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

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)

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

Docket No. 06-1715
Issued: February 21, 2007

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 July 20, 2006 appellant filed a timely appeal of a July 11, 2006 merit decision of the
Office of Workers’ Compensation Programs. 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 the Office met its burden of proof to terminate compensation for
wage-loss and medical benefits effective March 17, 2006.
FACTUAL HISTORY
The case was previously before the Board. By decision dated December 18, 1997, the
Board affirmed an October 5, 1995 Office decision regarding a two percent permanent
impairment to the left arm.1 On October 25, 2002 the Board affirmed an August 2, 2001 Office

1

Docket No. 96-327 (issued December 18, 1997).

determination that appellant had no loss of wage-earning capacity based on his actual earnings.2
The history of the case, as provided in the prior decisions, is incorporated herein by reference.
Following the wage-earning capacity determination, appellant continued to work in a
light-duty position. By letter dated January 25, 2005, the employing establishment indicated that
it was able to provide work for one hour per day within appellant’s work restrictions. Dr. Nancy
Hutchinson, an attending physician, stated in a June 6, 2005 report that appellant continued to
have restrictions as outlined in a July 22, 2001 form report (OWCP 5c). By letter dated June 15,
2005, the Office advised the employing establishment that appellant was entitled to wage-loss
compensation for seven hours per day as of January 25, 2005.
The Office referred appellant for examination by Dr. Stephen Barron, a Board-certified
orthopedic surgeon.3 In a report dated January 23, 2006, Dr. Barron provided a history and
results on examination. He stated,
“1. [Appellant] exhibits no objective findings on his examination of his
cervicothoracic spine, either shoulder or either upper extremity. Because of a lack
of objective findings, in my opinion, he is capable of performing his full duties of
his date-of-injury position as a mail handler without any limitations or
restrictions.
“2. Because of a lack of objective findings and normal orthopedic examination, in
my opinion, [appellant] does not have any disability from his date-of-injury
position as a mail handler attributable to his postal employment.”
By letter dated February 16, 2006, the Office advised appellant that it proposed to
terminate compensation for wage-loss and medical benefits based on the weight of the medical
evidence. Appellant submitted a December 5, 2005 report from Dr. Hutchinson, who described
the mechanism of injury as appellant having pain on November 1, 1992 at work that was felt to
be a repetitive motion and soft tissue injury. Dr. Hutchinson stated that symptoms had been
unchanged since that time and there was no prior history of neck problems. She diagnosed
myofascial pain of the neck and arms.
In a decision dated March 17, 2006, the Office terminated compensation for wage-loss
and medical benefits. Appellant requested reconsideration and submitted an April 24, 2006
report by Dr. Hutchinson who provided a history and stated that some of the historical statements
in Dr. Barron’s reports were incorrect as he attributed a number of reports to her that did not
occur. Dr. Hutchinson diagnosed myofascial pain neck and arms, stating “I see no change.
[Appellant] has the same restrictions outlined by Dr. [Andrew] Will in 2001. His injury is
repetitive in nature. I do not see the possibility of return to work since we have tried this on
numerous occasions in the past after extensive rehab[ilitation], a work injuries program, and
attempts to modify the job.”
2

Docket No. 01-2040 (issued October 25, 2002).

3

A November 17, 2005 letter refers to a conflict in the medical evidence. In a December 14, 2005 letter,
however, the Office stated that the referral was for a second opinion examination.

2

By merit decision dated July 11, 2006, the Office denied modification of the March 17,
2006 decision.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.4 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.5 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.6
ANALYSIS
The Office accepted bilateral arm tendinitis causally related to repetitive activity as a
mail handler. Although the Office had found no loss of wage-earning capacity in its August 1,
2001 decision, it did modify that decision by finding that appellant was entitled to compensation
for seven hours per day as of January 25, 2005. It is the Office’s burden of proof to terminate
compensation for wage-loss and medical benefits.
Appellant was referred to Dr. Barron for evaluation. The February 16, 2006 notice of
proposed termination refers to a referee examination under 5 U.S.C. § 8123(a), but there was no
conflict in the medical evidence.7 A second opinion examination had been performed in
January 2000, but this was of little probative value regarding appellant’s current condition.
Moreover, it did not appear that Dr. Barron was selected as a referee examiner, as the
December 14, 2005 letter identified him as a second opinion examiner. The Board finds that
Dr. Barron is a second opinion referral physician in this case.
Dr. Barron provided a reasoned medical opinion based on a complete and accurate
background.8 He offered a detailed review of the medical evidence and also noted the lack of
objective findings and a normal examination. Based on the history and results on examination,
Dr. Barron opined that appellant could work without restriction or limitation. His report supports

4

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

5

Mary A. Lowe, 52 ECAB 223, 224 (2001).

6

Frederick Justiniano, 45 ECAB 491 (1994).

7

5 U.S.C. § 8123(a) provides that, if there is a disagreement between the physician making the examination for
the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make
the examination.
8

With respect to the medical history, the Board notes that Dr. Hutchinson asserted in her April 24, 2006 report
that Dr. Barron’s medical history was inaccurate with regard to her reports. She apparently was referring to a
treatment note in November 2000 and an April 2001 report regarding permanent impairment that were actually
prepared by Dr. Will. Dr. Barron reviewed the relevant medical evidence and the inadvertent attribution to
Dr. Hutchinson does not diminish the probative value of his report.

3

a finding that appellant did not have any disability or continuing medical condition causally
related to the accepted employment injury.
On the other hand, Dr. Hutchinson did not provide a reasoned medical opinion. She
indicated in her December 5, 2005 and February 2, 2006 report that appellant continued to have
the same symptoms since 1992, without providing further detail. The Board notes that
Dr. Hutchinson diagnosed myofascial pain, a condition which had not been accepted by the
Office. She did not provide a complete history discussing appellant’s job duties, or provide a
reasoned medical opinion on causal relationship between a continuing disability or condition and
the employment injury.
The weight of the medical evidence therefore rested with Dr. Barron, the second opinion
examiner. The Board accordingly finds that the Office met its burden of proof to terminate
compensation effective March 17, 2006. After termination or modification of benefits, clearly
warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to
appellant. In order to prevail, appellant must establish by the weight of the reliable, probative and
substantial evidence that he had an employment-related disability which continued after
termination of compensation benefits.9
He submitted an April 24, 2006 report from
Dr. Hutchinson that is of little probative value to the issue presented. Dr. Hutchinson stated that
appellant continued to have restrictions as outlined in 2001, without providing a reasoned
medical opinion on causal relationship between any disability and federal employment. The
evidence is not sufficient to establish a continuing employment-related disability or condition
after March 17, 2006.
CONCLUSION
The Office met its burden of proof to terminate compensation for wage-loss and medical
benefits as of March 17, 2006.

9

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 11 and March 17, 2006 are affirmed.
Issued: February 21, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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K.E., Appellant
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and
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DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
Hilliard, FL, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-85
Issued: April 9, 2009

Oral Argument February 12, 2009

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated September 11, 2008, which denied modification of a
June 19, 2008 decision denying his 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 the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On March 26, 2008 appellant, then a 55-year-old air traffic controller, filed a traumatic
injury claim alleging that on March 25, 2008 he sustained traumatic stress due to the behavior of

an operations manager.
subsequently retired.

