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

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

Docket No. 14-1893
Issued: January 7, 2015

Case Submitted on the Record

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

JURISDICTION
On August 20, 2014 appellant filed a timely appeal from the February 27, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this nonmerit decision. In a November 7, 2011 decision, OWCP terminated
appellant’s wage-loss compensation and medical benefits effective November 7, 2011. Because
more than 180 days elapsed between the issuance of the November 7, 2011 decision and the

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
501.3(e)-(f). One hundred and eighty days from February 27, 2014, the date of OWCP’s last decision, was
August 26, 2014. Since using August 27, 2014, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is August 20, 2014, rendering the appeal timely filed. See 20 C.F.R. 501.3(f)(1).
2

5 U.S.C. §§ 8101-8193.

filing of this appeal on August 20, 2014, the Board lacks jurisdiction to review the merits of
OWCP’s termination decision.3
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On November 18, 2008 appellant, then a 43-year-old rural carrier, filed an occupational
disease claim alleging an injury to her arms due to performing her repetitive job duties over time.
OWCP accepted that appellant sustained bilateral sprains of her right shoulders, upper arms and
rotator cuffs, bilateral disorder of bursae and tendons in the shoulders (specified and
unspecified), and chronic impingement, tendinopathy, and subacromial bursitis of her right
shoulder.
On December 23, 2006 appellant underwent OWCP-authorized right shoulder surgery,
including diagnostic arthroscopy and subacromial decompression and micro-debridement of the
supraspinatus using a Topaz system.
In an April 18, 2011 report, Dr. Ronald M. Lampert, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, detailed appellant’s medical history and findings on
physical examination and determined that she ceased to have residuals of her accepted work
injuries. Dr. Lampert stated that appellant showed signs of symptom magnification during the
physical examination and did not have any objective signs of an orthopedic condition. He
indicated that, but for her psychological problems, appellant could return to her regular work as a
rural carrier.
Given the content of the Dr. Lampert’s report, appellant was referred to Dr. Alvin C.
Burstein, a Board-certified psychiatrist, to clarify whether she had a work-related psychological
condition. In a September 22, 2011 report, Dr. Burstein determined that appellant did not have
any psychological condition related to her accepted physical injuries and noted that she engaged
in malingering conduct which was not related to any work factor. OWCP has not accepted that
appellant has a work-related psychological condition.
In an October 5, 2011 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits based on the reports of the second opinion
physicians, Dr. Lampert and Dr. Burstein. It provided appellant an opportunity to submit
evidence and argument challenging the proposed termination action. No response was received.
3

See 20 C.F.R. §§ 501.2(c) and 501.3. In her appeal papers, appellant also suggested that she wished to appeal
August 4, November 23, 2011 and February 5, 2013 OWCP decisions regarding the approval of attorney’s fees and
a January 24, 2014 OWCP decision granting her a schedule award for a seven percent permanent impairment of her
right arm and a seven percent permanent impairment of her left arm. The Board does not have jurisdiction over
these decisions as appellant has not filed an appeal of these decisions within 180 days of the issuance of these
decisions. See 20 C.F.R. § 501.3(e).

2

In a November 7, 2011 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits based on the reports of Dr. Lampert and Dr. Burstein. It noted that
appellant had not submitted any medical evidence showing work-related residuals.
Appellant filed a request for reconsideration. In a February 5, 2013 decision, OWCP
denied appellant’s request for review of OWCP’s November 7, 2011 termination decision on the
merits.
In a February 4, 2014 letter received on February 10, 2014, appellant again requested
reconsideration of OWCP’s November 7, 2011 termination decision. She argued that the reports
of Dr. Lampert and Dr. Burstein did not provide an adequate basis to terminate her compensation
effective November 7, 2011. Appellant asserted that Dr. Lampert and Dr. Burstein did not
adequately examine her. She indicated that it was “a lie” that she had been enrolled in a chronic
pain management program and generally indicated that OWCP treated her in a “horrendous
fashion” with respect to her claim.4
In a February 27, 2014 decision, OWCP denied appellant’s request for further review of
the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It found that appellant filed an untimely request for
reconsideration as it was filed on February 10, 2014, more than one year after the November 7,
2011 termination decision. OWCP determined that the evidence and argument appellant
submitted in support of her untimely reconsideration request did not show clear evidence of error
in the November 7, 2011 decision. It indicated that appellant’s own opinion about the probative
value of the reports of Dr. Lampert and Dr. Burstein was of no probative value. The April 8,
2010 and October 24, 2012 reports of Dr. Tauber had already been considered and did not tend
to show that the November 7, 2011 termination decision was improper.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether the application establishes “clear

4

Shortly prior to filing her February 10, 2014 reconsideration request appellant submitted various records which
were previously of record and considered by OWCP, including April 8, 2010 and October 24, 2012 reports of
Dr. Jacob Tauber, an attending Board-certified orthopedic surgeon. In these reports, Dr. Tauber discussed
appellant’s bilateral shoulder condition, but did not provide an opinion that appellant continued to have work-related
residuals.
5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

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evidence of error.”7 OWCP regulations and procedure provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in
20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of error” on
the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 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.13
ANALYSIS
In its February 27, 2014 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on
February 10, 2014, more than one year after OWCP’s November 7, 2011 termination decision,
and therefore she must demonstrate clear evidence of error on the part of OWCP in issuing this
decision.
Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its November 7, 2011 termination decision. She did not submit the type of positive, precise, and
explicit evidence which manifests on its face that OWCP committed an error.
In connection with her untimely reconsideration request, appellant argued that the reports
of Dr. Lampert and Dr. Burstein did not provide an adequate basis to terminate her wage-loss

7

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

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5a (October 2011). OWCP procedure further provides, “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 a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. 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.”
9

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

10

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

11

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

12

See Leona N. Travis, supra note 10.

13

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

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compensation and medical benefits effective November 7, 2011.14 The Board notes that the
main issue of this case is medical in nature and would generally be resolved by the submission of
probative medical evidence. Appellant’s own opinion on the sufficiency of the medical evidence
would not tend to show that OWCP erred in terminating her compensation. She submitted
various records which were previously of record and considered by OWCP, including April 8,
2010 and October 24, 2012 reports of Dr. Tauber, an attending Board-certified orthopedic
surgeon. However, in these reports, Dr. Tauber did not provide an opinion that appellant
continued to have work-related residuals and therefore the reports would not show clear evidence
with respect to OWCP’s termination of her compensation. Appellant indicated that it was “a lie”
that she had been enrolled in a chronic pain management program and generally indicated that
OWCP treated her in a “horrendous fashion” with respect to her claim. She did not provide
support for these assertions or explain how they manifested, on its face, that OWCP committed
an error in its decision terminating her compensation effective November 7, 2011 which, as
noted, is primarily a medical matter.15
For these reasons, the evidence submitted by appellant does not raise a substantial
question concerning the correctness of OWCP’s November 7, 2011 decision and OWCP
properly determined that appellant did not show clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim as it was untimely filed and failed to demonstrate clear
evidence of error.

14

Dr. Lampert was a Board-certified orthopedic surgeon who served as an OWCP referral physician and
Dr. Burstein was a Board-certified psychiatrist who served as an OWCP referral physician.
15

On appeal, appellant provided similar arguments that she was “harassed” and “bullied” by OWCP with respect
to her claim, but she did not indicate how the evidence of record supported the occurrence of these acts or
adequately explain the relevance of her arguments to OWCP’s November 7, 2011 termination determination.
Appellant also discussed matters relating to attorney’s fees and schedule award compensation which are not
currently within the Board’s jurisdiction.

