United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE TREASURY,
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INTERNAL REVENUE SERVICE,
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Chamblee, GA, Employer
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___________________________________________ )
R.S., Appellant

Appearances:

Docket No. 07-1252
Issued: December 17, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On April 5, 2007 appellant filed a timely appeal of the March 19, 2007 decision of the
Office of Workers’ Compensation Programs, which found that she received an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues on appeal are: (1) whether the Office properly determined that appellant
received an overpayment of $1,889.57 from April 12, 2004 to May 13, 2006; (2) whether the
Office properly denied waiver of the overpayment; and (3) whether the Office properly required
repayment of the overpayment by deducting $60.00 from continuing compensation payments.
FACTUAL HISTORY
On February 17, 2004 appellant, then a 58-year-old seasonal tax examiner, filed a claim
alleging that on February 10, 2004 she injured her back when she fell out of her chair while in

the performance of duty. The Office accepted that she sustained a cervical strain, cervical
radiculopathy, lumbar strain and lumbar radiculopathy. Appellant stopped work on February 18,
2004 and did not return.1
A daily roll payment sheet and a daily computation log dated May 24, 2004 noted that
appellant’s annual salary was $23,863.00 effective February 18, 2004. The documents indicated
that there were no health benefits codes and no health benefits withholding dates.
In a letter dated June 8, 2004, the Office set forth the conditions by which appellant
would be paid compensation benefits. The Office noted that for the period May 16 to June 12,
2004 appellant would be paid net compensation of $1,506.08. The Office noted that no health
benefits, basic or optional life insurance would be deducted from the payments. The Office
advised appellant to contact the Office if she had health benefits, basic or optional life insurance
coverage.
In a letter dated December 21, 2004, the Office requested that the employing
establishment provide documentation confirming appellant’s enrollment in a health benefits plan
and advise how the deductions were paid since February 10, 2004.
On September 15, 2005 the employing establishment submitted a health benefits election
form dated February 3, 2003, which noted that appellant elected Kaiser Permanente health
insurance.
In a statement dated May 10, 2006, appellant advised that on four occasions she was
threatened with termination of her health care benefits and requested clarification of her health
benefits status.
In a memorandum dated May 25, 2006, the Office advised that appellant was entitled to
health benefits (code F81) for the period April 12, 2004 to May 13, 2006; however, health
benefit deductions were never made from her compensation benefits. The Office noted that the
agency terminated appellant’s health benefits in error and a reinstatement was processed by the
insurance carrier; but health benefit deductions from her compensation were never initiated by
the employer.
In a memorandum to the file dated June 1, 2006, the Office claims examiner noted that
there was overpayment of compensation in appellant’s case as health benefits insurance was not
deducted from her compensation for the period February 12, 2004 to May 13, 2006.
In a periodic disability worksheet dated June 6, 2006, the Office noted that health benefits
were deducted from appellant’s compensation benefits, as of June 11, 2006, in the amount of
$77.18 per pay period. In correspondence dated June 7, 2006, the Office responded to a
congressional inquiry and advised that appellant was entitled to health benefits. The Office
indicated that the employing establishment terminated appellant’s health benefits in error;
however, the Office retroactively reinstated benefits effective April 12, 2004. In a memorandum
1

The record reflects that appellant was employed as a full-time seasonal tax examiner who worked from January
to May and was in furlough status the rest of the year.

2

dated June 26, 2006, the Office provided compensation payment information for appellant noting
that she was a full-time seasonal employee who was employed for over one year. The Office
noted that appellant’s pay rate effective February 18, 2004 was $509.11 per week and that a
health benefit arrearage would be calculated on June 26, 2006.
In a supplemental roll payment worksheet dated June 26, 2006, the Office noted that,
from April 12, 2004 to June 10, 2006, appellant’s weekly pay rate was $517.34 and the
compensation rate was three-quarters. The worksheet noted that during this period there were no
deductions for health insurance or basic and optional life insurance. The Office calculated that
health benefits (code F81) premiums for the period April 12, 2004 to May 13, 2006 were
$1,889.57. In a manual adjustment form dated June 26, 2006, the Office noted that there was an
overpayment of compensation as health benefits were not deducted for the period April 12, 2004
to May 13, 2006. The Office noted that the health benefit deductions began on May 14, 2006.
The form noted that for the period April 12, 2004 to May 13, 2006 appellant’s cost for health
benefits was $1,889.57. In a periodic disability worksheet dated June 27, 2006, the Office noted
that from June 11 to July 8, 2006, appellant’s weekly pay rate was $509.11, the compensation
rate was three-quarters and health benefits were deducted from appellant’s compensation in the
amount of $77.18.
In a preliminary overpayment determination dated July 24, 2006, the Office advised
appellant that she had received a $1,889.57 overpayment because health insurance premiums
were not deducted for the period April 12, 2004 to May 13, 2006. The Office made a
preliminary finding that appellant was without fault in creating the overpayment. The Office
informed appellant that, if she believed she should receive a waiver of the overpayment, she
should complete a financial recovery questionnaire form and submit documents such as income
tax returns, bank statements, bills, canceled checks, pay slips and other records to support her
claimed income and expenses.
On August 15, 2006 appellant advised that she was the victim of errors and oversights on
the part of the Office with regard to the repeated cancellation of her health insurance. She
indicated that the claims examiner in her case assured her that the health insurance cancellation
was a mistake which would be corrected immediately but appellant would be responsible for the
overpayment. Appellant requested that the payments be spread out over several months due to
her severe physical and financial problems. She indicated that she was billed $128.52 which she
was informed would be applied to a partial payment to the outstanding balance of the premiums
owed; however, this amount was not deducted from the preliminary overpayment determination.
Appellant advised that the preliminary overpayment determination stated that she was overpaid
$1,889.57 in benefits because health benefit premiums were not deducted from her temporary
total disability compensation for the period April 12, 2004 to May 13, 2006 and that she was
without fault in this matter. She stated: “since I agree totally with these findings, there is no
need for me to present new evidence or to request a hearing or waiver.” Appellant indicated that
she could not explain the repeated mistakes in her claim but complied with every request and
was forthright in providing all the information that the Office requested.
By decision dated March 19, 2007, the Office found that appellant received an
overpayment of compensation in the amount of $1,889.57 that occurred because health benefit
premiums were not deducted from April 12, 2004 to May 13, 2006. The Office found that she

3

was without fault in the creation of the overpayment, but that waiver of recovery of the
overpayment was not warranted. The Office specifically noted that appellant’s correspondence
dated August 15, 2006 noted that she agreed with the preliminary overpayment determination
and that she would not submit new evidence or to request a hearing or a waiver of the
overpayment. Appellant did not submit the overpayment questionnaire or any further evidence.
The Office found that the sum of $60.00 would be withheld from her continuing compensation
effective April 15, 2007.
LEGAL PRECEDENT -- ISSUE 1
The regulations of the Office of Personnel Management (OPM), which administers the
Federal Employees’ Health Benefits (FEHB) Program, provide guidelines for registration,
enrollment and continuation of enrollment of federal employees. In this connection, 5 C.F.R.
§ 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”2
In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and any applicable agency contributions
required under section 8906 of title 5 United States Code, to OPM for deposit in
the Employees Health Benefits Fund.”3
ANALYSIS -- ISSUE 1
In this case, deductions for health insurance premiums were not taken from appellant’s
compensation payments for the period April 12, 2004 to May 13, 2006. The Office calculated
that health benefits of $1,889.57 should have been deducted from appellant’s compensation
during the above period. The Office noted that the employing establishment terminated
appellant’s health benefits in error but retroactively reinstated the benefits effective
April 12, 2004. As no health benefit deductions were made from her compensation during that
time period and there is no evidence that appellant cancelled her health benefits enrollment, the
Board finds that an overpayment was created in the amount of $1,889.57 due to the under
withholding of health insurance premiums. Appellant does not dispute that she received the
overpayment in question nor does she dispute the amount of the overpayment. Rather, in
correspondence dated August 15, 2006, she noted that she agreed with the preliminary
2

See 5 C.F.R. § 890.502(a)(1). See John Skarbek, 53 ECAB 630 (2002).