He stopped work on March 25, 2008 and did not return and

On April 7, 2008 the Office asked appellant to submit additional factual and medical
information, including a detailed description of the employment factors or incidents that he
believed contributed to his claimed illness. In a letter of the same date, it requested the
employing establishment provide comments from a knowledgeable supervisor on the accuracy of
appellant’s statements and allegations.
Appellant submitted an attending physician’s report from Dr. Ronnie L. Burak, a
psychologist, dated April 1, 2008, who diagnosed post-traumatic stress disorder as a result of an
incident at work. Dr. Burak noted with a checkmark “yes” that appellant’s condition was caused
or aggravated by an employment activity and was not able to return to work at this time.
The employing establishment submitted a statement from Mario Bosque, operations
manager, dated March 25, 2008. Mr. Bosque indicated that on the same date appellant
approached him and asked if his boots were considered “work boots” and therefore not
compliant with the dress code. He replied “yes” and appellant indicated that he had been
wearing the boots for six years and would continue to wear them. Mr. Bosque noted informing
appellant that “he was talking to the wrong person like that and to get a [u]nion rep[resentative.]”
He indicated that appellant proceeded to his workstation and requested a union representative
from the front-line manager, Dennise Roseman. Mr. Bosque indicated that after a few minutes
Ms. Roseman advised that she could not find a union representative. He indicated that he was
going to speak with appellant about his insubordinate attitude in the presence of a union
representative; however, since a representative could not be located he proceeded to counsel
appellant in front of Ms. Roseman about the dress code as set forth in the employee handbook.
Mr. Bosque inquired as to whether appellant was ill and he stated that he was fine until he was
questioned about his boots. He indicated that he sent appellant home to change his boots and
appellant responded that if he left to change his boots he would not return. Mr. Bosque noted
that appellant stated that he was being harassed and left work. He instructed Ms. Roseman to
note appellant as absent without leave. Also submitted was a statement from Dan Weston, a
coworker, dated March 25, 2008, who noted that he was on duty when appellant approached
Mr. Bosque regarding his boots and noted Mr. Bosque advised appellant that his boots were
considered work boots. He indicated that appellant stated that he had been wearing the footwear
for six years and would continue to wear the boots. Mr. Weston indicated that Mr. Bosque
instructed appellant to get a union representative for a discussion and after a few minutes
appellant and Ms. Roseman returned to the watch desk where Mr. Bosque recited the contract
language pertaining to dress code. He indicated that appellant stated that he was being harassed
and was going to leave work and did not know when he would return. Mr. Weston indicated that
he overheard this conversation but did not hear every word or comment of the discussion.
The employing establishment submitted a copy of Article 69 of the handbook for
controllers, entitled “dress code” which provided: “Section 2. The mode of attire for the
workplace shall be business casual…. Shoes shall be neat and clean. Articles of inappropriate
attire include, but are not limited to, jogging suits, shorts, sweats (pants, shirts, shorts), jeans,
tee/tank/muscle/sleeveless shirts (for men).… Flip-flops, flat sandals and athletic shoes are
prohibited.”

2

In an April 16, 2008 letter, Kim M. Olson, office program consultant for the employing
establishment, indicated that the dress code for air traffic controllers was outlined in Article 69 of
the handbook for controllers. She indicated that the term “business casual” has been further
defined verbally on a number of occasions to the air traffic workforce and was defined as
“leather loafers or leather shoes that tie, whereas sandals, work boots and athletic footwear
(tennis shoes, etc.) would be considered unacceptable.” Ms. Olson indicated that on March 25,
2008 Mr. Bosque instructed appellant to get a union representative to participate in the
discussion; however, a representative was not located and Mr. Bosque made the decision to
conduct the discussion without a representative. She noted Mr. Bosque informed appellant that
his shoes did not meet the dress code and asked him to return home to change them and to
indicate the type of leave he would be using when he left the facility. Ms. Olson indicated that
appellant left the facility and did not return. She stated that her office recently conducted a
conference with the facility personnel manager, Rebecca Dawkins, who confirmed that the dress
code has been both well documented and discussed at management and employee meetings on a
number of occasions to further define “business casual” and answer employee questions about
the issue. Ms. Olson quoted Ms. Dawkins as stating that “there should be no question that work
boots do not fit within what is considered appropriate footwear.” In a May 1, 2008 statement,
Ms. Olson indicated that appellant filed an Equal Employment Opportunity (EEO) complaint
against an assistant manager, Pepe Garcia, when he was not selected for a particular staff
position. She indicated that the EEO complaint, filed on March 6, 2008, was still in the informal
counseling state with no formal finding. Ms. Olson noted that appellant inquired about the
mandatory retirement age of 56 for air traffic controllers and sought to explore his employment
options. She stated that appellant submitted a job application for a military liaison position
within the agency; however, he was not selected and filed an EEO complaint. Ms. Olson
indicated that the candidate selected for the position was over 40 years old. She asserted that
appellant’s reaction was self-generated and not within the performance of duty.
Appellant submitted a report from Dr. Burak, dated April 20, 2008, who noted treating
him for anxiety and insomnia, which were triggered by a traumatic incident at work.
In a May 12, 2008 decision, the Office denied appellant’s claim finding that he failed to
meet his burden of proof in establishing that he sustained an injury in the performance of duty on
March 25, 2008.
On May 27, 2008 appellant requested reconsideration. He submitted an April 28, 2008
statement and indicated that on November 20, 2007 he approached his assistant chief and
expressed his desire to apply for two staff positions within his facility. Appellant indicated that
the assistant chief advised him that one of the positions was advertised for a younger candidate to
groom to be a supervisor. He advised that in February 2008 he learned that a younger person
was selected for the position and he filed an EEO complaint based on age discrimination.
Appellant indicated that, on March 25, 2008, his supervisor, Ms. Roseman, counseled him on his
work attire as she had been instructed to do so by the operations manager, Mr. Bosque.
Appellant noted that Ms. Roseman stated that she found nothing wrong with his boots and he
requested permission to speak to Mr. Bosque about the matter. He indicated that he inquired of
Mr. Bosque what was wrong with his boots and Mr. Bosque stated that they were inappropriate
for the workplace. Appellant noted that he had worn the boots for five years without complaint.
He stated that Mr. Bosque advised him to get his supervisor and union representative; however, a

