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

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

Docket No. 13-1255
Issued: December 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 2, 2013 appellant filed a timely appeal of a December 19, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration as
untimely and failed to show clear evidence of error. 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 December 19, 2012 decision. The Board does not have jurisdiction over the merits of the
claim.2
ISSUE
The issue is whether OWCP properly found that appellant had submitted an untimely
application for reconsideration that did not show clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The last merit decision was an OWCP decision dated December 2, 2011. For final OWCP decisions issued on
or after November 19, 2008, a claimant has 180 days to file an appeal with the Board. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case was previously before the Board. In a decision dated October 17, 2000, the
Board remanded the case for further development with respect to appellant’s permanent
impairment to the left leg.3 In a decision dated July 16, 2004, the Board found that he had
submitted an application for reconsideration that was sufficient to require further merit review of
the claim.4 The history of the case as contained in the Board’s prior decisions is incorporated
herein by reference.
OWCP accepted that appellant sustained injuries in a motor vehicle accident on March 4,
1988 while in the performance of duty. The accepted conditions were left femur fracture, left
knee laceration, left orbit fracture and right wrist fracture.5 Appellant also had an occupational
claim filed on March 8, 2007 accepted for bilateral calcifying tendinitis of the shoulder.
OWCP issued a schedule award for a 25 percent impairment of the left leg on
September 11, 1995, an additional 15 percent on April 22, 1997, an additional 18 percent on
September 25, 1998 and an additional 8 percent on January 25, 2001 (for a total of 66 percent).
As to the right arm, it issued a schedule award for a 30 percent impairment on September 19,
1995 and an additional 5 percent on December 29, 2004.
By decision dated September 14, 2010, OWCP determined that appellant was not entitled
to an additional schedule award for the right arm or either leg. In a decision dated September 15,
2010, it issued a schedule award for an 18 percent permanent impairment to the left arm. The
period of the award was 56.16 weeks from August 29, 2010.
On September 7, 2011 OWCP received a request for reconsideration of the
September 14, 2010 decision. In a July 30, 2011 report, Dr. Eric Javier, a physiatrist, opined that
appellant had a 16 percent impairment based on his right shoulder condition.
By decision dated December 2, 2011, OWCP reviewed the merits of the claim and denied
modification. It found that the evidence did not establish an additional permanent impairment
greater than appellant had previously received.6
On December 6, 2012 OWCP received a request for reconsideration of the December 2,
2011 OWCP decision. The request was dated November 28, 2012. Appellant submitted two
brief notes from Dr. Javier dated November 27, 2012 addressed to another physician requesting
evaluation for shoulder surgery. He also submitted a February 3, 2012 magnetic resonance
3

Docket No. 99-727 (issued October 17, 2000).

4

Docket No. 04-871 (issued July 16, 2004).

5

Subsequent development of the record indicated that additional conditions were accepted: generalized anxiety
disorder, right wrist arthritis, bilateral carpal and cubital tunnel syndromes, cervical radiculopathy, thoracic myositis,
bilateral shoulder bursitis or impingement and lumbar para-radiculopathy.
6

The decision incorrectly stated that the reconsideration request received on September 7, 2011 requested review
of the September 15, 2010 decision. The December 2, 2011 decision does address the medical evidence submitted
with respect to right arm permanent impairment.

2

imaging scan report diagnosing right shoulder mild infraspinatus tendinopathy and findings
suggestive of a superior labral tear from anterior to posterior injury. Appellant resubmitted a
December 23, 2004 report from an OWCP medical adviser with respect to a right arm permanent
impairment.
By decision dated December 19, 2012, OWCP determined that appellant’s application for
reconsideration was untimely. It found that the application for reconsideration did not show
clear evidence of error and therefore was not sufficient to warrant merit review of the claim.
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.7 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.”8
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.9 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.10 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.11 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.12 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.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.605 (2012).

9

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

10

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.”
11

5 U.S.C. §§ 8101-8193.

12

20 C.F.R. § 10.607 (2012).

13

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

14

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

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establish clear evidence of error.15 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.16 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.17
ANALYSIS
When the underlying compensation claim is for a schedule award, an initial question is
whether the claimant has submitted an application for reconsideration or has requested an
increased schedule award. Even if appellant has requested “reconsideration,” if there is new and
relevant evidence with respect to an increased permanent impairment, then a claimant may be
entitled to a merit decision on the issue.18 But when a claimant does not submit any relevant
evidence with respect to an increased schedule award, then OWCP may properly determine that
appellant has filed an application for reconsideration of a schedule award decision.19 In this
case, appellant did not submit any relevant evidence with respect to an increased permanent
impairment. Therefore, the Board finds that OWCP properly considered his submission as an
application for reconsideration.
The last OWCP decision on the merits of the schedule award issue was dated
December 2, 2011. According to 20 C.F.R. § 10.607, the application for reconsideration must be
received by OWCP within one year of December 2, 2011 to be considered timely. The date
received is determined by the document received date in the Integrated Federal Employees’
In this case, the date received in IFECS was
Compensation System (IFECS).20
December 6, 2012. Since this is more than one year after the December 2, 2011 merit decision,
it is an untimely reconsideration request.
As an untimely application for reconsideration, appellant must establish clear evidence of
error by OWCP to require his claim to reopened for merit review. In this case, appellant did not
establish clear evidence of error. He did not present any argument with respect to error by
OWCP. The evidence submitted with the application for reconsideration did not address the
degree of permanent impairment with respect to any scheduled member of the body as of
December 2, 2011. Dr. Javier did not discuss a permanent impairment to the right arm in the
November 27, 2012 notes submitted with the application for reconsideration. The medical
adviser report was from 2004 and does not show error with respect to the December 2, 2011
decision.
15

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

16

Id.

17

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

18

See Linda T. Brown, 51 ECAB 115 (1999).

19

See W.J., Docket No. 12-1746 (issued February 5, 2013).

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). This
section provides that, for decisions prior to August 29, 2011, the application for reconsideration must be mailed
within one year.

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As noted above, the clear evidence of error standard requires that the evidence raise a
substantial question as to the correctness of OWCP’s decision and shift the weight in favor of
appellant. Appellant did not meet that standard in this case and OWCP properly denied merit
review.
On appeal, appellant states that Dr. Javier had found a 16 percent impairment to his right
shoulder alone, whereas the previous right arm impairment was based on the wrist. The Board
notes that appellant may, as noted above, claim an increased schedule award based on relevant
evidence. Appellant may pursue the issue of whether there is an additional impairment that is
not duplicative of a previous impairment. The only issue on this appeal was with respect to the
untimely application for reconsideration received by OWCP on December 6, 2012. For the
reasons stated, appellant did not establish clear evidence of error and OWCP properly denied
merit review.
CONCLUSION
The Board finds that appellant’s application for reconsideration was untimely and failed
to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2012 is affirmed.
Issued: December 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.E., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Valley Forge, PA,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0584
Issued: December 18, 2017

Case Submitted on the Record

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

JURISDICTION
On January 27, 2017 appellant, through counsel, filed a timely appeal from a
September 9, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish ratable permanent
impairment of a scheduled member, warranting a schedule award.
On appeal counsel argues that there remains a conflict of medical opinion between
appellant’s treating physician and OWCP’s medical adviser. He contends that appellant had
preexisting back conditions related to the L4, L5, and S1 levels.
FACTUAL HISTORY
On March 27, 2006 appellant, then a 47-year-old mason, filed a traumatic injury claim
(Form CA-1), alleging that he reinjured his upper back on March 16, 2006 and had pain shooting
down both legs. He was carrying a log which became tangled in vines causing him to twist his
back while holding the weight of the log. In support of his claim, appellant submitted a lumbar
magnetic resonance imaging (MRI) scan dated September 16, 2004, predating his injury, which
demonstrated disc herniations at T12-L1, L1-2, and L2-3. He had a second lumbar MRI scan on
March 27, 2006 which showed severe central stenosis from extruded disc from L2-3, left central
extrusion or herniation at L1, and multilevel chronic discogenic disease in the lower thoracic and
upper lumbar spine. Appellant underwent a lumbar laminectomy on March 30, 2006.
In a decision dated May 22, 2006, OWCP denied appellant’s claim. Appellant then
requested an oral hearing from OWCP’s Branch of Hearings and Review.
In a report dated June 28, 2006, Dr. Frederick A. Simone, a Board-certified
neurosurgeon, noted that he first examined appellant on March 29, 2006 due to low back pain
radiating down both legs which had been ongoing since March 16, 2003. Appellant described
lifting heavy logs on March 16, 2006 and immediately experiencing back pain with bilateral
radiation into his feet. He also exhibited acute urinary incontinence. Dr. Simone performed L2
laminectomy with bilateral L2-3 discectomy on March 30, 2006 and found a large acute disc
extrusion at L2-3. He opined, “Consequently, it would appear that there is a direct relationship
between the lifting episode he describes on March 16, 2006 and acute development of a frankly
herniated lumbar disc.”
By decision dated September 14, 2006, OWCP’s hearing representative found that
Dr. Simone’s reports were sufficient to establish appellant’s traumatic injury claim for L2-3 disc
herniation and reversed the May 22, 2006 decision of OWCP. He remanded the claim for
OWCP to determine whether his spinal surgery was medically necessary due to the accepted
condition. On September 26, 2006 OWCP accepted L2-3 disc herniation.
Appellant sought medical treatment on April 30 and July 30, 2008, as well as October 29,
2009 from Dr. William C. Welch, a Board-certified neurosurgeon of professorial rank, due to
persistent low back pain and low back pressure with activities. Dr. Welch noted appellant’s prior
L2-3 disc rupture and discectomy in 2006 as well as an anterior cervical discectomy at C5-6 in
1999. Appellant had limited cervical and lumbar range of motion due to pain, intact motor
testing, and diminished sensory testing in the S1 nerve root distribution. A lumbar MRI scan
demonstrated severe lumbar stenosis at L3, 4, and 5 with moderate stenosis at L1-2. Appellant

