United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
G.V. (SONNY) MONTGOMERY VETERANS
AFFAIRS MEDICAL CENTER, Jackson, MS,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1748
Issued: March 27, 2020

Case Submitted on the Record

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

JURISDICTION
On August19, 2019 appellant, through counsel, filed a timely appeal from an April 26,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 9, 2018 appellant, then a 58-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she sustained synovitis, tendinitis, plantar fasciitis, calcaneal
spurs of the left foot, cervical spasms and aggravation of migraine headaches due to factors of her
federal employment. She noted that she first became aware of her conditions and realized its
relationship to her federal employment on November 30, 2017. Appellant explained that the
repetitive motions of her ankles and feet from long periods of continuous walking and standing
caused her injuries. She indicated that approximately 60 to 70 percent of her job duties and tasks
require long periods of walking, standing, bending, and stooping. Appellant stopped work on
November 30, 2017.
Appellant submitted a series of medical notes with illegible signatures dated from
January 25 to February 8, 2018. The notes indicated that she was seen by podiatry treatments and
would be able to return to work on February 12, 2018. A February 8, 2018 note provided a
partially legible diagnosis of fasciitis and referred appellant to physical therapy for treatment.
In a development letter dated February 23, 2018, OWCP advised appellant of the factual
and medical deficiencies of her claim. It informed her of the type of evidence necessary to
establish her claim and provided a questionnaire for her completion regarding the circumstances
of the injury. OWCP also requested a narrative medical report from appellant’s treating physician,
which contained a detailed description of findings and diagnoses, explaining how her work
activities caused, contributed to, or aggravated her medical conditions. It afforded appellant 30
days to submit the necessary evidence.
In response, appellant submitted a December 14, 2017 medical restrictions statement with
an illegible signature recommending multiple work restrictions and a referral to physical therapy.
In a medical note of even date, Johanna Kimberl, a physician assistant, requested that appellant be
excused from work from December 4 to 26, 2017.
Appellant submitted multiple medical notes with illegible signatures dated from January 3
to February 7, 2018, indicating that she would be able to return to work on February 8, 2018.
In a January 24, 2018 radiology report, Dr. Joe Jacobs, a Board-certified radiologist,
performed an unspecified diagnostic examination on appellant’s feet that revealed bilateral
hammertoe deformities.
In a January 29, 2018 accommodation request determination, appellant requested clerical
work in which she would not be required to continuously stand or walk for more than two hours
combined per day. P.K., a designated management official, explained that the requested
accommodation would not be effective because her position required potentially long periods of
continuous walking, standing, stooping, sitting, bending, and pulling and pushing.

2

Appellant also provided multiple prescription receipts and notes dated February 23, 2018.
In a February 12, 2018 letter, the employing establishment controverted appellant’s
occupational disease claim, arguing that her work duties did not require repetitive motion or long
periods of continuous walking, standing, bending, and stooping.
In a March 9, 2018 letter, appellant submitted a response to a letter regarding alternative
accommodations. She explained that she requested work accommodations orally and written from
her supervisor from January 5 to 26, 2018 and was denied. Appellant began working restricted
duty on January 29, 2018, but asserted that the accommodation provided to her exceeded her
limited-duty restrictions. She asserted that her treating health care professional indicated that the
impact of the employing establishment’s failure to accommodate her limited-duty restrictions
might cause her disability to become aggravated. Appellant asserted that accommodation requests
should have been more flexible and requested recovery in the form of compensation for lost wages,
future earnings, and emotional pain and suffering among other damages.
By decision dated March 29, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed conditions were
causally related to the accepted factors of her federal employment. It explained that she failed to
submit a physician’s opinion as to how her employment activities caused, contributed to or
aggravated her work-related injury.
On May 1, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. She attached an April 30, 2018 letter in which she explained that
a January 12, 2018 progress note signed by Dr. Selika Sweet, Board-certified in emergency
medicine, supports that walking occurs during the performance of her duties and that she requested
orthotic shoes and inserts due to her feet swelling at work. Appellant also advised that a new
medical report Dr. James Phelan, a podiatric surgery specialist, would provide a more detailed
description of his medical opinion. She concluded that the new evidence was sufficient to establish
her claim.
In the April 19, 2018 narrative medical report, Dr. Phelan detailed appellant’s history of
severe pain, swelling, and cramping in both her feet and her belief that her symptoms were caused
by working long hours on her feet with a great deal of walking. On examination, he diagnosed pes
planus, plantar fasciitis, posterior tibial tendinitis, ankle swelling, and bilateral synovitis.
Dr. Phelan reported that it was certainly possible that appellant’s conditions were work related,
but that it was also due to her biomechanics, foot structure, and pes planus. He opined that if she
worked at a job that had minimal or little standing, walking, or lifting her condition probably would
improve, but probably would never completely cease.
By decision dated May 25, 2018, OWCP denied appellant’s request for an oral hearing as
untimely filed.
On June 15, 2018 appellant requested reconsideration of OWCP’s March 29, 2018
decision. She reiterated that the new evidence from Linda McCoy, a registered nurse and
Dr. Phelan were sufficient to meet her burden of proof.

3

On August 15, 2018 OWCP received multiple statements and medical evidence regarding
a June 22, 2018 employment incident in which appellant experienced an allergic reaction after
being bitten by bugs while at work.
By decision dated August 24, 2018, OWCP denied modification of its previous decision,
finding that appellant had not submitted sufficient medical evidence establishing a medical
condition is causally related to the accepted work factors, as her physician did not provide a
rationalized opinion on causal relationship.
On September 7, 2018 appellant requested reconsideration of OWCP’s August 24, 2018
decision
By decision dated September 24, 2018, OWCP denied appellant’s request for
reconsideration.
OWCP continued to receive additional evidence. In a November 15, 2018 medical report,
Dr. Phelan explained that appellant’s conditions were “[t]o some extent; probably about 60 [to] 70
[percent] work related” and checked “yes” to indicate that her injuries and conditions were causally
related to her work factors.
On January 30, 2019 appellant requested reconsideration of OWCP’s September 24, 2018
decision.
By decision dated April 26, 2019, OWCP denied modification of its previous decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral foot
and ankle conditions causally related to the accepted factors of her federal employment.
Dr. Phelan’s April 19, 2018 narrative medical report indicated that it was “certainly
possible” that appellant’s bilateral foot and ankle conditions were work related, but that it was also
due to her biomechanics, foot structure, and pes planus. He opined that if she worked at a job that
had minimal or little standing, walking, or lifting her condition probably would improve, but
probably would never completely cease. Although Dr. Phelan’s opinion generally supported
causal relationship between the accepted employment factors and appellant’s diagnosed
conditions, he did not provide sufficient rationale explaining these conclusions. Without
explaining how the repetitive movements involved in her employment duties caused or contributed
to her conditions, his opinion is of limited probative value.10 As such, the Board finds that this
report is insufficient to establish the claim.11
Similarly, in Dr. Phelan’s November 15, 2018 medical report, he explained that appellant’s
conditions were “[t]o some extent; probably about 60 [to] 70 [percent] work related” and checked
“yes” to indicate that her injuries were conditions that were causally related to the accepted work
factors. The Board has held that his opinion on causal relationship which consists of checking
“yes” to a form question, without explanation or rationale, is of diminished probative value and is
insufficient to establish a claim.12 Additionally, Dr. Phelan’s statement that appellant’s conditions
6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See A.P., Docket No. 19-0224 (issued July 11, 2019).

