United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 17-0343
Issued: July 6, 2017

Case Submitted on the Record

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

JURISDICTION
On December 2, 2016 appellant filed a timely appeal from a June 16, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated June 1, 2015 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the June 16, 2016 decision. However, since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
On December 11, 2013 appellant, then a 46-year-old bilateral contact representative, filed
an occupational disease claim (Form CA-2) alleging that she developed a straightening of her
cervical spine due to factors of her federal employment. She indicated that she first became
aware of her condition and realized that it resulted from her federal employment on
March 8, 2013. The employing establishment noted that appellant had not returned to work
since March 11, 2013. OWCP accepted her claim for neck sprain.3
On June 12, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period April 21, 2013 to May 17, 2014.
By letter dated June 24, 2014, OWCP advised appellant that the evidence received was
insufficient to establish her disability compensation claim for the period April 21, 2013 through
May 17, 2014 and ongoing. It requested that she submit additional medical evidence explaining
how her accepted condition of neck sprain continued to cause her to be disabled from work over
one year from the date of her last exposure to work factors. Appellant was afforded 30 days to
submit the additional evidence.
Appellant submitted various examination reports by Dr. Sanjay J. Chauhan, Boardcertified in psychiatry and neurology, dated July 2 to August 6, 2014. Dr. Chauhan related
appellant’s complaints of neck pain and headaches after her March 8, 2013 injury. He indicated
that on March 8, 2013 appellant became very anxious after receiving cold treatment from her
supervisor, passed out, and fell down onto the floor, causing an injury to her head, cervical spine,
and thoracic spine. Dr. Chauhan noted that appellant’s neck pain had also bothered her due to
her customer service work on the telephone, which required prolonged positioning and repetitive
neck movement. He reviewed appellant’s history, including diagnostic records, and provided
examination findings of appellant’s cervical spine. Dr. Chauhan diagnosed cervical strain,
cervical radiculopathy, and cervical spine stenosis. He also opined that appellant had continuous
trauma or an occupational disease because of the type of work she had done, which required
being in a static posture position sitting in front of the computer and using the telephone.
Dr. Chauhan noted that appellant was disabled from March 8, 2013 through August 5, 2014, and
ongoing.
In a July 8, 2014 narrative report, Dr. Chauhan indicated that appellant was initially
diagnosed with cervical spine sprain because that was the most likely diagnosis based on the type
of injury that she incurred. He related that when appellant did not improve and her cervical
symptoms persisted, along with burning paresthesia, additional diagnoses needed to be added to
her claim. Dr. Chauhan explained that the additional diagnoses of cervical spinal stenosis and
cervical radiculopathy would justify appellant’s periods of disability for a longer term. He
reported that because appellant experienced severe pain and difficulty functioning she should be

3

Appellant had previously filed a traumatic injury claim (Form CA-1) under OWCP File No. xxxxxx059 for
injury on March 8, 2013 when she allegedly fell, hit her head on the floor, and injured her neck. OWCP denied the
traumatic injury claim on May 10, 2013 as appellant did not meet her burden of proof to establish an injury in the
performance of duty. An OWCP hearing representative affirmed the denial on January 31, 2014.

2

considered temporarily totally disabled ongoing from March 8, 2013 due to her cervical spine
injury.
By decision dated September 3, 2014, OWCP denied appellant’s claim for disability
compensation for the period April 21, 2013 through May 17, 2014. It found that the medical
evidence of record was insufficient to establish that she was disabled from work during the
claimed period due to the accepted neck sprain condition. OWCP determined that Dr. Chauhan’s
medical reports were not sufficiently rationalized to explain how appellant’s diagnosed neck
sprain had worsened to the extent that she was still unable to work since she had not been
exposed to her workplace since March 8, 2013.
On September 19, 2014 appellant requested an oral hearing before an OWCP hearing
representative.
Appellant provided diagnostic testing reports from 2013. In a July 25, 2013 x-ray report
of appellant’s cervical spine, Dr. Donald Fitzgerald, a Board-certified radiologist, noted mild
changes of degenerative spondylosis between C4 and C7. In a November 22, 2013 magnetic
resonance imaging (MRI) scan report, Dr. Frank Tamura, a Board-certified radiologist, observed
left central disc herniation with cord flattening at C6-C7 and left central disc herniation at C7-T1.
Dr. Chauhan continued to treat appellant and provided progress reports dated
September 12, 2014 to May 4, 2015, which were substantially similar to his previous reports. He
indicated that appellant remained symptomatic and continued to suffer from persistent neck pain
due to the type of work she was doing. Dr. Chauhan reviewed appellant’s medical records and
provided physical examination findings similar to his previous reports. He reported that
appellant should remain temporarily totally disabled from March 8, 2013 through June 4, 2015
due to her cervical spine injury. Dr. Chauhan included a duty status report (Form CA-17), which
indicated that appellant was temporarily totally disabled beginning March 11, 2013.
Appellant also submitted a consultation report dated October 15, 2014 from Dr. Henry
Aryan, a Board-certified neurosurgeon. Dr. Aryan noted that appellant sustained a March 2013
work-related neck injury and still complained of neck pain and upper extremity radiculopathy.
He reviewed appellant’s history and provided physical examination findings. Dr. Aryan reported
mild cranial nerve deficits and no swelling or tenderness. Sensory examination showed
significant numbness and tingling radiating down into both arms.
In a December 5, 2014 work status note, Jennifer Roberts, a nurse practitioner, indicated
that appellant was unable to work from December 4, 2014 through January 15, 2015.
Dr. Rasheed Amireh, Board-certified in anesthesiology and pain medicine, also treated
appellant and in a February 18, 2015 report related appellant’s complaints of ongoing neck pain
and bilateral upper extremity pain. He reviewed appellant’s history and provided findings on
physical examination. Dr. Amireh reported no tenderness to palpation and percussion and full
range of motion. He diagnosed cervical radiculopathy, cervical degenerative disc disease, and
cervical disc displacement.
On March 18, 2015 a telephone hearing was held. Appellant described the neck
symptoms she experienced prior to the March 8, 2013 employment incident and indicated that
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her symptoms worsened after March 8, 2013. She reviewed the medical treatment that she
received and noted that Dr. Chauhan did not realize that her condition was more serious than a
neck strain until he reviewed her MRI scan results. Appellant claimed that she had not worked
since March 2013, but her neck symptoms continued to worsen. She asserted that she provided
objective findings in Dr. Chauhan’s reports to establish that OWCP should expand her claim for
more serious conditions.
Appellant provided an August 6, 2014 narrative report from Dr. Francisco Dorado, a
Board-certified family practitioner, who noted that appellant had cervical stenosis with
radiculopathy, which made her dizzy and at risk of falling. Dr. Dorado requested a new walker
for appellant.
In a June 1, 2015 decision, an OWCP hearing representative affirmed the September 3,
2014 decision. She determined that the medical evidence of record failed to establish that
appellant was disabled from work as of April 21, 2013 due to her accepted condition. The
hearing representative found that Dr. Chauhan’s reports did not contain sufficient medical
rationale explaining how appellant’s currently diagnosed cervical condition was related to her
exposure to work conditions before March 8, 2013, the date she was last exposed to such work
factors.
Following the June 1, 2015 hearing representative’s decision, appellant resubmitted
Dr. Chauhan’s May 4, 2015 medical report and Dr. Amireh’s February 18, 2015 medical report.
In reports dated June 18, 2015 to May 3, 2016, Dr. Chauhan related appellant’s
complaints of bilateral neck pain which radiated to the scapular region, burning paresthesia in the
upper extremities, and headaches. He reviewed appellant’s history and described her
employment duties as a bilingual contact representative and the March 8, 2013 employment
incident. Upon physical examination, Dr. Chauhan observed straightening of the cervical spine
and moderate muscle spasm or tightness upon palpation. Sensation examination was normal in
both upper and lower extremities to light touch. Dr. Chauhan diagnosed cervical strain, cervical
radiculopathy, and cervical spinal stenosis. He opined that there was a causative connection
between appellant’s work injury of March 8, 2013 and her cervical spine conditions and that
appellant had an occupational disease in addition to the March 8, 2013 work injury.
Dr. Chauhan indicated that appellant remained temporarily totally disabled ongoing from
March 8, 2013 through April 10, 2016.
On October 15, 2015 OWCP expanded her claim to include cervical spinal stenosis,
cervical radiculopathy, and neck sprain.
In a Form CA-116, appellant called OWCP and inquired whether she would receive
wage-loss compensation for the period April 21, 2013 to May 17, 2014 since her claim was
expanded. OWCP advised her that she would need to exercise her appeal rights based on the
June 1, 2015 hearing representative decision. It clarified that even if her treating physician
submitted additional medical reports, OWCP would not reconsider her compensation denial
unless appellant exercised her appeal rights.

