United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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

Docket No. 11-222
Issued: August 15, 2011

Case Submitted on the Record

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

JURISDICTION
On November 4, 2010 appellant filed a timely appeal of an October 6, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the nonmerit decision. Because more than 180 days have elapsed between the
most recent OWCP merit decision dated July 3, 2002 and the filing of this appeal, the Board
lacks jurisdiction to review the merits of the case.2
ISSUE
The issue is whether OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case has previously been before the Board. On December 14, 1995 the Board
granted appellant’s request to dismiss his appeal.3 The Board issued an order on April 27, 1998
remanding the case for completion of the case record.4 On April 19, 2004 the Board affirmed a
September 10, 2003 decision which denied appellant’s request for a merit review,5 and on
November 4, 2005 the Board affirmed OWCP’s January 3, 2005 decision which denied
appellant’s request for a merit review on the grounds that it was untimely filed and failed to
establish clear evidence of error. Again on March 11, 2008 the Board affirmed OWCP’s
March 7, 2007 decision denying appellant’s request for a merit review on the grounds that it was
untimely filed and failed to establish clear evidence of error.6 The facts of this case are set forth
in the Board’s prior decisions and are hereby incorporated by reference.7
Subsequent to the Board’s decision, appellant submitted letters dated May 14 and
August 28, 2008 to OWCP requesting that it issue a decision on his request for reconsideration
“dated on or about [August 2005],” contending that he had submitted evidence showing that his
(Form CA-1) had been maliciously and intentionally altered. In response to these letters, OWCP
on October 9, 2008 informed appellant that it was unclear as to what decision he wanted
reconsidered and that the record contained no request for reconsideration in August 2005.
In response to OWCP’s letter, appellant, in an October 18, 2008 letter, contended tht
OWCP had not issued a decision on his August 26, 2006 reconsideration request and requested
that a decision be issued. He submitted copies of his Form CA-1, the employing establishment’s
controversion in support of his contention that his Form CA-1 had been altered and his
August 26, 2006 letter. OWCP subsequently received an April 20, 2008 report by Dr. John P.
Masciale, a Board-certified orthopedic surgeon, indicating that appellant continued to suffer
from the symptomatology of a September 28, 1994 injury involving cervical and upper and
lower back sprains.
On February 13, 2009 appellant requested reconsideration reiterating his contention that
his original Form CA-1 had been altered without his consent.
In an August 28, 2009 letter, appellant requested reconsideration. He contended that
OWCP failed to issue a decision on his August 28, 2006 reconsideration request.
3

R.G., Docket No. 96-197 (issued December 14, 1995).

4

Id. at Docket No. 97-339 (issued April 27, 1998).

5

Id. at Docket No. 04-422 (issued April 19, 2004).

6

Id. at Docket No. 07-2433 (issued March 11, 2008).

7

On September 28, 1994 appellant, then a 51-year-old aircraft mechanical parts work leader, filed a traumatic
injury claim alleging that he sprained his cervical and lumbar regions when he attempted to control an automated
guided vehicle that rammed against a stationary scooter with a flatbed. By decision dated March 23, 1995, OWCP
denied his claim on the basis that he failed to establish an injury in the performance of duty. By decision dated
July 26, 1995, it denied appellant’s request for modification. OWCP found the medical evidence contained
inconsistencies in the way the injury occurred when compared with the Form CA-1 and the witness report.

2

On December 22, 2009 OWCP requested appellant to identify the date of decision over
which he was requesting reconsideration as there were several decisions in the record.
In an August 12, 2010 letter, appellant again requested OWCP to issue a decision on his
August 28, 2006 reconsideration request.
By decision dated October 6, 2010, OWCP determined that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error on the part of OWCP in
its issuance of the July 3, 2002 merit decision. It noted that the October 6, 2010 decision was in
reference to the August 26, 2006 request for reconsideration and further noted that his
“subsequent letters also reference your August 26, 2006 request for reconsideration.”
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.8 It will not review a decision denying or terminating a
benefit unless the application for review is filed within one year of the date of that decision.9
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that its final merit decision was in error.10 Its
procedures state that it will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review
shows “clear evidence of error” on the part of the Office.11 In this regard, OWCP will limit its
focus to a review of how the newly submitted evidence bears on the prior evidence of record.12
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.13 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
8

5 U.S.C. §§ 8101-8193. 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. See Adell Allen (Melvin L.
Allen), 55 ECAB 390 (2004).
9

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

10

Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41
ECAB 964 (1990).
11

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “OWCP will consider an untimely
application for reconsideration only if the application demonstrates clear evidence of error on the part of [it] in its
most recent merit decision. The application must establish, on its face, that such decision was erroneous.” 20
C.F.R. § 10.607(b).
12

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

13

See Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).

14

See Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).

15

See Leon J. Modrowski, 55 ECAB 196 (2004); Jesus D. Sanchez supra note 10.

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so as to produce a contrary conclusion.16 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.17 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.18 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that it abused its discretion in denying merit review in the face of such evidence.19
ANALYSIS
OWCP found that appellant failed to file a timely application for review. In
implementing the one-year time limitation, its procedures provide that the one-year time
limitation period for requesting reconsideration begins on the date of the original OWCP
decision. However, a right to reconsideration within one year accompanies any subsequent merit
decision on the issues.20 The last merit decision in this case, was OWCP’s July 3, 2002 merit
decision denying appellant’s claim for modification of the denial of his claim on the grounds that
he failed to establish that he sustained an injury in the performance of duty. As appellant’s
August 26, 2006, May 14, August 28 and October 18, 2008, February 13 and August 28, 2009
and August 10, 2010 letters requesting reconsideration were submitted more than one year after
the last merit decision of record, it was untimely. Consequently, he must demonstrate clear
evidence of error on the part of OWCP in denying his claim for compensation.21
The question for determination is whether appellant’s untimely request for
reconsideration demonstrates clear evidence of error on the part of OWCP in its July 3, 2002
merit decision. Appellant’s requests for reconsideration fail to demonstrate clear evidence of
error on the part of OWCP in its July 3, 2002 decision. OWCP denied his claim for neck and
back injuries of September 28, 1994 on the basis that fact of injury was not established due to the
inconsistencies in statements regarding how the injury occurred and the failure by him to submit
any evidence resolving the inconsistencies between the medical evidence, witness statement and
his Form CA-1. In support of his requests for reconsideration, appellant resubmitted his Form
CA-1 and the employing establishment’s controversion. He has not submitted any new evidence
that had not been previously considered on this issue which shows OWCP erred in the previous
decisions. In addition, appellant reiterates arguments made in his prior requests for
reconsideration, which have been considered by both OWCP and the Board. Nothing in his
16

See Leona N. Travis, supra note 14.

17

See Nelson T. Thompson, supra note 12.