11

D.B., Docket No. 17-1845 (issued February 16, 2018); T.H., Docket No. 14-0326 (issued February 5, 2015).

12
See J.R., Docket No. 18-1679 (issued May 6, 2019); M.C., Docket No. 18-0361 (issued August 15, 2018);
Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

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were “probably about 60 [to] 70 [percent] work related” is speculative and equivocal, and thus
insufficient to establish her burden of proof.13
Appellant provided multiple medical notes, containing illegible signatures, dated from
January 3 to February 8, 2018 indicating that she was seen on various days for her symptoms. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.14 Further, a
report that is unsigned or bears an illegible signature lacks proper identification and cannot be
considered probative medical evidence as the author cannot be identified as a physician.15 For
these reasons, these medical notes are insufficient to establish appellant’s burden of proof.
In Dr. Jacob’s January 24, 2018 radiology report, he noted that an unspecified diagnostic
examination was performed on appellant’s feet that revealed bilateral hammertoe deformities. The
Board has held that diagnostic tests lack probative value as they do not provide an opinion on
causal relationship between her employment duties and the diagnosed conditions.16 Accordingly,
Dr. Jacob’s radiology report is of no probative value regarding causal relationship.
Appellant also submitted a January 12, 2018 medical note from Nurse McCoy. Certain
healthcare providers such as nurses, physician assistants, physical therapists, and social workers,
however, are not considered physicians as defined under FECA.17 Consequently, their medical
findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.18
On appeal appellant explained that the January 12, 2018 medical note was approved and
signed by Dr. Sweet and that it served as evidence that supports that walking occurs during the
performance of her duties which has caused her feet to swell. However, there is no evidence of
record that confirms that Dr. Sweet signed the January 12, 2018 medical note. As stated
previously, evidence that is unsigned cannot be considered probative medical evidence as the
author cannot be identified as a physician.19 Moreover, even if Dr. Sweet signed the medical note,
it would still be insufficient as it does not offer an opinion regarding the cause of appellant’s

13

Id.

14

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

15

K.C., Docket No. 18-1330 (issued March 11, 2019).

16

See J.M., Docket No. 17-1688 (issued December 13, 2018).

17

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

18

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).
19

Supra note 15.

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condition.20 For these reasons, the January 12, 2018 medical note is insufficient to meet appellant’s
burden of proof.
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties caused or aggravated her conditions, the Board finds that she has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral foot
and ankle conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 26, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 27, 2020
Washington, DC

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

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

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

20

Supra note 14.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZEN & IMMIGRATION SERVICES,
Brownsville, TX, Employer
__________________________________________

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

Docket No. 08-1471
Issued: November 25, 2008

Case Submitted on the Record

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

JURISDICTION
On February 25, 2008 appellant filed a timely appeal from the November 30, 2007 merit
decision of the Office of Workers’ Compensation Programs finding an overpayment in the
amount of $3,011.43, for which he was without fault. He also appealed from a February 25,
2008 nonmerit decision denying his request for a prerecoupment hearing and an October 17,
2007 wage-earning capacity determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2),
the Board has jurisdiction to review the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that the digital imaging
technician fairly and reasonably represented appellant’s wage-earning capacity; (2) whether the
Office properly determined that appellant received an overpayment in the amount of $3,011.43
during the period June 14 through September 1, 2007; (3) whether the Office properly denied
waiver of the recovery of the overpayment; (4) whether the Office properly directed recovery of
the overpayment by deducting $74.00 from continuing compensation payments; and (5) whether
the Office properly denied appellant’s request for a prerecoupment hearing as untimely filed.

FACTUAL HISTORY
On January 29, 2003 appellant, then a 33-year-old immigration inspector, sustained
injury to his low back while chasing and wrestling a port runner to the ground. On March 6,
2003 the Office accepted appellant’s claim for lumbar radiculitis. On June 18, 2003 appellant
underwent surgery for a right L5-S1 partial hemilaminectomy and discectomy.
On November 23, 2004 the Office referred appellant to vocational rehabilitation. In a
June 14, 2007 report, the vocational counselor noted that appellant returned to work as a digital
imaging technician with D & B Research on June 14, 2007. Appellant’s starting salary in this
position was $10.00 per hour or $20,800.00 per year. In an August 17, 2007 report, the
vocational counselor noted that appellant had been successfully employed for over 60 days and
that therefore the file was being closed.
In a decision dated October 17, 2007, the Office found that appellant was employed as a
digital imaging technician for D & B Research with actual wages of $400.00 per week.
Appellant’s employment was effective June 14, 2007 and there was no evidence that his position
was temporary and appellant had performed the job for over two months. The Office found that
his actual earnings fairly and reasonably represented his wage-earning capacity. It determined
that appellant’s gross weekly pay rate on the date of injury was $612.06 and the current pay rate
for the job when injured was $687.54. As appellant earned $400.00 per week, he had a
58 percent of wage-earning capacity. He was paid compensation at a rate of 66 2/3 percent and
his new compensation rate was equivalent to $171.38 per week.
On October 17, 2007 the Office made a preliminary determination that appellant received
an overpayment in the amount of $3,011.43. The overpayment occurred because appellant
received wage-loss compensation for total disability from June 14 through September 1, 2007
after returning to full-time employment with D & B Research. Appellant received compensation
in the amount of $5,191.43 whereas he should have been paid compensation in the amount of
$2,180.00,1 which resulted in the overpayment of $3,011.43. He was found without fault in the
creation of the overpayment.2 The Office advised appellant of his rights and the opportunity to
request waiver of the recovery of the overpayment or a prerecoupment hearing. Appellant was
asked to submit financial information or make any requests within 30 days of the date of the
preliminary determination. No response was received.
By decision dated November 30, 2007, the Office finalized the overpayment in the
amount of $3,011.43. It noted that appellant had not submitted any information in response to
1

The Office noted that, for the period June 14 through September 1, 2007, appellant received compensation in the
amount of $5,191.43 based on a weekly pay rate of $612.06. It noted that for the same time period he earned actual
wages of $400.00 per week. Based on the wage-earning capacity calculations previously noted, the Office
determined that appellant’s compensation rate was $171.38 per week when one considered his new employment. It
then determined that appellant should have received $2,180.00 for this time period. The Office determined that this
difference yielded an overpayment of $3,011.43.
2

The Office stated, “[B]ecause of the [O]ffice’s involvement in [appellant’s] reemployment, his expectation of
pay through loss of wage-earning capacity and our failure to timely delete the compensation payments, the claimant
could not have been expected to know that the payments received were incorrect.”

