United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, LONG ISLAND ISLIPMacARTHUR AIRPORT, East Elmhurst, NY,
Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1079
Issued: February 2, 2022

Case Submitted on the Record

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

JURISDICTION
On July 1, 2021 appellant, through counsel, filed a timely appeal from an April 23, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a n injury in the
performance of duty on January 18, 2021, as alleged.
FACTUAL HISTORY
On March 5, 2021 appellant, then a 47-year-old security guard, filed a traumatic injury
claim (Form CA-1) alleging that on January 18, 2021 at 10:00 a.m. she sustained a tibia stress
fracture, torn ankle tendon, and right arm injury while in the performance of duty. She reported
that she was leaving work en route to the employee parking lot when she “tripped and fell on the
sidewalk between the terminal and [A]uto[P]lane building.” Appellant stopped work on
January 19, 2021. On the reverse side of the claim form the employing establishment indicated
that appellant was not injured in the performance of duty. It listed her regular work hours as 4:15
a.m. to 12:45 p.m., Monday through Friday.
An employing establishment field report dated March 1, 2021 indicated that on January 18,
2021 appellant claimed to have fallen between the terminal and sidewalk next to the AutoPlane
building.
Appellant submitted a January 27, 2021 report by Dr. John Feder, a Board-certified
orthopedic surgeon, who recounted that on January 18, 2021 appellant fell and braced with her
hands and hit her knees and left ankle. Dr. Feder provided examination findings, reviewed
diagnostic testing, and diagnosed tear of the right peroneal tendon and ligament laxity. He also
signed a medical form, report which indicated that appellant was unable to work from January 18
through April 18, 2021.
In a March 15, 2021 letter, P.M., a human resources analyst for the employing
establishment, asserted that on January 18, 2021 appellant was not on property owned or
maintained by the employing establishment. He also asserted that appellant was off work at the
time of the incident because she had left work early to attend an appointment.
A time and attendance summary indicated that on January 18, 2021 appellant worked 5.15
hours on that day and used 8 hours of leave for “Paid Holiday Time Off.”
In a development letter dated March 16, 2021, OWCP notified appellant of the deficiencies
of her claim. It advised her of the factual and medical evidence necessary to establish the claim
and attached a questionnaire for her completion. By separate development letter to the employing
establishment of even date, OWCP requested additional information, including details about the
parking lot where appellant was injured. It afforded both parties 30 days to respond.
Appellant completed the OWCP development questionnaire on March 22, 2021. She
explained that she was “en route to the employing parking lot when the injury occurred.”
Appellant reported that the location was between the airport terminal and the AutoPlane Auto
Transport building right outside the airport terminal. She indicated that employees were required
to park in the parking lot and that the parking lot was on the airport’s parking premises. Appellant
noted that the town owned and operated the airport, including the airport parking premises. She

2

claimed that employing establishment employees were required to park in the airport lot and were
not required to pay for parking.
In a March 31, 2021 letter, the employing establishment controverted appellant’s claim
alleging that the reported incident did not occur in the performance of duty because appellant was
on premises that were not owned, operated, or controlled by the employing establishment. It also
noted that there was no inclement weather on January 18, 2021.
The employing establishment submitted a March 18, 2021 report by Dr. James Caviness,
a Board-certified preventive medicine physician, who performed a records review and opined that
appellant’s diagnosed medical conditions predated the reported incident and were not causally
related to the claimed January 18, 2021 employment incident.
On March 31, 2021 OWCP also received the employing establishment’s response to its
development letter. The employing establishment responded, “No” to the question about whether,
at the time of the alleged injury, appellant was on premises which were owned, operated, or
controlled by this employing establishment. It also responded , “No” to the question regarding
whether the parking lot was owned, controlled, or managed by the employing establishment. The
employing establishment also indicated that employees were not required to park in this lot and
that other options were available if an employee wished to pay for parking. It further reported that
employees were not charged for parking as long as they parked in the lot authorized by the airport
operator. The employing establishment provided two aerial photographs, which showed where
the parking lot was located and the area where appellant was injured.
By decision dated April 23, 2021, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that appellant’s alleged injury “arose during the
course of employment and within the scope of compensable work factors” as defined by FECA.
Specifically, it found that the parking lot where she was injured was not part of the employing
establishment’s premises and the parking lot was not owned, controlled or managed by the
employing establishment. OWCP, therefore, concluded that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 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

3

Id.

4

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

3

employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”7 The phrase “in the course of employment” is recognized
as related to the work situation, and more particularly, relating to elements of time, place , and
circumstance. To arise “in the course of employment,” in general, an injury must occur: (1) at a
time when the employee may reasonably be said to be engaged in the master’s business; (2) at a
place where he or she may reasonably be expected to be in connection with his or her employment;
and (3) while he or she was reasonably fulfilling the duties of his or her employment or engaged
in doing something incidental thereto. 8
It is well established as a general rule of workers’ compensation law that, under the
premises doctrine, off-premises injuries sustained by employees having fixed hours and places of
work while going to or from work or during a lunch period, are not compensable, as they do not
arise out of and in the course of employment. Rather, such injuries are m erely the ordinary,
nonemployment hazards of the journey itself, which are shared by all travelers, subject to certain
exceptions. 9
Exceptions to the premises doctrine have been made to protect activities that are so closely
related to the employment itself as to be incidental thereto,10 or which are in the nature of necessary
personal comfort or ministration. 11 One of these exceptions is the proximity exception to the
premises rule, which allows constructive extension of the premises to those hazardous conditions
which are proximate to the premises and may, therefore, be considered as hazards of the
employment. 12 The Board has determined that underlying the proximity principle is the principle
that course of employment should extend to any injury that occurred at a point where the employee
was within the range of dangers associated with the employment. 13 This exception has two
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); 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).
7

C.L., Docket No. 19-1985 (issued May 12, 2020); S.F., Docket No. 09-2172 (issued August 23, 2010); Valerie C.
Boward, 50 ECAB 126 (1998).
8

A.S., Docket No. 18-1381 (issued April 8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).
9

V.P., Docket No. 13-0074 (issued July 1, 2013); M.L., Docket No. 12-0286 (issued June 4, 2012); John M. Byrd,
53 ECAB 684 (2002).
10

M.T., Docket No. 17-1695 (issued May 15, 2018).

11

J.L., Docket No. 14-368 (issued August 22, 2014).

12

K.D., Docket No. 18-0617 (issued February 13, 2019); D.K., Docket No. 11-1029 (issued February 1, 2012).

13

J.K., Docket No. 17-0756 (issued July 11, 2018); Eugene G. Chin, 39 ECAB 598 (1988).

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components. The first is the presence of a special hazard at the particular off-premises point. The
second is the close association of the access route with the premises, so far as going and coming
is concerned.14
ANALYSIS
The Board finds that this case is not in posture for decision.
Whether an injury occurs in the performance of duty is a preliminary issue to be addressed
before the remaining merits of the claim or adjudicated. 15 On her Form CA-1 appellant has alleged
that on January 18, 2021 she tripped and fell down on the sidewalk between the terminal and
AutoPlane building on her way to the employee parking lot after work. The employing
establishment has contended that appellant was not injured in the performance of duty because she
was off duty at the time of the injury and was not on the employing establishment’s premises.
In determining whether appellant’s injury on the sidewalk between the terminal and
AutoPlane building occurred while in the performance of duty, the Board must first consider the
factors necessary to determine whether the parking area that appellant was en route to should be
considered part of the employing establishment’s premises.16 The Board has held that factors
which determine whether a parking area used by employees may be considered a part of the
employing establishment’s premises include whether the employing establishment contracted for
the exclusive use by its employees of the parking area, whether parking spaces in the garage were
assigned by the employing establishment to its employees, whether the parking areas were checked
to see that no unauthorized cars were parked in the garage, whether parking was provided without
cost to the employees, whether the public was permitted to use the garage, and whether other
parking was available to the employees. The premises doctrine is applied to those cases where it
is affirmatively demonstrated that the employing establishment owned, maintained, or controlled
the parking facility, used the facility with the owner’s special permission, or provided parking for
its employees. 17
In a March 16, 2021 development letter, OWCP requested additional factual information
from the employing establishment with regard to whether appellant was in the performance of duty
14

B.H., Docket No. 14-0829 (issued July 8, 2015).

