United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, REMOTE ENCODING )
CENTER, Kearny, NJ, Employer
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__________________________________________ )
S.C., Appellant

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

Docket No. 13-1658
Issued: December 16, 2013

Case Submitted on the Record

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

JURISDICTION
On July 2, 2013 appellant, through counsel, filed a timely appeal from a March 15, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable permanent impairment to a scheduled
member or function of the body under 5 U.S.C. § 8107.
FACTUAL HISTORY
On June 25, 1996 appellant, then a 39-year-old data conversion operator, filed an
occupational claim (Form CA-2) alleging a right arm injury as a result of repetitive date entry

1

5 U.S.C. § 8101 et seq.

activity. On September 20, 1996 OWCP accepted the claim for bilateral wrist ganglion cysts. It
has also accepted bilateral carpal tunnel syndrome.
With respect to permanent impairment, appellant submitted an April 16, 2003 report from
Dr. Nicholas Diamond, an osteopath, who provided results on examination and opined that,
under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), appellant had a 49 percent right arm permanent
impairment and a 35 percent left arm permanent impairment.
Appellant was referred for second opinion examinations by Dr. James Charles, a Boardcertified neurologist, and Dr. David Rubinfeld, a Board-certified orthopedic surgeon. In a report
dated June 22, 2008, Dr. Rubinfeld reported that appellant had positive Tinel’s signs bilaterally,
with small ganglion cysts bilaterally. He stated that electromyogram (EMG) results were
incomplete and that appellant did not have any permanent impairment under the fifth edition of
the A.M.A., Guides. In a report dated August 12, 2008, Dr. Charles reported that an EMG and
nerve conduction velocity (NCV) revealed normal right median motor distal latency and that
appellant did not have carpal tunnel syndrome. By report dated August 20, 2008, Dr. Rubinfeld
reviewed the report from Dr. Charles and stated that his prior diagnosis of possible carpal tunnel
syndrome should be removed.
In a report dated September 14, 2008, an OWCP medical adviser reviewed
Dr. Rubinfeld’s June 22, 2008 report and agreed that appellant had no permanent impairment. In
a report dated April 4, 2009, an OWCP medical adviser reviewed the reports of Drs. Rubinfeld
and Charles and found that appellant did not have a ratable permanent impairment.
OWCP referred appellant for a second opinion examination as to the nature and extent of
any permanent impairment under the sixth edition of the A.M.A., Guides. In a report dated
January 11, 2010, Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, reviewed a history of
treatment and results on examination. He found no ratable permanent impairment under the
sixth edition of the A.M.A., Guides of either upper extremity.
On March 2, 2010 appellant submitted a report from Dr. Diamond dated
January 29, 2010. Dr. Diamond used the examination results from April 16, 2003 to rate
appellant’s permanent impairment under the sixth edition of the A.M.A., Guides. He opined that
appellant had a five percent impairment to each arm based on entrapment neuropathy.
On March 10, 2010 Dr. Morley Slutsky, an OWCP medical adviser, reviewed the
medical records. He opined that there would not be any impairment based on the ganglion cysts,
but as to carpal tunnel syndrome he would have to be provided with EMG/NCV tests as well as a
functional capacity questionnaire from appellant. In a report dated May 17, 2010, Dr. Henry J.
Magliato, a medical adviser, reviewed Dr. Diamond’s January 29, 2010 report. He opined that
appellant had a five percent permanent impairment to each arm.
OWCP determined that a conflict in medical opinion arose between Dr. Diamond and
Dr. Lakin. Dr. Michael Seidenstein, a Board-certified orthopedic surgeon, was selected as the
referee physician and was asked to address any permanent impairment under the A.M.A.,
Guides. In a report dated November 16, 2010, he reviewed the medical evidence, including an

2

undated EMG report but appellant had stated a more recent EMG had been performed.
Dr. Seidenstein stated that based on the EMG that Dr. Charles performed and results on physical
examination, there was no evidence of bilateral carpal tunnel syndrome. If there were additional
EMG tests, Dr. Seidenstein requested they be forwarded for his review. Dr. Seidenstein found
appellant did have a xanthoma/ganglion on the volar ulnar aspect of the right wrist.
Appellant was again referred to Dr. Lakin. In a report dated March 16, 2012, Dr. Larkin
reviewed a history of treatment and provided results on examination. He stated that appellant
had no clinical findings of bilateral carpal tunnel syndrome or carpal tunnel syndrome in either
wrist. Dr. Lakin opined that appellant had a zero percent permanent impairment for entrapment
neuropathy under the A.M.A., Guides at Table 15-23. In a report dated May 14, 2012, he again
reviewed the physical examination results. Dr. Lakin referred to the wrist regional grid at Table
15-3 and found appellant had no permanent impairment. He explained that there was no
impairment for a diagnosis of a nonspecific wrist pain with no objective findings. In a report
dated May 16, 2012, an OWCP medical adviser opined that appellant had no ratable permanent
impairment.
By decision dated August 23, 2012, OWCP determined that appellant was not entitled to
a schedule award. Appellant requested a hearing before an OWCP hearing representative, which
was held on December 27, 2012.
By decision dated March 15, 2013, the hearing representative affirmed the August 23,
2012 OWCP decision. The hearing representative found that the January 29, 2010 report from
Dr. Diamond was not sufficient to create a conflict. The weight of the medical evidence did not
establish any employment-related permanent impairment.
LEGAL PRECEDENT
Section 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
ANALYSIS
Appellant underwent an examination by Dr. Diamond on April 16, 2003. He rated
impairment under the fifth edition of the A.M.A., Guides. On January 29, 2010 Dr. Diamond
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