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On November 5, 2015 appellant underwent a physical therapy consultation with Mario
Rodriguez, a physical therapist, who noted that appellant demonstrated decreased cervical range
of motion, multiple areas of muscular tenderness throughout her cervical region, impaired
activity tolerance, and poor posture. Mr. Rodriguez indicated that appellant’s prognosis was fair
based on chronicity of condition. Appellant continued to receive physical therapy treatments and
submit progress notes.
In a December 9, 2015 narrative report, Dr. Chauhan indicated that appellant’s claim
needed to be revisited now that her claim was expanded to include cervical radiculopathy and
cervical spinal stenosis. He noted that because of appellant’s conditions she was totally disabled
from February 21, 2013 through May 17, 2014 and currently ongoing. Dr. Chauhan opined that
appellant’s “pain and residual disability are all due to this accepted diagnosis of cervical
radiculopathy and cervical spinal stenosis.” He requested that, based on this explanation, OWCP
reconsider its most recent decision regarding disability compensation in light of appellant’s
newly accepted conditions.
On June 3, 2016 appellant requested reconsideration of the June 1, 2015 OWCP decision.
She noted that Dr. Chauhan’s December 23, 2015 medical report established that her current
cervical symptoms were causally related to her employment. Appellant also noted that OWCP
expanded her claim to include cervical stenosis and cervical radiculopathy in an October 15,
2015 decision. She contended that she was entitled to disability compensation for the period
April 21, 2013 to May 17, 2014 because her inability to work was causally related to her
accepted conditions of spinal stenosis, cervical region, and radiculopathy.
By decision dated June 16, 2016, OWCP denied appellant’s June 3, 2016 reconsideration
request because it was untimely filed and failed to demonstrate clear evidence of error. It
determined that because appellant’s reconsideration request received on June 3, 2016, more than
one year after the June 1, 2015 merit decision, it was untimely filed. OWCP further found that
appellant’s reconsideration request and evidence submitted failed to demonstrate clear evidence
of error.
LEGAL PRECEDENT
OWCP’s regulations provide that to be entitled to a merit review of an OWCP decision,
an application for reconsideration must be received within one year of the date of the OWCP
decision for which review is sought.4 OWCP, however, may not deny an application for review
solely because the application was untimely filed. It may consider an untimely application for
reconsideration if the evidence or argument contained in the reconsideration request
demonstrates clear evidence of error on the part of OWCP.5 In this regard, OWCP will conduct
a limited review of how the newly submitted evidence bears on the prior evidence of record.6
4

20 C.F.R. § 10.607(a). The Board has found that the imposition of the one-year limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. 5 U.S.C. § 8128(a); Leon D.
Faidley, Jr., 41 ECAB 104, 111 (1989).
5

See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

See id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992).

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Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.8 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.9 The evidence
submitted must not only be of sufficient probative value to create a conflicting medical opinion
or demonstrate a clear procedural error, but must be of sufficient probative value to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.10 The Board has held that even a report such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical evidence requiring further development is not sufficient to
demonstrate clear evidence of error.11 OWCP’s procedures further provide that the term clear
evidence of error is intended to represent a difficult standard.12 If clear evidence of error has not
been presented, OWCP should deny the application by letter decision, which includes a brief
evaluation of the evidence submitted and a finding made that clear evidence of error has not been
shown.13
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.14
ANALYSIS
OWCP’s last merit decision was dated June 1, 2015, which denied appellant’s disability
compensation claim for the period April 21, 2013 to May 17, 2014. On June 3, 2016 it received
appellant’s request for reconsideration. By decision dated June 16, 2016, OWCP denied
appellant’s request for reconsideration because it was untimely filed and failed to demonstrate
clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. By decision dated June 1, 2015, an OWCP hearing representative
affirmed OWCP’s September 3, 2014 decision, which denied appellant’s claim for wage-loss
7

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

8

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

9

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

10

Annie L. Billingsley, 50 ECAB 210 (1998).

11

A.R., Docket No. 15-1598 (issued December 7, 2015).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011).

13

Id.

14

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

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compensation for the period April 21, 2013 to May 17, 2014. OWCP received appellant’s letter,
which requested reconsideration on June 3, 2016, which was outside of the one-year time limit.15
It was, therefore, untimely. Consequently, appellant must demonstrate clear evidence of error by
OWCP in denying her claim for compensation.16
The Board finds that the evidence submitted by appellant in support of her
reconsideration request does not raise a substantial question as to the correctness of OWCP’s
June 1, 2015 decision and is insufficient to demonstrate clear evidence of error.
Along with her reconsideration request, appellant resubmitted Dr. Chauhan’s May 4,
2015 and Dr. Amireh’s February 18, 2015 medical reports. She also provided additional medical
reports from Dr. Chauhan dated June 18, 2015 to May 3, 2016, which were substantially similar
to his previous reports. As the medical reports were duplicative of reports previously of record,
appellant has not explained how the resubmission of these reports raises a substantial question
concerning the correctness of OWCP’s decision.17
Appellant also provided a December 9, 2015 report by Dr. Chauhan who related that
OWCP should reconsider its most recent decision now that appellant’s claim was expanded to
include cervical radiculopathy and cervical spinal stenosis. Dr. Chauhan opined that appellant’s
“pain and residual disability are all due to this accepted diagnosis of cervical radiculopathy and
cervical spinal stenosis.” The Board finds that this report is insufficient to demonstrate clear
evidence of error as it does not show that OWCP’s denial of her claim was erroneous, nor does it
raise a substantial question as to the correctness of OWCP’s determination that appellant’s
inability to work from the period April 21, 2013 to May 17, 2014 was causally related to her
accepted cervical conditions.18 As previously noted, even a report such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical evidence requiring further development is not sufficient to demonstrate
clear evidence of error.19 Consequently, this report is insufficient to demonstrate clear error by
OWCP with respect to the denial of appellant’s disability compensation claim.
The additional medical reports submitted by appellant are likewise insufficient to
demonstrate clear evidence of error on the part of OWCP as none of the medical reports were
sufficient to shift the weight of the evidence in appellant’s favor.20
15

See Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.1602.4 (October 2011). For decisions
issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and the
application for reconsideration must be received by OWCP within one year of the date of its decision for which
review is sought. The Board notes that while appellant submitted various medical reports after the June 1, 2015
decision, appellant did not request reconsideration in writing until June 3, 2016.
16

Supra note 4; Debra McDavid, 57 ECAB 149 (2005).