2

had an electromyogram (EMG) which demonstrated acute L1-2 radiculopathy on the left and
chronic S1 changes bilaterally. Dr. Welch diagnosed multilevel thoracolumbar disc ruptures,
degenerative changes, and stenosis. He noted that treatment would consist of surgical
decompression and thoracolumbar fusion, but recommended against further surgery.
Appellant filed a schedule award claim (Form CA-7) on May 26, 2015.
In support of this claim, appellant submitted a March 19, 2015 report from
Dr. Nicholas P. Diamond, an osteopath. Dr. Diamond described appellant’s history of carrying a
log which became caught on vines, twisting appellant’s low back. He reviewed Dr. Simone’s
and Dr. Welch’s reports as well as additional MRI scans dated October 16, 2010 and March 2,
2013 which demonstrated additional findings of left-sided disc herniation at T11-12 and
additional disc degeneration, herniations, and facet arthrosis with scoliosis. Appellant reported
bilateral radicular pain with numbness and tingling, but denied any bladder incontinence.
Dr. Diamond advised that appellant had an employment-related motor vehicle accident with
injury to his cervical spine and left arm in September 2010. He also noted an employmentrelated 2004 lumbar spine injury with bilateral radiculopathy extending to the knees and that
appellant retired from the employing establishment in August 2014. On examination, appellant
intermittently walked with a forward-flexed antalgic gait and a right lower extremity limp. He
had paravertebral muscle spasm and tenderness in the lumbar spine. Manual muscle strength
testing of the lower extremities was 4/5 bilaterally. Appellant had diminished sensibility over
the L5-S1 dermatomes bilaterally in the lower extremities. Dr. Diamond diagnosed chronic posttraumatic lumbosacral spine strain and sprain with bilateral lumbar radiculitis, L1-2, L2-3
herniated discs with multilevel spondylosis, L1-L2 radiculopathy and bilateral S1 changes based
on electrodiagnostic testing. He attributed appellant’s conditions to the March 16, 2006 work
injury.
Dr. Diamond rated appellant’s permanent impairment based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3 He found that appellant had 17 percent permanent impairment of each leg. For the
right leg, the impairment ratings included class 1 moderate sensory deficit of the right L5 nerve
root, a default rating of three percent permanent impairment. Dr. Diamond found a grade
modifier of 2 for functional history, based on his questionnaire,4 and a grade modifier of 2 for
clinical studies.5 He applied the net adjustment formula and determined that appellant had five
percent permanent impairment due to sensory deficit of the right L5 nerve root. Dr. Diamond
determined that appellant had moderate sensory deficit of the right S1 nerve root or 2 percent
impairment. He determined appellant’s functional history grade modifier was 2 and his clinical
studies grade modifier was 4. After applying the net adjustment formula, Dr. Diamond
determined that appellant had three percent permanent impairment for the right S1 nerve root.
3

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
4

A.M.A., Guides 575, Table 17-6.

5

Id. at 581, Table 17-9.

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He noted that appellant had class 1 mild motor strength deficit of the L4 nerve root at the right
hip flexors, and noted this had a default value of five percent.6 Dr. Diamond determined that
appellant’s functional history grade modifier was 2 and his MRI scan resulted in a clinical
studies grade modifier of 2. He applied the net adjustment formula and reached nine percent
permanent impairment for the right L4 nerve root. Dr. Diamond combined appellant’s lower
extremity impairments to reach 17 percent.
For the left leg, Dr. Diamond found moderate sensory deficit of the left L5 nerve root,
three percent impairment. He then applied the grade modifiers of functional history, 2, and
clinical studies, 4, to reach a net adjustment of 4 which yielded 5 percent permanent impairment
for the left L5 nerve root. Dr. Diamond found a moderate sensory deficit of the left S1 nerve
root with default two percent impairment. He utilized the grade modifiers of 2 and 4 for
functional history and clinical studies, respectively and, after applying the net adjustment
formula, found 3 percent impairment for the left S1 nerve root. Dr. Diamond determined that
appellant had a mild motor strength deficit in the left hip flexors due to impairment of the L4
nerve root, five percent default value impairment. He utilized the net adjustment formula with
grade modifiers of 2 for functional history, and 2 for clinical studies. Dr. Diamond concluded
that appellant’s net adjustment was plus 2 which yielded 9 percent impairment for the left L4
nerve root. He reached combined left leg impairments to total 17 percent. Dr. Diamond found
that appellant had reached maximum medical improvement on March 19, 2015.
OWCP referred Dr. Diamond’s report and other medical records to an OWCP district
medical adviser (DMA). On January 16, 2016 he found that there was no basis for a lower
extremity impairment rating. The DMA noted that the accepted condition was L2-3 disc
herniation with no radiculopathy. He found that Dr. Diamond based his impairment rating on
deficits in the L4, L5, and S1 nerves. The DMA determined that these conditions were not
related to appellant’s accepted employment injury at L2-3 and that findings related to these
conditions were inconsistent with the clinical findings of the other physicians of record and the
electrodiagnostic findings.
In a letter dated February 16, 2016, OWCP informed appellant that Dr. Diamond had
attributed his permanent impairment to deficits of the L5-S1 and L4 nerve roots. It noted,
however that his claim had only been accepted for L2-3 disc herniation. OWCP requested
additional medical evidence documenting permanent impairment due to his accepted conditions
and afforded appellant 30 days to respond.
In a March 31, 2016 decision, OWCP found that appellant that not established permanent
impairment of a scheduled member. Counsel requested an oral hearing from OWCP’s Branch of
Hearings and Review on April 6, 2016 regarding this decision.
Counsel appeared at the oral hearing on July 12, 2016 and argued that the medical
evidence established bilateral radiculopathy in the legs. He contended that there was an
unresolved conflict of medical opinion between OWCP’s medical adviser and Dr. Diamond.

6

The Guides Newsletter, July/August 2009, Table 2.

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By decision dated September 9, 2016, OWCP’s hearing representative summarized
appellant’s employment injuries. He found that the DMA’s report constituted the weight of the
medical opinion evidence and affirmed the March 31, 2016 decision. The hearing representative
noted that Dr. Diamond’s findings of radiculopathy did not relate to the accepted condition. He
found, “Absent any residual impairment at the level of the accepted injury, there is no basis for
including of any preexisting impairment at other levels which affect the same rated member. An
appellant must establish impairment of a scheduled member caused by the accepted condition
before impairment due to a preexisting or subsequent condition can be assessed.”
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
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 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. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.9
It is the claimant’s burden of proof to establish a permanent impairment of the scheduled
member or function as a result of any employment injury.10 OWCP procedures provide that, to
support a schedule award, the file must contain competent medical evidence which shows that
the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (date of MMI), describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.12 In
1960, amendments to FECA 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
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

Tammy L. Meehan, 53 ECAB 229 (2001); K.S., Docket No. 15-1082 (issued April 18, 2017).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013).
12

Pamela J. Darling, 49 ECAB 286 (1998); K.S., supra note 10.