2

the preliminary determination. The Office directed recovery by deduction of $74.00 from
continuing compensation payment.
In a request received by the Office on December 6, 2007, appellant asked for a
prerecoupment hearing and submitted arguments regarding the overpayment and financial
information.
Additional financial information was received by the Office on
December 11, 2007.
By decision dated February 25, 2008, the Office denied appellant’s request for a
prerecoupment hearing. It determined that his request was untimely filed. The Office reviewed
appellant’s request under its discretionary authority and determined that the issue could equally
well be addressed through reconsideration and the submission of evidence not previously
considered.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act3 provides that in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageearning capacity.4 Generally, wages actually earned are the best measure of a wage-earning
capacity and in the absence of showing that they do not fairly and reasonably represent the
injured employee’s wage-earning capacity, must be accepted as such a measure.5 The formula
for determining loss of wage-earning capacity based on actual earnings, developed in the
Albert C. Shadrick decision,6 has been codified at 20 C.F.R. § 10.403. The Office calculates an
employee’s wage-earning capacity in terms of percentage by dividing the employee’s earnings
by the current pay rate for the date-of-injury job.7 The procedures provide for a retroactive
determination where an employee has worked for at least 60 days, the employment fairly and
reasonably represents the claimant’s wage-earning capacity and work stoppage did not occur due
to any change in the claimant’s injury-related condition.
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for lumbar radiculitis and he underwent surgery for
an L5-S1 partial hemilaminectomy and discectomy. After vocational rehabilitation, he returned
to work full time as a digital imaging technician at D & B Research, earning a salary of $400.00
a week. Appellant began his position on June 14, 2007. The Board notes that appellant has

3

5 U.S.C. § 8115(a).

4

Id.; Loni J. Cleveland, 52 ECAB 171, 177 (2000).

5

Lottie M. Williams, 56 ECAB 302 (2005); see Edward Joseph Hanlon, 8 ECAB 599 (1956).

6

Albert C. Shadrick, 5 ECAB 376 (1953).

7

20 C.F.R. § 10.403(c).

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performed in this job in excess of 60 days and received a salary for full-time work.8 There is no
evidence that, the position was seasonal, temporary or make-shift work designed for appellant’s
particular needs.9 The record reflects that appellant earns $400.00 per week. His gross weekly
pay rate on the date of injury was $612.06 and the current pay rate for the job and step when
injured was $687.54. The Office noted that appellant’s new wage-earning capacity was
58 percent and his adjusted wage-earning capacity per week was $354.99. This amounted to a
loss in wage-earning capacity per week of $257.07 or a 42 percent loss of wage-earning capacity.
It noted that appellant received compensation at a statuary 2/3 rate, which yielded a new
compensation rate of $171.38 per week, which was when increased by applicable cost-of-living
adjustments to total $190.75 per week. The Board finds that the Office properly determined
appellant’s loss of wage-earning capacity under the Shadrick formula.10
There is no evidence that appellant’s actual earnings as a digital imaging technician do
not properly represent his wage-earning capacity. The Office properly accepted these earnings
as the best measure of his wage-earning capacity. Therefore, it properly reduced appellant’s
earnings effective June 14, 2007 the day he returned to work.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.11
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.12
A claimant is not entitled to receive total disability compensation and actual earnings for
the same period. Office procedures provide that an overpayment in compensation is created
when a claimant returns to work but continues to receive wage-loss compensation.13
ANALYSIS -- ISSUE 2
The Office properly found that it received an overpayment of compensation. Appellant
began employment as a digital imaging technician on June 14, 2007 with wages of $400.00 per
8

Office procedures provides that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given position more than
60 days. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(c) (December 1993).
9

See Elbert Hicks, 49 ECAB 283 (1998).

10

Supra note 6.

11

5 U.S.C. § 8102(a).

12

Id. at § 8129(a).

13

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Claims, Debt
Management, Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).

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week but continued to receive wage-loss compensation for total disability from June 14 through
September 1, 2007. He received compensation in the amount of $5,191.43. However, based on
the wage-earning capacity determination, appellant was only entitled to receive $2,180.00 for
this period. The difference between these amounts resulted in an overpayment of $3,011.43.
The Office properly determined the fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 3
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.14
Office regulations, at 20 C.F.R. § 10.438, provide:
“(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.”15
ANALYSIS -- ISSUE 3
Although appellant was found without fault in creating the $3,011.43 overpayment, he
bears responsibility for providing the financial information necessary to support a request for
waiver. The Office requested that he provide financial information and submit any request for
waiver within 30 days of the preliminary overpayment determination. Appellant did not respond
within the 30-day time period. The Office noted that his failure to submit the requested
information would result in the denial of waiver. Appellant failed to respond within 30 days, as
requested by the Office, under the implementing federal regulations, the Board finds that the
Office properly denied waiver of the overpayment pursuant to 20 C.F.R. § 10.438(b).16

14

5 U.S.C. § 8129.

15

20 C.F.R. § 10.438.

16

Id. at § 10.438(b) provides that failure to submit requested information within 30 days shall result in the denial
of waiver of an overpayment. See Madelyn Y. Grant ECAB 533 (2006).

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LEGAL PRECEDENT -- ISSUE 4
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. 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
the 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 hardship.”17
ANALYSIS -- ISSUE 4
The record reflects that appellant continues to receive wage-loss compensation under the
Act. As noted, he failed to timely complete the financial documents. When an individual fails to
provide the financial information, the Office should follow minimum collection guidelines
designed to collect the debt promptly and in full.18 On appeal, appellant contends that he
submitted the requested information. However, it was not received by the Office in the time
requested. The Board finds that the Office did not abuse its discretion in following its
regulations and directing that $74.00 be recovered from continuing compensation payments until
the debt is repaid.
LEGAL PRECEDENT -- ISSUE 5
Section 10.432 of the Office’s regulations provides that in response to a preliminary
notice of an overpayment, a claimant may request a prerecoupment hearing within 30 days of the
written notice of overpayment.19 Failure to request the hearing within this 30-day time period
shall constitute a waiver of that right.20
ANALYSIS -- ISSUE 5
The Office issued a preliminary finding of overpayment on October 17, 2007 and
informed appellant that any request for prerecoupment hearing must be filed within 30 days.
Appellant requested a prerecoupment hearing on December 6, 2007. As he did not request the

17

20 C.F.R. § 10.441(a).

18

Ralph P. Beachum, Sr., 55 ECAB 442, 448 (2004); Frederick Arters, 53 ECA 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Claims, Debt Management, Initial Overpayment Actions, Chapter 6.200.4(c)(2)
(September 1994).
19

20 C.F.R. § 10.432; see Willie C. Howard, 55 ECAB 564 (2004).

20

Id.

6

prerecoupment hearing within 30 days of the required 30-day time period, the Board finds that he
waived his right to this hearing.
CONCLUSION
The Board finds that the Office properly determined appellant’s wage-earning capacity.
The Office properly determined that appellant received an overpayment in the amount of
$3,011.43 and directed recovery by deducting $74.00 from continuing compensation payments.
The Board also finds that the Office properly denied appellant’s request for a prerecoupment
hearing as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 25, 2008 and November 30 and October 17, 2007 are
affirmed.
Issued: November 25, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0907
Issued: March 30, 2020

Case Submitted on the Record

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

On March 26, 2019 appellant filed a timely appeal from an October 17, 2018 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-0907.
On February 17, 2016 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she aggravated her lumbosacral spine due to factors of
her federal employment.1 She attributed her condition to having walked on uneven and shifting
surfaces. On the reverse side of the claim form the employing establishment indicated that
appellant stopped work on August 20, 2015 and returned to work on February 6, 2016.
By decision dated May 4, 2016, OWCP denied appellant’s occupational disease claim on
the medical component of fact of injury, as it found the medical evidence of record lacked a valid,
compensable diagnosis. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.

1
Appellant noted that she had a history of back problems dating back to a June 20, 2013 injury under OWCP File
No. xxxxxx083, which was accepted for lumbar strain.