17

G.B., Docket No. 16-0319 (issued April 6, 2016).

18

See P.O., Docket No. 13-92 (issued April 4, 2013).

19

Supra note 11.

20

Supra note 10.

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The Board has found that the term “clear evidence of error” is intended to represent a
difficult standard.21 It is not enough merely to show that the evidence could be construed so as
to produce a contrary conclusion.22
On appeal appellant argues the merits of her claim and alleges that the new medical
reports by Dr. Chauhan establish that her inability to work for the period April 21, 2013 to
May 17, 2014 was causally related to her cervical conditions. As previously noted, the Board
does not have jurisdiction to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 6, 2017
Washington, DC

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

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

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

21

James R. Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.5(a) (October 2011).
22

Supra note 9.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, MILITARY OCEAN
TERMINAL, Bayonne, NJ, Employer
__________________________________________

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

Docket No. 15-488
Issued: May 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 5, 2015 appellant, through counsel, filed a timely appeal from a September 5,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established greater than 13 percent impairment of the
left upper extremity, for which she had received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision and order issued
September 19, 2013,2 the Board set aside OWCP’s September 12, 2012 decision affirming a
prior schedule award, and remanded the case to obtain a supplemental report from Dr. Robert
Dennis, a Board-certified orthopedic surgeon and impartial medical examiner. Dr. Dennis had
been selected to resolve the conflict of opinion between Dr. Nicholas Diamond, the attending
osteopath, and Dr. Michael Gordon, the Board-certified orthopedic surgeon and second opinion
physician, regarding the appropriate percentage of impairment to the left arm. The law and facts
of the case as set forth in the Board’s prior decision and order are incorporated herein by
reference.
On remand of the case, OWCP requested that Dr. Dennis provide a supplemental report
explaining why he excluded appellant’s preexisting left elbow condition from his impairment
rating. It advised Dr. Dennis of the Board’s finding that it was well established that, in
determining entitlement to a schedule award, preexisting impairment to the scheduled member is
to be included.
Dr. Dennis provided an October 25, 2013 report. He noted reviewing the medical record
and the Board’s September 19, 2013 decision and order. Dr. Dennis explained that the objective
muscle atrophy, weakness, and restricted motion of the left elbow, observed in an October 5,
2010 examination, were due to appellant’s attempt to “embellish” her condition. He emphasized
that the left elbow deformity was “not relatable to this injury,” but that he considered it on
instruction from an OWCP medical adviser. Dr. Dennis affirmed that the locked left elbow
“occurred at birth or early childhood.” The mechanical impairment observable on examination
“related to the abnormal carrying angle which had to be relatable to a preexisting condition from
long ago,” unrelated to the accepted 1993 injury. Dr. Dennis again emphasized that “[i]t had to
have been long preexisting, and had nothing to do with the work injury or her work capability
subsequent to the injury.” Alternatively, Dr. Dennis asserted that he did take the left elbow
impairment into consideration, but its ultimate exclusion was immaterial because the 13 percent
awarded was overly generous. An OWCP medical adviser provided a November 9, 2013 report
concurring with Dr. Dennis’ finding of 13 percent impairment of the left upper extremity.
By decision dated January 16, 2014, OWCP affirmed the December 22, 2010 schedule
award for 13 percent impairment of the left upper extremity. It found that Dr. Dennis provided
sufficient rationale as to why appellant’s preexisting left elbow impairment should either be
excluded from the schedule award calculation or that it had been included in the 13 percent
rating.
In a January 30, 2014 letter, counsel requested a hearing, held June 19, 2014. At the
hearing, he asserted that Dr. Dennis’ supplemental opinion established that he wrongfully
refused to consider appellant’s preexisting left elbow impairment in his impairment calculation.
Counsel asserted that Dr. Dennis’ opinion should be discounted as his reasoning was
contradictory and inconsistent.
2

Docket No. 13-503 (issued September 19, 2013).

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By decision dated and finalized September 5, 2014, an OWCP hearing representative
affirmed the January 16, 2014 decision, finding that Dr. Dennis’ opinion was sufficiently
rationalized to represent the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA3 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.4 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2008.5 It is well established
that, in determining entitlement to a schedule award, preexisting impairment to the scheduled
member is to be included.6
Section 8123 of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.7 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.8
When OWCP secures an opinion from an impartial medical examiner for the purpose of
resolving a conflict in the medical evidence and the opinion from such examiner requires
clarification or elaboration, OWCP has the responsibility to secure a supplemental report from
the examiner for the purpose of correcting the defect in the original opinion.9 If the specialist is

3

5 U.S.C. § 8107.

4

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

Michael C. Milner, 53 ECAB 446, 450 (2002).

7

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

8

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

9

Harry T. Mosier, 49 ECAB 688 (1998).

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unwilling or unable to clarify or elaborate on his or her opinion as requested, the case should be
referred to another appropriate impartial medical specialist.10
ANALYSIS
OWCP accepted that appellant sustained a C6-7 disc herniation, with left
hemilaminectomy and laminotomy of C5 and C7, left foraminotomy at C5-6 and C6-7, and an
excision of an extruded C6-7 disc on the left. Appellant developed C6-7 radiculopathy into the
left arm.
Dr. Diamond, an attending osteopath, opined that appellant had 23 percent impairment of
the left arm due to the accepted injury and a preexisting locked left elbow with disuse atrophy.
Dr. Gordon, a Board-certified orthopedic surgeon and impartial medical examiner with regard to
a previous medical conflict, found 10 percent impairment of the left arm, modified to 13 percent
by an OWCP medical adviser. OWCP issued a schedule award on December 22, 2010 for 13
percent impairment of the left arm. It then found a new medical conflict between Dr. Gordon
and Dr. Diamond, and appointed Dr. Dennis, a Board-certified orthopedic surgeon, to resolve the
conflict. Dr. Dennis found 13 percent impairment of the left arm. He explained that he excluded
appellant’s locked left elbow from his calculations as it was unrelated to the accepted cervical
spine injury. OWCP then issued March 14 and September 21, 2012 decisions affirming the
schedule award. The Board set aside the September 21, 2012 decision and remanded the case to
OWCP to obtain a supplemental report from Dr. Dennis.
On remand of the case, Dr. Dennis provided an October 25, 2013 supplemental report,
opining that the left elbow deformity and disuse atrophy were appellant’s voluntary attempts to
embellish her condition. However, he found that the left elbow conditions were “long
preexisting,” occurring at birth or early childhood. Dr. Dennis did not provide medical rationale
harmonizing these divergent views. Also, although he acknowledged that preexisting conditions
were to be included in schedule award ratings, he reiterated his prior, incorrect assertion that the
left elbow impairment should not be considered as it had “nothing to do with the work injury.”
Dr. Dennis concluded by asserting both that he did include the left elbow condition in his
impairment rating and that he excluded it. He commented that either way, it did not alter the 13
percent awarded as he felt this was overly generous. Dr. Dennis thus stated that appellant’s left
elbow condition and muscle atrophy should be excluded from the impairment rating, that he did
include it, and that the issue was immaterial.
The Board finds that Dr. Dennis’ supplemental report is too equivocal and contradictory
to represent the weight of the medical evidence. It does not contain sufficient medical rationale
to resolve the outstanding conflict of medical opinion.11 As Dr. Dennis was unable to clarify his
opinion, OWCP must select a new impartial medical examiner.12 The case will be remanded to
OWCP for appropriate development, including selection of a new impartial medical examiner.
10

Guiseppe Aversa, 55 ECAB 164 (2003).