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the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.14 For peripheral nerve impairments to the upper
or lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition (July/
August 2009) is to be applied.15 FECA approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities.16
A schedule award can be paid only for a condition related to an employment injury. 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.17 For conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable
permanent impairment of a scheduled member warranting a schedule award.
OWCP accepted appellant’s claim for an L2-3 disc herniation. As noted above, a
schedule award is not payable under FECA for injury to the spine.19 However, a claimant may
be entitled to a schedule award for permanent impairment to an extremity even though the cause
of the impairment originated in the spine.20 The issue is whether appellant sustained permanent
impairment as a result of his employment-related work injuries. The Board finds that appellant

13

Thomas J. Engelhart, 50 ECAB 319 (1999); K.S., supra note 10.

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
15

See G.N., Docket No. 10-850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4.
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5c(3) (February 2013).
17

Veronica Williams, 56 ECAB 367 (2005).

18

K.S., supra note 10; G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004);
Alice J. Tysinger, 51 ECAB 638 (2000).
19

Pamela J. Darling, supra note 12; K.S., supra note 10.

20

Thomas J. Engelhart, 50 ECAB 319 (1999); K.S., supra note 10.

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failed to submit sufficient evidence to establish that, as a result of his employment injury, he
sustained permanent impairment to a scheduled member warranting a schedule award.21
In support of his schedule award claim, appellant submitted Dr. Diamond’s March 19,
2015 report which addressed permanent impairment due the right L5 nerve root, right S1 nerve
root, L4 nerve root, left L5 nerve root, and left S1 nerve root. The Board finds that
Dr. Diamond’s report is insufficient to establish appellant’s percentage of permanent impairment
for schedule award purposes, as the conditions on which he rated impairment have not been
accepted by OWCP as causally related to the March 16, 2006 employment injury. OWCP
procedures provide that impairment ratings for schedule awards include those conditions
accepted by OWCP as work related, and any preexisting permanent impairment of the same
member or function. If the work-related injury has affected any residual usefulness in whole or
in part, a schedule award may be appropriate.22 The Board has held that not all medical
conditions accepted by OWCP result in permanent impairment to a scheduled member. Where a
claimant has not shown any permanent impairment caused by the accepted occupational
exposure, the claim is not ripe for consideration of any preexisting impairment.23
OWCP’s medical adviser disagreed with Dr. Diamond’s impairment rating, noting that
L4, L5, and S1 nerve root injuries were not accepted by OWCP. As appellant had no permanent
impairment as a result of his accepted employment injury at L2-3 according to Dr. Diamond’s
report, the Board finds that he is not entitled to a schedule award for preexisting conditions of the
lower extremities resulting from other impairments of his spine.
The Board finds that contrary to counsel’s arguments on appeal, there is no conflict of
medical opinion evidence between Dr. Diamond and the DMA. Dr. Diamond did not attribute
appellant’s permanent impairment to his accepted employment injury at L2-3. This was noted
by the DMA. Dr. Diamond did not present, and counsel does not contend, that appellant had
permanent impairment as a result of his injuries at the accepted L2-3 level. Without permanent
impairment causally related to an accepted employment injury, appellant is not entitled to a
schedule award merely for his preexisting impairments. It is appellant’s burden of proof to
establish a permanent impairment of a scheduled member as a result of an employment injury.24
He did not submit such evidence and thus, he failed to meet his burden of proof.25
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.
21

K.S., supra note 10; W.R., Docket No. 13-492 (issued June 26, 2013).

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(d) (February 2013). See also Raymond E. Gwynn, 35 ECAB 247, 253 (1983); K.S., supra note 10.
23

Thomas P. Lavin, 57 ECAB 353 (2006).

24

Supra note 10.

25

K.S., supra note 10; V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued
November 29, 2010).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable
permanent impairment of a scheduled member, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.26
Issued: December 18, 2017
Washington, DC

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

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

26

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

8


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

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

Docket No. 11-1777
Issued: February 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2011 appellant filed a timely appeal from the June 9, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration. As
more than 180 days has elapsed from the date of the most recent merit decision of OWCP, dated
December 22, 2010, to the filing of the current appeal on July 28, 2011, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only
has jurisdiction to review the June 9, 2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s May 25, 2011 reconsideration
request.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 9, 2006 appellant, then a 43-year-old part-time flexible carrier, filed a
traumatic injury claim alleging that he sustained an injury in the performance of duty that day
when a pedestrian struck him in the eye.
In a decision dated December 22, 2010, OWCP denied compensation. It found that the
evidence failed to demonstrate that an injury occurred as alleged. OWCP noted a basic
inconsistency between appellant’s statement and that of the alleged attacker. Further, the police
did not pursue the matter and employing establishment personnel who arrived on the scene did
not see an injury to appellant’s eye. Such circumstances, OWCP found, cast doubt that an injury
occurred as alleged.2
Appellant requested reconsideration on May 25, 2011. He stated that he was enclosing a
police log to show that he was told to follow the assailant and report his location so that the
police knew where to go. “I trust this will clear up any ideas of my being off my assigned route,
especially since I am a part[-]time flexible without an assigned route and have been for the past
five years.”
On June 9, 2011 OWCP denied appellant’s reconsideration request. It found that his
request neither raised substantive legal questions nor included new and relevant evidence and
was therefore insufficient to warrant a review of its prior decision.
On appeal, appellant argues, among other things, that he incurred his injury while on duty
and that the doctors concurred on the injury. He adds that the police issued a citation to the
individual.
LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at anytime on its
own motion or upon application.3 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.4

2

The first footnote of OWCP’s decision mentioned that appellant was off his assigned route and traveling in the
wrong direction, at least according to a supervisor who arrived on the scene. OWCP noted, however, that the issue
was never addressed in the case.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606.

2

A request for reconsideration must be sent within one year of the date of OWCP’s
decision for which review is sought.5 A timely request for reconsideration may be granted if
OWCP determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, OWCP
will deny the request for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
Appellant timely filed his May 25, 2011 reconsideration request within one calendar year
of OWCP’s December 22, 2010 merit decision denying his claim. The question on appeal,
therefore, is whether this request met at least one of the standards for obtaining a merit review of
his case.
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. He did not identify a specific point of law or show that it erroneously applied or
interpreted it in denying his claim for compensation benefits.
Appellant’s request did not advance a new and relevant legal argument. He attempted to
explain why he was off his assigned route, but that was not the reason OWCP denied his claim.
OWCP denied compensation because certain inconsistencies in the evidence cast doubt on
whether the injury occurred as alleged. Appellant’s argument was therefore irrelevant.
Appellant’s request did not provide relevant and pertinent new evidence not previously
considered by OWCP. He stated that he was submitting a police log to explain his location, but
again, this was irrelevant to the grounds upon which OWCP denied his claim.
Accordingly, the Board finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, he did not advance a relevant legal argument not previously considered by
OWCP, and he did not submit relevant and pertinent new evidence not previously considered by
it. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. The Board will affirm
the June 9, 2011 decision.
Appellant argues on appeal that he was on duty at the time of his injury, but OWCP does
not dispute this. OWCP denied his claim on other grounds. The arguments appellant makes on
appeal, including the argument that the police issued a citation to the individual, were not
included in his February 1, 2011 reconsideration request. The Board may not review such new
arguments to determine whether the February 1, 2011 request met one of the standards for
reopening his case.7

5

Id. § 10.607(a).

6

Id. § 10.608.

7

See id. at § 501.2(c)(1).

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s May 25, 2011 reconsideration
request.
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 9, 2012
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
H.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 13-365
Issued: January 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 6, 2012 appellant, through counsel, filed a timely appeal from the July 23,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to additional schedule award compensation for
his legs.
FACTUAL HISTORY
OWCP accepted that on June 4, 1986 appellant, then a 35-year-old mail handler,
sustained a lumbosacral sprain and herniated disc at L5-S1. Appellant underwent OWCPauthorized surgeries at L5-S1 on January 27, 1987, January 25, 1988 and June 2, 1992 and he
received compensation for periods of wage loss.
1

