United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Somerdale, NJ, Employer
__________________________________________

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

Docket No. 11-885
Issued: November 7, 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 February 22, 2011 appellant filed a timely appeal from a December 1, 2010 schedule
award 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 merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than an eight percent impairment of the left arm
for which he received a schedule award.
On appeal, appellant’s attorney asserts that a conflict in medical evidence exists
regarding the degree of appellant’s left upper extremity impairment. He further asserts that
OWCP should have adjudicated appellant’s schedule award under the fifth edition of the

1

5 U.S.C. §§ 8101-8193.

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)2 (hereinafter) rather than the sixth edition.3
FACTUAL HISTORY
On August 7, 1998 OWCP accepted that appellant, then a 44-year-old city letter carrier,
sustained a fracture to his left thumb and a contusion of the right forearm as the result of a dog
bite on July 24, 1998. Appellant stopped work on the day of the injury and returned to limited
duty on July 29, 1998. He later resumed regular duties as a letter carrier.
On July 27, 2004 appellant filed a schedule award claim. In a December 4, 2003 report,
Dr. David Weiss, an attending osteopath, advised that under the fifth edition of the A.M.A.,
Guides appellant had a 13 percent impairment of the left arm.4 In a report dated June 15, 2004,
he advised that, under the fifth edition of the A.M.A., Guides, appellant had a 41 percent
impairment of the left upper extremity. In reports dated August 21, 2006 and July 11, 2007, an
OWCP medical adviser reviewed the medical evidence and advised that appellant had a 24
percent impairment of the left upper extremity.
OWCP determined that a conflict in medical evidence arose between the opinions of
Dr. Weiss and an OWCP medical adviser. On August 7, 2007 it referred appellant to Dr. Zohar
Stark, a Board-certified orthopedic surgeon, for an impartial evaluation. In an August 21, 2007
report, Dr. Stark advised that, under the fifth edition of the A.M.A., Guides, appellant had a 9
percent impairment due to loss of sensation of half of the ulnar and radial palmar nerves to the
left thumb and that, under Table 18-1, he had a 3 percent disability or a total 12 percent
impairment of the left arm.5
In February 2010, OWCP referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a February 18, 2010 report, Dr. Smith
noted appellant’s complaints of throbbing pain and dysesthetic sensation in the distribution of the
radial digital nerve of the left thumb. He advised that he had reviewed the statement of accepted
facts and medical record and provided physical examination findings, noting a well-healed
sensitive scar over the radial volar surface of the left thumb. Dr. Smith provided range of motion
measures of the left thumb, noting 5 centimeters (cm) of adduction; 40 degrees of radial
adduction;6 6 cm of opposition; 40 degrees of flexion at the metacarpophalangeal (MCP) joint;
10 degrees of extension; 60 degrees of flexion of the interphalangeal (IP) joint; and 10 degrees of
extension. He diagnosed sensitive laceration of the radial volar aspect of the left nondominant
thumb and healed thumb fracture and puncture wounds of the forearm and advised that appellant
2

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

3

Id. at (6th ed. 2008).

4

Supra note 2.

5

Drs. Weiss and Stark and an OWCP medical adviser also provided impairment ratings for the right upper
extremity. On August 20, 2010 appellant was granted a schedule award for a three percent impairment of the right
upper extremity. This decision is not at issue in this case and has not been appealed to the Board.
6

It appears that the physician meant radial abduction. See Table 15-30, A.M.A., Guides, supra note 3 at 468.

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was at maximum medical improvement. Dr. Smith stated that, in accordance with Table 15-30
of the sixth edition of the A.M.A., Guides, the measurements for range of motion of appellant’s
left thumb fell into grade modifier 1, the mild category and that his range of motion deficits
yielded a 15 percent digital impairment. In accordance with Table 15-12, he converted the
digital impairment to an upper extremity impairment, finding a five percent left upper extremity
impairment due to loss of motion. Dr. Smith stated that, under Table 15-21, appellant had a
moderate sensory deficit of the radial palmar digital nerve for a class 1, three percent upper
extremity impairment. He then combined the motor deficit of five percent with the sensory
deficit of three percent, for a total eight percent impairment of the left upper extremity.
In an April 18, 2010 report, Dr. Andrew A. Merola, an OWCP medical adviser who is
Board-certified in orthopedic surgery, noted his review of Dr. Smith’s report. He advised that
February 18, 2010 was the date of maximum medical improvement and agreed with Dr. Smith’s
conclusion that appellant had a five percent upper extremity impairment due to loss of motion of
the left thumb and a three percent impairment due to sensory loss, for a total eight percent left
upper extremity impairment.
By decision dated April 30, 2010, appellant was granted a schedule award for an eight
percent impairment of the left upper extremity, for a total of 24.96 weeks, to run from
February 18 to August 11, 2010. On May 7, 2010 appellant, through his attorney, requested a
hearing. At the hearing, held by video conference on September 8, 2010, appellant testified that
he still had pain, numbness and weakness of the left thumb. His attorney argued that a conflict in
medical evidence existed regarding appellant’s left upper extremity impairment and that he had
requested that Dr. Weiss provide an impairment rating in accordance with the sixth edition of the
A.M.A., Guides. The record was held open for 30 days.
In a December 1, 2010 decision, an OWCP hearing representative affirmed the April 30,
2010 decision. She noted that no new medical evidence was submitted after the September 8,
2010 hearing and the case record contained no medical evidence supporting a greater impairment
under the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing federal regulations,8 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 adopted the
A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.10
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

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For decisions issued after May 1, 2009, the sixth edition is used.11 The sixth edition of the
A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World Health
Organization’s International Classification of Functioning, Disability and Health (ICF).12
OWCP 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 an OWCP medical
adviser providing rationale for the percentage of impairment specified.13
ANALYSIS
OWCP accepted appellant’s claim that he sustained an employment-related fracture of
the left thumb and contusion of the right forearm on July 24, 1998 when he was bit by a dog. On
July 24, 2004 appellant filed a schedule award and by decision dated April 30, 2010, was granted
a schedule award for an eight percent impairment of the left upper extremity.14
Regarding appellant’s argument on appeal that the fifth edition of the A.M.A., Guides
should be used in assessing his impairment, the Board notes that the method used in rating
impairment for purposes of a schedule award is a matter which rests in the sound discretion of
the Director. In the case, Harry D. Butler,15 the Board addressed OWCP’s use of the A.M.A.,
Guides to evaluate impairment since the first edition single volume published in 1971. The
Director has adopted the subsequent editions of the A.M.A., Guides and stated that the specific
date when use of each edition should be made applicable to claims under FECA. Appellant has
not established that the Director abused the discretion delegated under section 8107 of FECA or
the implementing federal regulations to make the sixth edition of the A.M.A., Guides applicable
to all claimants as of May 1, 2009. The fact that the sixth edition revises the evaluation methods
used in previous editions does not establish an abuse of discretion. As noted in FECA Bulletin
No. 09-03,16 the American Medical Association periodically revises the A.M.A., Guides to
incorporate current scientific clinical knowledge and judgment and to establish standardized
methodologies for calculating permanent impairment.

11

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

12

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
13

See also, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d)
(August 2002).
14

Appellant was also granted a schedule award for a three percent permanent impairment of the right upper
extremity on August 20, 2010. As he has not filed an appeal with the Board of the August 20, 2010, it is not at issue
in this case.
15

43 ECAB 859 (1992).

16

Supra note 10.

