairment as a three-millimeter cartilage interval, full-thickness articular
cartilage defect or ununited osteochondral fracture. He referenced the adjustment grid and grade
modifiers, Table 16-3: Knee Regional Grid -- Lower Extremity Impairment, class 1 -- right knee
joint arthritis, default value class 1, grade C = seven percent impairment for a three-centimeter
cartilage interval, full-thickness articular cartilage defect or ununited osteochondral fracture. The
DMA indicated that based upon the adjustment grid and grade modifiers, Table 16-3, primary knee
osteoarthritis, functional history, grade modifier 2, physical examination adjustment, Table 16-7,
grade modifier 2; clinical studies adjustment; not applicable. He advised that utilizing the net
adjustment formula, the net adjustment was plus 2; which increased the schedule award from grade
C to E for nine percent right lower extremity permanent impairment. The DMA indicated that
date of MMI was May 15, 2014.
By decision dated December 15, 2015, OWCP granted appellant a schedule award for nine
percent permanent impairment of the right lower extremity. The decision noted that the July 3,
2015 report of Dr. Weiss was considered, but it did not provide sufficient rationale to support a
higher permanent impairment rating. The period of the award ran from May 15 to November 12,
2014, for a total of 25.92 weeks of compensation.
By letter dated December 21, 2015, counsel for appellant requested a hearing, which was
held before an OWCP hearing representative on April 11, 2016.
In a February 1, 2016 report, Dr. Weiss explained that he had reviewed the DMA’s
October 14, 2015 report and the radiology report of x-rays of the right knee dated April 27, 2015.
He noted that the x-ray report of April 27, 2015 revealed minimal-to-moderate degenerative joint
disease involving the right knee. Dr. Weiss explained that there were no joint space measurements
applied. He advised that according to the joint space measurements performed on the x-ray of the
right knee dated April 27, 2015, he would agree with the radiologist that this was a class 2, which
was a moderate impairment for primary knee joint arthritis. Dr. Weiss reiterated that his
calculations remained as noted.
By decision dated June 30, 2016, OWCP’s hearing representative affirmed the
December 15, 2015 decision.

4

LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued after
May 1, 2009, the sixth edition will be used.7
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).8
The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
OWCP’s procedures provide that, to support a schedule award, the file must contain
competent medical evidence which shows that the impairment has reached a permanent and fixed
state and indicates the date on which this occurred (date of MMI), describes the impairment in
sufficient detail so that it can be visualized on review, and computes the percentage of impairment
in accordance with the A.M.A., Guides.10
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for a tear of the posterior horn of the
medial meniscus, right knee and partial rupture of a Baker’s cyst, right knee. It also authorized a
medial meniscus repair on December 9, 2009. Appellant filed a claim for a schedule award on
June 16, 2015. On December 15, 2015 OWCP granted a schedule award for nine percent
permanent impairment of the right lower extremity.
The Board notes that both Dr. Weiss and the DMA were initially in agreement with regard
to appellant being entitled to a schedule award of nine percent to the right lower extremity. The
Board notes that in his May 15, 2014 report, Dr. Weiss noted appellant’s history, examined
appellant, and provided findings. Dr. Weiss referenced the A.M.A., Guides and referred to
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
8

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

9

A.M.A., Guides 521.

10

Supra note 8 at Chapter 2.808.5 (March 2017).

5

Table 16-3, page 511 and found that appellant fell into a class 1 for right primary knee joint
arthritis, or seven percent. He referred to Table 16-6, page 516, for functional history and
explained that appellant fell into category 2. Dr. Weiss referred to Table 16-7, page 517 for the
grade modifier for physical examination and found that appellant fell into category 2. He utilized
the net adjustment formula and found a net adjustment of 2. Dr. Weiss determined that appellant
had nine percent right lower extremity impairment. He advised that appellant reached MMI on
May 15, 2014.
The DMA provided a similar report dated October 14, 2015. He explained that appellant
underwent a partial medial meniscectomy and had moderately advanced osteoarthritis and
explained that the calculation would be made on the basis of the meniscus alone. However,
because there was preexisting osteoarthritis and under the A.M.A., Guides it was required that the
calculation be made utilizing the arthritis formula as the calculation was “made on the entire
extremity ‘as you find it.’”11 The DMA also referred to Table 16-3, page 511 of the A.M.A.,
Guides, Knee Regional Grid -- Lower Extremity Impairment, class 1 -- right knee joint arthritis,
default value, class 1, grade C = seven percent impairment. He explained that appellant fell into
this category as a three-millimeter cartilage interval, full-thickness articular cartilage defect or
ununited osteochondral fracture. The DMA also agreed with Dr. Weiss that, based upon the
adjustment grid and grade modifiers, Table 16-3, primary knee osteoarthritis, functional history,
grade modifier 2, physical examination adjustment, Table 16-7, grade modifier 2; clinical studies
adjustment; not applicable. He advised that utilizing the net adjustment formula, the net
adjustment was plus 2; which increased the schedule award from grade C to E for nine percent
right lower extremity impairment. The DMA indicated that date of MMI was May 15, 2014. The
Board finds that the DMA explained that the rating was proper pursuant to the A.M.A., Guides.
Dr. Weiss provided a July 3, 2015 updated report advising that x-rays of the right knee
performed on April 27, 2015 revealed medial joint space of two millimeters and lateral joint space
of four millimeters. However, it is unclear how he arrived at this finding as there are no
measurements to show that the medial joint space was smaller. The Board notes that x-rays
indicated minimal narrowing of the joint space on the weight-bearing side and were reviewed by
the DMA. Furthermore, Dr. Corcoran found synovitis and medial joint line tenderness with range
of motion from 0 to 95 degrees. Likewise, in his February 1, 2016 report, Dr. Weiss explained
that he had reviewed the DMA’s October 14, 2015 report and the radiology report of x-rays of the
right knee dated April 27, 2015 and advised that the x-ray report revealed minimal-to-moderate
degenerative joint disease involving the right knee. Dr. Weiss explained that there were no joint
space measurements applied. He then noted that according to the joint space measurements
performed on the x-ray of the right knee dated April 27, 2015, he would agree with the radiologist
that this was a class 2, which was a moderate impairment for primary knee joint arthritis.
Dr. Weiss reiterated that his calculations remained as noted. As set forth above, the Board has
found that the report of Dr. Weiss is insufficiently rationalized as it is unclear how he arrived at
this finding as there are no measurements to show that the medial joint space was smaller. Thus,
the evidence is insufficient to establish a greater permanent impairment rating.

11
Preexisting impairments are included in determining the amount of a schedule award for a member of the body
that sustained an employment-related impairment. See Mike E. Reid, 51 ECAB 543 (2000).

6

On appeal counsel argues that OWCP’s report was insufficient to carry the weight. He
also argues alternatively, that a conflict in medical opinion was created. However, as found above,
the evidence of record is insufficient to establish that appellant has more than nine percent
permanent impairment of his left lower extremity, for which he previously received a schedule
award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than
nine percent permanent impairment of his left lower extremity, for which he previously received
a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 22, 2018
Washington, DC

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

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

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

7