United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING CMD-STAIONS,
San Diego, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0699
Issued: March 22, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On February 14, 2018 appellant, through counsel, filed a timely appeal from a
December 20, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The appeal was docketed as No. 18-0699.
Appellant, then a 54-year-old motor vehicle operator, filed a traumatic injury claim (Form
CA-1) on November 5, 2012 alleging that on October 24, 2012 he developed a right knee condition
when he twisted his knee while getting off a truck.2 OWCP accepted the claim for right knee
sprain which was expanded to include right medial meniscus tear and right lower leg primary
osteoarthritis. By decision dated October 14, 2016, it granted appellant a schedule award for 13

1

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

Appellant retired from the employing establishment effective October 13, 2017.

percent right lower extremity permanent impairment. By decision dated July 28, 2017 an OWCP
hearing representative affirmed the October 14, 2016 schedule award determination.
On October 10, 2017 appellant, through counsel, requested reconsideration. In support
thereof, counsel submitted medical evidence including x-ray interpretations dated November 10,
2014 and June 26, 2015 and medical reports dated October 17, 2016, October 11, November 15,
and December 6, 2017 from Dr. Robert M. Maywood, a treating Board-certified orthopedic
surgeon. By decision dated December 20, 2017, OWCP denied modification. It concluded that
medical evidence appellant submitted was of insufficient probative value to support modification
of the July 27, 2017 decision, but made no findings regarding the medical evidence submitted.
The Board has duly considered the matter and finds that this case is not in posture for a
decision. Section 8124(a) of the Federal Employees’ Compensation Act provides that OWCP shall
determine and make a finding of fact and make an award for or against payment of compensation.3
Its regulations also provide that the decision shall contain findings of fact and a statement of
reasons.4 The reasoning behind OWCP’s evaluation should be clear enough for the reader to
understand the precise defect of the claim.5
OWCP, in its December 20, 2017 decision, did not discharge its responsibility to set forth
findings of fact and a clear statement of reasons explaining the disposition so that appellant could
understand the basis for the decision, i.e., why he was not entitled to an additional schedule award.
It did not discharge its responsibility to provide appellant a statement explaining the disposition so
that appellant could understand the basis for the decision as well as the precise defect and the
evidence required to establish the claim for an additional schedule award.
The case must be returned to OWCP for a proper decision which includes findings of fact
and a clear and precise statement regarding appellant’s request for reconsideration on the denial of
his claim for an additional schedule award. Following this and such further development as OWCP
deems necessary, it shall issue an appropriate decision.

3

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

4

20 C.F.R. § 10.126. See also M.L., Docket No. 09-0956 (issued April 15, 20101); O.R., 59 ECAB 432 (2008);
Teresa A. Ripley, 56 ECAB 528 (2005).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 20, 2017 is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: March 22, 2019
Washington, DC