3

See 5 C.F.R. § 890.502(c).

4

overpayment determination and would not submit new evidence or request a hearing or a waiver
of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of [the Act] or would be
against equity and good conscience.”4
Office regulations, at 20 C.F.R. § 10.438, state:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [the Office]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”5
ANALYSIS -- ISSUE 2
In response to the Office’s preliminary finding of an overpayment of compensation on
July 24, 2006, appellant did not submit any of the requested information on income, expenses
and assets within 30 days or at any time prior to the Office’s issuance of its March 19, 2007
decision denying waiver of the overpayment. She thus, failed to submit sufficient evidence, as
requested by the Office in its July 24, 2006 letter, showing that recovery would defeat the
purpose of the Act or would be against equity and good conscience. Accordingly, the Office
properly denied waiver of the overpayment pursuant to 20 C.F.R. § 10.438(b) of its regulations.

4

5 U.S.C. § 8129.

5

20 C.F.R. § 10.438.

5

LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act.6 Section
10.441(a) of the regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”7
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under the
Act. As noted, appellant did not submit an overpayment recovery questionnaire or other
financial information as the Office requested prior to the March 19, 2007 overpayment decision.
The overpaid individual is responsible for providing information about income, expenses and
assets as specified by the Office.8 When, as in this case, an individual fails to provide requested
information on income, expenses and assets, the Office should follow minimum collection
guidelines, which state in general that government claims should be collected in full and that, if
an installment plan is accepted, the installments should be large enough to collect the debt
promptly.9 The Board finds that the Office did not abuse its discretion in following those
guidelines in this case, where appellant has not submitted financial information and deducting
$60.00 every 28 days.
CONCLUSION
The Board finds that appellant received an overpayment of $1,889.57 in compensation
from April 12, 2004 to May 13, 2006. The Board also finds that the Office did not abuse its
discretion in denying waiver of the overpayment. The Board further finds that the Office
properly determined to recover the overpayment from continuing compensation payments.

6

Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

7

20 C.F.R. § 10.441(a).

8

20 C.F.R. § 10.438.

9

Ralph P. Beachum, Sr., 55 ECAB 442, 448 (2004); Gail M. Roe, 47 ECAB 268 (1995).

6

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 08-1096
Issued: November 25, 2008

Case Submitted on the Record

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

JURISDICTION
On March 4, 2008 appellant filed a timely appeal from the January 28, 2008 merit
decision of the Office of Workers’ Compensation Programs, which denied modification of the
termination of her compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for
refusing suitable work.
FACTUAL HISTORY
On July 3, 2001 appellant, then a 46-year-old rural carrier, broke her hip in the
performance of duty. She thought her vehicle was going to turn over and she jumped out. The
Office accepted her claim for a closed fracture of the pelvis and blunt trauma to the head.
Appellant received compensation for temporary total disability on the periodic rolls. On

November 19, 2001 she returned to limited duty for four hours a day. In March 2002 appellant
began work hardening.
On June 18, 2002 appellant underwent a functional capacity evaluation (FCE), which
found that she was capable of returning to modified duty for eight hours a day. The FCE
reviewed the physical demands of appellant’s regular position as a rural carrier and found that
she could not lift 70 pounds or carry 45 pounds, as required. The FCE specified limitations on
these activities and indicated that appellant could otherwise perform her regular duties. On
August 14, 2002 Dr. James P. Stannard, appellant’s orthopedic surgeon, reviewed the FCE and
agreed with all of its findings: “The FCE limitations, I believe, should be adhered to and I sign
off on those.” On April 13, 2004 he wrote: “[Appellant] had the FCE on July 28, 2002. She
must work within the restrictions of the FCE which was in the light demand level up to an eighthour day -- permanently.”
On June 23, 2005 the employer offered appellant permanent accommodation in her
regular position as a rural carrier: “Based on permanent work restrictions determined by the
FCE, it has been determined that with accommodations provided by management you can
perform all the duties of your regular position with the postal service.” The employer described
the physical requirements and duties of the position and specified the physical restrictions
reported in the FCE.
Appellant rejected the offer. She argued that regular rural routes were not to be
considered for any light-duty assignment. Appellant argued that she could not drive on poor
roads for four to five hours a day and could not perform trunk rotation four to five hours a day to
retrieve mail from the back seat of her vehicle. She also argued that she did not know how to
contact her post office for assistance with parcels or packages exceeding her weight limitation.
On July 18, 2005 the Office found the offered position suitable and currently available. It
gave appellant 30 days to accept and notified her of the statutory penalty for refusing suitable
work. The employer advised that turning around to retrieve mail from the back seat was
considered a safety hazard, so appellant was prohibited from doing it. The employer also
advised that time was built into her schedule several times a day to get out of her vehicle, get part
of the mail from the back seat and put it in the front seat next to her for delivery.
Presenting similar arguments, appellant once again refused the offered position. She
stated: “This offered job and working conditions are not suitable to my work capabilities and
would be intolerably painful for me.”
On August 30, 2005 the Office notified appellant that her reasons for refusing the offer
were unacceptable. It gave her an additional 15 days to accept.
After verifying the offered position remained available to appellant, the Office issued a
final decision on September 26, 2005 terminating her compensation. It found that she refused an
offer of suitable work.
Appellant testified at a July 27, 2006 hearing before an Office hearing representative that
her route could not be modified. She submitted medical reports, a memorandum of
understanding intended to show that she had to relinquish her route and a provision of the
2

collective bargaining agreement: “In the rural carrier craft, at any local installation, regular rural
routes shall not be considered for any light-duty assignment.”
The employer submitted a copy of the memorandum of understanding and noted that it
gave the employer the choice not to have appellant relinquish her route if the employer
determined, after review of the medical documentation, that she, with reasonable assistance, was
able to case and deliver her entire route. The employer argued that the provision of the collective
bargaining agreement appellant cited was inapplicable, as the offer was not for “light duty” but
for a permanent accommodated assignment, which the memorandum of understanding
authorized in lieu of having appellant relinquish her route.
In a decision dated October 2, 2006, the hearing representative affirmed the termination
of appellant’s compensation. The hearing representative found that the offered position was
suitable, that the Office complied with all procedural requirements and that appellant refused an
offer of suitable employment.
Appellant requested reconsideration. She argued that the job was not suitable and not
consistent with her medical restrictions. Appellant noted that after her FCE, Dr. Stannard
determined that she was not able to safely meet the work demands of a rural carrier. She
submitted Dr. Stannard’s September 19, 2007 report, which stated that her situation remained
unchanged since the FCE in 2002:
“[Appellant] is still not able to perform her rural route duties as a postal worker,
nor is she capable of stooping, repetitive squatting, climbing on a ladder and
repetitive trunk rotation (as demanded by her job to retrieve mail from the back of
a vehicle). She is physically unable to sit in a straddle position, as required by her
job, secondary to pain. … Again, as per her FCE performed in June 2002,
[appellant] is able to return to modified work duty, with lifting and carrying to her
abilities as stated on page 2 of her FCE evaluation.”
In a decision dated January 28, 2008, the Office reviewed the merits of appellant’s claim
and denied modification of its prior decision. It noted that appellant was offered a modified
version of her rural carrier position that was within the physical restrictions outlined in the 2002
FCE. The Office also noted that appellant had submitted no medical evidence clearly explaining
that she could not perform the permanent accommodation assignment.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act states that a partially
disabled employee who refuses to seek suitable work, or refuses or neglects to work after
suitable work is offered to, procured by, or secured for her is not entitled to compensation.1 The
Office has authority under this section to terminate compensation for any partially disabled
employee who refuses or neglects suitable work when it is offered. Before compensation can be
terminated, however, it has the burden of demonstrating that the employee can work, setting
forth the specific restrictions, if any, on the employee’s ability to work and has the burden of
1