18

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

19

See George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for recon.
denied, 41 ECAB 458 (1990).
20

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

21

20 C.F.R. § 10.607(b); Donna M. Campbell, 55 ECAB 241 (2004).

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August 26, 2006, May 14, August 28 and October 18, 2008, February 13 and August 28, 2009
and August 10, 2010 requests for reconsideration establish that OWCP’s October 6, 2010
decision was erroneous in finding that fact of injury had not been established.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for review on
October 6, 2010. The Board further finds that appellant’s reconsideration requests were
untimely and failed to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2010 is affirmed.
Issued: August 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 16-0973
Issued: August 4, 2016

Case Submitted on the Record

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

JURISDICTION
On April 6, 2016 appellant filed a timely appeal from an October 22, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a November 18, 2015 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a recurrence of
total disability for the period August 17 to 21, 2015 due to the conditions related to his June 27,
1995 work injury; and (2) whether OWCP properly denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence, including medical evidence, after OWCP rendered
its November 18, 2015 decision. The Board’s jurisdiction is limited to reviewing the evidence that was before
OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the Board.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 6, 1995 appellant, then a 35-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 27, 1995 he sustained multiple injuries due to bending over a
cart, picking up a tray of mail, and putting a tray of mail into a truck. He stopped work on
July 3, 1995 and later returned to light-duty work for the employing establishment.
OWCP accepted appellant’s claim for a lumbosacral strain, thoracic/lumbosacral neuritis
or radiculitis, intervertebral disc disorder at L4-5 with myelopathy, and closed rib fracture.
Appellant periodically stopped work and, beginning in October 2003, he received
compensation for these intermittent periods of disability on the daily rolls.
On May 20, 2005 appellant underwent OWCP-authorized back surgery in the form of
hemilaminotomy and discectomy at L4-5. In an August 31, 2006 decision, OWCP granted
appellant a schedule award for one percent permanent impairment of his left lower extremity.
In November 2008 appellant returned to work for the employing establishment as a
modified letter carrier. In a May 12, 2009 decision, OWCP determined that the position of
modified letter carrier fairly and reasonably represented his wage-earning capacity.
Appellant stopped work for the period August 17 to 21, 2015 and, on August 26, 2015, he
filed a claim for compensation (Form CA-7) alleging that he sustained a recurrence of disability
from August 17 to 21, 2015 due to the conditions related to his June 27, 1995 work injury.
In an August 18, 2015 report, Dr. Khalida A. Anwar, an attending Board-certified
physical medicine and rehabilitation physician, indicated that appellant was under her care and
treatment for back pain and radiculitis of the lumbar spine. She noted that he reported increased
pain and she recommended performing a lumbar epidural magnetic resonance imaging (MRI)
scan. Dr. Anwar indicated, “He will be off work indefinitely. At the next appointment [on
September 1, 2015] he will be reevaluated to see if he can resume work.”
In a September 3, 2015 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his claim.
Appellant submitted July 6 and 29, 2015 reports in which Dr. Anwar indicated that MRI
scan testing showed arachnoiditis at L4-5 and mild degenerative facet changes at T12-L1
through L5-S1. Dr. Anwar diagnosed arachnoiditis, lumbar laminectomy at L4-5, and lumbar
radiculopathy. In a September 8, 2015 report, she added thoracic degenerative disc disease and
pain to the list of diagnoses. In a duty status report (Form CA-17) dated September 8, 2015,
Dr. Anwar listed June 27, 1995 as the “date of injury” and listed clinical findings of
lumbar/thoracic radiculitis and arachnoiditis. She marked “yes” to the box on the form for
“diagnosis due to injury.” Dr. Anwar noted that appellant was totally disabled from work.
By decision dated October 22, 2015, OWCP denied appellant’s claim because he did not
submit sufficient medical evidence to establish a recurrence of disability for the period
August 17 to 21, 2015 due to the conditions related to his June 27, 1995 work injury.

2

In a November 3, 2015 letter and form, both received by OWCP on November 9, 2015,
appellant requested reconsideration of the October 22, 2015 decision. In his letter, appellant
indicated that he would be submitting medical evidence of Dr. Anwar which supported his claim
for a work-related recurrence of total disability. The medical evidence was not received.
By decision dated November 18, 2015, OWCP denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he or she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he or she can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative, and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.3
ANALYSIS -- ISSUE 1
OWCP accepted that on June 27, 1995 appellant sustained a lumbosacral strain,
thoracic/lumbosacral neuritis or radiculitis, intervertebral disc disorder at L4-5 with myelopathy,
and closed rib fracture. On May 20, 2005 appellant underwent OWCP-authorized back surgery
in the form of hemilaminotomy and discectomy at L4-5. In November 2008 he returned to work
for the employing establishment as a modified letter carrier.
Appellant stopped work for the period August 17 to 21, 2015 and alleged that he
sustained a recurrence of total disability from August 17 to 21, 2015 due to the conditions related
to his June 27, 1995 work injury.
The Board finds that appellant did not submit sufficient medical evidence to establish a
recurrence of disability for the period August 17 to 21, 2015 due to the conditions related to his
June 27, 1995 work injury.
In support of his recurrence of disability claim, appellant submitted an August 18, 2015
report in which Dr. Anwar indicated that he was under her care and treatment for back pain and
radiculitis of the lumbar spine and that he had reported increased pain. She indicated, “He will
be off work indefinitely. At the next appointment [on September 1, 2015] [appellant] will be
reevaluated to see if he can resume work.” This Board notes that this report does not establish
that appellant sustained a work-related recurrence of total disability for the period August 17
3

S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986). 20 C.F.R. § 10.5(x) provides, “Recurrence
of disability means an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means an inability to work that takes place
when a light-duty assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.”

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to 21, 2015. Dr. Anwar did not identify the cause of appellant’s disability or otherwise provide a
rationalized opinion relating his disability to the accepted June 27, 1995 work conditions. The
Board has held that medical evidence which does not offer a clear opinion regarding the cause of
an employee’s condition or disability is of limited probative value on the issue of causal
relationship.4
In July 6 and 29, 2015 reports, Dr. Anwar diagnosed arachnoiditis, lumbar laminectomy
at L4-5, and lumbar radiculopathy. In a September 8, 2015 report, she added thoracic
degenerative disc disease and pain to the list of diagnoses. The Board notes that these reports do
not establish appellant’s claim for a work-related recurrence of total disability because the
reports do not provide any opinion on disability.
In a form report dated September 8, 2015, Dr. Anwar listed clinical findings of
lumbar/thoracic radiculitis and arachnoiditis. She checked “yes” to the box on the form for
“diagnosis due to injury,” but she did not provide any diagnosis in this box. Although Dr. Anwar
listed June 27, 1995 as the “date of injury” and indicated that appellant was totally disabled from
work, her report is of limited probative value on the relevant issue of this case because she did
not indicate that this opinion on disability included any part of the period August 17 to 21, 2015.
Moreover, she did not provide a clear opinion, with medical rationale, that appellant’s disability
was related to the medical conditions caused by his June 27, 1995 injury. The Board has held
that a claimant must submit a rationalized medical opinion in order to establish a causal
connection between a given work-related condition and a claimed period of disability.5
None of the medical reports contained a rationalized medical opinion showing that
appellant’s work-related condition worsened such that he suffered a recurrence of total disability
for the period August 17 to 21, 2015.6
On appeal, appellant asserts that the medical evidence of record established his claim for
work-related disability from August 17 to 21, 2015, but the Board has explained why this
evidence does not establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
4

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

5

E.R., Docket No. 15-1046 (issued November 12, 2015).

6

Appellant also did not show a change in the nature and extent of the light-duty job requirements. See supra note 3.