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

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

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

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

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

Docket No. 14-1669
Issued: December 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 28, 2014 appellant, through counsel, filed a timely appeal from a May 9, 2014
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.
ISSUES
The issues are: (1) whether appellant has established greater than one percent permanent
impairment of her right upper extremity for which she previously received a schedule award;
(2) whether OWCP properly found an overpayment of compensation in the amount of $2,479.67;
and (3) whether it abused its discretion in denying waiver of recovery of the overpayment.
On appeal counsel argues that the independent medical examiner’s report is insufficiently
rationalized.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 29, 2007 appellant, then a 50-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on June 28, 2007 she sustained an injury to her right wrist after
lifting mail in a truck and feeling something snap in her wrist. OWCP accepted her claim for
right wrist sprain on August 24, 2007.
In a report dated July 24, 2007, Dr. Ira Stark, a Board-certified osteopath, examined the
results of a magnetic resonance imaging (MRI) scan of appellant’s right wrist. He noted a
possible tear of the ulna attachment of the triangular fibrocartilage, with no evidence of ligament
tears or fractures.
On August 24, 2007 Dr. Eric D. Strauss, a Board-certified orthopedic surgeon, performed
an arthroscopy on appellant’s right wrist to repair a triangular fibrocartilage complex (TFCC)
tear. During surgery, he noted that the TFCC showed no signs of damage, whereas the “volarmost aspect of the radius at its articulation with the proximal scaphoid showed an articular injury
down to bone with fibrillation.” Appellant’s postoperative diagnosis was an osteochondral
injury to the right wrist.
In a report dated November 8, 2007, Dr. Nicholas P. Diamond, a Board-certified
osteopath, examined appellant, reviewed her medical history, and diagnosed a right wrist TFCC
tear and status post right wrist arthroscopic debridement and TFCC repair. He noted that her
right wrist injury impacted activities of her daily living, including difficulty in performing
household chores, personal care when washing, sleeping, grasping, pulling, pushing, playing
piano, and driving a motor vehicle. Appellant’s QuickDASH disability index was 66 percent and
her pain level was 6/10. On physical examination Dr. Diamond noted no tenderness over the
palmar or dorsal aspects of the hand and no extensor carpi ulnaris tenderness. Appellant had
negative results for a Tinel’s sign, Phalen’s sign, Finkelstein’s test, carpal compression testing,
metacarpal load testing, and Watson Scaphoid shift testing. Her wrist range of motion included
dorsiflexion of 0 to 25/75 degrees, palmar flexion of 0 to 25/75 degrees, radial deviation of 0 to
10/20 degrees, and ulnar deviation of 0 to 20/35 degrees. Dr. Diamond noted that all ranges of
motion caused pain at the extremes. TFCC load and provocative tests were positive. Grip
testing performed via a Jamar hand dynamometer at Level 3 revealed 16 kilograms (kg) of force
in the right hand versus 28 kg of force in the left hand. Pinch key unit testing measured 6.5 kg
on the right versus 7.75 kg on the left. Manual muscle strength testing was graded at 3+ to 4/5
involving all right wrist movements. Dr. Diamond calculated that, according to the fifth edition
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), appellant had a total right upper extremity impairment of 19 percent, which included an
additional 3 percent for pain.
On March 21, 2008 appellant filed a claim for a schedule award.
On September 24, 2008 OWCP forwarded appellant’s medical history, along with a
statement of accepted facts (SOAF), to Dr. Morley Slutsky, a district medical adviser (DMA), to
determine her impairment rating according to the fifth edition of the A.M.A., Guides. The SOAF
noted that appellant injured her wrist while lifting a mailbox. On September 25, 2008
Dr. Slutsky rated her impairment at 16 percent, noting that inclusion of an additional 3 percent

2

for pain-related impairment would be duplicative because her pain had already limited the
maximum active motion measurements. He determined that appellant’s date of maximum
medical improvement was November 8, 2007, the date of Dr. Diamond’s rating examination.
In an addendum report dated February 12, 2009, Dr. Diamond stated that taking
appellant’s pain level of 6/10 and the impact this pain had on her activities of daily living into
consideration, an extra three percent should be added to her percentage of impairment.
On March 9, 2009 OWCP forwarded Dr. Diamond’s addendum report, along with a
SOAF, to Dr. Slutsky to determine whether he agreed with Dr. Diamond’s findings and to
explain any differences between their reports. The SOAF noted that appellant injured her wrist
while lifting a mailbox and had conservative treatment. Dr. Slutsky responded on March 10,
2009 stating that he disagreed with Dr. Diamond’s impairment rating for the same reason as in
his September 25, 2008 report. He found that appellant’s pain limited the maximum active
motion measurements and was already incorporated in the impairment rating. Assigning an
additional rating for pain-related impairment would, therefore, be duplicative.
By letter dated March 11, 2009, OWCP advised appellant that, due to the conflict in
medical opinion between Drs. Diamond and Slutsky, it intended to schedule a referee medical
examination.
Effective May 1, 2009, OWCP changed its procedures for rating permanent impairment.
For all schedule awards calculated after May 1, 2009, the sixth edition of the A.M.A., Guides
would be used.2 Accordingly, on June 30, 2009 OWCP requested that Dr. Diamond submit an
impairment rating determined in accordance with sixth edition of the A.M.A., Guides within 30
days.
By letter dated June 22, 2009, appellant’s counsel contacted her congressional
representative, contending that appellant was entitled to a formal decision with appeal rights on
her schedule award request under the fifth edition of the A.M.A., Guides. He contended that all
requests for schedule awards made prior to May 1, 2009 should be calculated according to the
fifth edition of the A.M.A., Guides.
On August 11, 2009 OWCP forwarded appellant’s medical history, along with the SOAF,
to a second opinion physician for determination of permanent impairment under the sixth edition.
In a report dated September 18, 2009, Dr. Robert F. Draper, a Board-certified orthopedic
surgeon, provided results on examination, noted reviewing her medical history, and provided a
diagnosis of right wrist sprain and status post arthroscopic surgery for the right wrist with
osteochondral injury. He noted range of motion for right wrist extension of 0 to 60 degrees,
flexion of 0 to 60 degrees, ulnar deviation of 0 to 30 degrees, and radial deviation of 0 to 20
degrees. Dr. Draper stated that appellant continued to complain of pain in the right wrist, noting
that the pain was exacerbated by twisting, turning, and use of the right wrist. He noted a
negative Tinel’s sign, no thenar or hypothenar atrophy, and normal light touch sensation.
2

