United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, El Rito, NM, Employer
__________________________________________

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Appearances:
James G. Chakeres, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1287
Issued: November 19, 2008

Case Submitted on the Record

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

JURISDICTION
On March 31, 2008 appellant filed a timely appeal from the January 22, 2008 merit
decision of the Office of Workers’ Compensation Programs’ hearing representative, which found
an overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the overpayment issue.
ISSUE
The issue is whether appellant was at fault in creating a $19,035.00 overpayment of
compensation from October 2, 2005 through November 25, 2006.
FACTUAL HISTORY
On April 4, 2003 appellant, then a 30-year-old emergency firefighter, sustained an injury
in the performance of duty while hiking through rough terrain. The Office accepted his claim for
plantar fascial fibromatosis. Appellant received compensation for temporary total disability on
the periodic rolls.

In a decision dated September 28, 2005, the Office suspended appellant’s compensation
for refusing to submit to a medical examination as directed. It advised: “Therefore, under 5
U.S.C. § 8123(d), your compensation is suspended effective October 2, 2005. Your benefits may
be reinstated only after verification that you attended and fully cooperated with the
examination.” Notwithstanding this decision, the Office continued to pay compensation on the
periodic rolls.
On November 27, 2006 the Office made a preliminary finding that appellant received a
$19,035.00 overpayment from October 2, 2005 to November 25, 2006. It also made a
preliminary finding that appellant was at fault in creating this overpayment because he
knowingly accepted compensation to which he was not entitled.
On December 21, 2006 appellant, through his attorney, requested a final decision from
the district Office based on the written evidence. He argued that he was not at fault because he
notified the Office in advance that he would not attend the scheduled medical examination.
Appellant completed an overpayment recovery questionnaire showing no monthly income,
monthly expenses of $969.00 and an outstanding hospital debt of $129,000.00.
In a decision dated February 7, 2007, the Office finalized its preliminary findings on the
overpayment. It notified appellant that his only right of appeal was to the Board.
On March 8, 2007 the Office advised appellant that it had received no payment in
response to its first demand. The Office encouraged him to provide some indication within 30
days that he intended to make payment. On March 13, 2007 appellant, through his attorney,
again disputed the Office’s determinations on the overpayment. He argued that recovery would
create a hardship and be against equity and good conscience: “Your revisiting these issues is
requested.”
On March 26, 2007 the Office received a request for a prerecoupment hearing before an
Office hearing representative. Appellant simply submitted a copy of his original December 21,
2006 request corrected to ask for a prerecoupment hearing. The Office gave him a
prerecoupment hearing on October 12, 2007. Appellant submitted medical billing statements
showing total charges exceeding $300,000.00.
In a decision dated January 22, 2008, an Office hearing representative affirmed the
Office’s November 27, 2006 preliminary determination.1 The hearing representative found
appellant at fault in creating the overpayment because he was aware or should have been aware
that he was not entitled to wage-loss compensation from the date his benefits were suspended.
Because appellant was at fault in creating the overpayment, the hearing representative found that
he was not entitled to waiver. The hearing representative compromised a portion of the debt and
returned the case to the district Office for recovery.

1

The hearing representative noted, without explanation, that appellant’s request for a prerecoupment hearing was
timely. The hearing representative therefore vacated the Office’s February 7, 2007 decision as premature.

2

LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of his duty.2 Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure that payments
he received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he knew or should
have known to be incorrect; or (2) Failed to provide information which he knew or should have
known to be material; or (3) Accepted a payment which he knew or should have known to be
incorrect (this provision applies only to the overpaid individual).3
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he is being overpaid.4 The fact that the Office may have
erred in making the overpayment does not by itself relieve the individual who received the
overpayment from liability for repayment if the individual was also at fault in accepting the
overpayment.5 The Office may consider waiving an overpayment only if the individual to whom
it was made was not at fault in accepting or creating the overpayment.
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.6 The Board’s jurisdiction to review the
collection of an overpayment is limited to cases in which the Office decreases later payments of
compensation.7
ANALYSIS
On appeal, appellant’s attorney does not contest the fact or amount of overpayment or the
Office’s finding of fault. “The sole issue,” he argues, “is whether recovery by the government
would be against equity and good conscience,” but the Board has no jurisdiction to review the
issue of recovery. The Board’s jurisdiction to review the collection of an overpayment is limited
to cases of adjustment, where the Office decreases later payments of compensation to which the
individual is entitled. Because the Office in this case cannot collect the overpayment by
decreasing later payments of compensation -- appellant’s compensation remains suspended under
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.433(a) (1999).

4

Id. at § 10.433(b).

5

Id. at § 10.433(a).

6

5 U.S.C. § 8129(a).

7

Levon H. Knight, 40 ECAB 658 (1989).

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5 U.S.C. § 8123(d) -- it must recover the debt by other means. The Board therefore lacks
jurisdiction to review the Office’s recovery efforts.
The Board finds that appellant received an overpayment from October 2, 2005 to
November 25, 2006. The Office suspended his compensation effective October 2, 2005 but
mistakenly continued to pay compensation. At $1,269.00 every 28 days for a period of 420 days,
or 15 payments of compensation, the overpayment amounted to $19,035.00. The Board will
affirm the Office’s January 22, 2008 decision on the issues of fact and amount of overpayment.
The Board will also affirm the Office’s finding of fault. The Office notified appellant on
September 28, 2005 that his compensation was suspended effective October 2, 2005 and would
be reinstated only after verification that he attended and fully cooperated with the examination.
Appellant therefore knew or should have known that compensation for periods on or after
October 2, 2005 were incorrect, so he is at fault in creating the overpayment by accepting such.
It is no defense that the Office erred in making the overpayment and because appellant is at fault
in creating the overpayment, he is not eligible for waiver.
CONCLUSION
The Board finds that appellant was at fault in creating a $19,035.00 overpayment of
compensation from October 2, 2005 through November 25, 2006. Appellant is therefore not
eligible for waiver.

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ORDER
IT IS HEREBY ORDERED THAT the January 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Jackson, MS,
Employer
__________________________________________

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

Docket No. 17-1808
Issued: December 28, 2017

Case Submitted on the Record

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

JURISDICTION
On August 21, 2017 appellant filed a timely appeal from a July 12, 2017 merit decision
and an August 8, 2017 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a right
elbow condition causally related to factors of his federal employment; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits of his claim under 5 U.S.C.
§ 8128(a).
On appeal, appellant contends that he sustained a work-related condition as supported by
his physician’s rationalized medical opinion regarding the causal relationship between his
1

5 U.S.C. § 8101 et seq.

repetitive and strenuous work duties and the claimed injury. He further contends that he did not
have the claimed medical diagnosis prior to working at the employing establishment.
FACTUAL HISTORY
On October 26, 2016 appellant, then a 28-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that on May 3, 2016 he first became aware of
his lateral epicondylitis condition and realized that it was caused by factors of his federal
employment. He noted that he lifted oversized packages more than eight hours a day, six days a
week and that he experienced pain and popping in his right elbow. Appellant had not previously
experienced any right elbow discomfort prior to May 3, 2016. He stopped work on
August 3, 2016.
In support of his claim, appellant submitted a patient profile report dated May 4, 2016
from a registered nurse. She indicated that he had tennis elbow.
By letter dated November 2, 2016, OWCP advised appellant of the deficiencies of his
claim and afforded him 30 days to submit additional evidence and respond to its development
questionnaire. It noted that nurses were not considered physicians as defined under FECA and
that medical evidence supporting the claim must be signed by a physician.
OWCP subsequently received an unsigned report, dated June 7, 2016, from Baptist
Medical Clinic/Family Medicine Northtown. The report indicated that appellant presented with
right elbow pain and his symptoms began one month ago. Appellant had right lateral
epicondylitis pain for four weeks and had been off work for the same time period. The report
noted that appellant lifted heavy boxes at work.
In a January 25, 2017 decision, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment, i.e., working with
oversized packages.
On June 12, 2017 appellant submitted an appeal request form requesting reconsideration
and additional medical evidence. In a June 5, 2017 progress note, Dr. David J. Gandy, an
attending Board-certified orthopedic surgeon, noted appellant’s complaint of right elbow pain
with grip and that appellant also noted his family history, social history, and medical
background. He indicated that appellant was diagnosed as having tennis elbow in May 2016 for
which he received medical treatment. Appellant related that his symptoms had improved with
rest, but worsened with repetitive activities. Dr. Gandy reported that appellant described his
work duties, which included repetitive lifting, grasping, moving, and pulling of boxes all day.
He advised appellant that this was consistent with his described symptoms of lateral
epicondylitis. Dr. Gandy discussed findings on physical examination of the right elbow,
diagnosed right elbow lateral epicondylitis, and addressed appellant’s treatment plan.
By letter dated June 19, 2017, OWCP advised appellant that it was unable to proceed
with his request for reconsideration because the appeal request form was unsigned and undated.
Appellant was advised to complete the form and return it to OWCP.