7

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

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relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received within one year of the date of that decision.9 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.10 The Board has held that the submission of evidence or argument
which repeats or duplicates evidence or argument already in the case record11 and the submission
of evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.12 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.13
ANALYSIS -- ISSUE 2
OWCP issued a decision on October 22, 2015. Appellant requested reconsideration of
this decision in a November 3, 2015 letter and form, both received by OWCP on
November 9, 2015. In his letter, appellant indicated that he would be submitting medical
evidence of Dr. Anwar which supported his claim for a work-related recurrence of total
disability.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3) which would require OWCP to reopen the case for review of the merits of his
claim. In his application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not identify a specific point of law or show
that it was erroneously applied or interpreted. Nor did appellant advance a new and relevant
legal argument not previously considered by OWCP. The underlying issue in this case is
whether appellant established a recurrence of total disability for the period August 17 to 21, 2015
due to his accepted work conditions. That is a medical issue which must be addressed by
relevant medical evidence.14 A claimant may be entitled to a merit review by submitting
pertinent new and relevant evidence,15 but appellant did not submit any such evidence in this
case. In his November 3, 2015 reconsideration letter, appellant indicated that he would be
submitting medical evidence of Dr. Anwar which supported his claim for a work-related
recurrence of total disability. However, he did not submit such medical evidence to OWCP.

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

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

12

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

13

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

14

See Bobbie F. Cowart, 55 ECAB 746 (2004).

15

See supra note 8.

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The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of total disability for the period August 17 to 21, 2015 due to the conditions related to his
June 27, 1995 work injury. The Board further finds that OWCP properly denied appellant’s
request for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 18 and October 22, 2015 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 4, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Columbia, MO, Employer
__________________________________________

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

Docket No. 15-1121
Issued: August 12, 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 April 21, 2015 appellant, through counsel, filed a timely appeal from a February 23,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than one percent permanent impairment of
the right upper extremity for which she received a schedule award.
FACTUAL HISTORY
On August 9, 2012 appellant, then a 49-year-old painter, alleged that she sustained a right
hand and wrist injury as a result of painting an excessive amount of trim work on that date. By
1

5 U.S.C. § 8101 et seq.

decision dated April 24, 2013, OWCP accepted the claim for right tenosynovitis of the hand and
wrist. Appellant sought treatment with Dr. David Volgas, a Board-certified orthopedic surgeon,
and was released to regular work-related activities on April 3, 2013.
On December 10, 2013 appellant filed a claim for a schedule award (Form CA-7).
By letter dated January 30, 2014, OWCP routed a statement of accepted facts (SOAF)
and the case file to Dr. Daniel Zimmerman, Board-certified in internal medicine serving as an
OWCP district medical adviser (DMA), for review and determination regarding whether
appellant sustained a permanent partial impairment of the right upper extremity and date of
maximum medical improvement (MMI).
In a January 30, 2014 report, Dr. Zimmerman reported that there was no medical
documentation at or near the date of MMI by which an impairment rating could be processed
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2 He requested OWCP refer appellant for a second
opinion evaluation.
By letter dated February 11, 2014, Dr. Zimmerman stated that appellant was eligible for
consideration of an impairment rating due to tenosynovitis of the right hand and wrist. He
further stated that no digit diagnosis had been accepted under this claim, File No. xxxxxx803.
OWCP referred appellant and the case file, to Dr. Kevin D. Komes, Board-certified in
physical medicine and rehabilitation, for a second opinion evaluation on March 11, 2014.
On March 11, 2014 Dr. Komes reviewed the case record and summarized the relevant
medical and diagnostic reports. He noted that appellant was last evaluated on April 3, 2013 at
the Orthopedic Clinic where she described her pain as 0 out of 10. It was determined that she
had reached MMI. Dr. Komes provided findings on physical examination and noted a tendon
deformity of the right 5th digit and decreased sensation on the longitudinal side of the 3rd digit.
Examination revealed the ability to oppose fingers and make a fist, as well as the ability to
extend all fingers except for the 5th digit. Dr. Komes identified appellant’s range of motion
(ROM) at the wrist showing 60 degrees of flexion and extension, 10 degrees of radial deviation,
and 20 degrees of ulnar deviation. Grip strength was 30 pounds on the right and 60 pounds on
the left on the third setting. Dr. Komes further stated that no triggering was noted of the digits.
Using Table 15-3, Wrist Regional Grid, of the sixth edition of the A.M.A., Guides,
Dr. Komes found that appellant’s wrist tenosynovitis was classified under the diagnosis-based
condition of wrist sprain/strain and therefore fell under class 1.3 He determined that appellant
had a grade modifier of 1 for functional history and grade modifier of 0 for physical
examination. Dr. Komes stated that the clinical studies grade modifier was not applicable.
Applying the net adjustment formula, he subtracted 1, the numerical value of the class, from the
numerical value of the grade modifier for each applicable component (functional history and
2

A.M.A., Guides (2009).

3

Id. at 395.

2

physical examination) and then added those values, resulting in a net adjustment of -1 ((1-1) +
(0-1)).4 Application of the net adjustment formula meant that movement was warranted one
place to the left of class 1 default value grade C to grade B based on Table 15-3. Therefore, the
diagnosis-based impairment rating for appellant’s right wrist sprain/strain -- tenosynovitis,
yielded one percent impairment of the upper right extremity.5 The date of MMI was noted as
April 3, 2013.
In a March 4, 2014 medical report, Dr. Neil Allen, Board-certified in internal medicine
and neurology, reported that he had examined appellant on January 14, 2014 for her work-related
accident on October 15, 2012. He summarized clinical studies, noted appellant’s functional
history, and provided findings on physical examination. Dr. Allen noted use of “Shoulder Range
of Motion” Table 15-31 at pages 468-70, to calculate appellant’s impairment rating based on the
range of motion method. He identified 0 percent digit impairment of the 1st digit, 26 percent
digit impairment of the 2nd digit, 26 percent digit impairment of the 4th digit, and 14 percent digit
impairment of the 5th digit. Dr. Allen stated that the 52 percent calculated for the 2nd and 3rd
digits converted to 9 percent upper extremity impairment.6 He stated that the 40 percent
calculated for the 4th and 5th digits converted to 4 percent upper extremity impairment. Thus,
based on range of motion grade modifiers, appellant had 13 percent right upper extremity
impairment consistent with a grade modifier of 2.7 Dr. Allen stated that appellant’s functional
history qualified for a grade modifier of 2 based on a QuickDASH score of 64, pain with less
than normal activity, and ability to perform self-care activities with modification but unassisted.8
He stated that, according to page 390 of the A.M.A., Guides, range of motion could be used as a
stand-alone rating when it reflected a more accurate impairment than the diagnosis-based
impairment method. Dr. Allen further stated that, according to Table 15-26, because appellant’s
functional history grade modifier was equal to the range of motion grade modifier, the total range
of motion impairment remained unchanged.9 He did not provide a date of MMI.
OWCP properly routed the case file and the reports of Dr. Komes and Dr. Allen to
Dr. Zimmerman, serving as the DMA, for review and a determination on whether appellant
sustained a permanent partial impairment of the right upper extremity and date of MMI.
In a March 19, 2014 report, Dr. Zimmerman stated that the date of MMI was March 11,
2014, the date of Dr. Komes’ examination. He stated that he agreed with Dr. Komes’
impairment rating of one percent permanent impairment of the right upper extremity which was
established by the grid diagnosis, grade modifier tables, and net adjustment formula under the
A.M.A., Guides. Dr. Zimmerman further stated that Dr. Allen’s report could not be considered
for schedule award purposes as the physician provided impairment ratings for digits of the right
4

Id. at 411.