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

4

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

3

provided an opinion as to appellant’s permanent impairment under the sixth edition of the
A.M.A., Guides, resubmitted the April 16, 2003 examination results. The Board has held that an
opinion on a permanent impairment must be based on a reasonably current physical examination,
and that an opinion based on examination conducted several years earlier is of diminished
probative value.5 The January 29, 2010 rating by Dr. Weiss was not based on a current physical
examination. It is of diminished probative value to the issue presented.
The Board therefore concurs with the hearing representative’s determination that the
January 29, 2010 report was not sufficient to create a conflict under 5 U.S.C. § 8123(a).6 The
referral to Dr. Seidenstein was for a second opinion examination.7
The most recent medical examination was the March 16, 2012 examination by Dr. Lakin
who provided results on examination and found that appellant did not have carpal tunnel
syndrome in either arm. This is consistent with his prior findings as well as the report of
Dr. Seidenstein. Dr. Lakin found no impairment under the A.M.A., Guides based on entrapment
neuropathy. In a supplemental report dated May 14, 2012, he opined that there was no arm
impairment under the wrist regional grid for a diagnosis of nonspecific wrist pain with no
objective findings. The medical adviser concurred with Dr. Lakin in a May 16, 2012 report.
The Board finds that the weight of the medical evidence rests with Dr. Lakin, who
provided a complete report based on a recent physical examination and found no permanent
impairment under the sixth edition of the A.M.A., Guides.
On appeal, appellant contends that Dr. Diamond’s opinion is of probative value and there
is an unresolved conflict. For the reasons noted, the Board finds that Dr. Diamond relied on a
physical examination almost seven years prior to rate impairment. His rating is of diminished
probative value and there was no conflict in the medical evidence. Appellant notes that there
was an OWCP medical adviser’s report of May 17, 2010 rated permanent impairment, but this
report was based on Dr. Diamond’s 2003 physical examination results which render it of
diminished probative value. The weight of the medical evidence of record does not establish that
appellant has an employment-related permanent impairment under the A.M.A., Guides.
Appellant may submit new evidence or argument with a written application for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

5

See B.N., Docket No. 12-1394 (issued August 5, 2013) (examination dated July 2004, updated opinion provided
in November 2011 report); E.W., Docket No. 13-506 (issued May 13, 2013) (October 2004 examination, May 2011
opinion); W.M., Docket No. 12-773 (issued March 29, 2013) (September 2006 examination, June 2010 opinion).
6

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). When a medical report is of diminished probative value it is not sufficient to
create a conflict under 5 U.S.C. § 8123(a). See W.M., id.
7

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

4

CONCLUSION
The Board finds that the evidence does not establish a ratable permanent impairment to a
scheduled member or function of the body under FECA.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2013 is affirmed.
Issued: December 16, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

)
)
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)
)
)
)
)
)

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

Docket No. 13-370
Issued: November 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 6, 2012 appellant filed a timely appeal from the August 6, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and the October 19, 2012
nonmerit decision of OWCP. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to rescind its acceptance of
appellant’s claim; and (2) whether it properly denied his request for further review of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 1, 2003 appellant, then a 39-year-old transportation security screener, filed a
Form CA-1, traumatic injury claim, alleging that he sustained an injury on Thursday, May 1,
2003 at 11:35 a.m., when he twisted his right ankle and fell while exiting his car in the remote
parking lot of McCarran International Airport. Traci Kudron, appellant’s supervisor, stated that
his regular work tour was from 1:00 p.m. to 9:30 p.m., Monday through Thursday, as directed.
She stated that appellant’s claimed injury did not occur in the performance of duty because it
occurred while he was in an airport parking lot on his way to work.
OWCP initially accepted appellant’s claim for lumbar disc herniation at L4-5. On
September 2, 2004 appellant underwent OWCP-authorized surgery, including a lumbar
discography at L3-4, L4-5 and L5-S1. OWCP expanded its acceptance of his claim to include
lumbar disc displacement at L4-5 without myelopathy, lumbar spinal stenosis, thoracic and
lumbar neuritis/radiculitis, postlaminectomy syndrome, disruption of internal operative wound,
pulmonary insufficiency following surgery, other disorder of penis, other psychogenic pain,
acute renal failure, acidosis and chronic airway obstruction. Appellant stopped work on the date
of injury and returned to work later in 2003. He sustained a recurrence of disability on May 14,
2006 and did not return to work. Appellant received total disability compensation on the
periodic rolls.
On January 4, 2011 appellant underwent a dural repair of a presumed cerebrospinal leak,
posterior exploration and fusion at L4-5 and L5-S1 and posterior hardware removal at L5-S1.
The procedures were authorized by OWCP.
In a statement dated April 7, 2011, Michael Cylke, a workers’ compensation program
manager for the employing establishment, requested that OWCP cease paying compensation to
appellant. He noted that the employing establishment had recently received new information that
the parking lot where appellant was injured on May 1, 2003 was not owned, leased, managed,
operated, supervised, controlled or maintained by the employing establishment. Mr. Cylke
pointed out that appellant was hurt at 11:35 a.m. on May 1, 2003, but that his shift did not begin
until 1:00 p.m. Therefore, the employing establishment concluded that appellant was not onduty at the time of May 1, 2003 accident and he did not sustain an injury in the course of
employment.
Mr. Cylke attached an e-mail he received on April 4, 2011 from Dan Busch, the airport
parking manager for the Clark County Department of Aviation at McCarran International
Airport, who had reviewed old e-mails and found that in 2003 employing establishment
screeners were parking on the east side of the “old” economy parking lot that was located on
Russell Road. The public also used this parking lot but the areas used by the public and by
screeners were separated by a row of concrete barriers. Mr. Busch stated that in April 2002
Larson’s Van Service performed shuttle services from the parking lot for the benefit of the
employing establishment and that by April 2003 or sooner Bell Trans was performing this
service.
On May 20, 2011 OWCP requested additional evidence, including proof that the parking
lot where appellant fell on May 1, 2003 was not owned or managed by the employing