15

T.H., Docket No. 17-0747 (issued May 14, 2018); P.L., Docket No. 16-0631 (issued August 9, 2016); see also
M.D., Docket No. 17-0086 (issued August 3, 2017).
16

See R.E., Docket No. 18-0515 (issued February 18, 2020) (the Board first considered whether the parking area
that appellant was walking from was considered part of the employing establishment’s premises before it considered
whether the crosswalk between the parking area and the workplace should be considered part of the employing
establishment’s premises); see also S.V., Docket No. 18-1299 (issued November 5, 2019) (the Board first considered
whether a satellite parking lot was considered on the employing establishment’s premises before it considered whether
an injury that occurred while the employee stepped off a transport bus had occurred on the employing establishment
premises).
17

C.D., Docket No. 20-1174 (issued June 11, 2021); see also R.M., Docket No. 07-1066 (issued February 6, 2009);
Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. Thomas-Hunter, 42 ECAB 500 (1991); Edythe Erdman, 36 ECAB
597 (1985); Karen A. Patton, 33 ECAB 487 (1982).

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when injured on January 18, 2021, including specific questions about the parking lot that appellant
was on her way to after work. While the employing establishment responded to OWCP’s
development letter, it provided only brief answers to OWCP’s questions without sufficient
explanation. For example, it simply responded “No” to the question of whether the parking lot
was owned, controlled, or managed by the employing establishment. The employing
establishment provided no further explanation regarding who owned or maintained the parking lot
or whether it contracted for the exclusive use of the parking lot. It also indicated that employees
were not required to park in this parking lot and that “other options” were available if an employee
wished to pay for parking. However, the employing establishment did not elaborate on the
location, usage, and access of the other parking lots. Appellant alleged that employees were in
fact required to park in the assigned parking lot in question. Despite receiving a response from the
employing establishment, which did not fully answer the posed questions, OWCP did not conduct
any further development of the evidence before it issued its decision.18 The Board finds, therefore,
that OWCP did not properly develop the evidence with respect to whether appellant’s slip-and-fall
injury occurred on the employing establishment’s premises.19
The Board further finds that OWCP did not make adequate findings of fact regarding
whether the alleged January 18, 2021 injury occurred within a reasonable interval after appellant’s
work shift. It is well established that within the performance of duty includes a reasonable time
before and after work to allow for coming and going. 20 In this case, appellant’s regular work hours
were from 4:15 a.m. to 12:45 p.m. and her fall occurred at 10:00 a.m. The employing
establishment has asserted that appellant was off work at the time of her fall injury because she
had left work early to attend an appointment. It included a time and attendance summary that
indicated that appellant worked 5.15 hours on January 18, 2021. The Board finds, however, that
the evidence of record is unclear regarding when appellant clocked out of work and whether she
was on approved leave to attend an appointment at the time of the fall injury. OWCP did not
request any information from the employing establishment regarding the circumstances
surrounding when appellant’s work shift ended on January 18, 2021 and whether she was
authorized to leave work at that time. 21 Accordingly, the case must be remanded for further factual
development in order for the Board to determine a “reasonable interval” after appellant’s work
shift on January 18, 2021.
Proceedings under FECA are not adversarial in nature, and while appellant ha s the burden
to establish entitlement to compensation, OWCP shares responsibility in the development of the

18

See G.R., Docket No. 18-1490 (issued April 4, 2019).

19

See S.V., supra note 16 (case was remanded for OWCP to obtain additional information from the employing
establishment regarding whether a satellite parking lot was considered on the premises of the employing
establishment).
20

C.L., Docket No. 18-0812 (issued February 22, 2019); Wilmar Lewis Prescott, 22 ECAB 318 (1971).

21

See S.M., claiming as son of J.M., Docket No. 16-1725 (issued May 11, 2017) (Board remanded the case for
OWCP to obtain additional information from the employing establishment regarding why appellant remained at work
after his work shift ended).

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evidence.22 It has an obligation to see that justice is done. 23 OWCP procedures further provide
that it should obtain relevant information, including relevant diagrams, from an official superior if
it requires clarification before determining whether the employee was on the premises. 24 As
OWCP failed to request all the information as required under its procedures, the Board will remand
the case for OWCP to further develop the question of whether appellant was in the performance
of duty when injured on January 18, 2021.25
On remand OWCP shall obtain further explanation from the employing establishment
regarding whether the employing establishment contracted for the exclusive use by its employees
of the parking area, whether parking spaces in the garage were assigned by the employing
establishment to its employees, whether the parking areas were checked to see that no unauthorized
cars were parked in the garage, whether parking was provided without cost to the employees,
whether the public was permitted to use the garage, and where other parking was available to the
employees. The employing establishment should also be asked to address whether the sidewalk
on which appellant fell was owned or maintained by the employing establishment, 26 used
exclusively or principally by employees of the employing establishment for the convenience of the
employer,27 and whether the sidewalk was a necessary point of ingress/egress. 28 Lastly, the
employing establishment should provide additional information regarding when appellant’s work
shift ended on January 18, 2021 and whether she was approved to leave work early . Following
this and other such development as deemed necessary, OWCP shall issue a de novo decision
regarding appellant’s traumatic injury claim.

22

See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8
ECAB 769, 770-71.
23

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).
24

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(d), (f), and (g)
(August 1992); see also L.P., Docket No. 17-1031 (issued January 5, 2018).
25

See R.H., Docket No. 20-1011 (issued February 17, 2021).

26

See J.K., Docket No. 17-0756 (issued July 11, 2018) (the Board found that an employee who slipped on ice on
the sidewalk in front of the employing establishment’s door was not within the performance of duty because the rental
lease showed that the employing establishment leased the property from a private owner who was responsible for
maintaining the property space).
27

See Idalaine L. Hollins-Williamson, 55 ECAB 655 (2004) (the Board found that an employee’s slip-and-fall
injury on a public sidewalk while walking from a parking lot to the employing establishment did not occur in the
performance of duty as the employee did not establish that the sidewalk on which she fell was used exclusively or
principally by the employees of the employing establishment).
28

See J.D., Docket No. 16-0104 (issued April 5, 2016) (OWCP had found that an employee who slipped and fell
on a sidewalk while leaving the parking lot to his duty station was within the performance of duty because the walkway
between the parking lot and the employee’s duty station was a necessary point of ingress/egress).

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2021 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 2, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Kansas City, KS, Employer
)
___________________________________________ )
R.M., Appellant

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

Docket No. 06-2162
Issued: March 14, 2007

Case Submitted on the Record

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

JURISDICTION
On September 26, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated June 15, 2006, which denied his request for an oral
hearing as untimely. He also appealed an August 24, 2006 decision, which denied his
reconsideration request on the grounds that it was untimely filed and failed to present clear
evidence of error. Because more than one year has elapsed between the most recent merit
decision of May 18, 2005 and the filing of this appeal, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUES
The issues on appeal are: (1) whether the Office properly denied appellant’s request for
an oral hearing as untimely; and (2) whether the Office properly determined that appellant’s
request for reconsideration dated July 7, 2006 was not timely filed and failed to establish clear
evidence of error.