5

Supra note 3.

6

Id. at 422.

7

Id. at 477, Table 15-35.

8

Id. at 406, Table 15-7.

9

Id. at 477.

3

hand. He noted that OWCP had not accepted the digits as a diagnosis and thus could not be
considered for a schedule award.
In an additional April 8, 2014 report, Dr. Zimmerman reiterated that Dr. Allen’s report
was unacceptable as an impairment rating. He noted that the report contained ratings for digits 1
through 5, but OWCP did not accept injuries to digits under this claim as noted in the SOAF.
OWCP would have to accept diagnoses affecting the digits under this claim before they could be
rated for impairment.
By decision dated May 2, 2014, OWCP granted appellant one percent permanent
impairment of the right upper extremity. The date of MMI was noted as March 11, 2014. The
award covered a period of 3.12 weeks from March 11 through April 1, 2014.
On May 9, 2014 appellant, through counsel, requested a telephone hearing before the
Branch of Hearings and Review.
At the December 11, 2014 hearing, counsel for appellant argued that Dr. Allen provided
detailed explanation pertaining to his impairment rating based on proper testing and the A.M.A.,
Guides. He stated that Dr. Allen properly explained that the range of motion method could be
used when it reflected a more accurate impairment than the diagnosis-based impairment method.
Counsel argued that the case should be remanded to a new DMA for evaluation or sent back to
the prior DMA with instructions to adopt the range of motion findings provided by Dr. Allen.
By decision dated February 23, 2015, the Branch of Hearings and Review affirmed the
May 2, 2014 schedule award decision finding that appellant was properly awarded one percent
permanent impairment of the upper right extremity.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.10 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.11
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International classification of Functioning, Disability and Health (ICF).12
10

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

11

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
12

A.M.A., Guides, supra note 2 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

4

In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. After the Class of Diagnosis (CDX) is determined for the diagnosed condition
(including identification of a default grade value), the net adjustment formula is applied using the
grade modifier for Functional History (GMFH), grade modifier for Physical Examination
(GMPE) and grade modifier for Clinical Studies (GMCS).13 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14 Under Chapter 2.3, evaluators are
directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.15
In the sixth edition, diagnosis-based impairment is the primary method of evaluation for
the upper extremity. A grid listing relevant diagnoses is provided for each region of the upper
extremity: the digit region, the wrist region, the elbow region, and the shoulder region. A
regional impairment will be defined by class and grade. The class is determined first by using
the corresponding regional grid. The grade is initially assigned the default value for that class.
This value may be adjusted slightly using nonkey grade modifiers such as functional history,
physical examination, and clinical studies.16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.17
ANALYSIS
OWCP accepted appellant’s claim for right tenosynovitis of the hand and wrist. The
issue is whether appellant sustained more than one percent permanent impairment of the upper
right extremity for which she received a schedule award. The Board finds that appellant has not
met her burden of proof to establish a greater right upper extremity impairment.
The Board notes that Dr. Komes properly evaluated appellant’s right arm impairment
under the relevant standards of the sixth edition of the A.M.A., Guides. In his March 11, 2014
report, Dr. Komes provided a detailed medical history, examination findings, and clinical studies
to calculate an impairment rating for permanent residuals of the right upper extremity. He
indicated that, according to the Wrist Regional Grid, Table 15-3 on page 395, appellant’s
tenosynovitis fell under the diagnosis-based category of wrist sprain/strain which had a default
value of one percent under class 1.18 Dr. Komes further found that, under the grade modifier
13

Id. at 385-419.

14

Id. at 411.

15

Id. at 23-28.

16

Id. at 387.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (February 2013).
18

Supra note 3.

5

scheme, appellant’s condition meant that her impairment rating moved one space to the left of
the default value on Table 15-3 which equaled one percent impairment of the right upper
extremity.
Dr. Komes explained that appellant had a grade modifier of 1 for functional history and
grade modifier of 0 for physical examination with no applicable grade modifier for clinical
studies. Applying the net adjustment formula, he properly subtracted 1, the numerical value of
the class, from the numerical value of the grade modifier for each applicable component
(functional history and physical examination) and then added those values, resulting in a net
adjustment of -1 ((1-1) + (0-1)).19 Application of the net adjustment formula meant that
movement was warranted one place to the left of class 1 default value grade C to grade B based
on Table 15-3. Therefore, the diagnosis-based impairment rating for appellant’s right wrist
sprain/strain -- tenosynovitis, yielded one percent impairment of the upper right extremity.20
The Board finds that Dr. Zimmerman, serving as the DMA, properly reviewed
Dr. Komes’ report and applied the appropriate tables and grading schemes of the A.M.A., Guides
in determining that appellant had no more than one percent permanent impairment of the right
upper extremity for which she received a schedule award.21 Moreover, Dr. Zimmerman correctly
noted the date of MMI as March 11, 2014 as the determination of the date ultimately rests with
the medical evidence22 and is usually considered to be the date of the evaluation by the physician
which is accepted as definitive by OWCP.23
Appellant argues that she is entitled to greater impairment based on the findings made in
Dr. Allen’s report. Dr. Allen’s March 1, 2014 report calculated 13 percent right upper extremity
impairment utilizing the range of motion method based on Table 15-31 for Finger Range of
Motion.
Dr. Allen based his impairment rating on conditions not accepted by OWCP as
employment related. His report was routed to Dr. Zimmerman, who noted the above defects.
Dr. Zimmerman correctly noted that the individual digits were not accepted work-related injuries
and impairment should be based only on the accepted condition of right tenosynovitis of the
hand and wrist.24 It is appellant’s burden of proof to establish that she suffers from additional
injuries as a result of the accepted employment-related injury.25 Dr. Zimmerman properly found
that appellant’s impairment rating should be calculated pursuant to the preferred diagnosis-based

19

Supra note 4.

20

Supra note 3.

21

W.M., Docket No. 11-1156 (issued January 27, 2012).

22

L.H., 58 ECAB 561 (2007).

23

Mark Holloway, 55 ECAB 321, 325 (2004).

24

G.I., Docket No. 11-30 (issued October 13, 2011).

25

See Charlene R. Herrera, 44 ECAB 361 (1993).

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impairment method utilized by Dr. Komes and the DMA properly explained that Dr. Allen’s
report could not be used as the basis for appellant’ schedule award claim.26
Thus, the Board finds that appellant has one percent permanent impairment of the upper
right extremity.27 There is no probative evidence showing a greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than one percent permanent impairment of
the upper right extremity.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 23, 2015 is affirmed.
Issued: August 12, 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

26

D.U., Docket No. 13-2086 (issued February 11, 2014).