3

union representative was unavailable. Appellant noted that Mr. Bosque proceeded to speak to
him in a loud manner reading from Article 69 of the employee handbook and instructed him to
go home and change his boots. He alleged that this incident was in retaliation for filing an EEO
complaint and noted other coworkers were also wearing boots and not approached regarding
their attire. Appellant alleged that he was harassed and could not continue to work in a hostile
environment. He submitted a work capacity evaluation prepared by Dr. Burak dated May 22,
2008 who diagnosed post-traumatic stress disorder and advised that appellant could not return to
work.
In a June 19, 2008 decision, the Office modified the prior decision but denied the claim.
It noted that an incident did occur on March 25, 2008 and appellant was diagnosed with a
medical condition in connection with the incident. However, the Office advised that appellant
did not establish a compensable work factor in the performance of duty. It noted that the
employing establishment submitted statements indicating that appellant was advised by his
supervisors that his footwear was outside the employing establishment’s dress code. The Office
noted that appellant had a union representative when he was counseled by Mr. Bosque. It noted
Article 69 of the employee handbook and stated: “Statements on file from your [employing
establishment] supporting that the dress code imposed by your [employing establishment] was
clarified to be ‘business casual’ and that all employees were previously advised in detail before
your date of injury what was interpreted by management to be business casual attire. Of note is
that your [employing establishment] advised that footwear such as sandals, work boots and
athletic footwear was specifically outside of the dress code.”
On August 26, 2008 appellant requested reconsideration. He submitted a July 28, 2008
statement and reasserted his allegation that the counseling session with Mr. Bosque regarding his
boots was a reprisal for filing an EEO complaint. He alleged that two of his coworkers wore
similar boots and were not counseled and he believed that he was singled out by management.
Appellant indicated that he had no union representation during the counseling session with
Mr. Bosque.
Appellant submitted an August 13, 2008 statement from Ms. Roseman, his front-line
supervisor, who noted that Mr. Bosque bought to her attention that his boots were not dress code
compliant. Ms. Roseman did not see a problem with appellant’s boots as they were not the
yellow work boot that was prohibited. She advised that she was instructed by Mr. Bosque to
send appellant home to change his footwear. Ms. Roseman indicated that she attempted to
obtain a union representative for appellant prior to confronting him but there was no
representative available. She indicated that Mr. Bosque instructed her to continue the meeting
without a representative and if appellant had questions he could speak with Mr. Bosque.
Appellant requested to speak with Mr. Bosque where she witnessed a heated discussion, which
concluded when Mr. Bosque instructed him to go home and change his footwear and return to
work. Ms. Roseman reported that appellant was too upset to return and indicated that he was
going home on leave. She noted that the only individuals present were appellant, Mr. Bosque
and herself. Appellant submitted a statement from William E. Beaumont, an air traffic
controller, who indicated that he routinely wore boots to work, was wearing boots on the day he
was counseled and management did not question him about his foot wear. In another statement,
David Cook, a union facility representative at the employing establishment, indicated that he
wore boots to work without incident. He noted there was no boot policy, negotiated or imposed,

4

at the employing establishment. Appellant submitted a statement from Steven R. Coleman, an
air traffic controller, who indicated that on the day appellant was confronted by management
about his boots he wore similar boots and was not counseled. He noted that he was unaware of a
policy prohibiting boots and, if there was such a policy, it was not enforced. Mr. Coleman
advised that, after management confronted appellant about his boots, he and other controllers
continued to wear boots and were ignored by management.
Appellant submitted a copy of Article 6 of a union contract which addressed union
representation rights for employees. Section 1 provides: “When it is known in advance that the
subject of a meeting is to discuss or investigate a disciplinary or potential disciplinary situation,
the employee shall be so notified of the subject matter in advance. The employee shall also be
notified of his/her right to be accompanied by a [u]nion representative if he/she so desires and
shall be given a reasonable opportunity both to obtain such representation and confer
confidentially with the representative before the beginning of the meeting.” Section 1 further
notes “This [s]ection applies to meetings conducted by all Management representatives….”
By decision dated September 11, 2008, the Office denied modification of the June 19,
2008 decision.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
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 under the Act.4 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.5 On
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

5

Lillian Cutler, supra note 2.

5

the other hand, the disability is not covered where it results from such factors as an employee’s
fear of a reduction-in-force or his frustration from not being permitted to work in a particular
environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS
Appellant alleged that he was singled out and harassed by the operations manager,
Mr. Bosque, on March 25, 2008 when he was counseled for wearing boots which Mr. Bosque
advised were inappropriate for the workplace. He indicated that he had been wearing the boots
for five years without complaint. Appellant indicated that Mr. Bosque advised him to get his
supervisor and union representative; however, a union representative was unavailable.
Mr. Bosque proceeded to counsel him without representation and instructed him to go home and
change his boots. Appellant asserted that Mr. Bosque was harassing and retaliating against him
for filing an EEO complaint because other coworkers were also wearing boots and were not
counseled on their attire.
The Office’s June 19, 2008 decision is based on the premise that a union representative
was present when appellant was counseled by Mr. Bosque on March 25, 2008 with regard to his
boots. The claims examiner further noted that there were statements from appellant’s agency
supporting that the dress code imposed was clarified and that all employees were previously
advised in detail what was interpreted to be business casual attire and that work boots were
known to be outside of the dress code. The Board finds that the Office’s finding of facts with
respect to these statements is inadequate.
The June 19, 2008 decision relies on a statement from Mr. Weston confirming that a
union representative was present at the counseling session on March 25, 2008 between appellant
and Mr. Bosque; however, an examination of the record reveals that Mr. Weston’s knowledge of
the conversation was incomplete as he was not a party to the discussion but merely overheard the
conversation. Mr. Weston specifically stated that he “could not hear every word or comment of
the discussion.” Mr. Weston, in his statement dated March 25, 2008, does not indicate that a
6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Culter, id.

7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

6

union representative was present at the counseling session; rather, he noted that Mr. Bosque
instructed appellant to get a union representative for a discussion and that after a few minutes
appellant and Ms. Roseman returned to the watch desk where Mr. Bosque proceeded to counsel
appellant. Likewise, in a statement from Ms. Roseman, dated August 13, 2008, she noted
attempting to obtain a union representative for appellant but there was no representative
available. She indicated that Mr. Bosque instructed her to continue the meeting without a
representative.
Additionally, Ms. Olson, office program consultant for the employing
establishment, acknowledged that a union representative was not located and Mr. Bosque
proceeded with the counseling session. Therefore, contrary to the findings of the Office, the
evidence does not establish that appellant had union representation at the time of the counseling
session.
In the June 19, 2008 decision, the Office found that statements from the employing
establishment supported that the dress code imposed was clarified and that all employees were
previously advised in detail what was interpreted to be business casual attire. The Board finds
that the Office’s finding with respect to the dress code is not substantiated in the record. The
evidence included Article 69 of the employee handbook which, as noted, identifies types of dress
that are permitted and those which are inappropriate. There is no mention in Article 69 that work
boots are prohibited. A review of the record reveals that the policy against wearing boots to
work was only substantiated by a subsequent letter from Ms. Olson on April 16, 2008, after
appellant’s work incident and there is no further evidence that there was prior dissemination of a
broader interpretation of Article 69 of the employee’s handbook. Although Ms. Olson indicated
that the dress code for air traffic controllers as outlined in Article 69 had been further defined
verbally on a number of occasions to the air traffic workforce to exclude work boots and was
both well documented and discussed at management and employee meetings, the employing
establishment did not cite specific instances of when, where and how the broader interpretation
of Article 69 was disseminated. Furthermore, appellant’s supervisor, Ms. Roseman, noted that
she did not see a problem with appellant’s boots as they were not the yellow work boots that
were prohibited. Likewise, appellant’s coworkers, including Mr. Beaumont, Mr. Cook and
Mr. Coleman, all indicated that they routinely wore boots to work and were wearing boots on the
day he was counseled and yet they were not counseled by management.
It is the Office’s obligation, as part of its adjudicatory function, to consider the entire
record and make accurate findings based on the content of the record and supported by the
evidence in the record as to whether a compensable work factor has been substantiated. The
Board finds that the Office has failed to fulfill its duty in this regard. The case will be remanded
to the Office for proper findings of fact with respect to the evidence of record. After such further
development as the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

7

ORDER
IT IS HEREBY ORDERED THAT the September 11 and June 19, 2008 decisions of
the Office of Workers’ Compensation Programs are set aside and the case remanded for further
action consistent with this decision.
Issued: April 9, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 08-1478
Issued: March 9, 2009

Case Submitted on the Record

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

JURISDICTION
On April 25, 2008 appellant filed a timely appeal from a February 25, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. Because more than one year has elapsed from the merit decision dated
November 8, 2006 to the filing of this appeal on April 25, 2008, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his February 7, 2008 request was untimely filed
and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 7, 2006 appellant, a 44-year-old letter carrier, filed a traumatic injury
claim for a lower back injury he sustained on April 2, 2005 while carrying three parcels and a
satchel of mail up a flight of stairs.