FACTUAL HISTORY
On November 24, 2004 appellant, then a 47-year-old mail handler, filed a traumatic
injury claim alleging that he sustained a neck and ankle injury when he was dismounting a
forklift while in the performance of duty. The Office accepted his claim for a neck strain,
contusion of the right shoulder region, sprain of the right ankle and a head contusion and paid
appropriate benefits. Appellant returned to work in a modified light-duty position.1
On February 16, 2005 the Office referred appellant to Dianne McCarthy, a registered
nurse, to provide medical management services and to assist in returning him to gainful
employment. In a letter dated March 1, 2005, the field nurse notified appellant that she
attempted to contact him by telephone but was unsuccessful.
In a letter dated March 10, 2005, the Office notified appellant that it proposed to reduce
his compensation. The Office noted that his refusal without good cause to meet with the field
nurse to assist in efforts to return to gainful employment could be interpreted as a refusal to
undergo vocational rehabilitation. The Office provided appellant 30 days within which to
contact the field nurse or show good cause for not cooperating with this effort or the
rehabilitation effort would be terminated and action would be initiated to reduce appellant’s
compensation.
On March 11, 2005 appellant accepted a modified light-duty job offer effective that date.
In a letter to the field nurse dated March 1, 2005, appellant contended that, since June 2004 to
2005, the field nurse failed to coordinate the medical aspects of his case or facilitate the flow of
information as she was required to do.
By decision dated May 18, 2005, the Office suspended appellant’s compensation
pursuant to section 8113(b) of the Federal Employees’ Compensation Act as a result of his
refusal to participate with the nurse services. The Office noted that appellant impeded the
rehabilitation effort without good cause.
By letter dated November 20, 2005, appellant requested an oral hearing before an Office
hearing representative. In a statement dated February 8, 2006, he asserted that he never refused
to work with the field nurse and submitted additional medical evidence from Dr. Walter Porter, a
Board-certified Ph.D.
In a June 15, 2006 decision, the Office denied the request as untimely filed pursuant to 5
U.S.C. § 8124. The Office found that the request was not timely filed. Appellant was informed
that his case had been considered in relation to the issues involved and that the request was
further denied for the reason that the issues in this case could be addressed by requesting
reconsideration from the district Office and submitting evidence not previously considered.

1

Appellant filed a claim for a neck injury which occurred on June 4, 2004 and which the Office accepted for a
cervical strain, file number 11-2022736.

2

By letters dated July 7 and 12, 2006, appellant requested reconsideration and submitted
additional evidence. In a statement dated February 8 and July 7, 2006, he advised that he would
cooperate with nurse services and requested another nurse be assigned to his case. Appellant
submitted additional medical evidence from Dr. Porter.
By decision dated August 24, 2006, the Office denied appellant’s request for
reconsideration on the grounds that it was not timely and that appellant did not present clear
evidence of error by the Office.
LEGAL PRECEDENT
Section 8124(b) of the Act provides that, before review under section 8128(a), a claimant
for compensation who is not satisfied with a decision of the Secretary is entitled to a hearing on
his claim on a request made within 30 days after the date of issuance of the decision before a
representative of the Secretary.2 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right
unless the request is made within the requisite 30 days.3
The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request when it is made after the 30-day period established for requesting a hearing4 or
when the request is for a second hearing on the same issue.5 The Office procedures, which
require the Office to exercise its discretion to grant or deny a hearing when a hearing request is
untimely or made after reconsideration under section 8128(a), are a proper interpretation of the
Act and Board precedent.6
ANALYSIS
The Office suspended appellant’s compensation in a decision dated May 18, 2005
pursuant to section 8113(b) of the Act as a result of his refusal to participate in nursing services
and by association vocational rehabilitation. Because appellant made his request for an oral
hearing on November 20, 2005, more than 30 days after the Office’s May 18, 2005 decision, he
is not entitled to a hearing as a matter of right. Moreover, the Office considered whether to grant
a discretionary review and correctly advised appellant that his case had been considered in
relation to the issues involved and that the request was further denied for the reason that the
issues in this case could be addressed by requesting reconsideration from the district Office and
2

See 5 U.S.C. § 8124(b)(1).

3

Id. See 20 C.F.R. § 10.616(a) (1999); Charles J. Prudencio, 41 ECAB 499, 501 (1990).

4

Herbert C. Holley, 33 ECAB 140 (1981).

5

Johnny S. Henderson, 34 ECAB 216 (1982).

6

Sandra F. Powell, 45 ECAB 877 (1994).

3

submitting evidence not previously considered.
appellant a discretionary hearing.

Consequently, the Office properly denied

However, the Office neglected to consider that, by failing to issue a decision on
appellant’s hearing request in a timely fashion, it effectively denied appellant the opportunity to
obtain a merit review of the May 18, 2005 decision before the Board. Appellant’s November 20,
2005 hearing request went unanswered for more than six months. By the time the Office issued
its June 15, 2006 decision denying the requested hearing, appellant did not have the opportunity
to timely request reconsideration before the Office or appeal the merits of the Office’s May 18,
2005 decision denying compensation. This delay prevented appellant from obtaining further
timely review on the merits of his claim pursuant to section 8128 of the Act before the Office or
by the Board. The Board finds that the Office abused its discretion. As such, the Office should
grant appellant a merit review of his claim.7
CONCLUSION
The Board finds that the case is not in posture of decision.8

7

Marilyn F. Wilson, 51 ECAB 234, 235 (1999); 20 C.F.R. §§ 501.2(c), 501.3(d)(2); Brian R. Leonard, 43 ECAB
255, 259-60 (1991) (the Board held that the Office’s delay in processing appellant’s request for a hearing effectively
denied appellant the opportunity to obtain merit review of his claim and thus, constituted an abuse of discretion).
8

The Board finds that it is unnecessary to address the second issue in this case in view of the Board’s disposition
of the first issue.

4

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed. The case is remanded for further action
consistent with this decision.
Issued: March 14, 2007
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Allen Park, MI, Employer
)
___________________________________________ )
G.D., Appellant

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

Docket No. 07-2079
Issued: February 19, 2008

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 August 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated June 22, 2007, which denied his request for a review of
the written record. Because more than one year has elapsed between the most recent merit
decision dated May 8, 2006 and the filing of this appeal on August 6, 2007, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2 and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for review of the
written record.
FACTUAL HISTORY
On February 3, 2006 appellant, then a 41-year-old mail handler, filed an occupational
disease claim alleging that he developed a hernia as a result of performing his duties as a mail
handler, which included operating a forklift and lifting heavy objects.

