United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Stoutsville, MO, Employer
__________________________________________

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

Docket No. 11-238
Issued: August 18, 2011

Case Submitted on the Record

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

JURISDICTION
On November 8, 2010 appellant filed a timely appeal from the September 17, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied an increased
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than five percent impairment of her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On April 27, 2009 appellant, then a 59-year-old rural carrier, injured her left shoulder in
the performance of duty when a package slipped out of her hand and she tried to catch it. OWCP
accepted her claim for left shoulder impingement syndrome and left rotator cuff sprain. On
1

5 U.S.C. § 8101 et seq.

May 26, 2009 appellant underwent a subacromial decompression and arthroscopic rotator cuff
repair. Her postoperative diagnosis was full-thickness rotator cuff tear without evident labral or
biceps injury. There was some minor labral fraying along the anterior labrum, but the injury was
found to be most consistent with a left-side rotator cuff tear with impingement.
Appellant filed a claim for a schedule award. Her surgeon, Dr. Richard L. Baumann,
offered an impairment rating under the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001). He reported that appellant had done well in the
postoperative period and was ready to go back to full duty without restriction. One area in which
appellant was lacking, however, was the loss of 20 degrees in internal rotation. A recent therapy
note revealed some discomfort with external rotation and full forward flexion, but her strength
was better than four out of five in that distribution and she had done well in her return to work.
OWCP’s medical adviser applied the sixth edition of the A.M.A., Guides and determined
that appellant’s full-thickness rotator cuff tear, with a default rating of five percent, offered the
most favorable diagnosis-based estimate of impairment under Table 15-5. He explained that
there was no modification for subjective complaints given the history and examination findings
reported by Dr. Baumann in his postoperative progress notes.
On January 26, 2010 OWCP issued a schedule award for a five percent impairment of
appellant’s left upper extremity.
OWCP later received a report from Dr. Baumann, who offered an 11 percent impairment
rating under Table 15-5 of the sixth edition of the A.M.A., Guides after shoulder repair
secondary to rotator cuff injury.2 OWCP’s medical adviser explained that there was no way to
understand this rating under Table 15-5.
On April 2, 2010 OWCP reviewed the merits of appellant’s claim and denied
modification of its previous decision. It found that Dr. Baumann did not correctly use the
A.M.A., Guides to show that appellant had more than five percent impairment of her left upper
extremity.
OWCP then received a June 23, 2010 rating from Dr. Garth S. Russell, an orthopedist,
who found that appellant’s left shoulder had lost 30 degrees of external rotation, 15 degrees of
internal rotation and 30 degrees of flexion. Dr. Russell confirmed that appellant had five percent
impairment for a full-thickness rotator cuff tear, but he increased this rating by four percent for
loss of motion. He concluded that she had a nine percent impairment of her left upper extremity.
OWCP’s medical adviser explained that, if the range of motion model is used to estimate
impairment, it is a stand-alone mechanism and Dr. Russell did not report all the ranges of
motion. He explained that appellant’s functional history and physical examination findings,
including the ranges of motion Dr. Russell reported, would not warrant modification of the
default rating for a full-thickness rotator cuff tear.
2

This was the same rating Dr. Baumann gave under the fifth edition. Under the sixth edition, the highest
impairment rating anyone can receive for a full-thickness rotator cuff tear is seven percent under Table 15-5, page
403.

2

In a decision dated September 17, 2010, OWCP reviewed the merits of appellant’s claim
and denied modification of its prior decision. It found that Dr. Russell’s evaluation did not
establish that appellant had more than five percent impairment of her left upper extremity.
LEGAL PRECEDENT
Section 8107 of FECA3 authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. Such loss or loss of use is known as
permanent impairment. OWCP evaluates the degree of permanent impairment according to the
standards set forth in the specified edition of the A.M.A., Guides.4 As of May 1, 2009, any
decision regarding a schedule award must be based on the sixth edition.5
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the upper limbs.6
Table 15-5, the shoulder regional grid, lists the diagnoses relevant to the shoulder. In most cases,
only one diagnosis will be appropriate. If a patient has two significant diagnoses, such as a
rotator cuff tear and biceps tendinitis, the examiner should use the diagnosis with the highest
causally-related impairment rating for the impairment calculation.7
The first step is to find which of appellant’s postoperative diagnoses, assuming all are
causally related, offers the highest impairment rating. The default rating for a full-thickness
rotator cuff tear is five percent, according to Table 15-5, page 403. The default rating for an
impingement syndrome is three percent, according to the same table at page 402. There is no
estimate given for minor labral fraying without evident injury.
The five percent default estimate for full-thickness rotator cuff tear may be modified up
or down one or two percent by “[nonkey]” factors, such as functional history and physical
examination findings, but only if the examiner determines that those factors are reliable and
associated with the diagnosis.8 Dr. Baumann, the operating surgeon, reported that appellant did
well in the postoperative period and a recent therapy note showed only some discomfort with
external rotation and full forward flexion. Such a mild functional history warrants no
modification under Table 15-7, page 406. Dr. Baumann also reported a 20 degree loss of

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.a (January 2010).
6

A.M.A., Guides 387 (6th ed. 2009).

7

Id. (“Thus, when rating rotator cuff/impingement … incidental resection arthroplasty of the acromioclavicular
joint is not rated).”
8

Id. at 385.

3

internal rotation, but this is also considered mild under Table 15-34, page 475 and warrants no
modification of the default impairment value.9
Dr. Russell, the second evaluating orthopedist, confirmed that appellant warranted a five
percent impairment rating for her full-thickness rotator cuff tear. He augmented this diagnosisbased rating by four percent for loss of motion. The sixth edition of the A.M.A., Guides does not
permit such a combination. As Table 15-5 states: “If motion loss is present, this impairment [for
full-thickness rotator cuff tear] may alternatively be assessed using section 15.7, Range of
Motion Impairment. A range of motion impairment stands alone and is not combined with
diagnosis impairment.”10
While a range of motion impairment may not be combined with appellant’s five percent
diagnosis-based impairment, it may stand alone as an alternative. According to Table 15-34,
page 475, 60 degrees of external rotation (90 degrees is normal, less 30 degrees on examination)
represents no impairment of the upper limb and 80 degrees of internal rotation (90 degrees is
normal, less 15 degrees on examination, but the result is rounded to the nearest 10 degrees in
accordance with page 464) also represents no impairment. Appellant does have three percent
impairment of her left upper extremity due to 150 degrees of flexion (180 is normal, less 30
degrees on examination). As a stand-alone alternative, this is less than her diagnosis-based
impairment rating.11
The Board finds that appellant has no more than a five percent impairment of her left
upper extremity due to her accepted shoulder injury. The Board will therefore affirm OWCP’s
September 17, 2010 decision denying modification of appellant’s schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a five percent impairment of her left
upper extremity.

9

See also id. at 408 (Table 15-8) (mild loss of motion on physical examination).

10

Id. at 405 (asterisk at the bottom of the table).

