United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BUFFALO VETERANS ADMINISTRATION
MEDICAL CENTER, Buffalo, NY, Employer
__________________________________________

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

Docket No. 19-1096
Issued: November 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 19, 2019 appellant filed a timely appeal from a March 18, 2019 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the March 18, 2019 decision, OWCP received additional evidence. 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 appellant has met her burden of proof to establish a right ankle
condition causally related to the accepted January 29, 2019 employment incident.
FACTUAL HISTORY
On February 5, 2019 appellant, a 52-year-old food service worker, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right ankle on January 29, 2019 when she stepped
into a pothole in the employing establishment parking lot while in the performance of duty. On
the reverse side of the claim form, the employing establishment indicated that she stopped work
on February 1, 2019 and received medical treatment.
A February 5, 2019 right ankle x-ray revealed avulsion fractures by the medial malleolus.
Dr. Jeffrey L. Lieberman, a radiologist, noted that one of the fractures appeared “old” and the other
was of “uncertain age.”
In a progress note dated February 6, 2019, an employee occupational health nurse
practitioner, Chris D. Hull, indicated that on February 1, 2019, appellant presented stating that she
fell on January 29, 2019 at about 2:05 p.m. in the employee parking lot, twisting her right ankle
when leaving for the day. She was off work on January 30 and 31, 2019 resting, using ice, and
elevating her leg. Appellant currently had the same pain level as the initial injury, and she was to
follow up with her own primary care provider as she had a current ankle/foot issue for which she
was already receiving treatment. An examination revealed a full, active range of motion with some
discomfort with lateral and medial motion. Foot flexion and extension was demonstrated without
difficulty or pain. The bilateral malleolus, both medial and lateral, had point tenderness. She was
assessed with avulsion fractures closed/inferior and adjacent to the medial malleolus.
In a chart review note dated February 6, 2019, Brian E. Lucas, a physician assistant,
indicated that his review of the x-rays revealed avulsion fractures, which appeared to be non-acute
in nature. He wrote that it appeared appellant could be treated as an ankle sprain, which could take
8 to 12 weeks to fully improve.
In a February 11, 2019 development letter, OWCP requested that appellant submit
additional evidence in support of her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion, which inquired as to the
circumstances of the injury, including details as to the nature and use of the parking lot. OWCP
also requested that appellant provide a narrative report from her attending physician, to include a
diagnosis and an explanation as to how the reported work incident either caused or aggravated a
medical condition. By separate letter of even date, it also requested additional information from
the employing establishment. OWCP afforded both appellant and the employing establishment 30
days to respond.
In a February 12, 2019 work restriction note, Mr. Hull indicated that appellant could not
stand or walk more than 10 minutes at a time. If the employing establishment was unable to
accommodate this restriction, Mr. Hull advised that she should be sent home.

2

By decision dated March 18, 2019, OWCP denied appellant’s traumatic injury claim.
While it accepted that the January 29, 2019 employment incident occurred as alleged, OWCP
found that no valid diagnosis had been produced in connection with the accepted employment
incident. Thus, appellant had not met the requirements for establishing an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
An employee may establish that an injury occurred in the performance of duty as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.10
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.11 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

J.P., Docket No. 19-0129 (issued April 26, 2019); L.T., Docket No. 18-1603 (issued February 21, 2019);
Shirley A. Temple, 48 ECAB 404, 407 (1997).
11

E.M., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

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based on a complete factual and medical background.12 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 factor(s).13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted January 29, 2019 employment incident.
In his report of February 6, 2019, Brian Lucas, a physician assistant, diagnosed an ankle
sprain. However, the medical component of fact of injury must be established by a medical report
from a qualified physician who provides a valid diagnosis of a medical condition in connection to
the January 29, 2019 employment incident.14 OWCP received various treatment records authored
by physician assistants and nurse practitioner. As these providers are not considered
“physician[s]” as defined by FECA, their respective reports are insufficient for purposes of
establishing entitlement to FECA benefits.15
Dr. Lieberman, did not mention any link whatsoever between the January 29, 2019 incident
and the clinical findings of avulsion fractures that he observed on the x-rays of appellant’s right
ankle.16 Therefore, his report does not establish that appellant sustained a condition connected to
the accepted employment incident.17
Without medical evidence authored or countersigned by a qualified physician linking the
accepted incident to a valid diagnosis,18 the Board finds that appellant has not met her burden of

12

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

Id.

14

Y.N., Docket No. 14-0705 (issued July 2, 2014).

15
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); M.M., Docket No. 16-1617 (issued January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320
n.11 (2006) (lay individuals such as nurses, physician assistants, and physical therapists are not competent to render
a medical opinion under FECA); M.G., Docket No. 19-0918 (issued September 20, 2019 (nurse practitioners are not
considered physicians under FECA; therefore, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits). See also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B.
Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can only be resolved through the
submission of probative medical evidence from a physician).
16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

L.T., Docket No. 18-1603 (issued February 21, 2019).

18

A report from a physician assistant or certified nurse practitioner will be considered medical evidence if
countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013).

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proof to show that she sustained any medical condition as a result of the accepted January 29, 2019
employment incident.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right ankle
condition causally related to the accepted January 29, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

19

E.M., Docket No. 18-1599 (issued March 7, 2019).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, MD, Employer
__________________________________________

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

Docket No. 16-0913
Issued: October 4, 2016

Case Submitted on the Record

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

JURISDICTION
On April 1, 2016 appellant filed a timely appeal from a March 18, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year
elapsed since the last merit decision dated March 28, 2006 to the filing of this appeal,1 pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.3

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008).
2
3

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument before the Board. By order dated August 11, 2016, the Board exercised
its discretion and denied the request, finding the issue could properly be addressed based on the evidence of record.
Order Denying Request for Oral Argument, Docket No. 16-0913 (issued August 11, 2016).

ISSUE
The issue is whether appellant’s request for reconsideration was untimely filed and failed
to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 16, 2006 appellant, then a 41-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on January 18, 2006, she sustained injuries while lifting
and pulling a patient in the performance of duty. She submitted a treatment note from the
employing establishment health unit dated January 18, 2006 indicating that she reported
aggravating her right shoulder by pulling a heavy patient up in bed. A note from an employing
establishment osteopath, Dr. Deborah Edelman, indicated that appellant should not lift more than
20 pounds. In a note dated March 1, 2006, Dr. Daryl Rosenbaum, a family practitioner, reported
that appellant could work light duty with a 20-pound lifting restriction and no repetitive use of
her wrists.4
By decision dated March 28, 2006, OWCP denied the claim for compensation. It found
the incident had occurred as alleged, but the medical evidence was insufficient to establish the
claim for compensation.
On January 13, 2015 appellant filed a recurrence claim (Form CA-2a) in which she
reported the date of original injury, and the date of first medical treatment following recurrence,
as January 18, 2006.
OWCP received appellant’s request for reconsideration of her claim on March 15, 2016.
In a letter of that date, appellant asserted that she injured her right shoulder and neck on
January 18, 2006 when lifting and pulling a patient. She wrote that an electromyogram (EMG)
in February 2006 showed nerve damage and she had neck surgery in 2006 “and two other dates.”
According to appellant, she had right shoulder surgeries in 2014 and 2015 for a rotator cuff tear.
As to medical evidence, appellant submitted a February 16, 2006 report, which appears to
be the first page of an unsigned report indicating that the nerve conduction showed prolonged
median motor terminal latencies. In a report dated June 28, 2006, Dr. William Mason,5 indicated
that appellant had a history of carpal tunnel syndrome and bilateral shoulder pain. He wrote that
the carpal tunnel syndrome and shoulder problems were probably related to the job as a nursing
assistant. Appellant also submitted notes from Dr. Mason dated July 26, November 6
and 29, 2006. In the November 29, 2006 note, Dr. Mason indicated that appellant would be
unable to continue light-duty work, referring to dizziness and pain in the hands and neck. The
record contains the first page of an unsigned report dated October 19, 2009 indicating that
appellant had bilateral hand numbness.