5 U.S.C. § 8106(c)(2).

3

establishing that a position has been offered within the employee’s work restrictions and setting
forth the specific job requirements of the position.2 In other words, to justify termination of
compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the
burden of showing that the work offered to and refused or neglected by appellant was suitable.3
ANALYSIS
The Office has met its burden to demonstrate that appellant can work. Indeed, appellant
began working part-time limited duty in late 2001. After work hardening, an FCE in 2002
showed that she was capable of working eight hours a day with restrictions4 and her orthopedic
surgeon, Dr. Stannard, signed off on the findings. He reported that appellant could work eight
hours a day within the restrictions outlined by the FCE. So the record establishes that appellant
was able to return to work with specific restrictions. The only question that remains is whether
the work offered to and refused by appellant was suitable.
On June 23, 2005 the employer offered appellant a permanent job accommodation, a
modified version of her rural carrier position reflecting the physical limitations outlined by the
FCE. The Board has carefully reviewed the specific job requirements of the offered position and
finds that they are consistent with the restrictions outlined in the FCE. The offer indicated that
the postmaster would make whatever accommodations were necessary to allow appellant to work
within her restrictions, including, but not limited to, giving appellant the option of placing mail
in half trays, making multiple trips to her vehicle to load and unload her mail, receiving
assistance to load and unload her vehicle, assigning packages exceeding her weight limit to
someone else for delivery and having someone else perform carrier pick-up service.
Appellant nonetheless rejected the offer. She argued that regular rural routes were not to
be considered for any light-duty assignment, but the employer explained that this was not light
duty; this was a permanent accommodated assignment. Appellant argued, and Dr. Stannard
repeated, that the position required repetitive trunk rotation while sitting. But the employer made
clear that this was not a requirement of the position; it was a safety hazard and a prohibited
practice. Appellant argued that she could not drive on poor roads for four to five hours a day.
But Dr. Stannard did not restrict her from driving. Her fear that intolerable pain would prohibit
her from performing the duties of the offered position is speculative and not reasonable grounds
for rejecting the employer’s offer.5

2

Frank J. Sell, Jr., 34 ECAB 547 (1983).

3

Glen L. Sinclair, 36 ECAB 664 (1985).

4

This finding showed that appellant had a wage-earning capacity that was greater than the part-time work she
was currently performing. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining WageEarning Capacity, Chapter 2.814.5.a (2) (July 1997).
5

If appellant had developed intolerable pain after accepting the offer and attempting her duties, and Dr. Stannard
had reported that she was, in fact, disabled from the modified assignment, appellant could have been eligible for
continuing compensation. But her rejection of the offer precluded those events from unfolding. The Office cannot
allow claimants to self-certify their disability for work.

4

Appellant further justified her rejection of the offer because it appeared that a
memorandum of understanding required her to relinquish the route to which the employer was
attempting to return her. She submitted a copy of the memorandum to support her argument, but
she deleted a critical passage, one that gave the employer the choice of allowing her to keep her
route if the employer determined, after review of the medical documentation, that she, with
reasonable assistance, was able to case and deliver the entire route. The June 23, 2005 offer thus
appears consistent with the fuller, unedited version of the memorandum of understanding, which
the employer provided.
Appellant contended that the offered position was not medically suitable, but she has
submitted no medical opinion directly supporting this contention. Dr. Stannard signed off on the
FCE findings, and the June 23, 2005 offer strictly followed those findings. His September 19,
2007 report states that appellant is still not able to perform her rural route duties, but this is not
the issue. The employer did not attempt to return her to her regular rural carrier position. The
employer attempted to reassign her to a modified job, consistent with the FCE and the
memorandum of understanding. Dr. Stannard reported that appellant’s situation remained
unchanged since the FCE in 2002 and that she was able to return to modified-work duty, with
lifting and carrying to her abilities as stated in the FCE. This is what the July 23, 2005 job offer
provided.6
The Board finds that appellant refused an offer of suitable work and is subject to the
penalty under 5 U.S.C. § 8106(c)(2). The Office has met its burden of proof to justify the
termination of her compensation.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation for
refusing suitable work.

6

Although Dr. Stannard reported that appellant’s situation remained unchanged since the 2002 FCE, his comment
on stooping, squatting and climbing a ladder do not themselves appear to be completely consistent with the FCE,
which found that appellant could occasionally squat and stoop and climb a ladder. The Board finds that
Dr. Stannard’s opinion is not well rationalized on this point.

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
McGUIRE VETERANS ADMINISTRATION
MEDICAL CENTER, Richmond, VA, Employer
__________________________________________

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Appearances:
Charles W. Jackson, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2050
Issued: February 15, 2008

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 July 30, 2007 appellant filed a timely appeal from a May 11, 2007 decision of the
Office of Workers’ Compensation Programs which denied her request for reconsideration on the
grounds that the request was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed from the last merit decision dated November 19, 2004
to the filing of this appeal on July 30, 2007, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her February 15, 2007 request was untimely
filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On March 28, 2003 appellant, then a 48-year-old practical nurse, filed a claim for a left
knee chondromalacia patella, medial meniscus tear and lateral meniscus tear. She stopped work

on February 2, 2003 and underwent arthroscopic surgery on February 5, 2003.
On
September 25, 2003 the Office accepted the claim for aggravation chondromalacia left knee and
paid appropriate benefits. On October 15, 2003 appellant returned to work full time in a limitedduty position with restrictions.
On May 7, 2004 appellant’s representative indicated that appellant got her license as a
registered nurse during late 2002 or early 2003 but the employing establishment continued to
employ her as a licensed practical nurse. He requested that she be compensated at the registered
nurse rate of pay with the eight percent retention bonus as her restrictions due to the work-related
injury were permanent.
By decision dated November 19, 2004, the Office determined that appellant’s position of
practical nurse, effective October 15, 2003, fairly and reasonably represented her wage-earning
capacity. The Office additionally found that appellant was not entitled to compensation for wage
loss as her actual earnings met or exceeded the current wages of the position held when injured.
On May 6, 2005 appellant filed a Form CA-7, claim for compensation, for the eight
percent retention bonus for wages lost from January 1, 2004 and continuing. In a June 1, 2005
letter, the Office indicated that her claim could not be processed as it had issued a zero percent
loss of wage-earning capacity determination on November 19, 2004. Appellant was advised to
follow her appeal options from the November 19, 2004 decision.1
On June 2, 2005 appellant requested reconsideration. By decision dated September 19,
2005, the Office denied her June 2, 2005 request for reconsideration of its November 19, 2004
decision as her letter neither raised substantive legal questions nor included any new or relevant
evidence. It noted that the record was void of any information documenting that the employing
establishment had a retention bonus, what a retention bonus was, and any evidence which
indicated that appellant was eligible or entitled to such a retention bonus, if it existed.2
In a November 17, 2005 letter, which the Office received on November 21, 2005,
appellant requested reconsideration of the Office’s September 19, 2005 decision. In support of
her claim that the employing establishment had a retention bonus, a June 19, 2002 letter from
appellant, which indicated her understanding of a retention allowance, and copies of Standard

1

The record reflects that, on February 4, 2005, appellant claimed a schedule award for her left knee condition and
on June 2, 2005 filed a CA-7 form claiming a schedule award. In numerous letters, both appellant and her
representative inquired about the status of her schedule award claim. On November 22, 2006 the Office advised her
that additional evidence regarding the claimed schedule award was needed. Appellant and her representative
continued to inquire about the status of her schedule award claim and submitted duplicative copies of evidence
previously of record, including a November 13, 2003 report from Dr. Geoffrey B. Higgs, an orthopedic surgeon and
appellant’s treating physician, indicating that she reached maximum medical improvement on November 13, 2003
and had 10 percent impairment of her left leg. She also requested, in a December 26, 2006 letter, a change in her
treating physician from Dr. Higgs to Dr. Thomas Loughram. The Office subsequently began receiving reports from
Dr. Loughram. On May 11, 2007 the Office advised appellant that her claim for a schedule award could not be
processed without a current impairment rating. As there is no final Office decision on her schedule award claim, the
Board does not have jurisdiction over this issue. 20 C.F.R. § 501.2(c).
2

The Office originally issued a September 12, 2005 decision denying reconsideration.