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

3

Dr. Draper diagnosed wrist sprain/strain as a class 1 and found a grade modifier of one each for
functional history, for physical examination, and for clinical studies. He noted that this resulted
in one percent permanent impairment according to Table 15-3 on page 395 of the sixth edition of
the A.M.A., Guides. Dr. Draper stated that appellant’s date of maximum medical improvement
was June 28, 2008, one year from her date of injury.
On September 30, 2009 OWCP forwarded Dr. Draper’s report, along with the SOAF, to a
DMA for review. On October 11, 2009 Dr. Andrew Merola, a DMA, concurred with
Dr. Draper’s impairment rating and date of maximum medical improvement.
By decision dated December 2, 2009, OWCP granted appellant a schedule award for one
percent impairment of her right upper extremity, for a total payment of $2,479.67. The period of
the award ran from June 28 to July 19, 2008. OWCP noted that the weight of the medical
evidence was accorded to the September 18, 2009 report of Dr. Draper and the October 11, 2009
report of Dr. Merola in calculating the schedule award.
On December 8, 2009 appellant, through counsel, requested a hearing before an OWCP
hearing representative.
With her request, appellant submitted an updated medical report from Dr. Diamond. This
report dated January 8, 2010 utilized the same examination findings from the November 8, 2007
report, but added an addendum which updated its calculation of impairment to conform to the
sixth edition of the A.M.A., Guides. Dr. Diamond rated appellant as having 15 percent right
upper extremity impairment based upon her range of motion deficits and her QuickDASH score
of 66 percent.
The hearing was held on March 30, 2010. At the hearing, appellant contended that
Dr. Draper had only examined her for about 5 minutes out of a 15-minute visit. Counsel noted
that OWCP delayed processing her schedule award claim for over a year and a half, and that no
development of her claim was undertaken until her congressman’s intervention on
September 12, 2008. He stated that the conflict between Drs. Diamond and Slutsky remained as
to whether 3 percent for pain should be added to appellant’s 16 percent impairment rating based
on range of motion, and that she should at least be paid 16 percent because at that time there was
no conflict. Counsel argued that the use of the fifth edition, A.M.A., Guides in the reports of
Drs. Diamond and Slutsky should be accepted because OWCP’s delay in adjudication of her
claim was improper due to no fault of her own and that this delay deprived her of her due process
rights. He also argued that Dr. Draper utilized the sixth edition of the A.M.A., Guides
improperly, because he failed to apply the range of motion method in calculating appellant’s
impairment rating and that, if the hearing representative found that the fifth edition of the
A.M.A., Guides were not the proper standard to use, then he should have directed an independent
medical examination to resolve the conflict of opinion between the sixth edition reports of
Drs. Diamond and Draper. Counsel noted that the SOAF incorrectly stated that appellant injured
herself by lifting a mailbox when, in fact, she was injured by lifting catalogues when her hand
got caught in a tray. The SOAF also failed to indicate that OWCP had accepted a TFCC tear and
approved the wrist surgery on August 24, 2007. Rather, it only stated that she had received
conservative treatment.