4

Dr. Rosenbaum also reported in a separate March 1, 2006 note that appellant had evidence of carpal tunnel
syndrome.
5

Dr. Mason’s credentials could not be verified.

2

In a report dated December 15, 2014, Dr. Robert Humble, a Board-certified orthopedic
surgeon, reported that appellant had right rotator cuff surgery five or six weeks earlier. He
opined that it was likely the result of repetitive lifting, pulling, and pushing at work. Appellant
also submitted a February 13, 2015 report from Dr. Humble. Dr. Humble reported that he first
treated appellant in October 2014, and she apparently had an injury on January 18, 2006. He
wrote that it could have been an initiating injury that led to ongoing shoulder impingement and
ultimately a rotator cuff tear. By report dated June 24, 2015, Dr. Ranjan Roy, a Board-certified
neurosurgeon, indicated that he had performed neck and back surgeries on appellant, but the only
mention of a workplace injury was in the new patient forms appellant completed.
By decision dated March 18, 2016, OWCP denied appellant’s reconsideration request as
it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.6 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”7
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.8 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.9 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.10 As one such limitation, 20 C.F.R. § 10.607 provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.11 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.12
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
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.605 (2012).

8

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

9

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.”
10

Supra note 2.

11

20 C.F.R. § 10.607 (2012).

12

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

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claimant and raise a substantial question as to the correctness of OWCP’s decision.13 Evidence
that does not raise a substantial question concerning the correctness of OWCP’s decision is
insufficient to demonstrate clear evidence of error.14 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.15 A determination of
whether the claimant has demonstrated clear evidence of error entails a limited review of how
the evidence submitted with the reconsideration request bears on the evidence previously of
record.16
ANALYSIS
In the present case, OWCP’s decision reviewing the merits of the claim was dated
March 28, 2006. Appellant’s reconsideration request was received on March 15, 2016. As noted
above, she had one year from the March 28, 2006 merit decision to timely request
reconsideration.17 Since the reconsideration request was received more than one year after
March 28, 2006, it is properly found to be untimely.
As an untimely reconsideration request, appellant must demonstrate clear evidence of
error by OWCP. The basis for the denial of the claim on March 28, 2006 was that the medical
evidence failed to establish a diagnosed condition as causally related to the January 18, 2006
employment incident. On reconsideration appellant submitted additional medical evidence, but
the evidence does not demonstrate clear evidence of error. Dr. Mason did not provide a history
of the January 18, 2006 employment incident. He speculated that carpal tunnel syndrome and
shoulder problems were related to appellant’s job, without further explanation. Dr. Humble did
not provide a complete background and referred to repetitive activity, not the January 18, 2006
incident. Dr. Roy did not provide a complete background or an opinion as to a diagnosed
condition causally related to the January 18, 2006 incident.
As noted above, the evidence 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 finds the evidence does not demonstrate clear evidence of error
and, therefore, OWCP properly denied the reconsideration request without merit review.
On appeal, appellant argues that she did sustain injuries as a result of the January 18,
2006 employment incident and that she had submitted medical evidence over the years. She
resubmitted medical evidence of record. The Board does not have jurisdiction over the merits of
the claim for compensation, as discussed above. Based on the evidence of record, appellant
submitted an untimely reconsideration request and failed to demonstrate clear evidence of error.
13

Annie L. Billingsley, 50 ECAB 210 (1998).

14

Jimmy L. Day, 48 ECAB 652 (1997).

15

Id.

16

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

17

Supra note 10.

18

Supra note 12.

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CONCLUSION
The Board finds that OWCP properly found that appellant’s request for reconsideration
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 18, 2016 is affirmed.
Issued: October 4, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 10-704
Issued: October 25, 2010

Case Submitted on the Record

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

JURISDICTION
On January 12, 2010 appellant filed a timely appeal from the October 28, 2009 decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. The last merit decision of the Office was issued on November 5, 2008, denying
appellant’s claim for an increased schedule award. The Board lacks jurisdiction to review the
merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
The Office accepted appellant’s September 23, 2007 traumatic injury claim for fractures
of the left wrist and ankle. On March 19, 2008 appellant requested a schedule award.
In a July 7, 2008 report of a second opinion examination, Dr. George Varghese, a Boardcertified physiatrist, provided examination findings and an impairment rating pursuant to the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Referring to Table 16-28, he concluded that appellant had a two
percent impairment for both flexion and extension in the left upper extremity. Under Table 1631, Dr. Varghese found a one percent impairment for both radial and ulnar deviation, for a total
range of motion impairment of six percent. Noting that appellant had no strength or sensory
deficit in the left upper extremity, he assigned a left upper extremity impairment of six percent.
Referring to Table 17-11 Dr. Varghese determined that appellant had a seven percent impairment
of the left lower extremity for dorsiflexion.
In a July 25, 2008 report, the district medical adviser concurred with Dr. Varghese’s
findings. He opined that appellant had a six percent left upper extremity impairment and a seven
percent left lower extremity impairment. The date of maximum medical impairment was
July 7, 2008.
In an August 8, 2008 decision, the Office granted appellant schedule awards for a six
percent left upper extremity impairment and a seven percent left lower extremity impairment.
The period of the awards was from July 7, 2008 to April 5, 2009.
On September 26, 2008 appellant requested reconsideration. In a September 19, 2008
report, Dr. William O. Hopkins, a Board-certified orthopedic surgeon, provided a history of
injury, examination findings and an impairment rating pursuant to the fifth edition of A.M.A.,
Guides. Range of motion measurements for the wrists were as follows: flexion -- 74 degrees on
the right as compared to 44 degrees on the left; extension -- 72 degrees on the right, 78 degrees
on the left; radial deviation -- 33 degrees on the right, 17 degrees on the left; ulnar deviation -- 38
degrees on the right, 43 degrees on the left; supination -- 90 degrees bilaterally; pronation -- 82
degrees on the right, 78 degrees on the left. Sensory examination revealed numbness extending
from the palmar side of the left thumb distally into the thumb, involving both the radial and ulnar
segments. There was diminished two-point sensation, as well as numbness by sharp point
perception in the left little finger. Two-point discrimination in the left thumb was reduced to
seven millimeters involving the distal segment, both radial and ulnar. Two-point discrimination
in the little finger was five millimeters over the entire digit. Pinch strength on the Jaymar
dynomanometer on the right side was 4.9 kilograms and left 4.3 kilograms, followed by 5.1
kilograms on the right and 4.3 kilograms on the left and then followed by 5.12 kilograms on the
right and 4.4 kilograms on the left. Jaymar dynomanometer grip strength on the right was 31
kilograms followed by 31 kilograms, followed by 32 kilograms. The left was 19 kilograms,
followed by 20 kilograms, followed by 19 kilograms. He noted significant interosseous atrophy
in the left hand as compared to the right, particularly involving the first dorsal interosseous
muscle.

