United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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

Docket No. 17-0721
Issued: August 16, 2018

Case Submitted on the Record

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

JURISDICTION
On February 13, 2017 appellant, through counsel, filed a timely appeal from a
November 28, 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 met his burden of proof to establish greater than one percent
permanent impairment of his right lower extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 12, 2005 appellant, then a 35-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that he sustained a herniated disc at L4-5 with annular tear and
narrowing of the left L4 form an due to repetitive pushing, pulling, lifting, bending, and twisting
while loading and unloading trucks at work. He noted that he first became aware of his claimed
condition and its relation to his federal employment on March 9, 2004. OWCP accepted the claim
for lumbar disc displacement.4
On April 11, 2006 appellant underwent a three-level lumbar fusion from L4 to S1, with
new hardware implanted. On July 25, 2014 OWCP expanded the acceptance of the claim to
include nervous system complication from a surgically-implanted device.
Appellant returned to modified work, effective August 9, 2006, for four hours a day with
restrictions of only occasionally lifting no more than 20 pounds, frequent lifting of up to five
pounds, and a sit/stand option with the ability to operate foot controls. He returned to work a fourhour shift on August 10 and 11, 2006 and afterwards stopped working. Appellant returned to work
on November 8, 2006 with restrictions of no lifting over 25 pounds, avoid repetitive bending/
lifting/twisting with a sit/stand option. He was separated from the employing establishment on
August 23, 2008. A spinal cord stimulator was implanted on April 18, 2009, with revisions on
June 12, 2009, June 8, 2012, and October 10, 2014.
On June 12, 2015 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated June 25, 2015, OWCP advised appellant of the information
needed to establish his claim for a schedule award. It noted that appellant’s case was accepted for:
displacement of lumbar intervertebral disc without myelopathy, nervous system complication from
a surgically-implanted central nervous system (CNS) device, thoracic or lumbosacral neuritis or
radiculitis not otherwise specified. OWCP explained that appellant should submit a narrative
3

Docket No. 03-2250 (issued January 22, 2004).

4

OWCP assigned the present claim File No. xxxxxx254. Appellant has a prior occupational disease claim (Form
CA-2) filed on July 29, 1998, alleging that he sustained low back pain and numbness radiating down his right leg.
OWCP accepted that claim, assigned File No. xxxxxx036, for disc herniation at L5-S1. Appellant underwent lumbar
hemilamenctomy at L5-S1 on May 17, 2001. He underwent a second surgery at the L4-5 level on April 11, 2002,
unrelated to his federal employment. On November 15, 2005 OWCP administratively combined File Nos. xxxxxx254
and xxxxxx036, with File No. xxxxxx254 serving as the master file.

2

report and opinion on impairment from his physician based upon a recent examination. It
explained that the physician should provide an opinion with regard to whether appellant’s
condition was fixed or stable and, if so, the date of maximum medical improvement (MMI).
OWCP explained that appellant’s physician should utilize the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).5 It
also indicated that the rating should be expressed in terms of percentage of loss of use of the
affected members or functions of the body and not the body as a whole, except for impairment to
the lungs. OWCP also explained that if there was more than one method of evaluation in the
A.M.A., Guides, (e.g., if range of motion (ROM) was used to determine the rating, where the sixth
edition recommended a diagnosis-based impairment (DBI), the physician should provide an
explanation for the calculation method chosen. Furthermore, it advised that the QuickDASH
(Disabilities of the Arm, Shoulder, and Hand) form should be discussed, if utilized. OWCP further
explained that, if the treating physician was unwilling or unable to provide the required report,
appellant should inform it in writing and if the case met the essential elements for a schedule award
claim (work-related permanent condition and a schedule member) and the medical evidence of
record was not sufficient to determine permanent impairment, then he would be scheduled to be
seen by a second opinion physician. It afforded appellant 30 days to submit the requested evidence.
In a letter dated November 16, 2014, counsel provided additional medical evidence.
In a November 3, 2014 report, Dr. Daniel Mankoff, Board-certified in anesthesiology and
a pain management physician, explained that, despite long-term treatment, appellant remained
symptomatic. He noted that appellant recently underwent placement of a spinal cord stimulator
and had some improvement, however, he remained symptomatic. Dr. Mankoff opined that he
believed that appellant reached MMI. He advised that appellant had a chronic condition and as
such, he would most likely need some continuing care in the future. Regarding his
electromyography (EMG) study, Dr. Mankoff explained that it revealed chronic L5 radiculopathy.
In a July 22, 2015 report, Dr. Mankoff saw appellant, and indicated that he had not been
examined since last December. He determined that appellant’s overall function had improved,
with no changes in bowel or bladder functions. Dr. Mankoff noted that appellant reported
increased left leg weakness, and his examination found decreased lordosis, with worsening pain
on flexion and extension. Facet signs were negative bilaterally and the sacroiliac joints were
nonprovocative bilaterally. No trigger points were identified in the bilateral paralumbar
musculature. No edema was seen, and muscle tone was normal. Gait was mildly antalgic, deep
tendon reflexes were diminished, and sensation was normal in the bilateral lower extremities.
Straight leg raising was negative bilaterally. Dr. Mankoff determined that heel and toe standing
on the left was weak.
By letter dated September 4, 2015, counsel submitted a September 2, 2015 impairment
rating from Dr. Catherine Watkins Campbell, a Board-certified family practitioner.

5

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

3

In a September 2, 2015 report, Dr. Watkins Campbell noted appellant’s history of injury
and treatment.6 She determined that appellant reached MMI on November 3, 2014, the date of
Dr. Mankoff’s November 3, 2014 report. Dr. Watkins Campbell noted that the short form McGill
pain questionnaire which was designed to assess appellant’s emotional and psychological response
to their pain, revealed moderate tendencies towards symptom magnification. She assigned a
functional history grade modifier of 1 based upon appellant’s demonstration of a mildly antalgic
gait without the use of assistive devices. Dr. Watkins Campbell provided physical examination
findings which included normal heel and toe walking and full squat demonstrated. A mildly
antalgic gait was noted, with a normal motor examination in both legs and intact reflexes.
Dr. Watkins Campbell found a minimal sensory deficit in the lateral right calf and thigh and spasm
in the right gluteus. ROM and circumferences were recorded. Straight leg raising was positive on
the right leg but negative on the left leg. Dr. Watkins Campbell selected the physical examination
grade modifier as grade 3, based upon a severe sensory deficit, and referenced A.M.A., Guides,
Table 16-11.7 She found that the physical examination findings with decreased sensation to
sharp/dull pain equated to a grade 3 severity deficit in the right L5 nerve root. Dr. Watkins
Campbell determined that there was no atrophy or motor deficit found and reflexes were normal.
She explained that the primary rating was thoracic or lumbosacral neuritis or radiculitis of the right
L5 nerve root, and cited the July/August 2009 The Guides Newsletter. Dr. Watkins Campbell
determined that the grade modifier for Functional History (GMFH) was equal to 1 (1-1=0). She
indicated that the grade modifier for Clinical Studies (GMCS) was not applicable as the EMG and
nerve conduction velocity (NCV) studies were over nine months post-injury. Dr. Watkins
Campbell determined that the sensory deficit was severe and qualified for a grade C or six percent
right lower extremity impairment. She determined that there was no motor impairment rating
based upon the examination findings. Dr. Watkins Campbell provided a worksheet documenting
her calculations for the sensory loss of the L5 right nerve root, and assigned no changes to her
rating after application of the grade modifiers.
Dr. Watkins Campbell’s report was forwarded to the district medical adviser (DMA) for
review on October 14, 2015.
In an October 19, 2015 report, the DMA, Dr. Morley Slutsky, Board-certified in
occupational medicine, indicated that he had reviewed Dr. Watkins Campbell’s report. He
explained that the date of MMI was established as the date of her examination. Dr. Slutsky noted
that the claim was accepted for a disc displacement at L4-5, and that numerous surgeries at that
level and L3-4 and L5-S1 followed. Regarding the right L5 lumbar nerve root, he referred to
A.M.A., Guides Section 16-4a clinical assessment and grading deficits and Table 16-11.8
Dr. Slutsky noted the criteria and explained that, if nerve conduction testing was done, there should
be at least major sensory nerve conduction block if physical examination was consistent with
sensory severity grade 2 and there should be axon loss or no recordable sensory nerve action
potential (snap) if physical examination was consistent with sensory grade severity. He explained
that clinically, appellant demonstrated normal to decreased sensation in the right L5 distribution.
6
Dr. Watkins Campbell’s history of injury also included that appellant was loading a truck when he slipped on a
piece of paper that was on the floor of the truck resulting in a fall. However, she did not indicate the date of the fall.
7

A.M.A., Guides 533.