5 U.S.C. §§ 8101-8193.

Dr. David Weiss, an attending osteopath, determined in a December 13, 2004 report that
appellant had 44 percent permanent impairment of his right leg under the standards of the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment. On May 8, 2006 Dr. Morley Slutsky, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, reviewed the findings of Dr. Weiss and found
that appellant had 22 percent permanent impairment of his right leg.
By decision dated May 18, 2006, OWCP granted appellant a schedule award for 22
percent permanent impairment of his right leg. The award ran for 63.36 weeks from
December 13, 2004 to March 1, 2006.
In August 2006, OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Weiss and Dr. Slutsky regarding the extent of appellant’s permanent
impairment. On two occasions, it referred appellant to an impartial medical specialist to resolve
the conflict and in both cases the report of the impartial medical specialist was sent to an OWCP
medical adviser for review and an opinion on permanent impairment. In June 4, 2007 and
September 18, 2008 decisions, OWCP’s hearing representatives determined that the conflict in
the medical opinion regarding appellant’s impairment could not be resolved by OWCP medical
advisers. Appellant was referred to another impartial medical specialist in order to resolve the
continuing conflict in the medical opinion evidence.
On November 6, 2008 Dr. William H. Simon, a Board-certified orthopedic surgeon
serving as an impartial specialist, provided the findings of his examination of appellant and
determined that he had 11 percent permanent impairment of his right leg under the standards of
the fifth edition of the A.M.A., Guides. In a December 24, 2008 supplemental report, Dr. Simon
indicated that he still felt that appellant had 11 percent impairment of his right leg. On
October 17, 2009 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and an OWCP
medical adviser, reviewed Dr. Simon’s findings and found that appellant had 30 percent total
impairment of his legs under the sixth edition of the A.M.A., Guides.2
In an October 23, 2009 decision, OWCP granted appellant a schedule award for a 30
percent permanent impairment of his “lower extremities” minus the 22 percent previously paid
for his right leg to equal an additional award for an eight percent permanent impairment of his
“lower extremities.” The award did not specify the impairment percentages which pertained to
each lower extremity.
In a January 12, 2010 decision, an OWCP hearing representative set aside OWCP’s
October 23, 2009 decision noting that the conflict in the medical evidence regarding permanent
impairment could not be resolved by an OWCP medical adviser. The hearing representative
directed that appellant be referred to a new impartial medical specialist.
OWCP referred appellant to Dr. Andrew J. Collier, Jr., a Board-certified orthopedic
surgeon, for examination and an impartial opinion on the extent of the permanent impairment of
his legs. In April 14 and 23, 2010 reports, Dr. Collier determined that appellant had a 24 percent
permanent impairment of his right leg under the sixth edition of the A.M.A., Guides. On May 4,
2

Dr. Berman indicated that, under Table 17-4 on page 570 of the sixth edition, appellant had 12 percent
permanent impairment of his whole person which equaled a total permanent impairment of his legs of 30 percent.

2

2010 an OWCP medical adviser found that appellant did not have any leg impairment under the
A.M.A., Guides given that Dr. Collier described normal motor examination findings and
nondermatomal sensory symptoms. On May 4, 2010 OWCP denied appellant’s claim for
additional schedule award compensation.
In an August 23, 2010 decision, an OWCP hearing representative set aside OWCP’s
May 4, 2010 decision. She found that OWCP improperly used the opinion of an OWCP medical
adviser to resolve the continuing conflict in the medical opinion evidence regarding impairment
and remanded the case to OWCP for referral of appellant to a new impartial medical specialist.
On remand, OWCP referred appellant to Dr. Robert E. Liebenberg, a Board-certified
orthopedic surgeon, for an impartial medical examination and opinion on the extent of the
permanent impairment of his legs. On October 18, 2011 an ME023 form was produced showing
that Dr. Liebenberg was selected as an impartial medical specialist under the Medical
Management Application within the Integrated Federal Employees Compensation System
(iFECS).3 In letters dated October 18, 2011, Dr. Liebenberg and appellant’s counsel were
advised of the details of an examination appointment set for December 6, 2011. On
November 15, 2011 Dr. Liebenberg’s office called OWCP and arranged for the appointment set
for December 6, 2011 to be rescheduled to January 3, 2012. In a letter dated November 15,
2011, Dr. Liebenberg and appellant’s counsel were advised of the details for an examination
appointment set for January 3, 2012.4
The record contains screen shots from the Medical Management Application process for
physicians who were bypassed during the process. Three physicians were bypassed because they
were previously involved with appellant’s case, including Dr. Simon and Dr. Collier, who had
previously served as impartial medical specialists. The screen shots for the remaining physicians
contain other reasons for the bypass, such as not being available, not performing impairment
ratings or not being of the appropriate medical specialty.
Appellant appeared for the January 3, 2012 examination. In a January 3, 2012 report,
Dr. Liebenberg reported the findings of his examination and determined that appellant had a zero
percent permanent impairment of both lower extremities under the standards of the sixth edition
of the A.M.A., Guides. He noted appellant’s most recent diagnostic testing was normal and did
not show a well-defined anatomic reason for his continued reported back pain. Dr. Liebenberg
found that appellant did not have any objective evidence of a peripheral nerve injury which
extended from the area of his work-related back injury into his legs and therefore he did not have
work-related permanent impairment of his legs.5 He stated:
“[Appellant’s] symptom complaints in regards to the right lower extremity have
no physiologic basis. He claims to have no sensation whatsoever in his foot, yet
he walks without an aide and without a brace. [Appellant] has no evidence of
3

See infra notes 23 through 26.

4

An ME023 form was produced on November 15, 2011 to reflect the change in the appointment date with
Dr. Liebenberg from December 6, 2011 to January 3, 2012.
5

Dr. Liebenberg noted that, under Table 16-12 (Peripheral Nerve Impairment (Lower Extremity Impairment)),
starting on page 534 of the sixth edition of the A.M.A., Guides, both of appellant’s legs fell under class zero as there
was no objective sensory deficit or motor deficit.

3

motor weakness at all. He has no sores. The only evidence that [appellant] has
any sensory deficit is his report that he can feel nothing when one touches his
right lower extremity. There is no other evidence of any nerve problem in his
right lower extremity whatsoever. [Appellant] has no complaints in regards to his
left lower extremity, nor does he have any abnormalities on physical examination.
He has several signs of magnification of symptoms and chronic pain behavior.”6
On January 30, 2012 Dr. Christopher R. Brigham, a Board-certified occupational
medicine physician serving as an OWCP medical adviser, indicated that he agreed with
Dr. Liebenberg that appellant did not have a ratable impairment of his legs because he did not
have a work-related leg radiculopathy.
In a January 31, 2012 decision, OWCP denied appellant’s claim that he was entitled to
additional schedule award compensation for his lower extremities. It found that the opinion of
Dr. Liebenberg, as supported by the opinion of Dr. Brigham, showed that appellant was not
entitled to such additional schedule award compensation.
Appellant requested a hearing with an OWCP hearing representative. During a May 15,
2012 video hearing, counsel challenged the selection process used for Dr. Liebenberg. He
alleged that several physicians were bypassed without proper reasons and that OWCP
impermissibly chose Dr. Liebenberg on two occasions through the rotating selection process.
Counsel also argued that Dr. Liebenberg did not carry out an adequate neurological evaluation of
appellant.
In July 23, 2012 decision, an OWCP hearing representative affirmed OWCP’s
January 23, 2012 decision finding that appellant was not entitled to additional schedule award
compensation. He found that Dr. Liebenberg had been properly selected as an impartial medical
specialist and asserted that OWCP only chose Dr. Liebenberg on one occasion through the
rotating selection process. OWCP’s hearing representative determined that Dr. Liebenberg’s
opinion showed that appellant was not entitled to additional schedule award compensation.
LEGAL PRECEDENT
Under FECA, Congress has provided that when there is disagreement between the
physician on the part of the United States and that of the employee, the Secretary shall appoint a
third physician who shall make an examination.7 The Board has noted that the appointment of a
referee physician under this section is mandatory in cases where there is such disagreement and
that failure of OWCP to properly appoint a medical referee may constitute reversible error.8
When the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.9 OWCP’s medical adviser may review the
6

Dr. Liebenberg completed a work restrictions form but specifically indicated that these work restrictions were
not necessitated by work-related residuals.
7

5 U.S.C. § 8123(a).

8

Tony F. Chilefone, 3 ECAB 67 (1949).

9

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB 313
(2003); David W. Pickett, 54 ECAB 272 (2002).