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Examination of the left lower extremity revealed decreased range of motion.
Dorsi-extension on the right was 90 degrees and 85 degrees on the left. Plantar flexion was 24
degrees on the right and 10 degrees on the left. Eversion at the ankle was 50 degrees on the right
and 34 degrees on the left. There was tenderness over the tibialis anterior and peroneal tendon
levels. Tip toe balance seemed impaired on the left as compared to the right.
Dr. Hopkins stated that appellant’s “disability factors in the left wrist and hand” were loss
of motion, loss of strength and loss of sensation with pain. Disability factors in the left lower
extremity were loss of motion at the ankle and pain on use. Referring to Table 16-5 and 16-31 of
the fifth edition of the A.M.A., Guides, Dr. Hopkins concluded that appellant had 3.5 percent
extremity loss of function in the left wrist for flexion and 2.9 percent loss of function for radial
deviation. He assigned a one percent rating for a small amount of loss of motion and pronation,
for a total rating of 6.5 percent for loss of motion. For sensory loss in the thumb involving both
ulnar and radial nerves, Dr. Hopkins concluded that appellant had a 25 percent loss of sensation
in the thumb, which was a 10 percent loss to the hand or a 9 percent upper extremity loss. Under
Tables 16-3 and 16-34, he found a 10 percent extremity loss secondary to grip and lateral pinch
loss. Dr. Hopkins concluded that appellant had a total left upper extremity loss of 36.4 percent.
Referring to Table 17-11, Dr. Hopkins extrapolated that appellant had a 15 percent
impairment of the left lower extremity secondary to motion loss. He stated that she did have
some loss of eversion and inversion of the ankle joint, which is not listed as a disability factor
and which I do not think is significant. Dr. Hopkins equated mild weakness to an estimated 20
percent loss of function in the left lower extremity secondary to her articular fraction of the ankle
involving both tibia and fibula with resultant loss of motion and pain on use.
In an October 25, 2008 report, the district medical adviser stated that Dr. Hopkins failed
to properly explain the left upper extremity rating for weakness pursuant to page 508 of the
A.M.A., Guides, misused Table 16-34 and incorrectly correlated grip strength rating with Table
16-3. The medical adviser determined that Dr. Hopkins’ impairment rating of the left lower
extremity was improper under the A.M.A., Guides as it was an estimate. He opined that
Dr. Hopkins’ report was not an acceptable basis for modification of the prior schedule award.
By decision dated November 5, 2008, the Office denied modification of the August 5,
2008 decision, finding that the weight of the medical evidence was represented by
Dr. Varghese’s July 7, 2008 report.
On October 2, 2009 appellant again requested reconsideration, contending that she had
greater impairment in accordance with Dr. Hopkin’s September 19, 2008 report. She alleged
that Dr. Varghese failed to perform a thorough examination and did not address pain or sensory
changes. Appellant described pain which prevented her from performing massages, teaching
Yoga classes or performing other daily tasks. She asserted that she had not been treated fairly.
Appellant submitted a curriculum vitae for Dr. Varghese; an article from the employing
establishment’s website concerning schedule awards; copies of photographs of her left wrist and
a copy of a previously submitted operative report dated October 2, 2007. She also provided a
December 15, 2008 letter from Dr. Hopkins in which he asked the Office to identify how he had
erred in his impairment rating.

3

By decision dated October 28, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant merit futher review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.6
ANALYSIS
In her October 2, 2009 request for reconsideration, appellant described pain which
prevented her from performing massages, teaching Yoga classes or performing other daily tasks;
alleged that Dr. Varghese failed to perform a thorough examination and did not address pain or
sensory changes and asserted that she had not been treated fairly. She did not allege or
demonstrate, that the Office erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance a relevant legal argument not previously considered by
the Office. Consequently, she is not entitled to further review of the merits based on the first and
second requirements under section 10.606(b)(2).
Appellant provided a copy of an October 2, 2007 surgical report, which was previously
received and considered by the Office. Evidence that repeats or duplicates evidence already in
the case record has no evidentiary value and does not constitute a basis for reopening a claim for
merit review.7
Appellant submitted a December 15, 2008 letter from Dr. Hopkins requesting
information from the Office; a curriculum vitae for Dr. Varghese; an article from the employing
establishment’s website concerning schedule awards and copies of photographs of her left wrist.
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Joseph A. Brown, Jr., 55 ECAB 542 (2004); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

7

Denis M. Dupor, 51 ECAB 482 (2000).

4

None of these documents contains an opinion from a physician on the underlying medical issue
in this case, namely, the degree permanent impairment to appellant’s left upper and lower
extremities. Therefore, they do not constitute relevant and pertinent new evidence not previously
considered by the Office.8
Appellant has not shown that the Office erroneously applied or interpreted a specific
point of law, advanced a relevant legal argument not previously considered by the Office or
constituted relevant and pertinent new evidence not previously considered by the Office. The
Board finds that the Office properly determined that she was not entitled to further review of the
merits pursuant to any of the requirements under section 10.606(b)(2). It properly denied her
request for reconsideration.
On appeal, appellant contends that her impairments related to the accepted conditions
warrant an increased schedule award. As noted, the Board does not have jurisdiction over the
merits of this case. The issue is whether the Office properly denied appellant’s request for merit
review. For reasons stated, the Board finds that she is not entitled to further review of the merits.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

8

See Susan A. Filkins, 57 ECAB 630 (2006). Evidence which does not address the issue involved is not a basis
for reopening a case. See Joseph A. Brown, Jr., supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 25, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kennett Square, PA, Employer
__________________________________________

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

Docket No. 09-1185
Issued: January 27, 2010

Case Submitted on the Record

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

JURISDICTION
On April 1, 2009 appellant filed a timely appeal from the May 23, 2008 and February 17,
2009 merit decisions of the Office of Workers’ Compensation Programs denying her traumatic
injury claim. 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 a traumatic injury on March 21, 2008, as
alleged.
FACTUAL HISTORY
On April 1, 2008 appellant, a 43-year-old mail carrier, filed a traumatic injury claim
alleging that on March 21, 2008 she twisted her left knee, lower back and shoulder during an
altercation with a coworker, Daniel R. Minninger, who pulled and pushed a mail cart while her
hands were holding it. She stopped working on March 24, 2008.

On April 2, 2008 the employing establishment controverted the claim. There were no
witnesses to corroborate appellant’s statements. The employing establishment noted that her
actions of unloading her vehicle and cleaning up her route following the claimed incident were
inconsistent with a severe injury. Moreover, appellant’s own statements reflected that she was
more upset than injured.
Appellant submitted a partially legible note dated March 28, 2008 from Dr. John G.
Munshower, a Board-certified neurologist, who treated appellant on that date for a “work
incident.” Dr. Munshower noted appellant’s report that she had been hit by a cart on March 21,
2008 and that she was experiencing increased stress, as well as right shoulder and low back pain.
In a March 27, 2008 statement, Mr. Minninger noted that, on March 21, 2008, he was in
the process of pitching DHL parcels from one hamper to another when appellant pushed the
hamper he was working from out of her way and then pulled another hamper away from the
group “as if [he] was n[o]t even working there.” He pushed the hamper a little further, gave
appellant a disgusted look and went outside to the dock, where other employees were talking.
Mr. Minninger denied throwing any parcels at her; that there was no physical contact
whatsoever; and that the hamper did not come close to her. He noted that the noise described by
appellant might have been caused by a parcel that fell to the floor. Mr. Minninger indicated that
appellant often acted rudely, pushing hampers out of her way. In a memorandum dated
March 28, 2008, he reiterated that he had no contact with appellant on March 21, 2008.
Mr. Minninger stated that, after he went onto the dock, appellant pushed her hampers from the
employing establishment to her vehicle, while making arm motions.
On March 31, 2008 appellant stated that, after finishing her route, she had returned to the
employing establishment to sort mail into hampers. Because Mr. Minninger’s cart was blocking
the cart she was trying to secure, she moved it “just a little.” Mr. Minninger became angry and
pulled out his cart. Because appellant was holding onto his cart at the same time he was pulling
it, she injured both arms and legs. She alleged that Mr. Minninger then began throwing parcels
to her. When appellant walked outside, she observed a group of coworkers, including her
supervisor and Mr. Minninger, talking. She stated that everyone was harassing her.
On March 28, 2008 Coworker Dave Levgero stated that, on March 2008, he heard
appellant cry out. When he turned to see what was happening, he observed her waving her hands
and heard her tell Supervisor Dave Rose that Mr. Minninger was crazy. Mr. Levgero did not
observe any physical contact between appellant and Mr. Minninger.
In a March 28, 2008 report, Mr. Rose noted that, on March 21, 2008, he was sitting at his
desk, when he heard what sounded like a parcel hitting the floor. He heard appellant “make an
angry sound telling Daniel he was crazy.” When Mr. Rose looked in the direction of the noise,
he observed that appellant’s hands were on a hamper, and Mr. Minninger was walking out of the
building. Appellant proceeded to take the hamper out of the building. Mr. Rose did not observe
any events prior to the sounds described above. Later that day, appellant’s mother telephoned
Mr. Rose to inform him that appellant would not calm down. She did not indicate that appellant
had sustained any physical injuries.