The employing establishment submitted a statement from Ella Mays, appellant’s acting
supervisor, who noted that his position as an equipment operator required him to lift pallets of
mail with the forklift; however, she was not aware of him performing substantial lifting.
Appellant submitted a February 14, 2006 report from Dr. Roy E. Hanks, II, an osteopath, who
noted that he was scheduled for surgery on February 16, 2006 and would be incapacitated for
10 days. In a disability certificate dated February 27, 2006, Dr. Hanks noted that appellant was
totally disabled from February 16 to March 9, 2006 and could return to work without restrictions.
The Office advised appellant of the evidence needed to establish his claim. He submitted
a statement dated March 6, 2006 contending that he developed a hernia due to his work duties
which included lifting mail pallets. Appellant first noticed his hernia condition on January 23,
2006 and believed it was work related. His medical history was significant for four previous
work-related hernia surgeries. He submitted a February 27, 2006 report from Dr. Hanks, who
treated him since 1998 for multiple hernias. Dr. Hanks opined that appellant had no definitive
test to determine the cause of the hernia but asserted a recurrent hernia could be consistent with a
job requiring heavy lifting.
In a decision dated May 8, 2006, the Office denied appellant’s claim on the grounds that
medical evidence was not sufficient to establish the claim.
Appellant submitted a statement dated May 13, 2006 and asserted that his condition was
caused by repeated heavy lifting. He indicated that his hobbies included video games and fishing
and noted that he did not perform heavy lifting outside of work.
In an appeal request form dated May 13, 2006 but postmarked May 16, 2007, appellant
requested a review of the written record. He also submitted a copy of his May 13, 2006
statement.
By decision dated June 22, 2007, the Office denied appellant’s request for a review of the
written record. The Office found that the request was not timely filed. Appellant was informed
that his case had been considered in relation to the issues involved and that the request was
further denied for the reason that the issues in this case could be addressed by requesting
reconsideration from the district office and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”1 Sections 10.617 and 10.618 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record by a representative of the Secretary.2 Although
there is no right to a review of the written record or an oral hearing if not requested within the
1

5 U.S.C. § 8124(b)(1).

2

20 C.F.R. §§ 10.616, 10.617.

2

30-day time period, the Office may within its discretionary powers grant or deny appellant’s
request and must exercise its discretion.3 The Office’s procedures concerning untimely requests
for hearings and review of the written record are found in the Federal (FECA) Procedure
Manual, which provides:
“If the claimant is not entitled to a hearing or review (i.e., the request was
untimely, the claim was previously reconsidered, etc.), [the Office] will determine
whether a discretionary hearing or review should be granted and, if not, will so
advise the claimant, explaining the reasons.”4
ANALYSIS
In the present case, appellant requested a review of the written record in a request that
was postmarked on May 16, 2007. Section 10.616 of the federal regulations provides: “The
hearing request must be sent within 30 days (as determined by postmark or other carrier’s date
marking) of the date of the decision for which a hearing is sought.”5 As the date of the postmark
on the request was more than 30 days following issuance of the May 8, 2006 Office decision,
appellant’s request for a review of the written record was untimely filed. The Office properly
determined that appellant was not entitled to a review of the written record as a matter of right
because his request was not made within 30 days of the Office’s May 8, 2006 decision.
Appellant indicated that he sent his request within the 30-day time period and received a
receipt from the employing establishment; however, he asserts that the Office failed to inform
him that he was missing the appeal request form on the decision. The record reflects that the
May 8, 2006 decision with accompanying appeal rights was properly mailed to appellant’s
address of record on May 8, 2006. Under the mailbox rule, he is presumed to have received the
decision and accompanying appeal rights.6 The appeal rights specifically advised that a hearing
request or a request for a review of the written record must be made in writing within
30-calendar days after the date of the decision, as determined by the postmark of the letter.
Although appellant submitted a narrative statement dated May 13, 2006, received by the Office
on May 24, 2006, he did not indicate that he sought to exercise any particular appeal right. Since
he did not request a review of the written record within 30 days of the Office’s May 8, 2006
decision, he was not entitled to a review of the written record under section 8124 as a matter of
right.

3

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.4(b)(3) (October 1992).
5

20 C.F.R. § 10.616.

6

In the absence of evidence to the contrary, it is presumed that a notice mailed to an individual in the ordinary
course of business was received by that individual. Under the mailbox rule, evidence of a properly addressed letter
together with evidence of proper mailing may be used to establish receipt. Joseph R. Giallanza, 55 ECAB
186 (2003).

3

While the Office also has the discretionary power to grant a hearing or review of the
written record when a claimant is not entitled to a hearing or review as a matter of right, the
Office, in its June 22, 2007 decision, properly exercised its discretion by stating that it had
considered the matter in relation to the issue involved and had denied appellant’s request for a
review of the written record on the basis that the case could be resolved by submitting additional
evidence to the Office in a reconsideration request. The Board has held that, as the only
limitation on the Office’s authority is reasonableness, abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deduction from established facts.7 In the present
case, the evidence of record does not indicate that the Office committed any act in connection
with its denial of appellant’s request for a review of the written record, which could be found to
be an abuse of discretion. For these reasons, the Office properly denied appellant’s request for a
review of the written record under section 8124 of the Act.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a review of the
written record as untimely.
ORDER
IT IS HEREBY ORDERED that the June 22, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 19, 2008
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
7

Samuel R. Johnson, 51 ECAB 612 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION NORTH ISLAND, San Diego, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-356
Issued: September 16, 2011

Case Submitted on the Record

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

JURISDICTION
On September 21, 2010 appellant filed a timely appeal from a July 14, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as it was untimely filed and did not establish clear evidence of error. Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction only over the nonmerit issue in this case. Because more than one year has
elapsed between the most recent merit decision dated July 24, 2006 to the filing of this appeal on
September 21, 2010 the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP’s decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. 20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on or after November 19, 2008, a
claimant must file an appeal within 180 days of the decision. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s June 10, 2010 request for
reconsideration on the grounds that it was not timely filed and did not demonstrate clear
evidence of error.
FACTUAL HISTORY
On June 12, 2006 appellant, then a 52-year-old sheet metal worker, filed an occupational
disease claim alleging that in May 2004 she sustained a left knee condition when she fell in the
ladies bathroom. She explained that she had pain in her knees and the physician thought it was
arthritis. Appellant first realized her condition was related to her employment on May 30, 2006.
She stopped work on May 30, 2006 and returned on June 12, 2006. No additional evidence was
received.
In a May 31, 2006 medical report, Dr. James Fait, a Board-certified orthopedic surgeon,
noted that on May 30, 2006 appellant began to experience pain in her knees while she was
walking around at work. He noted a history of left knee osteoarthritis and that she was
previously seen in orthopedics after a fall at work. Dr. Fait diagnosed mild to moderate bilateral
knee degenerative joint disease.
In a June 19, 2006 attending physician’s report, Dr. Benjamin Corpuz Orejudos, a Boardcertified diagnostic radiologist, noted that on May 30, 2006 appellant complained of left knee
pain. He diagnosed mild degenerative narrowing medial right and left knee joint spaces.
In a July 24, 2006 decision, OWCP denied appellant’s claim on the grounds that the
evidence was insufficient to establish that the work activities or that she sustained an injury in
the performance of duty.
On October 2, 2006 appellant requested a review of the written record. She stated that
she sustained a meniscus tear when she fell in the ladies bathroom two years ago. Appellant
resubmitted Dr. Orejudos’ June 19, 2006 report and Dr. Fait’s medical chart records dated
May 30 and 31, 2006. She also submitted handwritten progress notes by an unknown provider
dated July 23 to November 22, 2004, which indicated that she twisted her knee and fell down in
the bathroom several months prior.
In a July 23, 2004 magnetic resonance imaging (MRI) scan report of appellant’s knees,
Dr. Nehal Patel, a Board-certified diagnostic radiologist, diagnosed mild bilateral degenerative
joint disease of her knees.
In a June 13, 2006 report, Dr. Steven R. Schelkun, a Board-certified orthopedic surgeon,
noted appellant’s complaints of acute anterior knee pain for the past two weeks and stated that
she experienced similar problems two years prior, but it resolved. He provided handwritten chart
notes dated from June 15 to July 11, 2006.
By decision dated October 25, 2006, OWCP denied appellant’s request for
reconsideration. It noted that the medical evidence indicated that she fell down in the bathroom,
but the evidence did not establish whether she fell in the bathroom at work in May 2004. The
2