4

opinion, but the resolution of the conflict is the responsibility of the impartial medical
specialist.10
In cases arising under section 8123(a), the Board has long recognized the discretion of
the Director to appoint physicians to examine claimants under FECA in the adjudication of
claims.11 FECA does not specify how the appointment of a medical referee is to be
accomplished. Moreover, it is silent as to the qualifications of the physicians to be considered.12
The implementing federal regulations, citing to the Board’s decision in James P. Roberts,
provide that development of the claim is appropriate when a conflict arises between medical
opinions of virtually equal weight.13
Congress did not address the manner by which an impartial medical referee is to be
selected. Rather, this was left to the expertise of the Director in administering the compensation
program created under FECA.14
Under Federal (FECA) Procedure Manual, the Director has exercised discretion to
implement practices pertaining to the selection of the impartial medical referee. Unlike second
opinion physicians, the selection of referee physicians is made from a strict rotational system.15
OWCP will select a physician who is qualified in the appropriate medical specialty and who has
no prior connection with the case.16 Physicians who may not serve as impartial specialists
include those employed by, under contract to or regularly associated with federal agencies;17
physicians previously connected with the claim or claimant or physicians in partnership with
those already so connected18 and physicians who have acted as a medical consultant to OWCP.19
The fact that a physician has conducted second opinion examinations in connection with FECA
claims does not eliminate that individual from serving as an impartial referee in a case in which
he or she has no prior involvement.20

10

V.G., 59 ECAB 635 (2008); Thomas J. Fragale, 55 ECAB 619 (2004); see also Richard R. LeMay, 56 ECAB
341 (2005).
11

See William C. Gregory, 4 ECAB 6 (1950).

12

See Melvina Jackson, 38 ECAB 443 (1987).

13

20 C.F.R. § 10.321(a); James P. Roberts, 31 ECAB 1010 (1980).

14

See, e.g., Harry D. Butler, 43 ECAB 859, 866 (1992) (the Director delegated discretion in determining the
manner by which permanent impairment is evaluated for schedule award purposes).
15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b) (July 2011).

16

Id. at Chapter 3.500.4(b)(1).

17

Id. at Chapter 3.500.4(b)(3)(a).

18

Id. at Chapter 3.500.4(b)(3)(b).

19

Id. at Chapter 3.500.4(b)(3)(c).

20

See id. at Chapter 3.500.4(b)(3)(c).

5

In turn, the Director has delegated authority to each OWCP district for selection of the
referee physician by use of the Medical Management Application within iFECS.21 This
application contains the names of physicians who are Board-certified in over 30 medical
specialties for use as referees within appropriate geographical areas.22 The Medical Management
Application within iFECS replaces the prior Physician Directory System (PDS) method of
appointment.23 It provides for a rotation among physicians from the American Board of Medical
Specialties, including the medical boards of the American Medical Association, and those
physicians Board-certified with the American Osteopathic Association.24
Selection of the referee physician is made through use of the application by a medical
scheduler. The claims examiner may not dictate the physician to serve as the referee examiner.25
The medical scheduler imputes the claim number into the application, from which the claimant’s
home zip code is loaded.26 The scheduler chooses the type of examination to be performed
(second opinion or impartial referee) and the applicable medical specialty.27 The next physician
in the roster appears on the screen and remains until an appointment is scheduled or the
physician is bypassed. If the physician agrees to the appointment, the date and time are entered
into the application. Upon entry of the appointment information, the application prompts the
medical scheduler to prepare a Form ME023, appointment notification report for imaging into
the case file.28 Once an appointment with a medical referee is scheduled the claimant and any
authorized representative is to be notified.29
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. The procedures
contemplate that the impartial medical specialists will be selected on a strict rotating basis in
order to negate any appearance that preferential treatment exists between OWCP and a particular

21

Id. at Chapter 3.500.4(b)(6).

22

Id. at Chapter 3.500.4(b)(6)(a).

23

Id. at Chapter 3.500.5.

24

Id. at Chapter 3.500.5(a).

25

Id. at Chapter 3.500.5(b).

26

Id. at Chapter 3.500.5(c).

27

Id. The roster of physicians is not made visible to the medical scheduler under the application. The medical
scheduler may update information pertaining to whether the selected physician can schedule an appointment in a
timely manner and, if not, will enter an appropriate bypass code. Id. at Chapter 3.500.5(e-f). Upon entry of a
bypass code, the Medical Management Application will present the next physician based on specialty and zip code.
28

Id. at Chapter 3.500.5(g). The ME023 serves as documentary evidence that the referee appointment was
scheduled through the Medical Management Application rotational system. Should an issue arise concerning the
selection of the referee specialist, a copy of the ME023 may be reproduced and copied for the case record.
29

Id. at Chapter 3.500.4(d). Notice should include the existence of a conflict in the medical evidence under
section 8123; the name and address of the referee physician with date and time of appointment; a warning of
suspension of benefits under section 8123(d) and information on how to claim travel expenses.

6

physician.30 OWCP has an obligation to verify that it selected an impartial medical specialist in
a fair and unbiased manner. It maintains records for this very purpose.31
ANALYSIS
OWCP accepted that on June 4, 1986 appellant sustained a lumbosacral sprain and
herniated disc at L5-S1 and it authorized low back surgeries on January 27, 1987, January 25,
1988 and June 2, 1992. By decision dated May 18, 2006, it granted appellant a schedule award
for 22 percent permanent impairment of his right lower extremity. In an October 23, 2009
decision, OWCP granted appellant a schedule award for 30 percent permanent impairment of his
lower extremities minus the 22 percent previously paid to equal an additional award for eight
percent permanent impairment of his lower extremities.
After development of the medical evidence, OWCP properly found that there was a
continuing conflict in the medical opinion evidence regarding the extent of the impairment of
appellant’s legs.32 It referred appellant to Dr. Liebenberg, a Board-certified orthopedic surgeon,
for an impartial medical examination and opinion on the extent of his permanent impairment.
The Board finds that OWCP properly selected Dr. Liebenberg to serve as an impartial medical
specialist.
On October 18, 2011 an ME023 form was produced showing that Dr. Liebenberg was
properly selected as an impartial medical specialist under the Medical Management Application
within iFECS. On November 15, 2011 Dr. Liebenberg’s office called OWCP and requested that
the appointment set for December 6, 2011 be rescheduled and arrangements were made for the
appointment to be changed to January 3, 2012. Appellant appeared for the January 3, 2012
appointment with Dr. Liebenberg.
Before OWCP and on appeal, counsel alleged that several physicians were bypassed
without proper reasons during the rotational selection process and that OWCP impermissibly
chose Dr. Liebenberg on two occasions. However, the record contains screen shots from the
Medical Management Application process which contain valid reasons for bypassing the
physicians other than Dr. Liebenberg, including such reasons as not being available, not
performing impairment ratings, not being of the appropriate medical specialty or previously
being connected with the case.33 The Board further notes that there is no evidence that

30

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

31

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

32

See supra note 7. Dr. Weiss, an attending osteopath, determined that appellant had 44 percent permanent
impairment of his right leg. In contrast, Dr. Slutsky, an OWCP medical adviser, found that appellant had 22 percent
permanent impairment of his right leg. OWCP had previously referred appellant to other impartial medical
specialists. However, it properly found in these instances that OWCP medical advisers were impermissibly relied
upon to resolve the outstanding conflict regarding permanent impairment. See supra note 10.
33

Three physicians were bypassed because they were previously connected with appellant’s case, including
Dr. Simon and Dr. Collier, Board-certified orthopedic surgeons, who previously served as impartial medical
specialists.

7

Dr. Liebenberg was chosen through the Medical Management Application process more than
once.34
The Board finds that the record sufficiently verifies that OWCP properly utilized its
Medical Management Application system in selecting Dr. Liebenberg as the impartial medical
specialist. 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 specialist.35 As OWCP has met its affirmative obligation to establish that it properly
followed its selection procedures, the Board finds that counsel’s argument is not substantiated.36
The Board further finds that the well-rationalized January 3, 2012 opinion of
Dr. Liebenberg constitutes the weight of the medical evidence regarding appellant’s leg
impairment and it does not show that appellant is entitled to additional schedule award
compensation for his legs.
In his January 3, 2012 report, Dr. Liebenberg determined that appellant had a zero
percent permanent impairment of both lower extremities under the standards of the sixth edition
of the A.M.A., Guides. He found that appellant did not have any objective evidence of a
peripheral nerve injury which extended from his back into his legs and therefore did not have
work-related permanent impairment of his legs.37 Dr. Liebenberg provided medical rationale for
his opinion by explaining that, on examination, appellant did not show any objective evidence of
sensory or motor loss in his legs.38 He also noted appellant’s most recent diagnostic testing was
normal and did not show a well-defined anatomic reason for his continued reported back pain.
Moreover, Dr. Liebenberg’s opinion on permanent impairment is supported by the opinion of
Dr. Brigham, a Board-certified occupational medicine physician serving as an OWCP medical
adviser. On January 30, 2012 Dr. Brigham indicated that he agreed with Dr. Liebenberg that
appellant did not have a ratable impairment of his legs under the A.M.A., Guides.
For these reasons, appellant has not shown that he is entitled to additional schedule award
compensation for his legs and OWCP properly denied his claim for such compensation.