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ORDER
IT IS HEREBY ORDERED THAT the February 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, SOUTH JERSEY
PROCESSING & DISTRIBUTION CENTER,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 09-1076
Issued: April 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 16, 2009 appellant, through her representative, filed a timely appeal from
April 1, 2008 and January 9, 2009 merit decisions of the Office of Workers’ Compensation
Programs regarding a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that she sustained greater than three percent
permanent impairment to her left lower extremity, for which she received a schedule award. On
appeal, appellant’s representative contends that the Office did not properly select Dr. Robert
Dennis, a Board-certified orthopedic surgeon, as an impartial medical examiner in accordance
with its procedure manual. He also argues that Dr. Dennis’ medical report was not in
conformance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).

FACTUAL HISTORY
On March 15, 2000 appellant, then a 44-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on February 16, 2000, while loading a small parcel and bundle
sorter on a trailer with a manual pallet jack, she experienced a sharp pain in her left foot. The
Office accepted the claim for a fracture of the left metatarsal.1
On May 31, 2005 appellant filed a claim for a schedule award (Form CA-7).
In a June 2, 2003 medical report, Dr. David Weiss, an osteopath, stated that on
February 16, 2000 appellant experienced left foot pain while unloading a mail container. An
x-ray of her left foot revealed a fracture of the fifth metatarsal. Appellant was placed in a
walking cast for approximately nine weeks. Dr. Weiss reported her complaints of left foot pain,
stiffness and swelling on an intermittent basis. Appellant stated that the pain in her left foot was
3 on a scale of 10 in severity. Examination of the left foot revealed palpable tenderness over the
distal third of the fifth metatarsal. Range of motion of the fifth metatarsal phalangeal joint was at
90 percent of normal with pain. Range of motion tests of the ankle revealed dorsiflexion of
15 out of 15 degrees and plantar flexion of 55 out of 55 degrees. No tenderness was elicited over
the base of the latter malleolus or over the anterior talofibular ligament. Motor strength testing
involving the dorsiflexion, plantar flexion, inversion and eversion of the left foot was five out of
five. Manual muscle testing of the gastrocnemius musculature was graded at five out of five but
quadriceps testing was graded at four out of five. Gastrocnemius circumference measured
46 centimeters (cm) on the right versus 45 cm on the left. Quadriceps circumference at 10 cm
above the patella measured 63 cm on the right versus and 63 cm on the left. Dr. Weiss
diagnosed status post stress fracture to the left foot involving the fifth metatarsal. Citing the
A.M.A., Guides, he opined that appellant sustained 11 percent total left lower extremity
impairment. Dr. Weiss calculated the impairment by adding eight percent impairment for
atrophy of the left gastrocnemius, using Table 17-6 on page 532, to three percent impairment for
pain, using Figure 18-1 on page 574.2
On August 6, 2007 the Office forwarded Dr. Weiss’ medical report to an Office medical
adviser for a determination of permanent impairment in accordance with the fifth edition of the
A.M.A., Guides.3
In a medical report dated August 6, 2007, Dr. Henry J. Magliato, a Board-certified
orthopedic surgeon serving as an Office medical adviser, indicated that appellant sustained six
percent permanent impairment to his left lower extremity. He stated that she sustained three
percent impairment for one cm of calf atrophy, in accordance with Table 17-6 on page 530 and
three percent permanent impairment for pain, according to Table 18-1 on page 574.
Dr. Magliato explained that he disagreed with Dr. Weiss’ interpretation of Table 17-6, which
1

This decision is not contained in the record.

2

Dr. Weiss also provided a permanent impairment rating for appellant’s right lower extremity for a work-related
injury under a separate claim which is not the subject of the current appeal. See 20 C.F.R. § 501.3.
3

A.M.A., Guides (5th ed. 2001).

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provides a three to eight percent impairment range for 1 to 1.9 cm of atrophy. He opined that,
because appellant’s one cm atrophy was on the low end of the range, his permanent impairment
for atrophy should be three percent and not eight percent, as found by Dr. Weiss. Dr. Magliato
also assigned a maximum medical improvement date of June 2, 2003.
The Office determined that a conflict of medical opinion existed between Drs. Magliato
and Weiss and referred appellant, along with a statement of accepted facts, to an impartial
medical examiner.
In an October 10, 2007 medical report, the impartial medical examiner, Dr. Dennis, a
Board-certified orthopedic surgeon, reviewed appellant’s occupational and medical background.
He reported her complaints of discomfort in the latter aspect of her left foot which was more
intense on some days than others. Examination revealed normal gait and balance and no
swelling, deformity or gait abnormality of either ankle. Calf muscle strength was normal and
symmetric. Strength of inversion and eversion were symmetric. No deformity, swelling or any
abnormality about the arches or metatarsals was present. Both feet were symmetric and there
was no weakness in the girth of the calves. Sensation in the lower extremities was normal.
Range of motion in both ankles was 30 degrees dorsiflexion and at least 60 degrees plantar
flexion. There was a total of 80 degrees of motion in the ankles with 30 degrees of inversion and
eversion. Appellant demonstrated normal strength in dorsiflexion of all the toes and ankles.
Circumference of the ankles just above midline measured 9 inches and the widest part of the
calves measured 18 inches bilaterally. The circumference just below the knees measured 17
inches. Dr. Dennis noted that there was no evidence anywhere along the leg of any difference
between the two calves. He opined that any findings made by Dr. Weiss in 2003 must have
improved to normal in 2007. Dr. Dennis diagnosed post stress fracture to the left foot involving
the fifth metatarsal, which was nondisplaced and well healed. Dr. Weiss stated that he was
unable to find any objective identifiable impairment to the left lower extremity and noted that the
injury that occurred seven years ago was a nondisplaced, almost invisible fracture of the fifth
metatarsal. He, however, provided a three percent impairment rating to accommodate
appellant’s subjective complaints of pain. Dr. Weiss indicated that appellant reached maximum
medical improvement on May 18, 2001.
On November 5, 2007 the Office referred Dr. Dennis’ medical report to a second Office
medical adviser for a determination of permanent impairment in accordance with the A.M.A.,
Guides, (5th ed. 2001).
In a January 22, 2008 medical report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon acting as an Office medical adviser, agreed with Dr. Dennis’ finding of three percent
permanent impairment of the lower extremity. He noted that Dr. Dennis did not find any
evidence of weakness of either lower extremity, loss of sensation or evidence of calf atrophy.
Dr. Berman opined that following cast immobilization atrophy could be present for a period of
time. However, with normal usage and return to activity, the atrophy would resolve. Thus, over
seven years after the injury, at the time of Dr. Dennis’ examination, appellant’s lack of atrophy
would be anticipated in the normal sequence of events. Dr. Berman found that she sustained
three percent permanent impairment for pain in accordance with Figure 18-1, page 574. He
indicated a maximum medical improvement date of October 10, 2007, the date of Dr. Dennis’
report.

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By decision dated April 1, 2008, the Office awarded appellant a schedule award for three
percent impairment of the left lower extremity. The award ran for 8.64 weeks during the period
October 10 to December 9, 2007. It indicated that appellant reached maximum medical
improvement on October 10, 2007.
On April 15, 2008 appellant, through her representative, filed a request for an oral
hearing before an Office hearing representative.
An oral hearing took place on
September 24, 2008.
By decision dated January 9, 2009, the Office hearing representative affirmed the April 1,
2008 Office decision. The hearing representative found that the weight of the medical evidence
rested with Dr. Dennis, the impartial medical examiner, who found that appellant only sustained
three percent permanent impairment to the left lower extremity due to pain.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 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, the Act 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 losses.6
The Act 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 an examination.7 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser or consultant, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has had no
prior connection with the case.8
ANALYSIS
The Office accepted that appellant sustained a fracture of the left metatarsal on
February 16, 2000 due to her employment injury. It issued a schedule award for three percent
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Supra note 4.