11

This motion impairment, like the one Dr. Baumann reported, is considered mild under Table 15-34, page 475,
and warrants no modification of the default diagnosis-based impairment rating.

4

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
& DISTRIBUTION CENTER, Trenton, NJ,
Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0541
Issued: February 23, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 12, 2021 appellant, through counsel, filed an appeal from an August 14, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-0541.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review

1

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

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180 th day following the August 14, 2020 decision was Wednesday, February 10, 2021.
As appellant did not file an appeal with the Board until February 12, 2021, more than 180 days
after the August 14, 2020 OWCP decision, the Board finds that the appeal docketed as No. 2 1-0541
is untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. 4 Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 21-0541, must be dismissed.5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0541 is dismissed.
Issued: February 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.3(e).

4

While the docket file contains documentation indicating that a representative from counsel’s law practice
experienced technical difficulty with accessing the practice’s login.gov account, there is no indication that she
provided the information required for an appeal on or before February 10, 2021. The Board’s Rules of Procedure
provides that a notice of appeal shall contain information including: the name, address, e-mail address, and telephone
number of appellant; the decision date and case file number assigned by OWCP concerning the decision being
appealed to the Board; and appellant’s signature. See 20 C.F.R. § 501.3.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
5

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF DEFENSE, FORT
CAMPBELL SCHOOL SYSTEM, LUCAS
ELEMENTARY SCHOOL, Fort Campbell, KY,
Employer
__________________________________________

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

Docket No. 07-290
Issued: May 2, 2007

Case Submitted on the Record

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

JURISDICTION
On November 13, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated September 8, 2006, which denied his claim for a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has an
impairment caused by his accepted shoulder and neck strains which would entitle him to a
schedule award.

FACTUAL HISTORY
On September 13, 2004 appellant, then a 45-year-old maintenance worker, filed a
traumatic injury claim, alleging that on September 1, 2004 he sustained an acute cervical strain
with right cervical radiculopathy when he lost his footing while carrying boxes downstairs on a
hand truck. He stopped work on September 7, 2004 and returned on September 13, 2004 with
intermittent periods of disability thereafter. Appellant came under the care of Dr. Daniel Wade
Huffman, Board-certified in family medicine. In an attending physician’s report dated
September 16, 2004, Dr. Huffman diagnosed right shoulder and cervical strains, which he opined
were employment related. He referred appellant for physical therapy and provided physical
restrictions. An October 27, 2004 magnetic resonance imaging (MRI) scan of the cervical spine
demonstrated large osteophyte complexes at C4-5, C5-6 and C6-7 resulting in varying levels of
spinal canal stenosis and neuroforaminal narrowing. In a report dated November 8, 2004,
Dr. M. Robert Weiss, a Board-certified neurosurgeon, noted the history of injury and appellant’s
complaints of neck and bilateral arm pain. Physical examination demonstrated 5/5 strength in
the upper extremities with the exception of some subtle triceps and biceps weakness, perhaps
4/5, with normal sensation throughout. Muscle bulk and tone were normal and all major joints
had normal active and passive range of motion. Dr. Weiss discussed the MRI scan findings and
recommended continued physical therapy and a cervical myelogram. On November 22, 2004 he
advised that appellant’s symptoms were improving, that he was not interested in surgery at that
time and that he could work without restrictions.
On December 7, 2004 the Office accepted that appellant sustained employment-related
shoulder and neck strains. In a January 6, 2005 report, Dr. Weiss noted appellant’s continued
symptoms of pain. He advised that appellant had no focal or lateralizing findings but persistent
symptoms and the suggestion on his MRI scan of rather significant neural impingement.
Dr. Weiss stated: “If [appellant] feels that symptoms have stabilized and that he is willing to
tolerate the symptoms, is fearful of surgery and does not want further interventions, diagnostic
studies, therapies, etc., then I would suggest [that] he has reached maximum medical
improvement, that he would have a 10 percent impairment to the body as a whole and remain at
the workplace with no restrictions.” He again recommended a myelogram. A February 11, 2005
cervical myelogram demonstrated moderate to marked anterior extradural defects at C4-5, C5-6
and C6-7 with attenuation of the thecal sac, predominantly on the left side at the level of C-6.
A postmyelogram computerized tomography (CT) demonstrated an osteophyte at the level of
C4-5 intruding rather markedly on the ventral aspect of the thecal sac and spinal cord, diffuse
end place osteophyte formation at C5-6 intruding on the thecal sac and findings suggestive of a
herniated disc at the level of C6-7. In a February 21, 2005 report, Dr. Weiss noted that surgical
multilevel anterior fusion was discussed with appellant. He stated that he demonstrated the
findings of the imaging studies to appellant and told him that he could not guarantee resolution
of his neck pain but that the surgery would be designed to improve his radicular arm symptoms
and axial discomfort.
On April 14, 2005 appellant filed a schedule award claim. By letter dated June 2, 2005,
the Office requested that Dr. Weiss evaluate appellant in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).1
1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

It enclosed a form for rating impairment to the shoulder. In a June 6, 2005 report, Dr. Weiss
advised that appellant reached maximum medical improvement on February 21, 2005 and that he
had no restrictions and no impairment according to the A.M.A., Guides. On June 9, 2005
appellant noted his disagreement with Dr. Weiss regarding his impairment rating and requested a
change of physicians.
By decision dated August 19, 2005, the Office found that appellant was not entitled to a
schedule award, based on the June 6, 2005 opinion of Dr. Weiss. In a separate August 19, 2005
decision, the Office denied appellant’s request to change physicians. On August 29, 2005 he
requested a hearing that was held on June 29, 2006. At the hearing, the hearing representative
identified two issues: entitlement to a schedule award and appellant’s request to change
physicians. Appellant testified regarding his continuing symptoms of radicular arm pain and loss
of sensation and noted that he had not seen Dr. Weiss since January 2005. His wife argued that
Dr. Weiss’ reports were contradictory in that he initially said that appellant had 10 percent
impairment and then changed his opinion to no impairment. The hearing representative advised
appellant of the type of medical evidence needed to support his schedule award claim.
In a September 8, 2006 decision, the hearing representative found that appellant was not
entitled to a schedule award caused by his September 1, 2004 employment injury.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides4 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.5
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the back or
spine.6 In 1960, amendments to the Act modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of the Act include the extremities, a claimant may
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides, supra note 1.

5

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

Pamela J. Darling, 49 ECAB 286 (1998).