8

Id. at 532-533.

4

Dr. Slutsky assigned a value of grade 1 for sensory severity and explained that his assignment was
due to significant variance in the findings. He also noted that Dr. Watkins Campbell assigned
grade 3. Dr. Slutsky concurred with the net adjustment as indicated by Dr. Watkins Campbell.
However, he explained that he arrived at one percent impairment as opposed to the six percent of
Dr. Watkins Campbell. Dr. Slutsky noted that no right or left motor or sensory deficits were
identified relative to the allowed condition.
Furthermore, Dr. Slutsky noted that appellant’s EMG scan and NCV testing from
September 16, 2014 demonstrated electrodiagnostic evidence of an old L5 radiculopathy on the
right, with evidence of old, minimal axonal loss and no electrodiagnostic evidence of a left
lumbosacral plexopathy or mononeuropathy. He explained that on December 2, 2014 a
nonantalgic gait was noted, however, appellant’s June 24, 2015 sensory examination was normal
in both legs. Dr. Slutsky referred to Table 16-119 of the A.M.A., Guides, for sensory and motor
severity and related the criteria for assigning a grade to sensory losses. He explained that NCV
testing should have identified a total conduction block if the physical examination was consistent
with sensory severity, grade 2 severity. Dr. Slutsky explained that appellant had normal to
decreased sensation, and therefore the appropriate value for sensory severity would be grade 1,
due to the significant variance. He also considered any potential motor loss in the affected nerve
branch, arriving at the same rating as Dr. Watkins Campbell, zero impairment. Regarding a
sensory class, Dr. Slutsky referred to the July/August 2009 The Guides Newsletter, Table 2, pages
5 to 6 and explained a motor severity placed appellant into class 1 with default grade C equal to 1
percent left extremity impairment. Regarding motor deficit grade, he explained that manual
muscle testing involved groups of muscles and depended upon the patient’s cooperation and was
subject to his or her unconscious control. Dr. Slutsky explained that to be valid, the results should
be concordant with other observable pathologic signs and medical evidence, with specifications
for measurements and consistency. He concluded that appellant had no significant lower extremity
motor loss and found that normal motor testing placed him into class 1, with the final lower
extremity equal to zero percent. Regarding a functional history grade modifier, Dr. Slutsky
concurred with the rating physician and confirmed that appellant continued with symptoms of a
mild antalgic gait not requiring the use of a single gait or external orthotic device for stabilization.
He also noted that there was no documentation of a positive Trendelenburg and appellant was not
eligible for a grade modifier greater than 1. Dr. Slutsky referred to Table 16-710 for physical
examination adjustment and explained that that the physical examination modifier was not relevant
as the neurologic findings were used to establish the impairment range. He referred to Table 16811 for clinical studies and concurred with the rating physician. Dr. Slutsky explained that the
EMG/NCV testing should not be used as it was more than nine months old. He explained that the
grade modifier would be 1 and would not affect the final net adjustment. Dr. Slutsky determined
that the rating for sensory impairment was equal to 1 and motor impairment was equal to 0. He

9

Id.

10

Id. at 517.

11

Id. at 519.

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referred to the Combined Values Chart12 and determined that appellant was entitled to one percent
impairment of the right lower extremity.
By letter dated October 22, 2015, OWCP requested that Dr. Watkins Campbell provide an
addendum to address Dr. Slutsky’s differing rating, but no response was received.
By decision dated January 20, 2016, OWCP granted appellant a schedule award for one
percent permanent impairment of his right upper extremity. The award ran for the period July 14
to August 4, 2015, for a total of 3.12 weeks of compensation.
By letter dated January 28, 2016, appellant requested a telephonic hearing, which was held
before an OWCP hearing representative on September 13, 2016.
During the hearing, counsel noted that OWCP’s decision indicated that the award was paid
to the right upper extremity as opposed to the right lower extremity. He argued that the rating was
based on sensory loss, with grading ranging between one and three resulting in the difference in
final ratings. Counsel noted that this can be determined by the pinprick test. He argued that the
DMA’s opinion was diminished because he questioned the consistency of the examination.
Counsel argued that her client had several procedures inserting hardware and revising it, and she
did not feel he would exaggerate his complaints. He asked that OWCP consider whether
Dr. Watkins Campbell’s rating of grade 3 was appropriate.
The record remained open for 30 days. However, no comments were received from
appellant or the employing establishment.
By decision dated November 28, 2016, OWCP’s hearing representative affirmed the
January 20, 2016 schedule award decision, as modified. He found that, while OWCP correctly
identified the percentage of impairment and the rate of pay, it incorrectly identified the rated
member as the right upper extremity, when it was in fact the right lower extremity, as documented
both in the award letter and the payment worksheet. The hearing representative explained that this
error created a small overpayment of compensation as the award for 1 percent permanent
impairment of an arm was 3.12 weeks, whereas the award for 1 percent of a leg was only 2.88
weeks. He noted that counsel argued that there was a change in grade value of the loss rather than
the incorrectly identified limb the hearing representative affirmed by January 20, 2016 decision,
with respect to the percentage of impairment, but modified the decision to correctly identify the
rated member as the right lower extremity, with entitlement to 2.88 weeks of compensation.
LEGAL PRECEDENT
The schedule award provisions of FECA13 and its implementing regulations14 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
12

Id. at 604.

13

See 5 U.S.C. § 8101 et seq.

14

20 C.F.R. § 10.404.

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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 to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.15 The claimant has the burden of proving that the condition for which
a schedule award is sought is causally related to his or her employment.16
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.17 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.18 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment.19 It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. The FECA-approved methodology is premised on evidence of radiculopathy affecting
the upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated in the Federal (FECA) Procedure Manual.20
In addressing lower extremity impairment due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment Class of Diagnosis (CDX),
which is then adjusted by grade modifiers based on GMFH and if electrodiagnostic testing were
done, GMCS.21 The net adjustment formula is (GMFH-CDX) + (GMCS-CDX).22

15

Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013);
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
16

Veronica Williams, 56 ECAB 367, 370 (2005).

17

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5c(3) (February 2013).
The methodology and applicable tables were initially published in The Guides Newsletter, “Rating Spinal Nerve
Extremity Impairment,” Using the Sixth Edition (July/August 2009).
19

20
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.
(January 2010).
21

A.M.A., Guides 533.

22

Id. at 521.

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OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.23
ANALYSIS
OWCP accepted that appellant sustained displacement of lumbar intervertebral disc
without myelopathy, nervous system complication from a surgically-implanted CNS device,
thoracic or lumbosacral neuritis or radiculitis not otherwise specified.
On November 3, 2014 Dr. Mankoff opined that appellant had obtained MMI. On June 12,
2015 appellant filed a claim for a schedule award (Form CA-7).
In a September 2, 2015 report, Dr. Watkins Campbell noted appellant’s history of injury
and treatment. She also advised that the short form McGill pain questionnaire revealed moderate
tendencies towards symptom magnification. Dr. Watkins Campbell determined that appellant
reached MMI on November 3, 2014, the date of Dr. Mankoff’s report. She also determined that
appellant had a six percent permanent impairment to the right lower extremity.
Dr. Slutsky, the DMA, advised that he was in agreement with Dr. Watkins Campbell with
regard to her findings. He noted that he had an exception with regard to her findings with regard
to the right L5 lumbar nerve root. Dr. Slutsky’s conclusion resulted in one percent impairment
rating, taking into consideration the discrepancy for the L5 lumbar nerve root. As both the rating
physician and the DMA were in agreement with regard to the other findings, the Board will address
the discrepancies regarding the right L5 lumbar nerve root.
The Board notes that Dr. Watkins Campbell provided appellant with an impairment rating
of six percent based upon the L5 nerve root. Dr. Watkins Campbell found that appellant had
decreased sensation to sharp and dull and provided appellant a physical examination grade 3 of
severity deficit. She explained that the primary rating was thoracic or lumbosacral neuritis or
radiculitis of the right L5 nerve root, and cited the July/August 2009 The Guides Newsletter.
Dr. Watkins Campbell also referenced Table 16-624 for functional history adjustment and
Table 16-11.25 She selected the physical examination grade modifier as grade 3, and explained
that her selection was based upon a severe sensory deficit. Dr. Watkins Campbell found that the
physical examination findings with decreased sensation to sharp/dull pain equated to a grade 3
severity deficit in the right L5 nerve root. However, the DMA, reviewed Dr. Watkins Campbell’s
report and explained that he was in agreement with the rating physician with the exception of the
rating of a grade 3 severity deficit. Dr. Slutsky explained that nerve conduction testing should
have identified a total conduction block if the physical examination was consistent with sensory
severity, grade 2 severity. He explained that appellant had normal to decreased sensation, and
therefore the appropriate value for sensory severity would be grade 1, due to the significant
23
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6(f) (February 2013); see also L.R., Docket No. 14-0674 (issued August 13, 2014).
24

A.M.A., Guides 516.