medical evidence was found irrelevant to the issue of whether the May 2004 employment
incident occurred at the time, place and in the manner alleged and therefore did not warrant
further merit review of her claim. OWCP also pointed out that the medical evidence failed to
establish that appellant’s left knee condition resulted from the alleged May 2004 employment
incident.
On June 10, 2010 appellant submitted a request for reconsideration and contended that its
untimeliness be waived because OWCP did not properly advise her of her rights. She addressed
the medical evidence submitted and alleged that the record established that she fell in the
bathroom at work, resulting in her left knee condition. Appellant also provided the names of two
witnesses, but did not include any statements.
In a July 29, 2004 handwritten medical note from her occupational health unit, a
registered nurse stated that appellant complained of a knee injury after falling in a restroom
about two months prior.
In a September 19, 2006 consultation report, Dr. Michael Moreno, Board-certified in
occupational medicine, noted appellant’s history of left knee pain dating back two years.
Appellant stated that the pain began when she fell in a bathroom in 2004 and injured her left
knee. Her left knee pain increased around May 2006, particularly in the medial side of the knee.
Dr. Moreno reviewed appellant’s medical history, which included an August 27, 2006 MRI scan
that showed a degenerative posterior horn medial meniscus tear and degenerative changes
involving the medial compartment. Upon examination, he observed well-localized medial joint
line tenderness, patellofemoral crepitus and medial-sided knee pain. Dr. Moreno did not observe
any effusion or varus or valgus laxity and the Lachman test was negative. X-rays also revealed
degenerative changes involving the medial compartment.
Appellant resubmitted Dr. Patel’s MRI scan reports, Dr. Fait’s May 31, 2006 medical
report and July 23, 2004 and June 15, 2006 handwritten chart notes by an unknown provider.
In a decision dated July 14, 2010, OWCP denied appellant’s request for reconsideration
finding it was untimely and that the evidence failed to establish clear evidence of error. It noted
that the issue in her case was whether she fell in the bathroom at work on May 2004 as alleged,
but she did not submit sufficient evidence to establish that the employment incident occurred at
the time, place and in the manner alleged. OWCP stated that although appellant contended that
she had two witnesses she did not submit their statements and the medical evidence did not
contain records dated from May to June 2004 to corroborate her claimed injury.
LEGAL PRECEDENT
OWCP regulations provide that, in order to be entitled to merit review of OWCP’s
decision, a claimant must file her application for review within one year of the date of that
decision.3 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted OWCP under section 8128(a) of

3

20 C.F.R. § 10.607(a).

3

FECA.4 OWCP regulations provide that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision.5 This entails a limited review by OWCP of how the evidence submitted with the
reconsideration request bears on the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.7 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 The evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.11
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.12 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP such that OWCP abused its discretion in
denying merit review in the face of such evidence.13
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration as more than one year had passed from the date of the last OWCP
decision on October 25, 2006 and her request for reconsideration dated June 10, 2010. While
4

See 5 U.S.C. § 8128(a); F.R., Docket No. 09-575 (issued January 4, 2010).

5

20 C.F.R. § 10.607(b).

6

Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

7

Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

8

Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., Docket No. 09-956 (issued April 15, 2010).

9

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

10

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

11

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

12

James R. Mirra, 56 ECAB 738 (2005).

13

Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

4

appellant alleged that OWCP failed to advise her of her rights, the Board notes that the 2006
decisions clearly apprised her of the deficiencies in the evidence she submitted and of her
appellate rights, should she seek further review. Accordingly, she must demonstrate clear
evidence of error by OWCP in denying her occupational disease claim.14
The Board finds that appellant’s June 10, 2010 request for reconsideration failed to
establish clear evidence of error. As noted, to establish clear evidence of error a claimant must
submit evidence relevant to the issue, which was decided by OWCP.15 In this case, OWCP
denied appellant’s claim because she failed to submit sufficient evidence demonstrating that the
May 2004 employment incident occurred at the time, place and in the manner alleged. The only
additional factual evidence appellant submitted was an undated, typed statement which addressed
the medical evidence of record and alleged that the record established that she injured her left
knee when she fell in the bathroom at work. Although appellant provided the names of two
witnesses, she did not provide any witness statements. This additional evidence is not positive,
precise and explicit and does not manifest on its face that OWCP’s decision was in error.16 In
addition, the medical evidence submitted does not address the issue of whether the March 2004
employment incident occurred as alleged. Although the medical reports note that appellant
injured her knee when she fell in a bathroom, none of the reports provided a precise date or
indicated whether the bathroom was at her employing establishment. As none of the evidence
raises a substantial question concerning the correctness of the OWCP’s decision, she has failed
to establish clear evidence of error on the part of OWCP in denying further merit review.
CONCLUSION
The Board finds that appellant’s June 10, 2010 request for reconsideration was untimely
filed and failed to demonstrate clear evidence of error.17

14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

15

Marcano, supra note 7.

16

Perez, supra note 8; see also A.F., Docket No. 09-1556 (issued February 23, 2010).

17

The Board notes that appellant submitted additional evidence following the July 14, 2010 nonmerit decision.
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); Sandra D. Pruitt, 57
ECAB 126 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the July 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, NAVAL
)
UNDERSEA WARFARE CENTER, Newport, RI, )
Employer
)
__________________________________________ )
M.W., Appellant

Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0394
Issued: April 8, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 29, 2015 appellant, through counsel, filed a timely appeal from a
December 3, 2015 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 the claim.
ISSUE
The issue is whether appellant’s claim is timely pursuant to 5 U.S.C. § 8122(a) of FECA.
On appeal counsel asserts that the claim was timely because the employing establishment
had a hearing conservation program.
FACTUAL HISTORY
On August 4, 2015 appellant, then a 60-year-old retired engineering technician, filed an
occupational disease claim (Form CA-2) for binaural hearing loss. He indicated that he first
1

5 U.S.C. § 8101 et seq.

became aware of the condition and its relationship to employment on June 16, 2009. On the
claim form, the employing establishment noted that appellant retired in December 2011 and
maintained that the claim was untimely because medical reports showed that appellant was
aware of his hearing loss in June 2009.
In letters dated August 13, 2015, OWCP advised appellant of the evidence needed to
support his claim and asked the employing establishment to provide information on noise
exposure.
Appellant provided a description of his job titles from 1971 until his retirement in 2011,
which included work at three employing establishment facilities.
In a statement dated August 20, 2015, Michael Budziszek indicated that he was
appellant’s supervisor from May 11, 2008 until he retired on December 31, 2011. He described
noise exposure at that facility.
The record contains employing establishment audiograms from August 30, 1976 to
November 1, 2002, which were part of a hearing conservation program and a June 16, 2009
audiogram performed at the request of a private physician.
In September 2015 OWCP referred appellant to Dr. Jeffrey Powell, a Board-certified
otolaryngologist, for an otologic examination and audiological evaluation. In a November 24,
2015 report, Dr. Powell noted a history of noise exposure at work, his review of the statement of
accepted facts and medical record, and appellant’s complaint of bilateral hearing loss and
tinnitus. He described physical examination findings and attached an audiogram report dated
November 24, 2015 which, he advised, demonstrated normal-to-moderately severe bilateral
high-frequency noise-induced sensorineural hearing loss, worse on the left. Dr. Powell
diagnosed bilateral high-frequency noise-induced sensorineural hearing loss, and tinnitus
secondary to this hearing loss which was caused by appellant’s federal employment. He related
that he came to this conclusion after his review of the record, questioning, and examining
appellant, including a full audiometric examination.
By decision dated December 3, 2015, OWCP denied appellant’s hearing loss claim as
untimely filed. It identified June 16, 2009 as the date of injury, and noted that he did not file his
claim until August 4, 2015, and the evidence did not support that his immediate superior had
actual knowledge within 30 days of the date of injury.
LEGAL PRECEDENT
An original claim for compensation for disability or death must be filed within three
years after the injury or death.2 A claim filed outside this time frame must be disallowed unless
the immediate superior had actual knowledge of the injury or death within 30 days.3 In a case of
latent disability, the time for filing a claim does not begin to run until the employee has a
compensable disability and is aware or by the exercise of reasonable diligence should have been

2

5 U.S.C. § 8122(a).

3

Id. at § 8122(a)(1).