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The sixth edition of the A.M.A., Guides became effective on May 1, 2009.17 Following
the September 8, 2010 hearing, the record was held open for 30 days and an OWCP hearing
representative did not issue her decision until December 1, 2010. During that period no further
medical evidence was received and the hearing representative found that the weight of the
medical evidence rested with the opinion of Dr. Smith, as supported by that of an OWCP
medical adviser.
The sixth edition of the A.M.A., Guides provides that, under certain circumstances, range
of motion may be selected as an alternative approach in rating impairment.18
In his February 18, 2010 report, Dr. Smith first advised that, under Table 15-30 of the
sixth edition of the A.M.A., Guides, Thumb Range of Motion, appellant’s left thumb fit into the
grade 1 category. He indicated that 60 degrees of IP joint flexion yielded a 1 percent digital
impairment; zero degrees of extension yielded a 1 percent impairment; 40 degrees of MCP joint
flexion yielded a 2 percent impairment; a minus 10 extensor lag of the MCP joint yielded a 1
percent impairment; 5 cm of adduction yielded a 4 percent impairment; 40 degrees of radial
abduction yielded a 2 percent impairment; and 6 cm of opposition yielded a 4 percent
impairment, yielded a total digital impairment due to loss of motion of 15 percent.19 In
accordance with Table 15-12, Dr. Smith then properly converted the digital impairment to an
upper extremity impairment, finding that appellant had a five percent upper extremity
impairment due to loss of left thumb motion.20 He then found that, under Table 15-21,
Peripheral Nerve Impairment, appellant had a class 1, moderate sensory deficit of the radial
palmar digital nerve for a three percent upper extremity impairment.21 Dr. Smith then combined
the five percent impairment due to loss of thumb motion with the three percent sensory
impairment, finding a total eight percent impairment of the left upper extremity. Dr. Merola
agreed with Dr. Smith’s conclusion that appellant had five percent impairment due to loss of
thumb motion with the three percent sensory impairment, for a total eight percent impairment of
the left upper extremity.22
As there is no additional probative medical evidence regarding appellant’s entitlement to
a schedule award under the sixth edition of the A.M.A., Guides, a conflict in medical evidence

17

Id.

18

A.M.A., Guides, supra note 3 at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated
using range of motion are followed by an asterisk. Id. In this case, the Digital Regional Grid includes an asterisk
for thumb fractures. Id. at 393.
19

Id. at 468.

20

Id. at 421.

21

Id. at 438.

22

The Board notes that the A.M.A., Guides provide that range of motion impairments can be modified using
Table 15-35. Id. at 477. Appellant would not be entitled to an increased schedule award by using this table.

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was not established. OWCP properly found that he has no more than eight percent impairment
for the left upper extremity.23
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in an
increased impairment.
CONCLUSION
The Board finds that appellant has no more than an eight percent permanent impairment
of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2010 decision of the Office of
Workers’ Compensation is affirmed.
Issued: November 7, 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

23

See B.C., Docket No. 10-2061 (issued May 19, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA VETERANS ADMINISTRATION
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________

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Appearances:
Stephen H. Robinson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-955
Issued: April 11, 2013

Case Submitted on the Record

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

JURISDICTION
On March 26, 2012 appellant filed a timely appeal of the December 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than 180 days elapsed from the most recent merit decision dated
December 4, 2008 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
this case 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 denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that he sustained a recurrence of his accepted employmentrelated condition commencing in 2008 for which he underwent surgery. He also contends that
the employing establishment failed to provide him with cross-training to work in a field other
than food service.
FACTUAL HISTORY
On May 11, 1992 appellant, then a 42-year-old cook, filed an occupational disease claim
alleging that on January 22, 1992 he first realized that his infected hands, fingers and nails were
caused by his exposure to different types of mixes and water while working at the employing
establishment.2 On May 29, 1993 OWCP accepted the claim for chronic paronychia and paid
compensation benefits.
On March 20, 2008 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on a February 26, 2008 medical report of
Dr. Gregory J. Cox, a Board-certified dermatologist and OWCP referral physician, who found
that there was no evidence of chronic paronychia and that appellant was capable of performing
his usual job with no restrictions. Appellant was afforded 30 days to submit additional evidence
or argument if he disagreed with the proposed action.
In a March 20, 2008 letter, appellant stated that he had long awaited a decision in favor of
his return to work.
In a December 4, 2008 decision, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective December 21, 2008. It found that the weight of
the medical evidence established that he no longer had any residuals or disability due to his
accepted condition.
On March 16, 2009 appellant filed a claim alleging that he sustained a recurrence of
disability on March 4, 2009 causally related to the accepted employment injury. He submitted
progress notes dated March 12, 2009 from the employing establishment’s emergency room for
treatment of paronychia in the right thumb nail for which he underwent a digital block and a
discharge diagnosis of peronychium (infected nail margin). Laboratory test results also dated
March 12, 2009 listed his ancillary glucose levels.
By letter dated March 25, 2009, OWCP addressed appellant’s recurrence claim. It stated
that, as his claim was denied, it would not consider the recurrence claim. OWCP advised
appellant to pursue his appeal rights.
In a December 20, 2009 letter, appellant, through his attorney, requested reconsideration
of the December 4, 2008 termination decision on the grounds that he sustained a recurrence of
his chronic paronychia for which he underwent outpatient surgery in March 2009.
2

Appellant stopped work on February 11, 1993 and applied for disability retirement which was approved by the
Office of Personnel Management (OPM). He received retirement benefits from OPM while in receipt of wage-loss
compensation from OWCP, who stated that OPM records indicated that as of February 6, 1996 he had repaid the
retirement benefits as he received dual benefits.

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In a December 15, 2011 decision, OWCP denied appellant’s request for reconsideration,
without a merit review, on the grounds that it was not timely filed and failed to establish clear
evidence of error in its December 4, 2008 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP decision for which review is sought.5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.7 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 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.11
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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP decision.12 The
3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

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

9

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

10

Supra note 8.

11

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

12

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

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Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.13
ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. The
Board’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original OWCP decision.14 However, a right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.15
The most recent merit decision in this case was OWCP’s December 4, 2008 decision
which finalized the termination of appellant’s wage-loss compensation and medical benefits
effective December 21, 2008 on the grounds that he no longer had any residuals or disability
causally related to the accepted employment-related chronic paronychia. As appellant’s
December 20, 2009 letter requesting reconsideration of the merits of his claim by OWCP was
made more than one year after the December 4, 2008 merit decision,16 the Board finds that it was
not timely filed.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP. In his December 20, 2009 reconsideration request, counsel contended that
OWCP improperly terminated appellant’s compensation benefits as he sustained a recurrence of
his chronic paronychia for which he underwent outpatient surgery in March 2009. The Board
notes that appellant filed a recurrence claim accompanied by medical evidence and was told by
OWCP in a March 25, 2009 letter that no action could be taken on his recurrence claim since his
claim was denied. The Board finds that the March 25, 2009 letter was based on a faulty premise.
In this case, appellant’s claim was not denied, but was accepted for chronic paronychia.
However, by decision dated December 4, 2008, OWCP terminated his entitlement to continuing
compensation for wage-loss and medical benefits. Since appellant’s claim was terminated and
not denied, it improperly interpreted the relevant facts of the present case and failed to evaluate
his claim for recurrence of disability. However, as OWCP never issued a final decision on his
recurrence claim, the Board has no jurisdiction over this matter.17 Moreover, the Board notes
that at the time OWCP issued its final termination decision, appellant had not submitted the
requested medical evidence to establish that he had any continuing employment-related residuals
or disability. For the stated reasons, the Board finds that his argument is insufficient to
demonstrate clear evidence of error.

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

Supra note 5; see A.F., 59 ECAB 714 (2008).