25

Id. at 533.

8

variance. The Board also notes that Dr. Watkins Campbell noted that the McGill pain
questionnaire revealed moderate tendencies towards symptom magnification. Dr. Slutsky also
considered any potential motor loss in the affected nerve branch, arriving at the same rating as
Dr. Watkins Campbell, zero impairment. He proceeded to rate appellant and concluded that
appellant had no significant lower extremity motor loss and had normal motor testing, which
placed him into class 1. Dr. Slutsky utilized the net adjustment formula, and found that a final
lower extremity equal to 0 percent.26 Regarding a functional history grade modifier, he concurred
with the rating physician and confirmed that appellant continued with symptoms of a mild antalgic
gait not requiring the use of a single gait or external orthotic device for stabilization. Dr. Slutsky
also noted that there was no documentation of a positive Trendelenburg and appellant was not
eligible for a grade modifier greater than 1. He referred to Table 16-727 for physical examination
adjustment and explained that that the physical examination modifier was not relevant as the
neurologic findings were used to establish the impairment range. Dr. Slutsky referred to
Table 16-828 for clinical studies and concurred with the rating physician. He explained that the
EMG/NCV testing should not be used as it was more than nine months old. Dr. Slutsky explained
that the grade modifier would be 1 and would not affect the final net adjustment. He determined
that the rating for sensory impairment was equal to 1 and motor impairment was equal to 0,
utilizing the net adjustment formula. Dr. Slutsky referred to the Combined Values Chart29 and
determined that appellant was entitled to one percent impairment of the right lower extremity.
By letter dated October 22, 2015, OWCP provided Dr. Watkins Campbell with a copy of
Dr. Slutsky’s report and requested her comment. However, Dr. Watkins Campbell did not provide
a response. As she did not explain how she selected the higher grade, her grade selection was
insufficient to be utilized. The Board finds that Dr. Slutsky provided a valid rating in conformance
with the A.M.A., Guides. The Board finds no evidence demonstrating a greater percentage of
impairment using the A.M.A., Guides.
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 one
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.

26

See supra note 21.

27

A.M.A., Guides 517.

28

Id. at 519.

29

Id. at 604.

9

ORDER
IT IS HEREBY ORDERED THAT the November 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 16, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Mountain Home, TN, Employer
__________________________________________

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Appearances:
George Todd East, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-751
Issued: July 3, 2013

Case Submitted on the Record

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

JURISDICTION
On February 11, 2013 appellant filed a timely appeal from a September 13, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a permanent impairment of 20 percent right
arm, 13 percent left arm and 13 percent to both legs.
FACTUAL HISTORY
On May17, 2005 appellant, then a 39-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on April 28, 2005 she injured her right elbow when she was lifting a hand
table. OWCP initially accepted the claim for lateral epicondylitis of the right elbow. On
1

5 U.S.C. § 8101 et seq.

November 16, 2005 the claim was accepted for reflex sympathetic dystrophy (RSD) of the right
arm. Upon additional development of the medical evidence, on March 28, 2007, OWCP
accepted pain disorders related to psychological factors. After further development, on
January 16, 2009 OWCP accepted RSD to both arms and legs.
In a report dated April 17, 2009, Dr. Scott Dulebohn, a neurosurgeon, stated that
according to the American Medical Association, Guides to the Evaluation of Permanent
Impairment appellant was 100 percent disabled in all four extremities. OWCP prepared a
statement of accepted facts and referred the case to a Dr. Jonathan Turoff for a second opinion
evaluation.
By report dated August 14, 2009, Dr. Turoff provided a history and results on
examination. He diagnosed complex regional pain syndrome (CRPS) of both upper and lower
extremities. Dr. Turoff opined that appellant had a 100 percent impairment under the A.M.A.,
Guides. He indicated that appellant had a QuickDASH score of 41 and cited Table 15-39.2
In a report dated August 28, 2009, an OWCP medical adviser stated that Dr. Turoff had
accepted a range of subjective complaints, but the A.M.A., Guides had objective diagnostic
criteria for CRPS. He stated that, based on the objective criteria noted by Dr. Turoff, appellant
had a class 1 impairment under Table 15-26. The medical adviser opined that appellant had a 13
percent impairment to each extremity.
By decision dated December 2, 2009, OWCP issued a schedule award for a 13 percent
permanent impairment to both upper and lower extremities. The period of the award was 156
weeks of compensation commencing November 22, 2009.
Appellant requested a hearing before an OWCP hearing representative, which was held
on April 14, 2010. On June 10, 2010 OWCP received a May 28, 2010 report from the
employing establishment physician, Dr. Terry Puckett, who provided an opinion under the fifth
edition of the A.M.A., Guides.
By decision dated June 29, 2010, the hearing representative affirmed the December 2,
2009 OWCP decision. The hearing representative indicated that the weight of the evidence was
represented by OWCP’s medical adviser.
On January 4, 2011 appellant requested reconsideration of her claim. She submitted a
November 17, 2010 report from Dr. William Kennedy, a Board-certified orthopedic surgeon,
who provided a history and results on examination. Dr. Kennedy opined that, under the fifth
edition of the A.M.A., Guides, appellant met the requirements for a CRPS diagnosis. He opined
that appellant had a 53 percent right arm impairment, a 36 percent left arm impairment, a 42
percent right leg impairment and a 40 percent left leg impairment.
By decision dated March 23, 2011, OWCP reviewed the case on its merits and denied
modification. It noted that the sixth edition of the A.M.A., Guides was currently applied to
determine the degree of permanent impairment.

2

QuickDASH is a shortened version of the Disabilities of the Arm, Shoulder, and Hand (DASH) questionnaire
used to assess functional ability.

2

Appellant requested reconsideration and submitted a May 6, 2011 report from
Dr. Kennedy, who opined that appellant’s diagnosis of CRPS was established under the sixth
edition of the A.M.A., Guides. Dr. Kennedy referred to his prior report with respect to points for
objective diagnostic criteria. With respect to the degree of permanent impairment under the sixth
edition, he opined that appellant’s impairment under the sixth edition was 38 percent for each
arm, and 38 percent for each leg, based on application of Table 15-26 and Table 16-15.
OWCP referred the case to an OWCP medical adviser to review. A July 1, 2011
memorandum asked the medical adviser for an opinion as to the right arm permanent
impairment. In a July 1, 2011 report, the medical adviser indicated that he disagreed with
Dr. Kennedy. He stated that Table 15-25 required radiographic confirmation. According to the
medical adviser the right arm impairment was 20 percent under Table 15-26. In a report dated
July 11, 2011, the medical adviser indicated that he disagreed with Dr. Kennedy regarding the
left arm and both legs. He stated that appellant’s complaints and functional limitations were not
sufficient to establish a severe impairment without confirming objective findings. According to
the medical adviser, appellant had no impairment to the left arm, or legs and a 20 percent right
arm impairment.
By decision dated March 23, 2012, OWCP issued a schedule award for an additional
seven percent permanent impairment to the right arm. The period of the award was from
November 18, 2012 to April 19, 2013. On July 12, 2012 appellant requested reconsideration.
She submitted a July 9, 2012 report from Dr. W. Turney Williams, a pain medicine specialist,
who provided results on examination and indicated that appellant remained disabled. In a report
dated July 26, 2012, an OWCP medical adviser opined that there was no evidence of an
additional permanent impairment.
By decision dated September 13, 2012, OWCP reviewed the case on its merits and denied
modification. It found that appellant had not established an impairment greater than previously
awarded.
LEGAL PRECEDENT
Section 8107 of the FECA provides that, if there is permanent disability involving the
loss or loss of use of a member or function of the body, the claimant is entitled to a schedule
award for the permanent impairment of the scheduled member or function.3 Neither FECA nor
the regulations specify the manner in which the percentage of impairment for a schedule award
shall be determined. For consistent results and to ensure equal justice for all claimants OWCP
has adopted the American Medical Association, Guides to the Evaluation of Permanent
Impairment as the uniform standard applicable to all claimants.4 For schedule awards after
May 1, 2009, the impairment is evaluated under the sixth edition.5