2

aware of the causal relationship of the compensable disability to his or her employment.4 An
employee with actual or constructive knowledge of his or her employment-related condition,
who continues to be exposed to injurious working conditions, must file a claim within three years
of the date of last exposure to the implicated conditions.5
A positive test result from an employing establishment program of regular audiometric
examination as part of a hearing conservation programs is sufficient to establish knowledge of a
hearing loss so as to put the immediate superior on notice of an on-the-job injury.6
ANALYSIS
The Board finds this case is not in posture for decision.
On the claim form appellant noted that he was aware of his employment-related hearing
loss on August 16, 2009. Based on his reported employment history, appellant’s occupational
noise exposure continued until his retirement on December 31, 2011. After retiring, appellant
did not file an occupational disease claim until August 4, 2015, which was outside three years of
the date of last exposure to the implicated conditions. Under these circumstances, his claim must
be disallowed unless an immediate superior had actual knowledge of the injury or death within
30 days.
In finding there was no evidence that appellant’s immediate superior had actual
knowledge of his injury, OWCP failed to acknowledge that, for more than three decades,
appellant regularly participated in the employing establishment’s hearing conservation program.
The December 3, 2015 decision merely referenced diagnostic tests without acknowledging that
audiograms had been submitted. As described above, the record contains employing
establishment hearing conservation audiograms dated from August 1976 to November 2002. If
any of the conservation program test results were positive, this would suffice for purposes of
establishing that appellant’s immediate superior received notice of an on-the-job injury.7

4

Id. at § 8122(b).

5

See James A. Sheppard, 55 ECAB 515 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time,
Chapter 2.801.6 (March 1993).
6

Id.

7

OWCP’s procedure manual provides in relevant part:
“If the employing agency gave regular physical examinations which might have detected signs of
illness (for example, regular x-rays or hearing tests), the agency should be asked whether the
results of such tests were positive for illness and whether the employee was notified of the results.
[If the claimant was still exposed to employment hazard on or after September 7, 1974 and the
agency’s testing program disclosed the presence of an illness or impairment, this would constitute
actual knowledge on the part of the agency, and timeliness would be satisfied even if the employee
was not informed…].”
Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6c (March 1993).

3

Because OWCP failed to address the evidence regarding the employing establishment’s
hearing conservation program, the case shall be remanded for further development.8 After such
further development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: April 8, 2016
Washington, DC

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

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

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

8

See. R.G., Docket No. 15-167 (issued February 27, 2015).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Haven, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1568
Issued: October 30, 2020

Case Submitted on the Record

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

JURISDICTION
On July 17, 2019 appellant, through counsel, filed a timely appeal from a January 25, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (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

Appellant timely requested oral argument before the Board. By order dated May 18, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 19-1568 (issued May 18, 2020).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left hip condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On April 25, 2016 appellant, then a 56-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she required a hip replacement causally related to factors of her
federal employment. She indicated that she became aware of her condition on June 2, 2016 and
attributed it to her federal employment on June 14, 2014.
In a report dated April 21, 2016, Dr. Michael P. Leslie, an osteopath and Board-certified
orthopedic surgeon, advised that he had evaluated appellant on February 2, 2016 and diagnosed
end stage degenerative disease of the left hip. He discussed her history of working for the
employing establishment and of an accident 10 years prior where she underwent a lumbar spine
procedure. Dr. Leslie opined that appellant’s left hip pain and arthritis was “the result of the
accident itself along with working as a letter carrier.” He recommended a total hip joint
replacement.
In an April 25, 2016 statement, appellant described her employment duties as a letter
carrier for 28 years. She related that she had experienced left hip pain beginning in April 2014
that she initially believed had been caused by a back injury. Appellant underwent surgery for her
back in July 2015, but the left hip pain continued. She attributed her left hip condition to walking,
lifting, and bending. Appellant asserted that she had no history of a prior hip injury.
On June 1, 2016 Dr. Leslie advised that he was treating appellant for advanced
degenerative joint disease of the left hip. He noted that she had not experienced hip pain prior to
a 2004 accident at work. Dr. Leslie opined that appellant’s extensive walking as a letter carrier
had aggravated an “underlying predisposition to arthritis of the hip” and necessitated a total hip
replacement. He opined that her predisposition to a hip injury arose due to either her prior
employment injury or from an aggravation of an underlying condition. Dr. Leslie related that
“[e]ither way there is evidence that the relationship of this advanced degenerative disease is to her
occupation.”
In a development letter dated June 20, 2016, OWCP notified appellant of the type of
evidence needed to establish her occupational disease claim, including a detailed description of
any repetitive activities performed outside of her employment and medical evidence explaining
how the identified work activities resulted in a diagnosed medical condition. It attached a
questionnaire for her completion. By separate letter of even date, OWCP also requested additional
information from the employing establishment. It afforded both parties 30 days to respond.
Appellant, in a June 27, 2016 response, advised that she engaged only in necessary home
activities and did not walk or jog.

2

By decision dated August 1, 2016, OWCP denied appellant’s occupational disease claim.
It found that the evidence of record was insufficient to establish a medical condition causally
related to the accepted factors of her federal employment.
On July 18, 2017 appellant, through counsel, requested reconsideration. He contended that
Dr. Minotti’s July 13, 2017 report was sufficient to establish that her employment contributed to
her left hip arthritis.
In support of his request for reconsideration, appellant submitted additional evidence,
including a report dated July 21, 2016 from Dr. Philip A. Minotti, a Board-certified orthopedic
surgeon. Dr. Minotti evaluated her for left hip pain that had progressively worsened for the past
three years. He diagnosed degenerative joint disease of the left hip, noting that x-rays revealed
severe degeneration, joint space narrowing, osteophyte formation, and subchondral sclerosis.
On August 22, 2016 Dr. Minotti performed a left total hip replacement.4 In reports dated
September 2016 through August 2017, he described appellant’s progress subsequent to the
surgery.
In a June 7, 2017 statement, appellant set forth her employment duties, which included
repetitively casing mail, walking, carrying satchels and parcels, and climbing steps.
In a report dated July 13, 2017, Dr. Minotti discussed appellant’s history of a total hip
replacement on August 22, 2016 due to degenerative joint disease of the left hip. He noted that
she had worked for years as a letter carrier performing “physically demanding routes.” Dr. Minotti
related that repetitive employment activities “can certainly contribute to development of severely
symptomatic disease sooner than it might otherwise had occurred. Clearly, [appellant’s] work is
not the sole cause of her left hip degenerative joint disease, but, in my opinion, it clearly
contributed to her rapid development of symptoms and advanced disease.”
By decision dated November 24, 2017, OWCP denied modification of its August 1, 2016
decision. It found that the medical evidence of record was insufficient to establish to explain how
factors of appellant’s federal employment caused her hip condition as opposed to the natural
progression of the condition.
In a report dated October 28, 2018, Dr. Byron V. Hartunian, an orthopedic surgeon,
reviewed appellant’s work history and employment duties and discussed her current complaints of
pain, stiffness, and loss of motion in the left hip, left knee, and left foot. He provided examination
findings and diagnosed status post left total hip replacement for end-stage degenerative arthritis,
left knee joint arthritis, and first metatarsophalangeal foot arthritis. Answering a series of specific
questions, Dr. Hartunian opined that appellant’s employment duties, including climbing, lifting,
and walking repetitively, had permanently aggravated her left hip, foot, and knee conditions. He
found that working as a letter carrier over a long period “can and does accelerate arthritis because
of the continuous walking, stooping, squatting, stair climbing/descending and the like involved.”
Dr. Hartunian asserted that such impact-loading activities had stressed appellant’s lower
extremities and aggravated her arthritis. He indicated that arthritis occurred due to chronic
4

On August 28, 2016 appellant sought treatment at the emergency department for a rash at the surgical site.