On November 15, 2016 appellant filed a request for reconsideration of the May 4, 2016
decision. By decision dated November 23, 2016, OWCP denied reconsideration, finding that
appellant had not submitted additional evidence or argument in support of her claim.
On May 1, 2017 appellant filed a request for reconsideration of the May 4, 2016 decision.
With her request, she included a November 3, 2016 narrative report from Dr. Jian Zu, a Boardcertified family practitioner, which included a diagnosis of spinal osteoarthritis. Dr. Zu opined
that her low back pain, which was initially due to a lumbar strain and compounded by flare-ups of
spinal osteoarthritis, resulted from or was exacerbated by an on-the-job injury in 2013 and by
prolonged walks on pulverized sidewalks over the course of 30 years.
By decision dated July 6, 2017, OWCP modified its prior decision, finding that appellant
had established fact of injury. It also found that Dr. Zu’s November 3, 2016 report was insufficient
to establish causal relationship between appellant’s diagnosed condition and the accepted factors
of her federal employment. Thus, OWCP denied her occupational disease claim as she had not
established causal relationship.
On July 6, 2018 appellant filed a request for reconsideration.
In a July 9, 2018 note, Dr. Zu diagnosed spinal osteoarthritis and lumbar disc protrusion
with nerve impingement and noted that her medical condition flared-up intermittently when she
stood or walked more than 20 minutes at a time, which caused severe pain radiating down her right
lower extremity.
By decision dated October 17, 2018, OWCP denied appellant’s July 6, 2018
reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence
of error.
The Board finds that this case is not in posture for a decision.2
The last merit decision of record was OWCP’s July 6, 2017 decision. As appellant’s
reconsideration request was received on July 6, 2018, within one year of the July 6, 2017 decision,
it was timely filed. It is well established that when the date of the reconsideration request is exactly
one year after the date of OWCP’s decision, it is timely under 20 C.F.R. § 10.607(a).3 Therefore,
OWCP should have applied the standard applicable to a timely reconsideration request as set forth
in 20 C.F.R. § 10.606(b)(3) rather than the more stringent clear evidence of error standard for an
untimely request for reconsideration set forth in 20 C.F.R. § 10.607(a). Because OWCP
erroneously reviewed the evidence submitted in support of appellant’s reconsideration request
under the clear evidence of error standard, the Board will remand the case for review of the newly
submitted evidence under the proper standard of review for a timely reconsideration request.4

2

J.H., Docket No. 18-1367 (issued July 17, 2019); see K.K., Docket No. 16-1187 (issued February 7, 2017); E.B.,
Docket No. 16-0746 (issued June 1, 2016).
3

R.M., Docket No. 17-0473 (issued June 6, 2017).

4

J.H., supra note 2; E.S., Docket No. 17-0698 (issued July 14, 2017).

2

Thus, the Board finds that the case shall be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.5
IT IS HEREBY ORDERED THAT the October 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: March 30, 2020
Washington, DC

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

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

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

5

J.H., supra note 2; W.R., Docket No. 16-0098 (issued May 26, 2016).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulsa, OK, Employer
__________________________________________

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

Docket No. 15-1010
Issued: July 21, 2015

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 March 30, 2015 appellant, through counsel, filed a timely application for review from
a January 27, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury to the left
shoulder causally related to factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In a November 12, 2013 decision, the
Board affirmed an OWCP decision dated April 8, 2013 which found that appellant had not met
his burden of proof to establish a left shoulder injury causally related to factors of his federal
1

5 U.S.C. § 8101 et seq.

employment.2 The law and facts of the case as set forth in the Board’s prior decision are
incorporated by reference. The Board’s review of the previous medical evidence of record is
res judicata.3
On October 27, 2014 appellant, through counsel, requested reconsideration and submitted
additional medical evidence. In a letter dated July 1, 2013, Dr. Michael Gebetsberger, a Boardcertified internist, stated:
“[Appellant] is a patient under my care at Utica Park Clinic. He has experienced
left rotator cuff pathology requiring surgery earlier this year. [Appellant] has on
multiple occasions demonstrated to me the movement required to obtain parcels
of mail from the back seat of his delivery vehicle, which would over time directly
affect the left shoulder. It is, therefore, my opinion that this injury is work
related.”
By decision dated January 27, 2015, OWCP reviewed the merits of appellant’s claim and
denied his claim as the medical evidence was insufficient to establish a causal relationship
between his diagnosed condition and factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
2

Docket No. 13-1410 (issued November 12, 2013). Appellant, a rural mail carrier, filed an occupational disease
claim on May 20, 2012 alleging that he sustained a left shoulder injury due to reaching to obtain mail from the back
of his mail truck.
3

See A.P., Docket No. 14-1228 (issued October 15, 2014). As the Board has previously reviewed the evidence of
record submitted prior OWCP’s April 8, 2013 decision, the issue of its weight is res judicata and not subject to
further consideration by the Board.
4

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Michael E. Smith, 50 ECAB 313, 315 (1999).

2

The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical opinion evidence.8 Rationalized medical opinion
evidence is medical evidence which includes a physician’s reasoned opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.10
ANALYSIS
The Board issued a November 12, 2013 decision, finding that appellant had not met his
burden of proof to establish that he developed an occupational disease in the course of his
employment. Appellant, through counsel, requested reconsideration, and on January 27, 2015
OWCP reviewed the merits of his case, but denied his claim as he had not submitted sufficient
medical evidence to establish a causal relationship between factors of his federal employment
and his diagnosed left shoulder condition.
On reconsideration, appellant submitted a new medical report dated July 1, 2013 from
Dr. Gebetsberger.
While Dr. Gebetsberger’s letter contains an opinion on causal relationship, it is not
rationalized on the matter. The opinion must rest on a complete factual and medical background,
be expressed in terms of reasonable medical certainty, and must be supported by medical
rationale to explain the relationship between the diagnosed condition and the specific
employment factors identified by the claimant. He does not provide complete history or a
detailed discussion of the factors alleged to have caused appellant’s injury and does not specify a
6

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

7

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

8

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

9

Leslie C. Moore, 52 ECAB 132, 134 (2000).