11

Supra note 8.

12

Supra note 10.

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Following this and all other development deemed necessary, OWCP shall issue an appropriate
decision in the case.
On appeal, counsel asserts that although Dr. Dennis acknowledged that appellant had a
preexisting left elbow condition, he improperly excluded objective weakness, atrophy, and
restricted motion in his impairment rating of the left arm. He requests that OWCP disregard
Dr. Dennis’ opinion and accord Dr. Diamond the weight of the medical evidence. As stated
above, Dr. Dennis was unable to clarify his opinion. OWCP must select a new impartial medical
examiner.
CONCLUSION
The Board finds that the case is not in posture for a decision due to an outstanding
conflict of medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 5, 2014 is set aside, and the case remanded to OWCP
for additional development consistent with this decision and order.
Issued: May 7, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1403
Issued: February 11, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 13, 2019 appellant, through her representative, filed a timely appeal from a
December 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1

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

The Board notes that, following the December 17, 2018 decision, OWCP received additional evidence. Appellant
also submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1).
Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish cervical spine and
left shoulder conditions causally related to the accepted November 23, 2016 employment incident.
FACTUAL HISTORY
On November 29, 2016 appellant, then a 55-year-old sales, services, and distribution clerk,
filed a traumatic injury claim (Form CA-1) alleging that, on November 23, 2016, when scanning
parcels which had fallen to the floor, a heavy box fell from a collapsing pallet and struck the back
of her head while in the performance of duty. Immediately after the incident, she was transported
by ambulance to a hospital. Appellant stopped work on the date of injury and did not return.
In support of her claim, appellant submitted November 29, 2016 reports by Dr. Brett Spain,
an osteopathic physician Board-certified in family practice. Dr. Spain diagnosed cervical
degenerative disc disease, left upper extremity radiculopathy, and a probable herniated nucleus
pulposus. He held appellant off from work for four weeks.
In a December 20, 2016 development letter, OWCP notified appellant of the deficiencies
in her claim, enclosed a questionnaire for her completion, and afforded her 30 days to submit
additional evidence.
In response, appellant provided a December 29, 2016 statement describing the onset of left
shoulder pain and neck stiffness on November 23, 2016. She submitted a November 23, 2016
report by Dr. Joseph J. Chirayil, Board-certified in emergency medicine, who obtained a
computerized tomography (CT) scan of appellant’s head demonstrating no acute intracranial
hemorrhage. He diagnosed a traumatic head injury.
Dr. Spain provided periodic reports from December 9, 2016 through January 24, 2017
noting a history of the November 23, 2016 employment incident. On examination, he observed
hyperlordosis of the upper cervical spine, hyperkyphosis of the lower cervical spine, left
paracervical spasm, and subacromial and acromioclavicular tenderness of the left shoulder.
Dr. Spain diagnosed left shoulder pain, calcific tendinopathy of the left shoulder, a probable fullthickness left rotator cuff tear, left acromioclavicular arthropathy, subacromial impingement of the
left shoulder, cervical degenerative joint disease, left upper extremity radiculopathy, and a
probable herniated nucleus pulposus. He held appellant off from work.
By decision dated February 2, 2017, OWCP accepted that the November 23, 2016
employment incident occurred as alleged, but denied appellant’s claim as causal relationship was
not established.

3

5 U.S.C. § 8101 et seq.

2

In a letter postmarked February 14, 2017, appellant requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, held on August 2, 2017. She
submitted additional medical evidence.
In reports from December 27, 2016 through March 8, 2017, Dr. Spain opined that the
striking force of the falling parcel and the excessive loading force of bracing herself as she fell
forward were competent to cause cervical radiculopathy, herniated cervical discs, a left rotator cuff
tear, and aggravation of preexisting arthritic changes in her left shoulder and cervical spine.4
On April 20, 2017 Dr. Charles Ruotolo, a Board-certified orthopedic surgeon, performed
a left shoulder arthroscopy with rotator cuff repair and subacromial decompression. He provided
periodic progress reports indicating his support for casual relationship.
In an August 20, 2017 report, Dr. Spain opined that the November 23, 2016 employment
incident caused an overload to appellant’s left shoulder, weakening the tendons and resulting in a
left rotator cuff tear. He explained that disc bulges and herniations caused nerve root impingement
resulting in left upper extremity radiculopathy.
By decision dated September 19, 2017, an OWCP hearing representative affirmed the
February 2, 2017 decision.
On September 18, 2018 appellant, through her representative, requested reconsideration.
Appellant submitted additional evidence.
In a September 18, 2018 report, Dr. Spain opined that the November 23, 2016 employment
incident caused the diagnosed cervical disc herniations, left rotator cuff tear, and cervical
radiculopathy.
In a September 20, 2018 report, Dr. Spain opined that when the package struck the back of
appellant’s head during the November 23, 2016 employment incident, this caused her “neck
muscles and discs to go forward rapidly,” creating a whiplash effect which injured the cervical
discs and the associated nerves from levels C2-3 through C6-7, resulting in radiculopathy into the
left upper extremity. He also explained that the impact of the falling package and the stresses of
bracing herself to avoid the fall had aggravated preexisting osteoarthritis of the left shoulder,
resulting in a cascade of cartilage degeneration, inflammation, bursitis, and subacromial
impingement. Dr. Spain reiterated that the impact of the falling package was competent to cause
the diagnosed rotator cuff tear.
By decision dated December 17, 2018, OWCP denied modification of the September 19,
2017 decision.

4

A February 20, 2017 magnetic resonance imaging (MRI) scan of the cervical spine demonstrated multilevel disc
bulges and abnormalities, most severe at C6-7 on the right with nerve root impingement. A February 20, 2017 MRI
scan of the left shoulder demonstrated a full-thickness supraspinatus tear, partial infraspinatus and biceps tendon tears,
atrophy of the supraspinatus and infraspinatus muscles, and significant acromioclavicular osteoarthrosis and bursitis.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the performance of
duty it must first be determined whether fact of injury has been established.8 First, the employee
must submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.9 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
Causal relationship is a medical issue, and rationalized medical opinion evidence is
required to establish causal relationship.11 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between a diagnosed
condition and the specific employment incident identified by the claimant.12

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

J.J., Docket No. 19-0789 (issued November 22, 2019); A.D., Docket No. 17-1855 (issued February 26, 2018);
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008).
11

J.J., id.; L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB
140 (2000).
12

See B.J., Docket No. 18-1276 (issued February 4, 2019); Victor J. Woodhams, 41 ECAB 345 (1989).

