United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, East Orange, NJ, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-1309
Issued: October 21, 2014

Case Submitted on the Record

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

On May 19, 2014 appellant, through her representative, filed a timely application for
review of the April 11, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP), which denied reconsideration. She argued that OWCP’s delay in denying
her request jeopardized her right to appeal the merits of her case to the Board.
The most recent merit decision in this case is OWCP’s October 11, 2013 decision finding
that the medical opinion evidence was insufficient to establish continuing residuals from the
On November 19, 2013 OWCP received appellant’s
accepted medical conditions.1
reconsideration request of the same date.
The Board finds that appellant is entitled to a merit review of her case. When a
reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the claimant’s
1

On May 17, 2011 a patient stepping off an examination table stumbled and fell into appellant’s left side as she
sat at her desk. OWCP accepted her claim for aggravation of lumbar disc displacement with myelopathy and
aggravation of lumbar postlaminectomy syndrome. Effective March 11, 2012, OWCP terminated benefits on the
grounds that the weight of the medical evidence established that appellant had returned to her preinjury status.
Thereafter, appellant filed several reconsideration requests seeking to reestablish benefits for the accepted
aggravations.

right to review of the merits of the case by the Board, OWCP should conduct a merit review.2
Appellant had 180 days, or until April 9, 2014, to appeal OWCP’s October 11, 2013 merit
decision to the Board.3 OWCP received her reconsideration request within 39 days but did not
issue its denial until April 11, 2014, two days after her appeal right had expired. Thus, OWCP’s
delay jeopardized, indeed denied, appellant’s right to appeal the merits of her case.
Accordingly, the Board will reverse OWCP’s April 11, 2014 decision and remand the
case for a merit review and an appropriate final decision on appellant’s claim for continuing
benefits.4
IT IS HEREBY ORDERED THAT the April 11, 2014 decision of the Office of
Workers’ Compensation Programs is reversed and the case remanded for further action.
Issued: October 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.a, (October 2011).

3

20 C.F.R. § 501.3(e).

4

E.g., Joseph L. Cabral, 44 ECAB 152 (1992) (remanding the case for a merit decision where OWCP delayed
more than 10 months in denying reconsideration).

2


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
P.A., Appellant
and
U.S. POSTAL SERVICE, PRIORITY MAIL
POSTAL PROCESSING CENTER, Phoenix, AZ,
Employer
__________________________________________

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

Docket No. 20-0061
Issued: January 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On October 7, 2019 appellant filed a timely appeal from a September 26, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decisions, dated August 9, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the September 26, 2019 decision. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On June 8, 2015 appellant, then a 52-year-old clerk/postal processing clerk, filed a
traumatic injury claim (Form CA-1) alleging that on that date she was putting away a heavy
package when her right leg snapped while in the performance of duty. OWCP initially accepted
the claim for right knee and leg sprain. Subsequently, it expanded acceptance of the claim to
include the additional condition of temporary aggravation of right knee unilateral primary
osteoarthritis. OWCP paid intermittent wage loss on the supplemental rolls as of July 21, 2015.
On September 6, 2016 appellant underwent right knee arthroscopy with tricompartmental
chondroplasty. On October 10, 2016 she returned to modified duty. On March 21, 2017 appellant
underwent right total knee arthroplasty. She returned to work full time with restrictions on
July 14, 2017.
On July 15, 2017 appellant accepted a full-time modified job offer which indicated that her
tour of duty would be from 7:00 a.m. to 3:50 p.m.
By decision dated January 25, 2018, OWCP granted appellant a schedule award for 31
percent permanent impairment of the right lower extremity. The period of the award ran from
October 6, 2017 to June 22, 2019.
In a March 16, 2018 report, Dr. Michael Steingart, an osteopath specializing in orthopedic
surgery and sports medicine, provided a second opinion examination regarding appellant’s work
capacity. He determined that she was capable of working eight hours per day with sedentary work
restrictions.
In a May 4, 2018 report, Dr. Sherwood Duhon, a Board-certified orthopedic surgeon,
examined appellant. He noted that appellant wanted to work eight hours for four days per week,
with one day off for rest. Dr. Duhon provided updated work restrictions indicating that she should
perform sedentary work eight hours per day, four days per week.
On May 15, 2018 appellant accepted an assignment change. The days she worked were
reduced from five to four days per week. Appellant’s tour of duty was listed as from 8:50 p.m. to
5:00 a.m.
On June 7, 2018 appellant filed wage-loss compensation claims (Form CA-7) seeking
compensation for leave without pay (LWOP) for the periods April 28 to May 11, 2018 and May 12
to 25, 2018, including night differential and Sunday premium. On a June 4, 2018 time analysis
(Form CA-7a) she claimed four hours of LWOP due to an FCE appointment and for May 6, 8, 13,
and 20, 2018, she claimed eight hours of LWOP each day and indicated that her physician had
changed her work restrictions.
In a development letter dated June 12, 2018, OWCP advised appellant that it had received
her claim for compensation for the period April 28, 2018 and continuing. It requested that she
2

submit medical evidence to establish that she was required to reduce her workdays from five to
four days per week. OWCP afforded appellant 30 days to submit the necessary evidence.
In a June 18, 2018 statement, appellant alleged that she was entitled to night differential
because on September 16, 2019, the employing establishment had transferred her to work nights
from 8:30 p.m. to 5:00 a.m.
In a July 5, 2018 statement, appellant indicated that Dr. Duhon had explained to her that
the reason for reducing her work hours was for her to rest. However, Dr. Duhon’s office declined
to change his notes, which indicated that she desired to work four days per week.
By two separate decisions, also dated August 9, 2018, OWCP addressed appellant’s claims
for compensation for the periods April 28 to May 11, 2018 and May 12 to 25, 2018.3
In one decision it informed her that her payment for the period April 28 to May 11, 2018
was issued on August 9, 2018 and she should receive payment within two weeks. Regarding the
period May 12 to 25, 2018, OWCP explained that the claim was denied as the medical evidence
of record did not establish that appellant was disabled during this time period. Regarding the claim
for night differential, it found that the fact that the employing establishing accommodated her
request did not create entitlement to night differential.
In a separate decision dated August 9, 2018, OWCP denied appellant’s claims for
compensation for the same periods April 28 to May 11, 2018, and May 12 to 25, 2018. It
explained, in part, that the claims were denied because she received a schedule award for the period
October 6, 2017 to June 22, 2019. OWCP noted that when the schedule award ended, appellant
could resubmit her claim for May 6 and 7, 2018. However, it also denied the claim from May 12
to 25, 2018 finding that the medical evidence of record did not establish that she was disabled
during this time period. OWCP also denied appellant’s claim for loss of night differential, finding
that her July 15, 2017 job offer was 7:00 a.m. to 3:30 p.m. and she was not earning night
differential. It explained that her new modified position was an accommodation to her request to
be reduced to four days per week. OWCP found that the fact that the employing establishment
accommodated appellant’s request did not create entitlement to a night differential.
On August 14, 2019 OWCP received appellant’s request for reconsideration. Appellant
argued that she did not have a choice when she was moved to nights on September 10, 2017. She
noted that on August 6, 2018 she was transferred back to Tour 2, and her hours were changed to
10:00 a.m. until 6:30 p.m., with Monday, Tuesday, and Wednesday off.
OWCP received a letter dated September 10, 2017, from the employing establishment’s
facility manager which indicated that, effective September 16, 2017, appellant’s tour of duty
would be from 8:50 p.m. to 5:00 a.m.
OWCP subsequently received October 13 and 15, 2015 laboratory tests; March 29, 2017
x-rays reports; CA-1032 forms; a January 24, 2018 medical limitation notification to supervisors;
a copy of Dr. Steinhart’s March 16, 2018 work restrictions; a May 2, 2018 FCE; a May 15, 2018
3

In a separate decision dated August 9, 2018, OWCP denied appellant’s request to change physicians.