15

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

16

Appellant had one year to request reconsideration by OWCP of its December 4, 2008 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
17

20 C.F.R. §§ 501.2(c) and 501.3.

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Appellant has not provided any argument or evidence of sufficient probative value to
shift the weight of the evidence in his favor and raise a substantial question as to the correctness
of OWCP’s December 4, 2008 termination decision. Consequently, OWCP properly denied his
reconsideration request as his request does not establish clear evidence of error.
This leaves unadjudicated, however, the March 16, 2009 claim appellant filed a Form
CA-2a for a recurrence of his medical condition.
In response to appellant’s recurrence claim, OWCP issued a brief March 25, 2009 letter
stating that the 2008 termination decision precluded any consideration of the recurrence of his
medical condition. “Therefore, no further action will be taken concerning your claim for
recurrence.” No citation to any legal authority that would support such a position was provided
to appellant. No final decision, complete with findings of fact or statement of reasons, was
provided for effectively denying this aspect of his case. Instead, appellant was referred to follow
the appeal rights attached to the 2008 termination decision.
The request by counsel in December 2009 complied with OWCP’s instructions, but was
captioned as an appeal from the 2008 termination decision. Counsel informed OWCP, however,
that appellant also filed a recurrence claim in March 2009, seeking further medical treatment for
chronic paronychia.
The December 15, 2011 decision addressed the reconsideration request in terms of the
2008 decision, finding it untimely and not sufficient to establish clear error. OWCP went
further, stating:
“The mere fact that you may have had another incident of nail infection in
March 2009 (the diagnosis of which appears to be supported by the medical
records submitted from the [Atlanta] VAMC) does not establish that your workrelated exposure was that cause of that condition or that your work-related
condition/disability had not resolved as previously determined. Of note is that
documentation on file indicates that your retirement benefits through the Office of
Personnel Management were restored effective December 21, 2008; you had not
been working.” (Emphasis in the original.)
In this case, OWCP has intermingled the issue of the termination of appellant’s benefits
in 2008 with his 2009 claim for a recurrence of a medical condition.18 Appellant’s claim for a
recurrence of medical condition has effectively been rejected in the March 25, 2009 letter and in
the 2011 decision denying reconsideration. He has never been issued a merit denial by OWCP
of his claim through an appropriate decision. Appellant is entitled to a decision on the question
of whether he sustained a recurrence of his medical condition in 2009, which necessitated
surgery.
Appellant further contended that the employing establishment failed to cross-train him to
work in a field other than food service. The issue of his vocational cross-training is not pertinent
18

See Sammy Kay Eads, 32 ECAB 1842 (1981).
October 7, 1993).

See also Andrew Kozer, Docket No.92-2077 (issued

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to the underlying issue in this appeal, which is medical in nature, as to whether he had any
residuals or disability causally related to his work injury.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and failing to establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 11, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Petaluma, CA, Employer
__________________________________________

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

Docket No. 15-0854
Issued: June 22, 2015

Case Submitted on the Record

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

JURISDICTION
On March 10, 2015 appellant, through her representative, filed a timely appeal from a
January 28, 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.2
ISSUE
The issue is whether appellant established an emotional condition in the performance of
duty.
1
2

5 U.S.C. §§ 8101-8193.

Appellant initially claimed a respiratory condition as well as an emotional condition. OWCP developed the
respiratory condition and emotional condition separately. It denied appellant’s claim for a respiratory condition by
decision dated February 28, 2014. OWCP conducted a telephonic hearing on October 9, 2014. By decision dated
November 24, 2014, it affirmed its February 28, 2014 decision. OWCP’s November 24, 2014 decision is not on
appeal. Appellant has appealed only the January 28, 2015 decision which denied appellant’s emotional condition
claim. Therefore, the Board does not have jurisdiction over the respiratory issue on the present appeal.

FACTUAL HISTORY
On April 20, 2013 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained an emotional condition due to factors of
her federal employment. She attributed her emotional condition to a pattern of harassment,
retaliation, bullying, and being denied leave. Appellant stopped work in April 2013 and did not
return.
The employing establishment controverted the claim, alleging that appellant filed her
claim in response to an April 12, 2013 letter of warning for failure to maintain regular
attendance. It noted that she held a different position from January 17 to May 4, 2012.
Appellant then voluntarily returned to her prior job.
OWCP issued May 16 and August 9, 2013 letters advising appellant of the additional
evidence needed to establish her claim, including a description and corroboration of the claimed
exposures and work incidents, and a statement from her attending physician explaining how
those work factors would cause the claimed emotional condition.
Appellant responded by July 8, 2013 letter. She explained that her emotional condition
began in January 2012 when she began a new job. Appellant contended that on January 5, 2012
a supervisor tried to induce appellant’s coworkers to apply for the new job because she did not
want appellant under her supervision. She retreated to her former position after two weeks.
Appellant asserted that the employing establishment erred by requesting that she recertify her
Family and Medical Leave Act (FMLA) request on April 16, 2012. She alleged that, after she
was diagnosed with a pulmonary mass and thyroid cancer in 2012, her supervisors denied her
leave requests, although she had been granted FMLA leave in previous years.3 They held
appellant absent without leave (AWOL), and falsified leave documents. Appellant alleged that
on November 5, 2012 her supervisor told her that she had a zero leave balance. She experienced
stress during a November 6, 2012 conversation with another supervisor about leave use.
Appellant also attributed her condition to an April 12, 2013 letter of warning regarding irregular
attendance due to excessive leave use.4 She alleged that on April 24, 2013 when she went to the
employing establishment to pick up paperwork, her supervisors yelled at her, told her she was
not allowed to be there, and ejected her from the premises. Appellant also attributed her
condition to a supervisor allegedly leaving a note to another supervisor about appellant’s leave
use in a photocopier, where it was discovered by a coworker on an unspecified date. She also
asserted that workplace exposures to mold, asbestos, flooding, rodent feces, excess humidity,
lead paint, and unsanitary drinking water adversely affected her mental status. Appellant noted
filing Equal Employment Opportunity (EEO) grievances regarding her allegations of
harassment.5

3

Appellant submitted FMLA approval forms dated July 27, 2009, January 27, 2011, and March 21, 2012.

4

On April 12, 2013 the employing establishment issued appellant a letter of warning for failure to maintain
regular attendance from October 4, 2012 through April 11, 2013.
5

Appellant submitted December 2011 EEO grievance documents that did not contain a final determination.

2

In support of her allegations of supervisory harassment, appellant provided a coworker’s
statement alleging that on January 5, 2012 a supervisor instructed the coworker to apply for a job
appellant wanted. She also submitted statements from six coworkers asserting that on
November 8, 2012 her two supervisors asked appellant to leave the building as she was yelling
loudly and disrupting the work environment. Two coworkers confirmed that on April 24, 2013
both the supervisors asked appellant to leave the building. A coworker alleged that one
supervisor told appellant that she was not allowed at work “in a very mean manner and chased
her out.”
Regarding her allegations of toxic exposures, appellant submitted August 2010,
April 2012, May and July 2013 industrial hygiene surveys noting the abatement of asbestos
flooring, lead paint, and mold on a wooden window sash. Studies showed the presence of
magnesium sulfate, a nonhazardous substance not known to be an allergen, on a concrete deck.6
The employing establishment submitted a September 11, 2013 statement from a
supervisor contesting appellant’s allegations. The supervisor asserted that appellant filed her
claim in response to disciplinary actions for attendance issues. She noted that management made
several attempts to change appellant’s schedule to accommodate her leave requests, but that
appellant refused these offers. The supervisor provided her October 29, November 1, and
November 5, 2012 e-mails to a co-supervisor noting that appellant telephoned in on each of those
days, stating that she would be taking time off although she knew she had no leave available.
Although advised that she would be AWOL, appellant did not report for duty.
A supervisor provided her November 8, 2012 e-mails regarding her discussion that day
with appellant regarding an unauthorized November 7, 2012 absence. Appellant allegedly called
her supervisor a “mean heartless bitch,” causing the other supervisor to end the conversation.
Appellant then left the building.
Appellant also submitted medical evidence. Dr. Monte L. Bible, an attending osteopath
Board-certified in occupational medicine, provided reports from August 21, 2012 to July 24,
2013 relating appellant’s account of workplace harassment and hazardous exposures. He
diagnosed mild, stable depression, and anxiety symptoms. Dr. Leslie Yan Meier, a licensed
clinical psychologist, noted treating appellant from April 17 to June 7, 2013. She related
appellant’s account of supervisory harassment, significant family stresses, and a history of
depression and anxiety. Dr. Meier diagnosed depressive disorder and anxiety disorder not
otherwise specified.7
By decision dated April 16, 2014, OWCP denied appellant’s emotional condition claim
finding that she had not established any compensable factors of employment. It found that the
November 5, 2012 discussions about leave matters with supervisors, and the April 12, 2013 letter
6