8

20 C.F.R. § 10.321.

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permanent impairment of the left lower extremity. The issue is whether appellant sustained
greater than three percent permanent impairment for which she received a schedule award.
In support of her claim for a schedule award, appellant submitted a June 2, 2003 medical
report from Dr. Weiss. Physical examination revealed a gastrocnemius circumference of 46 cm
on the right versus 45 cm on the left. Manual muscle testing of the quadriceps was graded four
out of five.9 Dr. Weiss calculated an impairment rating of 11 percent of the lower left extremity
by adding 8 percent impairment for atrophy of the left gastrocnemius, citing to Table 17-6 on
page 532 of the A.M.A., Guides and 3 percent impairment for pain, using Figure 18-1 on page
574.
The Office forwarded Dr. Weiss’ medical report to Dr. Magliato for a determination of
permanent impairment in accordance with the A.M.A., Guides. In an August 6, 2007 report,
Dr. Magliato found that appellant sustained six percent impairment. He stated that he disagreed
with Dr. Weiss’ interpretation of Table 17-6, on page 530, which provides three to eight percent
impairment range for muscle atrophy of 1 to 1.9 cm. Dr. Magliato found that, because
appellant’s one cm of atrophy was on the low end of the range, the impairment rating should be
three and not eight cm. He also added three percent impairment for pain.
The Board finds that the Office properly found that a conflict of medical opinion existed
between Drs. Weiss and Magliato regarding appellant’s degree of permanent impairment. The
Office subsequently referred appellant to Dr. Dennis for an impartial medical evaluation.10
In an October 10, 2007 medical report, Dr. Dennis diagnosed post stress fracture to the
left foot involving the fifth metatarsal, which was nondisplaced and well healed. He was unable
to find any objective identifiable impact to the left lower extremity. Dr. Dennis opined that any
findings made by Dr. Weiss must have improved to normal in 2007 and noted that the injury was
only a nondisplaced, almost invisible fracture of the fifth metatarsal. He provided an impairment
rating of three percent to accommodate appellant’s subjective complaints of pain.
The Office subsequently referred Dr. Dennis’ medical report to Dr. Berman, an Office
medical adviser, who agreed with Dr. Dennis’ impairment rating of three percent for pain in
accordance with Figure 18-1 on page 574 of the A.M.A., Guides.11 Dr. Berman noted that cast
immobilization could cause atrophy for a period of time, however, with normal muscle usage,
atrophy would resolve. Thus, over seven years after the injury, appellant’s lack of atrophy would
be anticipated in the normal sequence of events.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual

9

In accordance with Table 17-2 on page 526 of the A.M.A., Guides, a rating for muscle atrophy cannot be
combined with an impairment rating for muscle strength.
10

See Elaine Sneed, 56 ECAB 373 (2005).

11

A.M.A., Guides at 574.

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background, must be given special weight.12 The Board finds that Dr. Dennis provided a wellrationalized medical opinion, based on a complete physical examination and an accurate factual
and medical background. As such, his opinion is entitled to the special weight afforded an
impartial medical examiner.13 The Board further finds that Dr. Berman properly applied
Dr. Dennis’ findings of pain to the A.M.A., Guides to determine that appellant sustained three
percent permanent impairment according to Figure 18-1 on page 574.14 Appellant did not submit
any additional evidence establishing entitlement to a greater schedule award. Therefore, the
evidence supports that she sustained three percent permanent impairment.
On appeal, appellant contends that the Office did not properly select Dr. Dennis as an
impartial medical examiner in accordance with its procedures. However, she did not submit any
evidence establishing that Dr. Dennis was improperly selected or that he was biased.15
CONCLUSION
The Board finds that appellant did not establish that she sustained greater than three
percent permanent impairment to her left lower extremity for which she received a schedule
award.

12

See R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); David W. Pickett, 54 ECAB 272 (2002).

13

See Willie C. Howard, 55 ECAB 564 (2004).

14

It is well established that, when the attending physician fails to provide an estimate of impairment conforming
to the A.M.A., Guides, the Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the
findings reported by the attending physician. See Linda Beale, 57 ECAB 429 (2006).
15

See William Fidurski, 54 ECAB 146 (2002) (an impartial medical specialist properly selected under the
Office’s rotational procedures will be presumed unbiased and the party seeking disqualification bears the substantial
burden of proving otherwise; mere allegations are insufficient to establish bias).

6

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2009 and April 1, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: April 13, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1611
Issued: January 7, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2014 appellant, through her representative, filed a timely appeal from a
May 12, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s right to compensation
benefits effective May 12, 2014 as she refused to submit to a medical examination.
FACTUAL HISTORY
On December 19, 2012 appellant, then a 43-year-old city letter carrier, filed an
occupational disease claim alleging carpal tunnel syndrome in the left forearm and wrist due to

1

5 U.S.C. § 8101 et seq.

work factors. OWCP accepted her claim for left carpal tunnel syndrome. Appellant received
compensation benefits.2
On January 7, 2014 appellant filed a schedule award claim for permanent impairment due
to her carpal tunnel syndrome. In an accompanying December 3, 2013 report, Dr. Samy F.
Bishai, an orthopedic surgeon, opined that appellant had 24 percent left arm impairment due to
her left shoulder, 9 percent due to her carpal tunnel syndrome, and 6 percent due to her
de Quervain’s tenosynovitis, for total 39 percent left arm impairment.
In a January 14, 2014 report, an OWCP medical adviser reviewed Dr. Bishai’s report and
recommended that appellant be referred for a second opinion.
By letter dated February 24, 2014, OWCP referred appellant for a second opinion
examination with Dr. Jonathan Black, a Board-certified orthopedic surgeon. The appointment
was scheduled for March 19, 2014.3 In an accompanying letter, OWCP advised appellant that it
would pay for the examination and reasonable and necessary expenses incurred in obtaining the
examination.
In an April 18, 2014 telephone call memorandum, OWCP was informed by QTC Medical
Services, the medical scheduler, that appellant had appeared for her second opinion examination,
but had refused to sign required intake documentation and thus the examination was not
conducted. It indicated that QTC should treat this as a no show and that it would not be
rescheduled.
On April 28, 2014 OWCP proposed to suspend appellant’s compensation benefits due to
her failure to appear for the scheduled examination on March 19, 2014 with Dr. Black. It
provided appellant 14 days to provide good cause for her failure to appear and informed her of
the penalty provision of 5 U.S.C. § 8123(d). No response was received.
By decision dated May 12, 2014, OWCP finalized the proposed suspension, effective that
date. Appellant was informed that no further action would be taken until she agreed to cooperate
with the second opinion examination with Dr. Black.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.4
The determination of the need for an examination, the type of examination, the choice of locale,
and the choice of medical examiners are matters within the province and discretion of OWCP.5

2

The record indicates that appellant has several other claims for which she has received benefits, including that
she had received a prior schedule award for a 22 percent impairment due to left shoulder rotator cuff tear.
3

An earlier appointment was rescheduled by OWCP.

4

5 U.S.C. § 8123.

5

J.T., 59 ECAB 293 (2008).