3

work status change; October 22, 2018 x-rays of the right knee; an October 22, 2018 request for a
bone scan and hinged knee wrap; November 20 and 21, 2018 office notes from a physician
assistant; October 23 and November 15, 2018 diagnostic tests; a December 17, 2018 bone imaging
scan; a pay stub request for donated leave; an undated letter pertaining to appellant’s grievance
related to being moved from a tour; and copies of previously submitted claims for compensation.
OWCP also received March 2 and October 22, 2018 reports from Dr. Duhon, who repeated
his previous findings and opinions. Dr. Duhon also completed duty status reports of the same date.
In an October 23, 2018 report, Dr. John Thompson, an osteopath specializing in orthopedic
surgery, diagnosed pain in the right knee, presence of right artificial knee joint, arthrofibrosis, and
right knee effusion. He also submitted October 29, 2018 notes that repeated his diagnoses. In a
March 26, 2019 report, Dr. Thompson noted that appellant had reached maximum medical
improvement. He indicated that she had full range of motion and stability of the knee.
By decision dated September 26, 2019, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It noted that her date of recurrence pay rate (which did not include night differential) was higher
than her date-of-injury pay rate therefore her date of recurrence pay rate was used. OWCP
concluded that appellant had failed to provide any succinct explanation as to why the prior decision
was improperly decided.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions.5 OWCP’s
regulations establish a one-year time limitation for requesting reconsideration, which begins on
the date of the original OWCP merit decision.6 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.7 Timeliness is determined by the
document receipt date, the received date in OWCP’s Integrated Federal Employees’ Compensation
System (iFECS).8 Imposition of this one-year filing limitation does not constitute an abuse of
discretion.9

4

5 U.S.C. § 8128(a); see B.W., Docket No. 19-0626 (issued March 4, 2020); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6
T.T., Docket No. 19-1624 (issued October 28, 2020); V.G., Docket No. 19-0038 (issued June 18, 2019); J.W.,
Docket No. 18-0703 (issued November 14, 2018); 20 C.F.R. § 10.607(a); Alberta Dukes, 56 ECAB 247 (2005).
7

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

8

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

9
A.M., Docket No. 20-0143 (issued October 28 2020); S.T., Docket No. 18-0925 (issued June 11, 2019); E.R.,
Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

When a reconsideration request is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s final merit decision was
in error.10 It procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.11 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.15 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion.16 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.17 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.18 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.19

10

L.N., Docket No. 20-0742 (issued October 26, 2020);C.V., Docket No. 18-0751 (issued February 22, 2019); B.W.,
Docket No. 10-0323 (issued September 2, 2010); M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196
(2004); Thankamma Mathews, 44 ECAB 765 (1993); Jesus D. Sanchez, 41 ECAB 964 (1990).
11

D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

12
V.G., supra note 6; E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB
919 (1992).
13

W.H., Docket No. 20-0395 (issued October 23, 2020); S.T., supra note 9; C.V., supra note 10; Darletha Coleman,
55 ECAB 143 (2003); Dean D. Beets, 43 ECAB 1153 (1992).
14

S.T., supra note 9; see E.P., supra note 12; Pasquale C. D Arco, 54 ECAB 560 (2003); Leona N. Travis, 43
ECAB 227 (1991).
15

L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., supra note 6; C.V., supra note 10; Leon J. Modrowski,
supra note 10; Jesus D. Sanchez, supra note 10.
16

W.H., supra note 13: V.G., supra note 6; see E.P., supra note 12; Leona N. Travis, supra note 14.

17

L.B., supra note 14; V.G., supra note 5; see E.P., supra note 11; Nelson T. Thompson, supra note 11.

18

D.G., supra note 10; Leon D. Faidley, Jr., supra note 8.

19
C.V., supra note 9; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition for
recon. denied, 41 ECAB 458 (1990).

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ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP properly determined that appellant’s request for reconsideration was untimely filed.
In this case, the most recent merit decisions were dated August 9, 2018. OWCP issued two
separate decisions pertaining to appellant’s claims for LWOP and loss of night shift differential.
OWCP received appellant’s request for reconsideration on August 14, 2019, which was beyond
the one-year time limit as to all OWCP decisions. Since the reconsideration request was untimely,
appellant has the burden of proof to demonstrate clear evidence of error by OWCP in denying her
claims for compensation.20
The Board further finds that the evidence raises a substantial question as to the correctness
of OWCP’s August 9, 2018 decisions and is sufficient to demonstrate clear evidence of error.21
The Board notes that OWCP issued two conflicting decisions on August 9, 2018 regarding
appellant’s entitlement to periods of wage-loss compensation.
By decision dated August 9, 2018, OWCP informed appellant that her payment for the
period April 28 to May 11, 2018 was issued on August 9, 2018 and she should receive payment
within two weeks. Regarding the period May 12 to 25, 2018, it explained that the claim was
denied, based on the medical evidence of record. Regarding the claim for night differential, OWCP
found that the fact that the employing establishment accommodated appellant’s request did not
create entitlement to a night differential.
However, in the second decision dated August 9, 2018, OWCP also denied appellant’s
claims for compensation for the periods April 28 to May 11, 2018 and May 12 to 25, 2018. It
explained, in part, that the claims were denied because she received a schedule award for the period
October 6, 2017 to June 22, 2019. OWCP noted that, when the schedule award ended, appellant
could resubmit her claim for May 6 and 7, 2018. Regarding the period May 12 to 25, 2018, it
found that the medical evidence of record did not establish her disability claim.
The Board finds that OWCP committed error when it issued two decisions on the same
date with conflicting findings concerning the same periods of disability. In this case, the
conflicting decisions on the same issue raise a substantial question as to the correctness of the
August 9, 2018 merit decisions. The Board finds that OWCP abused its discretion in failing to
reopen appellant’s claim for further merit review. As such, the Board will reverse OWCP’s
September 26, 2019 decision and remand the case for a corrected decision on the issues addressed
in the August 9, 2018 merit decisions, with proper appeal rights.

20
Supra note 7. See B.C., Docket No. 20-0465 (issued November 19, 2020); see also Debra McDavid, 57 ECAB
149 (2005).
21

See S.M., Docket No. 18-1499 (issued February 5, 2020) (OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s request for reconsideration shows clear evidence of
error on the part of OWCP).

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2019 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.22
Issued: January 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

22

Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
HEALTH, Bethesda, MD, Employer
__________________________________________

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

Docket No. 14-2010
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 18, 2014 appellant filed a timely appeal from the March 24, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed between the last merit decision of OWCP, dated September 18, 2012, and the filing
of this appeal, and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. §§ 8101-8193.

In connection with his appeal, appellant timely requested an oral argument before the Board. In an order dated
February 23, 2015, the Board denied his request for oral argument, noting that the appeal could be adequately
addressed in a decision based on the case record. By letter dated July 5, 2015, appellant filed a “request for
reconsideration” of the Board’s denial. There is no provision in the Board’s regulations for such reconsideration.
Oral arguments are held solely within the discretion of the Board. As noted in the February 23, 2015 order, the
Board does not have jurisdiction over the merits of the case and in its discretion denied to hear oral argument.

ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In June 1978 appellant, then a 36-yearold statistician, filed an occupational disease claim alleging that he sustained a digestive system
disorder due to the stress of his work duties, which included managing the collection of data
relating to drug usage and treatment, extensive travel, and having discrimination suits filed
against him and his employing establishment. OWCP accepted that he sustained work-related
temporary aggravation of preexisting Crohn’s disease. Appellant stopped working for the
employing establishment on June 16, 1978. He underwent a resection of his right colon and
small bowel in August 1981. In a January 17, 1983 report, Dr. Raymond Cohen, an attending
Board-certified internist specializing in gastroenterology, stated that he had palpated a large mass
of matted small intestine loops in appellant’s right lower quadrant during examinations between
August 1978 and May 1980.
In a November 20, 2001 decision,3 the Board affirmed the June 16, 1978 OWCP
termination of appellant’s compensation based on the February 20, 1991 opinion of Dr. Bernard
Aserkoff, a Board-certified internist specializing in gastroenterology, who served as an OWCP
referral physician. The Board determined that, because OWCP had relied upon the opinion of
Dr. Aserkoff to terminate appellant’s compensation effective June 16, 1978, the burden of proof
shifted to appellant to establish continuing compensation after that date. Appellant had
submitted additional medical evidence from attending physicians which created a conflict in the
medical opinion evidence on the issue of whether he had continuing work-related disability after
June 16, 1978. The Board directed OWCP to refer appellant to an impartial medical specialist to
resolve the conflict in medical evidence.
On remand OWCP referred appellant to Dr. Joseph J. Genovese, Jr., a Board-certified
internist specializing in gastroenterology, for an impartial medical examination. In a May 2,
2002 report, Dr. Genovese determined that appellant did not have a work-related disability after
his termination on June 16, 1978.
Based on Dr. Genovese’s report, in a June 12, 2002 decision, OWCP denied appellant’s
claim for continuing disability after June 16, 1978.
In a November 12, 2002 decision,4 the Board found that the opinion of Dr. Genovese
required clarification. On remand, OWCP obtained an October 23, 2003 supplemental report
from Dr. Genovese and, by decision dated November 14, 2003, denied appellant’s claim for
disability after June 16, 1978 finding that the opinion of Dr. Genovese constituted the weight of
the medical evidence.
3

Docket No. 98-2175 (issued November 20, 2001).