2

Form 50-B, notification of personnel action, dated November 30, 2003 and September 30, 2005
were submitted.
On June 15, 2006 appellant’s representative noted that this was his second request for
reconsideration of the Office’s September 19, 2005 decision. In a letter dated June 21, 2006, the
Office indicated that it had issued a decision dated June 12, 2005 in response to appellant’s
request for reconsideration of the Office’s November 19, 2004 decision.3
On June 27, 2006 appellant’s representative again inquired as to the status of his
November 17, 2005 request for reconsideration of the Office’s September 19, 2005 decision. In
a February 15, 2007 letter, he again requested reconsideration. Duplicative copies of material
previously of record were resubmitted.
By decision dated May 11, 2007, the Office denied appellant’s February 15, 2007 request
for reconsideration without a merit review, finding that she had not timely requested
reconsideration and had failed to submit evidence sufficient to establish clear evidence of error.
The Office stated that appellant was required to present evidence which showed that the Office
committed an error and appellant did not present clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.4
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.5 The Office’s procedures require that
an imaged copy of the envelope that enclosed the request for reconsideration should be in the
case record. If there is no postmark, or it is not legible, other evidence such as a certified mail
receipt, a certificate of service and affidavits may be used to establish the mailing date. In the
absence of such evidence, the date of the letter itself should be used.6
The Office may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, the Office
must nevertheless undertake a limited review to determine whether the application establishes
clear evidence of error.7 Office regulations and procedure provide that the Office 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 shows clear evidence of error on the

3

The record does not contain any Office decision dated June 12, 2005.

4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.607(b); Gladys Mercado, 52 ECAB 255 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).

7

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

3

part of the Office.8 To establish clear evidence of error, a claimant must submit evidence
relevant to the issue which was decided by the Office.9 The evidence must be positive, precise
and explicit and must manifest on its face that the Office committed an error.10 Evidence which
does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error. It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error in the most
recent merit decision. To show clear evidence of error, the evidence submitted must be of
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of the decision. The Board makes an independent
determination of whether a claimant has submitted clear evidence of error.11
ANALYSIS
In a May 11, 2007 decision, the Office denied appellant’s request for further review of
the merits of her claim on the grounds that her February 15, 2007 reconsideration request was
untimely filed and failed to demonstrate clear evidence of error of its November 19, 2004 wageearning capacity determination. The Board notes, however, that the Office never acted on
appellant’s November 17, 2005 reconsideration request, which it received on
November 21, 2005.12 Thus, the May 11, 2007 decision is premature at this time.
The last merit decision of record was the Office’s November 19, 2004 wage-earning
capacity determination. Appellant’s reconsideration letter dated November 17, 2005 was not
added to the record until November 21, 2005 but the envelope bearing the letter was not retained
by the Office. Chapter 2.1602.3(b)(1) of the Office’s procedure manual provides that timeliness
for a reconsideration request is determined not by the date the Office receives the request, but by
the postmark on the envelope. As the Office did not retain the envelope for appellant’s
November 17, 2005 letter, Office procedures state that, when there is no evidence to establish the
mailing date, the date of the letter itself should be used. For this reason, the Board finds that
appellant’s reconsideration request was filed on November 17, 2005 and therefore constituted a
timely reconsideration filed within one year of the Office’s November 19, 2004 decision.

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3(d) (January 2004). Office procedure further provides that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the Office made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

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

10

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

11

Nancy Marcano, 50 ECAB 110 (1998).

12

Contrary to the Office’s statement in its June 21, 2006 letter, the record contains no June 12, 2005 Office
decision.

4

The Board will set aside the Office’s May 11, 2007 decision denying appellant’s
reconsideration request as untimely and failing to show clear evidence of error as premature and
will remand the case to the Office for the purpose of exercising its discretionary authority under
5 U.S.C. § 8128(a) with respect to appellant’s timely November 17, 2005 reconsideration
request. On remand, the Office shall consider appellant’s timely November 17, 2005
reconsideration request, along with any argument or evidence submitted in support thereof, and
shall determine whether appellant may obtain review of the merits of her claim under the
relevant standards for a timely reconsideration request.13 After such development as it deems
necessary, the Office shall issue an appropriate decision regarding appellant’s claim.
CONCLUSION
The Board finds that the Office’s May 11, 2007 decision denying appellant’s
February 15, 2007 reconsideration request on the grounds that it was untimely filed and failed to
demonstrate clear evidence of error is premature. The case is remanded to the Office for proper
consideration of appellant’s timely November 17, 2005 reconsideration request, including any
argument or evidence submitted in support thereof.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decision dated May 11, 2007 is set aside and the case remanded to the Office for further action
consistent with this decision of the Board.
Issued: February 15, 2008
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
13

20 C.F.R. § 10.606.

5


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

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

Docket No. 12-1271
Issued: December 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 14, 2012 appellant, through her attorney, filed a timely appeal from a
January 31, 2012 merit decision of the Office of Workers’ Compensation Programs’ (OWCP)
hearing representative who denied her schedule award claim. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for permanent impairment
of the left leg due to her April 9, 2002 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 OWCP accepted that on April 9, 2002
appellant, then a 45-year-old clerk, sustained a left knee injury when she tripped on a rubber mat
and fell. Appellant filed a schedule award claim. OWCP found a conflict in medical opinion
arose between Dr. David Weiss, an osteopath, and Dr. Arnold T. Berman, a Board-certified
orthopedic surgeon and medical adviser. It referred her to a Dr. Thomas O’Dowd for an
impartial medical examination.3
In an April 22, 2008 report, Dr. O’Dowd disagreed with the findings of Dr. Weiss and
Dr. Berman. He concluded that appellant did not sustain any left lower extremity impairment as
a result of the April 9, 2002 work-related injury.4 Dr. Morley Slutsky, Board-certified in
occupational medicine and an OWCP medical adviser, agreed with Dr. O’Dowd’s finding.5 In a
decision dated October 23, 2008, OWCP denied appellant’s schedule award claim based on
insufficient medical evidence.
Appellant submitted an appeal to the Board.6 By decision dated August 10, 2010, the
Board found that a conflict in medical opinion still existed regarding whether she sustained
permanent impairment. It remanded the case to Dr. O’Dowd for supplemental report clarifying
the extent of any permanent impairment in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2008)

2

Docket No. 09-2169 (issued August 10, 2010).