2

OWCP regulations at section 10.320 provide that a claimant must submit to examination by a
qualified physician as often and at such times and places as it considers reasonably necessary.6
Section 8123(d) of FECA and section 10.323 of its regulations provide that, if an
employee refuses to submit to or obstructs a directed medical examination, his or her right to
compensation is suspended until the refusal or obstruction ceases.7 OWCP procedures provide
that, before OWCP may invoke these provisions, the employee is to be provided a period of 14
days within which to present in writing his or her reasons for the refusal or obstruction.8 If good
cause for the refusal or obstruction is not established, entitlement to compensation is suspended
in accordance with section 8123(d) of FECA.9
ANALYSIS
On February 24, 2014 OWCP notified appellant that she was scheduled to undergo a
second opinion examination on March 19, 2014 with Dr. Black, with regard to her claim for a
schedule award. Appellant appeared for the scheduled examination but refused to sign the intake
documentation and as a result no the examination was conducted. OWCP treated this as a failure
to attend the examination. In a letter dated April 28, 2014, it proposed to suspend appellant’s
compensation for failure to submit to the scheduled examination and provided 14 days to provide
reasons for her failure to appear. Appellant did not respond.
The Board finds that appellant’s refusal to follow standard intake procedures at
Dr. Black’s office constituted obstruction of an OWCP-directed medical examination.
Appellant’s disagreement with the physician’s routine business practices, and her feeling that
other procedures should have been followed, do not constitute good cause for her failure to
cooperate.10 The purpose of the examination in this case was to assist OWCP in administering
her claim for benefits. Appellant’s obligation is to cooperate with, rather than obstruct this
process. The Board will therefore affirm OWCP’s May 12, 2014 decision suspending her
compensation pursuant to 5 U.S.C. § 8123(d).
On appeal, appellant’s representative asserted that appellant attended the appointment but
she refused to sign paperwork indicating that she would be responsible for the charges. He also
stated that she refused to sign paperwork acknowledging that Dr. Black did not carry malpractice
insurance. However, OWCP previously informed appellant that it was paying for the
examination but it is common practice for physicians to require patients to be responsible for any
unpaid bills. It had advised appellant that she would be reimbursed for reasonable and necessary
6

20 C.F.R. § 10.320.

7

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010); J.T., supra note 5.
9

Scott R. Walsh, 56 ECAB 353 (2005).

10

See R.T., Docket No. 14-95 (issued May 22, 2014) (appellant’s refusal to follow standard intake procedures
constituted obstruction of an OWCP-directed medical examination; for the purpose of invoking the penalty under 5
U.S.C. § 8123(d), it is sufficient that she refused to comply with standard intake procedures).

3

expenses incurred in obtaining the examination. Appellant has offered no evidence to support
her allegation that Dr. Black had no malpractice insurance. For the purpose of invoking the
penalty under 5 U.S.C. § 8123(d), it is sufficient that she refused to comply with standard intake
procedures.11 The Board notes that on April 28, 2014 appellant was provided 14 days in which
to explain her reasons to appear for not undergoing the examination. However, appellant did not
respond to the request or provide any reasons for her failure to undergo the examination before
her benefits were suspended. Thus, the Board finds that OWCP properly suspended her right to
compensation benefits pursuant to section 8123 of FECA.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s right to compensation
benefits effective May 12, 2014 because she refused to attend a scheduled medical evaluation.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

See id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Trenton, NJ,
Employer
__________________________________________

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

Docket No. 12-985
Issued: December 19, 2012

Case Submitted on the Record

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

JURISDICTION
On April 4, 2012 appellant, through counsel, filed a timely appeal from a December 19,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) concerning a
schedule award.1 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.
ISSUE
The issue is whether appellant has established that he is entitled to greater than 20 percent
permanent impairment of the right upper extremity, for which he received a schedule award.
1

Appellant also filed an appeal of an OWCP March 2, 2012 preliminary overpayment notice. The Board has
jurisdiction to consider and decide appeals from final decisions of OWCP. There shall be no appeal with respect to
any interlocutory matter disposed of during the pendency of the case. 20 C.F.R. § 501.2(c); Jennifer A. Guillary, 57
ECAB 485 (2005). Thus, the Board lacks jurisdiction to review the March 2, 2012 preliminary overpayment notice
as it is not a final decision by OWCP.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 13, 2007 appellant, then a 59-year-old tractor trailer operator, filed a traumatic
injury claim alleging that on that day he injured his knee while driving. OWCP accepted the
claim for left lateral collateral ligament sprain and left anterior cruciate ligament tear.
On December 23, 2008 appellant filed a claim for a schedule award.
On September 22, 2009 OWCP received an August 7, 2008 impairment evaluation from
Dr. Nicholas Diamond, an examining osteopath, who reviewed medical evidence and conducted
a physical examination. Dr. Diamond diagnosed post-traumatic anterior cruciate ligament,
patellar tendon and distal quadriceps tears, using Table16-23, page 549 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
He found no modification was warranted using Table 16-6, page 516. Thus, Dr. Diamond
concluded that appellant had a 35 percent left lower extremity impairment.
On January 22, 2010 Dr. Stanley R. Askin, a second opinion Board-certified orthopedic
surgeon, performed a physical examination and reviewed the medical evidence, history of the
injury and statement of accepted facts. He diagnosed an anterior cruciate ligament tear and
lateral collateral ligament sprain. Using Table 16-3, page 510, Dr. Askin found a class 0 based
on lack of any evidence of instability in the left knee. As to range of motion, he concluded that
appellant was in between mild and moderate using Table 549, page 16-23, resulting in a 20
percent left lower extremity impairment.
On August 5, 2010 Dr. Henry J. Magliato, OWCP’s medical adviser and Board-certified
orthopedic surgeon, reviewed the reports from Drs. Askin and Diamond. He concurred with the
impairment rating found by Dr. Askin as that was the most recent opinion and Dr. Diamond’s
examination had been performed approximately a year and a half ago.
By decision dated September 1, 2010, OWCP granted appellant a schedule award for a 20
percent left lower extremity impairment. The period of the award was 57.6 weeks and ran from
January 22, 2010 to March 1, 2011.
In a September 10, 2010 letter, counsel requested an oral hearing before an OWCP
hearing representative.
By decision dated December 27, 2010, OWCP’s hearing representative found an
unresolved conflict in the medical opinion evidence between Dr. Diamond, for appellant, and
Drs. Askin and Magliato, for OWCP, regarding the extent of appellant’s left lower extremity
impairment. She remanded the case to OWCP to refer the case to an impartial medical examiner
for resolution of the conflict.
On February 2, 2011 OWCP referred appellant to Dr. James P. Taitsman, a
Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion evidence
Drs. Askin and Diamond regarding the extent of appellant’s impairment. The record contains a
printout (bearing the heading iFECS Report: ME023 -- Appointment Schedule Notification)
which indicated that the appointment with Dr. Taitsman was scheduled for March 2, 2011. The
record contains bypass notes for Dr. Mark Katz and Dr. Thomas K. Bills, Board-certified
2

orthopedic surgeons. No reason was given on the bypass notes for not choosing either Dr. Katz.
No bypass notes or reason were given for not choosing Dr. Bills. OWCP also bypassed
Dr. David Eingorn, Dr. Roberto Minakawa and Dr. Joshuan Hornstein. The reason for bypassing
Dr. Eingorn was that the telephone had been disconnected. The reason for bypassing
Drs. Hornestein and Minakawa was that no telephone number was available for either physician
and telephone directory service had no further information.
On March 25, 2011 Dr. Taitsman, based upon a physical examination, statement of
accepted facts and review of the medical evidence, determined that appellant had no more than a
13 percent left lower extremity permanent impairment using the sixth edition of the A.M.A.,
Guides.
On April 30, 2011 Dr. Andrew A. Merola, OWCP’s medical adviser and Board-certified
orthopedic surgeon, reviewed Dr. Taitsman’s report and concurred with his impairment
determination of 13 percent.
By decision dated May 16, 2011, OWCP denied appellant’s request for an increased
schedule award.
On May 23, 2011 counsel requested an oral hearing before an OWCP hearing
representative. A hearing was held on September 20, 2011 at which counsel argued there was
insufficient evidence to show that Dr. Taitsman was chosen through proper use of the
Physicians’ Directory System (PDS). He noted that OWCP provided no reason for bypassing
Drs. Bills and Katz and selecting Dr. Taitsman.
By decision dated December 19, 2011, OWCP’s hearing representative affirmed the
denial of an additional schedule award. She rejected appellant’s argument that OWCP failed to
follow the proper procedure in the selection of the impartial medical examiner.
LEGAL PRECEDENT
Under section 8107 of FECA3 and section 10.404 of the implementing federal
regulations4 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for 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.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