2

establishment and evidence showing what entity or entities owned and managed it. The
employing establishment was asked to submit, if available, maps or diagrams showing the
boundaries of the premises and the location of the injury site in relation to the premises. OWCP
requested that appellant’s supervisor explain the reason for appellant’s presence at the parking
lot at 11:35 a.m. on May 1, 2003, instead of his starting time of 1:00 p.m.
In a June 9, 2011 statement, Mr. Cylke noted that he was attaching e-mails which
demonstrated that all parking lots at McCarran International Airport belonged to the Clark
County Department of Aviation. This had been the case since the employing establishment was
established at the airport in 2002. Mr. Cylke further noted that the Clark County Department of
Aviation clearly explained that the employing establishment never owned, leased, managed,
operated, supervised, controlled or maintained any parking lot at the airport. Maps showing the
parking lot where appellant fell on May 1, 2003 were not available as it no longer existed due to
the construction of a new airport terminal. Mr. Cylke noted that appellant’s immediate
supervisor at the time of the May 1, 2003 accident no longer worked at the airport for the
employing establishment. Appellant contacted him on June 7, 2011 and advised that he
volunteered “off the clock” to come to work early on May 1, 2003 in order to gather documents
for his shift, including sick call lists and sign-in forms and to deliver them to his worksite. He
advised that he did so in order to show his motivation to advance in the employing establishment
and asserted that he was an unofficial “lead” screener. Mr. Cylke noted that an attached copy of
a sign-in document showed that appellant did not sign in early on May 1, 2003.
In an attached June 3, 2011 e-mail, Mark Habersack, senior risk management analyst for
the Clark County Department of Aviation, responded to a request from Mr. Cylke to submit a
map or other evidence showing what entity owned the parking lot where appellant fell on
May 1, 2003. He stated, “I would not have anything from back in 2003 that I can give you,
however, all our parking lots at McCarran International Airport were and are still owned and
operated by the Clark County Department of Aviation …. As you are aware the Clark County
[Department of Airport] is not affiliated with the [employing establishment] and the [employing
establishment] does not operate, own or maintain any parking lots here at McCarran International
Airport.” An attached document entitled “daily manning” for May 1, 2003 contains appellant’s
signature and indicates that his regular work hours were from 1:00 p.m. to 9:30 p.m. Four
coworkers were listed as lead screeners, but appellant was not listed as a lead screener.
In a September 26, 2011 letter, OWCP proposed to rescind its acceptance of appellant’s
claim and terminate his wage-loss compensation and medical benefits. It noted that new
evidence established that he did not sustain an injury in the performance of duty on May 1, 2003.
The evidence showed that the parking lot where appellant fell was not owned or controlled by
the employing establishment and that he was neither required nor authorized to come to work
early on May 1, 2003 to perform additional duties as an unofficial lead screener. OWCP stated
that it was unreasonable to assume that appellant was performing his federal employment duties
an hour and a half prior to the beginning of his work shift on May 1, 2003. Appellant was
allowed 30 days to submit additional evidence or argument.
In an October 24, 2011 letter, counsel contended that appellant was injured in the
performance of duty on May 1, 2003. Appellant was working as a standards, operations and
procedures (SOP) trainer and acting lead screener at the time of injury and the parking lot where

3

he fell was where all the employing establishment employees were told to park. In an attached
October 4, 2011 statement, he noted that he regularly arrived at work early because his
supervisors allowed him to act as an SOP trainer. Appellant would stop at the office to retrieve
shift paperwork, such as attendance sheets, management summaries and absentee and call-out
sheets and take these materials to the shift supervisor’s office. He used the time prior to his
regular shift to read SOP manuals that he would in turn teach to coworkers after 1:00 p.m.
Appellant also had the responsibility to read about sexual harassment rules and to ensure that
coworkers on his shift understood and signed off on these rules. He stated, “This is what I
performed every day.” Appellant noted that he was not allowed to sign in early unless
management approved of overtime and that his supervisors told him that coming in early was
“strictly volunteer.” His supervisors also told him they would advise upper management of the
extra responsibilities he accepted in hopes that he would advance within the employing
establishment as a result. Appellant stated that the “other volunteer jobs” he performed as an
acting lead screener included taking charge of multiple screening lines, calibrating explosives
trace detection machines, rebooting x-rays machines and calculating walkthrough numbers for
security lanes. Regarding the parking lot where he fell on May 1, 2003, he stated that all the
employing establishment employees (except perhaps management) were assigned to park at the
remote parking lot on Russell Road and then shuttled to the airport. Appellant identified several
of the supervisors with whom he had worked.2
In a February 10, 2012 decision, OWCP rescinded its acceptance of appellant’s claim and
terminated his entitlement to wage-loss compensation and medical benefits effective
February 10, 2012. It found that he was not performing required work duties when he was
injured on May 1, 2003. OWCP stated, “The evidence of record fails to establish that the
claimant was in fact performing his [employing establishment] screener duties at the time he was
injured. Therefore, the claimant has failed to establish that he was in the performance of duty
when he was injured.”
Appellant requested a hearing before an OWCP hearing representative. At the June 4,
2012 hearing, he testified that he regularly arrived at work early because he was an acting lead
scanner. Appellant reiterated that he retrieved shift paperwork and call-out sheets, gave these
materials to his supervisor, read the SOP manuals and instructed other employees about such
matters. He performed such tasks daily in 2003 as a volunteer lead scanner and kept a log of his
work activities beginning on April 22, 2003. Appellant asserted that his immediate supervisor
was aware of his daily volunteer work, but was never provided with written confirmation of his
role as a volunteer lead scanner. He signed in only for the period covering his regular work shift
since he was never asked to sign in for his volunteer time by a supervisor and there was no signin sheet for that purpose. Appellant was only allowed to sign in for hours outside his regular
work shift if management approved overtime work. He testified that he parked in the same
remote parking lot each workday because his supervisor told him to park there. There was no
other location where appellant could park as an employee. He stated that he did not have to pay
for parking in the remote lot and that a shuttle took him from the lot to his worksite.

2

In a letter to counsel, appellant indicated that Mr. Cylke advised him that none of these supervisors were still
employed by the employing establishment.