3

be entitled to a schedule award for permanent impairment to an extremity even though the cause
of the impairment originated in the spine.7 An impairment should not be considered permanent
until the clinical findings indicate that the medical condition is static and well stabilized.8
ANALYSIS
The Board finds that appellant has not established that he is entitled to a schedule award.
It is a claimant’s burden to submit sufficient evidence to establish entitlement to a schedule
award.9 The Office determined that appellant was not entitled to a schedule award for his
accepted cervical and shoulder strains as the medical evidence of record did not support that he
sustained any permanent partial impairment in accordance with the A.M.A., Guides.
Dr. Huffman did not provide any impairment analysis in his September 16, 2004 report. While
Dr. Weiss, an attending neurosurgeon, advised on January 6, 2005 that, without surgery,
appellant had reached maximum medical improvement and would have a 10 percent impairment
to the body as a whole, he provided no impairment rating in accordance with the A.M.A.,
Guides. Office procedures and Board precedent require that the record must contain a medical
report with a detailed description of the impairment which includes, where applicable, the loss in
degrees of active and passive motion of the affected member or function, the amount of any
atrophy or deformity, decreases in strength or disturbance of sensation or other pertinent
description of the impairment. The percentage should be computed in accordance with the fifth
edition of the A.M.A., Guides.10 In Dr. Weiss’ February 21, 2005 report, he merely noted that he
discussed surgical options with appellant. On a June 6, 2005 report, however, Dr. Weiss
specifically advised that appellant had reached maximum medical improvement on February 21,
2005 and had no impairment in accordance with the A.M.A., Guides. The Board finds that this
report constitutes the weight of the medical evidence as there is no other competent medical
opinion in the record that discusses an impairment rating.
While Dr. Weiss also noted that appellant had radicular arm symptoms, he clearly
advised that appellant had no impairment under the A.M.A., Guides and his conclusions were
based on the objective studies which showed preexisting neck degeneration.

7

Thomas J. Engelhart, 50 ECAB 319 (1999). Section 15.12 of the fifth edition of the A.M.A., Guides describes
the method to be used for evaluation of impairment due to sensory and motor loss of the extremities as follows. The
nerves involved are to be first identified. Then, under Tables 15-15 and 15-16, the extent of any sensory and/or
motor loss due to nerve impairment is to be determined, to be followed by determination of maximum impairment
due to nerve dysfunction in Table 15-17 for the upper extremity and Table 15-18 for the lower extremity. The
severity of the sensory or motor deficit is to be multiplied by the maximum value of the relevant nerve. A.M.A.,
Guides, supra note 1 at 423.
8

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6
(August 2002); see Patricia J. Penney-Guzman, supra note 8.

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to a schedule award for his accepted neck and shoulder strains.11
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 8, 2006 be affirmed.
Issued: May 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

11

The Board notes that, at the June 26, 2006 hearing, the Office hearing representative properly identified the
issues as entitlement to a schedule award and appellant’s request to change physicians. The decision dated
September 8, 2006, does not address the second issue, which is still outstanding. The Board does not have
jurisdiction over the September 19, 2005 decision, in which the Office denied appellant’s request to change
physicians as its jurisdiction to consider and decide appeals from final decisions of the Office extends only to those
final decisions issued within one year prior to the filing of the appeal. See William N. Downer, 52 ECAB
217 (2001). The Board also notes that appellant submitted evidence with his appeal to the Board. As the Board’s
review is limited by 20 C.F.R. § 501.2(c) to the evidence in the case record which was before the Office at the time
of its final decision, the Board cannot review this additional evidence on appeal. Thomas L. Agee, 56 ECAB ___
(Docket No. 05-335, issued April 19, 2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 11-442
Issued: October 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 14, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) schedule award decision dated September 8, 2010. Pursuant
to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a one percent impairment of her right and
left upper extremities, for which she received schedule awards.
FACTUAL HISTORY
Appellant, a 35-year-old clerk, has several claims accepted by OWCP. On September 9,
1997 she experienced pain in her neck and left shoulder while lifting a tub of mail up over her
shoulder. OWCP accepted a herniated cervical disc and cervical radiculopathy under case
1

5 U.S.C. § 8101 et seq.

number xxxxxx672. On June 15, 2000 appellant filed an occupational disease claim for neck
and back conditions causally related to employment factors. OWCP accepted the claim for
cervical and lumbar sprains under case number xxxxxx614. On January 22, 2002 appellant fell
in a parking lot and injured her neck, right shoulder and back. This claim was accepted for right
shoulder, neck and lumbar sprains under case number xxxxxx634. On December 14, 2006
appellant injured her right knee and right ankle when she stumbled and fell while carrying mail;
OWCP accepted this claim for right knee sprain and right ankle sprain under case number
xxxxxx161.2
On April 21, 2008 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her upper extremities.
In a December 13, 2005 report, Dr. David O. Weiss, an osteopath, impairment pursuant
to the American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides). He based this finding on a Grade 2 sensory deficit of the right C6
nerve root, which yielded a six percent upper extremity impairment under Table 15-15 and Table
15-17 at page 532 of the A.M.A., Guides; a Grade 2 sensory deficit of the right C7 nerve root,
which yielded a four percent upper extremity impairment under Table 15-15 and Table 15-17; a
grade 2 sensory deficit of the left C5 nerve root, which yielded a four percent bilateral upper
extremity impairment under Table 15-15 and Table 15-17; and a grade 2 sensory deficit of the
left C6 nerve root, which yielded a six percent upper extremity impairment under Table 15-15
and Table 15-17, for a total combined impairment of 10 percent to both upper extremities.
By letter dated December 23, 2009,3 OWCP advised Dr. Weiss that he needed to submit
an impairment rating in conformance with the sixth edition of the A.M.A., Guides, which
became effective as of May 1, 2009.4
In a March 5, 2010 report, Dr. Weiss found that appellant had a one percent permanent
partial impairment of the left and right upper extremities pursuant to the sixth edition of the
A.M.A., Guides. With regard to the right upper extremity, he determined that appellant had a
default impairment of class 1 based on sensory deficit of the radial nerve at C6 and C7, which
yielded a grade C impairment of one percent at Table 15-21, page 441 of the A.M.A., Guides,
the table used for rating peripheral nerve impairment for the upper extremities.5 Applying the
net adjustment formula at pages 406, 410 and 411 of the A.M.A., Guides,6 Dr. Weiss found that
appellant had a class 1 impairment, the rating utilized for a mild problem for sensory deficit. He
found that the grade at Table 15-7 for functional history was two, for a moderate problem which
included difficulty with self-care activities, but unassisted; and the grade at Table 15-9 for
2

These are the accepted facts of this case, which are uncontroverted.
documentation pertaining to these injuries and accepted conditions.
3

There is no contemporaneous

This letter is not contained in the record. OWCP refers to the letter in its May 18, 2010 decision.

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
5

A.M.A., Guides 441.

6

Id. at 406, 410-411.