4

Docket No. 02-1905 (issued November 12, 2002).

2

In an April 5, 2007 decision,5 the Board again found that the reports of Dr. Genovese did
not constitute the weight of the medical opinion regarding whether appellant had an
employment-related disability after June 16, 1978. The Board noted that the burden of proof
continued to rest with appellant to offer probative evidence that he was entitled to compensation.
The Board found a conflict in the medical evidence on whether there was a work-related
disability after the termination of appellant’s benefits on June 16, 1978. The Board directed
OWCP to refer appellant to a new impartial medical specialist for an examination.
On remand OWCP referred appellant to Dr. Richard A. Baum, a Board-certified internist
specializing in gastroenterology, for an impartial medical examination and an opinion on
appellant’s continuing disability. In a July 23, 2007 report, Dr. Baum found that the
exacerbation of appellant’s Crohn’s disease had been temporary and the temporary aggravation
had resolved. He found no continuing disability after the June 16, 1978 termination. Dr. Baum
further stated that appellant’s disability, as related to a temporary aggravation, should have
resolved fairly quickly after cessation of his employment. It was Dr. Baum’s opinion that the
long-term problems appellant had experienced were related only to his underlying Crohn’s
disease.
In an August 22, 2007 decision, OWCP determined that appellant had not established
entitlement to compensation after June 16, 1978. It found that the weight of the medical
evidence regarding this matter rested with the July 23, 2007 report of Dr. Baum.
Appellant submitted a March 24, 2006 report from Dr. Robert Lerman, an attending
Board-certified internist specializing in nutrition. Dr. Lerman reported that appellant suffered
from a permanent work-related aggravation of his Crohn’s disease as there continued to exist
objective evidence of Crohn’s disease, including an intestinal mass, after the termination of
benefits, effective June 16, 1978.
In an August 19, 2008 decision, an OWCP hearing representative remanded the case for a
supplemental report from Dr. Baum.
OWCP requested that Dr. Baum review Dr. Lerman’s March 24, 2006 report to
reevaluate whether appellant continued to have work-related disability after the termination of
benefits on June 16, 1978. Dr. Baum found in his supplemental September 11, 2008 report that
there were no new facts in the additional information which would cause him to modify his
July 23, 2007 assessment.
By decision dated October 23, 2008, OWCP again determined that appellant had not
established entitlement to compensation after June 16, 1978. It found that the weight of the
medical evidence regarding this matter rested with the July 23, 2007 and September 11, 2008
reports of Dr. Baum. In a June 30, 2009 decision, an OWCP hearing representative affirmed
OWCP’s October 23, 2008 decision.

5

Docket No. 06-1756 (issued April 5, 2007).

3

In a February 11, 2011 decision,6 the Board found a continuing conflict in the medical
evidence between Dr. Baum and Dr. Lerman and as to continuing disability caused by the
accepted condition of temporary aggravation of preexisting Crohn’s disease. The Board
remanded the case referral to a new impartial medical specialist for an examination and an
opinion on the persistent question of whether appellant had established continuing disability after
June 16, 1978.
On remand OWCP referred appellant to Dr. Gary Thompson, a Board-certified internist
specializing in gastroenterology. In his July 8, 2011 report, Dr. Thompson discussed the
progression of appellant’s Crohn’s disease since the late 1960s, the treatment appellant had
received for his condition, and reported the findings of his examination. He discussed the
relationship between psychological stress and the manifestation of symptoms related to Crohn’s
disease. Dr. Thompson stated, “In summary, the claimant has unfortunately suffered from the
chronic, unpredictable, and sometimes devastating natural history of Crohn’s disease. His illness
was not due to his employment factors.”
In a July 11, 2011 decision, OWCP denied appellant’s claim for continuing disability
after June 16, 1978 based on the opinion of Dr. Thompson.
In a June 10, 2012 letter received on June 13, 2012, appellant requested reconsideration
of OWCP’s July 11, 2011 decision and again asserted that he had actually suffered a permanent,
work-related aggravation of his preexisting Crohn’s disease. He argued that he continued to
have disability due to this permanent, work-related condition. Appellant claimed that
Dr. Thompson failed to provide adequate medical rationale in support of his opinion that there
was no work-related medical condition or disability after June 16, 1978.
In a September 28, 2012 decision, OWCP affirmed its July 11, 2011 decision after
reviewing the merits of appellant’s arguments.
In a September 21, 2013 letter received on September 26, 2013, appellant requested
reconsideration of OWCP’s September 28, 2012 decision and presented arguments in support of
his reconsideration request. He argued that, despite the fact that OWCP had accepted only a
temporary, work-related aggravation; the evidence clearly established a permanent aggravation.
Appellant contended that the July 8, 2011 report of Dr. Thompson was not well rationalized
because it did not explain why the work-related residuals ceased after June 16, 1978. He argued
that Dr. Thompson ignored medical evidence and also suggested that Dr. Thompson actually
found a work-related permanent aggravation. Appellant also argued that OWCP’s September 28,
2012 decision was internally inconsistent. Finally, he expressed his belief that it was illogical for
OWCP to conclude that his condition had been suddenly “cured” of any work-related
aggravation on June 16, 1978, his last official day of employment.
In a March 24, 2014 decision, OWCP denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a). It noted that his arguments were not new or
relevant and had already been considered and rejected.

6

Docket No. 10-502 (issued February 11, 2011).

4

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,7
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.9 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.10 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record11 and the
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.12 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.13
ANALYSIS
OWCP issued a decision on September 28, 2012 finding that appellant had not
established work-related disability after June 16, 1978. Appellant requested reconsideration of
that decision on September 26, 2013.
The Board lacks jurisdiction to review the merits of the underlying issue of whether
appellant properly accepted only a temporary aggravation of Crohn’s disease. The Board’s
jurisdiction is limited to determining whether OWCP properly denied a merit review of his
request for reconsideration.
The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3),
which require OWCP to reopen the case for review of the merits. In his application for
reconsideration, appellant failed to show that OWCP had erroneously applied or interpreted a
specific point of law. He also failed to advance a new and relevant legal argument. Appellant’s
argument was, and remains, that OWCP erred by accepting only a temporary work-related
aggravation of his preexisting Crohn’s disease. He asserts that the evidence established a
7

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

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

12

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

13

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

5

permanent aggravation. Appellant has already made this argument many times. OWCP has
considered and rejected it based on the record. A repetitious argument does not require a
reopening of appellant’s claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).14
The Board notes that the issue in this case remains whether appellant had, or has, a workrelated disability after June 16, 1978. That is a medical issue which must be addressed by
relevant medical evidence.15 Appellant has argued that the July 8, 2011 opinion of
Dr. Thompson was not well rationalized and should not constitute the weight of the medical
evidence. However, OWCP has previously considered and rejected his argument as well.
The Board notes that appellant has filed numerous papers in this appeal and at other
stages in the proceedings which relate to factual and legal issues. These briefs, letters,
memoranda, and other submissions make clear appellant’s disagreement with OWCP’s decisions
over a number of years. The Board has reviewed these arguments and factual assertions as they
relate to the narrow confines of this appeal.
At this time, the only question to be decided is whether appellant has shown that OWCP
erred when it denied him a merit review of his claim in its decision of March 24, 2014. The vast
preponderance of appellant’s submissions do not address this test and need not be discussed in
deciding the single issue presented in his appeal to this Board.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3) to warrant a review of the merits. Appellant did not show that OWCP had
erroneously applied or interpreted a specific point of law; he did not advance a relevant legal
argument not previously considered by OWCP; and he failed to submit relevant and pertinent
new evidence. As such, the Board finds that, pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

14

See supra note 12.