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

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

5

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

3

FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.6 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.7
ANALYSIS
In the present case, OWCP accepted RSD to both arms and both legs resulting from an
April 28, 2005 lifting incident. It has issued schedule awards for a 20 percent right arm
impairment, and 13 percent to the left arm and each leg. The A.M.A., Guides notes that RSD is
also known as CRPS, and this diagnosis is “a challenging and controversial concept” that “has
been a troublesome area for impairment rating.”8 As noted in the A.M.A., Guides, “No
diagnostic criteria have been uniformly accepted for CRPS, and no laboratory study is
considered definitive.”9
The A.M.A., Guides provide specific guidelines for an impairment rating to the upper
and lower extremities from CRPS. The diagnosis of CRPS must be confirmed based on the
diagnostic criteria provided in Table 15-24 (upper extremity) and Table 16-13 (lower
extremity).10 If the diagnosis is confirmed, the number of objective diagnostic criteria points is
determined under Table 15-25 (upper extremity) and Table 16-14 (lower extremity).11 The
impairment is then calculated using Table 15-26 for the arms and Table 16-15 for the legs.12 The
default value is adjusted in accord with grade modifiers for functional history, physical
examination and clinical studies.13
Dr. Kennedy and an OWCP medical adviser applied the above methodology and
disagreed as to the percentage of impairment to each extremity. He found diagnostic criteria
points under Table 15-25 and Table 16-14 sufficient to establish a class 3 impairment (severe).
6

5 U.S.C. § 8123.

7

20 C.F.R. § 10.321 (1999).

8

A.M.A., Guides 341, 450.

9

Id. at 341.

10

Id. at 453, Table 15-24 and at 539, Table 16-13.

11

The Board notes that OWCP’s medical adviser stated that Table 15-25 required radiographic evidence. Table
15-25 (and its corresponding Table 16-14 for the legs) does not require any specific radiographic evidence. An
objective diagnostic criteria point may be found if there are radiographic signs of trophic bone changes, or a bone
scan with findings consistent with CRPS. Id. at 453.
12

Id. at 454, Table 15-26 and at 541, Table 16-15.

13

For the upper extremities, see id. at 406-11, Table 15-7 to Table 15-10. For the lower extremities, see id. at
515-21, Table 16-6 to Table 16-9.

4

OWCP’s medical adviser found the objective criteria sufficient for a class 2 (moderate)
impairment to the right arm, and class 1 (mild) for the left arm and both legs.
The Board finds that the case must be remanded to OWCP for selection of a referee
physician in accord with 5 U.S.C. § 8123(a). The referee physician should provide a rationalized
medical opinion on the issue presented. In this regard OWCP should ensure that the referee
applies the proper methodology under the A.M.A., Guides as discussed above. After such
further development as OWCP deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that a conflict in the medical evidence exists and the case must be
remanded for resolution of the conflict.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2012 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: July 3, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., claiming as Administrator of Estate of
M.W., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

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Appearances:
Paul H. Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1430
Issued: April 25, 2012

Case Submitted on the Record

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

JURISDICTION
On May 27, 2011 appellant, through counsel, filed a timely appeal from the December 1,
2010 nonmerit decision of the Office of Workers’ Compensation Programs’ (OWCP), which
denied reconsideration of the employee’s claim.1 Because more than 180 days has elapsed
between the last merit decision dated September 23, 2009 and the filing of the appeal, the Board
lacks jurisdiction to review the merits of the case pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied the employee’s September 22, 2010 request
for reconsideration.

1

The employee died on January 12, 2011.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 29, 2008 the employee, then a 46-year-old pipefitter, filed an occupational
disease claim alleging that his exposure to cadmium, chromium and dust particles caused a
respiratory/pulmonary disease and aggravated and worsened his preexisting pulmonary
sarcoidosis, bronchial asthma and sleep apnea conditions.
On December 22, 2008 OWCP received a detailed statement from the employee,
numerous diagnostic test studies, a bioenvironmental hygienists report, a February 7, 2008
incident report and medical reports from several physicians. In an August 18, 2008 report,
Dr. Hatem Asad, a Board-certified pulmonologist and sleep specialist, indicated that the
employee had pulmonary sarcoidosis, bronchial asthma, chronic respiratory failure and
obstructive sleep apnea with alveolar hypoventilation and hypoxemia, nocturnal and that he
should avoid any occupational exposure and irritants that might exacerbate his symptoms,
including solvents and paints as well as heavy metal dust and non organic dusts.
In a January 5, 2009 letter, OWCP requested further factual and medical information. In
a February 26, 2009 report, Dr. Asad stated that the employee’s asthma was aggravated by his
exposure to heavy metal dust including cadmium and chromium. He also stated that the
employee’s preexisting condition of pulmonary sarcoidosis and bronchial asthma was also
exacerbated and worsened by his exposure to such heavy metal dust.
OWCP referred the employee to Dr. Gerald Adler, a Board-certified pulmonologist. On
April 22, 2009, Dr. Adler reviewed a statement of accepted facts3 and noted examination
findings. He diagnosed pulmonary sarcoidosis, pulmonary hypertension and sleep apnea.
Dr. Adler opined that the employee’s chromium dust exposure could have aggravated his
condition to some degree but there was no evidence of further deterioration after his removal
from the work site. He stated that the employee’s pulmonary hypertension and sleep apnea were
not worsened by chromium or cadmium dust exposure. In a May 6, 2009 addendum, Dr. Adler
advised that the cause of sarcoidosis was unknown. He noted that the employee had underlying
sarcoidosis and underlying pulmonary condition. While toxin exposure or air pollutants could
generally worsen an underlying lung condition, heavy metals were not the cause of sarcoidosis
per se and the employee’s sarcoidosis was not aggravated, worsened or accelerated by heavy
metals. While overall lung function could be aggravated by heavy metals exposure in addition to
an underlying lung condition, the employee’s sarcoidosis was not worsened by such exposure.
The employee’s two pulmonary function tests taken a year apart were similar and showed no
great deterioration in his pulmonary function over that time. Thus, heavy metals exposure did
not seem to aggravate his lung condition. Dr. Adler stated that, the cause of pulmonary
hypertension was unknown and, while it could be related to underlying sleep apnea, he did not
believe heavy metal exposure caused it or aggravated the sleep apnea. He stated that the
employee’s exposure to heavy metals and the aggravating effect was temporary.
Due to the medical conflict between Dr. Asad and Dr. Adler, OWCP referred the
employee to Dr. Ram Puri, a Board-certified pulmonary specialist, for an impartial medical
3

The statement of accepted facts reflected that the employee was exposed to cadmium and chromium and dust for
a seven-month period from June 2007 through January 2008.