The employing establishment controverted appellant’s claim, stating that he had already
filed a Form CA-2a for the same date and injury and noted that he repeatedly changed his
allegations, finding it impossible to determine the nature, degree and extent of his injury.1
In a letter dated September 27, 2006, the Office advised appellant that further information
was required to establish his claim, including evidence that established the incident or
employment factor alleged to have caused the injury, a diagnosis of his condition and a medical
opinion as to how his alleged injury resulted in the diagnosed condition.
By decision dated November 8, 2006, the Office denied appellant’s traumatic injury
claim because the evidence submitted was insufficient to establish that he sustained an injury as
defined by the Federal Employees’ Compensation Act at the time, place and in the manner
alleged.2
By letter dated February 7, 2008, appellant requested reconsideration of the November 8,
2006 decision denying his claim for a work-related injury. In support of his request, he
submitted a November 9, 2007 medical report of Dr. Bassam Yassine, Board-certified in family
medicine, who noted a history of an April 2, 2005 injury while delivering mail and diagnosed
appellant with lumbar strain.
By decision dated February 25, 2008, the Office denied appellant’s reconsideration
request because it was not made within the one-year time period prescribed by 20 C.F.R.
§ 10.138(2) and the evidence did not demonstrate that the Office had committed clear evidence
of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.5 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
1

The record reflects that on April 13, 2005 appellant filed a recurrence claim (Form CA-2a) for an alleged June 9,
2004 lower back injury. The Office denied that claim on August 4, 2004.
2

On January 18, 2007 the Office advised appellant that he was not entitled to continuation of pay as his claim had
been denied.
3

20 C.F.R. § 10.607(a).

4

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

5

See 20 C.F.R. § 10.607(b); Cresenciano Martinez, 51 ECAB 322 (2000).

2

forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error in the most recent merit decision. To
show clear evidence of error, the evidence submitted must be of sufficient probative value to
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of the decision. The Board makes an independent determination of whether a
claimant has submitted clear evidence of error.9
ANALYSIS
In its February 25, 2008 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. The merit decision denying appellant’s claim was dated
November 8, 2006. Appellant requested reconsideration on February 7, 2008. Thus, the
reconsideration request is untimely as it was made outside the one-year time limit.
The Board also finds that appellant’s February 7, 2008 request for reconsideration failed
to demonstrate clear evidence of error. Appellant’s claim was denied because he did not
establish that he sustained an injury at the time, place and in the manner alleged. In connection
with his request for reconsideration, he submitted an unsigned medical report purportedly from
Dr. Yassine, which provided a diagnosis of lumbar sprain. This evidence does not address the
underlying issue in this case, that is, whether appellant sustained an injury at the time, place and
in the manner alleged. Furthermore, the Board has held that an unsigned medical report with no
adequate indication that it was completed by a physician is not considered probative medical
evidence.10 For these reasons, the Office properly determined that appellant’s request for
reconsideration did not establish clear evidence of error.

6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the Office made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
7

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

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

Nancy Marcano, 50 ECAB 110 (1998).

10

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

3

CONCLUSION
The Board finds appellant’s untimely request for reconsideration did not establish clear
evidence of error on the part of the Office.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 25, 2008 is affirmed.
Issued: March 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Charlestown, MA, Employer
__________________________________________

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

Docket No. 15-332
Issued: April 6, 2015

Case Submitted on the Record

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

JURISDICTION
On November 26, 2014 appellant filed a timely appeal from a September 2, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
June 8, 2013.

1
2

5 U.S.C. § 8101 et seq.

Appellant has submitted additional medical evidence on appeal, but the Board can review only evidence that
was before OWCP at the time of the September 2, 2014 on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On August 2, 2013 appellant, then a 48-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on June 8, 2013 she sustained an injury at work when she sidestepped
a tub of mail and twisted her back. She stated that she felt pain in her lower back and down her
legs. Appellant did not stop work.
Appellant submitted an August 1, 2013 report from Dr. Lee Zohn, a chiropractor, who
provided a history of a June 8, 2013 injury and results on examination. Dr. Zohn diagnosed
probable reinjury to L5-S1 disc herniation, intermittent spasm, lumbosacral sprain/strain, and
lumbar segmental joint dysfunction. He indicated that a lumbar magnetic resonance imaging
(MRI) scan would be requested.
By letter dated August 12, 2013, OWCP requested that appellant submit additional
evidence. It noted that a chiropractor was not a physician unless there is a diagnosed spinal
subluxation as demonstrated by x-ray.
In a decision dated September 13, 2013, OWCP denied the claim for compensation. It
found that the medical evidence was insufficient to establish the claim.
On June 26, 2014 appellant requested reconsideration of her claim. She submitted a
November 11, 2013 report from Dr. Mark Lapp, a Board-certified orthopedic surgeon, who
stated that she was seen for chronic back and leg pain. Dr. Lapp stated that appellant had
reported that she reinjured her back in the summer when she twisted, and her biggest current
complaint was right leg pain. He reported that x-rays showed degenerative disc disease at L4-5
and L5-S1, with very slight rotary subluxation at L3-4. Dr. Lapp also stated that an MRI scan
showed more advanced degenerative disc disease at L4-5. He diagnosed acute chronic low back
pain, multiple level degenerative disc disease, more recent right leg pain, hip, and low back pain.
In a report dated February 10, 2014, Dr. Lapp indicated that an electromyogram was
normal, with an MRI scan showing degenerative disc disease at L3-S1, worse at L4-5. He
diagnosed acute chronic low back pain, multiple level degenerative disc disease, right leg pain,
degeneration of intervertebral disc, sciatica, and spinal stenosis.
Dr. Zohn later diagnosed on February 14, 2014 lumbar disc derangement with
radiculopathy, spasm, and lumbar joint dysfunction. He opined that the work injury of June 8,
2013 caused a reinjury to an already compromised lumbar spine. In a report (Form CA-20)
dated February 14, 2014, Dr. Zohn diagnosed disc herniation with right radiculopathy, leg
weakness, and intermittent spasm. He checked a box “yes” as to causal relationship with
employment.
By decision dated September 2, 2014, OWCP reviewed the case on its merits. It found
that the medical evidence was insufficient to establish a diagnosed condition as causally related
to the June 8, 2013 employment incident.

2

LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”4 An employee seeking benefits under FECA has the burden of proof to establish
that he or she sustained an injury while in the performance of duty.5 In order to determine
whether an employee actually sustained an injury in the performance of duty, OWCP begins with
an analysis of whether “fact of injury” has been established. Generally, “fact of injury” consists
of two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.6
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.7 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.8
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.9
5 U.S.C. § 8101(2) provides that the term ‘“physician’ … includes chiropractors only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.”10
3

5 U.S.C. § 8102(a).

4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

8

Id., Chapter 2.805.3(d) (January 2013).