2

An April 3, 2008 report from Aston Medical Associates noted the history of injury
provided by appellant who was attempting to move a large cart containing mail around another
cart when a coworker pulled the cart from the other side. The coworker was allegedly throwing
packages into the cart. Appellant pivoted on her left knee at the time of the incident and felt a
snap. She reportedly later developed anxiety, sleep disorder, cervical pain and pain with a sense
of weakness in the left knee. An April 15, 2008 follow-up report noted that appellant
experienced left knee pain and anxiety resulting from a March 21, 2008 incident. The report
contained a diagnosis of left posterior horn tear.
On April 7, 2008 Dr. Noi Walkenstein, a Board-certified internist, diagnosed “trauma,
pain.” He indicated that appellant should not work from April 11 through 14, 2008.
On April 23, 2008 the Office notified appellant that the evidence submitted was
insufficient to establish her claim. It advised her to provide a physician’s report with a firm
diagnosis and an opinion as to how her injury resulted in the diagnosed condition. The Office
asked appellant to provide a detailed description as to how the injury occurred, including the
cause of the injury and statements from any witnesses or other documentation supporting her
claim.
In an April 24, 2008 report, Dr. Robert J. Cabry, a Board-certified family practitioner,
diagnosed medial meniscus tear. He noted that appellant had been experiencing left knee pain
since “a twisting injury at work.” Appellant reported that she had been pushing an old mail cart
when it was pulled away from her by another employee. She stumbled and twisted her knee.
Appellant also allegedly strained her arm and neck. She submitted an April 8, 2008 MRI scan of
the left knee; an April 9, 2008 cervical spine x-ray and an April 23, 2008 physical therapy
information sheet.
In an April 30, 2008 attending physician’s report, Dr. Walkenstein diagnosed posthorn
tear of the left knee, cervical strain, lumbar sacral (L-S) strain and post-traumatic stress disorder
(PTSD). He indicated, by placing a check mark in the “yes” box, that these conditions were
caused or aggravated by employment factors. Dr. Walkenstein stated that appellant’s left knee
pain was due to a “coworker pulling his cart away from her unexpectedly.”
In an undated statement, received on May 13, 2008, appellant related that, after she was
“attacked” by Mr. Minninger, a coworker, Diane Lomas, had asked her if she was “okay.” She
told Ms. Lomas that she was not “okay” and that she did not feel safe at the employing
establishment. Appellant informed Ms. Lomas that Mr. Minninger had pulled a cart very hard
and had thrown a box.
In an April 30, 2008 duty status report, Dr. Walkenstein diagnosed lumbar/cervical
sprain/strain and left knee ligament tear. When asked to describe how the injury occurred and
which body parts were affected, he responded, “pushing and pulling -- neck, knee, lower back.”
In a May 23, 2008 decision, the Office denied appellant’s claim, finding that she had
failed to establish the fact of injury. It found that the evidence was insufficient to establish that
the March 21, 2008 incident occurred in the manner alleged.

3

On June 6, 2008 appellant requested an oral hearing. She submitted copies of documents
previously considered by the Office; disability slips from Dr. Cabry from April 24 through
June 5, 2008; a June 2, 2008 note from Dr. Walkenstein, which provided diagnoses of cervical
sprain/strain and left knee pain due to a traumatic injury; a June 5, 2008 prescription for a left
knee sleeve; and disability slips dated August 1 and October 6, 2008 bearing illegible signatures.
In a November 20, 2008 statement, C. Lim, a coworker, reported that when he heard appellant’s
“upset voice” and heard Mr. Minninger yelling, he knew they were arguing about something.
At the November 19, 2008 hearing, appellant testified that, on March 21, 2008, she had
walked around Mr. Minninger’s cart to get to the “city cart.” She tried to move his cart because
it was in her way. Mr. Minninger became very angry and “moved his cart rigorously against
[her].” He allegedly pulled the cart away from her, causing her to twist her back, neck, shoulder
and knee. As Mr. Minninger pulled the cart, he threw a package and yelled, “You [a]re in my
way.” Appellant stated that the container hit the side of a partition and “smacked it pretty loud.”
She walked outside after the alleged incident.
In an April 15, 2008 attending physician’s report, Dr. Walkenstein again diagnosed left
knee meniscus tear, cervical sprain/strain and PTSD. He indicated by placing a check mark in
the “yes” box that the injury was causally related to factors of employment. In response to the
question as to the history of injury provided, Dr. Walkenstein stated that appellant “forcefully
lost balance and subsequently sustained musculoskeletal pain and anxiety.”
In an undated statement, Ms. Lomas, a coworker, addressed “the incident in March 2008.
She was working the window when she heard appellant say, “What is your problem?”
Ms. Lomas heard Mr. Minninger scream, “You [a]re in my way.” Then she heard “some
commotion,” after which she heard Mr. Minninger say, “I am sick of carriers thinking they are
the only ones working here.”
Appellant submitted medical records relating to an August 19, 2008 left knee
arthroscopy; disability slips from Dr. James McGlynn, a Board-certified orthopedic surgeon,
from August 29 through November 7, 2008 and copies of records previously submitted.
By decision dated February 17, 2009, the Office hearing representative affirmed the
May 23, 2008 decision, finding that the evidence failed to establish that the incident occurred as
alleged.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as

1

5 U.S.C. § 8101 et seq.

2

Id. at § 8102(a).

4

the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, he
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.5
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial
doubt on a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.8
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is medical evidence that includes a physician’s rationalized opinion on whether there is
3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Paul Foster, 56 ECAB 208 (2004). See also Betty J. Smith, 54 ECAB 174 (2002); Tracey P. Spillane, 54
ECAB 608 (2003). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q), ( ee).
6

See Paul Foster, id.