2

clinical studies was two, for a moderate problem. Pursuant to the formula set forth at Table 1521, he then subtracted the grade modifier of one from grade 2 for both functional history and
clinical history at Table 15-7, which yielded a net adjusted grade of one plus one -- a total grade
of two, which was one percent impairment of the right upper extremity at Table 15-21, page 441.
With regard to the left upper extremity, Dr. Weiss found that appellant had a class 1
impairment of the left C5 and C6 axillary nerve root, the rating utilized for a mild problem for
sensory deficit at Table 15-21, page 436.7 He found that the grade at Table 15-7 for functional
history was two, for a moderate problem which included difficulty with self-care activities, but
unassisted; and the grade at Table 15-9 for clinical studies was two, for a moderate problem.
Utilizing Table 15-21 at page 440, he then subtracted the grade modifier of one from grade 2 for
both functional history and clinical history at Table 15-7, which yielded a net adjusted grade of
one plus one. This amounted to a total, net adjusted grade of two, which equated to a one
percent impairment of the left upper extremity at Table 15-21, page 436.
In an April 19, 2010 report, an OWCP medical adviser agreed with Dr. Weiss and found
that appellant had one percent permanent impairment of the right upper extremity impairment
and one percent impairment of the left upper extremity.
By decision dated May 18, 2010, OWCP granted appellant schedule awards for a one
percent permanent impairment of the right upper extremity and a one percent permanent
impairment of the left upper extremity.
By letter dated June 1, 2010, appellant’s attorney requested a review of the written
record. He contended that OWCP failed to make a timely schedule award determination under
the fifth edition of the A.M.A., Guides and thereby deprived appellant of his due process rights
under FECA. Counsel argued that OWCP’s delay in adjudicating this schedule award claim
reduced the amount of appellant’s schedule award. He noted that the adoption of the sixth
edition of the A.M.A., Guides substantially revised the evaluation methods used in previous
editions of the A.M.A., Guides and consequently resulted in a decrease in the percentage of
impairment calculated in schedule awards.
By decision dated September 8, 2010, an OWCP hearing representative affirmed the
May 18, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
7

Id. at 436.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides. (6th ed. 2009).

3

necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.11
ANALYSIS
In its May 18, 2010 decision OWCP granted appellant a schedule award for a one percent
impairment of the right upper extremity and a one percent impairment of the left upper
extremity, using the applicable tables of the sixth edition of the A.M.A., Guides. The section of
the A.M.A., Guides which rates diagnosis-based impairments for the upper extremities is located
at Chapter 15, which states at page 387, section 15.2 that impairments are defined by class and
grade. This section states:
“The impairment class (IC) is determined first, by using the corresponding
diagnosis-based regional grid. The grade is then determined using the adjustment
grids provided in Section 15.3. Once the impairment class has been determined,
based on the diagnosis, the grade is initially assigned the default value, C. The
final impairment grade, within the class, is calculated using the grade modifiers,
or nonkey factors, as described in Section 15.3. Grade modifiers include
functional history, physical examination, and clinical studies. The grade
modifiers are used on the Net Adjustment Formula described in Section at 15.3d
to calculate a net adjustment. The final impairment grade is determined by
adjusting the grade up or down the default value C. by the calculated net
adjustment.” The lowest possible grade is A, and adjustments less than minus 2
from the default value C will automatically be considered A; the highest possible
grade is E, and adjustments greater than plus 2 will automatically be considered
E.
“The regional grid is used for 2 purposes: (1) to determine the most appropriate
class for a specific regional diagnosis and (2) to determine the final impairment
after appropriate adjustments are made using the grade modifiers.”12
Using the formula above and the net adjustment formula outlined at pages 406 to 411 of
the A.M.A., Guides, Dr. Weiss properly found that appellant had a class 2 impairment for
functional history at C6-7 at Table 15-7, which yielded a grade of two; he then applied the net
adjustment formula at pages 406, 410 and 411 of the A.M.A., Guides, subtracting a grade
modifier of one from two, for a net, adjusted total of one. He also found a class 2 impairment for
clinical studies, which rendered a grade of two. Applying the net adjustment formula, a grade
modifier of two for clinical studies at Table 15-21, page 436, was properly subtracted from the
10

Id.

11

Veronica Williams, 56 ECAB 367, 370 (2005).

12

A.M.A., Guides 387.

4

grade of one at Table 15-9; this equaled one percent impairment for clinical studies, as adjusted.
Dr. Weiss added the grade 1 calculations for functional history and clinical history, for an
adjusted overall grade of two, which yielded a one percent impairment of the right upper
extremity for sensory deficit of the right C6 and C7 axillary nerve root at Table 15-21, page 440.
Dr. Weiss properly utilized the same method to calculate appellant’s one percent left
upper extremity impairment. He determined that appellant had a class 2 impairment for axillary
nerve root impairment at C5-6, functional history, at Table 15-7, which yielded a grade of two;
he then applied the net adjustment formula at pages 406, 410 and 411 of the A.M.A., Guides,
subtracting a grade modifier of one from two, for a net, adjusted total of one. The net adjustment
formula was then applied to find axillary nerve root impairment based on clinical studies. Using
Table 15-7, a class 2 left upper extremity impairment was rated, which yielded a grade modifier
of one, which subtracted from the grade of two for a net, adjusted to a grade of one. The grades
of one for functional history and clinical studies were added, for a total of two, which amounted
to a one percent left upper extremity impairment for sensory deficit of the left C5 and C6 axillary
nerve root at Table 15-21, page 436.
On appeal, appellant’s attorney asserts, as he did below, that she has a property right in a
schedule award benefit under the fifth edition of the A.M.A., Guides and that a protected
property interest cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254
(1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). In Harry D. Butler,13 the Board noted
that Congress delegated authority to the Director regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the A.M.A.
Guides as a uniform standard applicable to all claimants and the Board has concurred in the
adoption.14 On March 15, 2009 the Director exercised authority to advise that as of May 1, 2009
all schedule award decisions of OWCP should reflect use of the sixth edition of the A.M.A.,
Guides.15 The applicable date of the sixth edition is as of the schedule award decision reached.
It is not determined by either the date of maximum medical improvement or when the claim for
such award was filed.
The Board finds that appellant has a one percent permanent impairment of her right and
left upper extremities. This rating was based on the applicable protocols and tables of the sixth
edition of the A.M.A., Guides. As appellant did not submit any medical evidence to support an
award greater than the Board will affirm the schedule awards in this case.
CONCLUSION
The Board finds that appellant has no more than a one percent permanent impairment of
the right upper extremity and a one percent left upper extremity impairment, for which she
received schedule awards.
13

43 ECAB 859 (1992).

14

Id. at 866.