9

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

10

5 U.S.C. § 8101(2). See also 20 C.F.R. § 10.5(bb): “Subluxation means an incomplete dislocation, offcentering, misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrable on any x-ray
film to an individual trained in the reading of x-rays.”

3

ANALYSIS
In the present case, appellant alleged that she sustained an injury on June 8, 2013 when
she twisted while sidestepping a tub of mail. OWCP accepted that the employment incident
occurred as alleged. The issue is whether there is sufficient medical evidence to establish causal
relationship between a diagnosed condition and the employment incident.
Appellant initially sought treatment from Dr. Zohn, a chiropractor on August 1, 2013.
However, as shown in legal precedent, Dr. Zohn cannot be considered a physician under FECA
unless he diagnoses a subluxation as demonstrated by x-ray to exist. He did not review x-rays or
diagnose a subluxation based on those x-rays. The August 1, 2013 and February 14, 2014
reports did not refer to a review of x-rays and did not provide a subluxation diagnosis.11 Since
Dr. Zohn did not diagnose a subluxation as demonstrated by x-rays to exist, his reports are of no
probative value as he is not a physician under FECA.12
The attending orthopedic surgeon, Dr. Lapp, did not provide an opinion on causal
relationship between a diagnosed condition and the employment incident in either his
November 13, 2013 or February 10, 2014 reports. In his November 13, 2013 report, he provides
a brief reference to appellant reinjuring her back during the previous summer, without providing
a clear description of the June 8, 2013 incident. Dr. Lapp does not provide an opinion, supported
by sound medical rationale, on causal relationship between a specific diagnosed condition, and
the employment incident.
The record does not contain a medical report from a physician with a complete factual
and medical background, and a medical opinion supported by medical rationale explaining the
nature of the relationship between a diagnosed condition and the June 8, 2013 employment
incident. Appellant did not meet her burden of proof this case and OWCP properly denied her
claim.
On appeal, appellant states that her claim was initially denied because she did not timely
notify her supervisor. However, the record reflects that the claim for compensation was denied
because the medical evidence of record was insufficient to establish the claim. For the reasons
noted above, the medical evidence of record was insufficient to establish the claim. Appellant
may submit new evidence or argument with a written application for reconsideration to OWCP
within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty on
June 8, 2013.
11

The only reference to x-rays was from Dr. Lapp on November 11, 2013. The record does not contain an x-ray
report, nor is there any indication that Dr. Zohn reviewed the x-rays.
12

See L.B., Docket No. 14-2005 (issued January 28, 2015); E.B., Docket No. 09-1055 (issued
December 14, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 2, 2014 is affirmed.
Issued: April 6, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westland, MI, Employer
__________________________________________

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

Docket No. 19-1663
Issued: March 10, 2020

Case Submitted on the Record

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

JURISDICTION
On August 1, 2019 appellant filed a timely appeal from a July 26, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated April 25, 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.
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.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 5, 2018 appellant, then a 42-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 4, 2018 she injured her right hand when she had a
hard time turning the key to her vehicle while in the performance of duty. She did not stop work.
In a January 5, 2018 medical report, Dorothy McShane, a physician assistant, indicated
that appellant presented with pain in her right wrist and thumb as a result of it being hard to turn a
key in the ignition. She diagnosed sprain of the right thumb and referred appellant to physical
therapy. In a physical therapy report of that same date, Sven Pfefferkorn, a physical therapist,
outlined his evaluation, therapy assessment, goals, and treatment plan for appellant’s right thumb
sprain.
Appellant also provided the second page of a January 5, 2018 attending physician’s report
(Form CA-20) with an illegible signature. The form noted that she sustained a sprained thumb
after her key stuck as she was turning it in the ignition. A box check marked “yes” indicated that
appellant’s condition was caused or aggravated by her employment activity.
In a January 8, 2018 medical report, Ms. McShane, noted that appellant had begun physical
therapy to treat her sprained right thumb, and that her symptoms were improving. In an
accompanying medical note, she noted that appellant could return to work with restrictions.
Wadler Fleurina, a physician assistant, noted in a February 1, 2018 report, that appellant
had pain in her right wrist and numbness in her right fingers. He also diagnosed a sprain of her
right thumb and de Quervain’s tenosynovitis.
In a February 8, 2018 medical report, Dr. Andrea Breese, Board-certified in family
medicine, noted that appellant’s symptoms and pain from appellant’s January 4, 2018 work
incident remained unchanged. She diagnosed a sprain of the right thumb and de Quervain’s
tenosynovitis and estimated that appellant had healed roughly 25 percent. In a February 15, 2018
medical report, Dr. Breese indicated that appellant’s conditions had healed roughly 50 percent.
In a February 22, 2018 medical report, Ms. McShane noted that appellant was still
experiencing sharp and aching pain in her right hand and diagnosed right de Quervain’s
tenosynovitis.
In a February 27, 2018 medical report, Dr. Germaine Fritz, a Board-certified orthopedic
surgeon, noted appellant’s history of injury in relation to the January 4, 2018 employment incident
and provided that she had undergone therapy and received medication to treat her conditions. He
diagnosed right de Quervain’s tenosynovitis and mild right osteoarthritis of the first
carpometacarpal.
Appellant also provided physical therapy notes from multiple occupational therapists dated
from January 10 to February 23, 2018 in which they noted her treatment for a right thumb sprain
and de Quervain’s tenosynovitis.
In a development letter dated March 16, 2018, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
2

continuation of pay was not controverted by the employing establishment, and thus, limited
expenses had, therefore, been authorized. However, a formal decision was now required. OWCP
advised appellant of the type of factual and medical evidence required to establish her traumatic
injury claim and provided her with a questionnaire seeking further information related to the
January 4, 2018 employment incident. It also requested a narrative medical report from her
physician which provided the physician’s rationalized medical explanation as to how the alleged
employment incident caused the diagnosed condition. OWCP afforded appellant 30 days to
respond.
In response, appellant provided a March 13, 2018 medical report from Dr. Fritz, in which
he noted that an injection she received to her right first dorsal compartment provided significant
relief to pain in her right hand.
In a medical report dated March 29, 2018, Dr. David Pommerening, Board-certified in
preventative medicine, noted another check-up of appellant’s right hand in relation to her
de Quervain’s tenosynovitis and right thumb sprain.
Appellant also provided multiple medical reports and physical therapy notes from
March 13 to April 5, 2018 discussing treatment for de Quervain’s tenosynovitis of the left wrist
and a left wrist sprain.
By decision dated April 25, 2018, OWCP denied appellant’s traumatic injury claim finding
that the evidence she submitted was insufficient to establish the factual component of fact of injury.
It noted that it was unclear as to what caused her condition as she failed to respond to the factual
inquiries and, therefore, had not established the factual component of her claim.
Appellant continued to submit evidence to OWCP including copies of reports previously
of record. She also provided medical reports and therapy notes dated from April 16, 2018 to
February 22, 2019, detailing her treatment for injuries to her left wrist and left knee.
On April 29, 2019 appellant requested reconsideration of OWCP’s April 25, 2018
decision.
Along with her reconsideration request, appellant provided a response to OWCP’s
questionnaire. She explained that, while on her route, the ignition switch in her vehicle was
difficult to turn because it was cold outside and her postal truck was old. As appellant tried to turn
the ignition switch over and over again, she felt pain in her right hand. She then called her
supervisor to inform him that she had injured her hand.
By decision dated July 26, 2019, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.