On May 7, 2013 the Occupational Safety and Health Administration (OSHA) cited the employing establishment
for obstacles in front of electrical panels, improperly marked exits, and not providing lead test results when
requested.
7

Appellant also submitted medical reports regarding thyroid and respiratory conditions that did not address her
emotional condition claim.

3

of warning were administrative matters not in the performance of duty, and that no error or abuse
was shown. OWCP further found that there was no evidence establishing administrative error or
abuse regarding her December 2011 job bid. It found that appellant did not submit sufficient
evidence to establish as factual her allegations of harassment, bullying, and records falsification.
A November 5, 2012 investigative interview, found someone left a document regarding her use
of leave in a photocopier, that she was asked to recertify her FMLA leave on April 16, 2012, and
that a supervisor told coworkers that appellant was AWOL.
Appellant requested a hearing, held telephonically on November 10, 2014. She alleged
that, after she filed a grievance, the employing establishment rescinded the letter of warning.
Appellant also alleged that her postmaster was dismissed for falsifying records. She contended
that supervisors made her call in every day for three months because they would not accept her
medical certifications. The hearing representative left the record open for 30 days. Appellant
did not submit additional evidence.
By decision dated January 28, 2015, an OWCP hearing representative affirmed the
April 16, 2014 decision, finding that appellant had not established a compensable factor of
employment. She found that appellant did not establish her allegations of harassment,
mistreatment, or bullying. Witness statements established only that appellant spoke to
supervisors, not that they harassed her as alleged. The hearing representative found that there
was no evidence that the employing establishment acted erroneously or abusively with regard to
the administrative matters of leave use, discipline, attendance, job bids, and records processing,
or that supervisors discussed appellant inappropriately. She further found that appellant did not
establish her allegations of stress from working in a “sick building” as the evidence did not
establish that her work environment was hazardous.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.8 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.9
Where disability results from an employee’s reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.10 To establish entitlement to benefits, a claimant must establish a factual
basis for the claim by supporting the allegations with probative and reliable evidence.11 This
8

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

9

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

10

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

11

Ruthie M. Evans, 41 ECAB 416 (1990).

4

burden includes the submission of a detailed description of the employment factors or conditions
which appellant believes caused or adversely affected the condition or conditions for which
compensation is claimed.12
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.13 If a claimant implicates a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.14
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness, or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relationship. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.15 The phrase “while in the
performance of duty” has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of arising out of and in the course of
employment.
In Lillian Cutler,16 the Board noted that workers’ compensation law is not applicable to
each and every injury or illness that is somehow related to an employee’s employment. There
are situations when an injury or illness has some connection with the employment, but
nonetheless does not come within the coverage of workers’ compensation as they are found not
to have arisen out of the employment. When an employee experiences emotional stress in
carrying out his or her employment duties, or has fear and anxiety regarding his or her ability to
carry out his or her duties, and the medical evidence establishes that the disability resulted from
his or her emotional reaction to such situation, the disability is generally regarded as due to an
injury arising out of and in the course of employment. This is true when the employee’s
disability resulted from her emotional reaction to her day-to-day duties. The same result is
reached when the emotional disability resulted from the employee’s emotional reaction to a
special assignment or requirement imposed by the employing establishment or by the nature of
the work.17
12

Effie O. Morris, 44 ECAB 470 (1993).

13

See Norma L. Blank, 43 ECAB 384 (1992).

14

Marlon Vera, 54 ECAB 834 (2003).

15

See 5 U.S.C. § 8102(a).

16

Supra note 10.

17

Id. at 130.

5

In contrast, a disabling condition resulting from an employee’s feelings of job insecurity
per se is insufficient to constitute a personal injury sustained in the performance of duty within
the meaning of FECA. Thus, disability is not covered when it results from an employee’s fear of
a reduction-in-force, unhappiness with doing inside work, desire for a different job, brooding
over the failure to be given work she desires, or the employee’s frustration in not being permitted
to work in a particular environment or to hold a particular position.18 Board case precedent
demonstrates that the only requirements of employment which will bring a claim within the
scope of coverage under FECA are those that relate to the duties the employee is hired to
perform.19
ANALYSIS
Appellant alleged that she sustained an emotional condition due to denial of leave, denial
of FMLA leave, a November 5, 2012 investigative discussion of leave use, being classified as
AWOL, and alleged interference with a job bid. OWCP found that the leave use matters and the
job bid were administrative, noncompensable factors. Therefore, the Board must review whether
the alleged incidents are covered employment factors under FECA.
Leave use is a noncompensable administrative matter unless error or abuse is shown.20 In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.21 To support such a claim, a
claimant must establish a factual basis by providing probative and reliable evidence.22
In support of her allegations, appellant submitted forms showing that the employing
establishment granted her FMLA leave request. Two supervisors provided statements noting
that from October 29 to November 5, 2012 appellant knowingly failed to apply for leave or seek
authorization for absences, instead informing her supervisors that she would take leave in any
case. The supervisors also noted that appellant refused offers of schedule changes or other
accommodations that would have allowed her to see her physician during off hours so she would
not have to use leave. They also advised her that taking leave with no authority would result in
her being charged as absent without leave. Appellant submitted a copy of the April 12, 2013
letter of warning, listing the October and November 2012 dates, AWOL status, as well as other
work absences. Regarding her allegation at the hearing that the employing establishment
rescinded the letter, the Board has held that a subsequent reduction or rescission of such action
by itself does not establish error or abuse.23 The Board finds that under these circumstances,
appellant has not established that the employing establishment acted erroneously or abusively
regarding leave use. Appellant’s supervisors provided a detailed explanation of their actions,
18

Id. at 125.

19

L.R., Docket No. 14-302 (issued June 6, 2014).

20

James P. Guinan, 51 ECAB 604, 607 (2000).

21

Ruth S. Johnson, 46 ECAB 237 (1994).

22

See Barbara J. Nicholson, 45 ECAB 843 (1994).

23

Paul L. Stewart, 54 ECAB 824 (2003); Mary L. Brooks, 46 ECAB 266, 274 (1994).