15

FECA Bulletin No. 09-03 (March 15, 2009). FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 8, 2010 decision be affirmed.
Issued: October 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, OGDEN
UTAH -- OAMA,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 14-131
Issued: April 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 23, 2013 appellant filed a timely appeal from an October 15, 2013 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than a two percent monaural right ear
hearing loss for which he received a schedule award.
FACTUAL HISTORY
On November 27, 2012 appellant, then a 59-year-old aircraft mechanic supervisor, filed
an occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a
1

5 U.S.C. § 8101 et seq.

result of his federal employment duties. He reported that he worked in a high aircraft noise
repair facility and was exposed to noise from aircraft, ratchets, rivet guns, air compressors and
hydraulic mules from 1978 to the present. Appellant first became aware of his condition and of
its relationship to his employment on July 30, 2001.
He notified his supervisor on
November 27, 2012.
Audiograms and hearing conservation data were submitted for the period of June 6, 1974
to October 15, 2012.
On November 27, 2012 appellant filed a claim for a schedule award (Form CA-7).
OWCP referred appellant to Dr. Robert L. Moesinger, a Board-certified otolaryngologist,
for a second opinion evaluation on May 6, 2013. It provided a statement of accepted facts
addressing appellant’s federal work duties as an aircraft mechanic from 1978 to the present and
noted that he was exposed to employment-related noise between one to eight hours a day. An
audiogram was completed on May 6, 2013 which revealed the following decibels (dBA) losses at
500, 1,000, 2,000 and 3,000 Hertz (Hz): 20, 10, 20 and 55 for the right ear and 15, 10, 15 and 30
for the left ear. Speech reception thresholds were 20 dBA on the right and 15 dBA on the left
and auditory discrimination scores were 100 percent bilaterally. Dr. Moesinger referenced
appellant’s December 12, 1979 audiogram and reported that appellant had normal hearing in the
beginning of his federal employment. He compared the 1979 audiogram to appellant’s current
May 6, 2013 audiogram and found that appellant suffered from noise-induced hearing loss which
was caused by his workplace exposure. Dr. Moesinger diagnosed bilateral moderate to severe
neurosensory hearing loss most consistent with noise exposure from over 35 years of work as an
aircraft mechanic. He noted that appellant had difficulty understanding conversations and
recommended hearing aids.
OWCP referred the case file together with Dr. Moesinger’s report to Dr. Morley Slutsky,
a district medical adviser (DMA), to determine the extent of appellant’s permanent partial
impairment and date of maximum medical improvement. In a report dated May 22, 2013,
Dr. Slutsky reviewed the record but did not find a copy of the second opinion physician’s
May 6, 2013 audiogram. He also noted that the dBA value in the right ear at 2,000 Hz was not
legible. Dr. Slutsky opined that appellant had zero percent binaural hearing loss under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 He stated that if more information became available, he could
revise his opinion. The date of maximum medical improvement was noted as May 6, 2013.
By decision dated June 21, 2013, OWCP accepted appellant’s claim for bilateral hearing
loss. It found that his bilateral hearing loss was not severe enough to be considered ratable and
denied a schedule award claim.
On August 22, 2013 OWCP again referred the case file to Dr. Slutsky to determine the
extent of appellant’s permanent partial impairment. It noted that appellant’s claim was accepted
for noise induced bilateral hearing loss and provided the physician with the missing May 6, 2013
audiogram.
2

A.M.A., Guides.

2

In an August 23, 2013 report, Dr. Slutsky diagnosed work-related binaural sensorineural
hearing loss. Using the sixth edition of the A.M.A., Guides, he averaged appellant’s left ear
hearing levels of 15, 10, 15 and 30 dBA at 500, 1,000, 2,000 and 3,000 Hz, which totaled 70.
Dr. Slutsky then subtracted a 25-dBA fence and multiplied the balance of -7.5 by 1.5 to find -11.25 percent left ear monaural hearing loss. He then averaged appellant’s right ear hearing
levels of 20, 10, 20 and 55 dBA at 500, 1,000, 2,000 and 3,000 Hz, which totaled 26.25. After
subtracting out a 25-dBA fence, Dr. Slutsky multiplied the remaining 1.25 balance by 1.5 to
calculate a 1.875 percent right ear monaural hearing loss. He did not list any impairment due to
tinnitus. Dr. Slutsky calculated .3 percent binaural hearing loss by multiplying the lesser left ear
loss of 0 percent by 5, adding the greater 2 percent right ear loss (rounded up from 1.875) and
dividing this sum by 6.3 He recommended hearing aids and noted the date of maximum medical
improvement as May 6, 2013.
By decision dated August 28, 2013, OWCP accepted appellant’s claim for noise-induced
bilateral hearing loss and informed him that he was entitled to a schedule award for permanent
partial impairment of his hearing loss. Appellant was informed that the medical evidence
established that he would benefit from hearing aids. OWCP noted that the August 28, 2013
decision superseded the June 21, 2013 decision.
By decision dated October 15, 2013, OWCP granted appellant a schedule award for two
percent monaural hearing loss of the right ear. The award covered a period of 1.04 weeks from
May 6 to 13, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged. Then, the fence of 25 dBA is deducted
because, as the A.M.A., Guides points out, losses below 25 dBA result in no impairment in the
ability to hear everyday speech under everyday conditions.6 The remaining amount is multiplied
3

The .3 percent binaural hearing loss is rounded down to 0.

4

5 U.S.C. §§ 8101-8193.

5

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

6

See A.M.A., Guides 250.

3

by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption of this
standard for evaluating hearing loss.7
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.8 The A.M.A., Guides state that if tinnitus
interferes with Activities of Daily Living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10 It may follow the advice of its
medical adviser or consultant where he or she has properly utilized the A.M.A., Guides.11
ANALYSIS
The issue is whether appellant has more than a two percent monaural right ear hearing
loss for which he received a schedule award.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Moesinger,
a Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was
completed on May 6, 2013 which revealed the following dBA losses at 500, 1,000, 2,000 and
3,000 Hz: 20, 10, 20 and 55 for the right ear and 15, 10, 15 and 30 for the left ear.
Dr. Moesinger diagnosed bilateral moderate-to-severe neurosensory hearing loss most consistent
with noise exposure from over 35 years of work as an aircraft mechanic. He noted that appellant
had difficulty understanding conversations and recommended hearing aids.
OWCP then referred the medical evidence to Dr. Slutsky, a district medical adviser, for a
permanent impairment rating in accordance with the A.M.A., Guides.12 In a May 22, 2013
report, Dr. Slutsky opined that appellant had zero percent binaural hearing loss but noted that he
was not provided a copy of the May 6, 2013 audiogram and the dBA value in the right ear at
7

See E.S., 59 ECAB 249 (2007); Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted
(modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).
8

See supra note 6 at 249.

9

Id. See also Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
11

See Ronald J. Pavlik, 33 ECAB 1596 (1982).

12

See Hildred I. Lloyd, 42 ECAB 944 (1991).