7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

5

a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof in establishing that
she sustained a traumatic injury on March 21, 2008. There are inconsistencies in the evidence
which cast serious doubt on the validity of her claim.
Appellant provided conflicting versions of the alleged incident. In her CA-1 claim form,
she indicated that she twisted her left knee, lower back and shoulder during an altercation with a
coworker, when he pulled and pushed a mail cart while her hands were holding it. On March 31,
2008 appellant reported that she moved Mr. Minninger’s cart “just a little” because it was
blocking the cart she was trying to secure. She stated that, while she was still holding onto the
cart, he pulled out his cart, injuring her arms and legs, and began throwing parcels at her. On
May 13, 2008 appellant related that Mr. Minninger had pulled a cart very hard and had thrown a
box. At the November 19, 2008 hearing, she testified that, on March 21, 2008, she tried to move
his cart because it was in her way. Mr. Minninger became very angry and “moved his cart
rigorously against [her].” He allegedly pulled the cart away from her and twisted her back, neck,
shoulder and knee. As Mr. Minninger pulled the cart, he threw a package and yelled, “You’re in
my way.” Appellant stated that the container hit the side of a partition and “smacked it pretty
loud.” She provided several versions of the facts surrounding the alleged confrontation with her
coworker. However, appellant did not present evidence substantiating any of her allegations.
Although several coworkers stated that they heard shouting and some commotion, no one
witnessed the incident of March 21, 2008. Mr. Minninger strongly disputed appellant’s version
of the events, asserting that he did not throw any parcels or have any contact with her and that
the hamper did not come close to her.
The medical evidence of record also reflects appellant’s divergent reports of how the
alleged incident occurred. On March 28, 2008 Dr. Munshower reported that appellant had been
hit by a cart on March 21, 2008. An April 3, 2008 illness and injury report reflects appellant’s
statement that she was attempting to move a large cart containing mail around another similar
cart when her coworker pulled the cart from the other side on the date in question. Appellant
was pivoting on her left knee at the time of the incident and felt a snap. On April 15, 2008
Dr. Walkenstein stated that appellant had “forcefully lost balance and subsequently sustained
musculoskeletal pain and anxiety.” On April 24, 2008 Dr. Cabry indicated that appellant had
been experiencing left knee pain since “a twisting injury at work.” Appellant reported that she
had been pushing the old mail cart when it was pulled from her, “by accident,” by another
employee. She allegedly stumbled, twisted her knee and strained her arm and neck. On
April 30, 2008 Dr. Walkenstein diagnosed posthorn tear of the left knee, cervical strain, L-S
strain and PTSD. He stated that appellant’s left knee pain was due to a “coworker pulling his

9

John W. Montoya, 54 ECAB 306 (2003).

6

cart away from her unexpectedly.” Appellant did not attempt to reconcile these conflicting
reports.
The Board finds that appellant has failed to establish the fact of injury. Appellant did not
submit sufficient evidence to establish that she actually experienced an employment incident at
the time, place and in the manner alleged.10 The inconsistencies in both appellant’s allegations
and the medical evidence of record cast serious doubt on the validity of her claim.11 Appellant
initially alleged that she twisted her left knee, lower back and shoulder during an altercation with
a coworker, when he pulled and pushed a mail cart while her hands were holding it. In a later
version of events, she stated that he “moved his cart rigorously against [her]” and threw a
package.” Appellant also alleged that the container hit the side of a partition and “smacked it
pretty loud.” She provided no evidence to corroborate any version of alleged facts.
The medical evidence of record, which provides at least four different accounts of the
incident. Dr. Munshower reported that appellant had been hit by a cart. Another report reflects
that she was pivoting on her left knee at the time of the incident and felt a snap. Dr. Walkenstein
stated that appellant had “forcefully lost balance when a coworker pulled his cart away from her
unexpectedly. Given the surrounding facts and circumstances, and her subsequent course of
action, appellant’s claim lacks credibility. Due to the inconsistencies in the evidence regarding
the manner in which the alleged incident occurred, the Board finds that appellant has failed to
establish her claim.12
On appeal, appellant’s representative contends that the Office’s decisions were contrary
to fact and law. For reasons previously stated, the Board finds that his argument is without
merit.
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury in the performance of duty on March 21, 2008.

10

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). 5 U.S.C. § 8101(5).
See 20 C.F.R. § 10.5(ee).
11

See Betty J. Smith, id.

12

See Caroline Thomas, 51 ECAB 451, 455 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 17, 2009 and May 23, 2008 are affirmed.
Issued: January 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 12-473
Issued: June 18, 2012

Case Submitted on the Record

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

JURISDICTION
On January 3, 2012 appellant, through counsel, filed a timely appeal from a
November 21, 2011 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration. Because more than 180 days has elapsed
between the last merit decision dated November 18, 2010 to the filing of this appeal, the Board
lacks jurisdiction to review the merits of appellant’s claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On November 18, 2010 the Board
affirmed an August 26, 2009 OWCP hearing representative’s decision. The August 26, 2009
decision affirmed a February 20, 2008 decision denying a claim for a recurrence of disability
commencing January 2, 2007.2 The history of the case provided by the Board in its prior
decision is incorporated herein by reference.3
On February 17, 2010 Dr. Michael J. Crovetti, a treating Board-certified osteopathic
family practitioner, noted that appellant sustained a work injury on January 25, 2010 to her right
shoulder and diagnosed a rotator cuff tear and post-traumatic impingement.
On November 14, 2011 appellant’s counsel requested reconsideration. In support of her
request, appellant resubmitted the first page of a May 23, 2007 report from Dr. Jason M. Tarno, a
treating Board-certified osteopath specializing in sports medicine, noting a history of the
March 9, 2005 employment injury and summarizing medical reports that had been reviewed.
By decision dated November 21, 2011, OWCP determined that appellant’s application
for reconsideration and the evidence submitted was insufficient to warrant merit review of the
claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that 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) submit relevant and pertinent new evidence not previously
considered by OWCP.5 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.6 When a claimant fails to meet one of the above standards, OWCP

2

Docket No. 10-240 (issued November 18, 2010).

3

On March 9, 2005 appellant, then a 46-year-old transportation security screener, sustained a traumatic injury to
her right arm, neck and shoulder while in the performance of duty. OWCP accepted her claim for cervical, thoracic
and shoulder strains. On October 4, 2007 appellant filed a claim for a recurrence of disability beginning January 2,
2007 due to her accepted March 9, 2005 employment injury. She noted February 12, 2007 as the date she first
stopped work following her claimed recurrence.
4

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

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
6

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).

2

will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS
Appellant filed an application for reconsideration that did not show that OWCP
erroneously applied or interpreted a point of law or advance a relevant legal argument not
previously considered by OWCP. The underlying merit issue was a claim for a recurrence of
disability. Appellant must submit evidence that is pertinent new and relevant to the issue.
The document from Dr. Tarno had been previously considered by OWCP. The Board
finds this report is duplicative and does not constitute relevant and pertinent new evidence.8
Therefore, it is not sufficient to require OWCP to reopen the claim for consideration of the
merits.
The record also contains a February 17, 2010 from Dr. Crovetti in which he related that
appellant sustained an injury to her right shoulder at work on January 25, 2010. Dr. Crovetti did
not address whether she sustained a recurrence of disability commencing January 2, 2007
causally related to the accepted March 9, 2005 employment injury. The submission of evidence
that does not address the particular issue involved does not constitute a basis for reopening a
case.9 Thus, Dr. Crovetti’s report is also insufficient to require OWCP to reopen the claim for
consideration of the merits.
Consequently, the evidence submitted by appellant on reconsideration does not satisfy
any of the three regulatory criteria, noted above, for reopening a claim for merit review.
Therefore, OWCP properly denied her request for reconsideration.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant a merit review of the claim.