3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.3 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.4 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System).5 The Board has found that the
imposition of the one-year limitation does not constitute an abuse of the discretionary authority
granted OWCP under section 8128(a) of FECA.6
OWCP may not deny request for reconsideration solely because it was not timely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.7 OWCP’s
regulations and 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(a), if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.8
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting 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.9 The Board
notes that clear evidence of error is intended to represent a difficult standard.10 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.11 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.12 This entails a limited review by OWCP of
2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
3

20 C.F.R. § 10.607(a).

4

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

5

Id. at Chapter 2.1602.4(b) (February 2016).

6

See R.L., Docket No. 18-0496 (issued January 9, 2019).

7

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 4 at Chapter 2.1602.5(a) (February 2016).

9

G.G., supra note 7.

10

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 6.

11

E.B., Docket No. 18-1091 (issued December 28, 2018).

12

J.W., Docket No. 18-0703 (issued November 14, 2018).

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the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.13 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.14 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.15
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.16 As appellant’s April 29, 2019 request for reconsideration
was not received within one year after the issuance of OWCP’s last merit decision, dated April 25,
2018, it was untimely filed. Consequently, she must demonstrate clear evidence of error by OWCP
in its April 25, 2018 decision.17
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision.
OWCP denied appellant’s claim on a factual basis, i.e., the failure to establish the factual
component of fact of injury. Upon reconsideration, appellant submitted her response to OWCP’s
March 16, 2018 questionnaire received on April 29, 2019, in which she explained that because it
was cold outside and her postal truck was old, she felt pain in her right hand after trying to turn
the ignition switch over and over. The Board notes, however, that she did not explain how this
argument raised a substantial question as to the correctness of OWCP’s April 25, 2018 decision.
Appellant submitted no other factual documents in support of her argument that, on their face,
demonstrate that OWCP’s denial of the claim was erroneous or raise a substantial question as to
the correctness of OWCP’s determination that she did not establish fact of injury.18 The Board
has held that the term clear evidence of error is intended to represent a difficult standard.19 As
such, the Board finds that this evidence is insufficient to demonstrate clear evidence error in
OWCP’s April 25, 2018 decision.
Appellant also submitted medical evidence dated from April 16, 2018 to February 22, 2019
from multiple physicians and occupational therapists detailing their treatment of her for a right
13

P.L., Docket No. 18-0813 (issued November 20, 2018).

14

A.F., 59 ECAB 714 (2008); D.G., 59 ECAB 455 (2008).

15

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

16

20 C.F.R. § 10.607(a).

17

Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

18

See P.O., Docket No. 13-0092 (issued April 4, 2013).

19

Supra note 10.

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thumb sprain, de Quervain’s tenosynovitis and mild right osteoarthritis of the first
carpometacarpal. She also provided medical evidence detailing her treatment related to injuries to
her left wrist and left knee. The Board notes, however, that the submission of this medical evidence
does not demonstrate clear evidence of error in OWCP’s April 25, 2018 decision. The underlying
issue of this case is not medical in nature. Rather, it is factual in nature because appellant’s
traumatic injury claim was denied due to her failure to establish fact of injury. Even if fact of
injury were established and an evaluation of medical evidence was undertaken, the medical
evidence would not tend to raise a substantial question concerning the correctness of OWCP’s
April 25, 2018 decision.20
The Board finds that appellant’s request for reconsideration does not show on its face that
OWCP committed error when it found in its April 25, 2018 decision that she failed to establish
fact of injury. For these reasons, OWCP properly determined that she did not demonstrate clear
evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

20

See R.M., Docket No. 18-1393 (issued February 12, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 16-0395
Issued: May 24, 2016

Case Submitted on the Record

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

JURISDICTION
On December 29, 2015 appellant filed a timely appeal from a July 7, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant had no more than seven
percent permanent impairment of the left upper extremity and two percent permanent impairment
of the right upper extremity, for which she previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances set forth in
the prior decision are incorporated herein by reference. The facts relevant to this appeal are set
forth below.
On December 9, 2004 appellant, then a 54-year-old general clerk, filed an occupational
disease claim (Form CA-2) for bilateral carpal tunnel syndrome due to repetitive job duties.
OWCP assigned file number xxxxxx127 and accepted the claim for bilateral aggravation of
carpal tunnel syndrome. It paid compensation and authorized left-sided carpal tunnel surgery in
March 2006 and right-sided carpal tunnel surgery in July 2006 performed by Dr. James Plettner,
a Board-certified hand surgeon. Appellant returned to regular full-time, full-duty work on
December 28, 2007. She later claimed a bilateral trigger finger condition for which she
underwent a right trigger thumb release on July 3, 2007 and left middle finger trigger release on
November 20, 2007. These surgeries were also performed by Dr. Plettner. Under file number
xxxxxx589, OWCP accepted bilateral trigger finger conditions and combined the two claims
under file number xxxxxx127.
On January 30, 2008 Dr. Plettner noted appellant’s complaints of soreness and discomfort
over the wrists with increased activities. On examination, he could not find any objective
findings of pathology in either hand. Dr. Plettner advised appellant that there was nothing
further he could do regarding her carpal tunnel and trigger finger releases. He recommended
over-the-counter anti-inflammatory medication.
On September 2, 2008 appellant filed a claim for a schedule award (Form
CA-7). Dr. Plettner did not respond to OWCP’s request to provide an impairment rating
utilizing the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter, A.M.A., Guides) then in effect. Therefore, OWCP obtained
a second opinion from Dr. E. Gregory Fisher, a Board-certified orthopedic surgeon.
Dr. Fisher submitted a January 8, 2009 report summarizing appellant’s work injuries and
treatment. He reviewed the statement of accepted facts and medical evidence. On examination,
Dr. Fisher found full ranges of motion of the elbows, forearms, wrists, and fingers, with no
locking or triggering of any digits. Range of motion of each wrist revealed flexion of 65
degrees, extension of 60 degrees, radial deviation of 25 degrees and ulnar deviation of 30
degrees bilaterally. Dr. Fisher indicated that there was some mild soreness over each wrist on
the dorsal side and volar aspect on flexion and extension with some referred pain going up the
arm. There was no swelling or atrophy in either arm. Tinel’s and Phalen’s signs were bilaterally
negative. Referring to the fifth edition of the A.M.A., Guides, he found that appellant had no
digit impairment as she had full range of motion of all fingers and thumbs without any triggering
effect. Appellant also had full wrist range of motion bilaterally in all planes. Dr. Fisher found
no impairment for carpal tunnel syndrome as appellant had no muscle atrophy, muscle loss or
weakness. Appellant also had no ratable deficit for sensory and motor loss in the median nerve

2

Docket No. 09-2142 (issued June 3, 2010).