4

In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of her claim, appellant submitted a series of reports from Dr. Spain, her
attending physician, who consistently opined that the accepted November 23, 2016 employment
incident aggravated preexisting osteoarthritis of the left shoulder, and caused cervical disc
herniations with radiculopathy. He accurately described the incident in which a heavy parcel fell
and struck appellant on the back of her head, causing her to fall forward to the floor. Dr. Spain
specified the physiologic effects of the forces generated by the falling parcel, bracing for impact,
and falling. He explained the pathophysiologic connection between those forces and the diagnosed
herniated cervical discs, left rotator cuff tear, subacromial impingement, and aggravation of
preexisting osteoarthritis of the left shoulder and cervical spine.
Accordingly, the Board finds that Dr. Spain provided an affirmative and rationalized
opinion on causal relationship. Dr. Spain identified the accepted November 23, 2016 employment
incident, identified findings on examination and diagnostic testing, and explained how the
identified employment incident would cause the claimed cervical spine and left shoulder
conditions. The Board thus finds that Dr. Spain’s reports are of sufficient probative quality to
require further development of the case record by OWCP.14 Also, his opinion is uncontroverted
in the record, as Dr. Ruotolo, the orthopedic surgeon who performed a left rotator cuff repair on
April 20, 2017, also supported causal relationship.
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is
done.16
On remand OWCP should refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician should provide an evaluation and a
rationalized medical opinion as to the relation of the claimed cervical spine and left shoulder

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

14

J.J., supra note 10; J.G., Docket No. 17-1062 (issued February 13, 2018). See also John J. Carlone, 41 ECAB
354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
15

J.J., supra note 10; A.P., Docket No. 17-0183 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223
(1999); William J. Cantrell, 34 ECAB 1233, 1237 (1983).
16

J.J., supra note 10; R.B., Docket No. 18-0162 (issued July 24, 2019); William J. Cantrell, id.

5

conditions to the accepted November 23, 2016 employment incident. After such further
development of the case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Royal Oak, MI,
Employer
__________________________________________

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

Docket No. 09-1384
Issued: January 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2009 appellant, through her representative, filed a timely appeal of the Office
of Workers’ Compensation Programs’ June 24, 2008 nonmerit decision which denied her request
for reconsideration on the grounds that it was not timely filed and failed to establish clear
evidence of error. Because more than one year has elapsed from the last merit decision dated
May 7, 2007 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
FACTUAL HISTORY
On February 20, 2007 appellant, then a 55-year-old mail handler, filed an occupational
disease claim, alleging that she developed right carpal tunnel syndrome due to factors of her

federal employment. She first became aware of her condition in March 2005 and first attributed
her carpal tunnel syndrome to her employment on June 22, 2006.
In a letter dated March 26, 2007, the Office requested additional factual and medical
evidence in support of appellant’s claim. It allowed 30 days for a response. Appellant submitted
a May 15, 2006 disability certificate from Dr. James E. Beale, Jr., a Board-certified orthopedic
surgeon, who diagnosed tendinitis of the right wrist. On June 22 and July 12, 2006 Dr. Beale
diagnosed carpal tunnel syndrome of the right wrist. He also completed a form report on
September 8, 2006 diagnosing bilateral carpal tunnel syndrome and indicating with a checkmark
“yes” that the condition was due to appellant’s employment. In a report dated December 5,
2006, Dr. Beale stated that appellant had discomfort in both wrists and hands, which she
associated with work activities. He diagnosed carpal tunnel syndrome and appellant underwent a
right carpal tunnel release on September 28, 2006. In a report dated April 18, 2007, Dr. Beale
stated that appellant underwent surgery to her right hand for release of stenosing tenosynovitis on
February 27, 2007.
By decision dated May 7, 2007, the Office denied appellant’s claim finding that she
failed to submit a factual statement describing the employment factors which she felt caused or
contributed to her diagnosed condition of bilateral carpal tunnel syndrome. It also found that the
medical evidence was not sufficient to meet appellant’s burden of proof.
Appellant submitted a narrative statement describing her employment duties as lifting up
to 70 pounds, reaching, grabbing, pushing, pulling, loading trucks and lifting heavy sacks of
mail. She stated that her job functions required grasping mail for 8 to 10 hours a day.
On March 28, 2008 the Office received an undated and unsigned appeal form with a
checkmark beside “request for reconsideration, which contained appellant’s claim number. In an
October 31, 2007 report, Dr. Beale listed her employment activities. He attributed her condition
to her employment duties. Dr. Douglas W. Lee, a neurologist, performed an electromyographic
examination on August 15, 2006, which demonstrated moderately advanced bilateral carpal
tunnel syndrome greater on the right with thenar muscle denervation on the right.
In a letter dated June 4, 2008, the Office informed appellant that, without a signature and
date on the request for reconsideration, the appeal form could not be processed. Appellant
completed a request for reconsideration on June 6, 2008. By decision dated June 24, 2008, the
Office denied her request for reconsideration on the grounds that it was untimely filed and failed
to establish clear evidence of error on the part of the Office.
LEGAL PRECEDENT
A request for reconsideration must be in writing and set forth argument and contain
evidence showing that the Office erroneously applied or interpreted a specific point of law, or
advance a relevant legal argument not previously considered by the Office or contain relevant
and pertinent new evidence not previously considered by the Office.1 No special form is
required to request reconsideration, but the request must identify the decision for which
1

20 C.F.R. § 10.606.

2

reconsideration is being requested and be accompanied by relevant and pertinent new evidence
or argument not considered previously.2
ANALYSIS
The Board finds that this case is not in posture for a decision. Appellant submitted a
timely request for reconsideration, which was in writing and identified her claim number. This
request was received by the Office on March 28, 2008 within one year of the last merit decision
dated May 7, 2007 This request was accompanied by new medical evidence not previously
considered by the Office. Neither the Office’s regulations nor the Office’s procedure manual
require that a request for reconsideration must be signed and dated by appellant as stated by the
Office in the June 4, 2008 letter. The Office’s procedure manual instead provides: “If the
contested decision or issue cannot be reasonably determined from the claimant’s request, the
[claims examiner] should return a copy of the application to the claimant for clarification and
inform the claimant that [the Office] will take no further action on the request unless clarification
is submitted.”3 In this case, as there was only one decision in the record no additional
clarification from appellant was necessary.
Appellant’s March 28, 2008 request for reconsideration met the standards as detailed in
the Office’s regulations and procedure manual. The Board finds that the Office should have
addressed appellant’s March 28, 2008 request for reconsideration and evaluated the evidence
submitted in accordance with section 10.606 of the Office’s regulations.4 On remand, the Office
should review the evidence submitted and issue an appropriate decision.
CONCLUSION
The Board finds that the Office improperly dismissed appellant’s timely March 28, 2008
request for reconsideration and that the case must be remanded for a review of the evidence
submitted with this request and an appropriate decision.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (January 2004).

3

Id. at Chapter 2.1602.3 (January 2004).

4

20 C.F.R. § 10.606(b).

3

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: January 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
LOGISTICS & DISTRIBUTION CENTER,
Swedesboro, NJ, Employer
__________________________________________

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

Docket No. 19-1698
Issued: June 18, 2020

Case Submitted on the Record

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

JURISDICTION
On August 8, 2019 appellant, through counsel, filed a timely appeal from a March 14, 2019
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.3

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.