27

V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
SECURITIES & EXCHANGE COMMISSION,
BENEFITS BRANCH, Washington, DC,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-225
Issued: September 8, 2011

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 November 4, 2010 appellant filed a timely appeal from the August 27, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
periods of disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had disability
for intermittent periods on or after November 29, 2005 due to her accepted work injuries.
FACTUAL HISTORY
In December 2007, OWCP accepted that appellant, then a 49-year-old securities
compliance examiner, sustained thoracic or lumbosacral neuritis or radiculitis due to lifting
1

5 U.S.C. §§ 8101-8193.

heavy boxes containing documents.2 She filed claims for wage loss for intermittent periods
beginning November 29, 2005.3 On March 25, 2009 OWCP advised appellant’s to submit
additional factual and medical evidence to support her disability claim.
On January 20, 2006 appellant underwent computerized tomography testing of her right
ribs which revealed nondisplaced fractures of the 10th and 11th ribs. A magnetic resonance
imaging (MRI) scan study performed on February 2, 2006 showed findings of right-sided small
extruded T6-7 disc herniation, small central T7-8 disc herniation as well as left-sided T8-9 disc
herniation. An MRI scan study of the lumbosacral spine from this period revealed L3-4 and L45 disc bulges.
On February 21, 2007 appellant was examined by Dr. Nancy E. Epstein, an attending
Board-certified neurosurgeon. She noted that appellant developed intermittent exacerbations and
remissions of appellant’s symptoms due to lifting boxes.
The record contains medical reports dated March 23 and June 12, 2007 from Dr. Philippe
Vaillancourt, an attending Board-certified pain management physician, who described the pain
management treatment he provided and stated that prolonged periods of sitting might aggravate
appellant’s mid back pain. He further noted that she required a modified work schedule for
approximately six weeks.
OWCP referred appellant for additional evaluation by Dr. Edward M. Weiland, a Boardcertified neurologist. On March 28, 2008 Dr. Weiland noted that, although she experienced midthoracic and upper lumbar paravertebral muscle pain and spasm while performing her work
duties in November 2005, she did not seek medical treatment until one month after the reported
symptoms. He stated that the causal relationship between appellant’s rib fractures and
employment factors could not be clearly identified. Dr. Weiland concluded that she was not
disabled from a neurological standpoint and stated that there was no reason she could not return
to her regular job for the employing establishment without restrictions.
In order to resolve the conflict in medical opinion regarding the extent of her disability,
appellant was referred to Dr. William Healy, a Board-certified orthopedic surgeon, for an
impartial medical examination. In an August 14, 2008 report, Dr. Healy opined that her mid and
low back pain and degenerative disc disease might have been aggravated by lifting at work. He
stated that he could not relate appellant’s rib fractures to her employment factors as the forces
required to cause a rib fracture would have been much more significant than those she
experienced at work. Dr. Healy opined that he could not presently find any evidence of thoracic
or lumbosacral neuritis or radiculitis. He felt that there were findings of degenerative disc
disease and herniation in the thoracic and lumbar spine that were aggravated by lifting at work.
Dr. Healy indicated that appellant could return to some kind of light-duty work.

2

Appellant indicated that she first became aware of her claimed condition and its relation to work factors in
November 2005.
3

Appellant intermittently used sick and annual leave during this period.

2

In medical reports dated September 12 and November 4, 2008, Dr. Jeffrey Schwartz, an
attending Board-certified neurosurgeon, noted that appellant was unable to work due to
degenerative disc disease of her thoracic and lumbar spine.
In a June 25, 2009 decision, OWCP denied appellant’s claim that she had disability on or
after November 29, 2005 due to her accepted work injuries. It indicated that the weight of the
medical evidence with respect to this matter rested with the well rationalized August 14, 2008
report of Dr. Healy, the impartial medical specialist. As a result of Dr. Healy’s report, OWCP
accepted appellant’s claim for work-related aggravation of her thoracic and lumbar disc
degeneration and displacement without myelopathy.
Appellant requested reconsideration of her claim and submitted additional medical
reports describing the treatment of the degenerative disc disease of her thoracic and lumbar
spine.
In an August 27, 2010 decision, OWCP affirmed its June 25, 2009 decision, finding that
the weight of the medical evidence regarding work-related disability continued to rest with the
opinion of Dr. Healy.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of her claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.5 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the compensable employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”7 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
4

Supra note 1.

5

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

7

5 U.S.C. § 8123(a).

3

medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.8 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.9
In a situation where OWCP secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.10
ANALYSIS
OWCP accepted that appellant, then a 49-year-old securities compliance examiner,
sustained thoracic or lumbosacral neuritis or radiculitis due to lifting heavy boxes containing
documents.
Appellant filed claims for wage loss for intermittent periods beginning
November 29, 2005. OWCP denied her claim for work-related disability for periods on and after
November 29, 2005 based on the August 14, 2008 opinion of Dr. Healy, a Board-certified
orthopedic surgeon, who served as an impartial medical specialist. It found that Dr. Healy
supported a work-related aggravation of her thoracic and lumbar disc degeneration and
displacement without myelopathy, but did not support the claim of disability for work.
OWCP properly determined that there was a conflict in the medical opinion between
appellant’s attending physicians and Dr. Weiland, a Board-certified neurologist acting as
OWCP’s referral physician, regarding the extent of her work-related disability on or after
November 29, 2005. In order to resolve the conflict, it properly referred appellant to Dr. Healy,
pursuant to section 8123(a) of FECA, for an impartial medical examination and an opinion on
the matter.
In an August 14, 2008 report, Dr. Healy stated that he could not relate appellant’s rib
fractures to employment factors as the forces required to cause a rib fracture would have been
much more significant than those appellant experienced at work. Although he opined that he
could not presently find any evidence of thoracic or lumbosacral neuritis or radiculitis, he
determined that the degenerative disc disease and herniation in the thoracic and lumbar spine
were aggravated by lifting at work.11 As noted OWCP relied on Dr. Healy’s report to accept
these conditions as work related.
OWCP relied on Dr. Healy’s August 14, 2008 report to find that appellant did not
establish disability for intermittent periods on or after November 29, 2005 due to her accepted
work injuries. The Board notes that Dr. Healy did not provide a clear opinion regarding whether
8

William C. Bush, 40 ECAB 1064, 1975 (1989).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

10

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988).

11

Dr. Healy indicated that appellant could return to some kind of light-duty work.

4

she had work-related disability for any claimed intermittent periods from work. Further,
clarification of his opinion is necessary given that OWCP accepted the aggravation of thoracic
and lumbar disc degeneration and displacement. Dr. Healy did not describe in detail the effects
of the work-related conditions over time since November 29, 2005. In addition, he did not
clearly address whether appellant’s work-related thoracic or lumbosacral neuritis or radiculitis
caused disability for any period on or after November 29, 2005.
For these reasons, the opinion of Dr. Healy requires clarification regarding appellant’s
work-related disability on or after November 29, 2005. The case will be remanded to OWCP for
referral of the case record, an updated statement of accepted facts and, if necessary, appellant, to
Dr. Healy for a supplemental report regarding the extent of work-related disability. After such
further development as OWCP deems necessary, an appropriate decision should be issued
regarding the extent of appellant’s work-related disability on or after November 29, 2005.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
had disability for intermittent periods on or after November 29, 2005 due to her accepted work
injuries.