2

distribution. Dr. Fisher concluded that appellant had no impairment for the accepted conditions
of bilateral carpal tunnel syndrome and bilateral trigger finger.
In a January 28, 2009 report, Dr. Stanley Askin, an OWCP medical adviser reviewed
appellant’s medical record. He opined that appellant reached maximum medical improvement
on December 28, 2007, the date she returned to full duty. Based on Dr. Fisher’s findings on
examination and the A.M.A., Guides, the OWCP medical adviser agreed that appellant had no
impairment of either upper extremity due to her accepted conditions.
In an April 30, 2009 decision, OWCP denied appellant’s claim for a schedule award
finding the medical evidence of record did not establish that she sustained any permanent
impairment due to her accepted conditions. Appellant then appealed to the Board.
In a September 16, 2009 report, Dr. Peter J. Stern, an attending Board-certified
orthopedic and hand surgeon, diagnosed basal thumb arthritis of the right wrist. He noted that
appellant had worked at the employing establishment for 31 years.
Appellant retired from the employing establishment on October 31, 2009.
By decision and order issued June 3, 2010,3 the Board affirmed OWCP’s April 30, 2009
decision, finding that Dr. Fisher’s opinion, as reviewed by the OWCP medical adviser,
established that appellant had no permanent impairment of either upper extremity attributable to
the accepted bilateral carpal tunnel and trigger finger conditions. The facts and law of the case
as set forth in the Board’s prior decision and order are incorporated herein by reference.
On July 8, 2010 Dr. Stern performed a right middle finger trigger release.
In a February 2, 2011 report, Dr. Stern noted appellant’s new complaints of right wrist
pain. On examination, he observed mild swelling of both wrists consistent with synovitis, and a
positive carpometacarpal grind test on the right. Dr. Stern obtained x-rays showing capitolunate
arthritis of the right wrist. He diagnosed right wrist capitolunate arthritis. Dr. Stern noted that
appellant’s x-rays findings did not necessarily correlate with findings on physical examination.
He explained that the etiology of appellant’s right wrist pain was unclear.
On February 17, 2011 appellant claimed a recurrence of disability (Form CA-2a)
commencing July 1, 2010. In a February 28, 2011 letter, OWCP advised her that her claim
remained open for medical care. However, it was unclear why appellant was claiming lost time
from work after her retirement. OWCP noted that she could not simultaneously receive Office of
Personnel Management (OPM) retirement benefits and FECA benefits. It requested additional
information as to the nature of appellant’s claim.
On June 1, 2011 appellant’s counsel at the time requested reconsideration. He asserted
that new medical evidence established a ratable permanent impairment of both upper extremities.
Counsel provided a June 2, 2011 report from Dr. Luis F. Pagani, a Board-certified neurologist
retained to perform an impairment rating. Dr. Pagani reviewed appellant’s employment and
3

Docket No. 09-2142 (issued June 3, 2010).

3

treatment history. He related appellant’s complaints of weakness and numbness in the first and
second fingers of both hands, causing difficulty with activities of daily living. Referring to Table
15-24 of the sixth edition of the A.M.A., Guides, Dr. Pagani found a class 1 diagnosis-based
impairment for muscle/tendon impairment of the right second trigger finger and trigger thumb,
due to weakness and paresthesias. He found that “this provide[d] a QuickDASH score of 57.5,
and per Table 15-12, a modifier of +3 or grade C,” equaling six percent impairment.”5
Dr. Pagani assessed six percent impairment of the left second trigger finger for identical findings
as on the right. He also found that according to Table 15-12, appellant had three percent
impairment of each upper extremity due to bilateral carpal tunnel syndrome with weakness,
paresthesias, sensory loss, and restricted motion. Dr. Pagani combined these impairments to
equal nine percent impairment of each arm. He advised that Dr. Fisher’s opinion did not
accurately reflect appellant’s “current status and impairment.”
By decision dated August 22, 2011, OWCP denied reconsideration as appellant did not
submit pertinent new and relevant evidence regarding the claimed period of disability. It noted
that if appellant was asserting that she had a ratable permanent impairment, she should file a new
schedule award claim.
On December 6, 2011 appellant again claimed a schedule award.
In a December 21, 2011 report, Dr. Stern noted intact sensation in all dermatomes of both
hands. He obtained x-rays demonstrating capitolunate arthritis of both thumbs, with postsurgical
changes of the left thumb and excision of the trapezium. Dr. Stern diagnosed bilateral wrist pain,
right wrist capitolunate arthritis, and left carpometacarpal joint arthritis post carpometacarpal
arthroplasty. He prescribed anti-inflammatory medication.
OWCP expanded the claim on January 24, 2012, to include bilateral carpal tunnel
syndrome and localized, primary arthritis of both hands.6
On June 5, 2012 OWCP obtained a second opinion from Dr. Theodore Toan Le, a Boardcertified orthopedic surgeon. Dr. Le reviewed a copy of the medical record and a statement of
accepted facts OWCP provided for his review. He related appellant’s symptoms of dull, aching
right wrist pain interfering with activities of daily living, and intermittent stiffness throughout
both hands. On examination, Dr. Le observed “good range of motion at the wrists and all
digits,” “an enlarged MCP [metacarpal phalangeal] joint that [was] tender to the touch,” 5/5 grip
strength bilaterally, and normal sensation in both hands. He diagnosed arthritis of both hands,
most marked in the thumbs, slightly greater on the right. Dr. Le opined that the accepted
bilateral carpal tunnel syndrome and trigger finger conditions had resolved. He found that
appellant did not have a ratable impairment for arthritis according to the sixth edition of the
4

Table 15-2, page 391 of the sixth edition of the A.M.A., Guides is entitled “Digit Regional Grid: Digit
Impairments.”
5

Table 15-12, page 421 of the sixth edition of the A.M.A., Guides is entitled “Impairment Values Calculated
from Digit Impairment.”
6

Dr. Brain M. Tonne, a physician consulting to OWCP, opined in a March 6, 2012 report that OWCP should
obtain a second opinion as Dr. Stern and Dr. Pagani offered different opinions for appellant’s symptoms.

4

A.M.A., Guides, as she had “good range of motion of all digits,” and normal sensation in the
median, ulnar, and radial nerve distributions bilaterally. Dr. Le recommended continued
medication and night splints for symptomatic relief.
An OWCP medical adviser reviewed Dr. Le’s report on August 16, 2012 and concurred
that appellant had no ratable impairment of either upper extremity due to arthritis, as her range of
motion was good and she had no sensory deficits.
In a December 10, 2012 report, Dr. Stern noted restricted motion of the right wrist. He
obtained radiographs showing severe capitolunate arthritis of the right wrist with loss of cartilage
space.
By decision dated March 6, 2013, OWCP denied appellant’s schedule award claim as the
medical evidence of record did not establish that she had a ratable impairment of either upper
extremity.
Appellant disagreed and requested a telephonic hearing, held July 15, 2013. At the
hearing, she asserted that accepted arthritis in both hands caused constant pain and stiffness
interfering with activities of daily living. Appellant also provided a March 25, 2013 report from
Dr. Stern diagnosing left wrist pain of uncertain etiology and stable carpal tunnel syndrome.
By decision dated and finalized September 27, 2013, an OWCP hearing representative
affirmed the March 6, 2013 decision, finding that none of appellant’s physicians or the second
opinion specialist found any ratable upper extremity impairment.
In an October 7, 2013 report, Dr. Stern recommended scaphoid excision and four corner
fusion of the right wrist to address advanced capitolunate joint arthritis consistent with a Stage
III scapholunate advance collapse (SLAC) wrist. OWCP approved the proposed surgery on
June 2, 2014. Dr. Stern performed a scaphoid excision and intercarpal “four-corner” fusion on
the right wrist, with posterior interosseous neurectomy, on July 11, 2014.
On October 27, 2014 appellant again claimed a schedule award. In support of her claim,
she submitted a December 10, 2014 note from Dr. Samuel H. Payne, Jr., an attending Boardcertified orthopedic surgeon, who opined that appellant had 19 percent permanent impairment of
the right arm according to unspecified portions of the fifth edition of the A.M.A., Guides.
OWCP requested that Dr. Payne submit an impairment rating utilizing the sixth edition of the
A.M.A., Guides. Subsequently, he submitted the requested report under the sixth edition
protocols.
On January 22, 2015 appellant underwent an impairment rating by a physical therapist,
reviewed and approved by Dr. Payne. The therapist noted appellant’s account of chronic
bilateral wrist pain and difficulty with activities of daily living. She used a goniometer to obtain
ranges of motion for both wrists. Referring to Table 15-3 of the sixth edition of the A.M.A.,
Guides,7 the therapist found 14 percent permanent impairment of the right upper extremity due to
7

Table 15-3, page 397 of the sixth edition of the A.M.A., Guides is entitled “Wrist Regional Grid: Upper
Extremity Impairments.”