3
The Board notes that following the March 14, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion by denying appellant’s request for
authorization of additional lumbar surgery.
FACTUAL HISTORY
On August 1, 2002 appellant, then a 46-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she developed a low back condition due to factors of her federal
employment including lifting tubs at work. On February 14, 2003 OWCP accepted her claim for
herniated disc at L5-S1 with sciatica and lumbosacral sprain/strain.
On February 15, 2003 appellant underwent an OWCP-authorized posterior laminectomy,
lateral recess decompression, and excision of a herniated disc at L5-S1.
On June 29, 2004 appellant underwent an OWCP-authorized anterior lumbar antibody
fusion with posterior second pedicle screws and midline left L5-S1 nerve root decompression.
On February 6, 2007 appellant underwent OWCP-authorized removal of spinal
instrumentation, laminectomy, and left hemi-laminectomy with decompression of the left L5 and
S1 nerve roots.
On December 13, 2013 appellant underwent OWCP-authorized total laminectomies of L3
and L4 and medial facetectomy and foraminotomies with a lumbar interbody cage.
An electromyography and nerve conduction velocity (EMG/NCV) testing dated
January 11, 2016 demonstrated an abnormal study, left greater than right chronic
polyradiculopathy with no acute features, and no evidence to suggest peripheral polyneuropathy
of the bilateral lower extremities.
A magnetic resonance imaging (MRI) scan of appellant’s lumbar spine dated February 10,
2016 demonstrated lumbosacral transitional vertebrae with lumbarization of S1 resulting in six
lumbar vertebrae and an immobile disc at L6-S1, satisfactory postsurgical changes of
posterolateral spinal fusion from L3-4 with hardware in good position with no loosening,
satisfactory intervertebral fusion at L3-4 and L5-6 with no sign of nonunion and postsurgical
changes of laminectomy from L3-5, minimal posterior placement of L2 on L3 related to facet
arthrosis, and disc protrusion and osteophyte at L4-5 surrounded by contracted and enhancing
granulation tissue indenting on the dural sac and mildly narrowing the bilateral intervertebral
foramina, with clinical correlation recommended.
In a report dated February 18, 2016, Dr. P. Tymour Boulos, a Board-certified
neurosurgeon, indicated that appellant was status post L4 fusion with a previous L5-S1 fusion. He
noted that she had significant progression of pathology at this intervening segment. Dr. Boulos
recommended a “re-do” decompression and subsequent stabilization of the rods.
On October 24, 2016 appellant requested authorization for lumbar decompression of the
spinal cord, lumbar spine fusion, insertion of a spinal fixation device, and application of a spinal
prosthetic device. With her request, she attached an October 14, 2016 report from Dr. Boulos. In
this report, Dr. Boulos noted appellant’s previous surgical procedures and indicated that she had
2

developed worsening problems at the L4-5 segment. He recommended a final procedure of L4-5
decompression and stabilization with transforaminal lumbar interbody fusion and pedicular screw
instrumentation connecting the constructs to the pelvis.
On November 2, 2016 OWCP forwarded appellant’s medical record and a statement of
accepted facts (SOAF) to a district medical adviser, Dr. Todd Fellars, a Board-certified orthopedic
surgeon, in order to determine whether appellant’s requested lumbar surgery was medically
necessary.
In a report dated November 22, 2016, Dr. Fellars indicated that he could not agree or
disagree with appellant’s treating provider’s recommendation for additional lumbar surgery. He
explained that the only recent clinical note he was given to review did not contain appellant’s
physical examination findings. Dr. Fellars noted that while appellant’s treating physician reported
she had pain and weakness in her legs and her EMG demonstrated chronic L4 to S1 radiculopathy,
her MRI scan from February 2016 showed no surgical indication, and there was no correlation
with the L4-5 level documented. He noted that appellant’s EMG showed chronic radiculopathy
despite no evidence of nerve root impingement at L4-5, L5-6, and L6-S1.4 Dr. Fellars explained
that she needed to have verified imaging findings that correlated with physical examination, as
nonverifiable radicular complaints did not improve with surgery. He concluded that as the
requested surgery would not treat documented symptoms, but rather only imaging findings, he
could not recommend the surgery as medically necessary.
On March 22, 2017 OWCP referred appellant, along with the medical record and a SOAF,
to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In a report dated April 10, 2017, Dr. Askin reviewed the medical record and SOAF. He
noted that appellant had undergone three surgical procedures at the L5-S1 level, as well as an
additional surgical procedure in 2007 to remove hardware that had been implanted. Appellant
perceived that particular disc levels had been responsible for particular groupings of symptoms,
but injection treatments and surgical procedures had failed to provide any symptomatic benefit.
Dr. Askin noted that having completely failed to be symptomatically managed by any of the
surgical treatments to date, appellant was absolutely convinced that she needed another surgical
procedure to be performed by the same surgeon who failed to address her complaints in her most
recent surgery. He documented appellant’s physical examination findings and reported the
diagnosis found on examination was age-appropriate degenerative disc disease, now status post
multiple surgical procedures. Dr. Askin noted that while there was no reason to doubt that
appellant had back pain associated with her degenerative disc disease, the original diagnosis of
mechanical back pain had been distorted by the manner in which she interacted with health care
providers, and it was difficult to explain how her employment injury would have resulted in so
many surgical procedures. He found that the only disabling residuals of appellant’s accepted
conditions were those imposed by inappropriate surgical procedures. Dr. Askin opined that it
would be highly inappropriate for appellant to undergo further surgical treatment. He concluded
that the proposed surgical procedure was not medically necessary and there was about zero
likelihood that she would be improved by any further surgery, but rather appellant would be placed
at significant potential for harm if she was subjected to another surgery.

4

Dr. Fellars explained that appellant has a transitional anatomy, leading to an L6 disc level in her spine.

3

By decision dated April 27, 2017, OWCP denied authorization for the proposed
decompression and fusion at L4-5. It found that the weight of the medical evidence rested with
Dr. Askin.
On May 2, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
August 17, 2017.
In a report dated August 4, 2017, Dr. Boulos responded to Dr. Askin’s report of
April 10, 2017. He noted that appellant had significant pathology at L4-5, which was located
between the segments L3-4 and L5-S1, causing her mechanical pain in her back as well as leg
symptoms. Dr. Boulos explained that if he unpinned these areas and stabilized them, she would
improve. He noted his belief that the conditions to be treated were related to the initial injury, as
well as to subsequent treatment. Dr. Boulos explained that, while there was abnormality at L4-5,
the stresses of fusion operations could cause further injury to the adjacent segments and appellant
had undergone a fusion at L5-S1 in 2004. He noted that Dr. Askin had indicated that this fusion
in 2004 was causally related to appellant’s employment injury.
By decision dated October 12, 2017, OWCP’s hearing representative vacated the April 27,
2017 decision of, finding that an unresolved conflict of medical opinion existed between
Drs. Askin and Boulos. The hearing representative directed OWCP to refer appellant to an
impartial medical examiner (IME) in order to resolve the conflict.
On June 28, 2018 OWCP referred appellant to Dr. Jonas Gopez, a Board-certified
neurosurgeon, to serve as an IME.
In a report dated July 20, 2018, Dr. Gopez reviewed appellant’s history of injury and the
medical record. He discussed appellant’s surgical procedures in 2003, 2004, 2007, and 2013. On
physical examination Dr. Gopez observed tenderness to palpation at the midline and paralumbar
regions of the lumbosacral junction and extending to the superior gluteal regions bilaterally with
mild loss of the normal lordotic curve and restriction of lumbar motion on extension. He also
observed appellant’s mildly asymmetric gait favoring the left lower extremity. Dr. Gopez noted
that an MRI scan taken on July 2, 2018 demonstrated no significant change compared to the MRI
scan taken on February 10, 2016. He diagnosed status post work-related injury on July 20, 2002
with accepted conditions of lumbosacral sprain, herniated disc at L5-S1 with sciatica, status post
four lumbar surgeries with subsequent failed back syndrome, and chronic back and bilateral lower
extremity pain. Dr. Gopez indicated that appellant was currently at maximum medical and surgical
improvement and, in response to OWCP’s inquiry regarding continuing disability, that she was
unable to return to any work.
Dr. Gopez explained that the only objective findings found on appellant’s physical
examination were related to the four lumbar surgeries performed following her work-related
injury. As a result, appellant’s lumbar spine had been permanently altered with fusion procedures
performed at L3-4 and L5-S1. Dr. Gopez noted that none of the surgeries had provided her with
any significant improvement in her symptoms, which was commonly referred to as failed back
syndrome. He opined that no further treatment, including lumbar surgical intervention, was
warranted, with the exception of medications and a home exercise program. Dr. Gopez explained
that she was not a candidate for further decompression and fusion at the L4-5 level, as she had
already had four other lumbar surgical procedures, all of which had failed to provide significant
4