15

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

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 08-2524
Issued: June 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated September 3, 2008, denying her claim for an
emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.

FACTUAL HISTORY
This case has previously been before the Board. The facts and the circumstances of the
Board’s September 25, 2003 decision are hereby incorporated by reference.1 The relevant facts
are briefly set forth.
On January 8, 2001 appellant, then a 35-year-old secretary, alleged that she sustained
post-traumatic stress aggravated by her employment. She contracted post-traumatic stress as a
result of her military tour in the near east during the Persian Gulf War, but was not placed on
medication at that time. Appellant alleged that, as a result of her exposure to harassment at the
employing establishment, her symptoms had increased. She identified incidents in her federal
employment as aggravating her emotional condition including disputes over advanced sick leave
for her father’s funeral, harassment by her supervisor and not being selected for a permanent
position. In a May 6, 2003 decision, the Office denied appellant’s claim. It denied
reconsideration on May 6, 2003. In a decision dated September 25, 2003, the Board affirmed the
Office’s determination that appellant had failed to establish a compensable factor of
employment. The Board further found that the Office properly denied appellant’s request for
reconsideration.2
By letter dated December 16, 2003, appellant requested reconsideration before the Office.
She submitted a clinical intake form report by Dr. M. Meuller, who reviewed appellant’s history
and diagnosed chronic post-traumatic stress disorder and panic disorder with recurrent major
depression.
By decision dated January 30, 2004, the Office denied merit review of appellant’s case.
As appellant’s claim was denied for failure to establish a compensable employment factor, the
new evidence did not address this issue but consisted of medical evidence which was not
relevant.
On October 22, 2007 appellant again requested reconsideration. In a June 9, 2005 report,
Dr. Richter, a psychiatrist, diagnosed a mood disorder, panic disorder without agoraphobia and
post-traumatic stress disorder. He opined that appellant’s post-traumatic stress disorder/panic
disorder began in Iraq, but the stress of her difficult work environment had exacerbated her
symptoms and led to further deterioration of her mental status.
By decision dated October 26, 2007, the Office denied appellant’s request for
reconsideration without further reviewing the merits of the case.
On January 6, 2008 appellant filed an appeal with the Board. By decision dated July 8,
2008, the Board remanded the case to the Office for reconstruction of the case record and to
issue a new decision to protect appellant’s appeal rights.3
1

Docket No. 03-1590 (issued September 25, 2003).

2

Id.

3

Docket No. 08-645 (issued July 8, 2008).

2

By decision dated September 3, 2008, the Office denied modification of its prior
decisions. It found that the evidence was not sufficient to establish any compensable factors of
employment.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty, a
claimant must submit the following: (1) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or psychiatric disorder; and (3) rationalized medical
opinion evidence establishing that the identified employment factors are causally related to the
emotional condition.4
When employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for the periods of disability related to the aggravation.
However, when the aggravation is temporary and leaves no permanent residuals, compensation is
not payable for the periods after the aggravation has ceased.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.6 On the other hand, the disability is not covered where it results from such factors as an
employee’s frustration from not being permitted to work in a particular environment or to hold a
particular position.7
ANALYSIS
In a September 25, 2003 decision, the Board affirmed the denial of appellant’s claim for
an emotional condition as she had failed to establish a compensable factor of federal
employment. Specifically, it was found that appellant did not establish administrative error in
the denial of leave or in not being selected for a permanent position. Further, she did not
establish harassment by her supervisor. Thereafter, appellant submitted new medical evidence in
support of her claim. She submitted a clinical intake form by Dr. Meuller and a medical report
from Dr. Richter. However, this evidence is not relevant to the reason appellant’s claim was
denied, i.e., that she had not established the existence of a compensable work factor. Appellant
did not submit any evidence to establish as factual her claims of error in the aforementioned
4

Robert Johns, 51 ECAB 137, 141 (1999).

5

Raymond W. Behrens, 50 ECAB 221 (1999).

6

5 U.S.C. §§ 8101-8193.

7

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).

3

administrative matters or of harassment. Only after she establishes a compensable work factor
does the Office address medical evidence.8
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty. As appellant has not established
any compensable work factors, the medical evidence need not be addressed.9
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2008 is affirmed.
Issued: June 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8

See Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

9

Id.

4


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

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

Docket No. 08-2380
Issued: July 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 2, 2008 appellant filed a timely appeal from an August 5, 2008 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the schedule award
claim.1
ISSUE
The issue is whether appellant has established more than 10 percent right lower extremity
impairment or more than 7 percent left lower extremity impairment, for which she received a
schedule award.

1

The record also contains a January 14, 2008 decision pertaining to an overpayment of $1,751.44 for which
appellant was found to be without fault, but denied waiver. Appellant did not appeal this decision.

FACTUAL HISTORY
On July 21, 1999 appellant, then a 31-year-old letter carrier, filed an occupational disease
claim alleging that the severe pain in her feet was caused by walking at work.2 The Office
accepted the claim for temporary aggravation of bilateral plantar fasciitis and bilateral tarsal
tunnel syndrome. Appellant underwent a left distal tarsal tunnel release with partial plantar
fasciotomy on October 31, 2000 and a right distal tarsal tunnel release with partial plantar
fasciotomy on June 16, 2001. She returned to limited duty following each surgery and the Office
paid compensation benefits. Following a recurrence of disability on April 14, 2003, appellant
was referred to the Office’s vocational rehabilitation program as the employing establishment
was unable to accommodate her restrictions. On March 9, 2005 she began a trial work program
at the United Way. Appellant’s treating physician subsequently found her temporarily totally
disabled. Her rehabilitation file was closed on March 31, 2005. Appellant subsequently elected
disability retirement benefits from the Office of Personnel Management effective May 18, 2005.
In a July 25, 2005 decision, the Office found she was not entitled to total disability compensation
as the medical evidence supported that she could perform full-time, limited-duty work.
On May 31, 2005 appellant filed a claim for a schedule award. In a November 29, 2005
report, Dr. Manhal Ghanma, a Board-certified orthopedic surgeon and Office referral physician,
found that appellant had no impairment of her lower extremities under the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
In an April 3, 2006 report, an Office medical adviser reviewed the medical evidence of
record and opined that appellant had seven percent permanent impairment to each lower
extremity as a result of her tarsal tunnel surgery.
By decision dated May 2, 2006, the Office granted appellant a schedule award for seven
percent impairment to the right lower extremity and seven percent impairment to the left lower
extremity.4
Appellant requested an oral hearing before an Office representative. In a March 23, 2006
report, Dr. Brian F. Griffin, an emergency medicine specialist, opined that appellant had not
reached maximum medical improvement and disagreed with Dr. Ghanma’s opinion. By decision
dated June 23, 2006, the Office hearing representative found a conflict in medical opinion
between Dr. Ghanma and Dr. Griffin. The Office was directed to refer appellant for an impartial
medical evaluation.
The Office referred appellant to Dr. John W. McGrail, a Board-certified orthopedic
surgeon, selected as the impartial medical specialist. In an October 18, 2006 report, Dr. McGrail
found appellant’s left foot had recovered without measurable or objective residuals. He advised
2

This case was previously before the Board. By decision dated January 3, 2008, the Board affirmed an Office
decision dated November 8, 2006 which found that appellant received $1,751.44 overpayment of compensation but
set aside the Office’s finding that appellant was at fault.
3

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

4

On July 11, 2007 the Office expanded appellant’s claim to include reflex sympathetic dystrophy.