3

In an August 2, 2004 report, Dr. Weiss concluded that appellant had 11 percent permanent impairment of the
left lower extremity with maximum medical improvement on August 2, 2004. In a December 4, 2007 report,
Dr. Berman determined that appellant had six percent permanent impairment of the left lower extremity with
maximum medical improvement on August 2, 2004.
4

In the April 22, 2008 report, Dr. O’Dowd found that the medical evidence, specifically a May 2002 magnetic
resonance imaging (MRI) scan report, did not support that appellant sustained left knee internal derangement but
demonstrated that she sustained a left knee contusion leading to bursitis, which had since resolved. He also found
that appellant suffered from preexisting left knee degenerative joint disease, which was not employment related.
Dr. O’Dowd explained that if she suffered from left knee internal derangement then he agreed with Dr. Berman’s
finding that she had six percent left lower extremity impairment. However, since the medical evidence did not
support a diagnosis of internal derangement of the left knee he found that appellant did not suffer any permanent
impairment as a result of the April 9, 2002 work-related injury.
5

In a September 15, 2008 report, Dr. Slutsky reviewed Dr. O’Dowd’s report and agreed that appellant suffered
from preexisting left knee degenerative joint disease agreed and noted that if this condition was accepted then an
x-ray needed to be taken according to the A.M.A., Guides. He also agreed with Dr. O’Dowd’s determination that
appellant’s accepted left knee condition had long resolved and that appellant did not suffer from any other left knee
condition related to her accepted injury. Therefore, unless OWCP accepted appellant’s claim for left knee
degenerative joint disease she did not have a left knee permanent impairment as a result of the April 9, 2002
work-related injury. Dr. Slutsky noted the date of maximum medical improvement as April 22, 2008.
6

Following the October 23, 2008 denial decision, appellant, through counsel, requested a hearing that was held
on March 17, 2009. In a May 21, 2009 decision, OWCP’s hearing representative affirmed the December 23, 2008
denial decision finding that the medical evidence failed to establish that appellant sustained a work-related
permanent impairment and was entitled to a schedule award.

2

(A.M.A., Guides).7 The facts of the claim, as set forth in the Board’s prior decision, are
incorporated herein by reference.
In a September 20, 2010 supplemental report, Dr. O’Dowd noted that according to the
statement of accepted facts, OWCP accepted left knee internal derangement. He explained that
this condition was a very nonspecific diagnosis that was only used until a proper diagnosis was
made. Dr. O’Dowd stated that the diagnosis of “internal derangement” would be a contusion of
the knee and preexisting degenerative joint disease. He reported that appellant’s left knee
contusion had resolved and was not the cause of any permanent disability or impairment.
Dr. O’Dowd also explained that her permanent disability was related to her chronic arthritis,
which was not work related. He concluded that appellant did not sustain any permanent
impairment as a result of her work-related injury.
In a December 16, 2010 report, Dr. Henry J. Magliato, a Board-certified orthopedic
surgeon, reviewed the statement of accepted facts and appellant’s history, including
Dr. O’Dowd’s report. He noted that Dr. O’Dowd did not reference the sixth edition of the
A.M.A., Guides, but did not need to utilize the A.M.A., Guides as he found that appellant’s
injury had resolved and she did not sustain any permanent impairment as a result of her
work-related injury. Dr. Magliato agreed with Dr. O’Dowd’s finding that appellant had
preexisting arthritis unrelated to her job. Utilizing the sixth edition of the A.M.A., Guides, he
concluded that under the Knee Regional Diagnostic Grid, Table 16-3, page 509, appellant would
be in a class 0. Dr. Magliato stated that April 22, 2008 was the date of appellant’s maximum
medical improvement.
In a decision dated February 9, 2011, OWCP modified the acceptance of appellant’s
claim to left knee contusion. It denied her claim for a schedule award as the medical evidence
was insufficient to establish that she sustained permanent impairment due to her accepted work
injury.
On February 16, 2011 appellant, through counsel, submitted a request for an oral hearing,
which was held on June 21, 2011. Counsel contended that Dr. O’Dowd’s September 20, 2010
supplemental report did not address any rating for left knee contusion and stated that Dr. Weiss
recommended a two percent permanent impairment for the left lower extremity because of her
left knee contusion.
In June 20 and August 24, 2011 letters, counsel reiterated that Dr. Weiss determined that
appellant had 2 percent permanent impairment of the left lower extremity for left knee contusion
and 26 percent for preexisting left knee osteoarthritis. According to the sixth edition of the
A.M.A., Guides, these two ratings could not be combined but it was Dr. Weiss’s opinion that the
26 percent impairment for arthritis adequately characterized appellant’s left lower extremity
impairment.

7

The Board also found that the evidence of record established that OWCP properly selected Dr. O’Dowd to serve
as the impartial medical examiner as the record contained a memorandum advising that a Dr. Joseph Harhay was not
selected because he was unable to schedule an appointment in a reasonable amount of time.

3

Dr. Weiss resubmitted his August 2, 2004 report updated to June 17, 2011, to reflect the
sixth edition of the A.M.A., Guides. The findings from 2004 noted a marked right lower
extremity limp and tenderness over the medial joint line and medial joint space. Patellofemoral
compression produced crepitus and pain within the medial and lateral joint compartments.
Utilizing the sixth edition of the A.M.A., Guides, Dr. Weiss concluded that appellant had 2
percent permanent impairment for left knee contusion8 and 26 percent permanent impairment for
left primary knee joint arthritis.9 He explained that the A.M.A., Guides did not allow for more
than one diagnosis for the left knee and provided that the diagnosis that demonstrated the most
clinically accurate impairment should be used. Dr. Weiss opined that the left knee primary knee
joint arthritis adequately characterized the impairment and thus, appellant had 26 percent left
lower extremity impairment with maximum medical improvement on August 2, 2004.
By decision dated September 2, 2011, OWCP’s hearing representative affirmed the
February 9, 2011 decision denying appellant’s claim for a schedule award. It determined that
Dr. O’Dowd’s September 20, 2010 supplemental report constituted the weight of the medical
evidence and established that appellant had no permanent impairment to her left lower extremity
as a result of the accepted work injury.
On September 20, 2011 appellant submitted a request for reconsideration and resubmitted
Dr. Weiss’ updated August 2, 2004 report.
By decision dated January 31, 2012, OWCP denied modification of the February 9, 2011
decision denying appellant’s schedule award claim.
LEGAL PRECEDENT
The schedule award provision of FECA10 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and
8

Dr. Weiss reported that appellant fell under class 1 for left knee contusion and had a default value of one percent
and diagnosed condition (CDX) of 1. Utilizing the grade modifiers for Functional History (GMFH) on Table 16-6,
page 516, grade modifier 2, Physical Examination (GMPE) on Table 16-7, page 517, grade modifier 1 and Clinical
Studies (GMCS) on Table 16-8, page 519, grade modifier 1, he determined that an adjustment of +1 was necessary.
As applied to the Knee Regional Grid, Table 16-3, page 509, appellant’s grade was increased from one to two
percent left lower extremity impairment.
9

Dr. Weiss determined that appellant fell under class 3 for primary knee joint arthritis and had a default value of
30 percent and diagnosis CDX of 3. Utilizing the grade modifiers for functional history on Table 16-6, page 516,
grade modifier 2, and physical examination on Table 16-7, page 517, grade modifier 1, he determined that an
adjustment of -3 was necessary. As applied to the Knee Regional Grid, Table 16-3, page 509, appellant’s grade was
decreased to 26 percent left lower extremity impairment.
10

5 U.S.C. §§ 8101-8193.

4

the Board has concurred in such adoption.11 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.12
The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his or her employment.13 The Board notes that, before applying the
A.M.A., Guides, OWCP must determine whether the claimed impairment of a scheduled
member is causally related to the accepted work injury.14
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.15 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.16 The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.17
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.18 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.19
ANALYSIS
OWCP accepted that on April 9, 2002 appellant sustained a left knee contusion when she
tripped on a rubber mat and fell. She requested a schedule award. OWCP found a conflict in
11

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

12

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
13

Veronica Williams, 56 ECAB 367 (2005); Tammy L. Meehan, 53 ECAB 229 (2001).

14

Michael S. Mina, 57 ECAB 379 (2006).

15

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

16

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

17

Patricia J. Bolleter, 40 ECAB 373 (1988).