10

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

3

time frame in which the alleged work factors were active in causing or aggravating his condition.
As such, Dr. Gebetsberger’s letter of July 1, 2013 did not meet the requirements to establish a
causal relationship between specific factors of appellant’s federal employment and his left
shoulder condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a shoulder
injury causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2015
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, GREENE POST
OFFICE, Greene, NY, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0644
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On March 19, 2021 appellant, through counsel, filed a timely appeal from an October 5,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following the October 5, 2020 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that the acceptance
of her claim should be expanded to include additional conditions as a consequence of the accepted
December 12, 2014 employment injury.
FACTUAL HISTORY
This case has been previously before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 5, 2015 appellant, then a 51-year-old rural carrier, filed a notice of recurrence
(Form CA-2a) claiming disability under OWCP File No. xxxxxx938.5 She alleged that she
reinjured her left shoulder moving mail from her vehicle to her supervisor’s vehicle on
December 12, 2014 while in the performance of duty. Appellant stopped work on that date.
OWCP converted the recurrence claim to a new traumatic injury claim (Form CA-1) and assigned
OWCP File No. xxxxxx312. On January 14, 2016 OWCP accepted the claim for partial rotator
cuff tear of the left shoulder and paid appellant retroactive wage-loss compensation on the
supplemental rolls as of February 1, 2015 and on the periodic rolls as of July 24, 2016.
In a May 5, 2016 report, Dr. Thomas Van Gorder, a Board-certified orthopedic surgeon,
diagnosed status post shoulder repair for rotator cuff tear of the left shoulder and a partial cuff tear
of the right shoulder. He noted her initial injury to her left shoulder in June 2013, and her
subsequent injury to her left shoulder in December 2014. He related that appellant had developed
discomfort in the right shoulder, noting that she did not have specific trauma to the right shoulder,
and opined that her right shoulder condition resulted from favoring her left shoulder. Dr. Van
Gorder noted that a right shoulder magnetic resonance imaging (MRI) scan in June 2015 revealed
a partial cuff tear and tendinitis, and that appellant was unable to obtain treatment for the right
shoulder. He also noted that the right shoulder had excellent strength and a little subacromial
crepitus.
In a July 28, 2016 report, Dr. Van Gorder diagnosed status post rotator cuff tear of the left
shoulder and a partial tear with tendinitis of the right shoulder. Regarding the right shoulder, he
explained that appellant developed impingement pain, tendinitis, and discomfort of the right
shoulder, which he opined “is definitely related to her left shoulder injury.” Dr. Van Gorder
concluded that her right shoulder condition was caused by overuse secondary to favoring her left
shoulder, which had been injured at work.
In an August 3, 2016 report, Dr. Van Gorder repeated his opinion from his July 28, 2016
report regarding the status and casual relationship of the right shoulder condition.

4

Docket No. 18-1514 (issued July 18, 2019).

5

In OWCP File No. xxxxxx938, OWCP accepted appellant’s July 22, 2013 occupational disease claim (Form
CA-2) for complete tear of the left rotator cuff.

2

In a letter dated August 29, 2016, counsel requested that the acceptance of appellant’s
claim be expanded to include the additional conditions of impingement, tendinitis, and a partial
rotator cuff tear of the right shoulder. He alleged that the conditions were a consequence of overuse
of the right shoulder due to her accepted left shoulder conditions. Counsel argued that
Dr. Van Gorder provided an unequivocal opinion and the requisite medical rationale to establish
that appellant’s right shoulder condition was related to overuse to compensate for the work-related
injury to her left shoulder.
In a development letter dated November 18, 2016, OWCP advised appellant of the
evidence needed to establish her claim for consequential injury to her right shoulder. It afforded
appellant 30 days to submit additional evidence.
OWCP thereafter received a June 12, 2015 MRI scan of the right shoulder interpreted by
Dr. Imanual Somers-Dehaney, a Board-certified diagnostic radiologist, which revealed a partial
tear of the supraspinatus partial articular surface tendon with avulsion of approximately 50 percent,
impingement on the myotendinous junction of the supraspinatus tendon with fluid along both
articular and bursal substance of subacromial subdeltoid bursa, bursitis, and biceps tendon
tenosynovitis.
On December 16, 2016 OWCP requested that a district medical adviser (DMA) provide an
opinion as to whether the accepted employment injury to appellant’s left shoulder was competent
to produce the injury to the right shoulder. It requested that the DMA review and specifically
comment on the opinion provided by Dr. Van Gorder in his July 28 and August 3, 2016 reports
regarding the conditions of right shoulder impingement, right shoulder tendinitis, and right partial
rotator cuff tear.
In a December 29, 2016 report, Dr. David J. Slutsky, a Board-certified orthopedic hand
surgeon serving as a DMA, noted appellant’s history of injury and medical treatment. Regarding
the right shoulder conditions, the DMA concluded that the acceptance of appellant’s claim should
not be expanded to include the consequential conditions of right shoulder impingement, right
shoulder tendinitis, and right partial rotator cuff tear. He advised that it was impossible to
determine with any certainty whether the left shoulder condition had caused the right shoulder
condition, unless an MRI scan of the right shoulder was performed prior to the work-related injury
of the left shoulder on December 12, 2014. The DMA explained that an asymptomatic partial right
rotator cuff tear of the right shoulder could not be ruled out and that an MRI scan of the right
shoulder prior to the December 12, 2014 left shoulder injury was “the only way to determine if
this lesion was preexisting or whether it developed following the accepted work -related injury.”
He referred to Dr. Van Gorder’s December 18, 2014 notes that appellant was pain free with normal
shoulder ROM following the left rotator cuff repair and explained that overuse of the right shoulder
was “not medically probable in view of the normal functioning of her left shoulder. ” The DMA
also reviewed Dr. Van Gorder’s medical reports dated July 28 and August 3, 2016 and noted that
appellant stopped work in December 2014 and remained off work since that time, and that there
was no mention of appellant’s right shoulder pain until May 5, 2016, almost two years later. He
further noted that appellant had a right shoulder MRI scan on June 12, 2015, more than one year
following the left rotator cuff repair, and explained that if she “had remained working in some
capacity, especially at a job that required overhead lifting, it would be reasonable to assign the
patient’s development of right shoulder pain and partial rotator cuff tear to overuse, but this is not
the case.” The DMA noted that, if additional medical records were provided that documented the
3

onset of appellant’s right shoulder pain while she was still employed by the employing
establishment or at any other job following the left rotator cuff repair, then the issue of causation
could be revisited.
By decision dated March 8, 2017, OWCP denied expansion of the acceptance of
appellant’s claim, finding that the medical evidence of record was insufficient to establish that the
conditions of right shoulder impingement, right shoulder tendinitis, and right partial rotator cuff
tear were consequential to the accepted left shoulder employment injury.
By letter dated June 20, 2017, OWCP referred appellant for a second opinion examination
with Dr. Kevin Scott, a Board-certified orthopedic surgeon, to assess appellant’s current condition.
An August 31, 2017 MRI scan of the right shoulder interpreted by Dr. Andrew
Goldschmidt, a Board-certified diagnostic radiologist, revealed the absence of a full-thickness
rotator cuff tear. In a July 13, 2017 report, Dr. Scott noted appellant’s history of injury and
treatment, examined appellant, and provided physical examination findings. He found full range
of motion (ROM) of both shoulders and diagnosed left shoulder rotator cuff tear. Dr. Scott
explained that there were no other injuries due to the December 12, 2014 employment injury. He
noted appellant’s preexisting left shoulder rotator cuff tear from her 2013 injury. Dr. Scott
reviewed the June 12, 2015 MRI scan of the right shoulder, which revealed partial tearing of the
supraspinatus tendon, subacromial bursitis, and biceps tendon tenosynovitis. He concluded that
the accepted conditions had resolved.
On March 6, 2018 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP had reached a false conclusion based upon the report of the DMA, Dr. Slutsky, that
the DMA’s report should not have been relied upon, and that appellant should have been referred
for a second opinion evaluation regarding the right shoulder.
OWCP received additional medical evidence.
In a March 20, 2018 report, Dr. Michael B. Lax, Board-certified in occupational medicine,
examined appellant and provided his findings. He diagnosed bilateral rotator cuff tears. Dr. Lax
opined that, within a reasonable degree of medical certainty, appellant’s work as a rural postal
delivery worker with many years of exposure to heavy lifting (40-pound buckets of mail) in small
spaces (her delivery car), repetitive movements (upwards of 500 stops for mail), and also a few
specific events, including lifting heavy buckets of mail in December 2014 and turning in her car
to grab a package, contributed significantly to the development of both bilateral chronic shoulder
pain and rotator cuff tears.
On April 30, 2018 OWCP requested clarification from Dr. Scott, regarding whether
appellant developed a right shoulder condition as a consequence of her accepted work-related left
shoulder condition.
In a May 3, 2018 addendum, Dr. Scott noted the definition of a consequential condition,
referred to his prior report and examination, and opined, “I do not find a consequential injury for
the left or right shoulder.”
By decision dated May 29, 2018, OWCP denied modification of the March 8, 2017
decision.
4