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On an appeal request form dated June 12, 2017, received on July 3, 2017, appellant again
requested reconsideration.
In a July 12, 2017 decision, OWCP denied modification of its January 25, 2017 decision.
It found that Dr. Gandy failed to provide a rationalized medical opinion sufficient to establish
causal relationship between appellant’s right elbow condition and the established factors of his
federal employment.
In an appeal request form and note received on July 27, 2017, appellant again requested
reconsideration. He contended that his right elbow condition was caused by repetitive heavy
lifting of oversized packages at work and reiterated that he did not experience this problem prior
to working at the employing establishment. Appellant further claimed that each of his physicians
supported that his job was the root cause of his injury and that it would not improve if he
continued to work in the same job.
Appellant submitted a July 19, 2017 follow-up report in which Dr. Gandy reiterated his
prior diagnosis of right elbow lateral epicondylitis. Dr. Gandy noted that appellant’s condition
had improved, but that he experienced pain again when he returned to his prior work duty. He
recommended that appellant resume physical therapy. Dr. Gandy also placed appellant on work
restrictions regarding the use of his right upper extremity.
Appellant also submitted an April 29, 2017 report from a nurse practitioner. She noted
his history, reported findings on examination, and diagnosed right elbow lateral epicondylitis.
By decision dated August 8, 2017, OWCP denied appellant’s request for reconsideration
of the merits of the claim. It found that the evidence submitted in support of reconsideration was
irrelevant, immaterial, or cumulative.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

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or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5
ANALYSIS -- ISSUE 1
OWCP accepted as factual that appellant performed the work duties of a mail processing
clerk, which involved working with oversized packages. The Board finds, however, that the
medical evidence of record is insufficient to establish a right elbow condition caused or
aggravated by the accepted federal employment factors.
Dr. Gandy’s June 5, 2017 progress note found that appellant had right elbow lateral
epicondylitis. He noted appellant’s description of his work duties, which involved repetitive
lifting, grasping, moving, and pulling of boxes. While Dr. Gandy maintained that these work
duties were consistent with appellant’s described symptoms of lateral epicondylitis, he failed to
provide a probative, rationalized opinion regarding whether the accepted federal employment
factors caused a personal injury.6 He did not sufficiently explain why, medically, appellant
would have sustained a right elbow injury due to repetitive employment factors involved in
working with oversized packages.
Appellant submitted a May 4, 2016 patient profile report from a registered nurse.
However, this evidence is of no probative medical value as registered nurses are not considered
physicians as defined under FECA.7 In addition, the unsigned June 7, 2016 report from Baptist
Medical Clinic/Family Medicine Northtown has no probative medical value as the author cannot
be identified as a physician.8
The Board finds that appellant has failed to submit any rationalized probative medical
evidence to establish a right elbow injury causally related to the established factors of his federal
employment. Appellant, therefore, has not met his burden of proof.

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
7

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
L.C., Docket No. 16-1717 (issued March 2, 2017) (a nurse is not considered a physician under FECA).
8

See J.W., Docket No. 17-0870 (issued July 12, 2017); Merton J. Sills, 39 ECAB 572, 575 (1988).

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On appeal, appellant contends that he sustained a work-related condition based on his
physician’s rationalized medical opinion regarding the causal relationship between his repetitive
and strenuous work duties and his claimed injury. For the reasons set forth above, the Board
finds that the weight of the medical evidence does not establish that he sustained a right elbow
condition or injury causally related to the accepted employment factor. Appellant further
contends on appeal that he did not have the claimed medical diagnosis prior to working at the
employing establishment. However, neither the mere fact that a disease or condition manifests
itself during a period of employment, nor the belief that the disease was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.10 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).11 This section provides that the application for reconsideration must be submitted
in writing and 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.12 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.13
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. In support of his July 27, 2017 request for reconsideration,
appellant submitted a new report dated July 19, 2017 from Dr. Gandy in which he related his
diagnosis of right elbow lateral epicondylitis and found that appellant’s condition had worsened
upon his return to his prior work duty. This evidence, however, essentially reiterated
Dr. Gandy’s diagnosis and opinion set forth in his prior June 5, 2017 report of record. Evidence
or argument that repeats or duplicates evidence previously of record has no evidentiary value and
9

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.608(a).

12

Id. at § 10.606(b)(3).

13

Id. at § 10.608(b).

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does not constitute a basis for reopening a case.14 The Board finds, therefore, that Dr. Gandy’s
July 27, 2017 report is insufficient to reopen appellant’s claim for further merit review.
The new report dated April 29, 2017 from a nurse practitioner is insufficient to warrant
merit review as nurse practitioners are not considered physicians as defined under FECA.15
Thus, this evidence is of no probative value16 and it is, therefore, irrelevant to the underlying
medical issue.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.17
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a right
elbow condition causally related to factors of his federal employment. The Board further finds
that OWCP properly denied appellant’s request for reconsideration of the merits of his claim
under 5 U.S.C. § 8128(a).

14

D.K., 59 ECAB 141 (2007).

15

5 U.S.C. § 8101(2); L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA).

16

See L.D., id.

17

See A.R., Docket No. 16-1416 (issued April 10, 2017); A.M., Docket No. 16-0499 (issued June 28, 2016); A.K.,
Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006);
(when an application for reconsideration does not meet at least one of the three requirements enumerated under
section 10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on
the merits).

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ORDER
IT IS HEREBY ORDERED THAT the August 8 and July 12, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 28, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., 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. 14-2052
Issued: February 11, 2015

Case Submitted on the Record

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

JURISDICTION
On September 29, 2014 appellant, through her representative, filed a timely appeal from a
July 7, 2014 schedule award decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of the
right arm, for which she received a schedule award.
On appeal appellant’s attorney asserts that a conflict in medical evidence has been
established between the attending physician and OWCP referral physician.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 8, 2006 OWCP accepted that appellant sustained bilateral carpal tunnel
syndrome caused by her work duties.
An electrodiagnostic study was done on
December 13, 2005. Appellant underwent right carpal tunnel repair, flexor tenolysis, and
tenosynovectomy on July 31, 2006. On August 16, 2006 the claim was expanded to include
bilateral tenosynovitis of the hand and wrist and later expanded to include bilateral synovitis and
acquired right trigger finger. The claim was adjudicated by OWCP under file number
xxxxxx544. A separate claim, file number xxxxxx726, was also accepted for bilateral
tenosynovitis of the hand and wrist. The claims were combined on August 16, 2006.2
Additional upper extremity electrodiagnostic studies were performed on June 27 and
December 26, 2006.
In a September 26, 2008 decision, OWCP terminated appellant’s wage-loss and medical
benefits. An OWCP hearing representative affirmed this decision on May 14, 2009, and in a
December 23, 2009 merit decision, OWCP denied modification of the May 14, 2009 decision.
On May 7, 2010 OWCP denied appellant’s request for merit review.
On October 2, 2012 appellant filed a schedule award claim under file number xxxxxx444.
A June 14, 2012 electrodiagnostic study demonstrated mild left radial sensory nerve compromise
at the wrist with no evidence of median or ulnar nerve compromise of either wrist. In an
August 14, 2012 report, Dr. Nicholas Diamond, an attending osteopath, discussed his review of
medical records, including electrodiagnostic studies dated December 13, 2005, June 27 and
December 26, 2006 and June 14, 2012. He noted examination findings and diagnosed right
carpal tunnel syndrome and right flexor tenosynovitis. Dr. Diamond indicated that, under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),3 Table 15-23, Entrapment Compression Neuropathy
Impairment, appellant had six percent right arm impairment. He chose grade modifiers from the
table as appropriate, indicating that appellant had a test findings grade modifier of 1, a history
modifier of 3 and a physical findings modifier of 3. He averaged the grade modifiers, chose the
default value of five percent and, based on appellant’s QuickDASH score of 75 percent,
increased the right upper extremity impairment to six percent.
On October 8, 2012 Dr. Lance Yarus, an osteopath, noted a past history of bilateral carpal
tunnel syndrome. He stated that appellant’s current problem related to her left hand, described
physical examination findings, and diagnosed de Quervain’s disease. Dr. Yarus advised that
appellant had not reached maximum medical improvement.
In a report dated December 4, 2012, Dr. Arnold T. Berman, an OWCP medical adviser
and a Board-certified orthopedic surgeon, reviewed the medical evidence including the reports
2