5

ORDER
IT IS HEREBY ORDERED THAT the August 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, in part. The case is set aside on the issue of
disability and remanded to OWCP for further proceedings consistent with this decision of the
Board.
Issued: September 8, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

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

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

1

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

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

2

Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, St. Ann, MO, Employer
__________________________________________

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

Docket No. 17-0576
Issued: May 22, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 17, 2017 appellant filed a timely appeal from a December 30, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a ratable hearing loss entitling him to a
schedule award.
FACTUAL HISTORY
On June 19, 2014 appellant, then a 57-year-old former special agent, filed an occupational
disease claim (Form CA-2) alleging that he sustained permanent ringing in both ears due to side
1

5 U.S.C. § 8101 et seq.

effects from taking Lariam, an antimalarial drug. He explained that he was exposed to the
conditions alleged to have caused his disease while traveling for the employing establishment from
1988 to 1991 and from 1995 to 1999. Appellant initially became aware of his condition in 1988
and attributed it to his federal employment on May 26, 2014, when he learned that in July 2013
the Food and Drug Administration (FDA) had issued a warning that the drug Lariam had
neurological side effects.2
By letter dated July 16, 2014, OWCP requested that appellant submit additional factual and
medical information in support of his claim, including a detailed opinion from his attending
physician regarding the cause of any diagnosed condition.
Appellant submitted the results of a July 15, 2014 audiogram. An audiologist on July 21,
2014 noted that Lariam can cause tinnitus and that the results were consistent with the audiological
findings. On July 22, 2014 Dr. Raymond K. Weber, Board-certified in family medicine, reviewed
and concurred with the findings by the audiologist.
OWCP, on November 4, 2014, referred appellant to Dr. Richard L. Barnes, an osteopath,
for a second opinion examination. In a report dated November 18, 2014, Dr. Barnes diagnosed
bilateral sensorineural hearing loss that was mild to moderate and consistent with noise-induced
hearing loss and tinnitus due to exposure to Lariam. He attributed the hearing loss to exposure to
noise in his federal employment and provided the results of an audiogram.
In a supplemental report dated March 12, 2015, Dr. Barnes opined that appellant’s tinnitus
was unrelated to taking antimalarial medication. He noted that high-frequency sensorineural
hearing loss could result in tinnitus. On July 27, 2015 Dr. Barnes opined in an addendum report
that the drug Lariam did not cause tinnitus.
By decision dated September 10, 2015, OWCP denied appellant’s claim for employmentrelated tinnitus. It found that his claim was timely filed and that he had established the occurrence
of the identified work factors. OWCP determined, however, that the medical evidence submitted
was insufficient to establish that he sustained a diagnosed condition due to taking antimalarial
medication.
Appellant, on September 24, 2015, requested reconsideration. He noted that he only took
antimalarial medication on travel for the employment establishment. Appellant advised that he
always used hearing protection for firearms training.

2

In an accompanying statement, appellant related that while traveling as part of his employment from 1988 to 1991
and 1995 to 1999 he was required to take Lariam as a prophylaxis against malaria. He developed tinnitus. On May 26,
2014 appellant learned that the FDA had updated its side effect information regarding the drug Lariam to include
psychiatric and neurological side effects that may be permanent, including ringing in the ears. On July 29, 2014 he
advised that the employing establishment provided the Lariam in a plastic envelope without warning information.
Appellant’s exposure to the drug varied depending on the time of his travels. He was unaware that his tinnitus resulted
from the drug exposure until May 2014.

2

Dr. Jeffrey T. Fierstein, a Board-certified otolaryngologist, opined on September 24, 2015
that appellant “developed tinnitus after taking [the] malaria prophylactic, Lariam.” He attributed
the tinnitus to the Lariam.
In a report dated October 16, 2015, Dr. Remington Lee Nevin, a general practitioner,
reviewed the evidence of record and discussed literature finding an association between tinnitus
and the antimalarial drug Mefloquine (also known as Lariam). He opined that appellant sustained
tinnitus that was more likely than not directly related to toxicity from the antimalarial drug.
Dr. Nevin advised that the condition was most likely permanent.
By letter dated March 10, 2016, OWCP referred appellant to Dr. Ketan A. Shah, a Boardcertified otolaryngologist, for an otologic examination and an audiological evaluation. It provided
a statement of accepted facts noting that appellant took the antimalarial medication Lariam, also
known as Mefloquine, on work trips from 1988 to 1999. OWCP noted that he used hearing
protection during firearms training.
In a report dated March 24, 2016, Richard K. Kleinschmidt, a physician assistant with
Dr. Shah, discussed appellant’s history of tinnitus after using the medication Lariam, or
Melfloquine. He interpreted an audiogram as showing moderate-to-severe bilateral sensorineural
hearing loss. The physician assistant diagnosed bilateral tinnitus more likely than not due to
Lariam toxicity and bilateral sensorineural hearing loss more likely than not caused by tinnitus
resulting from Lariam toxicity. He found that appellant was a good candidate for hearing aids.
Audiometric testing was conducted on March 24, 2016. Testing at frequency levels of 500, 1,000,
2,000, and 3,000 cycles per second revealed losses in the right ear of 15, 5, 20, and 55, respectively,
and losses in the left ear of 10, 10, 25, and 45, respectively.
OWCP, on June 29, 2016, vacated its September 10, 2015 decision and accepted
appellant’s claim for bilateral tinnitus and bilateral sensorineural hearing loss.
On July 8, 2016 appellant filed a claim for compensation (Form CA-7) requesting a
schedule award.
An OWCP medical adviser reviewed the medical evidence on July 5, 2016 and applied
OWCP’s standards for evaluating hearing loss to the March 24, 2016 audiogram. He concluded
that appellant’s hearing loss was not sufficiently severe to be ratable for a schedule award.
OWCP’s medical adviser recommended that OWCP authorize hearing aids.
In a report dated October 29, 2016, Dr. Jay F. Piccirillo, a Board-certified otolaryngologist,
discussed appellant’s complaints of tinnitus for more than 20 years. He advised that the March 24,
2016 audiogram demonstrated high-frequency sensorineural hearing loss with speech reception
thresholds bilaterally of 15 decibels. Referencing the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 Dr. Piccirillo
opined that appellant had a class 3, or severe, problem due to tinnitus.

3

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

3

OWCP’s medical adviser, in an updated report dated December 27, 2016, concurred with
Dr. Piccirillo’s finding that the March 24, 2016 audiogram showed moderate-to-severe
sensorineural hearing loss in the right ear and moderate sensorineural hearing loss in the left ear at
three to eight kilohertz. He noted, however, that applying the provisions of the sixth edition of the
A.M.A., Guides to the audiological results yielded no monaural hearing loss in either ear and no
binaural hearing loss. The medical adviser opined that appellant was not entitled to a schedule
award for tinnitus as his hearing loss was not ratable.
By decision dated December 30, 2016, OWCP denied appellant’s schedule award claim.
It found that the medical evidence of record did not establish that he had a ratable hearing loss
entitling him to a schedule award.
On appeal appellant describes his symptoms of tinnitus, noting that it is an accepted
condition. He maintains that OWCP’s medical adviser concurred with Dr. Piccirillo’s conclusions.
Appellant asserts that he has a moderate-to-severe impairment due to his tinnitus.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.8 Using the frequencies of 500, 1,000, 2,000, and 3,000 hertz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by
five, then added to the greater loss and the total is divided by six to arrive at the amount of binaural

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) ( March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 250.