3

inflammation caused by repeated local stress on cartilage surfaces. Dr. Hartunian related, “With
less resilience, the cartilage becomes more susceptible to wear and tear of the impact-loading
activities, which in turn results in an accelerated loss of articular cartilage as a result of those
activities. This is what happened to [appellant] as documented in her medical records.”
Dr. Hartunian indicated that it was impossible to say what the natural progression of her
osteoarthritis would have been as current research attributed the condition to environmental factors
rather than aging. He advised that work factors had contributed to appellant’s progressive hip and
knee arthritis as it had occurred while she was performing high impact-loading activities over an
extended duration. Dr. Hartunian found that, at a minimum, her employment duties had
contributed to the development of her right hip and knee arthritis.5
By decision dated January 25, 2019, OWCP denied modification of its November 24, 2017
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA,7 that an injury was sustained while in the performance of duty, as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.8 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.9
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.10

5

Dr. Hartunian indicated that appellant had sustained right rather than left hip and knee arthritis; however, it appears
that this is a typographical error.
6

Supra note 3.

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

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).
10

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

4

Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.12
ANALYSIS
The Board finds that the case is not in posture for decision.
In a report dated October 28, 2018, Dr. Hartunian discussed appellant’s employment injury
and reviewed her work duties. He diagnosed end-stage degenerative left hip arthritis treated with
a left hip replacement, left knee arthritis, and arthritis at the first metatarsophalangeal joint of the
left foot. Dr. Hartunian opined that appellant’s repetitive employment duties, including climbing,
lifting, squatting, bending, stair climbing, and walking, had permanently aggravated her left hip,
foot, and knee arthritis. He found that impact-loading activities that she had performed working
as a letter carrier over an extended period had aggravated her arthritis due to the stress on her lower
extremities. Dr. Hartunian explained that repeated stress on cartilage surfaces had caused chronic
inflammation, accelerating cartilage loss.
The Board finds that this report from Dr. Hartunian is sufficient to require further
development of the medical evidence. Dr. Hartunian provided a proper factual and medical history
and evidenced an understanding of appellant’s employment duties. He explained physiologically
how lifting, walking, stooping, squatting, and stair climbing at work had aggravated her left hip
arthritis. The Board has held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical.13 Dr. Hartunian’s opinion, while insufficiently reasoned to meet appellant’s
burden of proof, provides medical rationale explaining how the accepted employment factors
aggravated the claimed diagnosed condition and, thus, raises an uncontroverted inference of causal
relationship sufficient to require further development of appellant’s claim.14
It is well established that proceedings under FECA are not adversarial in nature and, 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

11

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

13

B.C., Docket No. 20-0498 (issued August 27, 2020); S.M., Docket No. 19-1634 (issued August 25, 2020); W.M.,
Docket No. 17-1244 (issued November 7, 2017).
14

See A.S., Docket No. 19-1432 (issued August 5, 2020); C.H., Docket No. 20-0440 (issued August 3, 2020).

15

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219 (1999).

5

done.16 The nonadversarial policy of proceedings under FECA is reflected in OWCP’s regulations
at section 10.121.17
The case will therefore be remanded to OWCP for further development of the medical
evidence. On remand OWCP shall refer appellant to an appropriate medical specialist for an
opinion regarding whether her claimed condition of left hip arthritis is causally related to the
accepted factors of her federal employment. Following this and such other further development
as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

See B.C., Docket No. 15-1853 (issued January 19, 2016); John J. Carlone, 41 ECAB 354 (1989).

17

20 C.F.R. § 10.121.

6


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

)
)
)
)
)
)
)
)

Appearances:
Houston Ford, Jr., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0078
Issued: March 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 17, 2016 appellant, through his representative, filed a timely appeal from a
September 21, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than six
percent permanent impairment of the right upper extremity and two percent permanent
impairment of the left upper extremity.
FACTUAL HISTORY
On August 28, 2012 appellant, then a 66-year-old line production operator, filed an
occupational disease claim (Form CA-2) alleging that he sustained carpal tunnel syndrome due
to factors of his federal employment. He did not stop work. OWCP accepted the claim for
bilateral carpal tunnel syndrome, a ganglion cyst of the synovium of the right third
metacarpophalangeal (MCP) joint, and osteoarthrosis of the right third MCP joint.3
Appellant, on July 1, 2014, filed a claim for compensation (Form CA-7) requesting a
schedule award.
In a July 2, 2014 impairment evaluation, Dr. Lynn D. Ketchum, an attending Boardcertified plastic surgeon, diagnosed carpal tunnel syndrome bilaterally, osteoarthritis, and a
ganglion cyst at the MCP joint of the third right finger. She attributed the conditions to
appellant’s work duties. Referencing the fourth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), Dr. Ketchum
found that appellant had 18 percent permanent impairment of the right upper extremity and 10
percent permanent impairment of the left upper extremity.
By letter dated July 17, 2014, OWCP advised appellant that the medical evidence from
Dr. Ketchum was insufficient to support a schedule award as he did not provide objective
findings or a detailed description of any impairment. It requested that appellant submit a report
from his attending physician providing an impairment rating in accordance with the sixth edition
of the A.M.A., Guides.
Dr. Ketchum, in a July 22, 2014 report, noted that appellant had a right upper extremity
permanent impairment of 18 percent and a left upper extremity permanent impairment of 10
percent under the sixth edition of the A.M.A., Guides.
An OWCP medical adviser reviewed the evidence on February 12, 2015 and determined
that Dr. Ketchum’s opinion was insufficient to support a finding of permanent impairment
warranting a schedule award and noted that her determination was not compatible with the sixth
edition of the A.M.A., Guides.
OWCP, on March 2, 2015, referred appellant to Dr. Joseph W. Huston, a Board-certified
orthopedic surgeon, for a second opinion evaluation.

3

In decisions dated November 28, 2012 and April 29, 2013, OWCP denied appellant’s occupational disease
claim. By decision dated October 4, 2013, it vacated its April 29, 2013 decision and accepted the claim.