18

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
19

B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

medical opinion between appellant’s physician, Dr. Weiss, and Dr. Berman, an OWCP medical
adviser. It referred appellant to Dr. O’Dowd, as an impartial medical examiner, to resolve the
conflict in medical opinion as to the extent and degree of any permanent impairment resulting
from the employment injury.
In April 22, 2008 and September 20, 2010 reports, Dr. O’Dowd reviewed the statement
of accepted facts and noted his diagnoses of left knee contusion and preexisting degenerative
joint disease. He reported that according to a May 2002 MRI scan, appellant’s left knee
contusion had resolved and was not the cause of any permanent disability or impairment.
Dr. O’Dowd also explained that appellant’s permanent disability was related to her chronic
arthritis, which was not work related. Therefore, he concluded that she did not sustain any
permanent impairment as a result of her April 2002 work-related injury. The Board finds that
Dr. O’Dowd’s opinion is sufficiently well rationalized and based upon a proper factual and
medical background. Dr. O’Dowd fully discussed the history of injury and related his
examination findings in support of his opinion. He concluded that appellant did not have any
permanent impairment as a result of her accepted conditions. As noted, the opinion of the
impartial medical specialist is given special weight if it is sufficiently well rationalized and based
upon a proper factual background.20 Dr. O’Dowd thoroughly reviewed appellant’s history and
provided findings on examination. He sufficiently explained how his findings supported his
conclusion that appellant’s left knee condition had resolved and that any permanent disability she
may have was a result of her arthritis condition and not her accepted conditions. The Board finds
that Dr. O’Dowd’s report represents the special weight of the medical evidence.
OWCP’s medical adviser reviewed Dr. O’Dowd’s report and agreed with the findings
that appellant had no permanent impairment as a result of her April 9, 2002 employment injury
because the accepted conditions had resolved. The Board finds that OWCP properly determined
that the medical evidence did not establish that appellant had any permanent impairment causally
related to her left knee condition and denied her schedule award claim.
Following OWCP’s decision, appellant submitted a June 17, 2011 report from Dr. Weiss,
who provided a copy of his 2004 report updated to reflect the sixth edition of the A.M.A.,
Guides. Dr. Weiss concluded that she had a 26 percent permanent impairment of the left lower
extremity due to her left knee arthritis. He determined that appellant fell under class 3 of the
Knee Regional Grid, Table 16-3, page 511 with default value of 30 percent and utilized grade
modifiers to determine that appellant had 26 percent impairment. The Board notes, however,
that she has to establish impairment to a scheduled member caused by the accepted condition
before an impairment due to a preexisting condition can be assessed.21 Moreover, the report is of
diminished probative value as it was based on a 6-year-old physical examination, not a current
physical evaluation. Dr. Weiss’ report, therefore, is of limited probative value and is insufficient
to overcome the special weight given to Dr. O’Dowd’s impartial medical opinion or to create a
new conflict.

20

Supra note 19.

21

R.B., Docket No. 11-231 (issued August 10, 2011); see generally Thomas P. Lavin, 57 ECAB 353 (2006).

6

On appeal, appellant contends that Dr. O’Dowd’s opinion should not constitute the
weight of medical evidence as he failed to clarify to what extent appellant suffered an
aggravation of her arthritic condition of her left knee or why he diagnosed left knee contusion
instead of left knee internal derangement. She contended that he should have considered her
preexisting condition in his overall impairment rating. The Board finds that Dr. O’Dowd
thoroughly reviewed appellant’s history, conducted an examination, and properly concluded,
based on his findings that her left knee condition had resolved. Dr. O’Dowd found that
appellant’s arthritic condition was not related to her April 9, 2002 employment injury. A
schedule award can be paid for preexisting conditions if the accepted conditions contribute to
permanent impairment. Appellant has only established a contusion as the accepted condition.
There has been no evidence to establish the arthritis of the knee causally related to the
employment incident.22
The Board finds that the medical evidence does not establish that appellant has
permanent impairment causally related to her accepted left knee injury. Consequently, appellant
has failed to establish that she is entitled to a schedule award.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she sustained any permanent
impairment warranting a schedule award.

22

See K.H., Docket No. 09-341 (issued December 30, 2009); R.B., Docket No. 12-518 (issued
November 6, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed.

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
L.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH
ADMINISTRATION,Denver, CO, Employer
__________________________________________

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

Docket No. 13-1173
Issued: September 5, 2013

Case submitted on the record

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

JURISDICTION
On April 17, 2013appellant, through her attorney,filed a timely appeal from a March 7,
2013 Office of Workers’ Compensation Programs’(OWCP) schedule award decision.1 Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant met her burden of proof to establish a permanent
impairment caused by her accepted employment injuries that would entitle her to a schedule
award.

1

The record also contains a March 25, 2013 decision denying appellant’s claim for leave without pay. However,
appellant’s representative has not appealed this decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2011appellant, then a 39-year-old nurse, was injured when her left hand
was caught in an elevator door.3On October 12, 2011 OWCP accepted the claim for contusion of
the left wrist. Appellant returned to work in a full-time, modified capacity shortly after the
injury but also missed intermittent periods of work for which she received compensation.The
record indicates that she stopped all work on November 17, 2011 secondary to an emotional
condition.4
In a letter dated July 19, 2012, appellant’s representative requested a schedule award and
submitted medical evidence. In a report dated May 24, 2012, Dr. Samuel Chan, a Boardcertified internist,noted appellant’s history of injury and treatment and utilized the American
Medical Association,Guides to the Evaluation of Permanent Impairment,(A.M.A.,
Guides)(6th ed. 2008). He related that appellantcontinued to be symptomatic with diffuse forearm
and left wrist pain. Wrist range of motion was within functional limits and no edema was noted.
Dr. Chan indicated that there was a slightly cooler temperature on the left side compared to the
right and there were no mottling changes of the skin. He advised that an October 13, 2011
electromyography (EMG) scan of the left upper extremity was normal. Dr. Chan also indicated
that the magnetic resonance imaging scan of the left arm was normal. He explained that despite
the fact that appellant continued to be symptomatic, her objective findings were essentially
normal. Dr. Chan opined that, despite her subjective complaints, appellant had plateaued. He
noted physical restrictions and addressed permanent impairment. Dr. Chan referred to Figure 153 of the A.M.A., Guidesfor the diagnosis of wrist/strain and contusion and determined that
appellant would qualify for class 1, grade C.5 He referred to Table 15-7 and determined the
grade modifier for functional history, would correlate to a grade modifier 2.6 Dr. Chan referred
to Table 15-8 and determined the grade modifier for physical examination correlated to a grade
modifier of one.7 He referred to Table 15-9and advised that the grade modifier for clinical
studies would also equate to a grade modifier of one.8 Dr. Chan utilized the net adjustment
formula determined that the net adjustment was equal to 1, with an adjustment of 1 and advised
that adjusting 1 level above C, appellant would be eligible for a two percent arm impairment
secondary to the injury that occurred on August 17, 2011.
On July 12, 2012 Dr. Hiep Ritzer, a Board-certified practitioner and treating physician,
noted that appellant had reached maximum medical improvement.

3

The record reflects that appellant also has a claim for an injury on August 2, 2011, which was accepted for a
lumbar and sacral strains. File No. xxxxxx658.
4

The emotional condition has not been accepted as employment related.

5

A.M.A.,Guides 395.

6

Id.at 406.

7

Id.at 411.