3

and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
Section 8123(a) of FECA9 provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
OWCP procedures provide that selection of impartial medical specialists is made by a
rotational system using the PDS, whenever possible, to ensure consistent rotation among
physicians.12 Physicians who may not be used as referees include those previously connected
with the claim or the claimant, or physicians in partnership with those already so connected.13
The physician selected as the impartial specialist must be one wholly free to make an
independent evaluation and judgment. To achieve this end, OWCP has developed procedures for
the selection of the impartial medical specialist designed to provide adequate safeguards against
the appearance that the selected physician’s opinion was biased or prejudiced.14 These
procedures contemplate selection on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a physician and OWCP.15 Moreover, the reasons for the
selection made must be documented in the case record.16
6

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
7

Id. at 383-419.

8

Id. at 411.

9

5 U.S.C. §§ 8101-8193.

10

Id. at § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB
435 (2003).
11

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB
313 (2003); David W. Pickett, 54 ECAB 272 (2002).
12

Williams C. Bush, 40 ECAB 1064 (1989).

13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4.7 (July 2011);
FECA Bulletin No. 00-01 (issued November 5, 1999).
14

Id. at Chapter 3.500.4b(3)(b) (March 1994, October 1995, May 2003); citing Raymond E. Heathcock, 32 ECAB
2004 (1981).
15

See Raymond J. Brown, 52 ECAB 192 (2001).

16

Id. See also Miguel A. Muniz, 54 ECAB 217 (2002).

4

ANALYSIS
OWCP accepted the claim for left lateral collateral ligament sprain and left anterior
cruciate ligament tear. It granted appellant a schedule award for a 20 percent left lower
extremity impairment in a September 1, 2010 decision. On December 27, 2010 OWCP’s hearing
representative remanded the case to resolve the conflict in the medical opinion evidence between
Dr. Diamond, for appellant, and Drs. Askin and Magliato, for the goverment, regarding the
extent of appellant’s impairment.
On February 2, 2011 OWCP referred appellant to Dr. Taitsman, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence for an impartial
medical examination and opinion on the extent of his left leg impairment. Before OWCP and on
appeal, counsel argued that there was insufficient evidence to show that Dr. Taitsman was
chosen through proper use of the PDS. He claimed that no reasons were given for bypassing
Dr. Bills and Dr. Katz and that there was insufficient evidence that Dr. Taitsman was properly
chosen under the system.17
The record contains bypass forms for Drs. Bills, Eingorn, Hornstein, Katz and Minakawa.
OWCP provided reasons for bypassing Drs. Eingorn, Hornstein and Minakawa; Dr. Eingorn’s
telephone was disconnected and there was no telephone directory listing for Drs. Hornstein and
Minakawa. The record indicated that Dr. Katz, identified as specializing in orthopedic surgery,
was bypassed for selection as an impartial medical specialist before Dr. Taitsman was selected.
Also prior to selecting Dr. Taitsman, the record identified Dr. Bills as specializing in orthopedic
surgery. While it appears that the PDS was used to determine whether Drs. Bills and Katz,
should be selected as an impartial medical specialist, the record does not document why either
physician was bypassed for selection.
The record contains a printout (bearing the heading iFECS Report: ME023 -Appointment Schedule Notification) which indicated that the appointment with Dr. Taitsman
was scheduled for March 2, 2011. While this record suggests that Dr. Taitsman might have been
selected from the PDS, this evidence does not overcome the question of why OWCP bypassed
Drs. Bills and Katz. For the above-described reasons, the evidence is not adequate to establish
that Dr. Taitsman was properly selected under the PDS.18
Therefore, there is an unresolved conflict in the medical opinion concerning the extent of
the permanent impairment of appellant’s left lower extremity. The case will be remanded to
OWCP for referral to a new impartial medical specialist for an examination and opinion on this
17

See also A.R., Docket No. 09-1566 (issued June 2, 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).
18

See B.S., Docket No. 10-2343 (issued September 28, 2011); N.M., Docket No. 10-978 (issued November 9,
2010) (the Board found OWCP failed to provide any plausible reason for bypassing a physician and that the
evidence of record was insufficient to establish that OWCP properly used the PDS in its selection of an impartial
medical specialist); D.K. Docket 09-1361 (issued September 8, 2010) (adequate rationale was not provided in
compliance with the rotational system using the PDS); A.R., Docket No. 09-1566 (issued June 2, 2010) (OWCP
procedures provide that impartial medical specialist must be selected from a rotational list of qualified
Board-certified specialists and reasons for the selection made must be documented in the case record).

5

matter. After such development as its deems necessary, OWCP shall issue an appropriate
decision on the matter of whether appellant met his burden of proof to establish that he has more
than 20 percent permanent impairment of his left lower extremity for which he received schedule
awards.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish that he has more than 20 percent permanent impairment of
his left lower extremity as there is an unresolved conflict in medical opinion. The case is
remanded to OWCP for further development of the evidence to be followed by a de novo
decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2011 is set aside and the case remanded to OWCP
for further proceedings consistent with this decision of the Board.
Issued: December 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Collierville, TN, Employer
__________________________________________

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

Docket No. 07-1820
Issued: December 26, 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 June 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 28, 2007 nonmerit decision denying her request for merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. The last merit decision of the Office was its April 20, 2006 decision denying
appellant’s claim for wage-loss benefits. Because more than one year has elapsed between the
Office’s last merit decision and the filing of this appeal, the Board lacks jurisdiction to review
the merits of this claim.1

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). The record also contains a November 2, 2006 decision of the Board
affirming the Office’s denial of appellant’s claim for wage-loss benefits. In the absence of further review by the
Office on the issue addressed by the decision, the subject matter reviewed is res judicata and is not subject to further
consideration by the Board. 5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB 476 (1998). Appellant did not seek
reconsideration of the Board’s decision pursuant to 20 C.F.R. § 501.7(a). A decision of the Board is final upon the
expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d).

ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case is before the Board for the second time. The Office accepted appellant’s
March 8, 2004 traumatic injury claim for a lumbar strain. Appellant returned to work on
May 19, 2004. She submitted a claim for lost wages for the period September 12 to
October 18, 2005. On November 2, 2006 the Board affirmed the Office’s December 15, 2005
and April 20, 2006 decisions denying appellant’s claim for wage-loss benefits and a May 26,
2006 decision denying her request for reconsideration.2 The Board found that, although
appellant had submitted numerous medical reports from her treating physician,
Dr. Moacir Schnapp, she had not submitted any reasoned medical opinion to show that she was
disabled during the claimed period of time due to her accepted employment injury. The findings
of fact and conclusions of law are incorporated herein by reference.
On March 14, 2007 appellant again requested reconsideration of her claim. She stated
that she was submitting additional documentation, which established that she was totally
disabled from August 29 to October 18, 2005 due to her work injury.
In a February 13, 2007 memorandum to the Office, Dr. Schnapp opined that there was
“reliable and probative evidence” that there was a causal relationship between appellant’s
March 6, 2004 injury and her period of disability from August 29 to October 18, 2005. Attached
to his memorandum was a February 13, 2007 report reflecting that he had examined appellant on
that date for continuing intermittent pain in her lower back. D. Schnapp provided a checklist of
his examination findings and diagnosed lumbar spondylosis and sacroiliitis. He stated that he
explained to appellant that the diagnosis for her low back condition overlapped with spondylosis,
lumbar strain and degenerative joint disease.
By decision dated March 28, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant merit review. The
Office found that Dr. Schnapp’s February 13, 2007 report provided no medical rationale to
support the alleged period of disability and was substantially similar to evidence of record that
had been previously considered.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
2

Docket No. 06-1729 (issued November 2, 2006).