relief. He opined that performing a fifth surgery would not improve her overall condition and
posed more risks than benefits.
By decision dated August 22, 2018, OWCP denied authorization for the proposed lumbar
decompression of the spinal cord, lumbar spine fusion, insertion of a spinal fixation device, and
application of a spinal prosthetic device. It noted that Dr. Gopez, the IME, had indicated that the
requested surgery were inappropriate, that appellant would not improve with further surgical
intervention, that she was not a candidate for further decompression and fusion, and that another
surgery would not improve her condition and posed more risks than benefits.
On August 28, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. On January 8, 2019 counsel requested
a review of the written record in lieu of an oral hearing.
In a report dated January 24, 2019, Dr. Nancy Kim, Board-certified in physical medicine
and rehabilitation, reviewed appellant’s history of injury and current complaints of low back pain
with radiation to the lower extremities. On physical examination of the lumbar spine, she observed
tenderness to palpation, limited flexion, and a positive straight leg raise test. Dr. Kim diagnosed
persistent bilateral low back and lower extremity radicular pain related to lumbar disc
derangement; chronic low back pain and chronic radicular pain from her July 20, 2002 workrelated injury; status post microdisc/decompression/fusion and subsequent hardware removal;
status post bilateral laminectomies and facetectomy/foraminectomies at L2-3 and L4-5 with
interbody cage at L3-4 and posterior fusion at L3-4; and persistent pain despite treatment. She
opined that appellant would benefit from L4-5 surgery with Dr. Boulo, noting that appellant was
aware it would not eliminate all of her pain, but may improve it.
By decision dated March 14, 2019, an OWCP hearing representative affirmed the
August 22, 2018 decision.
LEGAL PRECEDENT
Section 8103 of FECA5 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief , reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.6
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided, with the only limitation on OWCP’s authority being that of
reasonableness.7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
5

Supra note 2 at § 8103.

6

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).

7
D.W., Docket No. 19-0402 (issued November 13, 2019); see also Daniel J. Perea, 42 ECAB 214, 221 (1990)
(holding that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or administrative actions which are contrary to both logic, and probable deductions from
established facts).

5

an employment-related injury or condition.8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.9 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.10
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.11
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.13
ANALYSIS
The Board finds that OWCP did not abuse its discretion by denying appellant’s request for
authorization of additional lumbar surgery.
OWCP properly found that a conflict in medical opinion arose between Dr. Boulos
appellant’s attending physician, and Dr. Askin, an OWCP referral physician, regarding whether
the proposed lumbar surgery should be authorized. Consequently, it referred appellant to
Dr. Gopez, an IME, to resolve the conflict in medical opinion pursuant to 5 U.S.C. § 8123(a).14
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Gopez, who examined appellant, reviewed the medical evidence, and found that the proposed
lumbar surgery was not medically necessary and should not be authorized.
In his report dated July 20, 2018, Dr. Gopez explained that the only objective findings
found on appellant’s physical examination were related to the four lumbar surgeries performed
following her work-related injury. As a result, appellant’s lumbar spine had been permanently
altered with fusion procedures performed at L3-4 and L5-S1. Dr. Gopez explained that none of
the surgeries had provided her with any significant improvement in her symptoms, which was
commonly referred to as failed back syndrome. He explained that appellant was not a candidate
for further decompression and fusion at the L4-5 level, as she had already had four other lumbar
surgical procedures, all of which had failed to provide significant relief. Dr. Gopez opined that

8

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

9

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

10

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; K.C., Docket No. 18-0378 (issued June 18, 2019).

12

Id.

13

J.H., Docket No. 19-0513 (issued September 24, 2019).

14

R.M., supra note 8.

6

performing a fifth surgery would not improve her overall condition and posed more risks than
benefits.
In situations where the case is referred to an IME for the purpose of resolving a medical
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.15 The Board finds that Dr. Gopez provided a
well-rationalized opinion based on a complete background, his review of the SOAF, the medical
record, and his examination findings. Dr. Gopez’s opinion that the requested lumbar spine
procedures were not medically warranted for the accepted conditions is entitled to special weight
and represents the weight of the evidence.16
Following Dr. Gopez’s evaluation, in a report dated January 24, 2019, Dr. Kim noted
appellant’s current physical examination findings and indicated that she would benefit from
another lumbar surgery. She also noted that appellant wanted to proceed with the procedure even
though she was aware that it would not eliminate all of her lumbar pain. While Dr. Kim opined
that appellant would benefit from the proposed surgery, she failed to provide a reasoned
explanation for her opinion and thus it is of limited probative value.17
The only limitation on OWCP’s authority in approving or denying service under FECA is
one of reasonableness.18 OWCP obtained an impartial medical examination by Dr. Gopez who
opined that the requested surgery was not warranted for the accepted conditions. It, therefore, had
sufficient evidence upon to deny surgery and did not abuse its discretion.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s request for
authorization of additional lumbar surgery.

15

C.W., Docket No. 17-0918 (issued January 5, 2018); Patricia J. Glenn, 53 ECAB 159 (2001).

16

See P.F., Docket No. 16-0693 (issued October 24, 2016).

17

See J.L., Docket No. 18-0503 (issued October 16, 2018).

18

Supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the March 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2020
Washington, DC

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

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

Christopher J. Godfrey, Deputy Chief Judge, concurring:
I join the majority opinion in finding that OWCP did not abuse its discretion in denying
appellant’s request for authorization of additional lumbar surgery. I write this opinion as I find
the medical opinion of Dr. Gopez, the IME, is not a rationalized medical opinion, but rather is
conclusory in nature. While I concur that OWCP has not abused its discretion by denying the
requested authorization for surgery, I do not find that the report of Dr. Gopez is entitled to the
special weight accorded to an IME. As noted in this decision, in order to be accorded the special
weight, an IME’s opinion must be sufficiently well-reasoned and based upon a proper factual
background.1 As Dr. Gopez merely concluded that the surgery was not warranted, without
providing a rationalized opinion to explain why, I cannot find that the IME’s report is entitled to
the special weight of the medical evidence. However, when his report is read together with the
opinion of Dr. Askin, the second opinion physician, I find that OWCP did not abuse its discretion
in denying authorization for further surgery.

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

1

J.H., Docket No. 19-0513 (issued September 24, 2019).