4

After the hearing, counsel submitted a June 27, 2012 brief. He reiterated that appellant
was injured in a parking lot controlled by the employing establishment while he was in the
course of his employment. In a June 27, 2012 letter, Mr. Cylke again advised that the remote lot
where appellant fell on May 1, 2003 was owned and controlled by the Clark County Department
of Aviation. He argued there was no evidence to support appellant’s assertion that he was an
unpaid acting lead screener on May 1, 2003.
In a letter of recommendation dated January 12, 2003, Eugene Lucio, an agency
checkpoint supervisor, stated that appellant had worked under his supervision as a screener since
November 2002. He noted that appellant “has been assigned by me to take on the role of lead
screener on a regular basis” and recommended that he be promoted to the position of lead
screener or supervisor. In a January 24, 2003 letter, Don Harand, assistant federal security
director of screening at the employing establishment, commended appellant for a compliment
made by a passenger about his job performance.
In a June 23, 2003 memorandum, Robyn Kauffman, a supervisor, nominated appellant
for screener of the month noting that he had taken the lead position on his lane several days a
week. In a January 10, 2004 memorandum, Mark C. Schay provided a recommendation for
appellant’s promotion to the position of lead screener. He had worked with appellant for the
prior six months and noted that appellant had volunteered himself every day for the position of
acting lead screener.
In a memorandum dated January 21, 2004, Mr. Callen recommended that appellant be
considered for the position of screener supervisor. He noted that he had supervised appellant on
a number of different shifts since September 2003 and noted that appellant accepted temporary
lead screener and supervisor assignments and performed his duties in an outstanding manner.
Appellant submitted a handwritten daily log for various dates between April 22 and
June 26, 2003. The entries included that he read the SOP manuals on April 29, 2003, taught the
SOP manuals on April 30, 2003 and read the SOP manuals on May 4, 2003. In the entry for
May 1, 2003, appellant indicated that he twisted his ankle in the remote parking lot and that, after
going to the first aid station, he was sent home at 1:00 p.m.
In an August 6, 2012 decision, OWCP’s hearing representative affirmed the rescission of
appellant’s claim and the termination of his compensation benefits effective February 10, 2010.
Although the parking lot where appellant fell on May 1, 2003 belonged to the Clark County
Department of Aviation, the use of the lot by employees pursuant to the employing establishment
management placed it within the employment premises. Appellant, however, did not establish
that his presence on the premises at 11:35 a.m. was incidental to his work. The hearing
representative modified and affirmed the February 10, 2012 decision to reflect that appellant was
on the employing establishment’s premises at the time of the May 1, 2003 injury, but that the
rescission of the acceptance of his claim was proper because he was not on the clock or
performing work duties incidental to his employment at the time of the accident.
On September 26, 2012 appellant requested reconsideration of his claim. In an undated
statement, he contended that he was working as an unpaid volunteer lead screener on the
morning of May 1, 2003. Appellant advised that workers who were on the premises prior to the

5

start of their shift only needed to sign in if overtime work was approved. He stated that he never
asked for compensation for his volunteer work.
In an August 3, 2012 statement, in which, Mr. Callen stated that appellant frequently
came to his shifts early to calibrate equipment and perform other supervisory and administrative
duties. He stated that there were many occasions when appellant would manage checkpoints
when he was called away or performed other managerial duties. Mr. Callen noted that appellant
was not the only person that he trained to be a “temporary lead screener” or “acting supervisor.”
Appellant submitted an undated letter to Senator John McCain that disagreed with
OWCP’s August 6, 2012 decision and continued to argue that he worked as an acting lead
screener. In an August 20, 2012 letter, Senator McCain requested that OWCP investigate
appellant’s claim. Appellant also submitted a number of documents which had been previously
submitted and considered by OWCP, including an October 2011 personal statement and several
letters of recommendation from prior supervisors.
In an October 19, 2012 decision, OWCP denied appellant’s reconsideration request
without merits review of his claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.3 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.4 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.5
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once OWCP accepts a claim, it has the burden of justifying the termination or modification
of compensation benefits. This holds true where, as here, OWCP later decides that it erroneously
accepted a claim. In establishing that its prior acceptance was erroneous, it is required to provide
a clear explanation of the rationale for rescission.6
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”7 The
3

5 U.S.C. § 8128.

4

John W. Graves, 52 ECAB 160, 161 (2000).

5

See 20 C.F.R. § 10.610.

6

Supra note 4.

7

5 U.S.C. § 8102(a).

6

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.”8 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be said to be engaged in the master’s business, at a place where he or
she may reasonably be expected to be in connection with the employment and while he or she
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”9
As to employees having fixed hours and places of work, injuries occurring on the
premises of the employing establishment, while the employee is going to or from lunch, before
or after working hours or at lunch time, are compensable.10 The Board notes, however, that the
occurrence of an incident on the employing establishment premises which leads to an injury is
not sufficient, in itself, to give rise to coverage under FECA as the employee must show not only
that the injury encompasses the work setting but also that the employment caused the injury.11
The course of employment for employees having a fixed time and place of work includes a
reasonable interval before and after official working hours while the employee is on the premises
engaged in preparatory or incidental acts and what constitutes a reasonable interval depends not
only on the length of time involved, but also on the circumstances occasioning the interval and
the nature of the employee’s activity.12
The employing establishment’s premises include property owned by the employing
establishment as well as property over which the employing establishment exercises control.
The Board has pointed out that factors which determine whether a parking lot used by employees
may be considered a part of the employing establishment’s premises include whether it
contracted for the exclusive use by its employees of the parking area, whether the parking lot
was checked for unauthorized vehicles, whether parking spaces on the lot were assigned by the
employing establishment to its employees, whether parking was provided without cost to the
employees, whether the public was permitted to use the lot and whether other parking was
available to the employees.13 The premises doctrine is applied to those cases where it is
8

Charles Crawford, 40 ECAB 474, 476-77 (1989).

9

Mary Keszler, 38 ECAB 735, 739 (1987).

10

Robert W. Walulis, 51 ECAB 122 (1999).

11

See Howard M. Faverman, 57 ECAB 151 (2005).

12

See William W. Knispel, 56 ECAB 639 (2005); Venicee Howell, 48 ECAB 414 (1997); Dwight D. Henderson,
46 ECAB 441 (1995); Arthur A. Reid, 44 ECAB 979 (1993); Nona J. Noel, 36 ECAB 329 (1984). Compare John F.
Castro, Docket No. 03-1653 (issued May 14, 2004) with George E. Franks, 52 ECAB 474 (2001). In cases
concerning what constitutes a reasonable interval before or after work, the Board has been influenced by the
activities engaged in by the employees before or after work. In Howell, the Board found coverage when the
employee was injured five minutes after work while performing the incidental task of submitting a job bid.
However, in Noel, the Board denied coverage when the employee was injured 90 minutes before work while
engaging in the personal activity of eating breakfast.
13

Roma A. Mortensen-Kindschi, 57 ECAB 418 (2006); Diane Bensmiller, 48 ECAB 675 (1997).