4

hearing loss. The Board has concurred in OWCP’s adoption of this standard for evaluating hearing
loss.9
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease, but rather a
symptom that may be the result of disease or injury.10 The A.M.A., Guides provide that, if tinnitus
interferes with activities of daily living (ADLs), including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may be
added to a measurable binaural hearing impairment.11 A schedule award for tinnitus is not payable
unless the medical evidence establishes that the condition caused or contributed to a ratable hearing
loss.12
ANALYSIS
OWCP accepted that appellant sustained bilateral sensorineural hearing loss and bilateral
tinnitus due to exposure to the antimalarial drug Lariam during the course of his federal
employment. It initially denied the claim after finding that the medical evidence failed to establish
that he sustained employment-related tinnitus and hearing loss, but it subsequently further
developed the medical evidence and accepted the claim for bilateral hearing loss and tinnitus based
on his exposure to the antimalarial drug Lariam.
On July 5, 2016 an OWCP medical adviser reviewed a March 24, 2016 audiogram obtained
as part of a March 24, 2016 second opinion examination and found that the hearing loss was not
ratable for schedule award purposes. He applied the standardized procedures to the March 24,
2016 audiogram to determine if appellant’s hearing loss was ratable for schedule award purposes.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibel losses of 15, 5, 20, and 55, respectively. These decibels were totaled at
95 and were divided by 4 to obtain an average hearing loss at those cycles of 23.75 decibels. The
average of 23.75 decibels was then reduced by 25 decibels (the first 25 decibels were discounted
as discussed above) to equal zero percent hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 cycles per
second revealed decibel losses of 10, 10, 25, and 45 respectively. These decibels were totaled at
90 and were divided by 4 to obtain the average hearing loss at those cycles of 22.5 decibels. The
average of 22.5 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to zero which was multiplied by the established factor of 1.5 to compute zero
percent hearing loss for the left ear. The medical adviser further noted that appellant had zero
percent binaural hearing loss. He concluded that he did not have a ratable permanent impairment
due to hearing loss under the A.M.A., Guides.

9

See J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

10

A.M.A., Guides 249.

11

Id.; see also Robert E. Cullison, 55 ECAB 570 (2004).

12

See Charles H. Potter, 39 ECAB 645 (1988).

5

The Board finds that OWCP’s medical adviser applied the proper standards to the
March 24, 2016 audiogram, finding zero percent monaural or binaural ratable hearing loss.
Although he has an employment-related hearing loss, it is not significant enough to be ratable for
schedule award purposes.13
Appellant submitted an October 29, 2016 report from Dr. Piccirillo, who found that, under
the A.M.A., Guides, he had a class three problem due to tinnitus. An OWCP medical adviser
concurred with Dr. Piccirillo’s determination, but noted that as his hearing loss was not ratable, he
was not entitled to a schedule award for tinnitus.
The A.M.A., Guides, provides that tinnitus, in the presence of unilateral or bilateral hearing
impairment, may impair speech discrimination and provides for up to five percent rating for
tinnitus, in the presence of measurable hearing loss, if the tinnitus impacts the ability to perform
ADL.14 Appellant’s hearing loss is not ratable. Accordingly, the Board finds he is not entitled to
a schedule award for tinnitus.15
On appeal appellant asserts that OWCP’s medical adviser concurred with Dr. Piccirillo’s
findings and maintains that he has a moderate-to-severe impairment due to his tinnitus. The issue,
however, is whether an audiogram establishes that he meets the criteria for a ratable hearing loss.
An impairment rating for tinnitus may not be added to an impairment rating for hearing loss unless
such hearing loss is ratable.16
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established a ratable hearing loss entitling him to a
schedule award.

13

See W.T., Docket No. 17-1723 (issued March 20, 2018).

14

Supra note 10; Juan A. Trevino, 54 ECAB 356 (2003).

15

See D.G., Docket No. 16-1486 (issued December 16, 2016); A.W., Docket No. 16-0795 (issued August 29, 2016).

16

See Juan A. Trevino, supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the December 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 09-971
Issued: December 3, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 18, 2008, affirming an Office decision
denying his claim for a traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a right shoulder, arm, neck and lower back injury while in the performance of duty.
FACTUAL HISTORY
On June 3, 2008 appellant, then a 55-year-old air conditioning equipment mechanic, filed
a traumatic injury claim alleging that on April 7, 2007 while moving an air handler and lifting a

pipe he injured his right shoulder, right arm, neck and low back.1 He did not stop work.
Appellant submitted a report of accident dated April 7, 2007, which noted that on March 24,
2007 he was assisting in moving an air conditioning unit and injured his shoulder.
On June 12, 2008 the Office advised appellant of the type of factual and medical
evidence needed to establish his claim and requested that he submit such evidence, particularly
requesting that he submit a physician’s reasoned opinion addressing the relationship of his
claimed condition and specific employment factors.
Appellant sought treatment from Dr. Sandy Bidner, a Board-certified orthopedist, for
persistent neck pain with right radicular symptoms. In a June 25, 2008 report, Dr. Bidner stated
that he first saw appellant on April 23, 2008. He advised that appellant reported injuring his
right shoulder on March 24, 2007 while lifting an air handler at work. Appellant related that his
symptoms diminished over the ensuing months; however, he recently experienced recurrent neck
pain and radicular symptoms. Dr. Bidner noted findings of decreased range of motion of the
cervical spine, neurological weakness of the right triceps and digital extensors, decreased
symmetrical reflexes, decreased sensation in the forearm, radial wrist and hand, full painless
motion of the right shoulder, no weakness of the rotator cuff or impingement and tenderness of
the lumbar spine at L4 to sacrum. He diagnosed cervical spondylosis with right C5-6 and C6-7
nerve root impingement, lumbar disc disease with nerve root entrapment at L4-5 and L5-S1,
right shoulder supraspinatus and infraspinatus tendinopathy with partial tear of the rotator cuff.
Dr. Bidner opined that, based on appellant’s clinical presentation and diagnostic findings, he
would require surgical compression at C5-6 and C6-7. He opined that appellant’s injuries were
work related based on his presentation and history. In a return to work slip dated May 30, 2008,
Dr. Bidner released appellant to work light duty with restrictions on heavy lifting or repetitive
use of the right arm.
In a decision dated August 11, 2008, the Office denied appellant’s claim on that grounds
that the medical evidence was not sufficient to establish that his condition was caused by the
March 24, 2007 work incident.
On September 8, 2008 appellant requested reconsideration. He submitted a magnetic
resonance imaging (MRI) scan of the cervical spine dated May 2, 2008, which revealed moderate
right neural foraminal narrowing at C2-3, mild right neural foraminal narrowing at C3-4,
moderate bilateral neural foraminal narrowing at C4-5, moderate right neural foraminal
narrowing at C5-6 and severe right neural foraminal narrowing at C6-7 with all findings due to a
right paracentral disc bulge. An MRI scan of the lumbar spine dated May 19, 2008 revealed
mild spinal canal stenosis, moderate left and mild right neural foraminal narrowing due to a disc
bulge and facet osteoarthritis at L3-4, L4-5 and L5-S1. An MRI scan of the right shoulder
revealed supraspinatus and infraspinatus tendinopathy, partial thickness distal small rotator cuff
tear and moderate bony spurring around the acromioclavicular joint. In an August 27, 2008
report, Dr. Bidner noted that appellant described a work injury to his neck, back and right
shoulder that occurred on March 24, 2007 when lifting an air handler. Appellant reported that
1

The employing establishment submitted a statement indicating that the date of injury was reported as March 24,
2007 and not April 7, 2007.