On March 16, 2007 OWCP accepted left shoulder sprain/strain under file number xxxxxx209. Under file
number xxxxxx209, by decision dated December 9, 2010, appellant was granted a schedule award for a four percent
impairment of the left upper extremity. On August 10, 2012 she filed an occupational disease claim, adjudicated by
OWCP under file number xxxxxx005. After an initial denial, the claim was accepted for de Quervain’s
tenosynovitis of the left wrist and aggravation of preexisting bilateral carpal tunnel syndrome.
3

A.M.A., Guides (6th ed. 2008).

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from Dr. Diamond and Dr. Yarus. He indicated that, until maximum medical improvement was
reached, a schedule award determination could not be made. On February 13, 2013 OWCP
asked Dr. Diamond to review Dr. Berman’s report and advise, within 30 days, whether
maximum medical improvement had been reached. Copies of the letter were provided to
appellant and her attorney.
In a decision dated April 1, 2013, OWCP noted that Dr. Diamond had not provided a
requested supplementary report. It denied appellant’s schedule award claim because the medical
evidence did not establish that maximum medical improvement had been reached.
On April 4, 2013 appellant requested a hearing. In January 7 and February 13, 2013
treatment notes, Dr. Yarus reiterated his findings for appellant’s left hand. In an April 15, 2013
report, Dr. Diamond stated that, based on his August 14, 2012 examination findings, appellant
reached maximum medical improvement at that time.
By decision dated July 2, 2013, an OWCP hearing representative set aside the April 1,
2013 decision. She noted that appellant had three upper extremity claims and instructed OWCP
to combine all claims, prepare an updated statement of accepted facts, and refer appellant for a
second opinion evaluation with regard to whether she had reached maximum medical
improvement and to provide an impairment evaluation.
In August 2013 OWCP combined file numbers xxxxxx209 and xxxxxx005 with the
previously combined file numbers xxxxxx544 and xxxxxx726. It prepared and updated
statement of accepted facts and set of questions and referred appellant to Dr. Robert Franklin
Draper, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In an April 8, 2013 report, received by OWCP on September 3, 2013, Dr. Yarus indicated
that appellant had reached maximum medical improvement with regard to her left upper
extremity de Quervain’s disease. He continued to submit reports describing her condition.
In a September 20, 2013 report, Dr. Draper noted his review of the statement of accepted
facts and medical record. Physical examination of the right upper extremity demonstrated no
hand atrophy and a negative Tinel’s sign over the median and ulnar nerve and a negative
Finkelstein’s test at the right wrist. Normal light touch was noted over the tip of the right index
and little fingers. Dr. Draper diagnosed right carpal tunnel syndrome and flexor tenosynovitis,
status post right carpal tunnel release, flexor tenolysis and tenosynovectomy in July 2006; left
carpal tunnel syndrome; de Quervain’s tenosynovitis of both wrists; and a strained left shoulder.
With regard to the right carpal tunnel syndrome, he indicated that, under Table 15-23, appellant
had a grade modifier of 1 for test findings, a modifier of 2 for history, and modifiers of 1 for
physical examination and function. Dr. Draper averaged the modifiers, concluding that appellant
had a grade 1 total modifier for two percent right upper extremity impairment. With regard to
the right wrist de Quervain’s synovitis, he found that, under Table 15-3, Wrist Regional Grid,
appellant had a class one wrist sprain with a default value of one percent impairment. Dr. Draper
applied the net adjustment formula which showed no increase and concluded that appellant had
one percent impairment due to de Quervain’s disease. With regard to the diagnosed right trigger
finger, he found that under Table 15-2, Digital Regional Grid, for a diagnosis of stenosing
tenosynovitis, as his examination showed no triggering, appellant was rated at class 0 for no

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impairment. Dr. Draper added the two percent impairment for carpal tunnel syndrome and the
one percent impairment for de Quervain’s disease and concluded that appellant had a total three
percent right upper extremity impairment.
On October 10, 2013 Dr. Morley Slutsky, an OWCP medical adviser, who is Boardcertified in occupational medicine, reviewed the medical evidence, and asked for copies of all
previous electrodiagnostic studies. These were provided on October 24, 2013. In an October 29,
2013 report, OWCP medical adviser noted his review of the complete medical record for all
files. Regarding the right arm, he discussed Dr. Diamond’s and Dr. Draper’s physical
examination findings. Dr. Slutsky provided an impairment rating grid and indicated that the
preoperative electrodiagnostic test met the criteria described in the A.M.A, Guides, finding a
grade 1 test modifier. He concluded that appellant had a grade modifier of 1 based on history
and 0 for physical findings in light of appellant’s normal two-point discrimination and light
touch, with no motor strength deficits and no hand atrophy. Dr. Slutsky opined that the
QuickDASH score was unreliable in light of normal clinical findings and indicated that he would
use appellant’s best efforts and consistent findings which indicated normal sensation and motor
strength with no hand atrophy. He concluded that appellant had two percent impairment for right
carpal tunnel syndrome under Table 15-23. Dr. Slutsky further indicated that, based on
Dr. Draper’s finding of no triggering, appellant had no impairment under Table 15-2 for right
trigger finger. In regard to the diagnosis of de Quervain’s tenosynovitis, he agreed with
Dr. Draper’s conclusion that appellant had one percent impairment under Table 15-3.
Dr. Slutsky combined the two percent right upper extremity impairment for carpal tunnel
syndrome with the one percent impairment for de Quervain’s tenosynovitis, for a total right
upper extremity impairment of three percent.4
By decision dated October 31, 2013, appellant was granted a schedule award for a three
percent impairment of the right upper extremity. Appellant, through her attorney, timely
requested a hearing. Her disability retirement claim was approved by the Office of Personnel
Management on January 28, 2014. At the hearing, held on April 14, 2014, appellant testified
regarding her physical condition and limitations. She indicated that she was currently receiving
wage-loss compensation for an accepted left arm condition. Appellant’s attorney confirmed that
the instant claim was only in regard to her right arm. He maintained that, as it did not appear that
Dr. Draper reviewed the preoperative electrodiagnostic studies, it was improper for OWCP
medical adviser to rely on his report. Counsel asserted that Dr. Diamond’s opinion should be
credited or, in the alternative, a conflict in medical evidence should be found.
In a July 7, 2014 decision, OWCP hearing representative affirmed the October 31, 2013
decision.
LEGAL PRECEDENT
The schedule award provision of FECA, and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
4

Dr. Diamond, Dr. Draper, and Dr. Slutsky described physical examination findings and provided an impairment
rating for the left upper extremity, not at issue in this appeal.
5

20 C.F.R. § 10.404.

4

impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition will be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment Class of Diagnosis condition (CDX), which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).10
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.11 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds that appellant has not established that she has greater than a three
percent impairment of the right upper extremity. The accepted right arm conditions are carpal
tunnel syndrome, tenosynovitis of the right hand and wrist, and right acquired trigger finger. On
6

Id. at 10.404(a).

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 385-419.

10

Id. at 411.

11

Id. at 449.