7

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.14
In T.F.,15 the employee sustained injury when she tripped on a loose floor tile some 25
minutes before her work shift began at 6:00 a.m. She was on the premises of the employing
establishment in the vicinity of her work cubicle. The Board affirmed the denial of
compensability under the statute, noting that the reasons given by the employee for her early
arrival at work included being able to find a good parking place, drink coffee, eat breakfast and
put her lunch away. The activities in which she was engaged at the time of injury were found
personal to her and not reasonably incidental to the work of the employing establishment.
Moreover, the Board noted that the employee presence at the premises some 25 minutes prior to
the commencement of her work shift did not constitute a reasonable interval under the
circumstances. The employee’s presence was not required by the employing establishment and
did not pertain to preparatory activities reasonably incidental to her employment as a tax
examiner.
ANALYSIS -- ISSUE 1
The Board finds that OWCP presented sufficient evidence and argument to support
rescission of appellant’s claim for a May 1, 2003 work injury. This evidence establishes that
appellant was not in the performance of duty at the time of injury.
The evidence reveals that the remote parking lot where the May 1, 2003 injury occurred
was part of the employing establishment premises. The employing establishment directed
appellant to park in the lot and a part of the lot was separated by concrete barriers for the
exclusive use of its employees. Appellant did not have to pay to park in the designated lot and
there was a free shuttle van to take the employing establishment employees from the designated
lot to their duty stations in the terminals. There was no other parking area at McCarran
International Airport where the employing establishment employees were designated to park.
Although the parking lot property was owned by the Clark County Department of Aviation, the
use of the lot by employing establishment employees pursuant to management instructions
placed the lot within the premises of the employing establishment. The facts of the present case
are in contrast with cases such as Roma A. Mortensen-Kindschi,16 where the parking lot in which
the employee sustained injury was deemed to not be part of the employing establishment
premises. In that case, the parking lot where the accident occurred was not exclusively limited to
employing establishment employees and there were other places in which the employee could
park. Therefore, OWCP properly determined that site of the May 1, 2003 accident was on the
employer’s premises.

14

Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982).

15

Docket No. 09-154 (issued July 16, 2009).

16

See supra note 13.

8

The Board further finds that OWCP relied on evidence which establishes that, despite
occurring on the premises, the May 1, 2003 injury did not arise in the performance of duty. As
noted, the occurrence of an incident on the employing establishment premises which leads to an
injury is not sufficient, in itself, to give rise to coverage under FECA as the employee must show
not only that the injury encompasses the work setting but also that the injury occurred a
reasonable interval before or after official working hours while he or she was on the premises
engaged in preparatory or incidental acts. What constitutes a reasonable interval before work
depends on both the length of time involved and the circumstances occasioning the interval and
the nature of the employee’s activity.17
The Board finds that May 1, 2003 accident did not occur at a reasonable interval before
the start of work while appellant was engaged in preparatory or incidental acts. Appellant was
injured at 11:35 a.m. on May 3, 2003, a time that was 85 minutes prior to the regular start of his
work shift which began at 1:00 p.m. In T.F.,18 the employee sustained injury when she tripped
on a loose floor tile some 25 minutes before her work shift began at 6:00 a.m. She was on the
premises of the employing establishment, but the Board affirmed OWCP’s denial of
compensability noting that the employee arrived early to work for personal reasons and her
presence was not required by the employing establishment and did not pertain to preparatory
activities reasonably incidental to her employment. In the present case, appellant’s accident
occurred at a substantially longer interval prior to the start of the workday than was the case in
T.F., and as will be discussed below, the evidence does not show that appellant was performing
his regular of specially assigned duties or that he was engaged in preparatory or incidental acts
when he sustained his accident.
The Board finds that appellant was not performing his regular or specially assigned work
duties or other preparatory or incidental acts at the time of the accident on May 1, 2003, because
he did not show that he was working as an unpaid, volunteer lead screener or otherwise carrying
out actions incidental to his work on the morning of his injury. Appellant testified that he signed
in on May 1, 2003 only for his regular hours but that he was working as a lead screener prior to
that time. However, the record does not contain sufficient evidence to establish that he was
working as an unpaid, volunteer lead screener on May 1, 2003. The sign-in sheet for May 1,
2003 showed four employing establishment employees designated as “leads,” but appellant was
not among them.19 Appellant submitted several statements in which former supervisors noted
that he served as an acting lead screener or temporary supervisor under their direction. However,
none of these former supervisors indicated that he served as a volunteer lead screener during the
hours prior to his regular sign-in time of 1:00 p.m., let alone that he performed such duties on
May 1, 2003. For example, Mr. Callen indicated in a January 21, 2004 statement that since
September 2003 appellant had accepted temporary lead screener and supervisor assignments. He
did not state that these accepted duties involved voluntary actions performed prior to the start of
the regular workday. Nor did Mr. Callen identify appellant’s actions on May 1, 2003. In fact,
the content of the statements of Mr. Callen and the other supervisors suggest that their references
17

See supra note 12.

18

See supra note 15.

19

The sheet showed that appellant signed in for his regular shift from 1:00 p.m. to 9:30 pm.

9

to lead screener activities related to activities that occurred during appellant’s regular work
shift.20 Appellant submitted personal logs in which he recorded instances that he either read the
employing establishment’s SOP manuals or instructed coworkers in the use of the manuals, but
the logs do not provide any indication that he served as a volunteer lead screener on the morning
of May 1, 2003.
The evidence does not show that appellant’s presence on the employing establishment’s
premises on May 1, 2003 at 11:35 a.m., i.e., 85 minutes prior to his regular starting time of 1:00
p.m., was incidental to his employment. On appeal, appellant continued to argue that he was
working as a volunteer lead screener on the morning of May 1, 2003, but the evidence of record
does not support this assertion. For these reasons, the injury that occurred on May 1, 2003 did
not occur at a reasonable interval before and after his official working hours while he was
engaged in preparatory or incidental acts.
Therefore, OWCP explained how the evidence showed that any injury appellant sustained
on May 1, 2003 did not occur in the performance of duty. It properly rescinded its acceptance of
his claim and terminated wage-loss compensation and medical benefits effective
February 10, 2012.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,21
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.22 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.23 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.24 The Board has held that the submission of evidence
20

In a January 10, 2004 memorandum, Mr. Schay stated that he had worked with appellant for the last six months
and noted that appellant had volunteered himself every day for the position of acting lead screener. He did not
indicate that appellant performed such work prior to the start of his regular work shift or that he did so on
May 1, 2003.
21

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
22

20 C.F.R. § 10.606(b)(2).

23

Id. at § 10.607(a).

24

Id. at C.F.R. § 10.608(b).