2

evaluation. In an August 24, 2009 report, Dr. Puri reviewed the statement of accepted facts, the
medical record and provided findings on examination. He diagnosed pulmonary conditions of
chronic respiratory failure, pulmonary sarcoidosis, asthma, moderate to severe pulmonary
hypertension and obstructive sleep apnea. Dr. Puri opined that the employee’s exposure to
cadmium, chromium and dust from June 2007 through January 2008 resulted in his asthma
condition and that such condition was permanent. However, he advised that the employee’s
other conditions of chronic respiratory failure, pulmonary sarcoidosis, pulmonary hypertension
and sleep apnea were not caused or aggravated by his exposure to cadmium, chromium and dust
during the period June 2007 through January 2008.
In September 23, 2009 decisions, OWCP accepted the claim for asthma but denied that
chronic respiratory failure, aggravation of pulmonary sarcoidosis, pulmonary hypertension and
obstructive sleep apnea were work related.
On September 22, 2010 the employee, through counsel, requested reconsideration. He
included reports of diagnostic testing, an October 21, 2008 emergency room report with progress
reports and medical reports and office notes from Dr. Asad dated October 2008 and 2010
addressing the employee’s condition. Also submitted was a list of chemicals to which the
employee alleged that he was exposed at work.
Counsel argued that the September 23, 2009 decision was not valid as the employee’s
treating physician was not provided with the second opinion report prior to referral to the
impartial specialist and that the second opinion amended report should have resulted in the
acceptance of a “temporary aggravation” of the employee’s preexisting conditions. He
contended that the impartial medical specialist’s report supported the aggravation of the
employee’s other pulmonary conditions and that further medical development was necessary to
determine if the work-related asthma aggravated the employee’s other pulmonary conditions.
Counsel contended that the evidence supports that an aggravation of the employee’s preexisting
conditions directly resulted from work exposure and the work-related asthma condition. He
asserted that the employee was exposed to more than just cadmium and chromium and that
further development was necessary to verify if exposure to other chemicals caused the other
denied conditions.
In a December 1, 2010 decision, OWCP denied the employee’s reconsideration request
finding it insufficient to warrant a review of its prior decision. It noted that a new occupational
disease claim may be filed for alleged exposure to other chemicals that were not addressed.
On appeal, appellant argues that OWCP’s December 1, 2010 decision should have been a
merit decision. She also noted that a claim for survivor benefits was being filed.4

4

The employee died on January 12, 2011 after OWCP’s December 1, 2010 denial of reconsideration. On appeal,
appellant requests that the Board remand the current matter so that it may be considered with the survivor claim.
The Board’s jurisdiction is limited to review of final adverse OWCP decisions. 5 U.S.C. § 8149; 20 C.F.R.
§§ 501.2(c) and 501.3(a). As there is no final decision from OWCP with regards to appellant’s survivor claim, the
Board has no jurisdiction over her survivor claim and cannot act on that matter.

3

LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at anytime on its
own motion or upon application.5 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.6
A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.7 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.8
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.9
While a reopening of a case may be predicated solely on a legal premise not previously
considered, such reopening is not required where the legal contention does not have a reasonable
color of validity.10
ANALYSIS
The Board does not have jurisdiction over the merits of the employee’s claim. The issue
presented on appeal is whether his September 22, 2010 reconsideration request met any of the
requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for a review of the
merits.
In a September 22, 2010 request for reconsideration, the employee disagreed with
OWCP’s September 23, 2009 decision, which denied that the conditions of chronic respiratory
failure, aggravation of pulmonary sarcoidosis, pulmonary hypertension and obstructive sleep
apnea were causally related to his accepted exposure to cadmium, chromium and dust from
June 2007 through January 2008.

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606.

7

Id. at § 10.607(a).

8

Id. at § 10.608.

9

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

10

John F. Critz, 44 ECAB 788, 794 (1993).

4

The employee, however, did not show that OWCP erroneously applied or interpreted a
specific point of law. He argued that the medical evidence, including that of the second opinion
physician, was sufficient to support that the other pulmonary conditions were aggravated by the
employee’s workplace exposures, that there was no medical conflict and that the employee also
had exposure to other workplace chemicals that caused injury. As noted, the Board does not
have jurisdiction over the merits of the claim. These assertions are without merit with regard to
showing that OWCP erred in denying a merit review. Dr. Adler, the second opinion physician,
specifically stated in his May 6, 2009 addendum that heavy metals did not cause or worsen the
sarcoidosis and that the employee’s pulmonary hypertension and sleep apnea were not
aggravated or worsened by his exposure to such heavy metals. In any event, the employee was
merely on one side of a medical conflict that was resolved by Dr. Puri, the impartial medical
specialist,11 who also did not support that such conditions were caused or aggravated by the
accepted workplace exposures. Counsel’s assertions regarding whether there was a medical
conflict lack a reasonable color of validity as counsel’s assertions do not establish that OWCP
erred in applying a point of law in the manner that it developed the medical evidence.12
Likewise general assertions that there was workplace exposure to other particular chemicals that
caused injury do not establish any error by OWCP. Thus, the employee’s interpretation of the
medical evidence and OWCP’s development of the evidence does not establish that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by OWCP.
The Board notes that the underlying issue is medical in nature but that, while appellant
made arguments about the interpretation of the medical evidence, she did not submit new and
relevant medical evidence to support her assertions. The medical reports from Dr. Asad and
other medical evidence submitted on reconsideration are new to the record but they are not
relevant as they fail to address the issue of causal relation between the employee’s nonaccepted
conditions and his accepted work-related exposure. Likewise, the listing of chemicals provided
by appellant on reconsideration is also not relevant since, as noted the underlying issue is
medical in nature. Thus, the employee did not provide any relevant and pertinent new evidence
to establish that his other pulmonary conditions were aggravated or worsened by his sevenmonth exposure to cadmium, chromium and dust during the period June 2007 through
January 2008.
Consequently, the evidence submitted by the employee on reconsideration does not
satisfy any of the three regulatory criteria for reopening a claim for merit review. Pursuant to 20
C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, appellant alleged that OWCP abused its discretion in not issuing a merit
decision on December 1, 2010. As noted, the arguments and evidence submitted on
reconsideration do not meet any of the three regulatory criteria for reopening a claim for merit
review.
11

See 5 U.S.C. § 8123(a); Richard R. LeMay, 56 ECAB 341 (2005).

12

See Jennifer A. Guillary, 57 ECAB 485 (2006) (while a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity).

5

CONCLUSION
The Board finds that OWCP properly denied the employee’s request for further review of
the merits of the employee’s claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.J., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 10-457
Issued: September 15, 2010

Case Submitted on the Record

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

JURISDICTION
On December 10, 2009 appellant filed a timely appeal from July 14 and August 31, 2009
merit decisions of the Office of Workers’ Compensation Programs finding that he did not sustain
a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability beginning April 11,
2009 causally related to his March 26, 1996 employment injury.
FACTUAL HISTORY
On March 26, 1996 appellant, then a 45-year-old custodian, filed a claim alleging that he
sustained an injury to his lower back on that date in the performance of duty. The Office
accepted his claim for lumbar strain and a herniated disc. In June 1996 appellant underwent a
decompression hemilaminectomy and in August 1996 he underwent a repeat laminectomy.

Appellant sustained intermittent periods of disability due to his employment injury. On
October 1, 2001 he returned to work with restrictions.1 Appellant worked various modified
assignments.
In February 2003 the Office authorized a L4-5 lumbar decompression and fusion with
posterior lumbar interbody cages and pedicle screw fixation without posterolateral
intertransverse fusion.2 In December 2007 the Office authorized an implanted stimulator. In
recommending retroactive authorization for the stimulator, the Office medical adviser noted that
appellant had undergone numerous back surgeries and that the procedure “was undoubtedly in
the treatment of the [accepted conditions] and is, therefore, authorized.” In May 2008 the Office
authorized epidural injections. The Office medical adviser noted that appellant experienced
chronic low back pain from postlaminectomy syndrome and chronic arachnoiditis.
In a progress report dated May 28, 2009, Dr. Richard T. Holt, a Board-certified
orthopedic surgeon, opined that appellant was unable to work until July 3, 2009 due to his
“original 1996 work[ers’] comp[ensation] back injury.”3
On May 29, 2009 appellant filed a claim for intermittent compensation from April 1
to 29, 2009 due to his accepted work injury.
In a report dated June 22, 2009, Dr. Kimber S. D’Antoni, a Board-certified internist,
related that he was treating appellant for “a long-term work-related back injury.” He stated:
“In April 2009 [appellant] presented to the clinic with a severe exacerbation of his
chronic back pain. He was limping and grimacing and appeared to feel very
badly. At that time we made some medication changes that required titration and
a period of adjustment. During this medication adjustment he was recommended
to stay off work due to medication side effects of sleepiness, loss of concentration
and continuation of severe pain. Despite treatment he continued to worsen in his
severe back and leg pain.”
Dr. D’Antoni noted that appellant was evaluated by a neurosurgeon for possible removal
of a spinal cord stimulator. He concluded, “there is no doubt that [appellant’s] current back and
leg pain are directly associated to his original back injury and is an exacerbation and
1

By decision dated May 23, 2006, the Office found that appellant had not established recurrences of disability for
multiple periods throughout 2004 and 2005. By decision dated September 29, 2008, it found that he had not
established an employment-related recurrence of disability beginning June 25, 2008. In August 2008 it determined
that he received an overpayment of compensation because he received compensation for disability after he returned
to work on October 4, 2003. On October 7, 2008 the Office denied appellant’s claim for compensation from
April 24 to May 9, 2008. By decision dated March 31, 2009, a hearing representative finalized the August 2008
overpayment determination.
2

By decision dated August 8, 2005, the Office denied appellant’s claim for a schedule award after finding that the
medical evidence did not establish that he had reached maximum medical improvement.
3

In an April 20, 2009 progress report, a nurse found that appellant was unable to work from April 1 to 28, 2009.
On May 6, 2009 a nurse attributed his back pain to prior surgeries related to his 1996 work injury.