12

Id. at 448-50.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

5

July 31, 2006 appellant underwent right carpal tunnel repair, flexor tenolysis, and
tenosynovectomy.
On October 2, 2012 appellant filed a schedule award claim and submitted an August 14,
2012 report in which Dr. Diamond discussed his review of medical records, including
electrodiagnostic studies. Dr. Diamond described physical examination findings and provided an
impairment rating under Table 15-23 of the A.M.A., Guides.14 He indicated that appellant had a
test findings grade modifier of 1, a history modifier of 3, and a physical findings modifier of 3.
Dr. Diamond then averaged the grade modifiers, chose the default value of five percent and,
based on appellant’s QuickDASH score of 75 percent, increased the right upper extremity
impairment to six percent.
In a September 20, 2013 report, Dr. Draper, an OWCP referral physician, noted that
physical examination of the right upper extremity demonstrated no hand atrophy with negative
Tinel’s and Finkelstein’s tests and that light touch over the tip of the right index and little fingers
was normal He diagnosed right carpal tunnel syndrome and flexor tenosynovitis. Dr. Draper
indicated that, with regard to appellant’s right carpal tunnel syndrome, under Table 15-23, she
had a grade modifier of 1 for test findings, a modifier of 2 for history, and modifiers of 1 for
physical examination and function. He averaged the modifiers, concluding that appellant had a
grade 1 total modifier for two percent right upper extremity impairment. Dr. Draper found that
for the right wrist de Quervain’s synovitis, under Table 15-3, Wrist Regional Grid, appellant had
a class 1 wrist sprain with a default value of one percent impairment. He applied the net
adjustment formula which showed no increase and concluded that appellant had one percent
impairment due to de Quervain’s disease. With regard to the accepted right trigger finger,
Dr. Draper indicated that, as he found no triggering of physical examination, appellant had no
impairment. He added the two percent impairment for carpal tunnel syndrome and the one
percent impairment for de Quervain’s disease and concluded that appellant had a total three
percent right upper extremity impairment.
In a comprehensive October 29, 2013 report, Dr. Slutsky, OWCP medical adviser, noted
his review of the complete medical record for all files. Regarding the right arm, he discussed
Dr. Diamond’s and Dr. Draper’s physical examination findings. Dr. Slutsky provided an
impairment rating grid and indicated that the preoperative electrodiagnostic test met the criteria
described in the A.M.A, Guides, finding a grade 1 test modifier, which was also found by both
Dr. Diamond and Dr. Draper. OWCP medical adviser indicated that appellant had a history
modifier of 1 and a 0 modifier for physical findings, in light of Dr. Draper’s examination
findings of normal two-point discrimination and light touch, no motor strength deficits and no
hand atrophy. Dr. Slutsky opined that the QuickDASH score reported by Dr. Diamond was
unreliable in light of normal clinical findings. He concluded that appellant had two percent
impairment for right carpal tunnel syndrome. Dr. Slutsky further indicated that, based on
Dr. Draper’s finding of no triggering, appellant had no impairment for the right trigger finger
diagnosis. In regard to the diagnosis of de Quervain’s tenosynovitis, he agreed with Dr. Draper’s
conclusion that appellant had one percent impairment under Table 15-3. Dr. Diamond reported
no impairment for this diagnosis. Dr. Slutsky combined the two percent right upper extremity
14

Supra note 3 at 449.

6

impairment for carpal tunnel syndrome with the one percent impairment for de Quervain’s
tenosynovitis, for a total right upper extremity impairment of three percent.
Although appellant’s attorney argues that a conflict in medical evidence has been created
between Dr. Diamond and Dr. Draper, the medical record better supports the conclusion of
OWCP medical adviser who based his comprehensive October 29, 2013 report on both
Dr. Diamond’s and Dr. Draper’s reports. The Board concludes that OWCP medical adviser
applied the appropriate sections of the A.M.A., Guides to the clinical findings of record.15
Therefore, OWCP’s July 7, 2014 decision affirming the October 31, 2013 schedule award is
proper under the law and facts of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has a three percent impairment of the right upper
extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 11, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
15

See W.M., Docket No. 11-1706 (issued March 20, 2012).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

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

Docket No. 07-600
Issued: August 6, 2007

Case Submitted on the Record

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

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from a November 9, 2006 Office
of Workers’ Compensation Programs’ decision, denying his claim for a recurrence of total
disability. The Board also has jurisdiction over a December 12, 2006 decision, terminating his
wage-loss compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of total disability on
April 25, 2006; and (2) whether the Office met its burden of proof in terminating his wage-loss
compensation benefits effective December 12, 2006.
FACTUAL HISTORY
This case was previously before the Board. By decision dated September 22, 2006, the
Board affirmed Office decisions dated September 28, 2005 and February 14, 2006, terminating
appellant’s compensation and schedule award benefits effective August 8, 2004 for refusing a

suitable job offer.1 The September 22, 2006 decision of the Board is herein incorporated by
reference.
On June 24, 2002 appellant, then a 42-year-old mail clerk, filed an occupational disease
claim that was accepted for bilateral carpal tunnel syndrome.2 He underwent carpal tunnel
release surgery on March 20 and September 17, 2003 and received compensation for temporary
total disability. Appellant returned to work in a full-time modified position in August 2004. On
September 8, 2005 his work hours were reduced by his physician to 24 hours a week due to a
worsening of his accepted conditions. On January 4, 2006 appellant’s work hours were reduced
by his physician to 16 hours a week. He stopped work completely on April 25, 2006. Appellant
returned to his modified position in a full-time capacity on November 20, 2006.
On March 13 and July 17, 2006 Dr. Robert A. Smith, a Board-certified orthopedic
surgeon and an Office referral physician, reviewed a history of appellant’s condition and
provided findings on physical examination. He stated that appellant had some mild
electrodiagnostic findings of residual carpal tunnel syndrome but clinical examination revealed
that he had good results from his carpal tunnel surgeries and could perform his modified-duty
work. Dr. Smith indicated that appellant’s right ulnar nerve lesion was mild and did not prevent
him from performing modified work. On August 17, 2006 he stated that appellant underwent an
EMG (electromyogram) on August 10, 2006 which was reported as a “very unimpressive
residual dysfunction of the bilateral median nerves at the level of the wrists.” There was no
evidence of ulnar neuropathy. Dr. Smith stated:
“Given these findings, I would conclude that [appellant] is at maximum medical
improvement, has an excellent prognosis and does not require any further
treatment such as surgery to the ulnar nerves since[,] according to the recent EMG
study, there is no evidence of any work-related ulnar nerve compression present.
Given these minor residual findings, I would conclude also that [appellant] could
return to his regular-duty activities.”
On April 18, 2006 Dr. Scott M. Fried, an attending orthopedic surgeon, provided findings
on physical examination and the results of electrodiagnostic testing. He diagnosed bilateral ulnar
neuropathy, bilateral median neuropathy, bilateral plexopathy and cervical radiculopathy and
bilateral repetitive strain injury of the upper extremities (cumulative trauma disorder). On
April 27, 2006 Dr. Fried stated that appellant was unable to work due to an exacerbation of his
symptoms. On August 3, 2006 he stated that appellant was experiencing bilateral upper
extremity pain and was unable to work.
On July 17, 2006 appellant filed a claim for a recurrence of total disability on
April 25, 2006.
On October 4, 2006 the Office referred appellant to Dr. Andrew J. Gelman, a Boardcertified orthopedic surgeon, in order to resolve the conflict in the medical opinion evidence
1

Docket No. 06-1028 (issued September 22, 2006).

2

The Office also accepted a claim for a right ulnar nerve lesion and combined the two cases.