5

a class 2 intercarpal fusion, with the following impairments for limited motion according to
Table 15-23 of the sixth edition:8 seven percent for wrist flexion limited to 19 degrees; three
percent for wrist extension limited to 24 degrees; two percent for radial deviation at 15 degrees;
two percent for ulnar deviation at 21 degrees. The therapist found three percent permanent
impairment of the left arm according to Table 15-32, due to wrist flexion limited to 54 degrees.
On April 3, 2015 Dr. H.P. Hogshead, an OWCP medical adviser, reviewed the
January 22, 2015 impairment rating approved by Dr. Payne. He opined that appellant attained
maximum medical improvement on December 10, 2014, the date of Dr. Payne’s first impairment
rating. The medical adviser asserted that limited motion was “largely irrelevant to the accepted
conditions.” He requested that OWCP obtain additional information about the functioning of
appellant’s left thumb and any median nerve impairment due to carpal tunnel syndrome.
Dr. Payne provided an April 30, 2015 report noting in findings from his April 23, 2015
examination, that appellant had normal two-point discrimination for all digits in both hands
except the thumbs. He observed no restriction of left thumb motion, but noted pain with
carpometacarpal joint compression.
Dr. Hogshead, the OWCP medical adviser, reviewed Dr. Payne’s addendum on
May 15, 2015. He opined that Dr. Payne’s impairment rating could not be utilized as it was
based on the fifth edition of the A.M.A., Guides, not the sixth edition. The medical adviser
asserted that Dr. Payne’s April 30, 2015 report was not relevant. He opined that appellant had
two percent permanent impairment of each upper extremity due to residual carpal tunnel
syndrome according to Table 15-23, and an additional five percent impairment of the left upper
extremity due to left thumb impairment according to Table 15-2.
By decision dated July 7, 2015, OWCP granted appellant a schedule award for seven
percent impairment of the left upper extremity and two percent impairment of the right upper
extremity. The period of the award ran from December 10, 2014 to June 24, 2015.
LEGAL PRECEDENT
The schedule award provisions of FECA9 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized 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 OWCP as a standard for evaluation of schedule losses and the Board has

8

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”
9

5 U.S.C. § 8107.

6

concurred in such adoption.10 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment Class of
Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).13 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition, which is then adjusted by grade modifiers based on
functional history, physical examination and clinical studies.14 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, bilateral
trigger fingers, and localized arthritis of both hands. She underwent authorized bilateral carpal
tunnel releases, a right trigger thumb release, a left middle trigger finger release, and a right
middle trigger finger release. On July 11, 2014 Dr. Stern, an attending Board-certified
orthopedic surgeon, performed a right scaphoid excision and intercarpal fusion, also authorized
by OWCP.
Appellant claimed a schedule award on October 27, 2014. Initially, she submitted a
December 10, 2014 note from Dr. Payne, an attending Board-certified orthopedic surgeon, who
opined that appellant had 19 percent impairment of the right arm under the fifth edition of the
A.M.A., Guides, which was no longer in effect. Dr. Payne then provided a detailed January 22,
2015 impairment rating, referencing specific portions of the sixth edition of the A.M.A., Guides.
He found 14 percent permanent impairment of the right arm according to Table 15-3 due to
status post class 2 intercarpal fusion, with limited motion as specified by 15-23. Dr. Payne found
three percent permanent impairment of the left arm according to Table 15-32, due to limitation of
wrist flexion to 54 degrees.

10

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
12

A.M.A., Guides 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement” (6th ed. 2008).
13

A.M.A., Guides, 494-531 (6th ed. 2008).

14

Id. at 385-419, see M.P., Docket No. 13-2087 (issued April 8, 2014).

15

Id. at 411.

7

Dr. Hogshead, the OWCP medical adviser, asserted that Dr. Payne’s January 22, 2015
impairment rating was irrelevant to the accepted conditions of bilateral carpal tunnel syndrome
and arthritis of the left thumb. Dr. Payne provided an April 30, 2015 addendum finding no
median nerve involvement and no restriction of left thumb motion. The OWCP medical adviser
then found that Dr. Payne’s impairment rating should not be utilized as it was based on the fifth
edition of the A.M.A., Guides. The adviser instead found two percent impairment of each arm
due to carpal tunnel syndrome and an additional five percent impairment of the left upper
extremity due to left thumb problems. OWCP issued the July 7, 2015 schedule award for seven
percent impairment of the left arm and two percent impairment of the right arm based on the
OWCP medical adviser’s opinion. The Board finds, however, that Dr. Hogshead misinterpreted
Dr. Payne’s reports.
Dr. Hogshead found that Dr. Payne’s impairment rating could not be utilized as it was
based on an outdated edition of the A.M.A., Guides. Only Dr. Payne’s December 10, 2014
report made reference to the fifth edition. His highly detailed January 22, 2015 rating clearly
relied only upon the sixth edition of the A.M.A., Guides. Therefore the December 10, 2014
report is of no relevance to the present matter as it has been replaced by a corrected report. Thus
Dr. Hogshead’s criticism of Dr. Payne’s opinion as to the extent of permanent impairment based
upon an incorrect edition of the A.M.A., Guides is irrelevant.
Further, Dr. Hogshead, the OWCP medical adviser, found that the finding of limitation of
motion in the January 22, 2015 impairment rating was irrelevant to the accepted conditions.
However, OWCP had updated its acceptance to include right wrist and left thumb arthritis, and
authorized the July 11, 2014 intercarpal fusion that permanently limited appellant’s right wrist
motion. This reflects that the medical adviser did not consider all accepted conditions in
reviewing the previous impairment ratings or in formulating his own impairment rating.
The case will be remanded to OWCP for additional development, to include preparation
of an updated statement of accepted facts, and an appropriate review of the medical record by an
OWCP medical adviser. After this and any other development deemed necessary, OWCP shall
issue an appropriate decision in the case.
On appeal, appellant contends that OWCP did not give proper weight to Dr. Payne’s
impairment rating, and did not fully analyze the medical evidence. As set forth above, the case
will be remanded to OWCP for additional development on the issue of permanent impairment.
CONCLUSION
The Board finds that the case is not in posture for a decision.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 7, 2015 is set aside, and the case remanded for additional
development in accordance with this opinion.
Issued: May 24, 2016
Washington, DC

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

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

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

9