2

that appellant sustained a permanent partial impairment of her right foot as there was residual
atrophy of the right calf. Dr. McGrail did not specify an impairment percentage or reference
particular provisions of the A.M.A., Guides.
By decision dated March 8, 2007, the Office denied an additional schedule award based
on Dr. McGrail’s impartial report.
Appellant requested an oral hearing before an Office representative. By decision dated
August 9, 2007, the Office hearing representative remanded the case, finding that Dr. McGrail
did not adequately address permanent impairment under the A.M.A., Guides. The hearing
representative directed the Office to prepare a revised statement of accepted facts to include the
accepted condition of reflex sympathetic dystrophy and to refer appellant for a new impartial
examination.
The Office referred appellant, together with the case record, a statement of accepted facts
and a list of questions, to Dr. James Rutherford, a Board-certified orthopedic surgeon. In an
October 23, 2007 report, Dr. Rutherford noted the history of injury, reviewed the statement of
accepted facts and the medical records, and presented findings on physical examination.
Appellant reported right buttock pain and she had a slight limp on the right side in her gait. She
could only do 75 percent of a deep knee bend primarily because of right calf symptoms.
Dr. Rutherford found mild decreased sensation on the medial aspect of the right lower leg and
foot and numbness in the right great toe while there was normal sensation of the left leg. He
opined that appellant had reached maximum medical improvement and provided an impairment
rating under the A.M.A., Guides. For the left lower extremity, Dr. Rutherford opined that
appellant had no impairment beyond the previous seven percent rating. For the right lower
extremity, he opined that appellant had a 10 percent impairment based on decreased sensation
under Table 17-37 on page 552 of the A.M.A., Guides. Dr. Rutherford stated that appellant had
5 percent impairment in the superficial peroneal distribution of the right foot and 5 percent
impairment over the medial plantar nerve of the right foot, which had a combined value of 10
percent impairment for the right lower extremity. He found that she had an additional three
percent impairment of the right lower extremity beyond the previously awarded seven percent
rating.
On February 6, 2008 an Office medical adviser reviewed Dr. Rutherford’s October 23,
2007 medical report and concurred with the result.
By decision dated February 22, 2008, the Office granted appellant an additional 3 percent
permanent impairment of the right lower extremity, for a total of 10 percent. The award covered
the period October 23, 2007 to February 1, 2008, or 14.45 weeks of compensation.
On February 24, 2008 appellant requested a telephonic hearing, which was held
June 3, 2008. Medical evidence received subsequent to the hearing included progress notes
dated February 7 to July 24, 2008 from appellant’s treating physician that discussed her
symptoms and medication regimen. A December 27, 2007 emergency record from Licking
Memorial Hospital diagnosed an acute exacerbation of chronic pain and reflex sympathetic
dystrophy. By decision dated August 5, 2008, an Office hearing representative affirmed the
February 22, 2008 Office decision.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 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. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.7
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.9
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.10
ANALYSIS
The Office accepted that appellant sustained temporary aggravation of preexisting
bilateral plantar fasciitis, bilateral tarsal tunnel syndrome with release and partial fasciotomy
surgeries, and reflex sympathetic dystrophy. It previously granted schedule awards for seven
percent impairment of both lower extremities.
The Office found a conflict in medical opinion between Dr. Griffin, appellant’s treating
physician, and Dr. Ghanma, the second opinion examiner. It initially referred appellant for an
impartial medical examination with Dr. McGrail. However, an Office hearing representative
determined that his report was incomplete because he did not adequately reference the A.M.A.,
Guides. The hearing representative properly directed the Office to prepare a revised statement of

5

5 U.S.C. §§ 8101-8193.

6

20 C.F.R. § 10.404.

7

Ronald R. Kraynak, 53 ECAB 130 (2001).

8

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

9

Manuel Gill, 52 ECAB 282 (2001).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

4

accepted facts and refer appellant for another impartial examination. On remand, the Office
referred appellant to Dr. Rutherford to resolve the conflict.
In an October 23, 2007 report, Dr. Rutherford opined that appellant had reached
maximum medical improvement. On examination of appellant, he noted more pronounced
findings for the right leg, advising that appellant had decreased sensation on the medial aspect of
the right lower leg and foot and numbness in the right great toe but had normal sensation of the
left leg. Under the A.M.A., Guides, Dr. Rutherford found that appellant had no additional
impairment for the left lower extremity beyond the previously awarded seven percent rating.
However, he found that appellant had an additional three percent permanent impairment of the
right lower extremity. Dr. Rutherford opined that appellant had 10 percent impairment based on
decreased sensation under Table 17-37 on page 552 of the A.M.A., Guides. He stated that
appellant had 5 percent impairment in the superficial peroneal distribution of the right foot and 5
percent impairment over the medial plantar nerve of the right foot, which had a combined value
of 10 percent impairment for the right lower extremity.11 The medical adviser agreed that
Dr. Rutherford properly used the A.M.A., Guides.
The Board finds that the report of Dr. Rutherford, the impartial medical specialist, is
based upon a correct application of the A.M.A., Guides and is entitled to special weight.
Dr. Rutherford examined appellant, took measurements, referred to Table 17-37 and explained
his calculations. An Office medical adviser reviewed Dr. Rutherford’s finding and concurred in
his impairment finding.
Appellant submitted additional evidence. However, it does not address the permanent
impairment of her legs or otherwise establish greater impairment to her lower extremities.
Appellant did not submit any medical evidence conforming with the A.M.A., Guides establishing
greater impairment.12
Appellant previously received schedule awards for seven percent impairment of the left
lower extremity and seven percent impairment of the right lower extremity. Her previous
impairment must be included in calculating the percentage of loss. The Office properly issued a
schedule award for an additional 3 percent permanent impairment to the right lower extremity,
for a total 10 percent impairment.13

11

See Combined Values Chart page 604, A.M.A., Guides.

12

The Board notes that appellant retains the right to file a claim for an increased schedule award based on new
exposure or on medical evidence indicating that the progression of an employment-related condition, without new
exposure to employment factors, has resulted in a greater permanent impairment than previously calculated.
Linda T. Brown, 51 ECAB 115 (1999).
13

The Office procedures provide that any previous impairment to a member under consideration is included in
calculating the percentage of loss. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.7(a)(2) (August 2002).

5

CONCLUSION
The Board finds that appellant has no greater than 7 percent impairment to her left lower
extremity and 10 percent impairment to her right lower extremity, for which she received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
H.P., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 07-715
Issued: June 26, 2007

Case Submitted on the Record

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

JURISDICTION
On January 22, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 12, 2006 regarding a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant is entitled to an increased schedule award pursuant to
5 U.S.C. § 8107.
FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) for an ankle injury occurring on
January 26, 1999. The accepted conditions in this case are: fracture of cuboid joint of the right
foot, fracture of the left metatarsal, mechanical complication of internal orthopedic device, left
foot extosis and left calcaneal spur.
Appellant underwent right foot surgery on
February 26, 2001.