4

2,000 Hz was not legible. By decision dated June 21, 2013, OWCP accepted appellant’s claim
for bilateral hearing loss but denied his schedule award claim finding that his bilateral hearing
loss was not severe enough to be considered ratable.
On August 22, 2013 OWCP rerouted the case file to Dr. Slutsky and provided him with
the missing requested May 6, 2013 audiogram to determine the extent of appellant’s permanent
partial impairment.
On August 23, 2013 Dr. Slutsky applied the findings of the May 6, 2013 audiogram to
calculate two percent monaural right ear hearing loss.13 Using the sixth edition of the A.M.A.,
Guides, he averaged appellant’s left ear hearing levels of 15, 10, 15 and 30 dBA at 500, 1,000,
2,000 and 3,000 Hz, which totaled 70. Dr. Slutsky then subtracted a 25-dBA fence and
multiplied the balance of -7.5 by 1.5 to find -11.25 loss, equivalent to a zero percent monaural
hearing loss of the left ear. He then averaged appellant’s right ear hearing levels of 20, 10, 20
and 55 dBA at 500, 1,000, 2,000 and 3,000 Hz, which totaled 26.25. After subtracting out a
25-dBA fence, Dr. Slutsky multiplied the remaining 1.25 balance by 1.5 to calculate a 1.875 loss
or a two percent monaural hearing loss of the right ear after rounding up. He did not list any
impairment due to tinnitus. Dr. Slutsky then calculated .3 percent binaural hearing loss (rounded
down to 0) by multiplying the lesser left ear loss of 0 percent by 5, adding the greater 2 percent
right ear loss (rounded up from 1.875) and dividing this sum by 6.14 He recommended hearing
aids and noted the date of maximum medical improvement as May 6, 2013.
The Board finds that Dr. Slutsky properly applied the A.M.A., Guides in calculating
appellant’s impairment rating and OWCP correctly relied on his opinion to find that appellant
sustained two percent monaural hearing loss of the right ear.15 The Board finds that there is no
evidence in the record of greater impairment.
A schedule award provides for payment of compensation for a specific number of weeks
as prescribed by the statute.16 FECA provides that a claimant is entitled to 52 weeks of
compensation for a 100 percent loss of hearing in one ear and 200 weeks compensation for 100
percent hearing loss in both ears. Multiplying two percent by 52 weeks provided for right ear
monaural hearing loss results in a total of 1.04, the number of weeks OWCP authorized for
payment of appellant’s schedule award. Thus, the Board finds that OWCP properly determined
the number of weeks of compensation.
In its October 15, 2013 decision, OWCP stated that appellant was entitled to $1,289.14 in
schedule award compensation for the period May 6 to 13, 2013. This was based on multiplying

13

Supra note 8.

14

Id.

15

See Linda Beale, 57 ECAB 429 (2006).

16

5 U.S.C. § 8107.

5

appellant’s weekly pay rate of $1,652.74 by the 75 percent augmented compensation rate which
totaled $1,239.56, resulting in a payment of $1,289.14.17
With respect to the specific period for payment of the 1.04 weeks of compensation, this is
based on the date of maximum medical improvement which occurred on May 6, 2013, the date
of appellant’s audiogram. The determination of the date for maximum medical improvement
ultimately rests with the medical evidence18 and is usually considered to be the date of the
evaluation by the physician which is accepted as definitive by OWCP.19 The Board finds that
OWCP properly determined the period of the award for 1.04 weeks from May 6 to 13, 2013.
CONCLUSION
The Board finds that appellant has not established that he sustained greater than two
percent monaural hearing loss to the right ear in the performance of duty.

17

The basic rate of compensation paid under FECA is 66 2/3 percent of the injured employee’s monthly pay.
Where the employee has one or more dependents, as in this case, as defined in FECA, the employee is entitled to
have his or her basic compensation augmented at the rate of 8 1/3 percent for a total of 75 percent of monthly pay.
5 U.S.C. § 8110(b). The number of weeks of compensation for a schedule award is determined by the compensation
schedule found in section 8107(c) of FECA. 5 U.S.C. § 8107(c); Dennis R. Stark, Docket No. 05-1826 (issued
January 10, 2006).
18

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

19

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

6

ORDER
IT IS HEREBY ORDERED THAT the October 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.E., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

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

Docket No. 21-0194
Issued: November 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 16, 2020 appellant filed a timely appeal from an August 4, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated August 16, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim 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.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 9, 2017 appellant, then a 74-year-old tractor trailer operator, filed a traumatic
injury claim (Form CA-1) alleging that on December 8, 2017 he injured his left knee while in the
performance of duty. He explained that he was stepping down from the spoile r and when his foot
hit the ground, he felt his left knee “pop” and he “felt a lot of pain.” Appellant stopped work on
December 8, 2017. The employing establishment controverted the claim and indicated that the
incident was not investigated by the supervisor at the location.
A December 9, 2017 x-ray of the left knee read by Dr. Francisco Menendez, a Boardcertiﬁed diagnostic radiologist, revealed minimal degenerative changes.
In a development letter dated December 15, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence necessary and provided a factual questionnaire for his completion. Appellant
was afforded 30 days to submit the necessary evidence.
OWCP subsequently received reports dated December 11 and 21, 2017, and January 9,
2018 from Jerry Rhode, a nurse practitioner. The December 11, 2017 notes indicated that
appellant was “stepping down from cab and unclear of exactly what happened, but felt sudden
sharp, stabbing pain to his left knee.” In these reports, Mr. Rhode listed appellant’s diagnosis as
left knee sprain.
A January 4, 2018 magnetic resonance imaging (MRI) scan of the left knee, interpreted by
Dr. Ronald Cooper, a diagnostic radiologist, demonstrated a root tear of the posterior horn of the
medial meniscus, extending to the posterior horn, a grade 2 chondromalacia of the medial
compartment, and a mild medial collateral ligament sprain with acute ﬁndings.
By decision dated January 22, 2018, OWCP denied appellant’s claim, finding that the
evidence submitted was insufficient to establish that the employment event occurred as described.
It explained that it had not received a response from appellant regarding the information requested
in the December 15, 2017 development letter.
On February 23, 2018 appellant requested reconsideration and submitted additional
evidence.
OWCP received a December 8, 2017 emergency room report from Dr. Jeremy Kirtz,
Board-certiﬁed in emergency medicine, relating that appellant was stepping out of his postal
carrier with his leg straight when he experienced a sudden onset of extreme pain in the left knee.
Dr. Kirtz diagnosed acute internal derangement of the left knee.

2

Docket No. 18-1357 (issued March 26, 2019).

2

In a December 28, 2017 report, Dr. Gregory Schwaid, Board-certiﬁed in general preventive
medicine, noted the onset two weeks prior of symptoms at the left knee, medial and lateral. He
diagnosed a strain of the left knee, initial encounter.
In a January 30, 2018 statement, appellant explained that on December 8, 2017 he was at
work when he stepped down from his truck and when his left foot hit the ground, it “felt as if my
left knee exploded.” He also noted that it was “not a sharp pain, but my whole knee hurt” and that
he called his boss, told him what happened, and that he would try to finish his shift. Appellant
related that he could walk straight, but could not twist his knee, that it seemed to be better after
lunch, but when he went back to his truck and tried to get out, it happened again. He explained
that he called his supervisor and informed him that he could not continue with his work duties and
sought medical treatment.
In a February 2, 2018 report, Dr. Grant Garlick, a Board-certiﬁed orthopedic surgeon,
noted that appellant presented with a chief complaint of left knee pain and swelling. He diagnosed
left knee osteoarthritis with a “most likely” degenerative meniscus tear.
By decision dated June 20, 2018, OWCP affirmed the January 22, 2018 decision, as
modified. It found that the factual evidence of record was sufficient to establish that the claimed
work incident occurred as alleged. However, the claim remained denied, as the medical evidence
of record was insufficient to establish causal relationship between a diagnosed condition and the
accepted employment incident.
On July 2, 2018 appellant filed a timely appeal to the Board from the June 20, 2018 merit
decision.
By decision dated March 26, 2019, the Board found that appellant had not met his burden
of proof to establish that his left knee condition was causally related to the accepted December 8,
2017 employment incident. The Board explained that the medical evidence of record did not
establish how the December 8, 2017 employment incident caused or aggravated a left knee
condition.
On May 30, 2019 appellant requested reconsideration and submitted additional evidence.
In an April 30, 2019 attending physician’s report (Form CA-20), Dr. Kirtz noted that
appellant had sudden onset of left knee pain when stepping out of his postal carrier vehicle. He
diagnosed internal derangement of the left knee and checked a box marked “Yes” in response to
whether he believed the condition was caused or aggravated by an employment activity.
By decision dated August 16, 2019, OWCP denied modification of the March 26, 2019
decision. It explained that a physician checking a box on the form did not establish that the medical
condition was caused or aggravated by an employment injury. OWCP further explained that where
a preexisting condition was involved with the same part of the body , the issue of causal relationship
involved aggravation, and the physician must provide a rationalized medical opinion that
differentiated between the effects of the work-related injury or disease and the preexisting
condition.
On December 20, 2019 appellant requested reconsideration. He denied providing two
different versions of the employment incident and indicated that the employing establishment
changed his statement from “spotter” to “spoiler.” Appellant explained that a “spotter” was a truck
3