On August 2, 2018 appellant, through counsel, filed a timely appeal from the May 29, 2018
OWCP merit decision. By decision dated July 18, 2019, the Board affirmed the May 29, 2018
decision.6
OWCP continued to receive medical evidence regarding appellant’s left shoulder
condition.
On July 17, 2020 appellant, through counsel, requested reconsideration and submitted a
March 7, 2018 report from Dr. Lax. Counsel argued that a conflict existed between Dr. Lax and
the DMA, Dr. Slutsky, as to whether appellant suffered a consequential injury.
In a March 7, 2018 letter, Dr. Lax noted that he saw appellant on August 8, 2017,
referenced his physical findings from August 8, 2017, and advised that appellant suffered from a
right shoulder condition characterized by a rotator cuff tear and impingement. He related that
appellant gave a history that her right shoulder became symptomatic in 2014, shortly after she had
returned to work following a left shoulder rotator cuff repair and subsequent surgical repair related
to OWCP File No. xxxxxx938. Dr. Lax explained that appellant had just recuperated from surgery
and was protecting her left shoulder and utilizing her right arm to compensate. He opined that the
“same work duties, which caused the left shoulder injury then contributed to the injury in the right
shoulder. Consequently, it is my opinion that [appellant’s] right shoulder impingement and rotator
cuff tear was caused or aggravated by her attempting to compensate for the left shoulder injury.”
Dr. Lax noted that he had reviewed the DMA’s December 29, 2016 report and disagreed that
normal ROM and reduced pain in the left shoulder precluded the likelihood that appellant was
compensating for the left shoulder by using her right shoulder. He opined that “it was only natural
for her to protect the left shoulder from reinjury by using the right arm more.” Dr. Lax noted that
Dr. Van Gorder obtained an MRI scan of her right shoulder in June 2015, which supported that
the symptoms were present. He explained that an MRI scan was not usually pursued until the
symptoms became chronic.
By decision dated October 5, 2020, OWCP denied modification of the July 18, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, 7 that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

Supra note 4.

7

K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

employment injury.8 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease. 9
The general rule respecting consequential injuries is that, when the primary injury is shown
to have arisen out of and in the course of employment, every natural consequence that flows from
the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause, which is attributable to the employee’s own intentional conduct. 10 The
subsequent injury is compensable if it is the direct and natural result of a compensable primary
injury. With respect to consequential injuries, the Board has held that, where an injury is sustained
as a consequence of an impairment residual to an employment injury, the new or second injury,
even though nonemployment related, is deemed, because of the chain of causation, to arise out of
and in the course of employment and is compensable. 11
A claimant bears the burden of proof to establish a claim for a consequential injury.12 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the accepted employment injury. 13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that acceptance
of her claim should be expanded to include additional conditions as a consequence of the
December 12, 2014 employment injury.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s May 29, 2018 merit decision because the
Board considered that evidence in its July 18, 2019 decision. Findings made in prior Board
decisions are res judicata absent further review by OWCP under section 8128 of FECA. 14

8

J.B., Docket No. 20-1566 (issued August 31, 2021); see J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

See L.M., Docket No. 18-1514 (issued July 18, 2019); K.D., Docket No. 17-1894 (issued August 6, 2018); A.M.,
Docket No. 18-0685 (issued October 26, 2018); Mary Poller, 55 ECAB 483, 487 (2004); Arthur Larson & Lex K.
Larson, The Law of Workers’ Compensation § 10-1.
11

See K.D, id.; see also S.S., 59 ECAB 315 (2008).

12

See C.H., Docket No. 20-0228 (issued October 7, 2020); P.P., Docket No. 19-1359 (issued April 30, 2020).

13

See T.S., Docket No. 20-0968 (issued August 17, 2021); K.W., Docket No. 18-0991 (issued December 11, 2018);
P.M., Docket No. 18-0287 (issued October 11, 2018).
14

See M.F., Docket No. 21-0390 (issued August 23,2021); P.B., Docket No. 20-0124 (issued March 10, 2021);
J.S., Docket No. 19-0022 (issued November 4, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

In a March 7, 2018 letter, Dr. Lax referred to appellant’s right shoulder MRI scan from
June 2015, which revealed a partial cuff tear and tendinitis. He explained that it was his “opinion
that [appellant’s] right shoulder impingement and rotator cuff tear was caused or aggravated by
her attempting to compensate for the left shoulder injury.” However, the record reflects that, while
appellant had returned to work following her left shoulder injury in OWCP File xxxxxx938, she
did not return to work following the accepted December 12, 2014 employment injury. Therefore,
it is unclear how Dr. Lax formulated his opinion that appellant compensated for her left shoulder,
following the accepted December 12, 2014 employment injury. The Board has held that a medical
opinion that lacks medical rationale is of limited probative value. 15 Moreover, in this letter,
Dr. Lax opined that the “same work duties, which caused the left shoulder injury then contributed
to the injury in the right shoulder.” He did not further explain in this report what activities
appellant engaged in that caused her right shoulder conditions. His opinion was, therefore, not
based on a complete factual background.16 The Board also finds that as Dr. Lax attempted to relate
appellant’s diagnosed right shoulder conditions to performance of her employment duties, and
conversely attempted to opine that her right shoulder condition was a consequence of her
December 12, 2014 left shoulder injury, his opinion was internally consistent. The Board has held
that medical reports are of limited probative value if they are internally inconsistent.17
In his March 20, 2018 report, Dr. Lax opined that, within a reasonable degree of medical
certainty, appellant’s work as a rural postal delivery worker with many years of exposure to heavy
lifting (40-pound buckets of mail) in small spaces (her delivery car), repetitive movements
(upwards of 500 stops for mail), and also a few specific events, including lifting heavy buckets of
mail in December 2014 and turning in her car to grab a package, contributed significantly to the
development of both bilateral chronic shoulder pain and rotator cuff tears.
As Dr. Lax did not provide the necessary medical rationale to establish that appellant’s
right shoulder conditions were a consequence of the accepted left shoulder injury of December 12,
2014, his reports were insufficient to overcome the weight accorded to Dr Scott or to create a
conflict in the medical opinion evidence. The Board thus finds that appellant has not met her
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the additional conditions as a consequence
of the accepted December 12, 2014 employment injury.

15

J.P., Docket No. 19-0129 (issued April 26, 2019).

16

Y.H., Docket No. 19-0835 (issued October 4, 2019); see F.C., Docket No. 19-0594 (issued August 13, 2019).