In a report dated February 5, 2002, Dr. James DeOrio, an orthopedic surgeon, provided
range of motion for the right ankle. An Office medical adviser reviewed the medical evidence
and opined that appellant had a 30 percent right lower extremity permanent impairment with
February 5, 2002 as the date of maximum medical improvement.
By decision dated June 19, 2002, the Office issued a schedule award for a 30 percent
impairment to the right foot. The period of the award was 61.5 weeks commencing
February 5, 2002.
Appellant underwent left foot surgery on September 26, 2002. In a report dated May 16,
2003, Dr. Leland McCluskey, an orthopedic surgeon, opined that appellant had a 20 percent left
leg permanent impairment. An Office medical adviser reviewed the evidence and in a July 3,
2003 report he concurred that appellant had a 20 percent left leg permanent impairment. The
date of maximum medical improvement was reported as May 16, 2003.
By decision dated August 19, 2003, the Office issued a schedule award for a 20 percent
left leg permanent impairment. The period of the award was 57.6 weeks commencing
July 14, 2003.
Dr. McCluskey performed bilateral foot surgery on October 18, 2005. He described the
procedure as left foot exostectomy of the cuboids and hardware removal in the right heel. In a
report dated February 16, 2006, Dr. McCluskey indicated that appellant had restricted motion
from the fusions in the subtalar joints on both sides. He did not provide specific range of motion
results. Dr. McCluskey opined that, based on the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A, Guides), appellant had a 20 percent left leg
impairment and a 15 percent right leg impairment. He did not identify specific tables or explain
how the percentages were determined.
In a report dated December 8, 2006, an Office medical adviser stated that appellant had
surgery with no complications. He opined that appellant was not entitled to an additional
impairment as a result of the October 18, 2005 surgery.
By decision dated December 12, 2006, the Office determined that appellant was not
entitled to an increased schedule award. The Office found that the medical evidence did not
support an increase in the impairment previously compensated.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use, of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
1

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

2

justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2
ANALYSIS
In the present case, appellant received a schedule award on June 19, 2002 for 61.5 weeks
of compensation, representing a 30 percent impairment of the right foot.3 On August 19, 2003
he received 57.6 weeks of compensation for a 20 percent left leg permanent impairment. The
issue is whether the evidence is sufficient to establish that appellant now has an increased
impairment.
The record indicated that appellant underwent bilateral foot surgery on October 18, 2005.
In his February 16, 2006 report, however, Dr. McCluskey did not provide a rationalized medical
opinion as to the degree of permanent impairment. He stated that appellant had 20 percent
impairment in his left leg and 15 percent in the right leg, without providing any medical
rationale. Dr. McCluskey did not identify any tables or figures in the A.M.A., Guides to explain
how the percentages were calculated.4 In addition, an Office medical adviser opined in a
December 8, 2006 report that appellant did not have any additional impairment.
Based on the probative evidence of record, appellant did not establish a greater
entitlement to compensation for impairment to the left leg or right leg than previously awarded
on June 19, 2002 and August 19, 2003. Accordingly, the Board finds that the Office properly
determined that appellant was not entitled to an additional schedule award.
CONCLUSION
Appellant did not establish entitlement to an additional schedule award in this case.

2

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

3

61.5 weeks corresponds to approximately a 21.3 percent right leg impairment. See 5 U.S.C. § 8107, which
provides 288 weeks of compensation for complete loss of use, of the leg.
4

The Board notes that the stated impairments do not represent a greater impairment than previously awarded.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 12, 2006 is affirmed.
Issued: June 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Seagoville, TX, Employer
__________________________________________

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

Docket No. 09-1261
Issued: December 9, 2009

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated March 13, 2009 concerning an overpayment of
compensation. Under 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 the Office properly determined that appellant received an
overpayment in the amount of $615.78 for the period January 13 to 17, 2009; and (2) whether the
Office properly found that he was at fault in creating the overpayment.
FACTUAL HISTORY
On June 26, 2008 appellant, a 49-year-old maintenance mechanic, was walking into the
garage office when he turned on his left leg and his left knee popped. He filed a claim for
benefits on June 27, 2008, which the Office accepted for sprain of the left leg and knee. The
Office commenced payment for temporary total disability and placed him on the periodic rolls.

In the September 19, 2008 letter advising appellant that he would be paid temporary total
disability compensation, the Office stated:
“You are expected to return to work (including light duty or part-time work, if
available) as soon as you are able. Once you return to work or obtain new
employment, notify this office immediately. Full compensation is payable only
while you are unable to perform the duties of your regular job because of your
accepted employment-related condition. If you receive a compensation check
which includes payment for a period you have worked, return it to us immediately
to prevent an overpayment of compensation.”
Appellant underwent arthroscopic surgery, abrasive chondroplasty, on his left knee on
October 16, 2008.
He returned to light duty with the employing establishment on
January 13, 2009. The Office however continued to pay appellant temporary total disability
compensation until January 17, 2009.
By letter dated January 26, 2009, the Office made a preliminary determination that an
overpayment of compensation had occurred in the amount of $615.78, covering January 13 to
17, 2009. It found that appellant was at fault in the matter because he continued to receive
compensation for temporary total disability when he should have been aware, after returning to
work on January 13, 2009, that the payment he received was incorrect. The Office calculated the
amount of the overpayment by taking his 28-day payment from December 21, 2008 to
January 17, 2009, $3,448.35, dividing this amount by 28 days, which totaled $123.55, then
multiplying this figure times the 5 days that he worked full time during the 28-day period from
January 13 to 17, 2009, creating an overpayment of $615.78. It advised appellant that if he
disagreed with the fact or amount of the overpayment he could submit new evidence in support
of his contention. The Office further advised him that, when he was found without fault in the
creation of the overpayment, recovery might not be made if it could be shown that such recovery
would defeat the purpose of the law or would be against equity and good conscience. It
informed appellant that if he disagreed with the decision he could, within 30 days, submit
evidence or argument to the Office or request a prerecoupment hearing with the Branch of
Hearings and Review on the matter of the overpayment and that any response he wished to make
with regard to the overpayment should be submitted within 30 days of the January 26, 2009
letter. Appellant did not respond to this letter within 30 days.
In a decision dated March 13, 2009, the Office finalized the preliminary determination
regarding the overpayment of $615.78.
LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under the Federal Employees’ Compensation Act is
payable when the employee starts to lost pay.1 Compensation for wage loss due to disability is

1

20 C.F.R. § 10.401(a) (2003).

2

available only for any periods during which an employee’s work-related medical condition
prevents him from earning the wages earned before the work-related injury.2
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $615.78 for the period January 13 to 17, 2009.
The record shows that appellant received an overpayment during the period in question because
he received temporary total disability compensation after he returned to work on
January 13, 2009. The Office calculated the $615.78 overpayment by taking his 28-day payment
from December 21, 2008 to January 17, 2009, $3,448.35, dividing this amount by 28 days, which
totaled $123.55, then multiplying this figure times the 5 days that he worked full time during the
28-day period January 13 to 17, 2009. This amounted to an overpayment of $615.78. Based on
this determination, the Office properly found that appellant received an overpayment of
compensation in the stated amount during that period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act3 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.4
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment -(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
(2) Failed to provide information which the individual knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.”5

2

Id. at § 500(a) (2003).

3

5 U.S.C. § 8129(a)-(b).

4

Bonnye Mathews, 45 ECAB 657 (1994).

5

20 C.F.R. § 10.433(a).

3

ANALYSIS -- ISSUE 2
The Office issued a direct deposit payment on January 17, 2009 covering the period
December 21, 2008 to January 17, 2009. Appellant had returned to work on January 13, 2009.
The Office applied the third standard in determining that appellant was at fault in creating the
overpayment. Its preliminary determination of overpayment and fault was issued on
January 26, 2009.
Where the Office finds a claimant at fault in creating the overpayment because he or she
accepted a payment which the individual knew or should have been expected to know was
incorrect, it must establish at the time the claimant received the compensation that the claimant
knew or should have known that the payment was incorrect. The record establishes that the
January 17, 2009 payment was deposited directly into appellant’s bank account. The Board has
distinguished such a situation from one in which a claimant receives a check in the mail covering
a period of employment and knows or should have known that he is not entitled to such
compensation but decides nonetheless to cash or deposit the check. The Board has found that the
mere direct deposit by the Office is not sufficient to establish acceptance by a claimant who has
had no opportunity to make a decision on the check before it was deposited to his account.6
Furthermore, it is not established that appellant had an opportunity to review written bank
statements and determine that the deposit had been made because the Office’s preliminary
determination of fault was made on January 26, 2009 some nine days after the deposit was
made.7 The Board therefore finds that appellant was not at fault in the creation of the
overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $615.78 for the period January 13 to 17, 2009.
The Board also finds that the Office has not established that appellant was at fault in the creation
of the overpayment. The Board will set aside the Office’s finding of fault and remand the case to
the Office for further development and a final decision on the issue of waiver.

6

W.P., 59 ECAB___(Docket No. 08-202, issued May 8 2008).