2

between Dr. Fried and Dr. Smith as to whether appellant had any residuals from his accepted
upper extremity conditions. Dr. Gelman was provided with a copy of appellant’s case file and
the statement of accepted facts which included a detailed description of appellant’s modified
mail processor position. He performed a thorough physical examination and reviewed the
factual and medical history of appellant’s condition. In an October 23, 2006 report, Dr. Gelman
stated:
“Today’s examination reveals an alert, comfortable-appearing, right hand
dominant male who is in no acute distress. His shoulders, elbows, wrists, and
fingers move well. Residual following volar left wrist and mid palm incisions are
noted. There is a healed right dorsal wrist wound site which has healed well and a
healed right carpal tunnel midpalmar incision which has also healed well. There
are no detectable wounds…. The fingers including the thumb and wrist move
fully including assessment of all flexor and extensor tendons. There is no
evidence of limb redness, warmth, edema or atrophy.
“Tinel’s is equivocal through both carpal tunnels and equivocal through both
cubital tunnels at the elbow. Equivocal in the sense that there is some sensitivity
which I would describe as a dysthesia, though the radiating pattern is not
extensive and clearly consistent with a significant entrapment. Phalen’s test is
provocative only for wrist discomfort while there is no radiating, tingling, or
numbness sensation. There is no discomfort in the region of the triangular
fibrocartilage complex. Finkelstein’s is negative bilaterally. There is no digital
triggering.
Summary: [Appellant] has had hand difficulties … dating back now over a 15year period. He has had extensive conservative treatment as well as operative
intervention addressing a joint contracture at the left index finger and having
undergone carpal tunnel release procedures bilaterally. [Appellant] … also had
cysts removed, one from the volar aspect of the left wrist and another from the
dorsal aspect of the right wrist.
“[T]he accepted [conditions] in this case include bilateral carpal tunnel syndrome
and right ulnar nerve entrapment syndrome. Recent electrophysiologic data …
have identified mild features of ulnar nerve entrapment bilaterally at the elbows
with rather unimpressive or absent median nerve entrapment through the carpal
tunnels. The electrical findings across the elbow would be supportive of
[appellant’s] subjective complaints. Objectively[,] I am impressed only with the
surgical wounds while again, the Tinel’s is equivocal/borderline across the
elbows.
“With regard to the question of total disability, I am not impressed that [appellant]
has [at] any time been totally disabled. I have reviewed the … modified mail
processor [position]…. The duties as outlined appear to be within the capability
of [appellant]…. I personally believe that this position can be performed on a
full-time basis. Any inability to do so would be purely based on the subjective
nature of [appellant’s] complaints.

3

“As to the issue of surgical treatment, the decision to proceed would ultimately be
up to … [appellant]. With equivocal findings, I would not be particularly anxious
to proceed as [the] outcome may not necessarily reach [the] expectations of
[appellant]. Surgery for nerve entrapment is a recognized alternative, typically as
a last resort for individuals with significant symptomatology and who have failed
conservative treatment. Short of a surgery, [appellant] has long ago reached
maximum medical improvement. His decision to proceed will need to be
independently made. If, in fact, [appellant] does not proceed with surgical
treatment he should plan on returning to his position as a mail processor. If, in
fact, he claims that his job duties cannot be fully performed, permanent job
modification would need to be planned.”
Dr. Gelman indicated that appellant was able to perform his modified position for eight
hours a day.
By decision dated November 9, 2006, the Office denied appellant’s recurrence claim on
the grounds that the evidence did not establish that he sustained a recurrence of total disability on
April 25, 2006 causally related to his accepted upper extremity conditions. On November 9,
2006 the Office also sent appellant a notice of proposed termination of his wage-loss
compensation benefits.
By decision dated December 12, 2006, the Office terminated appellant’s wage-loss
compensation benefits on the grounds that the weight of the medical evidence of record,
represented by the opinion of Dr. Gelman, established that he was not totally disabled due to
residuals of his accepted bilateral carpal tunnel syndrome and right ulnar lesion.3
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and that he cannot perform the light-duty position. As part of this burden of proof, the employee
must show either a change in the nature and extent of the injury-related condition or a change in
the nature and extent of the light-duty job requirements.4
To establish a causal relationship between a claimant’s medical conditions and his
employment, he must submit rationalized medical opinion evidence based on a complete factual
and medical background supporting such a causal relationship.5 Rationalized medical opinion
3

Subsequent to the December 12, 2006 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
4

Bryant F. Blackmon, 57 ECAB ___ (Docket No. 04-564, issued September 23, 2005); Terry R. Hedman, 38
ECAB 222 (1986).
5

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

4

evidence is medical evidence which includes a physician’s opinion on the issue of whether there
is a causal relationship between the claimant’s condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7
Section 8123(a) of the Federal Employees’ Compensation Act provides that, “if there is
disagreement between the physician making the examination for the United States and the
physician of the employee, the Secretary [of Labor] shall appoint a third physician who shall
make an examination.”8 Where a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.9
ANALYSIS -- ISSUE 1
Appellant has the burden to provide medical evidence establishing that he was totally
disabled on April 25, 2006 due to a worsening of his accepted work-related conditions, bilateral
carpal tunnel syndrome and a right ulnar lesion, or a change in his job duties such that he was
unable to perform his light-duty work. He alleged a worsening of his accepted conditions.
Dr. Fried, appellant’s attending physician, determined that appellant could not perform
his modified job. Dr. Smith, the Office referral physician, opined that appellant was capable of
performing his modified-duty work. Due to the conflict in the medical opinion evidence, the
Office referred appellant to Dr. Gelman for an independent medical examination regarding
appellant’s claim that he was totally disabled on April 25, 2006 due to a recurrence of total
disability.
Dr. Gelman was provided with a copy of appellant’s case file and the statement of
accepted facts which included a detailed description of appellant’s modified mail processor
position. He performed a thorough physical examination and reviewed the factual and medical
history of appellant’s condition. Dr. Gelman stated:
“[Appellant’s] shoulders, elbows, wrists, and fingers move well…. The fingers
including the thumb and wrist move fully including assessment of all flexor and

6

Steven S. Saleh, 55 ECAB 169 (2003); Gary J. Watling, 52 ECAB 278 (2001).

7

Michael S. Mina, supra note 5.

8

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).
9

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

5

extensor tendons. There is no evidence of limb redness, warmth, edema, or
atrophy.
“Tinel’s is equivocal through both carpal tunnels and … both cubital tunnels at
the elbow … in the sense that there is some sensitivity which I would describe as
a dysthesia, though the radiating pattern is not extensive and clearly [not]
consistent with a significant entrapment. Phalen’s test is provocative only for
wrist discomfort while there is no radiating, tingling, or numbness sensation.
There is no discomfort in the region of the triangular fibrocartilage complex.
Finkelstein’s is negative bilaterally. There is no digital triggering.”
***
“[T]he accepted [conditions] in this case include bilateral carpal tunnel syndrome
and right ulnar nerve entrapment syndrome. Recent electrophysiologic data …
have identified mild features of ulnar nerve entrapment bilaterally at the elbows
with rather unimpressive or absent median nerve entrapment through the carpal
tunnels. The electrical findings across the elbow would be supportive of
[appellant’s] subjective complaints….
“With regard to the question of total disability, I am not impressed that [appellant]
has [at] any time been totally disabled. I have reviewed the … modified mail
processor [position]…. The duties as outlined appear to be within the capability
of [appellant]…. I personally believe that this position can be performed on a
full-time basis. Any inability to do so would be purely based on the subjective
nature of [appellant’s] complaints.”
Dr. Gelman determined that appellant was able to perform his modified position for eight
hours a day.
The Board finds that Dr. Gelman’s thorough and well-rationalized report is based on a
complete and accurate factual and medical background and is entitled to special weight. His
report establishes that appellant was not totally disabled on April 25, 2006 due to a change in the
nature and extent of his employment-related bilateral carpal tunnel syndrome or right ulnar nerve
lesion, or a change in the nature and extent of his light-duty job requirements. Dr. Gelman found
that appellant was capable of performing his modified position. Therefore, the Office properly
denied his claim for a recurrence of total disability.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.10 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.11 The
10

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

11

Id.

6

Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.12
ANALYSIS -- ISSUE 2
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome and a right
ulnar nerve lesion. Effective December 12, 2006, the Office finalized its termination of his
wage-loss compensation. The Office, therefore, bears the burden of proof to justify a
termination of benefits.13
Dr. Gelman was provided with a copy of appellant’s case file and the statement of
accepted facts. He performed a thorough physical examination and reviewed the factual and
medical history of appellant’s condition. Dr. Gelman found no objective evidence that appellant
was unable to work due to his accepted bilateral carpal tunnel syndrome and right ulnar nerve
lesion. He indicated that electrodiagnostic studies revealed only mild ulnar nerve entrapment
and mild or absent median nerve entrapment at the carpal tunnel.
The Board finds that the weight of the medical evidence, represented by the
comprehensive report of Dr. Gelman, which is based on a complete and accurate factual and
medical background and findings on physical examination, establishes that appellant’s disability
for work causally related to his accepted bilateral carpal tunnel syndrome and right ulnar lesion
had ceased. Based on Dr. Gelman’s report, the Office met its burden of proof in terminating
appellant’s wage-loss compensation effective December 12, 2006.14
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of total
disability on April 25, 2006 causally related to his accepted bilateral carpal tunnel syndrome and
right ulnar lesion. The Board further finds that the Office met its burden of proof in terminating
appellant’s wage-loss compensation benefits effective December 12, 2006.