10

or argument which repeats or duplicates evidence or argument already in the case record25 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.26 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.27
ANALYSIS -- ISSUE 2
OWCP issued a decision on August 6, 2012 rescinding its acceptance of appellant’s claim
and terminating his wage-loss compensation and medical benefits. Appellant requested
reconsideration of this decision on September 26, 2012.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim. In his
application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. In a statement supporting his reconsideration request, he continued to argue that he
was working as an unpaid volunteer lead screener on the morning of May 1, 2003. However,
this statement was similar to previously submitted statements which were considered by OWCP.
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record does not constitute a basis for reopening a case.28
A claimant may be entitled to a merit review by submitting new and relevant evidence, but
appellant did not submit any new and relevant evidence in this case. Appellant submitted an
August 3, 2012 statement in which Mr. Callen stated that he frequently came to his shifts early to
calibrate equipment and perform other supervisory and administrative duties.29 While this
evidence is new, it is not relevant to the main issue of the present case, i.e., whether OWCP
properly determined that appellant was not in the performance of duty when he fell on May 1,
2003 such that rescission of acceptance of his claim was justified. Mr. Callen’s statement is not
relevant because he did not provide any comment on appellant’s activities on the morning of
May 1, 2003 when he fell in a parking lot 85 minutes prior to the start of his regular shift at 1:00
p.m. The Board has held that the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.

25

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

26

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

27

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

28

See supra note 25. Appellant also submitted an October 2011 personal statement and several letters of
recommendation from prior supervisors, but these documents had been previously submitted and considered by
OWCP.
29

Mr. Callen indicated that there were many occasions when appellant would manage checkpoints when he was
called away or performed other managerial duties and that he was not the only person that he trained to be a
“temporary lead screener” or “acting supervisor.”

11

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP met its burden of proof to rescind its acceptance of
appellant’s claim. The Board further finds that it properly denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 19 and August 6, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corvallis, OR, Employer
__________________________________________

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

Docket No. 07-2114
Issued: March 20, 2008

Case Submitted on the Record

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

JURISDICTION
On August 14, 2007 appellant filed an appeal of a May 31, 2007 decision of the Office of
Workers’ Compensation Programs denying her occupational disease claim and a July 18, 2007
decision denying her request for a merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that she sustained a left shoulder
condition in the performance of duty; and (2) whether the Office properly denied appellant’s
request for a merit review.
FACTUAL HISTORY
On March 22, 2007 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) asserting that she sustained a left shoulder condition in the
performance of duty on or before December 1, 2006. She attributed her condition to loading
heavy trays, holding mail flats in her left arm and holding heavy bundles of mail in her left hand

while delivering her route. Appellant previously had left shoulder surgery in 1998. She did not
stop work at the time of her claim.
In a March 29, 2007 accident report, appellant’s supervisor acknowledged that she
handled heavy trays of mail and held mail on her left forearm while casing mail.
In a March 19, 2007 report, Dr. Janet Neuburg, an attending physician Board-certified in
family practice and occupational medicine, noted appellant’s complaint of left shoulder pain for
three months. She noted that appellant worked for the employing establishment, assigned to a
park and loop route. Appellant used her “left arm in a sustained position to hold letters and flats
while she cases with the right hand.” She also reached into her vehicle to get packages of mail.
Dr. Neuburg stated that appellant underwent surgery in 1998 for a rotator cuff tear and recovered
well. On examination, she found a positive impingement test and minimal crepitance on
palpation. Dr. Neuburg diagnosed impingement tendinitis of the left shoulder. She prescribed
physical therapy and released appellant to full duty.
In an April 12, 2007 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish her claim. The Office emphasized the importance of a
rationalized report from her physician explaining how and why work factors would cause the
claimed left shoulder condition. Appellant was afforded 30 days in which to submit such
evidence.
Appellant submitted progress reports from Dr. Neuburg, through May 22, 2007, noting
improvement in the left shoulder.1
By decision dated May 31, 2007, the Office denied appellant’s claim on the grounds that
causal relationship was not established. The Office accepted her account of work factors as
factual. The Office found, however, that appellant submitted insufficient rationalized medical
evidence to establish that those factors caused or contributed to the claimed left shoulder
condition.
In a July 9, 2007 letter, appellant requested reconsideration. She attributed her left
shoulder condition to cradling 15-pound bundles of mail with her left arm, casing mail for one to
three hours a day, putting rubber bands around bundles of mail and delivering seasonal
catalogues and magazines. Appellant submitted additional evidence.
In a May 22, 2007 chart note, Dr. Neuburg stated that appellant’s condition had improved
with physical therapy and home exercise. She administered a left shoulder injection.
In a June 15, 2007 chart note, Dr. Michael L. Adams, an attending physician specializing
in preventive medicine, observed a nearly normal left shoulder. He diagnosed impingement
syndrome of the left shoulder and released appellant to full duty.

1

Appellant also provided work restriction slips from October 1997 to February 1999 related to a prior injury.
These documents are not relevant to the present appeal.

2

By decision dated July 18, 2007, the Office denied appellant’s request for reconsideration
on the grounds that the evidence submitted was either cumulative or irrelevant to her claim. The
Office found that her letter and the May 22 and June 15, 2007 chart notes did not address the
relevant issue of causal relationship.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.5
ANALYSIS -- ISSUE 1
Appellant alleged that she developed a left shoulder condition due to casing and
delivering mail at work. The Office accepted that she performed such duties, but denied her
claim on the grounds that the medical evidence was not sufficient to establish that these work
factors caused or aggravated the claimed condition.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Solomon Polen, 51 ECAB 341 (2000).

3

In support of her claim, appellant submitted reports from Dr. Neuburg, an attending
physician Board-certified in family practice and occupational medicine. On March 19, 2007
Dr. Neuburg noted that appellant worked a park and loop route, used her “left arm in a sustained
position to hold letters and flats while she cases with the right hand” and reached into her
“vehicle to get packages of mail.” She diagnosed impingement tendinitis of the left shoulder.
However, Dr. Neuburg did not explain how or why delivering mail, holding letters and flats with
the left arm, reaching into a vehicle or any of the identified work factors would cause or
aggravate the diagnosed condition. Her later progress notes did not address causal relationship.
Therefore, Dr. Neuburg’s opinion is insufficiently rationalized to meet appellant’s burden of
proof in establishing causal relationship.6 The Board notes that appellant was advised by an
April 12, 2007 letter of the importance of submitting a rationalized report from her physician
explaining how and why work factors would cause the claimed condition. However, appellant
did not submit such evidence.
Therefore, appellant has not established that she sustained a left shoulder condition in the
performance of duty, as she submitted insufficient rationalized medical evidence to establish the
asserted causal relationship.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) submit
relevant and pertinent new evidence not previously considered by the Office.8 Section 10.608(b)
provides that, when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.9
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge her burden of proof.10 She need only submit
relevant, pertinent evidence not previously considered by the Office.11 When reviewing an
Office decision denying a merit review, the function of the Board is to determine whether the

6

See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2) (2003).