used to move trailers in the yard and that it had a step of about seven to eight inches high. He
explained that, when he stepped down, the meniscus in his left knee was torn, and that the
January 4, 2018 MRI scan showed a torn meniscus. Appellant argued that, despite there being a
torn meniscus, OWCP wanted an opinion on “causal relationship” and that the reason for denial
of his claim was a “preexisting condition and rational medical certainty.” He questioned “[w]hat
preexisting condition” and related that his knee was fine when he began work, he worked for four
hours, and left work with a brace on his knee and crutches. Appellant argued that his physicians
indicated that there was an injury, it was work related, and he was entitled to compensation for
time lost as a result of the work injury.
By decision dated August 4, 2020, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. 3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority. 4 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. 5
A timely request 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. 6
When a timely request 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. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
On December 20, 2019 appellant requested reconsideration. He contended that he did not
provide two different versions of the employment incident and that the employing establishment
changed his statement from “spotter” to “spoiler.” Appellant noted that his MRI scan showed a
torn meniscus and that his knee was fine before the work incident, and argued that OWCP
This section provides in pertinent part: “The 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).
3

4

Id.

5

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
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

4

improperly found that he had a preexisting condition. He further argued that his physicians
indicated that there was an injury, it was work related, and he was entitled to compensation for
time lost as a result of the work injury. The Board finds that these arguments do not show that
OWCP erroneously applied or interpreted a specific point of law, nor do they advance a relevant
legal argument not previously considered by OWCP. The Board notes that OWCP had already
considered the factual and medical evidence of record when it previously denied appellant’s claim.
OWCP had previously reviewed the evidence cited by appellant and found that it was not of
sufficient probative value to require either acceptance or further development of appellant’s claim.
The Board has held that the submission of evidence/argument, which repeats or duplicates
evidence or argument already in the case record, does not constitute a basis for reopening a case. 8
Consequently, appellant is not entitled to further review of the merits of his claim based on either
the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 9
On reconsideration appellant did not submit any new medical evidence. The underlying
issue of the present case is medical in nature and appellant has not submitted pertinent new and
relevant evidence in connection with his reconsideration request. 10 Therefore, appellant also failed
to satisfy the third requirement under 20 C.F.R. § 10.606(b)(3), i.e., the submission of relevant and
pertinent new evidence not previously considered by OWCP.
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). 11 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied the request for
reconsideration without reopening the case for review on the merits. 12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

8

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

20 C.F.R. § 10.606(b)(3); see T.B., Docket No. 21-0045 (issued June 2, 2021); J.V., Docket No. 19-0990 (issued
August 26, 2020); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See R.M., Docket No. 21-0265 (issued June 23, 2021).

11

Supra note 9.

12

See G.M., Docket No. 20-1485 (issued March 22, 2021); D.R., Docket No. 18-0357 (issued July 2, 2018); A.K.,
Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the August 4, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-605
Issued: January 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On January 13, 2011 appellant, through his attorney, filed a timely appeal from an
October 5, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
granting him an increased schedule award. The Board docketed the appeal as No. 11-605.
This case has previously been before the Board.1 In an order dated April 3, 2009, the
Board set aside August 9, 2007 and March 5, 2008 decisions granting appellant a schedule award
for the left upper extremity.2 It found that the opinion of Dr. Paul. Foddai, a Board-certified
orthopedic surgeon selected as impartial medical examiner, was insufficient to resolve the
conflict in medical opinion as he had previously examined appellant as an OWCP referral
physician.

1

OWCP accepted that on May 10, 1992 appellant, then a 41-year-old mail processing equipment mechanic,
sustained a laceration of the left index and middle fingers and left carpal tunnel syndrome in the performance of
duty.
2

Order Remanding Case, Docket No. 08-1776 (issued April 3, 2009).

By letter dated September 2, 2009, OWCP referred appellant to Dr. Stanley Soren, a
Board-certified orthopedic surgeon, for an impartial medical examination.3 Based on
Dr. Soren’s report, in a decision dated April 6, 2010, OWCP granted appellant an additional one
percent left upper extremity award. Appellant, through his attorney, requested an oral hearing.
At the hearing, counsel argued that OWCP did not follow its procedures in selecting Dr. Soren as
the impartial medical examiner. He also argued that there was no conflict in medical opinion
evidence as Dr. Soren was the first physician to utilize the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides)
in reaching his impairment rating. By decision dated October 5, 2010, a hearing representative
affirmed OWCP’s April 6, 2010 schedule award decision. He found that Dr. Soren provided a
referral opinion rather than acting as an impartial medical examiner given that he was the only
physician to rate appellant’s impairment using the sixth edition of the A.M.A., Guides.
Initially, the Board finds that Dr. Soren’s opinion was that of an impartial medical
examiner. In its April 3, 2009 order, the Board found that a conflict in medical opinion existed
regarding the extent of appellant’s left upper extremity impairment. OWCP referred him to
Dr. Soren for resolution of the conflict, pursuant to 5 U.S.C. § 8123(a). The conflict regarding
the extent of appellant’s impairment existed regardless of the edition of the A.M.A., Guides
applicable to the clinical findings on examination.4
The Board further finds that OWCP has not adequately explained how the rotational
system selected Dr. Soren. A physician selected by OWCP to serve as an impartial medical
specialist should be one wholly free to make a completely independent evaluation and judgment.
In order to achieve this, OWCP has developed specific procedures for the selection of impartial
medical specialists designed to provide adequate safeguards against any possible appearance that
the selected physician’s opinion was biased or prejudiced. The procedures contemplate that
impartial medical specialists will be selected on a strict rotating basis in order to negate any
appearance that preferential treatment exists between a particular physician and OWCP.5
OWCP has an obligation to verify that it selected Dr. Soren in a fair and unbiased
manner. It maintains records for this very purpose.6 The current record contains a September 1,
2009 MEO23 IFECS report which states that appellant’s referee appointment was scheduled with

3

Following the Board’s order, on April 7, 2009 appellant’s attorney requested participation in the selection of the
impartial medical examiner. By decision dated June 2, 2009, OWCP denied his request. It found that he had not
provided a valid reason to object to the selection of the impartial medical examiner. On June 15, 2009 OWCP
referred appellant to Dr. Sebastian Adibe, a Board-certified orthopedic surgeon, for an impartial medical
examination. However, on August 6, 2009 Dr. Adibe advised OWCP that he had had “prior contact with [appellant]
in 1993.”
4

See generally R.G., Docket No. 10-1418 (issued April 25, 2011) (finding that the impartial medical examiner
properly utilized the sixth edition of the A.M.A., Guides in resolving a conflict of medical opinion created by
physicians using the fifth edition of the A.M.A., Guides).
5

Raymond J. Brown, 52 ECAB 192 (2001).