12

See Del K. Rykert, 40 ECAB 284 (1988).

13

Willa M. Frazier, 55 ECAB 379 (2004).

14

As noted, appellant returned to his modified position full time on November 20, 2006.

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 12 and November 9, 2006 are affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’COMPENSATION PROGRAMS,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 14-996
Issued: October 7, 2014

Case Submitted on the Record

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

JURISDICTION
On March 21, 2014 appellant filed a timely appeal of a February 11, 2014 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her claim for an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 5 percent impairment of her left upper
extremity and 19 percent of her right upper extremity for which she has received schedule
awards.
FACTUAL HISTORY
This case has previously been before the Board on appeal on various aspects of
appellant’s five claims which have been combined in the current case. On March 30, 2009
1

5 U.S.C. § 8101 et seq.

appellant, then a 49-year-old senior claims examiner, filed a traumatic injury claim alleging that
she developed pain in her left hip and the back of her left thigh on March 24, 2009 while walking
down 16 flights of stairs during a fire drill. OWCP accepted her claim for lumbar sprain and
lumbar radiculitis on May 21, 2009; OWCP File No. xxxxxx867. By decision dated October 1,
2010, it denied appellant’s claim for a schedule award finding that the medical evidence did not
establish a ratable impairment to either lower extremity. The Board reviewed this claim on
November 23, 2011 and affirmed OWCP’s decision denying appellant’s claim for a schedule
award.2
On March 18, 2010 appellant filed a traumatic injury claim alleging on February 25, 2010
she injured her left forearm, wrist and thumb attempting to lower her desk height. OWCP
accepted her claim for de Quervain’s tenosynovitis left and left forearm tendinitis on
July 13, 2010; OWCP File No. xxxxxx189. By decision dated January 2, 2014, it granted
appellant a schedule award for one percent impairment of her left upper extremity. The Board
affirmed the January 2, 2014 decision on August 5, 2014.3
On December 2, 2010 appellant filed a traumatic injury claim alleging that she twisted
her right knee on November 23, 2010 when her right foot became entangled in a coil of
telephone wire under a table. OWCP accepted this claim for right knee sprain on
February 16, 2011; OWCP File No. xxxxxx900. In a decision dated January 25, 2013, OWCP
terminated appellant’s eligibility for medical and wage-loss compensation benefits effective that
date. The Board reviewed this decision on April 17, 2014 and affirmed the termination.4
On March 24, 2004 appellant,5 then a 44-year-old senior claims examiner, filed an
occupational disease claim alleging that she developed conditions in her shoulders, forearms,
elbows and neck from reaching, typing and indexing mail in the performance of duty. OWCP
accepted her claim for bilateral trapezius strain, bilateral rotator cuff strain and cervical strain on
April 16, 2004; OWCP File No. xxxxxx134. It included the additional conditions of bilateral
shoulder impingements and right shoulder adhesive capsulitis on May 3, 2004. Appellant
underwent nerve conduction velocity (NCV) and electromyogram (EMG) testing on May 21,
2004 which were read as within normal limits. A magnetic resonance imaging (MRI) scan of her
left shoulder dated June 11, 2004 demonstrated probable tendinitis or a partial tear of the distal
rotator cuff tendon and mild hypertrophic changes of the acromioclavicular (AC) joint. The MRI
scan of appellant’s right shoulder on June 11, 2004 demonstrated either prominent tendinitis or
partial tear of the distal anterior portion of the rotator cuff tendon as well as moderate
hypertrophic degenerative changes of the AC joint with possible downward impingement upon
the rotator cuff at the musculotendinous junction. Appellant underwent an additional left
shoulder MRI scan on February 11, 2005 which demonstrated an area of interstitial partial
2

Docket No. 11-1072 (issued November 23, 2011). OWCP issued final decisions in this claim on June 11 and
August 6, 2014, terminating appellant’s medical benefits and denying modification of that decision, respectively.
Appellant has not appealed from these decisions and thus they are not before the Board. See 20 C.F.R. § 501.3(a).
3

Docket No. 14-718 (issued August 5, 2014). OWCP issued an additional decision in this claim on May 5, 2014
which appellant has not filed an appeal from. Thus, it is not currently before this Board. See 20 C.F.R. § 501.3(a).
4

Docket No. 13-1621 (issued April 17, 2014).

5

Appellant filed a traumatic injury claim on March 13, 2001 for neck sprain occurring on March 7, 2001; OWCP
File No. xxxxxx767. OWCP did not issue a final decision regarding this claim.

2

tearing of the posterior aspect of the supraspinatus tendon with a possible small perforation
through the bursal fibers and associated subacromial/subdeltoid bursitis. She underwent left
arthroscopy shoulder surgery on May 31, 2005 with limited intra-articular debridement,
subacromial decompression and distal clavicle resection. Appellant returned to full-time limited
duty on August 1, 2005.
By decision dated May 3, 2006, OWCP granted appellant a schedule award for 5 percent
permanent impairment of the right upper extremity and 19 percent impairment of the left upper
extremity.
In a report dated May 21, 2012, Dr. Gregory Horner, a Board-certified orthopedic
surgeon, reviewed appellant’s history of employment injuries. He found that she had normal
range of motion in her cervical and lumbar spine. Dr. Horner also noted that appellant
demonstrated tenderness to deep palpation in her lumbosacral spine and limited range of motion
due to severe discomfort. He reported that her deep tendon reflexes were within normal limits
with normal sensation and motor function. Dr. Horner examined appellant’s upper extremities
and found 130 degrees of forward flexion, external rotation of 65 degrees and equal internal
rotation. He stated that she had normal range of motion of her elbows, wrists and fingers with
full motor strength and normal sensation and normal deep tendon reflexes. Dr. Horner found no
atrophy. He provided work restrictions.
Appellant filed a claim for compensation on July 11, 2013 and requested a schedule
award. She requested that OWCP refer her to a second opinion physician to determine her
permanent impairment for schedule award purposes on July 18, 2013. On July 29, 2013 OWCP
requested that appellant submit a detailed medical report in support of her claim for a schedule
award. On August 5 and October 25, 2013 appellant again requested that OWCP refer her to a
physician to evaluate her permanent impairment.
OWCP referred appellant for a second opinion evaluation with Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon, on October 18, 2013. Dr. Swartz completed a report on
November 4, 2013 and examined appellant’s upper extremities. He found that she had intact
sensation in both upper extremities and that she had tenderness in the right shoulder. Dr. Swartz
listed appellant’s range of motion as 115 degrees of flexion on the right and 120 degrees on the
left, 80 degrees of abduction on the right and 120 on the left, 60 degrees of extension on the right
and 65 on the left as well as 40 degrees of adduction, 80 degrees of internal rotation and 110
degrees of external rotation bilaterally. He found that she had give-away weakness with all
strength testing of both shoulders and reported pain with strength testing in both shoulders.
Dr. Swartz provided the range of motion of appellant’s wrists as 70 degrees of
dorsiflexion on the right and 60 degrees on the left, 70 degrees of palmar flexion on the right and
60 degrees on the left, 30 degrees of ulnar deviation on the right and 25 on the left with 20
degrees of radial deviation bilaterally. He stated that her right grip strength testing was 10, 11
and 11 kilograms while her left was 22, 20 and 19 kilograms. Dr. Swartz reported that there was
minimal flexor forearm contractility with grip strength testing on the right and slightly less with
grip testing on the left. He reported positive impingement testing in the right shoulder with pain
on Speed, O’Brien and Abbott-Saunders tests.
Dr. Swartz provided appellant’s cervical range of motion as flexion 30 degrees, extension
25 degrees, lateral flexion 30 degrees and rotation 40 degrees. He stated that she reported mild
3