7

Otha J. Brown, 56 ECAB 228 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed in part and is set aside regarding the finding of
fault and remanded for further development consistent with this decision.
Issued: December 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS CENTER, China Lake, CA,
Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1655
Issued: April 4, 2018

Case Submitted on the Record

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

JURISDICTION
On August 15, 2016 appellant, through counsel, filed a timely appeal from a February 18,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof to establish a consequential left
knee condition causally related to her December 21, 2005 work injury.
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.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as outlined
in the Board’s prior decision are incorporated herein by reference.3 The relevant facts are as
follows.
On December 21, 2005 appellant, then a 55-year-old information technology specialist,
tripped and fell in the performance of duty.4 In August 2006, OWCP initially accepted her
traumatic injury claim (Form CA-1) for contusions of the right knee and right wrist/hand.5 It
subsequently expanded the acceptance of the claim to include right carpal tunnel syndrome,
enthesopathy of the right wrist and carpus, right knee lateral meniscus tear, and psychogenic
pain. In May 2007, appellant underwent the first of several OWCP-authorized right knee
surgical procedures.6 In July 2008, she underwent a right carpal tunnel release. Appellant
received wage-loss compensation beginning July 24, 2008. OWCP placed her on the periodic
compensation rolls effective August 31, 2008. In June 2009, OWCP further expanded the
acceptance of the claim to include aggravation of right knee degenerative joint disease as an
accepted condition. It also authorized a right total knee arthroplasty.7
In a July 13, 2009 letter, counsel requested that OWCP expand the acceptance of the
claim to include left knee degenerative joint disease (osteoarthritis) as an accepted condition.
She claimed that appellant also injured her left knee when she fell at work on
December 21, 2005.
By letter dated August 4, 2009, OWCP advised counsel that the record was insufficient to
support further expansion of the acceptance of the claim to include a left knee consequential
injury. It afforded appellant 30 days to submit additional medical evidence.
In an August 25, 2009 letter, counsel alleged that OWCP did not clearly identify the
perceived deficiencies in the current medical record regarding appellant’s left knee condition. It
suggested that OWCP either decide the case on the current record or refer appellant for a second
opinion evaluation.
In a September 14, 2009 report, OWCP’s district medical adviser (DMA) advised that the
medical evidence submitted did not establish that there was a consequential left knee injury.

3
Docket No. 15-1724 (issued February 16, 2016) (the Board affirmed OWCP’s finding regarding reimbursement
of medical-related travel expenses).
4
Appellant was walking down the stairs when her left foot got caught on a garden hose that was on the stairs.
She stumbled and fell to the sidewalk.
5

Appellant also has an accepted claim (OWCP File No. xxxxxx096) for nose laceration and soft tissue injury to
both knees and right hand, and cervical strain due to a work-related fall on January 6, 1989. OWCP combined the
two traumatic injury claims and designated File No. xxxxxx350 as the master file.
6

On May 31, 2007 Dr. Mohamed Z. Lameer, an orthopedic surgeon, performed an arthroscopic right knee
synovectomy, and partial medial and lateral meniscectomies.
7

Dr. Lameer performed the procedure on August 12, 2009.

2

In 2010, appellant changed her treating physician to Dr. Young N. Paik, an orthopedic
surgeon. In a May 18, 2010 report, Dr. Paik diagnosed left knee severe degenerative joint
disease and requested authorization for total left knee arthroplasty.
OWCP referred appellant to Dr. Ghol Bahman Ha’Eri, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine whether her left knee condition was
causally related to the accepted December 21, 2005 work injury. In an August 26, 2010 report,
Dr. Ha’Eri noted the history of injury, his review of the medical records and statement of
accepted facts (SOAF), and presented examination findings. He diagnosed left knee medial
compartment degenerative joint disease and a degenerative tear of medial meniscus. Dr. Ha’Eri
opined that those conditions were not medically connected to the work injury as they were
degenerative in nature. He indicated that appellant’s degenerative joint disease of the left knee
would gradually worsen and eventually require left knee replacement surgery.
Appellant continued to receive treatment for her accepted right knee condition. She
subsequently came under the care of Dr. Paul Burton, an orthopedic surgeon, and
Dr. Jonathan K. Lee, a physiatrist. On May 23, 2012 appellant underwent a right knee revision
arthroplasty.
Appellant and her counsel continued to request coverage for the left knee condition.
In July 2013, OWCP initiated another second opinion referral to Dr. Ha’Eri to obtain an
updated opinion on whether appellant’s left knee condition was related to the December 21, 2005
work injury. An updated SOAF, which included the history of the 1989 work injury,8 and
questions were provided. In a September 16, 2013 report, Dr. Ha’Eri noted the history of injury
and his review of the SOAF and the medical record. He presented examination findings and
diagnosed left knee contusion and possible internal derangement. Dr. Ha’Eri indicated that he
would address causation of the left knee condition pending new x-ray and magnetic resonance
imaging (MRI) scans.
In a September 19, 2013 addendum report, Dr. Ha’Eri reviewed a recent September 2013
x-ray of appellant’s left knee, which was reported to show moderate osteoarthritis especially
involving the medial joint compartment. He diagnosed a resolved left knee contusion and a
nonindustrial left knee moderate osteoarthritis. Dr. Ha’Eri indicated that the left knee contusion
had resolved. He indicated the left knee osteoarthritis was of moderate degree and was
degenerative in nature and not medically connected to the December 21, 2005 work injury.
Dr. Ha’Eri further indicated that aggravation was not indicated in this case.
In a March 17, 2014 report, Dr. Shahin Sadik, a Board-certified anesthesiologist, reported
that appellant had paperwork to have her back and left knee conditions included in her claim. He
indicated that the right knee injury, which required surgery, led to lengthening of the right leg
that in turn, caused stress on appellant’s spine and left knee. Dr. Sadik indicated that prior to the
December 21, 2005 work injury, appellant never had left knee or spine problems. He noted that
both knees were painful on examination.

8

See supra note 5.

3

In a May 27, 2014 report, Dr. Philip H. Conwisar, a Board-certified orthopedic surgeon,
noted the history of appellant’s work injuries and her complaints of left knee and low back pain.
He presented examination findings and, in relevant part, diagnosed left knee internal
derangement and lumbar spondylosis. Dr. Conwisar noted that appellant’s right leg measured
longer than her left leg. He also indicated that she walked with a significant and severe limp for
several years due to the multiple problems with the right knee, which was status post revision,
right total knee arthroplasty, and complex regional pain syndrome, right lower extremity.
Dr. Conwisar opined, with reasonable medical probability, that the altered gait mechanics, and
the altered leg length of the right leg had contributed to injury involving the left knee and the
lumbar spine, aggravating the underlying spondylosis of the lumbar spine and caused it to
become symptomatic, as well as contributing to and causing left knee pain. He opined that
treatment for the lumbar spine and left knee was indicated as a consequence of the right knee
injury. Dr. Conwisar also reviewed Dr. Ha’Eri’s reports and opined that the degenerative joint
disease of the left knee had been aggravated by the altered gait mechanics and the prolonged gait
abnormalities related to the 2005 right knee injury. He explained that this caused increased
pressure on the left knee, which resulted in an aggravation of the underlying condition.
OWCP subsequently determined that a conflict in medical opinion existed between
Dr. Ha’Eri and Dr. Conwisar regarding the cause of appellant’s left knee condition. It scheduled
an impartial medical examination with Dr. Benjamin Broukhim, a Board-certified orthopedic
surgeon, to resolve the conflict regarding whether appellant’s left knee osteoarthritis/
degenerative joint disease was causally related to the 2005 work injury.
In a January 6, 2015 report, Dr. Broukhim noted appellant’s work injuries of 1989 and
2005, his review of the medical records, and presented examination findings. In relevant part, he
opined that appellant had multilevel degenerative disc disease of the lumbar spine which became
aggravated and symptomatic as a result of antalgic gait of the right lower extremity as a result of
the total knee replacement stemming from the December 21, 2005 work injury. Dr. Broukhim
also opined that appellant had a degenerative tear of the medial meniscus of the left knee with
degenerative changes at the medial joint line of the left knee. He determined that these
conditions became symptomatic and aggravated as a result of the antalgic limp resulting from the
industrial injury of December 21, 2005 with the need for multiple surgeries to her right knee.
Dr. Broukhim opined that appellant’s lower back and left knee conditions represented an
aggravation preexisting degenerative changes as a result of the December 21, 2005 work injury,
for which she required multiple surgeries and revision of the total knee replacement. He
concluded that the injury and treatment caused significant limb and leg length discrepancy as
well as reflex sympathetic dystrophy in her right lower extremity. Dr. Broukhim opined that
appellant required further medical treatment to her left knee and lumbar spine. He also opined
that appellant was capable of working eight hours per day in a sedentary capacity with
restrictions as a result of her accepted conditions from the December 21, 2005 work injury.
OWCP subsequently learned that Dr. Broukhim and Dr. Ha’Eri were part of the same
medical practice. Because of their prior relationship, Dr. Broukhim was disqualified from
serving as an impartial medical examiner with respect to the conflict between Dr. Ha’Eri and
Dr. Conwisar. OWCP determined that Dr. Broukhim’s report would be treated as a second
opinion. It also found that the initial conflict remained unresolved.