3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).

2

interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office 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.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.7
ANALYSIS
Appellant’s March 14, 2007 request for reconsideration neither alleged, nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, she did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
In support of her request for reconsideration, appellant submitted a February 13, 2007
medical report from Dr. Schnapp, who opined that there was “reliable and probative evidence”
that there was a causal relationship between her March 6, 2004 injury and her period of disability
from August 29 to October 18, 2005. Dr. Schnapp reported that he had examined appellant on
that date for continuing intermittent pain in her lower back and provided a checklist of his
examination findings and diagnoses of lumbar spondylosis and sacroiliitis. He stated that he
explained to appellant that the diagnosis for her low back condition overlapped with spondylosis,
lumbar strain and degenerative joint disease. However, Dr. Schnapp did not address the relevant
issue, namely, how the accepted employment event caused appellant’s disability during the
period in question. Although he stated that, an opinion regarding causal relationship, he did not
provide a rationalized explanation for his opinion. Dr. Schnapp’s report merely reiterated
information contained in documents previously received and reviewed by the Office and is,
therefore, cumulative and duplicative in nature.8 The Board finds that his report does not
constitute relevant and pertinent new evidence not previously considered by the Office.9
Therefore, the Office properly determined that this evidence did not constitute a basis for
reopening the case for a merit review.

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

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

8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
9

See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

3

The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her March 14, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 26, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 19-1211
Issued: August 5, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 6, 2019 appellant filed a timely appeal from an April 1, 2019 merit decision and
an April 25, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1
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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability commencing June 5, 1988, causally related to her accepted August 12, 1987
employment injury; (2) whether OWCP properly adjudicated appellant’s request for
reconsideration from the denial of her claim for a recurrence of disability before her simultaneous
1
On September 30, 2019 the Board received appellant’s request for oral argument before the Board. The Board’s
Rules of Procedure at 20 C.F.R. § 501.5(b) requires that a request for oral argument must be made no later than 60
days after the filing of the appeal. Appellant’s request for oral argument was not made within 60 days of the filing of
the appeal, and was therefore untimely.
2

5 U.S.C. § 8101 et seq.

request for an oral hearing; and (3) whether OWCP properly denied appellant’s request for
reconsideration of her termination decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
as follows.
On August 13, 1987 appellant, then a 36-year-old distribution clerk, filed a traumatic injury
claim (Form CA-1) alleging that on August 12, 1987 she sustained an injury to her lower back
when she lifted a bag of heavy boxes out of a tub and onto a ledge while in the performance of
duty. She stopped work on August 13, 1987. On August 24, 1987 OWCP accepted appellant’s
claim for low back strain.
In a report dated January 11, 1988, Dr. John L. Beghin, a Board-certified orthopedic
surgeon serving as an impartial medical examiner, conducted an examination and determined that
appellant no longer had employment-related residuals requiring further medical treatment or work
restrictions.
Following a February 29, 1988 notice of proposed termination of compensation, OWCP
terminated appellant’s wage-loss compensation by decision dated June 1, 1988, finding that the
weight of the medical evidence established that her disability resulting from her August 12, 1987
employment injury had ceased on or before June 5, 1988.
On September 14, 1988 appellant appealed to the Board. By decision dated April 24, 1989,
the Board found that the weight of the medical opinion evidence established that she had no
disability on or after June 5, 1988, causally related to her August 12, 1987 employment injury.
The Board therefore affirmed OWCP’s June 1, 1988 termination decision.4
On February 16, 1990 appellant requested reconsideration of OWCP’s April 24, 1989
decision. By decision dated March 20, 1990, OWCP denied modification of its prior decision.
Appellant requested reconsideration on July 13, 1990, but by decision dated August 22, 1990
OWCP denied her request. On September 24, 1990 she again requested reconsideration. By
decision dated October 30, 1990, OWCP denied appellant’s request for reconsideration.
On November 23, 1990 appellant, through her then counsel, appealed to the Board. By
decision dated October 31, 1991, the Board affirmed OWCP’s March 20, 1990 decision finding
that the weight of the medical opinion evidence established that appellant had no disability on or
after June 5, 1988, the effective date of the termination of her wage-loss compensation benefits,
causally related her August 12, 1987 employment injury. The Board also affirmed OWCP’s

3

Docket No. 19-0351 (issued October 31, 1991) and Docket No. 88-1863 (issued April 24, 1989).

4

Docket No. 19-1863 (issued April 24, 1989).

2

August 22 and October 30, 1990 decisions finding that OWCP properly declined to reopen her
case for a merit review.5
On December 8, 1996 appellant, through her then representative, requested a review of the
written record by a representative of OWCP’s Branch of Hearings and Review. By decision dated
January 13, 1997, OWCP’s Chief, Branch of Hearings and Review, denied appellant’s request.
Additions to the case record were thereafter sparse for many years.
In a July 18, 2017 report, Dr. Michael Coscia, a Board-certified orthopedic surgeon, noted
that appellant had worsening low back pain for the past three years. He diagnosed back, leg, and
neck pain; lumbar stenosis with neurogenic claudication; cervical spondylosis; lumbar
spondylosis; and atherosclerosis. Dr. Coscia described the conditions as degenerative
osteoarthritis in the joints related to aging processes and opined that the conditions were not related
to her employment injury from 30 years ago. He noted that his current findings would not support
reopening appellant’s work-related injury case. Dr. Coscia explained that the symptoms appellant
was experiencing were related to routine lumbar spinal stenosis with lower extremity neurogenic
claudication.6
On February 12, 2019 appellant filed a notice of recurrence (Form CA-2a) alleging that
she sustained a recurrence of disability and the need for medical treatment due to her August 12,
1987 employment injury. She explained that her “pain is ongoing due to my [August 12, 1987]
injury, lumbar strain, and back spurs, leg pain included.” Appellant further noted that she “never
healed” and “suffered since [August 12, 1987].”
In a development letter dated February 25, 2019, OWCP noted that the evidence submitted
was insufficient to establish the claimed recurrence. It informed her of the type of factual and
medical evidence needed. OWCP provided a questionnaire for her completion. It afforded
appellant 30 days to submit the requested evidence.
In a February 28, 2019 report, Dr. Jerry Powell, a Board-certified family practitioner, noted
that appellant’s 1987 injury occurred due to repetitively lifting up to 70 pounds and repetitively
bending and twisting for 18 years. He diagnosed spondylosis with myelopathy and intervertebral
5

Docket No. 91-0351 (issued October 31, 1991).