8

Id. at 408

2

In a report dated August 10, 2012, an OWCP medical adviser determined that appellant
had no objective basis for left arm impairment. The medical adviser explained that the diagnosisbased impairment was the preferred rating method and that the most impairing diagnosis in the
left wrist region was a sprain/contusion, which was the same diagnosis utilized by Dr. Chan. He
indicated that he disagreed with the grade modifiers assigned by Dr. Chan. The medical adviser
utilized the net adjustment formula and opined that the final net adjustment was -2, final grade
was A and final impairment correlated to zero percent left upper extremity as opposed to the
final impairment of two percent assignedby Dr. Chan.He explained his discrepancies with
Dr. Chan. The medical adviserreferred to Table 15-7 and explained that,for the functional
history grade modifier, appellant would be entitled to a value of 1, as the record did not support
that any functional modifications were required for self-care.9 Forphysical examination grade
modifier, he assigned a value of zero, noting no objective deficits. The medical adviser
acknowledged Dr. Chan’s comment about the left hand being slightly cooler than the right, but
explained that he did not consider this a valid observation as there was no evidence of any formal
temperature measurements documented. He also noted that regarding the diagnostic studies
grade modifier, he assigned a value of zero, as all testing was negative. The medical adviser
determined that this resulted in a net adjustment of minus two and a final rating of zero percent
impairment.He determined that appellant reached maximum medical improvement on
May 24, 2012.
By decision dated August 24, 2012, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence of record did not support a permanent impairment to a
scheduled member or function of the body.
On August 28, 2012 appellant requested a hearing, which was held on
December 13, 2012. Appellant’s representative argued that the medical adviser disagreed with
Dr. Chan’s findings and argued that he did not actually examine appellant. He also argued that
the medical adviser’s opinion was not valid.
By decision dated March 7, 2012, the hearing representative affirmed the prior decision.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.10
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.11 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice for all claimants under
9

Id.at 406.

10

Veronica Williams, 56 ECAB 367 (2005).

11

5 U.S.C. § 8107.

3

the law, good administrative practice requires the use of uniform standards applicable to all
claimants.12 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.13 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.14
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).15 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the 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.17
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award in accordance with the sixth edition of the A.M.A., Guides.OWCP accepted her claim
forcontusion of the left wrist.
Appellantdid not submit any evidence from a physician finding that she had permanent
impairment of the arm due to her accepted conditionwhich properly conformed to the A.M.A.,
Guides. The report from Dr. Chan found a two percent arm impairment. However, the
calculation was based on determinations, which were unsupported by the findings. Dr. Chan
referred to Figure 15-3 of the A.M.A., Guides for the diagnosis of wrist/strain and contusion and
determined that appellant would qualify for class 1, grade C, which has a default rating of one
percent impairment.18 He applied grade modifiers to conclude that she had two percent
impairment. However, it remains unclear how Dr. Chandetermined that the grade modifier for
functional history, would correlate to a grade modifier 2 as there is no indication that appellant
needed modifications to perform self-care activities.19 He also referred to Table 15-8 and
12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

20 C.F.R. § 10.404.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see alsoFederal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
15

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191(issued May 14, 2010).

16

A.M.A., Guides at 521.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
18
19

A.M.A.,Guides 395.
Id. at 406.

4

determined the grade modifier for physical examination was one.20 However, Dr. Chandid not
explain this finding when there were no objective findings on examination. Likewise, he
referred to Table 15-9, for clinical findings when the diagnostic testing was normal.21 Thus, the
modifiers in the net adjustment formula were unsupported. The Board precedent is well settled
that when an attending physician’s report gives an estimate of permanent impairment, but does
not base that estimate upon correct application of specifically identifiable sections, grading
schemes, tables or figures of the A.M.A., Guides, OWCP is correct to follow the advice of its
medical adviser or consultant where he or she has properly utilized the A.M.A.,Guides.22
The medical adviser explained the discrepancies in Dr. Chan’s calculations in his report
dated August 10, 2012and determined that there was no basis on which to find any ratable left
arm impairment. He referred to Table 15-7 and explained, for the functional history grade
modifier, appellant would only be entitled to a value of 1 as the record did not support that any
functional modifications were required for self-care.23 For the physical examination grade
modifier, the medical adviser assigned a value of zeroas there were no objective deficits. He
acknowledged Dr. Chan’s comment about the left hand beingslightly cooler than the right, but
there were no formal temperature measurements documented. The medical adviser also
explained that, for clinical studies, the grade modifier was also zero as all testing was negative.
He applied the grade modifiers of one for functional history, zero for physical examination and
clinical studies under Table 15-7, Table 15-8 and Table 15-9. Under the net adjustment formula
noted, this equated minus two for a net adjustment of two grades to the left of the default grade
C, which resulted in zero percent impairment. The Board finds that the medical adviser’s report
comports with the A.M.A., Guides and the evidence does not support that appellant has a
permanent impairment.
Appellant did not submit any other medical evidence to support that she was entitled to a
schedule award, under the sixth edition of the A.M.A,Guides, for a scheduled member of the
body under FECA. Accordingly, the Board finds that she has not established entitlement to a
schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has an
impairment caused by her accepted employment injuries that would entitle her to a schedule
award.
20

Id.at 411.

21

Id.at 408

22

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone, 31
ECAB 846 (1980).
23

Supra note 19.

5

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2013
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Boise, ID, Employer )
__________________________________________ )
S.S., Appellant

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

Docket No. 08-424
Issued: June 17, 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 November 23, 2007 appellant filed a timely appeal from the September 14, 2007
merit decision of the Office of Workers’ Compensation Programs denying her claim for a
recurrence of a medical condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of her medical condition, on or subsequent to April 5, 2007, that was causally related
to her accepted injury.
FACTUAL HISTORY
On February 10, 2003 appellant, a 49-year-old firefighter, filed a traumatic injury claim
alleging that she injured her left knee and back when she slipped and fell on wet pavement in an
employee parking lot on February 2, 2003. Her claim was accepted for a left medial meniscus
tear and subsequent partial meniscectomy. On August 15, 2003 appellant’s treating physician,

Dr. Field T. Blevins, a Board-certified orthopedic surgeon, released appellant to return to work
full duty.
In a report dated February 25, 2004, Dr. Blevins stated that appellant was doing quite
well and that she was experiencing no symptoms whatsoever in her left knee. The record
contains prescriptions for physical therapy signed by Dr. Blevins and numerous physical therapy
notes for the period March 24, 2003 through August 15, 2004.
On April 6, 2007 appellant filed a recurrence of her accepted condition. She stated that
she had been “fine” until the day before, when she experienced a sharp pain in her left knee
while biking/walking to get into shape for the “pack test.” Appellant did not stop working and
indicated that she sought medical treatment only.
Appellant submitted an April 6, 2007 report from Dr. Blevins, who described her
condition as “post left knee partial meniscectomy.” Dr. Blevins indicated that appellant had been
doing well, with lots of skiing and firefighting, until two weeks before, when she experienced a
“searing type of pain” in the patella region while “cycling uphill, pushing hard.” On
examination, he found her calves to be nontender and no evidence of effusion. There was no
medial pain with the patellar grind test. There was tenderness over the pes tendons and some
mild tenderness over the lateral epicondyle. Dr. Blevins stated that she “may have bruised the
patella or perhaps injured the chondral surface; however, she does not have swelling or
mechanical symptoms and most of her findings on examination today center around tenderness
at the pes tendon area a little bit over the iliotibial bend.”
On May 9, 2007 Dr. Blevins related appellant’s complaints of severe pain in her left
knee, especially when walking uphill. His examination revealed range of motion of 0 to 125
degrees, with negative effusion and negative grind. Dr. Blevins diagnosed patellofemoral pain,
left knee. On May 22, 2007 he found mild tenderness under the lateral aspect of the patella and
stated that a recent magnetic resonance imaging (MRI) scan revealed no significant
abnormalities. On June 12, 2007 Dr. Blevins noted a gradual improvement in patellofemoral
pain.
Appellant submitted notes signed by Ellen Tomsie, a physical therapist. On May 16,
2007 Ms. Tomsie indicated that appellant had a sudden onset of searing knee pain while riding a
bike during a training session last Spring. On June 18, 2007 she noted appellant’s progress in the
left knee condition.
In a letter dated June 21, 2007, the Office informed appellant that the information
submitted was insufficient to establish that her current condition was causally related to the
accepted left knee injury. The Office advised her to submit a physician’s narrative report with a
diagnosis and a rationalized opinion explaining how her current condition was related to the
original February 2, 2003 injury.
Appellant submitted a position description for a supervisory range/forestry technician.
She submitted physical therapy notes from Ms. Tomsie for the period June 8 through 25, 2007.
Appellant also submitted a May 18, 2007 report of an MRI scan of the left knee. The report
revealed findings of a prior meniscal surgery and identified only a small amount of meniscal tear.