34

An ME023 form was produced on November 15, 2011 in order to reflect the change in the appointment date
with Dr. Liebenberg from December 6, 2011 to January 3, 2012. There is no evidence to support counsel’s assertion
that Dr. Liebenberg was chosen a second time through reapplication of the Medical Management Application
process.
35

See N.C., Docket No. 12-1718 (issued April 11, 2013); T.T., Docket No. 12-1358 (issued April 11, 2013); P.B.,
Docket No. 12-1393 (issued December 18, 2012).
36

F.B., Docket No. 12-1230 (issued September 12, 2013); B.N., Docket No. 12-1394 (issued August 5, 2013).

37

Dr. Liebenberg noted that, under Table 16-12 starting on page 534 of the sixth edition of the A.M.A., Guides,
both of appellant’s legs fell under class zero as there was no objective sensory deficit or motor deficit. See A.M.A.,
Guides 534, Table 16-12 (6th ed. 2009).
38

Before OWCP and on appeal, counsel argued that Dr. Liebenberg did not carry out an adequate neurological
evaluation of appellant. However, a review of Dr. Liebenberg’s January 3, 2012 report shows that his neurological
examination was comprehensive.

8

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 is not entitled to additional schedule award compensation
for his legs.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 10-1546
Issued: May 24, 2010

Case Submitted on the Record

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

JURISDICTION
On May 19, 2010 appellant, through counsel, filed a timely appeal from an April 23,
2010 decision of the Office of Workers’ Compensation Programs’ hearing representative
affirming the reduction of his wage-loss compensation. Pursuant to the Federal Employees’
Compensation Act1 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 the Office properly reduced appellant’s wage-loss compensation
based on his failure to cooperate with vocational rehabilitation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 10, 2002 appellant, then a 44-year-old video coding specialist, sustained a
left shoulder strain, left impingement syndrome and left rotator cuff tear as a result of pulling a
plug to reboot the computer system.2 The Office authorized left shoulder arthroscopy with
debridement, which occurred on April 10, 2003, July 27, 2004 and November 7, 2006.
Appellant stopped work on October 30, 2002 and was placed on the periodic rolls for temporary
total disability effective February 23, 2002.
In a September 3, 2008 report, Dr. Rajiv Puri, a treating Board-certified orthopedic
surgeon, diagnosed left shoulder tendinitis and rotator cuff tear. On physical examination, he
reported diminished left shoulder range of motion. A functional capacity evaluation prepared by
Dr. Puri indicated that appellant was capable of working with restrictions. Restrictions included
walking less than eight hours a day; no lifting or carrying more than 10 pounds; sitting less than
eight hours a day; no pushing or pulling more than 10 pounds; occasional reaching; and limited
overhead activities. Dr. Puri indicated that appellant was capable of performing activities
requiring frequent handling and fingering.3
The Office referred appellant for vocational rehabilitation services on January 29, 2009.
It stated that he could return to work with restrictions and directed the counselor to start
vocational rehabilitation. In a letter dated January 29, 2009, the Office informed appellant that a
rehabilitation counselor, Esther Carcamo, had been assigned to him and informed him that he
should cooperate fully with the counselor.
Ms. Carcamo scheduled appellant to see a vocational rehabilitation evaluator on May 7,
2009 in order to determine what type of work he could perform. The evaluator determined that
he was physically and vocationally able to perform several positions, including network control
technician, technical support specialist, shipping and receiving clerk and computer support
specialist.
Ms. Carcamo reported on June 10, 2009 that appellant appeared angry with her during a
June 9, 2009 conversation discussing vocational goals for information clerk and customer service
representative. Appellant informed her that he could not perform the identified jobs and that he
required a voice recognition program. Lastly, he stated he could not work.

2

This was assigned claim File No. xxxxxx200. Under claim File No. xxxxxx767, the Office accepted the
conditions of right rotator cuff tear, right shoulder arthroscopy and right chest ostectomy.
3

On May 8, 1997 appellant filed a traumatic injury claim alleging that on May 8, 1997 he injured his right
shoulder as a result of pulling a pin on a tractor while disconnecting it. The Office assigned this claim File No.
xxxxxx767 and accepted the claim for right rotator cuff tear and authorized right shoulder arthroscopy, which
occurred on April 29, 1998, and right chest osteomy, which occurred on December 2, 2008. On May 21, 2008
Dr. Puri provided work restrictions based on a functional capacity evaluation he conducted and provided work
restrictions for appellant’s right shoulder which included: no lifting more 20 pounds; occasional lifting and carrying
up to 20 pounds; standing and walking less than six hours a day; no sitting for more than six hours a day; limited
pushing and pulling; and occasional reaching. He indicated that appellant was capable of performing activities
requiring frequent handling and fingering using his right upper extremity.

2

On June 10, 2009 Ms. Carcamo provided the Office with a plan detailing vocational
objectives for the positions of information clerk, Department of Labor’s Dictionary of
Occupational Titles (DOT) No. 237.367-022, and customer service representative.4 She
recommended appellant receive a training plan for computer skills at Westech College.
On July 13, 2009 the Office approved a computer training program at the Westech
College to provide appellant with computer skills needed for competitive employment in his
commuting area. Appellant was scheduled to start attending remedial classes at Westech College
on July 24, 2009. During a July 17, 2009 telephone conversation, he yelled at Ms. Carcamo and
informed her he could not perform keyboarding as it was repetitive work. Ms. Carcamo
attempted to provide appellant with the school’s information, but he would not accept the
information and hung up on her. On July 27, 2009 Westech College informed her of appellant’s
attending 1.2 days of classes out of 3 possible days and his lack of interest in attending class.
Westech College informed Ms. Carcamo that he related that his physical abilities prevented him
from operating a computer and that no assignments were completed.
In a letter dated July 28, 2009, the Office informed appellant that if he continued to fail to
participate in the approved training program in computerized administration, it could reduce his
compensation. It informed him of the consequences of failing to undergo vocational training as
directed. Appellant was directed to undergo the computerized training program at Westech
College or his compensation would be reduced in accordance with 5 U.S.C. § 8113(b) and 20
C.F.R. § 10.519.
In an August 5, 2009 form medical report, Dr. Puri checked that appellant was unable to
perform computer work and he could only work four hours a day.
On August 12, 2009 Westech College stated that appellant had not attended any classes
and that he was being dropped from their attendance rolls.
By decision dated August 31, 2009, the Office finalized the proposed reduction of
appellant’s compensation effective that day to reflect his loss of wage-earning capacity pursuant
to 5 U.S.C. §§ 8106 and 8115 as he continued to fail to participate in the directed vocational
training.
On October 1, 2009 the Office issued an amended decision as the prior decision
contained an error of law. It finalized the proposed reduction of appellant’s compensation to
reflect his loss of wage-earning capacity pursuant to 5 U.S.C. §§ 8113(b) and 8104 as he failed,
without good cause, to undergo the directed vocational training. With respect to his wageearning capacity, the Office further found that, if appellant had participated in good faith in
vocational rehabilitation, he would have been able to perform the position of information clerk.
It reduced his compensation on what his wage-earning capacity would have been if he had
cooperated with vocational rehabilitation efforts. Based upon the residuals of his injury and
considering all significant preexisting impairments and pertinent nonmedical factors, the Office

4

The positions of information clerk and customer service operator were reasonably available in appellant’s
commuting area with a weekly pay of $487.00 for information clerk and $586.00 for customer service operator.