6

On July 17, 2017 appellant filed an occupational disease claim (Form CA-2) alleging that in August 1987 she
sustained a low back injury while lifting heavy bags in the performance of duty. OWCP assigned this claim OWCP
File No. xxxxxx701. It initially denied this claim on August 9, 2017 as untimely filed. By decision dated
December 12, 2017, an OWCP hearing representative remanded the case as appellant had not been issued a
development letter. On January 24, 2018 OWCP denied the claim as the medical evidence failed to establish that
appellant’s claimed medical condition was causally related to the accepted employment factors. By decision dated
May 17, 2018, an OWCP hearing representative remanded the case for doubling of the file with OWCP File No.
xxxxxx701. OWCP File No. xxxxxx701 has been combined with the current claim and has been designated the master
file. By decision dated July 31, 2018, OWCP found that appellant’s claim was untimely filed. By decision dated
February 8, 2019, an OWCP hearing representative vacated the prior decision and remanded the case to OWCP. The
hearing representative found that OWCP should obtain a complete record of appellant’s claim under OWCP File No.
xxxxxx390 from the Federal Records Center. The hearing representative also advised appellant that, if she believed
she experienced a recurrence of her “August 12, 2017” injury, she should file a notice of recurrence in OWCP File
No. xxxxxx390.

3

disc degeneration, lumbar region; other intervertebral disc degeneration lumbosacral region; other
intervertebral disc disorder, lumbar region; intravertebral disc disorders, lumbar region; and
intravertebral disc disorders with radiculopathy, lumbosacral region. Regarding causation,
Dr. Powell explained that the accepted lumbar injury in 1987 “weakened the supportive structures
and stability of the lumbar spine and lumbosacral spine causing instability in the lumbar spine and
lumbar sacral spine causing improper function, this condition was never resolved, and is the cause
of the accelerating and precipitating the osteoarthritis and degenerative disc disease with
radiculopathy which she currently presents with, and is the cause of her worsening conditions that
she presents with….” He also indicated that, “the two sedentary positions held after [federal
employment] did not appear to contribute, affectively, to the worsening of the previously accepted
medical conditions. Patient denies any other injuries or illnesses that could directly relate.”
Dr. Powell opined that appellant’s lumbar and lumbosacral degenerative disc disease with
radiculopathy and lumbar and lumbosacral osteoarthritis was “precipitated by and is a direct result
of the original work-related injury, while bending twisting and lifting up to 70 pounds as her
required work duties…”
On March 9, 2019 OWCP received appellant’s completed questionnaire. Appellant
explained that she had not returned to work at the employing establishment following the initial
employment injury of August 12, 1987. She noted that when she was released to light-duty work
for four hours a day and no lifting over 10 pounds, the employing establishment did not have a
light-duty position available. Appellant also noted that, following her federal employment, she
worked from 1997 to 2008 as a receptionist, sitting only, and nine months from September 2017
to June 2018 as a substitute teacher, sitting and helping students with assignments. She denied
any outside sports or activities.
By decision dated April 1, 2019, OWCP denied appellant’s recurrence claim. It explained
that pursuant to its procedures, if a formal decision was previously made in a claim determining
that a claimant no longer suffers any residuals of the work injury, and the alleged recurrence
occurred subsequent to the issuance of the decision, the claimant should refer to the appeal rights
accompanying the termination decision. OWCP determined, therefore, that no further action
should be taken on the recurrence claim.7
In a request dated April 16, 2019, received by OWCP on April 22, 2019, appellant
requested reconsideration and also requested an oral hearing before an OWCP hearing
representative. She argued that she had continuing employment-related disability for which she
had previously received compensation benefits, that the new medical evidence established a
recurrence of disability due to her August 12, 1987 employment injury, and that the denial was
based on an old report.
By decision dated April 25, 2019, OWCP summarily denied her requests as they were
untimely filed and failed to demonstrate clear evidence of error. Although it noted that “the basis
for this decision is outlined in the enclosure,” there was no enclosure.

7
OWCP explained that appellant’s claim for an occupational disease was considered separately under a separate
claim File No. xxxxxx701.

4

LEGAL PRECEDENT -- ISSUE 1
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.8 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages.9 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.10 When, however, the medical evidence
establishes that the residuals or sequelae of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for loss of wages.11
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.12
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.13 Where no such rationale is present,
the medical evidence is of diminished probative value.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing June 5, 1988, causally related to her accepted August 12, 1987 employment
injury.
Initially, the Board finds that the April 1, 2019 OWCP letter constitutes a final merit
decision on appellant’s claim for a recurrence of disability. In this letter OWCP explained that

8

20 C.F.R. § 10.5(f); see J.S., Docket No. 19-1035 (issued January 24, 2020).

9

See J.R., Docket No. 19-0120 (issued September 11, 2019).

10

A.P., Docket No. 19-0446 (issued July 10, 2019).

11

Id.

12

20 C.F.R. § 10.5(x).

13

See J.S., supra note 8.

14

Id.

5

pursuant to its procedures15 appellant was precluded from pursuing a recurrence claim because her
compensation benefits had been terminated. However, Chapter 1500.3(b)(1)(a) of the Federal
(FECA) Procedure Manual provides in part: “The CE [claims examiner] should carefully review
the recurrence claim to determine if the claimant is requesting reconsideration rather than claiming
a recurrence…. [A] request to reopen the case should address some material change in the
employee’s medical condition or employment status.” This suggests that further development may
be conducted by OWCP on a recurrence claim following a termination decision. As OWCP sent
appellant a development letter on February 25, 2019, which led to the submission of further factual
and medical evidence, the Board finds that OWCP properly conducted further development of
appellant’s claim, and therefore the April 1, 2019 correspondence is considered a final adverse
decision.
The Board notes that it is unnecessary to consider the evidence appellant submitted prior
to the issuance of OWCP’s last merit decision prior to the Board’s October 31, 1991 decision. The
Board previously considered this evidence in its April 24, 1989 and October 31, 1991 merit
decisions. Findings made in prior Board decisions are res judicata, absent further review by
OWCP under section 8128 of FECA.16
In support of her recurrence claim appellant submitted a February 28, 2019 report from
Dr. Powell who diagnosed spondylosis with myelopathy and intervertebral disc degeneration,
lumbar region; other intervertebral disc degeneration lumbosacral region; other intervertebral disc
disorder, lumbar region; intravertebral disc disorders, lumbar region; and intravertebral disc
disorders with radiculopathy, lumbosacral region. The Board notes that none of these diagnoses
are accepted conditions. It is appellant’s burden to establish that any additional conditions were
causally related to the accepted August 12, 1987 employment injury.17 Dr. Powell opined that the
“accepted lumbar injury 1987 weakened the supportive structures and stability of the lumbar spine
and lumbosacral spine causing instability in the lumbar spine and lumbar sacral spine causing
improper function, this condition was never resolved, and is the cause of the accelerating and
precipitating the osteoarthritis and degenerative disc disease with radiculopathy which she
currently presents with, and is the cause of her worsening conditions that she presents with…” He
further opined that “[i]n my medical opinion, [appellant’s] lumbar and lumbosacral degenerative
disc disease with radiculopathy and lumbar and lumbosacral osteoarthritis was precipitated by and
is a direct result of the original work-related injury. While Dr. Powell generally provided a
supportive opinion, he failed to provide medical rationale to explain how a 1987 back strain had
resulted in “weakened supportive structures” and “spinal instability.” A medical opinion should
reflect a correct history and offer a medically sound explanation by the physician of how the
specific employment injury physiologically caused or aggravated the diagnosed conditions or a

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (June 2013).

16

5 U.S.C. § 8128. See M.S., Docket No. 19-1401 (issued July 8, 2020); see also M.D., Docket No. 20-0007 (issued
May 13, 2020); J.T., Docket No. 18-1757 (issued April 19, 2019); D.B., Docket No. 18-0409 (issued
October 28, 2019).
17

J.W., Docket No. 15-0325 (issued October 2, 2015).