2

In a July 2, 2007 report, Dr. Blevins indicated that appellant was capable of performing
her regular duties. He opined that “based upon appellant’s history, the current pain likely
originated at the time of the original February 3, 2003 injury.” Dr. Blevins further stated that the
“recurrence of symptoms of anterior knee pain is very likely related to the original injury.” On
July 3, 2007 he diagnosed anterior left knee pain. Dr. Blevins stated, “[a]ppellant relates her
symptoms to the injury in 2003.”
In a July 13, 2007 statement, appellant indicated that her physical condition was good
until April 5, 2007, when she engaged in training for the arduous “pack test.” The test, which is
a requirement of her employment position, involves carrying 45 pounds for three miles in 45
minutes. Appellant stated, “I know this is a recurrence of disability because I have never had
knee trouble until my original injury.”
By decision dated September 14, 2007, the Office denied appellant’s recurrence claim, on
the grounds that the medical evidence was insufficient to show that her current medical condition
was due to the accepted work injury.
LEGAL PRECEDENT
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition1 that is causally related to her accepted employment injury. To meet her burden,
appellant must furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.2 Where no such
rationale is present, the medical evidence is of diminished probative value.3
The Office’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an

1

“Recurrence of medical condition” means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).
2

Ronald A. Eldridge, 53 ECAB 218 (2001).

3

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

3

attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.4
ANALYSIS
Appellant has not met her burden of proof to establish that she sustained a recurrence of a
medical condition on or subsequent to April 5, 2007. The Office accepted appellant’s
February 10, 2003 traumatic injury claim for left medial meniscus tear and subsequent left knee
partial meniscectomy. Appellant has alleged that, on April 5, 2007, she experienced an onset of
searing knee pain while riding a bike during a training session. However, she has failed to
produce any rationalized medical opinion evidence establishing that she required further medical
treatment for a continuing employment-related condition.
On February 25, 2004 Dr. Blevins reported that appellant was doing quite well and that
she was experiencing no symptoms whatsoever in her left knee. The record contains
prescriptions for physical therapy signed by Dr. Blevins and numerous physical therapy notes for
the period March 24, 2003 through August 15, 2004. There is no evidence of record establishing
that appellant received medical treatment for her accepted condition between August 15, 2004
and April 6, 2007, when she was again examined by Dr. Blevins. As computed from the date of
the last physical therapy session on August 15, 2004, the treatment on April 6, 2007 was
rendered more than 90 days after appellant’s release from medical care. Therefore, appellant
was responsible for submitting an attending physician’s report containing a description of the
objective findings and supporting causal relationship between her current condition and the
previously accepted work injury.5 She had the burden of submitting sufficient medical evidence
to document the need for further medical treatment.6 Appellant did not submit the evidence
required and thus failed to establish a need for continuing medical treatment.7
Dr. Blevins’ reports do not establish that appellant’s current knee condition was causally
related to the accepted employment injury. On April 6, 2007 he stated that appellant had been
doing well, with lots of skiing and firefighting, until two weeks before, when she experienced a
“searing type of pain” in the patella region while “cycling uphill, pushing hard.” Dr. Blevins
provided examination findings and stated that appellant “may have bruised the patella or perhaps
injured the chondral surface.” His report is speculative and fails to provide a definitive
diagnosis. Moreover, it does not contain an opinion that appellant’s current condition was

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id., at Chapter 2.1500.5(a).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

6

20 C.F.R. § 10.5(y).

7

See J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006).

4

related to the original February 2, 2003 injury. Rather, it implies that appellant may have
sustained a new injury while cycling. For these reasons, the report is of limited probative value.
In reports dated May 9 and 22 and June 12, 2007, Dr. Blevins related appellant’s
complaints of severe pain in her left knee and diagnosed patellofemoral pain, left knee.
However, none of these reports contained an opinion as to the cause of her condition. They are,
therefore, of diminished probative value.8
On July 2, 2007 Dr. Blevins indicated that appellant was capable of performing her
regular duties. He opined that “based upon appellant’s history, the current pain likely originated
at the time of the original February 3, 2003 injury.” Dr. Blevins further stated that the
“recurrence of symptoms of anterior knee pain is very likely related to the original injury.” His
report is speculative and unsupported by rationalized medical evidence explaining the nature of
the relationship between appellant’s knee condition and the accepted injury.9 Therefore, it, too,
is of diminished probative value. On July 3, 2007 Dr. Blevins noted appellant’s contention that
her symptoms were related to the injury in 2003. He did not express his own opinion, but rather
merely reported appellant’s belief that her current knee pain was related to the accepted injury.
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there was a causal relationship between her claimed condition and her
employment.10
Appellant submitted physical therapy notes from Ms. Tomsie. Physical therapists do not
qualify as “physicians” under the Federal Employees’ Compensation Act. Therefore, their
opinions are of no probative value.11 Reports of MRIs scan and x-rays, which do not contain an
opinion as to the cause of appellant’s condition, are of diminished probative value and are
insufficient to establish appellant’s claim.12
The Board finds that the evidence submitted was insufficient to establish that appellant
sustained a recurrence of a medical condition and the Office properly denied her claim.

8

See Mary E. Marshall, 56 ECAB 420, 427 (2005).

9

While the medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative or equivocal. The
opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition
for which compensation is claimed is causally related to federal employment and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant. See Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow,
50 ECAB 370 (1999).
10

Patricia J. Glenn, 53 ECAB 159 (2001).

11

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.”
12

See Mary E. Marshall, supra note 8.

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of a medical condition that was causally related to her accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Vacaville, CA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 13-309
Issued: April 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On November 21, 2012 appellant filed a timely appeal from a July 30, 2012 Office of
Workers’ Compensation Programs (OWCP) merit decision denying his traumatic injury claim on
the grounds that the medical component of fact of injury was not established. The Board
assigned Docket No. 13-309.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP. Since the Board’s jurisdiction of a case is limited to
reviewing that evidence which is before OWCP at the time of its final decision,1 it is necessary
that OWCP review all evidence submitted by a claimant and received by OWCP prior to
issuance of its final decision. As the Board’s decisions are final as to the subject matter
appealed,2 it is crucial that all evidence relevant to that subject matter which was properly
submitted to OWCP prior to the time of issuance of its final decision be addressed by OWCP.3

1

See 20 C.F.R. § 501.2(c)(1).

2

Id. at § 501.6(d).

3

William A. Couch, 41 ECAB 548, 553 (1990); B.B., Docket No. 12-657 (issued November 13, 2012).

The Board has held that this principal applies with equal force when evidence is received by
OWCP the same day that a final decision is issued.4
On July 30, 2012 OWCP issued its decision denying appellant’s claim on the ground that
the medical component of fact of injury was not established. On July 30, 2012 OWCP also
received July 20, 2012 physical therapy notes and a July 20, 2012 report from Dr. Sukriti
Singhal, a general surgeon, who noted that appellant was seen for a follow-up for his workrelated injury and diagnosed neck strain, sprain of lumbar region, thoracic or lumbosacral
neuritis or radiculitis and back sprain. OWCP’s July 30, 2012 decision did not review this
evidence received on July 30, 2012. The Board, therefore, must set aside the July 30, 2012
decision of OWCP and remand the case so that OWCP may fully consider the evidence that was
properly submitted by appellant prior to the issuance of this decision. Following such further
consideration and after such further development as it deems necessary, OWCP shall issue an
appropriate merit decision.
IT IS HEREBY ORDERED THAT the July 30, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: April 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4

Linda Johnson, 45 ECAB 439 (1994).

2