tenderness or soreness with palpation of the cervical spine with no spasm. Dr. Swartz noted that
appellant had no history of radiculopathy referable to her cervical spine and no neurologic
findings. He concluded that she had no radiculopathy, no peripheral nerve or nerve root injury in
her cervical spine and therefore no ratable impairment due to her cervical spine.
With regard to appellant’s right shoulder, Dr. Swartz found that, under the A.M.A.,
Guides, an impingement syndrome was three percent default impairment.6 He found a functional
history grade modifier of 1, QuickDASH score of 39, physical examination grade modifier 2
based on limited motion,7 and that clinical studies grade modifier would not apply as imaging
studies were required in order to diagnose the condition. Dr. Swartz applied the formula of the
A.M.A., Guides and concluded that appellant had grade D, four percent impairment of the right
upper extremity. He applied the A.M.A., Guides to the findings related to her left shoulder and
stated that the values were identical again resulting in four percent impairment of the left upper
extremity. Dr. Swartz diagnosed de Quervain’s tenosynovitis of the left wrist and found that this
diagnosis had a one percent default diagnosis.8 He stated that appellant’s functional history
adjustment would be grade modifier 1, and physical examination would also be grade modifier 1
resulting in one percent impairment for this diagnosis. Dr. Swartz concluded that she had five
percent left upper extremity impairment and four percent right upper extremity impairment.
OWCP’s medical adviser reviewed this report on November 29, 2013 and agreed with
Dr. Swartz’s ratings. He further noted that appellant had previously received schedule awards in
excess of these amounts and was not entitled to any additional schedule awards.
By decision dated February 11, 2014, OWCP denied appellant’s claim for an additional
schedule award finding that she had not established more than 5 percent impairment of the left
upper extremity and 19 percent impairment of her right upper extremity for which she had
previously received schedule awards.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the 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

6

A.M.A., Guides 402, Table 15-5.

7

Id. at 408, Table 15-8.

8

Id. at 395, Table 15-2.

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

4

degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.11
The protocol and formula of the sixth edition of the A.M.A., Guides requires that the
physician determine the class of diagnosis (CDX) and apply the appropriate grade modifiers for
Functional History, (GMFH) Physical Examination (GMPE) and Clinical Studies (GMCS) and
apply the following formula (GMFH - CDX) + (GMPE - CDX) + (GMCS – CDX) to reach the
appropriate grade within the class of diagnosis.12
ANALYSIS
In the case currently before the Board, appellant requested an additional schedule award
due to her upper extremity impairments. She did not submit any medical evidence in support of
her request, so OWCP referred her to Dr. Swartz. In his November 4, 2013 report, Dr. Swartz
reported his findings on physical examination and applied the A.M.A., Guides. He noted
impingement syndrome was three percent default impairment13 and then found a functional
history grade modifier of 1,14 QuickDASH score of 39,15 and physical examination grade
modifier of 2 based on limited motion.16 Dr. Swartz properly found that a clinical studies grade
modifier would not apply as imaging studies were required in order to diagnose the condition.17
He applied the formula of the A.M.A., Guides (GMFH - CDX) + (GMPE - CDX) and concluded
that appellant demonstrated (1-1) + (2-1) =1 or an increase to grade D, four percent impairment
of the right upper extremity. Dr. Swartz applied the A.M.A., Guides to the findings related to
her left shoulder again finding functional history grade modifier of 1 and physical examination
grade modifier of 2, which with application of the formula resulted in four percent impairment of
the left upper extremity. He diagnosed de Quervain’s tenosynovitis of the left wrist and found
that this diagnosis had a one percent default diagnosis.18 Dr. Swartz stated that appellant’s
functional history adjustment would be grade modifier 1, and physical examination would also
be grade modifier 1 resulting in (GMFH - CDX) + (GMPE - CDX) or (1-1) +(1-1) = 0 or 1
percent impairment for this diagnosis. Combining the left upper extremity impairments, he
concluded that she had five percent left upper extremity impairment and four percent right upper
extremity impairment. OWCP’s medical adviser agreed with these impairment ratings. There is

11

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 2.808.6a (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
12

A.M.A., Guides 411.

13

Id. at 402, Table 15-5.

14

Id. at 406, Table 15-7.

15

Id.

16

Id. at 408, Table 15-8.

17

The A.M.A., Guides stated that only if more than one pathology is present on clinical studies then the grade can
be modified according to the Clinical Studies Adjustment Table. A.M.A., Guides 409.
18

A.M.A., Guides 395, Table 15-2.

5

no other current medical evidence in the record addressing appellant’s upper extremity
impairment.
The Board finds that the weight of the medical opinion evidence establishes that
appellant has no more than 5 percent impairment of her left upper extremity and 19 percent of
her right upper extremity for which she has previously received schedule awards.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
has more than 5 percent impairment of her left upper extremity and 19 percent of her right upper
extremity for which she has previously received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
T.J. Simpson, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0487
Issued: October 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 15, 2016 appellant, through his representative, filed a timely appeal of a
December 24, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).2 As more than 180 days elapsed since the last merit decision dated November 18,

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

Appellant, through his representative filed a timely request for oral argument. By order dated June 20, 2016, the
Board denied his request on the grounds that her arguments could be adequately addressed in a decision based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 16-0487 (issued June 20, 2016).

2014, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant’s representative asserted that OWCP incorrectly found appellant’s
request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.
He further alleged that OWCP had grossly mishandled the medical evidence and failed to
properly docket his case file.
FACTUAL HISTORY
On January 19, 2011 appellant, then a 33-year-old contract specialist, filed a traumatic
injury claim (Form CA-1) alleging that on January 17, 2011 he sustained medical conditions due
to his employment. He also filed an occupational disease claim (Form CA-2) on January 19,
2011 alleging that on January 19, 2011 he first became aware of a medical condition which had
been caused or aggravated by his employment.5
On March 11, 2013 OWCP received an undated report from Dr. Ahn diagnosing bilateral
carpal tunnel syndrome, right de Quervain’s tenosynovitis, and right thumb and middle trigger
fingers. Dr. Ahn attributed the conditions to appellant’s repetitive work duties of computer
keyboard entry, typing, and repetitive upper extremity use. He noted that repetitive keyboard use
was consistent with appellant’s type of injury.
On January 22, 2014 OWCP accepted the conditions of bilateral carpal tunnel syndrome,
right and middle finger trigger fingers, and de Quervain’s tenosynovitis.
On February 26, 2014 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period January 19, 2011 through February 28, 2014.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the December 24, 2015 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
5

On September 14, 2012 OWCP received a Form CA-2 from appellant alleging an emotional injury due to
harassment and retaliation for filing an appeal with the Merit Protection Systems Board. Appellant stated that on
September 12, 2012 he first became aware that his condition had been caused or aggravated by his employment. On
October 22, 2012 OWCP received three occupational disease claims (Form CA-2) from appellant alleging that an
emotional condition and right trigger finger had been caused by his employment. On January 3, 2013 OWCP
received additional CA-2 forms from appellant alleging that on January 19, 2011 he first realized his emotional
condition was due to employment factors.