6

resulting recurrence period of disability.18 The Board also notes that the record contains a
significant lack of bridging medical evidence to support Dr. Powell’s history of injury and
recurrence.19 The Board therefore finds that his opinion is of limited probative value. This report
is of limited probative value and is insufficient to establish appellant’s recurrence claim.20
The record also contains a July 18, 2017 report from Dr. Coscia who provided diagnoses
and opined that appellant’s conditions did not have a relationship with her employment injury from
30 years prior. Dr. Coscia explained that the symptoms appellant was experiencing were related
to lumbar spinal stenosis with lower extremity neurogenic claudication. This report does not
support appellant’s claim as Dr. Coscia opined that her conditions were not work related. The
Board has held that medical evidence that negates causal relationship is of no probative value.21
Therefore, this evidence is insufficient for appellant to meet her burden of proof to establish her
claim.
As noted, a claimant must submit rationalized medical evidence supporting causal
relationship between the disabling condition and the accepted employment injury. None of the
medical evidence of record provided a discussion of how appellant’s accepted August 12, 1987
employment injury caused total disability from work during the period in question. As appellant
has not submitted medical evidence establishing a recurrence of disability commencing June 5,
1988, causally related to her accepted employment injury, the Board finds that she has not met her
burden of proof.
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 8124(b)(1) of FECA 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 or her claim before a representative of the Secretary.”22 Sections
10.617 and 10.618 of the federal regulations implementing this section of FECA provide 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.23 A claimant is entitled to a hearing or review of the written record

18

See A.T., Docket No. 19-0410 (issued August 13, 2019); E.L., Docket No. 17-1632 (issued January 3, 2018);
J.M., Docket No. 17-1002 (issued August 22, 2017).
19

See J.M., Docket No. 17-1688 (issued December 13, 2019).

20
See H.N., Docket No. 18-0501 (issued February 20, 2020); Alice J. Tysinger, 51 ECAB 638 (2000); Barbara J.
Warren, 51 ECAB 413 (2000).
21

M.C., Docket No. 19-1074 (issued June 12, 2020); T.W., Docket No. 19-0677 (issued August 16, 2019).

22

5 U.S.C. § 8124(b)(1).

23

20 C.F.R. §§ 10.616, 10.617.

7

as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.24
The Board has long held that, if there are simultaneous requests for a hearing and for
reconsideration, OWCP is to proceed with adjudicating the hearing request before
reconsideration.25
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly adjudicated appellant’s request for reconsideration
from the denial of her claim for a recurrence of disability before her simultaneous request for an
oral hearing.
Appellant’s hearing request from OWCP’s April 1, 2019 denial of her recurrence claim
was dated April 16, 2019 and received on April 22, 2019.26 As she filed the hearing request within
30 days of the April 1, 2019 OWCP decision denying her claim for a recurrence of disability, the
Board finds that it was timely filed. While appellant also requested reconsideration on April 22,
2019, in keeping with Board precedent, OWCP was to proceed with adjudicating the hearing
request before the reconsideration request.27
However, it improperly adjudicated the
reconsideration request instead.
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.28 Inasmuch as appellant’s hearing request was timely filed, the Board will set
aside the decision and remand the case for OWCP to schedule an oral hearing.29
Accordingly, the case must be remanded for OWCP to address appellant’s timely hearing
request.

24

Id. at § 10.616(a).

25

See Order Remanding Case, J.S., Docket No. 14-1203 (issued November 24, 2014); Order Remanding Case,
D.M., Docket No. 10-2237 (issued June 28, 2011); see also Mary E. Schipske, 43 ECAB 318 (1991); Mary G. Allen,
40 ECAB 190 (1988).
26

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1601.4a. (October 2011),
which provides: “Timeliness. The request is timely if it was mailed (as determined by the postmark or other carrier’s
date marking) within 30 days of the date of the district office’s decision. 20 C.F.R. § 10.616. If the postmark is not
legible, the request will be deemed timely unless [OWCP] has kept evidence of date of delivery on the record reflecting
that the request is untimely.”
27

See supra note 25.

28

20 C.F.R. § 10.616(a).

29

See J.S. and D.M., supra note 25.

8

LEGAL PRECEDENT -- ISSUE 3
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.30 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.31 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).32 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.33
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, OWCP must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.34 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.35
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. 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. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.36
OWCP 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 demonstrates 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

30

5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

31

20 C.F.R. § 10.607(a).

32

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

33

E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

34

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

35

M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 32 at Chapter
2.1602.5 (February 2016).
36

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

9

error.37 The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP.38
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.39 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.40 The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.41
ANALYSIS -- ISSUE 3
The Board finds that the case is not in posture for decision.
OWCP summarily denied appellant’s request for reconsideration without complying with
the review requirements of FECA and its implementing regulations.42 As noted above, section
8124(a) of FECA provides that OWCP shall determine and make a finding of fact and make an
award for or against payment of compensation.43 Its regulations at 20 C.F.R. § 10.126 provide
that the decision of the Director of OWCP shall contain findings of fact and a statement of reasons.
As well, OWCP’s procedures provide that the reasoning behind OWCP’s evaluation should be
clear enough for the reader to understand the precise defect of the claim and the kind of evidence
which would overcome it.44 In the April 25, 2019 decision, OWCP denied appellant’s April 22,
2019 reconsideration request, finding it was untimely filed as it was received more than a year
following the last merit termination decision dated March 20, 1990,45 but failed to analyze the
37

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 32 at Chapter 2.1602.5(a) (February 2016).

38

D.S., Docket No. 17-0407 (issued May 24, 2017).

39

5 U.S.C. § 8124(a).

40

20 C.F.R. § 10.126.

41

L.M., Docket No. 13-2017 (issued February 21, 2014); D.E., Docket No. 13-1327 (issued January 8, 2014); L.C.,
Docket No. 12-0978 (issued October 26, 2012); Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances,
Chapter 2.1400.5 (February 2013) (all decisions should contain findings of fact sufficient to identify the benefit being
denied and the reason for the disallowance).
42

See Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order Remanding Case, T.P.,
Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).
43

5 U.S.C. § 8124(a).

44

Chapter 2.1400.5 supra note 41.

OWCP actually referred to the Board’s October 31, 1991 decision affirming the termination of appellant’s
compensation benefits. However, OWCP has no jurisdiction to review a Board decision. The decisions and orders
of the Board are final as to the subject matter appealed and such decisions and orders are not subject to review, except
by the Board. See 20 C.F.R. § 501.6(d). Appellant had 30 days from the date of the Board’s October 31, 1991 decision
to file a petition for reconsideration with this Board of its decision. Id. at § 501.7. See also B.B., Docket No. 14-0464
(issued June 4, 2014).
45

10

evidence or argument as to whether it was sufficient to demonstrate clear evidence of error. It
specifically indicated that “the basis for this decision is outlined in the enclosure.” However,
OWCP did not enclose the basis for the decision. As such, the Board is precluded from reviewing
this decision.
The Board will therefore set aside OWCP’s April 25, 2019 decision and remand the case
for findings of fact and a statement of reasons, to be followed by an appropriate decision on
appellant’s untimely reconsideration request.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability commencing June 5, 1988, causally related to her accepted August 12, 1987 employment
injury. The Board further finds that OWCP improperly adjudicated appellant’s request for
reconsideration from the denial of her claim for a recurrence of disability before her simultaneous
request for an oral hearing. The Board also finds that the case is not in posture for decision with
regard to whether OWCP properly denied appellant’s request for reconsideration of her
termination decision as untimely filed and failing to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
IT IS FURTHER ORDERED THAT the April 25, 2019 decision of OWCP is set aside
and the case is remanded for further proceedings consistent with this decision of the Board.
Issued: August 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11