9

Id. at § 10.608(b) (2003).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

4

Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.12
ANALYSIS -- ISSUE 2
The Office denied appellant’s left shoulder condition claim by decision dated May 31,
2007, finding that she submitted insufficient rationalized medical evidence to establish causal
relationship. Appellant then requested reconsideration by July 9, 2007 letter. She also submitted
a May 22, 2007 chart note from Dr. Neuburg and June 15, 2007 chart notes from Dr. Adams, an
attending physician specializing in preventative medicine.
The underlying issue in the case was whether appellant established a causal relationship
between the identified work factors and the claimed left shoulder condition. To be relevant, the
evidence submitted in support of the July 9, 2007 request for reconsideration must address that
issue. The chart notes from Dr. Neuburg and Dr. Adams describe improvement in appellant’s
condition but do not address causal relationship. The Board has held that the submission of
evidence which does not address the particular issue involved does not comprise a basis for
reopening a case.13 Therefore, the chart notes are insufficient to warrant reopening the claim for
a merit review. Appellant’s July 9, 2007 letter is repetitive of her prior descriptions of her work
activities. Evidence or argument which is duplicative or cumulative in nature is insufficient to
warrant reopening a claim for merit review.14
Thus, appellant has not established that the Office improperly refused to reopen her claim
for a review of the merits under section 8128(a) of the Act, because she did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered by the Office or submit relevant and pertinent new evidence
not previously considered by the Office.
CONCLUSION
The Board finds that appellant has not established that she sustained a left shoulder
condition in the performance of duty. The Board further finds that the Office properly denied
her request for a merit review.

12

Annette Louise, 54 ECAB 783 (2003).

13

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

14

Denis M. Dupor, 51 ECAB 482 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 18 and May 31, 2007 are affirmed.
Issued: March 20, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
San Diego, CA, Employer
__________________________________________

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

Docket No. 18-0269
Issued: May 24, 2019

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 November 20, 2017 appellant filed a timely appeal from an October 16, 2017 merit
decision and an October 27, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 27, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an injury
causally related to her accepted employment exposure; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 11, 2017 appellant, a 56-year-old contract specialist, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral hand conditions due to factors of
her federal employment, including using the computer to complete contract-related documents.
She indicated that she first became aware of her condition on August 4, 2017 and first related it to
her employment on August 30, 2017.
In a narrative statement, appellant indicated that she had worked in her current position at
the employing establishment since July 2010 and that her duties required using a computer and
performing some manual filing. She stated that she used the computer for six to eight hours per
day.
In a September 14, 2017 development letter, OWCP advised appellant of the deficiencies
of her claim and advised her as to the need to submit a comprehensive narrative medical report
from a qualified physician that included a diagnosis and an opinion, supported by medical
rationale, addressing how the work-related exposure resulted in the diagnosed condition(s). It
afforded her 30 days to submit medical evidence in support of her claim. OWCP did not receive
a response.
By decision dated October 16, 2017, OWCP accepted that the employment exposure
occurred as alleged, but denied appellant’s claim, finding that she had not submitted evidence
containing a medical diagnosis in connection with the accepted employment exposure.
On October 24, 2017 appellant requested reconsideration and indicated that her medical
provider had submitted reports electronically.
By decision dated October 27, 2017, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
3

Supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

that any disability or medical condition for which compensation is claimed is causally related to
the 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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.7
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 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 employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury causally related to the accepted employment exposure.
On her claim form appellant stated that she had been diagnosed with bilateral hand
conditions. In support of her claim, she submitted a narrative statement describing her various
employment duties, which included performing some manual filing and using a computer for six
to eight hours per day. In its September 14, 2017 development letter, OWCP specifically informed
appellant of the need to submit a comprehensive narrative medical report from a qualified
physician that included a diagnosis and an opinion, supported by medical rationale, addressing
how the work-related exposure resulted in the diagnosed condition(s). No response was received.
Appellant must submit, as a part of her burden of proof, medical evidence establishing the
presence or existence of a disease or condition for which compensation is claimed because she has
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); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

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

9

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

3

not submitted competent medical evidence addressing how the accepted employment exposure
caused or contributed to a diagnosed medical condition, the Board finds that she has not met her
burden of proof.11
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.12 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.13 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.14
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.15 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s October 24, 2017 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board
finds that she did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(3).
11

See supra note 2.

12
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.607.

14

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
15

20 C.F.R. § 10.606(b)(3).

16

Id. at § 10.608(a), (b).

4

In addition to her reconsideration request, appellant indicated that her medical provider had
submitted reports electronically. However, the record does not contain medical evidence received
prior to OWCP’s October 27, 2017 decision.17 As there was no relevant and pertinent new
evidence submitted in conjunction with appellant’s request for reconsideration, she has also failed
to satisfy the third above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted employment exposure. The Board further finds that OWCP
properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 27 and 16, 2017 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: May 24, 2019
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
17

See supra note 2.

18
D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58
ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
OKLAHOMA CITY AIR LOGISTICS CENTER, )
TINKER AIR FORCE BASE, OK, Employer
)
__________________________________________ )
P.N., Appellant

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

Docket No. 11-110
Issued: July 22, 2011

Case Submitted on the Record

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

JURISDICTION
On October 19, 2010 appellant filed a timely appeal from the June 30, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) granting her a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a 14 percent permanent impairment of her left arm, for which she received a schedule award.
FACTUAL HISTORY
On March 15, 2000 appellant, a 52-year-old workload manager, sustained injury due to a
fall on a concrete floor at work. OWCP accepted her claim for left elbow and forearm
1

5.U.S.C. § 8101 et seq.