6

including their attempts to counsel appellant and accommodate her medical appointments.
Therefore, appellant has not established denial of leave and leave use as compensable work
factors.24
Appellant also attributed her condition to a supervisor interfering with a job bid in
January 2012. A coworker noted that on January 5, 2012 a supervisor asked her to apply for the
same position as appellant. However, there is no evidence that the supervisor erred by doing so,
or was otherwise abusive. There is no evidence that the supervisor of the unit where appellant
had bid for a job, was forbidden to discuss the matter or encourage others to apply. An
employee’s dissatisfaction with the way a supervisor performs duties or exercises discretion in
assigning work is not compensable absent error or abuse.25 As appellant did not submit
corroborating evidence establishing error or abuse, she failed to establish a compensable
employment factor in this regard.
Appellant also alleged a pattern of harassment, including November 5, 6, and 8, 2012,
and April 24, 2013 bullying by two supervisors. For harassment to give rise to a compensable
disability under FECA, there must be probative and reliable evidence that harassment or
discrimination did in fact occur.26 Mere perceptions of harassment, retaliation, or discrimination
are not compensable under FECA.27 Appellant did not submit probative evidence corroborating
her allegations of harassment. She provided six witness statements asserting that appellant
yelled at supervisors on November 8, 2012 and was therefore asked to leave. Although one
coworker alleged that one supervisor was “mean” and “chased” appellant on April 24, 2013,
these allegations are vague. Also, the other witness to the incident did not confirm this. The
absence of clear documentation diminishes the validity of appellant’s contentions in this case.
As she has not substantiated her allegations with probative evidence, appellant has not
established a compensable employment factor under FECA with respect to the claimed
harassment.
OWCP also found that appellant had not established several of her allegations as factual.
These include supervisors tampering with her leave documents, a supervisor leaving a note about
her leave use in a photocopier, a November 5, 2012 investigative interview, and toxic or
hazardous workplace exposures. The Board finds that appellant did not submit evidence
corroborating that supervisors tampered with her leave documents, or that a supervisor left a note
about leave use in a photocopier. Industrial hygiene surveys with laboratory analyses did not
establish hazardous levels of any substances in appellant’s work area, or that she was otherwise
exposed to toxins at the employing establishment. Regarding a November 5, 2012 investigative
interview, the Board notes that a supervisor noted speaking with appellant about leave use on
November 5, 2012. However, there is no evidence that this conversation was an investigative
interview. Therefore, OWCP correctly found that this allegation was not established as factual.
24

Janice I. Moore, 53 ECAB 777 (2002).

25

Donney T. Drennon-Gala, 56 ECAB 469 (2005); Linda J. Edward-Delgado, 55 ECAB 401 (2004).

26

Supra note 14.

27

Kim Nguyen, 53 ECAB 127 (2001).

7

Therefore, the Board finds that appellant did not establish that she sustained an emotional
condition as alleged, as she did not establish any compensable factors of employment.28
On appeal, appellant’s representative asserts that appellant provided sufficient evidence
to establish that she worked in a “sick building” and in a hostile environment. He alleges that
building repairs required by OSHA contributed to appellant’s condition. As stated above, the
industrial hygiene surveys of record do not establish that appellant was exposed to any hazardous
substances or that she worked in an unsanitary or unsafe environment.
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.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 28, 2015 is affirmed.
Issued: June 22, 2015
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
28

As appellant did not establish any compensable factors of employment, the medical evidence need not be
considered. Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, ENGLEWOOD POST
OFFICE, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1719
Issued: March 8, 2021

Case Submitted on the Record

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

JURISDICTION
On August 12, 2019 appellant, through counsel, filed a timely appeal from a July 12, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish more than 13 percent
permanent impairment of her left lower extremity, for which she previously received schedule
1

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

5 U.S.C. § 8101 et seq.

award compensation and whether she has established permanent impairment of her right lower
extremity, warranting a schedule award.
FACTUAL HISTORY
On August 25, 2006 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sprained ligaments in both knees as a result of
performing repetitive work duties. She noted that she first became aware of her condition on
August 3, 2006 and realized its relationship to her federal employment on August 21, 2006. On
the reverse side of the claim form, the employing establishment indicated that appellant stopped
work on August 21, 2006. OWCP initially accepted appellant’s claim for bilateral knee sprain. It
later expanded its acceptance of her claim to include lateral and medial meniscus tears, internal
derangement, synovitis/tenosynovitis, old bucket handle tear of the medial meniscus of the left
knee, and aggravation of preexisting left knee osteoarthritis.
OWCP authorized left knee abrasion arthroplasty with partial synovectomy, which was
performed on January 24, 2007, left knee arthroscopic excision of a torn medial and lateral
meniscus, chondroplasty, partial synovectomy, and debridement of a partial tear of the anterior
cruciate ligament (ACL), which were performed on September 18, 2007, left knee arthroscopy
with chondroplasty, debridement of a partial tear involving the ACL, and partial synovectomy of
the left knee, which were performed on November 20, 2008, arthroscopy with chondroplasty and
removal of loose bodies of the left knee, which was performed on November 6, 2013, and left knee
arthroscopy with resection of a tear of the lateral meniscus, which was performed on July 13, 2017.
By decisions dated January 25 and May 11, 2010 and March 26, 2015, OWCP granted
appellant schedule awards totaling 13 percent permanent impairment of the left lower extremity.
On February 8, 2018 appellant filed a claim for an additional schedule award (Form CA-7).
In a development letter dated February 12, 2018, OWCP requested that appellant submit a
detailed report from her treating physician which provided an impairment evaluation pursuant to
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3 It specifically requested an opinion as to whether she had reached
maximum medical improvement (MMI), a diagnosis upon which the impairment was based, a
detailed description of objective findings and subjective complaints, and a detailed description of
any permanent impairment under the applicable criteria and tables in the A.M.A., Guides.
In response, appellant, through counsel, submitted an April 9, 2018 medical report from
Dr. Neil Allen, a Board-certified internist and neurologist, who provided a history of clinical
presentation. He described appellant’s history of injury and medical treatment. Dr. Allen utilized
the diagnosis-based impairment (DBI) rating method of the sixth edition of the A.M.A., Guides to
calculate appellant’s bilateral knee permanent impairment. Regarding impairment of the right
lower extremity, he found that, under Table 16-3, page 509, Knee Regional Grid, the historical
data, medical records, and physical examination findings of a knee sprain/strain represented a class
one impairment with a grade C or default value of two percent lower extremity permanent
3