2

In an April 28, 2014 report, Dr. Ahn opined that appellant has been totally disabled from
working since January 19, 2011.
On May 12, 2014 OWCP received an undated report from Dr. Sahgal in which he opined
that appellant was totally disabled from working. Dr. Sahgal observed that appellant’s carpal
tunnel condition aggravated his emotional conditions as he was unable to perform the duties of
his position prior to his injury.
On May 20, 2014 OWCP received an undated report from Dr. Mehta diagnosing carpal
tunnel syndrome and emotional conditions due to his employment. Dr. Mehta reported that
appellant was disabled from working beginning January 19, 2011 due to his employment-related
physical and emotional conditions.
By decision dated July 31, 2014, OWCP denied appellant’s claim for wage-loss
compensation for the period January 19, 2011 through February 28, 2014.
In an August 8, 2014 report, Dr. Ahn reported that appellant has been totally disabled
from working for the past three years due to his accepted orthopedic conditions. He described
the treatment that appellant has been given and opined that, due to impact on his sensory and
motor nerves, appellant is unable to perform the duties of his position.
In an August 8, 2014 report, Dr. Nader Armanious, a Board-certified neurologist,
reviewed the medical evidence and noted the accepted conditions were bilateral carpal tunnel
syndrome, right and middle trigger fingers, and radial styloid tenosynovitis. He concluded that
there was no doubt that appellant sustained wage loss due to the accepted employment conditions
and should be granted wage-loss compensation.
On August 13, 2014 OWCP received an undated report from Dr. Ahn opining that
appellant continued to be disabled from performing his job as a contract specialist and has been
disabled since January 2011.
On September 12, 2014 OWCP received an undated report from Dr. Sahgal attributing
the conditions of major depression, anxiety disorder, and panic disorder to appellant’s
employment and provided a description of appellant’s duties. Dr. Sahgal opined that appellant
was rendered totally disabled by his employment-related emotional condition.
By decision dated November 18, 2014, OWCP denied modification. It found the
evidence insufficient to establish that appellant was entitled to wage-loss compensation for the
period January 19, 2011 to February 28, 2014 for the accepted carpal tunnel condition.
In a letter dated February 2, 2015, appellant’s representative requested reconsideration on
the denial of his claim for lost compensation.
On February 3, 2015 OWCP received an undated report from Dr. Sahgal. Dr. Sahgal
noted that OWCP had accepted the conditions of bilateral carpal tunnel syndrome, right
de Quervain’s tenosynovitis, and right thumb and middle trigger fingers. He opined that his
prior reports support that appellant’s emotional condition was a direct result of his employment

3

duties. Dr. Sahgal noted that appellant had a history of being harassed at work and that
accommodations were not made for the disruption of his work by his carpal tunnel condition.
By decision dated March 19, 2015, OWCP denied appellant’s request for reconsideration
of the November 18, 2014 decision without reviewing the merits.
On August 11, 2015 OWCP received appellant’s representative request for
reconsideration of the November 18, 2014 decision denying wage-loss compensation.
Appellant’s representative contended that OWCP erred in its analysis of causal relationship and
the denial of appellant’s claim for wage-loss compensation. He further contended that appellant
was entitled to wage-loss compensation and placement on the periodic rolls for temporary total
disability.
By decision dated November 6, 2015, OWCP denied reconsideration of the
November 18, 2014 decision without reviewing the merits.
On November 19, 2015 OWCP received a letter dated November 12, 2015 from
appellant’s representative requesting reconsideration. Appellant’s representative argued that
OWCP has misinterpreted FECA statute in denying appellant wage-loss compensation for his
accepted condition and that appellant should be compensated for his wage-loss and/or placed on
the periodic rolls for temporary total disability. He argued that the medical evidence submitted
established that appellant’s disability was causally related to the accepted work condition. In
support of his request, appellant submitted medical evidence as set forth below.
In an October 26, 2015 report, Dr. Armanious reviewed the medical evidence and noted
the accepted conditions were bilateral carpal tunnel syndrome, right and middle trigger fingers,
and radial styloid tenosynovitis. He concluded that there was no doubt that appellant sustained
wage loss due to the accepted employment conditions and should be granted wage-loss
compensation.
In an August 21, 2015 report, Dr. Ahn opined that appellant was totally disabled due to
the conditions accepted by OWCP. He provided results from an electromyography (EMG)
study, described appellant’s duties, and the lack of an accommodation by the employing
establishment.
Dr. Wen, in a November 2, 2015 report, reiterated his opinion that appellant was totally
disabled.
On December 23, 2015 OWCP received appellant’s representative reconsideration
request dated November 26, 2015 noting that he had previously requested reconsideration in a
letter dated November 12, 2015. Appellant’s representative argued that the medical evidence
submitted was sufficient to warrant wage-loss compensation and placement on the periodic rolls
for temporary total disability.

4

By decision dated December 24, 2015, OWCP denied appellant’s claim as it found the
request to be untimely filed and failed to establish clear evidence of error.6
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.7
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.8
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application demonstrates clear evidence of
error.9 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review demonstrates clear evidence of error on the part of
OWCP.10
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.11 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.12 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.13 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of

6

The Board also notes that OWCP has not responded to counsel’s outstanding request for reconsideration on the
denial of appellant’s emotional condition claim. Lacking a final decision by OWCP, that issue is therefore not
before the Board. See 20 C.F.R. § 501.2(c).
7

20 C.F.R. § 10.607(a).

8

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(c)
(October 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.5(a).
11

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

12

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

13

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

14

See supra note 12.

5

record and whether the new evidence demonstrates clear error on the part of OWCP.15 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.16
OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new
regulations provide that the date of the reconsideration request for timeliness purposes was
changed from the date the request was mailed to the date the request was received by OWCP.17
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. As noted above, an application for reconsideration must be received
within one year of the date of OWCP’s decision for which review is sought.18 As appellant’s
request for reconsideration was not received by OWCP until November 19, 2015, more than one
year after issuance of the most recent merit decision dated November 18, 2014, it was untimely.
Consequently, he must demonstrate clear evidence of error by OWCP in its decision finding that
he was not entitled to wage-loss compensation for his accepted bilateral carpal tunnel condition,
right and middle finger trigger fingers, and de Quervain’s tenosynovitis.19
In accordance with internal guidelines and Board precedent, OWCP properly proceeded
to perform a limited review to determine whether appellant’s application for review
demonstrated clear evidence of error, which would warrant reopening his case for merit review
under section 8128(a) of FECA, notwithstanding the untimeliness of his application. It reviewed
the evidence submitted in support of his application for review, but found that it did not
demonstrate that OWCP’s prior decisions were in error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of OWCP’s decision and is
insufficient to demonstrate clear evidence of error. The underlying issue is wage-loss
compensation due to his accepted bilateral carpal tunnel condition, right and middle finger
trigger fingers, and de Quervain’s tenosynovitis.
The medical evidence submitted included reports from Dr. Armanious, Dr. Ahn, and
Dr. Wen. In his October 26, 2015 report, Dr. Armanious noted the accepted conditions and
opined that appellant should be granted wage-loss compensation due to the accepted conditions.
Dr. Ahn, in his August 21, 2015 report, reiterated his opinion that appellant was totally disabled
15

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

Leon D. Faidley, Jr., supra note 8.

17

20 C.F.R. § 10.607.

18

Id. at § 10.607(a).

19

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

6

due to the accepted conditions. In a November 2, 2015 report, Dr. Wen reiterated that
appellant’s emotional condition was employment related and that he was totally disabled.
Dr. Wen’s report does not find that appellant was totally disabled due to the accepted condition.
The reports from Drs. Armanious and Dr. Ahn are duplicative of prior reports submitted.20 The
term clear evidence of error is intended to represent a difficult standard. The claimant must
present evidence which on its face shows that OWCP made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which
if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error and would not require a review of a case.21
Appellant has not, through the reports from Dr. Ahn, Dr. Armanious, and Dr. Wen, and
as required by 20 C.F.R. § 10.607(b), demonstrated clear evidence of error on the part of OWCP
in finding that he was entitled to wage-loss compensation for the period January 19, 2011
through February 28, 2014. His request for reconsideration does not establish on its face that
OWCP’s November 18, 2014 merit decision was erroneous. Therefore, the Board finds that
appellant has not demonstrated clear evidence of error in OWCP’s finding that he failed to
establish entitlement to wage-loss compensation for the period January 19, 2011 through
February 28, 2014.
The Board finds that OWCP properly denied appellant’s reconsideration request as it was
untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant’s representative asserts that OWCP has lost and misplaced medical
evidence. He also asserts that the evidence of record establishes appellant’s entitlement to wageloss compensation for the accepted carpal tunnel condition. However, as noted, the Board does
not have jurisdiction over the merits of the claim. In addition, appellant’s representative repeated
his reconsideration arguments on appeal. As noted above, these arguments are insufficient to
demonstrate clear evidence of error.
CONCLUSION
The Board finds that appellant’s application for reconsideration was untimely filed and
failed to show clear evidence of error.

20

See A.F., Docket No. 11-1297 (issued December 20, 2011); D.K., 59 ECAB 141 (2007) (evidence which
repeats or duplicates evidence already in the case record does not constitute a basis for reopening a case).
21

J.S., Docket No. 10-385 (issued September 15, 2010); James R. Mirra, 56 ECAB 738 (2005); Annie L.
Billingsley, 50 ECAB 210 (1998).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 24, 2015 is affirmed.
Issued: October 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8