7

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
8

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. Richard Yadron, 57 ECAB 207 (2005); Mary A. Ceglia, 55 ECAB
626 (2004).
9

L.H., 59 ECAB 253 (2007); Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 21, 2011 is affirmed.
Issued: June 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Storm Lake, IA, Employer
__________________________________________

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Appearances:
Willis J. Hamilton, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1869
Issued: May 5, 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 June 23, 2008 appellant filed an appeal of the May 27, 2008 decision of the Office of
Workers’ Compensation Programs’ hearing representative. 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 properly terminated appellant’s medical and
compensation benefits effective May 14, 2007. Appellant’s attorney argues on appeal that the
employment aggravation of appellant’s condition was permanent and, but for the aggravation,
she would still be employable.
FACTUAL HISTORY
On October 27, 2003 appellant, then a 54-year-old rural carrier, filed an occupational
disease claim alleging that she suffered from rheumatoid arthritis causally related to the duties of
her federal employment. She noted that she was on her feet 2½ to 3 hours every morning and

used her hands constantly. Appellant noted that, after riding in her truck, her joints hurt when
she got out of the truck to deliver parcels and other items. On January 27, 2004 the Office
accepted her claim for aggravation of rheumatoid arthritis, bilateral hands and feet.
In a February 16, 2004 attending physician’s report, Dr. Eric Matteson, a Board-certified
internist with a subspecialty in rheumatology, indicated that appellant’s arthritis was not caused
by employment but was aggravated by it. In an accompanying work capacity evaluation, he
indicated that appellant was able to work four hours a day with the following restrictions:
sitting, standing and operating a motor vehicle for two hours each; walking, twisting,
bending/stooping, repetitive movements with wrists and elbows, pushing and pulling up to 35
pounds for one hour each, and lifting of 35 pounds. In a February 23, 2004 note, Dr. Matteson
found that appellant’s permanent disability was due to aggravation of the disease process caused
by work, “in my best judgment.”
The Office referred appellant to Dr. John A. Hurley, a Board-certified internist with a
subspecialty in rheumatology, for a second opinion. In a medical report dated May 19, 2004,
Dr. Hurley diagnosed appellant with rheumatoid arthritis, history of Crohn’s disease, diabetes
mellitus and hypertension. He indicated that he believed appellant was suffering from
rheumatoid arthritis but that he did not believe the rheumatoid arthritis was caused by her work
activities although he did note that these activities did aggravate the underlying arthritis.
Dr. Hurley specifically stated, “I do not believe that [appellant’s] underlying arthritis was caused
by her work activities but that they did indeed aggravate her underlying arthritis.” He opined
that appellant was unable to perform any sort of gainful employment. In an accompanying work
capacity evaluation, Dr. Hurley indicated that appellant could sit 15 minutes at a time, walk 10
minutes at a time, and stand 15 minutes at a time. He opined that appellant could not reach
above her shoulder, could twist, perform repetitive movements with her wrists and elbow for 1
hour, push and pull 20 pounds for 1 hour, lift 10 pounds for 1 hour, squat and kneel for ½ hour,
twist for 1 hour and operate a motor vehicle at work for 1 hour. In a follow-up letter dated
June 2, 2004, Dr. Hurley stated that appellant’s occupation aggravated but did not cause her
rheumatoid disease in that it caused the disease to become more active and functionally limited.
He reiterated that the disease had progressed to the point where she would be unable to return to
her employment.
In a report dated June 30, 2004, Dr. Matteson again noted that appellant continued to
have active rheumatoid arthritis despite intense medical treatment and that this arthritis was not
caused by her occupation but that her occupation accelerated and aggravated the rheumatoid
arthritis. He opined that appellant was unable to perform her job because of rheumatoid arthritis
which caused 80 percent impairment of the joints in her hands, shoulders and knees.
Noting a conflict of medical opinion between Dr. Matteson and Dr. Hurley regarding
appellant’s work restrictions, the Office referred appellant to Dr. William R. Palmer, a Boardcertified internist with a subspecialty in rheumatology. In a report dated November 29, 2004,
Dr. Palmer diagnosed appellant with probable seronegative rheumatoid arthritis and moderately
severe osteoarthritis in her knees. He found that appellant’s subjective symptoms outweighed his
objective findings and found no reason why a label of total disability should be applied to
appellant. Dr. Palmer did not believe that appellant’s job had aggravated her rheumatoid arthritis

2

in her hands and feet. He opined that appellant should never have stopped working and
concluded that she could work eight hours a day limited work.
On January 28, 2005 the Office proposed terminating appellant’s compensation benefits
and by decision dated March 15, 2005, it terminated appellant’s medical and wage-loss benefits
effective that date.
By letter dated February 8, 2005, appellant, through her attorney, requested a hearing.
In a report dated May 20, 2005, Dr Matteson reiterated that he was treating appellant for
rheumatoid arthritis. He noted that her rheumatoid arthritis has improved markedly since he
began treating her and that, at the time of his last assessment, “the rheumatoid arthritis was not
wholly quiescent but under good control.” Dr. Matteson noted that appellant’s knee
replacements were required because of advanced knee arthritis which was due to changes of the
degenerative type of arthritis (osteoarthritis) as well as rheumatoid arthritis. He indicated that
she should not walk or stand more than 15 or 20 minutes at a stretch and that there was potential
that repetitive activity can aggravate the arthritis in areas such as the hands and shoulders.
Dr. Matteson noted that, if appellant were to return to work, it would have to be assessed on an
ongoing basis. He noted in the past, the task of her employment appeared to aggravate her
arthritis.
At the hearing held on June 27, 2006, appellant described her work duties and her
treatment history.
By decision dated September 14, 2006, the Office hearing representative found that the
Office improperly terminated appellant’s compensation and medical benefits based on an
inappropriate referee examination as there was no conflict between Drs. Matteson and Hurley.
He noted that Dr. Palmer’s examination was, at most, a second opinion examination. The
hearing representative ordered the Office to reinstate appellant’s benefits and refer appellant to
an appropriate specialist to resolve the issue of whether appellant has residuals related to the
accepted condition.
On remand, the Office referred appellant to Dr. Joseph Steven Strong, a Board-certified
internist with a subspecialty in rheumatology, for an impartial medical examination. In a
medical report dated February 2, 2006, Dr. Strong noted, “The etiology of rheumatoid arthritis is
an autoimmune disease, which we do not feel is caused by injury, but may be aggravated by
injury.” He further noted that osteoarthritis is a degenerative disease involving appellant’s knees
which subsequently required total joint arthroplasty. Dr. Strong noted more recent evidence of
mechanical lumbar disease with facet degenerative change and degenerative disc change. He
also noted that a review of the records and the physical examination suggests that appellant “has
a history of polyarticular arthalgias with minimal evidence of aggressive erosive synovitis.”
Dr. Strong opined that, since appellant has not worked since April 24, 2004, he did not feel that
she had continued aggravation of any underlying inflammatory joint disease. He opined that
repetitive motion and weight lifting with extension of her arms above her head and twisting
motion related to her lower back will aggravate her symptoms and result in pain and discomfort.
Dr. Strong did not believe that appellant could return to her full duties as a rural carrier, but did
feel that appellant could work for four hours a day with restrictions of weight lifting to less than