3

found that, if appellant had participated in good faith in vocational rehabilitation, he would have
been able to perform the position of information clerk.5
On October 30, 2009 appellant requested an oral hearing before an Office hearing
representative, which was held on February 17, 2010.
On November 16, 2009 the Office received Dr. Puri’s August 5, 2009 report. Dr. Puri
stated he had treated appellant for both shoulders since 2004. He stated that appellant was
disabled due to his shoulders and was unable to do any heavy lifting. Dr. Puri related that
appellant has had persistent bilateral shoulder pain and that he is unable “to do any computer
work as it seems to aggravate the pains in the shoulders.” He noted that appellant expressed an
interest in becoming a house appraiser for four hours a day and that “[t]his is the most gainful
employment he is willing to [do].” In concluding, Dr. Puri recommended the house appraiser
position for appellant and stated any further modifications, if necessary, can be determined at a
later date.
By decision dated April 23, 2010, an Office hearing representative found that the Office
properly reduced appellant’s monetary compensation because he failed to undergo the directed
vocational training.
LEGAL PRECEDENT
Section 8104(a) of the Act provides that the Office may direct a permanently disabled
employee to undergo vocational rehabilitation.6 Section 8113(b) provides that, if an individual
without good cause fails to apply for and undergo vocational rehabilitation when so directed
under 8104, the Secretary, on review under section 8128 and after finding that in the absence of
the failure the wage-earning capacity of the individual would probably have substantially
increased, may reduce prospectively the monetary compensation of the individual in accordance
with what would probably have been his or her wage-earning capacity in the absence of the
failure, until the individual in good faith complies with the direction of the Secretary.7
Section 10.519 of Office regulations state that where a suitable job has not been
identified because the failure or refusal of the employee occurred in the early but necessary
stages of a vocational rehabilitation effort (that is, meetings with the Office nurse, interviews,
testing, counseling, functional capacity evaluations and work evaluations), the Office cannot
determine what would have been the employee’s wage-earning capacity.8 Under these
circumstances, in the absence of evidence to the contrary, the Office will assume that the
5

The Office used the Shadrick formula (derived from Albert Shadrick, 5 ECAB 376 (1953)) to calculate
appellant’s wage-earning capacity. This calculation included a figure for the amount appellant would have earned as
an information clerk.
6

5 U.S.C. § 8104(a). See R.C., Docket No. 09-2095 (issued August 4, 2010); J.E., 59 ECAB 606 (2008); C.V.,
58 ECAB 648 (2007); Marilou Carmichael, 56 ECAB 451 (2005).
7

Id. at § 8113(b); see R.C., supra note 6; Freta Branham, 57 ECAB 333 (2006).

8

20 C.F.R. § 10.519; see J.O., Docket No. 10-85 (issued July 27, 2010); Marilou Carmichael, supra note 6.

4

vocational rehabilitation effort would have resulted in a return to work with no loss of wageearning capacity and the Office will reduce the employee’s monetary compensation to zero. This
reduction will remain in effect until such time as the employee acts in good faith to comply with
the direction of the Office.9
Office procedures provide that specific instances of noncooperation include a failure to
appear for the initial interview, counseling sessions, a functional capacity evaluation, other
interviews conducted by the rehabilitation counselor, vocational testing sessions and work
evaluations, as well as lack of response or inappropriate response to directions in a testing
session after several attempts at instruction.10
ANALYSIS
Appellant sustained a left shoulder strain, left impingement syndrome and left rotator cuff
tear as a result of pulling a plug to reboot the computer system. Under claim File No.
xxxxxx200, the Office accepted the conditions of right rotator cuff tear and authorized surgery
for right shoulder arthroscopy and right chest ostectomy due to an April 30, 1997 employment
injury. On September 3, 2008 Dr. Puri, an attending Board-certified orthopedic surgeon,
prepared a functional capacity evaluation and provided work restrictions for appellant. These
restrictions included: walking less than eight hours a day; no lifting or carrying more than 10
pounds; sitting less than eight hours a day; no pushing or pulling more than 10 pounds;
occasional reaching; and limited overhead activities. There were no restrictions on performing
activities requiring frequent handling and fingering.
The Board finds that appellant failed to cooperate with his vocational rehabilitation plan.
Ms. Carcamo instructed him to attend a training program at Westech College to provide him with
the computer skills needed to perform the position of information clerk or similar jobs.
Appellant was scheduled to start attending remedial classes at Westech College on July 24, 2009.
He attended 1.2 days of class and did no assignments.
The Board further finds that appellant did not show good cause for failure to cooperate
with his vocational rehabilitation plan. Appellant claimed that his medical condition precluded
him from doing any computer work due to the repetitive nature. Dr. Puri, in his August 5, 2009
report, recommended appellant be trained as a house appraiser as it appeared to be the only
gainful employment he was interested in. However, in his September 3, 2008 report, he noted no
restrictions on frequent handling and fingering or computer work. No medical rationale was
provided by Dr. Puri explaining why appellant was incapable of performing computer work other
than no shoulder work or heavy lifting. Furthermore, Dr. Puri does not explain why computer
work was precluded in his August 5, 2009 report or it was not precluded in the September 3,
2008 report, which found no restrictions were required for fine manipulation and frequent

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.813.11(a) (November 1996). See J.O., supra note 8; Sam S. Wright, 56 ECAB 358 (2005).

5

handling. His August 5, 2009 reports are of limited probative value because they contain
insufficient medical rationale regarding appellant’s ability to undergo computer training.11
Appellant’s failure, without good cause, to cooperate with vocational training constitutes
a failure to participate in the early but necessary stages of a vocational rehabilitation effort.12
The Office properly found that the reduction of his compensation should be based on the
determination that he probably would have been able to earn wages as an information clerk
receptionist if he had not obstructed his vocational rehabilitation program.13 For these reasons, it
properly reduced appellant’s compensation under 5 U.S.C. § 8113(b) to reflect his loss of wageearning capacity had he continued to participate in vocational rehabilitation efforts.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation under 5
U.S.C. § 8113(b) to reflect his loss of wage-earning capacity had he continued to participate in
vocational rehabilitation efforts.

11

See Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006) (medical report which are unsupported by medical
rationale and merely contain a conclusion are of diminished probative value).
12

Carolyn M. Leek, 47 ECAB 374 (1996).

13

See notes 6 and 7 and accompanying text. Ms. Carcamo found that the position of information clerk was
reasonably available in appellant’s commuting area with weekly pay of $487.00. The Board notes that the evidence
shows that appellant was vocationally and physically capable of working as an information clerk. The Office
properly applied the Shadrick formula to calculate appellant’s compensation based on the new wage-earning
capacity determination.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 23, 2010 is affirmed.
Issued: May 24, 2010
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1858
Issued: February 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 20, 2016 appellant filed a timely appeal from a May 4, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to modify an April 25, 1996 loss
of wage-earning capacity determination.
FACTUAL HISTORY
The case has previously been before the Board.2 The facts of the case as presented in the
prior decision are incorporated herein by reference. To reiterate the relevant facts, on June 1,
1

5 U.S.C. § 8101 et seq.

2

Docket No. 14-0348 (issued May 2, 2014).

1992 appellant, then a 39-year-old mail handler, filed a traumatic injury claim (Form CA-1)
alleging that on May 27, 1992 she sustained back and leg injuries when she was struck by a cart
while in the performance of duty. OWCP accepted a low back strain, herniated L4-5 disc,
enthesopathy of the hip region, and sciatica. By decision dated April 25, 1996, it determined that
actual earnings in a part-time mail handler position effective January 20, 1996 represented her
wage-earning capacity. Appellant’s compensation was reduced to reflect her wage-earning
capacity.3
Appellant underwent a lumbar interbody fusion surgery on January 29, 2009. According
to the evidence of record, appellant continued to receive compensation based on a loss of wageearning capacity through January 29, 2009. She then began to receive compensation on the
periodic rolls for total disability.
By letter dated September 13, 2011, appellant indicated that she was confused as to how
her wage-earning capacity had been calculated. She stated that her condition had worsened since
1997 and she continued to have problems in the back, legs, neck, shoulders, and arms. Appellant
asked for assistance in retracing her work history, comparing it with the physician’s notes and
being reimbursed for time she did not receive proper compensation. By letter dated April 19,
2012, OWCP advised appellant that the April 25, 1996 loss of wage-earning capacity
determination explained the reduction in compensation.
In a letter to OWCP dated June 18, 2012, appellant again discussed her claim and stated
that from 2000 to 2007 her case was “in limbo” with OWCP. She stated that she did not
understand how her compensation was computed. Appellant discussed the medical evidence
with respect to disability for work. In a Form CA-110 (memorandum of telephone call) dated
October 19, 2012, OWCP indicated that appellant was trying to appeal the April 25, 1996
decision. By letter dated February 18, 2013, appellant again discussed her claim and stated that
she had not been properly compensated from 2000 to 2007. A Form CA-110 from an April 9,
2013 telephone call stated that appellant was “appealing the LWEC decision.”
In a decision dated June 18, 2013, OWCP found appellant had submitted an untimely
application for reconsideration of either the April 25 or July 9, 1996 decisions. It further found
that appellant’s statement failed to indicate which decision she was appealing and failed to show
that the decisions were improper.
On December 2, 2013 appellant filed an appeal with the Board of the June 18, 2013
OWCP decision. The Board set aside the June 18, 2013 OWCP decision.4 The Board found that
appellant was requesting a modification of her loss of wage-earning capacity determination prior
to January 30, 2009, and was entitled to a merit review.

3

In a decision dated July 9, 1996, OWCP denied appellant’s claim for a recurrence of disability commencing
March 31, 1996. By decision dated December 31, 1998, OWCP denied appellant’s claim for a recurrence of
disability commencing May 16, 1998. In a decision dated May 19, 1999, OWCP denied modification of the
December 31, 1998 decision. By decision dated February 25, 2000, OWCP denied merit review of the claim. The
record also contains an August 26, 2008 decision denying a request for hearing before an OWCP hearing
representative.
4

Id.