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES MEDICAL CENTER,
Bay Pines, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 05-943
Issued: May 23, 2007

Case Submitted on the Record

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

JURISDICTION
On March 15, 2005 appellant filed a timely appeal from a February 3, 2005 decision of
the Office of Workers’ Compensation Programs affirming her pay rate for compensation
purposes. Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3), the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether the Office properly determined that appellant’s wages from
concurrent, similar private-sector employment are not to be included in calculating her pay rate
for compensation purposes.
FACTUAL HISTORY
The Office accepted that on May 17, 2001 appellant, then a 53-year-old intensive care
nurse, sustained a cervical strain while restraining an unruly patient. She began full-time work
as a nurse at the employing establishment on January 19, 1999, in a fixed position within the

employing establishment at a fixed rate of pay. Appellant stopped work shortly after the
May 17, 2001 injury. She received wage-loss compensation on the daily rolls for total disability
beginning on July 16, 2001. The Office calculated appellant’s pay rate for compensation
purposes based on her full-time earnings as a nurse at the employing establishment, with an
effective date of June 1, 2001.
In a February 21, 2002 letter, appellant requested reimbursement for her inability to work
her second job as a private-sector intensive care nurse for StarMed Health Personnel Inc. She
submitted pay stubs showing earnings from October 17, 2000 to May 13, 2001.
In a March 4, 2003 letter, the Office advised appellant that her concurrent private-sector
employment did not entitle her to an expanded pay rate. The Office explained that, according to
5 U.S.C. § 8114, a full-time federal employee who has been “employed for 11 months prior to
his/her approved injury [was] not entitled to an expanded pay rate which would include any
concurrent employment.” The Office found that, as appellant was employed full time at the
employing establishment for more than 11 months prior to the May 17, 2001 injury, she was “not
entitled to reimbursement of lost concurrent” private-sector employment.
Appellant returned to work in a part-time light-duty position on August 15, 2002. She
received wage-loss compensation for intermittent absences through April 2004 and continuing.
The Office continued to base appellant’s wage-loss compensation on her earnings at the
employing establishment.
In an August 19, 2003 letter, appellant’s attorney representative asserted that she was
entitled to an expanded pay rate for her concurrent, similar private-sector employment. On
November 21, 2003 appellant filed a claim for compensation for “concurrent employment wage
loss” from May 17, 2001 onward.
By decision dated December 9, 2003, the Office denied appellant’s request for an
expanded pay rate on the grounds that she performed her federal job for more than 11 months
prior to the accepted May 17, 2001 injury. The Office found that appellant’s pay rate was
properly calculated under section 8114 of the Federal Employees’ Compensation Act.
Appellant requested an oral hearing, held December 1, 2004. At the hearing, she stated
that she worked concurrently as a nurse in the private sector and at the employing establishment
for more than one year prior to the May 17, 2001 injury. Appellant did not resume her
private-sector employment after the May 17, 2001 injury. She submitted federal tax documents
and pay stubs showing that she earned $3,981.00 in 2000 and $4,239.44 in 2001 as a
private-sector nurse.
By decision dated and finalized February 3, 2005, an Office hearing representative
affirmed the December 3, 2003 decision. The hearing representative found that appellant’s
“employment with StarMed [Health Personnel, Inc] [was] both concurrent and similar” to her
federal employment. However, according to the Office’s procedures, “a pay rate based on fulltime employment for at least 11 months prior to the injury may not be expanded to include the
pay earned in concurrent employment, even if such employment is similar [Emphasis in
original.]”

2

LEGAL PRECEDENT
The terms of the Act1 are specific as to the method and amount of payment of
compensation. Neither the Office nor the Board has the authority to enlarge the terms of the Act
or to award benefits under any terms other than those of the statute. The applicable provisions of
the Act specify that compensation for disability shall be computed on the basis of the employee’s
monthly pay as defined in the Act.2
With respect to the calculation of appellant’s pay rate for compensation purposes,
sections 8114(d)(1) and (2) of the Act provide for different methods of computation of average
annual earnings depending on whether the employee worked in the employment in which she
was injured substantially for the entire year immediately preceding the injury and would have
been afforded employment for substantially a whole year, except for the injury.3 Section
8114(d)(1) of the Act provides, in pertinent part, that average annual earnings are determined as
follows: “If the employee worked in the employment in which he was employed at the time of
his injury during substantially the whole year immediately preceding the injury and the
employment was in a position for which an annual rate of pay -- (A) was fixed, the average
annual earnings are the annual rate of pay.” Section 8114(d)(3) of the Act provides an
alternative method for determination of pay to be used for compensation purposes when the
methods provided in the foregoing sections of the Act cannot be applied reasonably and fairly.4
ANALYSIS
Appellant worked at the employing establishment as a full-time nurse beginning on
January 19, 1999, at a fixed rate of pay. The Office accepted that she sustained a cervical strain
on May 17, 2001. Appellant received wage-loss compensation for periods of total and partial
disability from July 6, 2001 onward. As she worked full time at the employing establishment for
more than the whole year prior to the May 17, 2001 injury, the Office computed her
compensation pay rate using her actual earnings. Appellant contended that she was entitled to an
expanded pay rate as she worked as an intensive care nurse in the private sector concurrently
with her federal employment. By a December 9, 2003 decision affirmed on February 3, 2005,
the Office denied appellant’s request for an expanded pay rate as she had worked full time in her
federal position for more than one year prior to the accepted May 17, 2001 injury.
The Board finds that the Office properly computed appellant’s pay rate for compensation
purposes. Appellant worked full time in the date-of-injury position during substantially the
whole year before the injury. Her employment was in a fixed position with the employing
establishment. Therefore, for calculation of appellant’s pay rate section 8114(d)(1) of the Act
does apply.
1

5 U.S.C. § 8114(d)(1), (2).

2

Gerald A. Karth, 48 ECAB 194, 197 (1996).

3

5 U.S.C. § 8114(d)(1), (2).

4

Id. at § 8114(d)(3).

3

Appellant alleged that, to fairly compensate for her loss of income, the Office should
include her earnings as a private sector nurse in computing her pay rate. However, in this case,
subsection (d)(1) clearly applies, as explained above. Further, the Office’s procedures provide:
“A pay rate based on full-time federal employment for at least 11 months prior to the injury may
not be expanded to include the pay earned in concurrent employment, even if that employment is
similar to the federal duties.”5 Appellant was a full time, fixed employee who worked for the
employing establishment during substantially the whole year prior to her injury. Her employing
establishment earnings, therefore, constitute her average annual earnings for purposes of
computing her pay rate. Thus, the Office’s February 3, 2005 decision is proper under the law
and facts of this case.6
CONCLUSION
The Board finds that the Office properly determined that appellant’s wages from
concurrent, similar private-sector employment are not to be included in calculating her pay rate
for compensation purposes.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.4(a)(3)(a)
(April 2002).
6

The Office’s finding of similar private-sector employment distinguishes the present case from Irwin E.
Goldman, 23 ECAB 6 (1971). Pasqual Torna, 35 ECAB 1110 (1984); and Clifford F. Russell, 37 ECAB 567
(1986), wherein each claimant’s concurrent private-sector employment was found to be dissimilar from his federal
employment. The present case may also be distinguished from Daniel Shaw, 50 ECAB 339 (1999). In Shaw, the
Board found that transcript fees the employee received under employing establishment regulations constituted
consideration for federal employment and must be included in his wage-basis calculation. However, the claimant
did not have similar, concurrent private-sector employment.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2005 is affirmed.
Issued: May 23, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5