3

10 pounds and if not required to raise her arms repeatedly over her head or stand for a prolonged
period of time (in excess of 15 minutes). He also noted that appellant was now demonstrating
degenerative changes in her lower back. In a work capacity evaluation completed the same date,
Dr. Strong limited appellant to sitting 4 hours, walking 15 to 30 minutes, standing 15 minutes
and repetitive motion with his wrists and elbows for 4 hours limited to 10 pounds. He indicated
that appellant should limit pushing and pulling to 10 pounds and lifting to 5 pounds. Dr. Strong
recommended that appellant avoid reaching, twisting, bending, stooping, operating a motor
vehicle at work, squatting, kneeling and climbing. Finally, he recommended that appellant take
10-minute breaks hourly.
In response to a letter from the Office dated February 28, 2007, Dr. Strong noted on
March 3, 2007, “[R]heumatoid arthritis has no etiological connection with traumatic events and,
therefore, the disease will be aggravated only during the time of repetitive motion, weight lifting
and change of position, which may occur during the work environment. He noted that appellant
has not been employed since April 24, 2004, she had no work-related aggravation since
April 24, 2004. Dr. Strong did not believe his work restrictions were prophylactic but rather that
if appellant returned to work, she will have an aggravation and will have limitations.
On April 12, 2007 the Office proposed to terminate appellant’s medical and
compensation benefits since the weight of the medical evidence demonstrated that the accepted
condition of aggravation of bilateral hands and feet rheumatoid arthritis had ended on April 24,
2004 and that there was no indication that any current residual symptoms are related to the workrelated aggravation. By decision dated May 14, 2007, the Office made the termination of
benefits final.
By letter dated May 10, 2007 and received by the Office on May 15, 2007, appellant,
through his attorney, objected to the proposed decision.
On June 12, 2007 appellant requested an oral hearing. At the telephonic hearing held on
March 12, 2008 her attorney argued that the medical evidence indicated that if appellant returned
to work she would sustain an aggravation of her condition. Appellant also testified that she
worked for 23 years as a rural mail carrier but that she had not been employed since April 2004
when she took early retirement. She discussed her prior attempts to return to work and indicated
that this irritated her shoulder, hands, leg, joints and back. Appellant noted that she tried to
return to work but that the postmaster would not put her back to work because she could not do
the weight lifting and other physical aspects of the job.
By decision dated May 27, 2008, the second Office hearing representative affirmed the
May 14, 2007 Office decision terminating benefits.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without

4

establishing that the disability had ceased or that it was no longer related to the employment.1
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.2
It is well established that, 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.3 When the aggravation is temporary and leaves no
permanent residuals, compensation is not payable for periods after the aggravation ceased.4 If
the employment exposure causes a permanent condition, such as a heightened sensitivity to a
wider field of allergens, the claimant may be entitled to continuing compensation,5 a medical
restriction that is based on a fear of future aggravation due to employment exposure is not
employment related.6
Section 8123 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.7 When there exist opposing
medical reports of virtually equal weight and rationale, and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.8
ANALYSIS
The Office accepted appellant’s claim for aggravation of rheumatoid arthritis, bilateral,
hands and feet and appropriate medical and compensation benefits were paid. Dr. Matteson,
appellant’s treating rheumatologist, in a report dated June 30, 2004, noted that appellant’s
rheumatoid arthritis was aggravated by her employment and that she was still unable to perform
her job because of rheumatoid arthritis. Dr. Hurley, in a second opinion report dated May 19,
2004, agreed that appellant’s rheumatoid arthritis was aggravated by her work and that appellant
was unable to perform any sort of gainful employment. He placed more restrictions on appellant
than Dr. Matteson. The Office referred appellant for an impartial medical examiner, to resolve
1

Patricia A. Keller, 48 ECAB 278 (1993).

2

Furman G. Peake, 41 ECAB 361 (1990).

3

Mary A. Moultry, 48 ECAB 566 (1997).

4

Id.

5

James C. Ross 45 ECAB 424 (1994); Gerald D. Alpaugh, 31 ECAB 589 (1980).

6

Gaetan F. Valenza, 39 ECAB 1349 (1988).

7

5 U.S.C. § 8123(a).

8

Darlene R. Kennedy, 57 ECAB 414 (2006); James P. Roberts, 31 ECAB 1010 (1980).

5

the conflict with regard to appellant’s restrictions. Dr. Palmer, the impartial medical examiner,
disagreed with both Drs. Hurley and Matteson, finding that appellant’s subjective symptom
outweighed his objective findings and found no reason that appellant should be considered
totally disabled. He also did not believe that appellant’s job aggravated her rheumatoid arthritis.
The Office initially terminated appellant’s compensation based on Dr. Palmer’s opinion as an
impartial medical examiner, but reinstated benefits after the hearing representative properly
determined that there was no conflict between the opinions of Dr. Matteson and Dr. Hurley as
both opined that appellant was totally disabled due to the work-related aggravation of her
rheumatoid arthritis. The hearing representative properly found that Dr. Palmer’s opinion was at
most a second opinion.
The Board finds that Dr. Palmer’s opinion created a conflict with the opinion of
Dr. Matteson as to whether appellant remained totally disabled and as to whether appellant had
any residuals from her work-related aggravation. Accordingly, the Office properly referred
appellant to Dr. Strong for an impartial medical examination, to resolve that conflict. Dr. Strong,
indicated that, since appellant had not been employed since April 24, 2004, she no longer
suffered from the work-related aggravation of her rheumatoid arthritis. Accordingly, based on
his opinion, the Office terminated appellant’s medical and compensation benefits effective
May 14, 2007.
The Board finds that the Office properly terminated appellant’s compensation and
medical benefits based on the well-rationalized opinion of Dr. Strong, the impartial medical
examiner, who noted that, although rheumatoid arthritis was not caused by injury, it could be
aggravated by injury. Dr. Strong noted that repetitive motion and weight lifting with extension
of arms above head and twisting lower back would aggravate appellant’s symptoms and result in
pain and discomfort. However, he noted that, since appellant had not been employed since
April 24, 2004, she would have had no work-related aggravation since April 24, 2004. Although
appellant’s attorney argues that the work-related aggravation of appellant’s rheumatoid arthritis
was permanent, the weight of the evidence does not support this argument. The Office properly
gave special weight to the well-rationalized opinion of the impartial medical examiner,
Dr. Strong, and terminated appellant’s medical and compensation benefits due to the fact that the
work-related aggravation of her rheumatoid arthritis had ceased.9
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical and
compensation benefits effective May 14, 2007.

9

Phillip H. Conte, 56 ECAB 213 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 27, 2008 is affirmed.
Issued: May 5, 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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1446
Issued: January 25, 2018

Case Submitted on the Record

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

JURISDICTION
On June 19, 2017 appellant filed a timely appeal from a May 1, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed
from OWCP’s last merit decision, dated September 19, 2016, 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 the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). After exercising its discretion, by order dated November 1, 2017, the Board denied the request as
appellant’s arguments on appeal could be adequately addressed in a decision based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 17-1446 (issued November 1, 2017).

FACTUAL HISTORY
On March 20, 2013 appellant, then a 57-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome in both her upper
extremities by performing her repetitive work duties over a period of time. She indicated that
she first became aware of her claimed condition and first realized that it was caused or
aggravated by factors of her federal employment on October 28, 2011. Appellant stopped work
in July 2013.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. Appellant
received disability compensation on the daily rolls beginning July 11, 2013 and on the periodic
rolls beginning February 9, 2014.
On August 15, 2013 appellant underwent right carpal tunnel release surgery and, on
November 1, 2013, she underwent left carpal tunnel release surgery. These procedures were
authorized by OWCP.
In a November 9, 2015 report, Dr. Sang V. Le, an attending Board-certified orthopedic
surgeon, indicated that appellant had zero percent permanent impairment of her upper
extremities under Table 15-35 and Table 15-36 on page 477 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A.,
Guides).
In January 2016 OWCP routed Dr. Le’s November 9, 2015 report and rest of the case file
to Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an OWCP medical
adviser, for review and a determination regarding whether appellant had permanent impairment
of her upper extremities under the standards of the sixth edition of the A.M.A., Guides.
In a January 28, 2016 report, Dr. Katz indicated that the only appropriate method for
evaluating the permanent impairment of appellant’s upper extremities was to apply the standards
of Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449 of the sixth
edition of the A.M.A., Guides. He recommended that a second opinion evaluation be conducted
by a Board-certified specialist in orthopedic surgery or physical medicine/rehabilitation who was
familiar with the standards of the sixth edition of the A.M.A., Guides.
On March 29, 2016 appellant filed a claim for compensation (Form CA-7) seeking a
schedule award due to her accepted employment injury.
On March 30, 2016 OWCP referred appellant for a second opinion examination to
Dr. Mark D. Bernhard, a Board-certified osteopath and physical medicine/rehabilitation
physician, and requested that he provide an opinion on the permanent impairment of her upper
extremities under the standards of the sixth edition of the A.M.A., Guides.
In a May 17, 2016 report, Dr. Bernhard discussed appellant’s factual and medical history
and indicated that she currently complained of pain, numbness, tingling, swelling, and loss of
strength in her upper extremities. He reported the findings of his physical examination of
appellant on May 17, 2016, including a positive Tinel’s sign bilaterally, and diagnosed bilateral
carpal tunnel syndrome, status post carpal tunnel releases. Dr. Bernhard provided a calculation
2