2

The record indicates that OWCP received evidence on May 10 and 24, 2007, including
medical reports from Dr. Robert Cravens, an orthopedic surgeon, from May 30, 1996 to
November 16, 1999. Dr. Cravens reported on May 30, 1996 that appellant was working part
time. In a November 13, 1996 report, Dr. Cravens indicated that appellant had increasing
sciatica pain and he recommended she be off work for 10 days. He indicated in an August 13,
1997 note that appellant reported increased right hip and leg pain. On June 3, 1998 Dr. Cravens
reported that she complained of back pain and had not worked since May 8, 1998. He wrote that
appellant had spondylosis at L5-S1, with mild degenerative changes in the hip. Dr. Cravens
opined that she could not ever work full time and it was doubtful if she could return to part-time
work.
In a report dated January 27, 1999, Dr. Cravens reported that appellant continued to have
back pain and radicular pain into the legs. He asserted that the pain was caused by bulging L4-5
discs, and opined that she was totally disabled.
Appellant also submitted reports from Dr. John Cummings, Jr., a Board-certified
neurosurgeon. In a report dated February 11, 2000, Dr. Cummings reported that appellant
continued to have back problems and he did not believe she could return to work. In an April 17,
2000 report, he indicated that conservative measures had failed and recommended a lumbar
fusion surgery.
In a report dated July 30, 2007, Dr. Cummings reported that a lumber magnetic resonance
imaging (MRI) scan showed progression in degenerative changes at L5-S1 and L4-5. He
indicated that appellant had “a few accidents” after her original complaints, and had seen a
physician who recommended surgery but did not believe it was related to the work injury.
Dr. Cummings indicated that she had put off surgery, but was experiencing pain in her legs and
was interested in pursuing surgery. In a November 8, 2008 report, he reported that appellant was
having anterior thigh pain, and an MRI scan showed advanced degenerative lumbar changes.
Dr. Cummings indicated in a January 19, 2009 report that lumbar fusion surgery would be
performed.5
In a report dated June 11, 2007, Dr. Lisa Miller, a family practitioner, provided a history
of injury and treatment. Dr. Miller reported that appellant had been totally disabled since her
May 27, 1992 employment injury, due to pain and multiple problems. Dr. Miller noted appellant
had been in two motor vehicle accidents, but treating physicians had indicated these had not
contributed to a permanent injury.
The record also contains a May 3, 2007 report from Dr. Don Jardine, a Board-certified
orthopedic surgeon. Dr. Jardine reported that he had seen appellant on December 20, 2000,
April 10, 2002, and October 13, 2004.6 He provided a history of medical treatment. Dr. Jardine
noted appellant had been involved in two motor vehicle accidents since the work injury,
including one in November 1997. He wrote that both he and Dr. Cravens felt that the motor
5

As noted above, appellant underwent lumbar surgery on January 29, 2009.

6

A memorandum Dated May 17, 2014 from an OWCP claims examiner indicated that it appeared Dr. Jardine
was originally selected as an impartial medical examiner on the issue of back surgery. The claims examiner wrote
that Dr. Jardine had lost the case file, but when clearing out his office in January 2007 he had found evidence and
submitted it on May 10, 2007.

3

vehicle accidents had not contributed to a permanent injury other than a left rotator cuff injury.
As to surgery, he indicated that Dr. Cummings had recommended surgery but appellant had
decided to postpone surgery. He opined that appellant had sustained an eight percent permanent
impairment due to the employment injury.
By decision dated August 7, 2014, OWCP denied modification of the April 25, 1996 loss
of wage-earning capacity determination. It found the evidence failed to establish that
modification was warranted.
On July 7, 2015 appellant submitted evidence and argued that the loss of wage-earning
capacity determination should have been modified due to her medical condition. She asserted
that her condition had worsened and she had not been able to continue the light-duty job.
Appellant resubmitted medical evidence from Dr. Cravens and Dr. Cummings, as well as the
May 3, 2007 report from Dr. Jardine and the June 11, 2007 report from Dr. Miller.
By decision dated May 4, 2016, OWCP denied modification of the April 25, 1996 loss of
wage-earning capacity determination. It found the medical evidence was insufficient to warrant
modification based on a material change in the employment-related condition.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.7 The burden of proof is on
the party attempting to show a modification of the loss of wage-earning capacity determination.8
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, must be of reasonable medical certainty and supported by
medical rationale. The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of the analysis manifested and the medical rationale
expressed in support of the physician’s opinion.9 Medical rationale is a medically sound
explanation for the opinion offered.10
ANALYSIS
In the present case, OWCP issued an April 25, 1996 loss of wage-earning capacity
determination, based on a part-time mail handler position appellant had performed since
January 20, 1996. It modified the loss of wage-earning capacity determination as of January 30,
2009, after appellant underwent lumbar surgery. The issue is whether the loss of wage-earning
7

Sue A. Sedgwick, 45 ECAB 211 (1993).

8

Id.

9

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

10

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).

4

capacity determination should have been modified prior to January 30, 2009. Appellant has not
argued that the original determination was error. She has argued that there was a material
change in her employment-related condition.
The Board has reviewed the medical evidence and finds it is not of sufficient probative
value to warrant modification of the April 25, 1996 loss of wage-earning capacity determination.
Appellant has submitted numerous medical reports, but it is not clear what specific date she
believed there was a material change in her accepted conditions. In his reports from May 30,
1996 to November 16, 1999, Dr. Cravens refers to appellant’s complaints of pain. Describing
complaints of pain does not constitute a rationalized medical opinion establishing a material
change in an employment-related condition.11 On June 3, 2008 Dr. Cravens reported that
appellant complained of back pain, and he opined it was doubtful if she could return to part-time
work. He does not explain his opinion, discuss the light-duty job, or clearly indicate whether
there has been a material change in an employment-related condition, and if so, provide a
description of the material change.
Dr. Cummings reported on February 11, 2000 that appellant had back problems and he
felt appellant was disabled. He failed to provide a complete history or a rationalized medical
opinion establishing a material change in appellant’s condition. In reports dated July 30, 2007
and November 12, 2008, Dr. Cummings noted appellant’s complaints of pain and MRI scan
results showing lumber degenerative changes. As noted above, pain does not establish a material
change in an employment-related condition. Moreover, Dr. Cummings does not discuss causal
relationship between any degenerative changes and the May 27, 1992 employment injury. He
briefly refers to “a few accidents” after the employment injury without further explanation.
Dr. Cummings failed to provide a rationalized medical opinion that establishes a material change
in an employment-related condition.
Dr. Miller indicated in her June 11, 2007 report that appellant had been involved in two
motor vehicle accidents. She opined that appellant was disabled, but did not discuss the motor
vehicle accidents other than to briefly indicate that other physicians had not found they caused a
permanent injury. Dr. Miller did not provide a rationalized medical opinion, based on a
complete background, showing a material change in an employment-related condition.12
Dr. Jardine provided a report dated May 3, 2007, and indicated that he had seen appellant
on three occasions from 2000 to 2004. He did not describe a material change in appellant’s
employment-related condition. According to Dr. Jardine, the motor vehicle accidents did not
contribute to a permanent injury other than a left rotator cuff injury. This did not address the
issue of a material change in appellant’s employment-related condition prior to the 2009 surgery.
It is appellant’s burden of proof to establish that
of wage-earning capacity determination was warranted
finds that appellant has failed to submit a rationalized
background, establishing a material change in her

modification of the April 25, 1996 loss
prior to January 30, 2009. The Board
medical opinion, based on a complete
employment-related condition which

11

P.C., Docket No. 13-0939 (issued August 27, 2013).

12

See R.N., Docket Nos. 12-1194, 12-1204 (issued December 5, 2012).

5

prevented her from performing the light-duty mail handler position. Appellant therefore did not
meet her burden of proof in this case.13
On appeal, appellant submitted evidence previously of record and argues that she is still
disabled, and the medical evidence shows a material change. The Board has reviewed the
relevant evidence of record with respect to appellant’s condition prior to January 30, 2009. For
the reasons discussed, the Board finds that appellant has not established a material change in an
employment-related condition.
Appellant may request modification of the loss wage-earning capacity determination
supported new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not established a modification of an April 25, 1996
loss of wage-earning capacity determination was warranted prior to January 30, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 4, 2016 is affirmed.
Issued: February 8, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

Id.

6