17

S.H., Docket No. 19-0631 (issued September 5, 2019); L.L., Docket No. 18-0861 (issued April 5, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, BURLINGTON POST
OFFICE, Burlington, NC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0944
Issued: March 23, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 1, 2021 appellant filed a timely appeal from a January 13, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as 21-0944.
On February 4, 2016 appellant, then a 54-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained injuries on January 20, 2016 when she fell down
steps while delivering mail. OWCP accepted the claim for contusion of right hip, contusion of left
hip, left side lumbago with sciatica, left hip trochanteric bursitis, and lumbar intervertebral disc
displacement. It authorized lumbar spinal decompression surgery, which occurred on
December 15, 2016. OWCP paid appellant wage-loss compensation intermittently on the
supplemental rolls and on the periodic rolls from May 28, 2016 until January 4, 2019.
In a report dated June 17, 2019, Dr. Mark Dumonski, a Board-certified orthopedic surgeon,
diagnosed left sacroiliac joint dysfunction and status post L3-4 decompression and fusion. He
opined that appellant had 30 percent permanent impairment of her back, which was based upon 25
percent permanent impairment for L3-4 fusion and 5 percent permanent impairment of the left
sacroiliac joint.
On September 3, 2019 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

On September 18, 2019 OWCP referred appellant to Dr. Chason S. Hayes, a Boardcertified orthopedic surgeon, for a permanent impairment rating. In a report dated October 11,
2019, Dr. Hayes diagnosed lumbar radiculopathy. He found appellant was at maximum medical
improvement (MMI). Using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), he found that appellant had an eight
percent permanent impairment of the lumbar spine. In an addendum dated November 5, 2019,
Dr. Hayes noted that he had been requested to recalculate appellant’s permanent impairment based
upon her peripheral nerve impairment. He concluded that under this method, as appellant had no
motor or sensory deficits she had zero percent permanent impairment.
In a report dated December 10, 2019, Dr. Arthur Harris, a Board-certified orthopedic
surgeon serving as the district medical adviser (DMA), noted his disagreement with Dr. Hayes’
October 11, 2019 impairment rating for lumbar spine impairment as this permanent impairment
rating was not based on The Guides Newsletter Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter) for rating spinal nerve impairments.
He explained that appellant did not have any neurologic deficit causing sensory or motor loss,
therefore she had a Class 0 placement using Table 2 of The Guides Newsletter resulting in zero
percent lower extremity permanent impairment, due to her lumbar radiculopathy.
By decision dated December 30, 2019, OWCP denied appellant’s claim for a schedule
award as the medical evidence of record was insufficient to support an impairment to a member or
function of the body.
In a report dated November 20, 2020, Dr. Dumonski diagnosed left sacroiliac joint
dysfunction. He explained that appellant’s 30 percent permanent impairment rating was based
upon her sacroiliac joint dysfunction, which caused pain to extend into her left leg.
On January 5, 2021 OWCP received appellant’s request for reconsideration of the
December 30, 2019 decision.
By decision dated January 13, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
The Board finds that OWCP did not make findings regarding the evidence appellant
submitted in support of the reconsideration request. 1 OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirement of FECA a nd its implementing
regulations.2 As noted, section 8124(a) of FECA provides that OWCP shall determine and make
1
See R.C., Order Remanding Case, Docket No. 20-1671 (issued May 6, 2021); J.K., Order Remanding Case,
Docket No. 20-0556 (issued August 13, 2020); C.D., Order Remanding Case, Docket No. 20-0450 (issued August 13,
2020); T.B., Order Remanding Case, Docket No. 20-0426 (issued July 27, 2020).
2

See M.G., Docket No. 21-0893 (issued December 27, 2021); Order Remanding Case, W.D., Docket No. 20-0859
(issued November 20, 2020); Order Remanding Case, C.G., Docket No. 20-0051 (issued June 29, 2020); Order
Remanding Case, T.P., Docket No. 19-1533 (issued April 30, 2020); see also 20 C.F.R. § 10.607(b).

2

a finding of fact and make an award for or against payment of compensation. 3 Its regulations at
20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings and
facts and a statement of reasons. 4 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it.5
In the January 13, 2021decision, OWCP did not reference or consider the November 20,
2020 medical report of Dr. Dumonski that appellant submitted in support of her request for
reconsideration. It failed to analyze this evidence. OWCP summarily denied appellant’s request
for reconsideration without complying with the review requirements of FECA and its
implementing regulations. 6 Section 8124(a) of FECA provides that OWCP shall determine and
make a finding of fact and make an award for or against payment of compensation. 7 Its regulations
at 20 C.F.R. § 10.126 provide that the decision of the Director of OWCP shall contain findings of
fact and a statement of reasons. 8 As well, OWCP’s procedures provide that the reasoning behind
OWCP’s evaluation should be clear enough for the reader to understand the precise defect of the
claim and the kind of evidence which would overcome it. 9
The Board will therefore set aside OWCP’s January 13, 2021 decision and remand the case
for an appropriate decision on appellant’s reconsideration request, which considers the evidence
submitted. Accordingly,

3

5 U.S.C. § 8124(a).

4

20 C.F.R. § 10.126.

5

Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all
decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the
disallowance).
6

See C.G., supra note 2; T.P., supra note 2; see also 20 C.F.R. § 10.607(b).

7

5 U.S.C. § 8124(a).

8

20 C.F.R. § 10.126.

9

Supra note 5.

3

IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 13-1228
Issued: March 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 24, 2013 appellant filed a timely appeal from a January 28, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) that denied her request for reconsideration
because it was untimely filed and did not establish clear evidence of error. As there is no merit
decision regarding the issue on appeal that was issued within 180 days of the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.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 this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
On appeal appellant asserts that, based on the opinion of her attending physician, she is
entitled to a schedule award for her left upper extremity greater than the 14 percent previously
awarded.
1

20 C.F.R. § 501.3(e).

2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 16, 2004 appellant, then a 44-year-old sales and service clerk, filed an
occupational disease claim alleging that she had a second rotator cuff tear caused by employment
duties. In decisions dated September 21, 2004 and February 7, 2005, OWCP denied the claim,
but on September 1, 2005 it accepted that she sustained a full-thickness tear of the left rotator
cuff. On November 16, 2006 Dr. Ken Yamaguchi, a Board-certified orthopedic surgeon,
performed arthroscopic revision and repair of a left rotator cuff tear. Appellant returned to
modified duty on January 30, 2007, and on August 29, 2007, Dr. Yamaguchi provided
permanent physical restrictions.
The record indicates that appellant has additional FECA claims, including a prior claim,
adjudicated by OWCP under file number xxxxxx814, accepted for a left rotator cuff tear with
surgical repair. Under that claim, by decision dated July 9, 2003, appellant was granted a
schedule award for 14 percent impairment of the left upper extremity.3
On November 7, 2007 appellant filed a schedule award claim, and submitted a
November 28, 2007 report in which Dr. Yamaguchi indicated that appellant had 50 percent
permanent impairment of the left shoulder due to persistent rotator cuff tear that severely
affected her ability to use her arm over shoulder height. In a December 22, 2007 report,
Dr. Daniel D. Zimmerman, a Board-certified internist and OWCP medical adviser, indicated that
Dr. Yamaguchi’s November 28, 2007 report offered no basis for the impairment rating. He
recommended a second-opinion evaluation for an impairment rating in accordance with the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides).4
On January 9, 2008 OWCP referred appellant to Dr. Jack C. Tippett, a Board-certified
orthopedic surgeon, for a second opinion. In a January 28, 2008 report, Dr. Tippett provided left
arm range of motion findings and indicated that appellant had normal extension, adduction,
internal and external rotation. Flexion was limited to 120 degrees which he advised yielded four
percent impairment in accordance with Figure 16-40 of the fifth edition of the A.M.A., Guides,
and abduction was limited to 80 degrees which yielded five percent impairment under
Figure 16-43. Dr. Tippett concluded that appellant had a total left upper extremity impairment of
nine percent, with a date of maximum medical improvement of August 29, 2007.
Dr. Zimmerman, OWCP’s medical adviser, reviewed Dr. Tippett’s report and agreed that
appellant had nine percent impairment, based on loss of shoulder motion. He noted that, as
appellant had previously received a schedule award for 14 percent left upper extremity
impairment, she was not entitled to an additional schedule award.