of the permanent impairment of appellant’s upper extremities, finding that she had three percent
permanent impairment of each upper extremity under Table 15-23 of the sixth edition of the
A.M.A., Guides. He found that, for each upper extremity, appellant had a grade modifier of 1 for
test findings, grade modifier of 2 for history, grade modifier of 1 for physical findings, and grade
modifier of 2 for functional scale.3
In August 2016 OWCP routed Dr. Bernhard’s May 17, 2016 report and the rest of the
case file to Dr. Katz for review in his role as an OWCP medical adviser. It requested that
Dr. Katz make a determination regarding whether appellant had permanent impairment of her
upper extremities under the standards of the sixth edition of the A.M.A., Guides.
In an August 5, 2016 report, Dr. Katz indicated that he had reviewed Dr. Bernhard’s
May 17, 2016 report and noted that appellant had reached maximum medical improvement with
respect to her bilateral upper extremity condition on May 17, 2016. He determined that, under
Table 15-23 of the sixth edition of the A.M.A., Guides, appellant had three percent permanent
impairment of each upper extremity. Dr. Katz found that, for each upper extremity, appellant
had a grade modifier of 1 for test findings, grade modifier of 2 for history, grade modifier of 1
for physical findings, and grade modifier of 2 for functional scale based on a QuickDASH score
of 41.
In a September 19, 2016 decision, OWCP granted appellant a schedule award for three
percent permanent impairment of each upper extremity. The award ran from May 18 to
September 26, 2016 and was based on the May 17, 2016 permanent impairment rating of
Dr. Bernhard and the August 5, 2016 permanent impairment rating of Dr. Katz.
On February 6, 2017 OWCP received a January 29, 2017 letter in which appellant
requested reconsideration of its September 19, 2016 decision. Appellant indicated that she
disagreed with OWCP’s determination regarding the permanent impairment of her upper
extremities. She asserted that due to the updated findings of “recurring, bilateral carpal tunnel
syndrome” by Dr. Ronald N. Kent, an attending Board-certified psychiatrist and neurologist, and
the fact that she had permanent work restrictions due to this condition, she believed her request
for reconsideration regarding the percentage of upper extremity permanent was “of good merit.”
Appellant requested consideration for “future medical” related to her work injuries, as
substantiated by the most recent testing and diagnoses of Dr. Kent.
In his November 15, 2016 report, Dr. Kent noted that appellant presently complained of
various upper extremity symptoms, including pain in her hands/fingers and numbness and
tingling in her hands/fingers which radiated to both mid-forearms. He reported the findings of
the physical examination he performed on November 15, 2016, noting that appellant had 5/5
strength and intact sharp sensation in her upper extremities. Dr. Kent advised that November 16,
2016 EMG and NCV studies of the upper extremities showed slowing of median sensory and
motor nerve conduction across both wrists, diagnostic of a persistent or recurrent bilateral carpal
tunnel syndrome, status post bilateral surgical releases. He indicated that appellant had a family
3

The record contains an undated document referencing April 2013 electromyogram (EMG) and nerve conduction
velocity (NCV) studies which showed bilateral severe median neuropathy at both wrists, but the record does not
contain a report of these studies.

3

history involving a father with diabetes mellitus and that she had been told she was prediabetic.
Dr. Kent noted that it was his experience that patients with diabetes often demonstrate
inadequate remyelination of the median nerve after successful surgical release. He could not rule
out recurrent bilateral carpal tunnel syndrome and advised that clinical correlation “regarding
these alternatives” was appropriate.
Appellant submitted several reports dated between July 2015 and January 2017 in which
Dr. Usha Raghavan, an attending Board-certified internist, indicated that she could only perform
modified work under specific restrictions. She also submitted a copy of a September 26, 2016
job offer from the employing establishment for modified work.
In a May 1, 2017 decision, OWCP denied appellant’s February 6, 2017 request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the
evidence/argument submitted by appellant in support of her reconsideration request was either
cumulative or irrelevant to the main issue of the case. OWCP indicated that none of the
submitted medical evidence contained an opinion regarding the extent of the permanent
impairment of appellant’s upper extremities.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.6 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8

4
This section provides in pertinent part: “[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).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employee’s Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

4

The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10
ANALYSIS
The issue presented on appeal is whether appellant’s February 6, 2017 request for
reconsideration met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to
reopen the case for further review of the merits of the claim.
The Board finds that appellant’s request for reconsideration did not show that OWCP
erroneously applied or interpreted a specific point of law; identify a specific point of law or show
that it was erroneously applied or interpreted; or advance a new and relevant legal argument not
previously considered by OWCP. Appellant submitted a November 15, 2016 report of Dr. Kent
and argued that this report shows that she has more than three percent permanent impairment of
each upper extremity, for which she previously received a schedule award. The underlying issue
in this case is whether the medical evidence shows that appellant has more than three percent
permanent impairment of each upper extremity. This is a medical issue which must be addressed
by relevant medical evidence.11 A claimant may be entitled to a merit review by submitting
relevant and pertinent new evidence, but the Board finds that appellant did not submit any such
evidence in this case.
In his report Dr. Kent reported the findings of the physical examination he performed on
November 15, 2016, discussed November 16, 2016 EMG and NCV studies of the upper
extremities, and posited that the findings of these studies could be due to either bilateral carpal
tunnel syndrome or diabetes. The Board notes, however, that this report is not relevant to the
main issue of the present case because Dr. Kent did not provide an opinion on the permanent
impairment of appellant’s upper extremities under the standards of the sixth edition of the
A.M.A., Guides. As noted, the submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.12 Therefore, appellant’s
submission of Dr. Kent’s November 15, 2016 report does not require reopening of her claim for
further review of the merits.13
Appellant submitted several reports dated between July 2015 and January 2017 in which
Dr. Raghavan indicated that she could only perform modified work under specific restrictions.
9

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

10

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

11

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

12

See supra note 10.

13

On appeal appellant argues that the medical evidence from Dr. Kent shows that she is entitled to additional
schedule award compensation, but the Board has explained the deficiencies of this evidence with respect to this
matter.

5

However, these reports also are irrelevant to the underlying issue of the present case because
Dr. Raghavan did not provide any opinion on the extent of the permanent impairment of
appellant’s upper extremities.14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 1, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 25, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

14
See supra note 10. Appellant also submitted a copy of a September 26, 2016 job offer for modified work, but
this nonmedical evidence would not be relevant to the main issue of the present case.

6