2

In a report dated March 27, 2015, Dr. Huston discussed appellant’s accepted conditions
of bilateral carpal tunnel syndrome, a ganglion cyst of the right third MCP joint, and
osteoarthrosis of the right third MCP joint. He advised that the ganglion was “a component of
the arthritis of that joint and does not need a separate rating.” Dr. Huston reviewed appellant’s
complaints of pain and swelling in the MCP joint and numbness and pain in his hands. He noted
that appellant had elected against surgery. Dr. Huston diagnosed carpal tunnel syndrome
bilaterally, more pronounced on the right, and arthrosis of the MCP joint with reduced motion
and swelling.
Dr. Huston obtained an electromyogram (EMG) and nerve conduction velocity (NCV)
study on May 29, 2015. The diagnostic testing revealed moderate-to-severe right median
neuropathy and mild left median neuropathy.
On July 22, 2015 Dr. Huston completed impairment evaluation forms. For the right third
MCP joint, he used Table 15-2 on page 392 the sixth edition of the A.M.A., Guides. Dr. Huston
identified the diagnosis as class 1 post-traumatic degenerative joint disease, which yielded a
default value of six percent of the digit. He applied a grade modifier of one for functional
history, physical examination, and clinical studies, to find no adjustment from the default value
of six percent of the digit, or one percent of the upper extremity. Dr. Huston rated appellant’s
left carpal tunnel syndrome using Table 15-23 on page 449 of the A.M.A., Guides. He
diagnosed grade one median nerve entrapment based on the May 24, 2015 electrodiagnostic
testing, for a default value of two percent. Dr. Huston applied a grade modifier of one for
clinical studies, functional history, and physical examination and found no adjustment from the
default value. For the right carpal tunnel syndrome, he found grade two median nerve
entrapment using Table 15-23. Applying grade modifiers of two for clinical studies, functional
history, and physical examination yielded no adjustment from the default value of five percent.
Dr. Huston combined the one percent right upper extremity impairment due to MCP joint
arthritis and the five percent right upper extremity due to carpal tunnel syndrome to find six
percent permanent impairment of the right upper extremity. He further found two percent
permanent impairment of the left upper extremity due to carpal tunnel syndrome. Dr. Huston
advised that appellant had reached maximum medical improvement.
An OWCP medical adviser reviewed Dr. Huston’s report on September 17, 2015 and
concurred with his impairment ratings. He noted that Dr. Huston should not have applied a
grade modifier for clinical studies in rating the impairment of the MCP joint due to degenerative
joint disease as it was used to identify the class, but found that excluding clinical studies yielded
the same impairment value of the digit of six percent, or one percent permanent impairment of
the upper extremity under Table 15-11 on page 420 of the A.M.A., Guides. The medical adviser
combined the impairment ratings for the right upper extremity due to carpal tunnel syndrome and
degenerative joint disease of the MCP joint using the Combined Values Chart on page 604 of the
A.M.A., Guides to find six percent right upper extremity impairment. He further agreed with the
two percent left upper extremity rating.
In an October 26, 2015 decision, OWCP granted appellant a schedule award for six
percent permanent impairment of the right arm and two percent permanent impairment of the left
arm. The award ran for 23.52 weeks from March 27 to September 7, 2015.

3

Appellant, through his representative, requested an oral hearing on November 18, 2015,
arguing that OWCP did not properly consider Dr. Ketchum’s rating.
At the hearing, held on July 7, 2016, appellant’s representative contended that Dr. Huston
and OWCP did not consider appellant’s age and his arthritis in rating his impairment, and
asserted that he should not be penalized because he did not have surgery.
In a decision dated September 21, 2016, an OWCP hearing representative affirmed the
October 26, 2015 decision. She found that appellant had not submitted evidence showing a
greater impairment than that previously awarded by OWCP.
On appeal appellant’s representative maintains that OWCP’s medical adviser and
Dr. Huston did not sufficiently consider that appellant’s bilateral carpal tunnel syndrome was
continuing to worsen, and asserted that his award should not be reduced because he did not
undergo surgery.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulation,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
Impairment due to carpal tunnel syndrome is evaluated under the process found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text in
section 15.4f of the A.M.A., Guides.9 In Table 15-23, grade modifier levels (ranging from 0 to
4) are described for the categories of test findings, history, and physical examination. The grade
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

A.M.A., Guides 494-531.

9

Id. at 433-50.

4

modifier levels are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than six
percent permanent impairment of the right upper extremity and two percent permanent
impairment of the left upper extremity.
OWCP accepted the claim for bilateral carpal tunnel syndrome, a ganglion cyst of the
synovium of the right third MCP joint, and osteoarthrosis of the right third MCP joint. On
July 1, 2014 appellant filed a claim for a schedule award.
Dr. Ketchum, on July 2, 2014, diagnosed bilateral carpal tunnel syndrome and
osteoarthritis and a ganglion cyst of the right third middle finger at the MCP joint. She opined
that appellant had 18 percent permanent impairment of the right upper extremity and 10 percent
impairment of the left upper extremity under the fourth edition of the A.M.A., Guides. OWCP,
however, currently uses the sixth edition of the A.M.A., Guides to calculate schedule awards.11
A medical opinion based on an outdated edition of the A.M.A., Guides is of diminished
probative value in determining the extent of permanent impairment.12
On July 22, 2014 Dr. Ketchum opined that under the sixth edition of the A.M.A., Guides
appellant had 18 percent permanent impairment of the right arm and 10 percent permanent
impairment of the left arm. He did not, however, reference any tables and pages of the A.M.A.,
Guides in reaching his impairment evaluation or provide any findings on examination supporting
his conclusions. As Dr. Ketchum did not explain the protocols used in making the impairment
determination or provide the clinical findings used to evaluate the impairment, his opinion is
insufficient to establish permanent impairment.13
OWCP referred appellant to Dr. Huston for an impairment evaluation. On March 27,
2015, the physician diagnosed bilateral carpal tunnel syndrome more severe on the right side and
MCP joint arthrosis with loss of motion and swelling. Diagnostic studies obtained by Dr. Huston
on May 29, 2015 revealed moderate to severe median neuropathy on the right and mild median
neuropathy on the left. On July 22, 2015 he applied the sixth edition of the A.M.A., Guides to
his examination findings and the results of objective testing. Dr. Huston used the diagnosis of
class one post-traumatic degenerative joint disease set forth in Table 15-2 on page 392 of the
A.M.A., Guides in rating appellant’s impairment due to arthrosis of the MCP joint of the right
third finger. The physician applied grade modifiers of one for functional history, physical

10

Id. at 448-50.

11

See supra note 7.

12

See P.O., Docket No. 15-1631 (issued June 2, 2016); Fritz A. Klein, 53 ECAB 642 (2002).

13

See Carl J. Cleary, 57 ECAB 563 (2006); Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

5

examination, and clinical studies, which did not yield an adjustment from the default value of six
percent of the digit, or one percent of the upper extremity.14
In evaluating the impairment due to bilateral carpal tunnel syndrome, Dr. Huston used
Table 15-23 on page 449 of the A.M.A., Guides. On the left side he found that appellant had
class one median nerve entrapment based on the diagnostic studies, for a default value of two
percent. Dr. Huston applied a grade modifier of one for clinical studies, functional history, and
physical examination, which did not alter the default value.15 For the right side, he used the
diagnosis of class two median nerve entrapment, which yielded a default value of five percent.
Applying grade modifiers of two for clinical studies, history, and physical examination did not
alter the default value.16 Dr. Huston combined the right upper extremity impairment of one
percent for arthrosis of the right third finger and five percent for carpal tunnel syndrome to find
six percent permanent impairment of the right upper extremity. He further concluded that
appellant had two percent impairment of the left upper extremity due to carpal tunnel syndrome.
An OWCP medical adviser reviewed Dr. Huston’s opinion and concurred with his
impairment evaluation.17 There is no evidence conforming to the sixth edition of the A.M.A.,
Guides showing greater impairment than that previously awarded.
On appeal appellant’s representative argues that appellant should not be penalized for
failing to undergo surgery. However, his choosing not to undergo surgery was not a factor
considered in rating the extent of his permanent impairment. Appellant’s representative further
maintains that OWCP and Dr. Huston did not consider that appellant’s bilateral carpal tunnel
syndrome would worsen in the future. He may, however, 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 more than six
percent permanent impairment of the right upper extremity and two percent permanent
impairment of the left upper extremity.

14

Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (11) + (1-1) + (1-1) = 0, yielded a zero adjustment.
15

(1-1) + (1-1) + (1-1) = 0, yielded a zero adjustment.

16

(2-2) + 2-2) + (2-2) = 0, yielded a zero adjustment.

17

OWCP’s medical adviser noted that Dr. Huston should not have used clinical studies as a grade modifier in
evaluating appellant’s MCP joint impairment as it was used to identify class; however, this did not alter the extent of
the impairment.

6

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2017
Washington, DC

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

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

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

7