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

2

impairment. Dr. Allen referenced Table 16-6, page 516, regarding appellant’s functional history
of an American Academy of Orthopedic Surgeons (AAOS) Lower Limb Questionnaire score of
62 and antalgic gait, and assigned a grade modifier for functional history (GMFH) of 2. He
referenced Table16-7, page 517, and found a grade modifier for physical examination (GMPE) of
2, based on consistently documented moderate palpatory findings with observed abnormalities,
stability, negative Lachman’s test, no motion deﬁcit or alteration in alignment/deformity compared
to unaffected side, and no muscle atrophy. Dr. Allen assigned a grade modifier for clinical studies
(GMCS) of 1 in accordance with Table 16-8, page 519, based on April 9, 2018 bilateral knee xray findings.4 Using the net adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX), he calculated that appellant had a net adjustment of (2-1)+ (2-1) + (1-1) = 2, which
warranted movement two places to the right of the default value at class C to class E, totaling three
percent permanent impairment of the right lower extremity.
Regarding permanent impairment of the left lower extremity, Dr. Allen again utilized
Table 16-3 and identified the diagnoses of total medial and lateral menisectomies as a class C or
22 percent impairment. He again utilized Table 16-6, page 516, and assigned a GMFH of 2 based
on appellant’s functional history of an AAOS Lower Limb Questionnaire score of 62 and antalgic
gait. Dr. Allen again assigned a GMPE of 2 in accordance with Table16-7, page 517, based on his
examination findings. Additionally, he again assigned a GMCS of 1 in accordance with Table 168, page 519, based on the April 9, 2018 bilateral knee x-ray findings. Dr. Allen applied the net
adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) to find a net adjustment
of (2-2)+ (2-2) + (1-2) = -1, which warranted movement one place to the left of the default value
at class C to class B, totaling 20 percent permanent impairment of the left lower extremity.
On May 14, 2018 OWCP routed Dr. Allen’s report, a statement of accepted facts (SOAF),
and the case record to Dr. Jovito Estaris, Board-certified in occupational medicine serving as a
district medical adviser (DMA), for review and evaluation of appellant’s permanent impairment
pursuant to the sixth edition of the A.M.A., Guides. The DMA was also asked to provide a date
of MMI.
In a May 29, 2018 report, the DMA noted that he had reviewed the case file and determined
that appellant reached MMI on April 9, 2018. He disagreed with Dr. Allen’s left knee permanent
impairment rating and determined that the diagnosis of left knee medial and lateral menisci tears
with partial lateral and medial meniscectomies amounted to a class 1 impairment with a default
value of 10 percent in accordance with Table 16-3, page 509 of the sixth edition of the A.M.A.,
Guides. Utilizing Table 16-6, page 516, the DMA assigned a GMFH of 2, a GMPE of 2 under
Table 16-7, page 517, and found a GMCS was not applicable as MRI scans which showed
meniscus injuries were used to establish the diagnosis. Utilizing the net adjustment formula, he
found a net adjustment of 2, which warranted movement two places to the right from the default
value of grade C to E, totaling 13 percent left lower extremity permanent impairment. The DMA
also used the ROM methodology and calculated, under Table 16-23, page 549 that 130 degrees of
flexion and 0 degrees of extension each resulted in 0 percent permanent impairment of the left

4

The Board notes that the April 9, 2018 bilateral knee x-rays are not contained in the case record.

3

lower extremity. He found that the DBI method provided the higher impairment rating at 13
percent permanent impairment and should be used as the method of evaluation.
The DMA explained the difference between his left lower extremity impairment rating and
Dr. Allen’s impairment rating was the class used in the DBI grid. He indicated that Dr. Allen used
class 2 for a meniscal injury while the criteria for the DBI grid was total (medial and lateral). The
DMA reviewed the operative reports of record which showed appellant only had partial medial
and lateral meniscectomies. He maintained that use of class 2 was not appropriate as there was no
operative report indicating that total medial and lateral meniscectomies were performed.
Regarding impairment to the right lower extremity, the DMA noted the accepted condition of
bilateral knee sprain and an August 3, 2006 date of injury. He related that sprains and strains
typically resolve in four to eight weeks after an injury. The DMA advised that appellant’s knee
sprain resolved many years ago. He indicated that persistent symptoms regarding the right knee
were not due to a strain or sprain. There was another underlying pathology to explain persistent
symptoms. The DMA noted that there were no other accepted conditions for the right knee. He
concluded, therefore, that no right knee impairment rating was warranted.
OWCP, in a June 7, 2018 letter, requested that Dr. Allen review the DMA’s May 29, 2018
report and address the deficiencies raised in his report.
In an undated addendum to his April 9, 2018 report, Dr. Allen reviewed the DMA’s report
and concurred with his calculations that appellant had 13 percent permanent impairment of the left
lower extremity. With respect to the right lower extremity, he reiterated his prior impairment
calculations based on a diagnosis of right knee sprain/strain and concluded that appellant had three
percent permanent impairment of the right lower extremity.
On July 18, 2018 OWCP requested that the DMA review Dr. Allen’s April 9, 2018
addendum report and provide an opinion on whether he properly applied the A.M.A., Guides to
his findings.
In a report dated July 23, 2018, the DMA reviewed Dr. Allen’s April 9, 2018 report and
restated his prior opinion that appellant had no right lower extremity permanent impairment due
to her accepted right knee strain. He reiterated his prior explanation that her condition had resolved
many years ago and that her current right knee symptoms were related to some other pathology.
The DMA also provided an additional explanation in support of his impairment opinion. He noted
that a December 27, 2017 report from Dr. Scott Rubenstein, a Board-certified orthopedic surgeon,
an August 8, 2017 right knee MRI scan, and x-ray findings referenced by Dr. Allen in his April 9,
2018 addendum report established that appellant’s right knee symptoms were due to arthritis.
By decision dated January 10, 2019, OWCP denied appellant’s claim for an additional
schedule award, finding that the medical evidence of record did not support more than 13 percent
permanent impairment of her left lower extremity for which she had previously received schedule
award compensation. It further found that the medical evidence of record was insufficient to
establish entitlement to a schedule award for her right lower extremity.
On January 15, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on May 14, 2019.

4

By decision dated July 12, 2019, the hearing representative affirmed the January 10, 2019
schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 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.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 After the CDX is determined
from the Knee Regional Grid (including identification of a default grade value), the net adjustment
formula is applied using the GMFH, GMPE, and GMCS. The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).10 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.11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with OWCP’s DMA providing rationale for
the percentage of impairment specified.12
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician (known as a referee physician or impartial medical specialist) who shall make an

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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).
9

See A.M.A., Guides 509-11 (6th ed. 2009).

10

Id. at 515-22.

11

Id. at 23-28.

12

See supra note 8 at Chapter 2.808.6(e) (March 2017).

5

examination.13 This is called a referee examination and OWCP will select a physician who is
qualified in the appropriate specialty and who has no prior connection with the case.14
When 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.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.
Regarding impairment to the left lower extremity, appellant’s physician, Dr. Allen, and the
DMA, Dr. Estaris, ultimately agreed that appellant had 13 percent permanent impairment. The
physicians utilized the DBI method for rating appellant’s permanent impairment due to her
accepted left knee medial and lateral menisci tears with partial lateral and medial meniscectomies
under Table 16-3, Knee Regional Grid, page 511 of the sixth edition of the A.M.A., Guides. The
Board finds that the medical evidence does not establish more than 13 percent impairment of
appellant’s left lower extremity for which she previously received a schedule award.16
The Board further finds that the case is not in posture for decision regarding whether she
has met her burden of proof to establish permanent impairment of her right lower extremity,
warranting a schedule award.
Regarding impairment to the right lower extremity, Dr. Allen used the DBI method and
calculated, under Table 16-6, page 516, that appellant had three percent right lower extremity
permanent impairment due to the accepted knee sprain/strain. He provided his impairment
calculations within his April 9, 2018 and undated addendum reports.
The DMA reviewed Dr. Allen’s reports and explained that appellant had no right lower
extremity permanent impairment as the accepted bilateral knee sprain had resolved many years
ago, noting that the condition typically resolved within four to eight weeks after an injury.
Furthermore, he explained that her persistent right knee symptoms were due to arthritis as
supported by objective findings of record. The DMA opined that appellant had no permanent
impairment due to her accepted bilateral knee sprain. The Board finds that there remains an
unresolved conflict in medical opinion between Dr. Allen and the DMA regarding whether
appellant’s work-related bilateral knee sprain had resolved, and whether appellant had a permanent
impairment of the right lower extremity causally related to the accepted injury. As noted above,
13

5 U.S.C. § 8123(a); D.D., Docket No. 19-1037 (issued November 6, 2019).

14

20 C.F.R. § 10.321.

15

S.J., Docket No. 19-0623 (issued October 28, 2019); Barry Neutuch, 54 ECAB 313 (2003).

16

See K.L., Docket No. 19-0090 (issued May 3, 2019); D.K., Docket No. 18-0135 (issued August 20, 2018).