6

M.A., Docket No. 07-1344 (issued February 19, 2008).

2

Dr. Soren. The record also contains screen shots dated September 1, 2009; however, the screen
shots are not fully legible7 and do not substantiate the referee selection of Dr. Soren.8
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial medical specialist. OWCP has not met its affirmative obligation to establish that it
properly followed its selection procedures.
The Board will remand the case to OWCP for selection of another impartial medical
specialist. After such further development as deemed necessary, it shall issue a de novo decision
regarding appellant’s entitlement to a schedule award.
IT IS HEREBY ORDERED THAT the October 5, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

See B.S., Docket No. 10-2343 (issued September 28, 2011) (where the Board remanded the case for selection of
a new impartial medical examiner as OWCP failed to establish that it properly followed its procedures for selection
of the impartial medical examiner as the IFECS documents submitted to the record were illegible).
8

See generally, P.D., Docket No. 10-1031 (issued September 28, 2011) (where the Board remanded the case for
selection of a new impartial medical examiner as, although the record contained a MEO23 IFECS report stating that
appellant’s referee appointment was scheduled with the selected impartial medical examiner, the record did not
include any IFECS screenshots substantiating the referee selection of the impartial medical examiner).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Discovery Bay, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0163
Issued: May 28, 2019

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 October 30, 2017 appellant filed a timely appeal from an August 21, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 1, 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 this case.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.

The Board notes that appellant submitted additional evidence on appeal. 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.

FACTUAL HISTORY
On March 19, 2016 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained pain in the right shoulder area
due to factors of her federal employment. She indicated that her work required her to use her right
hand frequently to case mail. Appellant’s work requirements included pulling down, sliding doors
open and closed, reaching up for the back door, reaching for her seat belt, and using the gear shift
hundreds of times per day. She noted that her shoulder was not painful on days when she was off
work. Appellant indicated that she first became aware of her claimed condition on March 4, 2015
and first realized its relation to her federal employment on January 22, 2016. She provided a
separate statement with her claim further describing her job duties.
In a March 21, 2016 report, Dr. Edward O’Hara, a family medicine specialist, noted
appellant’s history of injury and treatment, which included that she was a mail carrier for almost
eight years. He related that she believed that the repetitiveness of her job and the amount of time
that she used her right hand had contributed to her condition. Dr. O’Hara examined appellant and
diagnosed biceps tendinitis of the shoulder. He also completed a form report titled “Doctor’s
Report of Occupational Illness or Injury.” Dr. O’Hara diagnosed biceps tendinitis of the right
shoulder and indicated that his diagnosis was consistent with appellant’s account of her injury.
Dr. Allan C. Bushnell, Jr., Board-certified in occupational medicine, saw appellant on
March 30 and April 7 and 27, 2016. In his March 30 and April 7, 2016 reports, he diagnosed
biceps tendinitis and advised a return to work without restrictions. In his April 7, 2016 report,
Dr. Bushnell determined that appellant was 100 percent improved. He found that she no longer
had right biceps tendon and right shoulder pain at the shoulder. Dr. Bushnell reiterated the
diagnosis and opined regarding the question of causation, “I do not think that the repetitive
activities in her job, that she claimed was the mechanism of injury for her biceps tendinitis, caused
her biceps tendinitis, and therefore, this is not a work caused injury. It is felt that her injury was a
work exacerbation injury.” Dr. Bushnell released appellant from care and returned her to full-duty
work without restrictions on April 7, 2016.
By decision dated June 1, 2016, OWCP denied appellant’s claim finding that the medical
evidence of record was insufficient to establish that the diagnosed medical condition was causally
related to the accepted factors of her federal employment.
On May 23, 2017 appellant requested reconsideration. She argued that Dr. Bushnell had
opined that her right shoulder condition was exacerbated by her work as a mail carrier. Appellant
indicated that in January and February 2017, she saw an orthopedic surgeon who also indicated
that her condition was exacerbated by her work. She noted that she had his statement. Appellant
also related that because her electrocardiogram (EKG) was normal, that the orthopedic surgeon
could not help her because surgery was not indicated. She explained that in May 2017 she began
seeing her current physician. Appellant noted that he wanted to do a different therapy called
osteopathic manipulative treatment, which she believed would benefit her symptoms and
conditions. She indicated that she had her statement as well. Appellant explained that OWCP
already had the medical documentation with her original claim and she was now submitting the
new medical evidence from 2017.

2

OWCP received a copy of the March 18 and 21, 2016 reports from Dr. O’Hara. It also
received copies of the March 30, April 7, 2016 reports from Dr. Bushnell.
By decision dated August 21, 2017, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 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.5
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.6 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.7
ANALYSIS
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).
In the May 15, 2017 request for reconsideration, appellant argued that her original
physician, Dr. Bushnell, opined that her right shoulder condition was exacerbated by her work as
a mail carrier. The Board notes that his report was considered in the earlier decisions and as the
issue is medical in nature, without further medical rationale this argument is insufficient to warrant
a merit review. The Board notes that appellant did not demonstrate that OWCP erroneously
applied or interpreted a specific point of law. Additionally, appellant did not advance any relevant
legal arguments not previously considered by OWCP. The Board therefore finds that appellant is

3
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).
4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
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 Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

3

not entitled to a review of the merits based on the first and second requirements pursuant to section
10.606(b)(3).8
Appellant also did not submit relevant and pertinent new evidence with the May 15, 2017
request for reconsideration. She provided copies of previously considered and submitted medical
reports. Providing additional evidence that either repeats or duplicates information already in the
record does not constitute a basis for reopening a claim.9 Because appellant did not provide
relevant and pertinent new evidence when requesting reconsideration, she is not entitled to a
review of the merits based on the third requirement under section 10.606(b)(3).10
The Board finds that appellant has not met any of the three regulatory requirements under
section 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).

8

Id. at § 10.606(b)(3)(i) and (ii).

9

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

10

20 C.F.R. § 10.606(b)(3)(iii).

4

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 28, 2019
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

5