2

continuation of the same.
neurostimulator.”

In fact some of the pain may be a direct sequelae of the

By decision dated July 14, 2009, the Office found that appellant had not established a
recurrence of disability beginning April 11, 2009. It determined that the evidence was
insufficient to show that he was unable to perform his limited-duty position due to his accepted
employment injury.
On July 14, 2009 Dr. Holt related that he evaluated appellant in April 2009 for low back
and right leg pain.4 He stated:
“[Appellant] had had 10 surgeries by Dr. Villanueva, including an interbody
fusion without posterior stabilization. Some of the surgeries were complicated by
staph infection. He also had a spinal cord stimulator placed in the last few years.
The onset of his pain was from a workers’ compensation event. He complains
now of increasing pain in his lumbar spine radiating into his right leg.”
Dr. Holt noted that an imaging study showed “nonunion at the L4-5 level with
arachnoiditis.” He noted that he considered removing appellant’s spinal cord stimulator, but
advised:
“After further evaluation, our determination was that after nine surgeries the
probability of improving his situation was too low to justify the risk in my hands
and I recommended that he seek a surgical opinion elsewhere. In my opinion [he]
has disabling pain [and] no neurological deficit. I believe his condition has been
exacerbated by his multiple surgeries and fusion attempts. He currently has a
diagnosis of arachnoiditis with intractable pain and nonunion.”
On July 21, 2009 appellant requested reconsideration. By decision dated August 31,
2009, the Office denied modification of its July 14, 2009 decision. It found that Dr. Holt did not
explain why appellant was disabled from his limited-duty work due to his 1996 work injury.
On appeal appellant related that since his March 1996 herniated disc he had 12 surgeries.
He noted that Dr. Holt attributed his condition to nonunion from a surgery due to his accepted
work injury.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the

4

On June 30, 2009 Dr. Holt opined that appellant was disabled from June 30 to July 14, 2009.

3

employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.5
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.6 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a
reduction-in-force) or when the physical requirements of such an assignment are altered so that
they exceed his or her established physical limitations.7
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature and the Office is not a disinterested arbiter. While the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the evidence
to see that justice is done.8
ANALYSIS
The Office accepted that appellant sustained lumbar strain and herniated disc due to a
March 26, 1996 employment injury. After sustaining intermittent periods of disability, he
returned to work with restrictions on October 1, 2001. Appellant underwent multiple authorized
surgeries on his back, including a decompression hemilaminectomy in June 2006, a repeat
laminectomy in August 2006, an L4-5 lumbar decompression and fusion in February 2003 and a
stimulator implant in December 2007. On May 29, 2009 he stopped work and filed a claim for
compensation beginning April 1, 2009.
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. He must thus provide medical evidence establishing that he was disabled due to a
worsening of his accepted work-related conditions.9 In a progress report dated May 28, 2009,
Dr. Holt found that appellant was unable to work due to his 1996 employment injury. On
June 22, 2009 Dr. D’Antoni indicated that he was treating appellant for an employment-related
back injury that occurred a long time ago. In April 2009 he evaluated him for an exacerbation of
his chronic back pain and took him off work due to his pain and a necessary adjustment in his
medication. Dr. D’Antoni related that appellant’s back and leg pain was directly related to his
“original back injury and is an exacerbation and continuation of the same” and could be the
direct result of the implanted neurostimulator. On July 14, 2009 Dr. Holt discussed appellant’s
5

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

6

20 C.F.R. § 10.5(x).

7

Id.

8

J.B., 60 ECAB ___ (Docket No. 08-1735, issued January 27, 2009); Jimmy A. Hammons, 51 ECAB 219 (1999).

9

See Jackie D. West, supra note 5.

4

history of 10 surgeries and an interbody fusion without posterior stabilization. He reviewed
imaging studies which he found showed a nonunion at L4-5 with arachnoiditis. Dr. Holt
considered removing the spinal cord stimulator, but determined in view of appellant’s multiple
surgeries that the risk was too great. He diagnosed arachnoiditis with intractable pain and opined
that his condition “has been exacerbated by [appellant’s] multiple surgeries and fusion attempts.”
Proceedings under the Act are not adversarial in nature, nor are the Office a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence to see that justice is done.10 The Board
has reviewed the reports of Dr. Holt and Dr. D’Antoni and notes that Dr. Holt and Dr. D’Antoni
provided a clear opinion that appellant had back pain and disability from work were due to the
effects of his employment injury and multiple authorized back surgeries.11 Dr. Holt based his
diagnosis on the objective findings, including a magnetic resonance imaging (MRI) scan study
that showed a nonunion of the lumbar spine at L4-5 with arachnoiditis. The opinions of Dr. Holt
and Dr. D’Antoni are supportive, unequivocal, bolstered by objective findings and based on a
firm diagnosis and an accurate history. Their conclusions lack only an explanation of why
appellant was unable to perform his modified employment beginning April 2009 due to the
exacerbation of his back condition and surgeries. Consequently, while the medical evidence
from Dr. Holt and Dr. D’Antoni is insufficiently rationalized to meet his burden of proof to
establish that he was disabled beginning April 1, 2009 due to his accepted employment injury, it
raises an undisputed inference of causal relationship sufficient to require further development by
the Office.12 Accordingly, the Board will remand the case to the Office. On remand the Office
should further develop the medical record to determine whether appellant sustained a recurrence
of disability beginning April 11, 2009 due to his March 26, 1996 work injury and resulting
surgeries. Following this and such further development as the Office deems necessary, it shall
issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

A.A., 59 ECAB ___ (Docket No. 08-951, issued September 22, 2008); Phillip L. Barnes, 55 ECAB 426 (2004).

11

A medical condition resulting from authorized examination or treatment, such as surgery, may form the basis of
a compensation claim for impairment or disability, regardless of the compensability of the original injury. See D.B.,
58 ECAB 464 (2007).
12

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 31 and July 14, 2009 are set aside and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: September 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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Appearances:
Marion Jackson, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2403
Issued: March 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 21, 2007 appellant, through his representative, filed a timely appeal of a
July 9, 2007 nonmerit decision of the Office of Workers’ Compensation Programs, denying his
request for reconsideration because it was not timely filed and failed to establish clear evidence
of error. Because more than one year has elapsed between the last merit decision dated May 17,
2006 and the filing of the appeal, the Board lacks jurisdiction to review the merits of his 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 on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. In a June 25, 2001 decision, the Board
set aside the Office’s May 17, 2000 decision which denied appellant’s request for