2

the pain subsided and recently recurred with symptoms of cervical discomfort with
radiculopathy. Dr. Bidner opined that appellant’s condition was directly related to the March 24,
2007 work injury and that the cervical, lumbar and shoulder injury should be compensable.
In a decision dated November 18, 2008, the Office denied modification of the August 11,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed is causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative

2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 357 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

3

value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
ANALYSIS
Appellant alleged that he sustained a right shoulder, right arm, neck and low back injury
when moving an air handler and lifting a pipe. The Board notes that the evidence supports that
the incident occurred on March 24, 2007 as alleged. The Board finds, however, that the medical
evidence is insufficient to establish that appellant sustained a right shoulder, right arm, neck and
low back injury causally related to the March 24, 2007 work incident.
On June 12, 2008 the Office advised appellant of the type of medical evidence needed to
establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how the March 24, 2007 work incident may have caused or aggravated his
claimed condition.
In support of his claim, appellant submitted a June 25, 2008 report from Dr. Bidner, who
treated him for persistent neck pain with right radicular symptoms. Dr. Bidner diagnosed
cervical spondylosis with right C5-6 and C6-7 nerve root impingement, lumbar disc disease with
nerve root entrapment at L4-5 and L5-S1, right shoulder supraspinatus and infraspinatus
tendinopathy with partial tear of the rotator cuff. Appellant reported injuring his right shoulder
on March 24, 2007 while lifting an air handler at work and noted his symptoms recently
recurred. Dr. Bidner opined that appellant’s condition was employment related based on
appellant’s presentation and history. However, he did not provide a rationalized opinion
explaining the reasons why any diagnosed conditions were caused or aggravated by particular
factors of employment.8 For example, Dr. Bidner did not explain the process by which moving
an air handler and lifting a pipe over one year earlier would cause the diagnosed condition and
why any presently diagnosed condition would not be due to any nonwork factors. The need for
medical rationale is especially important where the claimed injury occurred on March 24, 2007
but appellant apparently did not seek any treatment for the injury until April 23, 2008. This
report is insufficient to meet appellant’s burden of proof.
Appellant also submitted a return to work slip from Dr. Bidner dated May 30, 2008, who
released appellant to light-duty work. However, this note neither provided a diagnoses of a
medical condition,9 noted a history of injury,10 or offered an opinion on how appellant’s

7

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

Id.

9

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
10

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

4

employment could have caused or aggravated his condition.11 Consequently, this note was of no
probative value and do not establish appellant’s traumatic injury claim. In an August 27, 2008
report, Dr. Bidner noted that appellant described a neck, back and right shoulder injury that
occurred at work on March 24, 2007 when lifting an air handler. He opined that appellant’s
injuries were directly related to the March 24, 2007 work injury. However, as noted above,
Dr. Bidner did not provide a rationalized opinion explaining the reasons why any diagnosed
conditions were caused or aggravated by an employment incident that occurred more than one
year earlier.12
Likewise, reports of diagnostic testing, such as MRI scan reports are insufficient to
establish appellant’s claim as they do not provide a physician’s opinion on the causal relationship
between appellant’s job factors and a diagnosed medical condition.
On appeal, appellant has submitted statements from coworkers and asserts that he is “at a
loss” to understand why his claim was denied.13 As explained above, the evidence supports that
the March 24, 2007 work incident occurred as alleged. The basis for the denial of the claim is
that appellant has not submitted sufficient medical evidence to explain why the March 24, 2007
incident caused or aggravated diagnosed medical conditions for which he first sought treatment
in April 2008. To establish his claim, appellant must submit a physician’s opinion which
explains the reasons why that incident caused or aggravated his diagnosed condition. As noted,
part of his burden of proof includes the submission of rationalized medical opinion evidence,
based on a complete factual and medical background, supporting such a causal relationship
between the employment and the diagnosed condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.14 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a right shoulder, right arm, neck and low back injury causally related to his March 24,
2007 employment incident.

11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

See Jimmie H. Duckett, supra note 7.

13

The Board notes that it may not consider new evidence on appeal as its review is limited to the evidence that
was before the Office at the time of its decision. See 20 C.F.R. § 501.2(c).
14

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

5

ORDER
IT IS HEREBY ORDERED THAT the November 18 and August 11, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COMMAND STATION, Albuquerque, NM,
Employer
__________________________________________

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

Docket No. 14-1120
Issued: August 22, 2014

Case Submitted on the Record

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

JURISDICTION
On April 14, 2014 appellant filed a timely appeal from a November 21, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the last merit decision dated March 11, 2013 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of his claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 62-year-old motor vehicle operator, filed a Form CA-1 claim for benefits on
July 18, 2011, alleging that he injured his back, hands and knees while pushing and pulling linen
carts on May 15, 2011.
By letter dated July 25, 2011, OWCP informed appellant that it required additional
medical evidence in support of his claim. It requested that he submit the evidence within 30
days.
By decision dated August 26, 2011, OWCP denied the claim, finding that appellant failed
to establish fact of injury.
On November 2, 2011 appellant requested reconsideration.
By decision dated
January 31, 2012, OWCP denied modification of the August 26, 2011 decision.
On December 26, 2012 appellant again requested that OWCP reconsider his case. He
submitted additional medical evidence. In a January 17, 2012 report, Dr. John E. Grasinger, a
specialist in orthopedic surgery, stated that appellant was experiencing bilateral knee pain with
significant lesions in both the lateral and medial femoral condyles. He had moderate swelling in
both knees with passive motion; there were mild effusions bilaterally. Dr. Grasinger stated that
appellant worked in housekeeping and pushed 700-pound carts. He asserted that appellant would
be unable to perform that job after joint replacement surgery due to his age, the wear and tear
shown by a magnetic resonance imaging scan and the pain he experienced with walking.
Dr. Grasinger recommended that appellant undergo a right knee replacement procedure.
In a February 7, 2012 report, received by OWCP on December 26, 2012, Dr. Grasinger
stated that appellant was awaiting right total knee replacement surgery. He opined that it was
medically probable that pushing heavy carts would aggravate degenerative joint disease.
By decision dated March 11, 2013, OWCP modified the January 31, 2012 decision. It
found that appellant submitted sufficient factual evidence to establish the incident at work on
May 15, 2011. It found, however, that he failed to submit sufficient medical evidence to
establish that the incident resulted in a knee injury.
On November 12, 2013 appellant requested reconsideration of the March 11, 2013
decision. He did not submit any additional factual or medical evidence with his request.
By decision dated November 21, 2013, OWCP denied appellant’s application for review
on the grounds that it did not raise any substantive legal questions or include new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by constituting relevant and

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pertinent evidence not previously considered by OWCP.2 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.3
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has he advanced a relevant legal argument not previously
considered. Appellant did not submit any medical evidence in connection with his
November 12, 2013 reconsideration request. He failed to submit any evidence pertinent to the
issue on appeal; i.e., whether he established that he sustained an injury in the performance of
duty on May 15, 2011. Appellant’s reconsideration request failed to show that OWCP
erroneously applied or interpreted a point of law or advance a point of law or fact not previously
considered. The Board finds that OWCP did not abuse its discretion by refusing to reopen
appellant’s claim for further review on the merits in its November 21, 2013 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of his claim under 5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

3

Howard A. Williams, 45 ECAB 853 (1994).

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ORDER
IT IS HEREBY ORDERED THAT the November 21, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 22, 2014
Washington, DC

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

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

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

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