6

if there is disagreement between an employee’s physician and the DMA, OWCP shall appoint a
referee physician or impartial medical specialist who shall make an examination.17 The case is
therefore remanded for OWCP to refer appellant to an appropriate specialist for an impartial
medical examination pursuant to 5 U.S.C. § 8123(a) to determine the extent and degree of right
lower extremity impairment in accordance with the sixth edition of the A.M.A., Guides.18
Following this and other such further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation. The Board further finds that this case is not in posture for decision
regarding whether she has established permanent impairment of her right lower extremity,
warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded to
OWCP for further action consistent with this decision of the Board.19
Issued: March 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
17

Supra note 13.

18

See S.J., supra note 15; P.R., Docket No. 18-0022 (issued April 9, 2018); G.W., Docket No. 17-0957 (issued
June 19, 2017).
19
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board effective January 20, 2021.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-0743
Issued: January 23, 2018

Case Submitted on the Record

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

On February 14, 2017 appellant filed a timely appeal from a September 29, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP), File No. xxxxxx952,
which denied appellant’s occupational disease claim. The appeal was docketed as No. 17-0743.
On September 30, 2015 appellant filed an occupational disease claim (Form CA-2) and
attributed his bilateral wrist tendinitis and aggravation of rheumatoid arthritis to his work duties.
He noted that he was initially instructed to file a recurrence claim, but later was told to file a new
occupational disease claim. OWCP assigned the claim File No. xxxxxx952. Appellant’s
supervisor noted that appellant stopped work on November 15, 2013 and was in a leave status
from November 15, 2013 until he retired through disability retirement in February 2015. She
also noted that appellant had previously received a schedule award for a bilateral hand and wrist
condition through a February 21, 2008 occupational disease claim, assigned File No. xxxxxx396.
The claim was accepted for bilateral wrist tendinitis.
Appellant reported that his bilateral wrist and hand pain began in January 2008 and
became worse after working for five more years with repetitive motion. He listed his duties as
repetitive work of casing mail, opening vehicle door, and delivery of a large volume of mail on
his route. Appellant noted that the pain in his wrists and hands was the same condition he had in
2008 which was approved by OWCP in File No. xxxxxx396.

In a December 4, 2015 decision, OWCP denied appellant’s occupational disease claim
finding that he had not submitted medical evidence of a medical diagnosis in connection with his
employment duties. Appellant requested an oral hearing from OWCP’s Branch of Hearings and
Review which was held on August 16, 2016. By decision dated September 29, 2016, OWCP’s
hearing representative affirmed OWCP’s December 4, 2015 decision with modification.1 She
found that appellant had established a medical diagnosis. However, OWCP’s hearing
representative found that appellant had not established causal relationship between his injury and
the specific condition for which compensation was claimed.
The Board has duly considered the matter and notes that the case is not in posture for
decision. OWCP procedures provide for combining case files where correct adjudication
depends on 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.2 In the instant case, appellant asserted that he initially filed a
recurrence of disability claim for the February 21, 2008 occupational disease injury, to which
OWCP had assigned File No. xxxxxx396. He was then instructed to file an occupational disease
claim and assigned File No. xxxxxx952. OWCP thereafter denied the claim.
The record reveals that appellant’s previous February 21, 2008 occupational disease
employment injury was assigned File No. xxxxxx396 and that the injury was to the same part of
the body. The factual and medical evidence pertaining to appellant’s February 21, 2008
employment injury in File No. xxxxxx396, however, is not contained in the case record. OWCP,
failed to properly combine or request combination of the present case record with the record of
the February 21, 2008 employment injury, which appellant asserted was the initial cause of his
current conditions.3
The case will be remanded to OWCP to combine case file numbers xxxxxx396 and
xxxxxx952 and determine whether appellant sustained a new occupational disease injury.
Following this and such other development as deemed necessary, OWCP shall issue an
appropriate merit decision on appellant’s claim.

1

OWCP’s hearing representative noted that appellant had a previously accepted claim for bilateral wrist tendinitis
dated February 21, 2008. File No. xxxxxx396. He filed a claim for recurrence of this claim which was last denied
on December 10, 2014. Appellant filed a claim for right shoulder injury in 2011 which OWCP accepted for
disorders of the bursa and tendons of the right shoulder. File No. xxxxxx935. Appellant also filed a claim for
recurrence of this condition which OWCP denied. OWCP suspended his compensation benefits under this claim
number on June 2, 2016.
2
P.G., Docket No. 15-1806 (issued October 4, 2016); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance and Management, Chapter 2.400.8(c) (February 2000).

2

IT IS HEREBY ORDERED THAT the September 29, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this order of the Board.3
Issued: January 23, 2018
Washington, DC

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

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

3
Colleen Duffy Kiko, Judge, participated in the preparation of this order, but was no longer a member of the
Board effective December 11, 2017.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, REGIONAL CENSUS
CENTER -- DENVER, Dallas, TX, Employer
__________________________________________

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

Docket No. 10-1280
Issued: February 1, 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 April 6, 2010 appellant filed a timely appeal from a November 16, 2009 merit
decision of the Office of Workers’ Compensation Programs and a March 8, 2010 nonmerit
decision denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a back injury in the performance of duty on August 20, 2009, as alleged; and
(2) whether the Office properly refused to reopen appellant’s case for further reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant requests that the Office pay outstanding medical bills in the amount
of $1,489.30 for services rendered on August 20, 2009.

FACTUAL HISTORY
On August 26, 2009 appellant, then a 55-year-old Census Coverage Measurement (CCM)
lister, filed a traumatic injury claim (Form CA-1) alleging that on August 20, 2009 he sustained a
muscle strain in a motor vehicle accident. He was driving from his home in Cheyenne, WY to
training in Greeley, CO on August 20, 2009 when a female driver failed to yield, their vehicles
collided, and appellant’s car rolled over into an irrigation ditch. Appellant was taken to the
emergency room at North Colorado Medical Center by John Bredehoft, his supervisor, and
treated that day. Mary Matthews, appellant’s supervisor, reported that he was an intermittent
employee and was injured in the performance of duty. She noted that appellant stopped work on
August 20, 2009 and returned to work on August 24, 2009.
Appellant submitted an August 20, 2009 motor vehicle accident report. At 7:30 a.m. he
was driving to Greeley, CO from Cheyenne, WY when he collided into another car. Appellant
reported damage to his roof alignment, which was caved in from the rollover.
On September 2, 2009 the Office requested additional factual and medical information
from appellant within 30 days.
The Office letter dated September 2, 2009 was returned for an incorrect mailing address
and was resent on October 7, 2009 along with a request for the employing establishment to
affirm travel within the performance of official duties.
In a triage assessment dated August 20, 2009 Kimberly Malone, a registered nurse,
reported that appellant was involved in a rollover that day while wearing a seatbelt, had no pain
and was “just here to be checked out.”
A nursing assessment dated August 20, 2009 by Aries Simeon, a registered nurse,
reported that appellant complained of “muscle tightness in his back and legs” and was discharged
to his home with orders not to drive and prescriptions for vicodin and naproxen.
An initial assessment form dated August 20, 2009 by Rodger Anders, a certified
physician assistant, reported that appellant was involved in a “MVA rollover” on
August 20, 2009. He noted that appellant had mild stiffness in his back, diagnosed lumbar
muscle strain and ordered an x-ray. Mr. Anders indicated that appellant would be unable to work
from August 20 to 22, 2009. He reported that appellant’s neck and back x-rays were negative.
By decision dated November 16, 2009, the Office denied the claim for compensation.
Although the evidence was sufficient to establish that the employment incident occurred at the
time, place and in the manner alleged, there was insufficient medical evidence that provided a
diagnosis connected to the August 20, 2009 employment incident.
On March 4, 2010 appellant requested reconsideration and submitted a narrative
statement and duplicate copies of the hospital assessment reports.
By decision dated March 8, 2010, the Office denied appellant’s request for
reconsideration. It found that he did not submit sufficient evidence to warrant a merit review of
the November 16, 2009 Office decision, show that the Office erroneously applied or interpreted a
2

point of law, or advanced a point of law or fact not previously considered. Appellant did not
submit relevant and pertinent new evidence not previously considered by the Office. 1
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury3 was
sustained in the performance of duty, as alleged, and that any disability or medical condition for
which compensation is claimed is causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’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 employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.6