reconsideration and remanded the case to the Office for consideration of the merits of his claim.1
The Board found that Dr. Alan R. Barthen, an attending chiropractor, was a physician under the
Federal Employees’ Compensation Act because he diagnosed subluxation of the lumbar spine as
demonstrated by x-ray. The Board further found that Dr. Barthen’s September 16, 1999 medical
report which stated that appellant’s condition was caused by his June 12, 1995 employment
injury constituted relevant and pertinent new evidence not previously considered by the Office
with regard to the issue of whether appellant sustained an injury in the performance of duty. The
facts and the circumstances of the case as set forth in the Board’s prior decision are incorporated
herein by reference.2 The facts and the history relevant to the present issue are hereafter set
forth.
After further development of the record on remand, the Office accepted appellant’s claim
for subluxation of the spine at L2-4 and sacrum, and temporary aggravation of preexisting
spondylosis.
By letter dated November 8, 2001, the Office referred appellant, along with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Richard H.
Sidell, Jr., a Board-certified orthopedic surgeon, for a second opinion medical examination to
determine if he sustained any additional injuries related to the accepted employment injury. In a
December 7, 2001 medical report, Dr. Sidell opined that appellant did not sustain any additional
injuries due to the accepted employment injury. He further opined that appellant had no
continuing residuals of the accepted employment injury. Dr. Sidell stated that the June 12, 1995
employment injury was a temporary aggravation of a preexisting condition that was not
precipitated, accelerated or proximally caused by factors of appellant’s employment.
In a letter dated December 17, 2001, the Office advised appellant that her accepted
employment injury had ceased based on Dr. Sidell’s December 7, 2001 report. It further advised
him that he may be entitled to compensation for periods of disability related to the accepted
employment injury and that if he used sick or annual leave due to this injury then he may request
to buyback the leave used. The Office instructed appellant to file the appropriate claim forms.
On February 25, 2002 appellant filed a claim for compensation and a schedule award
(Form CA-7) for the period June 13, 1995 through December 31, 1998. He submitted time
analysis forms which indicated that he used sick leave for his absence from work during the
period June 13, 1995 through October 23, 1998 due to his employment-related back condition.
By letter dated July 15, 2003, the Office advised appellant that there was no provision under the
Act for payment of a schedule award for a back condition unless it was permanent and affected a
specified member of the body. It further advised him that the medical evidence of record
established that his accepted employment injury had ceased. In addition, there was no medical

1

Docket No. 00-2687 (issued June 25, 2001).

2

On October 24, 1995 appellant, then a 38-year-old tractor trailer operator, filed a claim for an occupational
disease. He alleged that on June 12, 1995 he first became aware of the fractured discs in his back. Appellant further
alleged that on October 24, 1995 he first realized that this condition was caused by his federal employment. He
injured his back when he backed under a trailer with his tractor.

2

evidence of record establishing his disability during the claimed period. Appellant was provided
with 30 days to submit medical evidence in support of his claim.
The Office received several medical records regarding appellant’s ongoing back
condition and ability to work.
The Office found a conflict in the medical opinion evidence between Dr. Barthen who
opined that appellant sustained a subluxation as demonstrated by x-ray due to the June 12, 1995
employment injury and Dr. Sidell who found that appellant no longer had any residuals of his
employment-related subluxation. By letter dated December 19, 2003, the Office referred
appellant, along with a statement of accepted facts, the case record and a list of questions to be
addressed, to Dr. Avi J. Bernstein, a Board-certified orthopedic surgeon, for an impartial medical
examination to determine whether his current back condition and claimed disability were
causally related to the June 12, 1995 employment injury.
In a January 22, 2004 report, Dr. Bernstein reviewed a history of the June 12, 1995
employment injury. He stated that appellant had subjective complaints of low back pain and
moderate to advanced degenerative disc disease of the lumbar spine. Dr. Bernstein opined that
his condition was not directly caused, aggravated or precipitated by the accepted employment
injury. He stated that appellant may have suffered a temporary aggravation at the time of the
employment injury but he would have expected him to be at maximum medical improvement
6 to 12 weeks from the time of the injury and that no further medical treatment beyond
symptomatic care was necessary. Dr. Bernstein concluded that outside of his subjective
complaints, there was no medical reason why appellant could not perform full-duty work with no
restrictions on a full-time basis.
By decision dated February 18, 2004, the Office found that appellant no longer had any
residuals or disability causally related to his June 12, 1995 employment injury and therefore he
was not entitled to compensation for total disability during the period June 12, 1995 through
October 20, 1998. It accorded special weight to Dr. Bernstein’s January 22, 2004 medical
opinion as an impartial medical specialist. On March 9, 2004 appellant requested an oral hearing
before an Office hearing representative.
In a March 7, 2005 decision, an Office hearing representative found the evidence of
record insufficient to establish that appellant suffered from any residuals or disability due to his
accepted employment injury after October 12, 1995 and therefore denied compensation for the
claimed period of total disability and terminated appellant’s medical benefits for the accepted
employment injury. The hearing representative however, found that appellant was entitled to
consideration of compensation for any dates he missed work from June 12 through
October 12, 1995.
Accordingly, the hearing representative affirmed as modified the
February 18, 2004 decision. On February 24, 2006 appellant requested reconsideration.
By decision dated May 17, 2006, the Office denied modification of the March 7, 2005
decision. The medical evidence of record was insufficient to establish that appellant was totally
disabled from June 12, 1995 through October 20, 1998 based on Dr. Bernstein’s January 22,
2004 impartial medical report.

3

In a letter dated June 25, 2007, appellant requested reconsideration. He submitted
Dr. Barthen’s June 11, 2007 report. On physical examination, Dr. Barthen reported pain on
palpation at L4-5 with mild muscle spasms in the same area bilaterally. He stated that
appellant’s lumbar range of motion was significantly reduced on physical examination. On x-ray
examination, Dr. Barthen reported moderate degeneration from L3-4 to L5 sacrum. He further
reported osteophytic lipping and spurring of L3 to L5, as well as, nonfusion of the pars
interarticulars of L5 and spondylolysis at L5. Dr. Barthen stated that his current findings were
the same as his findings on his last examination of appellant in 1999. He related that his
condition developed as a result of the accepted employment injury. Dr. Barthen currently
witnessed the continuing progress of a low back condition that was becoming worse with age.
He was convinced that appellant’s low back pain was from the accepted employment-related
condition. Dr. Barthen stated that his muscles and ligaments healed long ago but the
biomechanics of his low back had been permanently altered as a result of the accepted
employment injury and his condition still existed. He further stated that appellant’s condition
was progressing into post-traumatic degenerative changes classically experienced by anyone
with this type of trauma.
In a July 9, 2007 decision, the Office found that appellant’s letter requesting
reconsideration was dated June 25, 2007, more than one year after its May 17, 2006 decision and
was untimely.3 The Office found that appellant did not submit evidence to establish clear
evidence of error in the prior decision finding that he was not entitled to wage-loss compensation
for the period June 12, 1995 through October 20, 1998 as he no longer had any residuals or
disability causally related to his accepted employment-related injury.
LEGAL PRECEDENT
Section 8128(a) of the Act4 does not entitle a claimant to a review of an Office decision
as a matter of right.5 The Office, through its regulations, has imposed limitations on the exercise
of its discretionary authority under section 8128(a). Section 10.607(a) of the Office’s
implementing regulation provides that an application for reconsideration must be sent within one
year of the date of the Office decision for which review is sought.6
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.7
3

The Board notes that, in the July 9, 2007 decision, the Office inadvertently stated that appellant’s May 17, 2006
letter requested reconsideration of its June 25, 2007 decision as the record establishes that the Office’s decision was
issued on May 17, 2006 and appellant’s reconsideration request was dated June 25, 2007.
4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

4

To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.8 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by the Office 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 the Office.12
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 the Office decision.13 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.14
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. In implementing the one-year time limitation, the Office’s procedures
provide that the one-year time limitation period for requesting reconsideration begins on the date
of the original Office decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues.15
The last merit decision in this case was issued by the Office on May 17, 2006. The
Office found that appellant was not entitled to wage-loss compensation for the period June 13,
1995 through October 20, 1998 based on Dr. Bernstein’s January 22, 2004 impartial medical
opinion that appellant no longer had any residuals or disability causally related to his accepted
June 12, 1995 employment-related injury. As appellant’s June 25, 2007 letter requesting
reconsideration was made more than one year after the Office’s May 17, 2006 merit decision, the
Board finds that it was not timely filed.

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

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

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

15

Larry L. Litton, 44 ECAB 243 (1992).