3

Additional claims include file number xxxxxx744, accepted for a left arm cut, administratively closed; file
number xxxxxx179, accepted for right shoulder strain; file number xxxxxx430, accepted for right carpal tunnel
syndrome and right trigger finger; and file number xxxxxx538, accepted for left shoulder sprain and rotator cuff tear
on the left. All claims have been combined, with file number xxxxxx814 as the master file. Under file number
xxxxxx430, by decision dated November 5, 2008, the Board affirmed a December 19, 2006 decision finding that
appellant did not establish a recurrence of disability commencing January 13, 2004.
4

A.M.A., Guides (5th ed. 2001).

2

By decision dated February 6, 2008, OWCP found that appellant was not entitled to an
additional schedule award for her left upper extremity. The decision included appropriate appeal
rights.
On March 24, 2010 appellant called OWCP and indicated that she had found a medical
report that was not sent to OWCP regarding her schedule award. OWCP advised her to exercise
her appeal rights.5
On October 17, 2012 appellant filed an occupational disease claim for a torn left rotator
cuff. OWCP adjudicated this new claim under file number xxxxxx538, and it continues under
development.
On December 15, 2012 appellant requested reconsideration of the schedule award under
file number xxxxxx313 and submitted reports dated September 12 to December 7, 2012
regarding disability and physical restrictions. She also submitted an April 2, 2008 report in
which Dr. Yamaguchi indicated that he had reviewed Dr. Zimmerman’s report which suggested
that appellant had only nine percent left upper extremity impairment. Dr. Yamaguchi stated:
“Having reviewed [appellant’s] records, I believe that this impairment rating
grossly underestimates the amount of disability and final impairment she has in
that left shoulder. It should be noted that the goniometer readings and the
[A.M.A., Guides] are based almost entirely on range of motion measurements
which are arbitrarily given and not reflective of motions that are required for
functional range of motion for activities of daily living. They do not weigh also
the relative strength of her motions within the motion arc. The strength that she
has while doing a certain range of motion is of course integral to assessing her
functional impairment. Additionally, the [A.M.A., Guides] do not adequately
make allowances for the effect of pain on a patient’s quality of life and ability to
use the shoulder. For these reasons, I usually do not refer to the [A.M.A., Guides]
which are substantially flawed for impairment ratings in the shoulder.”
Dr. Yamaguchi provided range of motion findings for elevation, abduction external rotation and
external rotation at the side. He concluded:
“Given the context of substantially reduced motion, and just as importantly
substantially reduced strength to the rotator cuff, in the context of significant pain
at the endpoints of these motions and the fact that she has had two rotator cuff
repair surgeries without healing of the rotator cuff, I believe that a permanent
impairment rating of a minimum of 40 percent is applicable to the shoulder. A
standard impairment rating after one failed rotator cuff repair surgery would be 30
percent. I believe 40 percent is the minimum that should be given [appellant]
considering she has had two failed procedures and has had residual deficit not
only in range of motion but also in strength and has significant symptomatic
difficulties with this shoulder. Again, none of these things are adequately
assessed with the [A.M.A., Guides] and the range of motions addressed by the
5

Appellant also submitted medical evidence regarding a right shoulder condition. This claim is adjudicated by
OWCP under file number xxxxxx179.

3

[A.M.A., Guides] are not necessarily those that are required for functional use of
the shoulder for activities of daily living.”
By decision dated January 28, 2013, OWCP denied appellant’s reconsideration request
on the grounds that her request was untimely filed and that she failed to present clear evidence of
error on the part of OWCP.
LEGAL PRECEDENT
OWCP procedures state, and the Board has held, that claims for increased schedule
awards may be based on incorrect calculation of the original award or new exposure. To the
extent that a claimant is asserting that the original award was erroneous based on his or her
medical condition at that time, this would be a request for reconsideration. A claim for an
increased schedule award may be based on new exposure or on medical evidence indicating the
progression of an employment-related condition, without new exposure to employment factors,
has resulted in a greater permanent impairment than previously calculated.6
ANALYSIS
The Board finds this case is not in posture for decision. As noted above, where a
claimant submits medical evidence regarding a permanent impairment at a date subsequent to a
prior schedule award decision, he or she is entitled to a merit decision on the medical evidence.7
In the present appeal, appellant submitted an April 2, 2008 report in which Dr. Yamaguchi
maintained that the A.M.A., Guides was substantially flawed for rating shoulder impairment. He
provided an extensive explanation regarding his opinion that the A.M.A., Guides did not
adequately make allowances for the effect of pain on a patient’s quality of life and ability to use
the shoulder and concluded that appellant had greater impairment than previously awarded. This
report therefore addressed the pertinent issue of this case, i.e., whether appellant was entitled to
additional schedule award compensation for a left upper extremity impairment. The Board finds
that it is evident that she was not seeking reconsideration of the February 6, 2008 decision in her
December 15, 2012 correspondence, but was seeking an increased schedule award based on new
medical evidence. The case will therefore be remanded to OWCP for further development on the
issue of whether appellant is entitled to an increased schedule award for the left upper extremity
impairment.
The Board also notes that appellant has an additional occupational disease claim for a left
rotator cuff tear, adjudicated under file number xxxxxx538. Subsequent to OWCP’s January 28,
2013 decision but prior to her appeal to the Board on March 21, 2013 OWCP accepted that she
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.9.b (February 2013); see Linda T. Brown, 51 ECAB 115 (1999). See also B.K., 59 ECAB 228 (2007)
(a claimant may seek a schedule award if the evidence establishes that he or she sustained an impairment causally
related to an employment injury; even if the term “reconsideration” is used, when a claimant is not attempting to
show error in the prior schedule award decision and submits medical evidence regarding a permanent impairment at
a date subsequent to the prior schedule award decision, it should be considered a claim for an increased schedule
award; OWCP should issue a merit decision on the schedule award claim, rather than adjudicate an application for
reconsideration).
7

Linda T. Brown, id.

4

sustained a left rotator cuff tear under this file number. This indicates that appellant has had new
exposure and/or a progression of her employment-related left rotator cuff tear. OWCP is
continuing to develop this claim. As claim number xxxxxx538 is also a subsidiary of the master
file, xxxxxx814,8 on remand this additional injury should be addressed and considered regarding
appellant’s left upper extremity impairment. Following this and such further developed deemed
necessary, OWCP shall issue a de novo decision on her claim for an increased schedule award.
CONCLUSION
The Board finds this case is not in posture for decision regarding the degree of
impairment of appellant’s left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: March 10, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8

Supra note 3.

5