contusions, left rotator cuff sprain and other symptoms of her left shoulder. In August 2000 she
underwent left rotator cuff and distal clavicle excision surgery which was authorized by OWCP.2
Appellant sustained additional employment injuries in 2004 and 2005 and OWCP accepted her
claim for bilateral carpal tunnel syndrome, bilateral trigger finger and bilateral hand
tenosynovitis.3
In a December 14, 2009 report, Dr. John W. Ellis, an attending Board-certified family
practitioner, determined that appellant had a 16 percent impairment of her left arm under the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). He stated that under Table 15-5 appellant had a 5 percent
impairment due to her rotator cuff surgery and a 12 percent impairment due to her
acromioclavicular joint and distal clavicle resection. Appellant did not have any impairment due
to her left elbow condition. Dr. Ellis used the Combined Values Chart starting on page 604 to
combine the 5 percent and 12 percent values and concluded that appellant had a total left arm
impairment of 16 percent under the sixth edition of the A.M.A., Guides. He listed September 20,
2001 as the date of maximum medical improvement, i.e., one year after appellant’s left shoulder
surgery.
OWCP referred appellant to Dr. Christopher Jordan, a Board-certified orthopedic
surgeon, for examination and an opinion on the extent of her left arm impairment.
In a February 20, 2010 report, Dr. Jordan determined that appellant had a 14 percent
permanent impairment of her left arm. He used Table 15-5 (Regional Shoulder Grid) to identify
the diagnostic category of a full-thickness rotator cuff tear which fell under class 1 with a default
value of five percent. Appellant had a grade modifier 2 for functional history (pain or symptoms
with normal activity), a grade modifier 1 for physical findings (minimal palpatory findings) and
there was no grade modifier for clinical studies due to the lack of such studies. Applying the net
adjustment formula to these figures meant that it was appropriate under Table 15-5 to move one
place to the right of the five percent default value to a six percent impairment rating.
Dr. Jordan felt that using Table 15-5 was also relevant for appellant’s distal clavicle
excision because assessing only her rotator cuff condition would not accurately or completely
reflect the limitations in her left arm. This produced a class 1 diagnostic category with a default
value of 10 percent. Dr. Jordan assigned a grade modifier 0 for functional history and a grade
modifier 0 for physical examination and there was no grade modifier for clinical studies.
Applying the net adjustment formula to these figures meant that it was appropriate under Table
15-5 to move two places to the left of the 10 percent default value to an 8 percent impairment
rating. Dr. Jordan used the Combined Values Chart starting on page 604 to combine the abovedescribed 6 percent and 8 percent values to conclude that appellant had a total left arm
impairment of 14 percent under the sixth edition of the A.M.A., Guides.
In a May 5, 2010 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as OWCP’s medical adviser, indicated that he agreed with Dr. Jordan’s assessment of
2

Diagnostic testing showed a full-thickness left rotator cuff tear.

3

Appellant underwent OWCP-authorized left and right carpal tunnel releases in 2007 and 2008.

2

appellant’s left shoulder impairment. He listed the date of maximum medical improvement as
December 14, 2009, the date of Dr. Ellis’ evaluation.
In a June 30, 2010 decision, OWCP granted appellant a schedule award for a 14 percent
permanent impairment of her left arm. The award ran for 43.68 weeks from December 14, 2009
to October 15, 2010. OWCP based its schedule award on the opinions of Dr. Jordan and
Dr. Katz.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 For Office decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.7
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the Class of Diagnosis (CDX) is determined from the shoulder regional grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).8 Under Chapter 2.3, evaluators are directed to provide
reasons for their impairment rating choices, including choices of diagnoses from regional grids
and calculations of modifier scores.9

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

See FECA Bulletin No. 9-03 (issued March 15, 2009). For Office decisions issued before May 1, 2009, the fifth
edition of the A.M.A., Guides (5th ed. 2001) is used.
8

See A.M.A., Guides 401-11 (6th ed. 2009).

9

Id. at 23-28.

3

ANALYSIS
In the present case, OWCP accepted several conditions affecting appellant’s left arm and
granted her a schedule award for a 14 percent permanent impairment of her left arm. The Board
finds that OWCP properly based its schedule award on the opinions of Dr. Jordan, a Boardcertified orthopedic surgeon serving as OWCP’s referral physician, and Dr. Katz, a Boardcertified orthopedic surgeon serving as OWCP’s medical adviser. The record does not contain a
rationalized impairment rating clearly showing that appellant has a higher degree of left arm
impairment than 14 percent.
In his February 20, 2010 report, Dr. Jordan used Table 15-5 to identify the diagnostic
category of a full-thickness rotator cuff tear which fell under class 1 with a default value of five
percent. Appellant had a grade modifier 2 for functional history, a grade modifier 1 for physical
findings and there was no grade modifier for clinical studies. Applying the net adjustment
formula to these figures meant that it was appropriate under Table 15-5 to move one place to the
right of the five percent default value to a six percent impairment rating. Dr. Jordan further
explained that using Table 15-5 was also relevant for appellant’s distal clavicle excision because
assessing only her rotator cuff condition would not accurately or completely reflect the
limitations in her left arm. This produced a class 1 diagnostic category with a default value of 10
percent. Dr. Jordan then described his choice of grade modifiers and his application of the net
adjustment formula to find that appellant had an eight percent impairment rating due to her
clavicle condition. He used the Combined Values Chart to combine the above-described 6
percent and 8 percent values to conclude that appellant had a total left arm impairment of 14
percent under the sixth edition of the A.M.A., Guides.
On May 5, 2010 Dr. Katz indicated that he agreed with Dr. Jordan’s assessment of
appellant’s left shoulder impairment. He listed the date of maximum medical improvement as
December 14, 2009, the date of an evaluation by Dr. Ellis, an attending Board-certified family
practitioner. In his December 14, 2009 report, Dr. Ellis determined that appellant had a 16
percent impairment of her left arm under the standards of the sixth edition of the A.M.A., Guides.
However, he provided an extremely limited discussion of how he reached this conclusion under
the A.M.A., Guides and consequently it is not possible to determination whether the rating was
made in accordance with the relevant standards.10
On appeal appellant took issue with the method of Dr. Jordan’s impairment rating and
questioned whether she had reached maximum medical improvement. However, she did not
adequately explain why Dr. Jordan’s rating was not in accordance with the relevant standards.
Appellant asserted that Dr. Jordan did not have all the relevant medical records to review, but he
did not specify what important documents he failed to review.
For these reasons, appellant did not show that she has more than a 14 percent permanent
impairment of her left arm.

10

See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative
value where the A.M.A., Guides are not properly followed).

4

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than a 14 percent permanent impairment of her left arm, for which she received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5