1

The Board notes that, following the issuance of the March 8, 2010 Office decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before the
Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence,
together with a formal written request for reconsideration to the Office, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606.
2

5 U.S.C. §§ 8101-8193.

3

The Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must be caused by
external force, including stress or strain, which is identifiable as to time and place of occurrence and member or
function of the body affected. 20 C.F.R. § 10.5(ee).
4

E.K., 61 ECAB ___ (Docket No. 09-1827, issued April 21, 2010). See Steven S. Saleh, 55 ECAB 169 (2003);
Elaine Pendleton, 40 ECAB 1143 (1989).
5

Id. See John J. Carlone, 41 ECAB 354 (1989); Shirley A. Temple, 48 ECAB 404 (1997).

6

Id. See Gary J. Watling, 52 ECAB 278 (2001).

3

ANALYSIS -- ISSUE 1
There is no dispute that the motor vehicle accident occurred on August 20, 2009, as
alleged. Therefore, the issue is whether appellant submitted sufficient medical evidence to
establish that the employment incident caused an injury.
The August 20, 2009 triage assessment and the August 20, 2009 nursing assessment are
not probative to causal relationship. The Board has held that registered nurses are not physicians
under the Act.7 Therefore, these reports are not probative medical evidence.8
Similarly, the assessment form from Rodger Anders, a certified physician’s assistant, is
not probative evidence. The Board finds that the August 20, 2009 note of Mr. Anders’ opinion
does not constitute medical evidence from a physician. Section 8101(2) of the Act defines the
term “physician” to include surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by state
law.9 The Board has found that a physician’s assistant is not a physician as defined under the
Act.10 Therefore any report from such individual does not constitute competent medical
evidence which, in general, can only be given by a qualified physician.11 Thus, appellant did not
meet his burden of proof to establish causal relationship.
As appellant has not submitted any rationalized medical evidence to support his claim
that he sustained an injury causally related to the August 20, 2009 employment incident, he has
failed to meet his burden of proof to establish a claim.
The Office, however, did not adjudicate the issue of appellant’s incurred medical
expenses. On appeal, appellant requested payment of medical bills for an x-ray and emergency
care services rendered on August 20, 2009 at North Colorado Medical Center. Ordinarily, the
employing establishment will authorize treatment of a job-related injury by providing the
employee a properly executed (Form CA-16) within four hours.12 In this case, the record does
not contain a Form CA-16 or any other authorization from the Office for medical treatment.
However, under section 8103 of the Act, the Office has broad discretionary authority to approve
7

5 U.S.C. § 8101(2).

8

E.K., supra note 4. See Joseph P. Bennett, 38 ECAB 484 (1987); Betty G. Myrick, 35 ECAB 922 (1984).

9

Supra note 7.

10

E.K., supra note 4; Richard E. Simpson, 57 ECAB 668 (2006); George H. Clark, 56 ECAB 162 (2004);
Vickey C. Randall, 51 ECAB 357 (2000); Curtis L. Lord, 33 ECAB 1481 (1982); Guadalupe Julia Sandoval, 30
ECAB 1491 (1979).
11

Ricky S. Storms, 52 ECAB 349 (2001). See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as
physicians assistants, nurses and physical therapists are not competent to render a medical opinion under the Act);
Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can only be given by a
qualified physician).
12

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).

4

unauthorized medical care which it finds necessary and reasonable in cases of emergency or
other unusual circumstances.13
Appellant’s supervisor transported him to the emergency room at North Colorado
Medical Center for examination immediately after the employment incident. The Office did not
adjudicate whether emergency or unusual circumstances were present.14
Although the Office adjudicated and denied appellant’s claim of injury, it did not
adjudicate the issue of whether he should be reimbursed for medical expenses incurred. It is
required to exercise its discretion to determine whether medical care has been authorized, or
whether unauthorized medical care involved emergency or unusual circumstances, and is
therefore reimbursable regardless of whether the underlying claim for benefits has been accepted
or denied.15 The case will be remanded for further development of this issue.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act16
the Office’s regulations provide that a timely request for reconsideration in writing may be
reviewed on its merits if the employee has submitted evidence or an argument that either:
(1) shows that the Office erroneously applied or interpreted a specific point of law; or
(2) advances a relevant legal argument not previously considered by the Office; or (3) or
constitutes relevant and pertinent new evidence not previously considered by the Office.17
Section 10.608(b) of Office regulations provide that when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.18
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.19
ANALYSIS -- ISSUE 2
In support of his March 4, 2010 reconsideration request, appellant submitted an undated
narrative statement. He repeated his description of the August 20, 2009 employment incident.
13

5 U.S.C. § 8103; 20 C.F.R. § 10.304. See L.B., Docket No. 10-469 (issued June 2, 2010); see also Federal
(FECA) Procedure Manual Chapter 3.300.3(a)(3), supra note 11.
14

E.K., supra, note 4.

15

Michael L. Malone, 46 ECAB 957 (1995). See Herbert J. Hazard, 40 ECAB 973 (1989).

16

5 U.S.C. § 8101 et seq. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
17

20 C.F.R. § 10.606(b)(2). See E.K., supra note 4; D.K., 59 ECAB 141 (2007).

18

E.K., supra note 4; K.H., 59 ECAB 495 (2008).

19

Eugene F. Butler, 36 ECAB 393 (1984).

5

Appellant stated that he was involved in a motor vehicle accident, rolled over into a water ditch,
and then taken to the emergency room by his supervisor despite his insistence that he was “fine.”
He reported that he was x-rayed and released on August 20, 2009. Appellant did not argue that
the Office erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by the Office. The Office denied his claim for
compensation based on the lack of medical evidence. This is a medical question. Appellant’s
statement is not relevant and pertinent and thus is not sufficient to require the Office to reopen
his claim for consideration of the merits.20
Appellant also resubmitted copies of the assessments by Ms. Malone, Mr. Simeon and
Mr. Anders. The Board notes that this evidence did not require reopening his case for merit
review because it had previously been considered in the Office’s November 16, 2009 decision.
As the reports repeat evidence already of case record, they are not relevant and pertinent new
evidence. Appellant has not established a basis for reopening his case.21
Appellant did not submit any evidence to show that the Office erroneously applied or
interpreted a specific point of law, or advances a relevant legal argument not previously
considered by the Office and did submit new evidence. As he did not meet any of the necessary
requirements, he is not entitled to further merit review.22
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury to his back on August 20, 2009 in the performance of duty, as
alleged. The Board also finds that the Office properly denied his request for reconsideration
without a merit review. The case will be returned to the Office for consideration of whether
appellant’s medical expenses related to his treatment on August 20, 2009 should be reimbursed.

20

T.E., 108 LRP 22579 (Docket No. 07-2227, issued March 19, 2008).

21

D.K., supra note 17; see also Eugene F. Butler, supra note 19; (the Board has held that the submission of
evidence which does not address the particular issue involved does no constitute a basis of reopening a case.
22

L.H., 59 ECAB 253 (2007).

6

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 and November 16, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed. The case is remanded
for further development of incurred medical expenses.
Issued: February 1, 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

7