4

In a letter dated May 6, 2015, OWCP informed counsel that a procedural error had
occurred when the impartial medical examination was scheduled with Dr. Broukhim and
indicated that appellant would be referred for a new impartial examination. It additionally noted
that Dr. Broukhim’s opinion regarding appellant’s work capacity created an additional conflict in
medical opinion with Dr. Conwisar and Dr. Shahin A. Sadik, who opined in his March 22, 2015
report that appellant was unable to return to any type of meaningful work.9
OWCP referred appellant, along with the medical record, a list of questions, and a SOAF,
to Dr. John D. Kaufman, a Board-certified orthopedic surgeon, for a new impartial medical
examination to resolve the conflict in medical opinion. In a November 19, 2015 report,
Dr. Kaufman noted appellant’s complaints, the history of the December 21, 2005 work injury,
and his review of the medical reports. He presented examination findings and diagnosed status
post right total knee arthroplasty in satisfactory position, left knee osteoarthritis primarily medial
compartment, and lumbar spine degenerative disc disease. Dr. Kaufman opined that there was
no connection between appellant’s left knee and low back conditions and the December 21, 2005
work injury. He indicated that evidence based studies did not show any connection between a
new problem causing a pathological condition in the opposite knee or causing low back
degenerative disc disease or back pain. Dr. Kaufman explained that appellant’s left knee
osteoarthritis was degenerative in nature and was not caused by any extra stress because of the
problems with her right knee. He also stated that there was no evidence to show a relationship
between altered gait due to problems of one knee producing degenerative changes or pain in the
other knee. Dr. Kaufman indicated that appellant’s lumbar spine degenerative disc disease was
not caused by the work injury or by abnormal gait. Medical references were cited in support of
his opinion on causation.
By decision dated February 18, 2016, OWCP denied appellant’s request to expand the
acceptance of the claim to include additional left knee diagnoses. It found the special weight of
the medical evidence, as represented by Dr. Kaufman’s impartial medical opinion, established
that the left knee conditions were unrelated to the accepted December 21, 2005 work injury.
LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.10

9

Dr. Sadik is a Board-certified anesthesiologist who was treating appellant for pain in her low back and bilateral
knees. Dr. Conwisar referred appellant’s disability status to Dr. Sadik. The issue of continuing disability is not
presently before the Board.
10

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.

5

When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.11 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.12
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.13 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”14 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.15
ANALYSIS
On December 21, 2005 appellant tripped and fell at work. OWCP accepted her traumatic
injury claim for contusions of the right knee and right wrist/hand, right carpal tunnel syndrome,
enthesopathy of the right wrist and carpus, right knee lateral meniscus tear, psychogenic pain,
and aggravation of right knee degenerative joint. It also authorized multiple surgeries involving
the right upper and lower extremities. Appellant later claimed that she developed a
consequential left knee condition, which OWCP declined to accept as causally related to the
December 21, 2005 employment injury.
In an August 26, 2010 report, Dr. Ha’Eri, an OWCP referral physician, reviewed
appellant’s history of a work injury in 1989 and December 21, 2005. He diagnosed left knee
medial compartment degenerative joint disease and degenerative tear of medial meniscus.
Dr. Ha’Eri attributed the left knee conditions to a nonindustrial basis as they were of a
degenerative nature. He subsequently reexamined appellant on September 16, 2003 and
provided reports dated September 16 and 19, 2013. Dr. Ha’Eri diagnosed left knee moderate
osteoarthritis, which he opined was degenerative and nonindustrial. He also diagnosed a left
knee contusion which had resolved, based on his review of the medical records.
OWCP properly determined that Dr. Conwisar provided in his May 27, 2014 report a
well-rationalized opinion, based on appellant’s examination and medical history, to support his
conclusion that the condition of degenerative joint disease of the left knee had been aggravated
by altered gait mechanics and prolonged gait abnormalities related to the right knee injury, which
caused increased pressure on the left knee and aggravated the underlying condition. Pursuant to
11

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law 10-1 (2006).
12

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

14

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15

Gary R. Sieber, 46 ECAB 215, 225 (1994).

6

section 8123(a) of FECA, it properly determined that a conflict existed between Dr. Ha’Eri and
Dr. Conwisar regarding whether the left knee osteoarthritis/degenerative joint disease was
medically connected to the 2005 work injury by aggravation. It referred appellant to
Dr. Broukhim for an impartial medical examination. However, at the time of OWCP’s referral
of appellant to Dr. Broukhim, the evidence of record revealed that Dr. Broukhim and Dr. Ha’Eri
were medical associates and worked out of the same office.16 OWCP thus properly found
Dr. Broukhim’s opinion was not that of an impartial medical examiner, but rather a second
opinion physician.17 Pursuant to 5 U.S.C. § 8123(a) and its procedures, the Board finds that
OWCP properly referred appellant to Dr. Kaufman for a new referee examination to resolve the
ongoing conflict in medical opinion evidence between Dr. Ha’Eri and Dr. Conwisar.18
Dr. Kaufman was provided copies of the complete case file, the SOAF, and he personally
examined appellant. In his November 19, 2015 report, Dr. Kaufman opined that appellant’s left
knee condition was degenerative in nature and that it was not caused by any extra stress because
of the problems with the right knee. He also noted that there was no evidence which showed a
relationship between altered gait due to problems of one knee producing degenerative change or
pain in the other knee. Dr. Kaufman further opined that appellant’s lumbar spine degenerative
disc disease was degenerative in nature and not caused by the work injury or by abnormal gait.
He cited medical references in support of his opinion on causation.
The Board finds that Dr. Kaufman’s report represents the special weight of the medical
evidence with regard to the issue of whether appellant’s claim should be expanded to include a
consequential left knee condition. The Board finds that he had full knowledge of the relevant
facts and evaluated the course of her condition. Dr. Kaufman is a specialist in the appropriate
field. His opinion is based on proper factual and medical history and his report contained a
detailed summary of this history. Dr. Kaufman addressed the medical records and offered his
own examination findings to reach a reasoned conclusion regarding appellant’s left knee
condition. As the impartial medical examiner, Dr. Kaufman’s opinion regarding whether
appellant’s left knee condition is causally related to the employment injury is entitled to special
weight.19
On appeal counsel noted the procedural difficulties and many years spent getting OWCP
to issue a decision on her request for expansion. For the reasons set forth above, the Board finds
that OWCP properly declared a conflict in medical opinion and that Dr. Kaufman’s opinion
establishes that appellant’s left knee condition is not causally related to the December 21, 2015
employment injury.

16
See Raymond E. Heathcock, 32 ECAB 2004 (1981) (holding that OWCP could not use the report of one
physician to resolve a conflict in medical evidence because he was an associate of another physician previously
connected with the case, and therefore, was not completely independent).
17

See C.D., Docket No. 15-0446 (issued April 27, 2015).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810(11)(e) (September 2010); see also William C. Iadipaolo, 39 ECAB 530 (1988).
19

Supra note 15.

7

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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a
consequential left knee condition causally related to her December 21, 2005 work injury.
ORDER
IT IS HEREBY ORDERED THAT the February 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2018
Washington, DC

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

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

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

8