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The issue for purposes of establishing clear evidence of error in this case, is whether
appellant submitted evidence establishing that there was an error in the Office’s finding that he
was not entitled to wage-loss compensation for the period June 13, 1995 through October 20,
1998 as he no longer had any residuals or disability causally related to his accepted June 12,
1995 employment-related injury. Appellant has not established clear evidence of error by the
Office in this regard. He did not submit the type of positive, precise and explicit evidence or
argument which manifests on its face that the Office committed an error.
Appellant submitted Dr. Barthen’s June 11, 2007 report which provided his findings on
physical examination that appellant suffered from back pain, muscle spasms and reduced range
of motion. On x-ray examination, Dr. Barthen reported moderate degeneration from L3-4 to L5
sacrum, osteophytic lipping and spurring of L3 to L5, as well as, nonfusion of the pars
interarticulars of L5 and spondylolysis at L5. He stated that these findings were the same as his
findings in 1999, the last time he examined appellant. Dr. Barthen opined that his condition
developed as a result of the June 12, 1995 employment injury. He currently witnessed the
continuing progress of a low back condition that was becoming worse with age. Dr. Barthen
stated that he was convinced that the low back pain was from the same condition in 1995. He
stated that appellant’s muscles and ligaments healed long ago but the biomechanics of his low
back had been permanently altered as a result of the 1995 employment injury and his condition
still existed. Dr. Barthen concluded that his condition was progressing into post-traumatic
degenerative changes classically experienced by anyone with this type of trauma. Although this
evidence addressed causal relationship between appellant’s continuing residuals and June 12,
1995 employment injury, Dr. Barthen failed to provide medical rationale explaining how or why
his continuing residuals were caused by the accepted employment injury. For this reason, the
Board finds that Dr. Barthen’s June 11, 2007 report does not establish clear evidence of error.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

6

ORDER
IT IS HEREBY ORDERED THAT the July 9, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 20, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Naples, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1302
Issued: September 29, 2021

Case Submitted on the Record

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

On August 24, 2021 appellant filed an appeal from a January 22, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1302.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP ’s
decision.2
The 180th day following the January 22, 2021 decision was July 21, 2021. As appellant
did not file an appeal with the Board until August 24, 2021, more than 180 days after the
January 22, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21-1302 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”3
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1302 is dismissed.
Issued: September 29, 2021
Washington, DC

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

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

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

3

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fenton, MO, Employer
__________________________________________

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

Docket No. 14-1102
Issued: August 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 16, 2014 appellant filed a timely appeal from November 15, 2013 and
March 21, 2014 decisions of the Office of Workers’ Compensation Programs (OWCP) denying
her requests for merit review. As more than 180 days elapsed from issuance of the last merit
decision dated March 13, 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 the claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that she submitted new x-rays and work capacity forms but
OWCP stated that the evidence was irrelevant and not sufficient to conduct a merit review.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an April 26, 2011 decision, the Board
affirmed a December 16, 2009 OWCP decision finding that appellant did not establish
entitlement to wage-loss compensation benefits for the period December 20, 1995 through
August 31, 2004.2 The facts as set forth in the Board’s prior decision are hereby incorporated by
reference.
On July 9, 2009 OWCP proposed termination of appellant’s compensation benefits. It
based this recommendation on the second opinion report of Dr. Donald Brancato, a Boardcertified orthopedic surgeon, who found that the accepted injury no longer prevented appellant
from performing her date-of-injury job. Dr. Brancato also reported that appellant had paraspinal
muscle irritation and low back pain, which was nonobjective and unrelated to her ankle injury.
OWCP noted that, although Dr. David E. Chalk, appellant’s treating Board-certified orthopedic
surgeon, indicated that she still experienced residuals from her January 7, 1994 injury, his
opinion was of diminished value and not supported by objective findings or adequate rationale.
On August 26, 2009 OWCP terminated appellant’s wage-loss benefits effective
August 30, 2009 as her injury-related disability had ceased.
Appellant filed numerous reconsideration requests. By decisions dated December 16,
2009, June 13, 2011, April 10, 2012 and March 13, 2013, OWCP denied modification of the
termination decision. It declined appellant’s requests for merit review in decisions dated
November 6, 2009, January 14 and February 23, 2010, July 21, September 15 and November 9,
2011; September 4, 2012, July 15 and September 16, 2013.
On October 22, 2013 appellant requested reconsideration. She did not submit any new
medical evidence in support of her request for reconsideration.
By decision dated November 15, 2013, OWCP denied appellant’s reconsideration request
without conducting a merit review.
On December 23, 2013 appellant again requested reconsideration. She submitted a
May 28, 2013 report by Dr. Robert Seelig, a Board-certified diagnostic radiologist, who
interpreted an x-ray of appellant’s lumbar spine as evincing four true nonrib bearing
nonsacralized lumbar vertebrae with a designated T12 level having a small right-sided rib.
Dr. Seelig also noted a small amount of end plate spurring. He indicated that the x-ray of
appellant’s left knee was normal. With regard to appellant’s left foot, Dr. Seelig noted posterior
calcaneal spur and early arthritic change of the first metatarsal head. In a September 18, 2013
radiological examination of her left foot, Dr. Jesse Poblete, a Board-certified diagnostic
radiologist, noted degenerative changes. X-rays taken on that date of appellant’s left ankle were
interpreted by Dr. Poblete as evincing soft tissue swelling and degenerative changes. Appellant
2

Docket No. 10-1245 (issued April 26, 2011). On January 7, 1994 appellant, then a 28-year-old rural carrier
associate, slipped on snow while exiting her vehicle to deliver mail and fractured her left ankle. OWCP accepted
appellant’s claim for trimalleolar fracture of the left ankle and open reduction internal fixation left medial and lateral
malleoli. Appellant returned to work on January 13, 1994 with limitations and was released to full duty on
July 8, 1994. Her employment with the employing establishment was terminated on August 2, 1994. Following the
end of a schedule award on December 19, 1995, appellant claimed compensation for lost wages for the period
December 20, 1995 through August 31, 2004.

2

also resubmitted the October 5, 2006 report by Dr. Chalk wherein he indicated that the shoes
appellant purchased to fit her with her Arizona brace were of utmost necessity.3
By decision dated March 21, 2014, OWCP denied appellant’s request for reconsideration
without reviewing the merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4 its
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.5 To be entitled to a merit review of an OWCP
decision denying or terminating a benefit, a claimant also must file his or her application for
review within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.7
ANALYSIS
By decision dated August 26, 2009, OWCP terminated appellant’s compensation benefits
effective August 30, 2009 as it found that the injury-related disability had ceased. Appellant
requested reconsideration of that decision on multiple occasions. The Board’s jurisdiction is
limited to reviewing OWCP decisions issued within 180 days of appellant’s April 16, 2014 date
of filing of this appeal. The Board is precluded from reviewing the decisions denying
reconsideration issued prior to November 15, 2013 and March 21, 2014. The Board does not
have jurisdiction over the merits of the claim and may only address whether appellant’s request
for reconsideration was properly denied without merit review.8
Appellant did not submit any evidence in support of her October 22, 2013 request for
reconsideration. She did submit new x-ray evidence in support of her December 23, 2013
request for reconsideration. The x-ray reports of Dr. Seelig and Dr. Poblete do not address the
underlying issue of disability or causal relation. Therefore, the x-rays are irrelevant to the issue
of whether appellant’s injury-related disability had ceased by August 30, 2009. Dr. Chalk’s
October 5, 2006 report is duplicative of a report that was previously submitted to OWCP and
considered. The Board has held that evidence which is duplicative or repetitive of evidence

3

Dr. Chalk’s October 5, 2006 report was first received by OWCP on February 12, 2007.

4

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Id. at § 501.3(e).

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existing in the record is not sufficient to warrant further merit review.9 As Dr. Chalk’s
October 5, 2006 report was already in the record, it is duplicative and does not constitute relevant
and pertinent new medical evidence. Contrary to appellant’s assertions, the record does not
reflect that any new work capacity forms were submitted in support of her two most recent
requests for reconsideration. Therefore the medical evidence submitted with appellant’s request
for reconsideration is insufficient to reopen her case for further merit review of the merits.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that she did not meet any of the necessary
requirements and is not entitled to further merit review.10
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 21, 2014 and November 15, 2013 are affirmed.
Issued: August 15, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

L.T., Docket No. 09-1798 (issued August 5, 2010); L.H., 59 ECAB 253 (2007); Jennifer A. Guillary, 57 ECAB
485 (2005).
10

See L.H., 59 ECAB 253 (2007).

4