4

By decision dated June 16, 2010, the hearing representative set aside OWCP’s
December 2, 2009 decision and remanded the case for further development of the medical
evidence. OWCP noted that the SOAF was not accurate in that it did not describe appellant’s
mechanism of injury correctly or clarify that OWCP had approved surgery for her wrist. The
hearing representative stated that OWCP should update its SOAF, forward the new SOAF to
Dr. Draper along with Dr. Diamond’s updated impairment rating, and request that Dr. Draper
provide a supplemental report regarding upper right extremity impairment. She advised that
OWCP should then refer Dr. Draper’s report to a DMA for review and issue a new decision.
On July 6, 2010 OWCP forwarded Dr. Diamond’s updated impairment rating, along with
a new SOAF, to Dr. Draper for review. The SOAF indicated that appellant had undergone a
right wrist arthroscopy on August 24, 2007, that her mechanism of injury was lifting mail into a
truck, and that her claim had been subsequently accepted for a right TFCC tear.3 Dr. Draper
responded on August 19, 2010, stating that Dr. Diamond’s report of February 12, 2009 was not
usable as it rendered an impairment rating according to the fifth edition of the A.M.A., Guides.
He stated that he had reviewed all of the medical records and there was nothing to add to his
report. Dr. Draper’s September 18, 2009 report remained unchanged.
On September 27, 2010 OWCP requested another supplemental report from Dr. Draper.
It noted that it was not clear whether he reviewed the new SOAF and that there was an updated
report from Dr. Diamond, dated January 8, 2010, which had been updated to the sixth edition of
the A.M.A., Guides.
In a report dated October 7, 2010, Dr. Draper stated that he had reviewed the medical
evidence of record, but that his report remained unchanged and that the evidence did not support
an increase in appellant’s impairment rating beyond one percent. He continued to state that
Dr. Diamond’s report was calculated under the fifth edition of the A.M.A., Guides.
OWCP forwarded Dr. Draper’s October 7, 2010 report to Dr. Henry J. Magliato, a DMA,
on October 18, 2010. In a report dated November 9, 2010, Dr. Magliato concurred with
Dr. Draper’s impairment rating and date of maximum medical improvement.
By decision dated November 23, 2010, OWCP denied appellant’s request for an
increased schedule award. It found the weight of the medical evidence to be the October 7, 2010
report of Dr. Draper and the November 9, 2010 report of Dr. Magliato.
On November 30, 2010 appellant’s counsel requested a hearing before an OWCP hearing
representative.
The hearing was held on March 24, 2011. Counsel noted that Dr. Draper had incorrectly
stated that Dr. Diamond had provided an impairment rating only under the fifth edition of the
A.M.A., Guides. He noted that an updated report of Dr. Diamond had calculated the impairment
according to the sixth edition of the A.M.A., Guides and was in the record. Counsel noted that
Dr. Magliato simply reviewed Dr. Draper’s October 7, 2010 report and concurred with his
3

The record does not contain a formal notice of acceptance, but OWCP did acknowledge in the SOAF that the
claim was subsequently accepted for a right TFCC tear.

5

calculations. He contended that the prior hearing representative’s decision had not been
effectuated by OWCP. In a follow-up letter, counsel stated that Dr. Draper’s report was without
basis to be considered as a second opinion evaluation, and that appellant must be sent to a new
second opinion evaluator or an independent medical examiner in order to resolve the conflict.
By decision dated June 28, 2011, the hearing representative vacated OWCP’s
November 23, 2010 decision and remanded the case for further development. She noted that
Dr. Diamond’s January 8, 2010 report was rendered under the sixth edition of the A.M.A.,
Guides, which used the range of motion alternative for calculating an impairment rating. The
hearing representative directed that Dr. Diamond’s updated report of January 8, 2010 be
forwarded to a DMA for review to provide a reasoned opinion as to whether there was sufficient
evidence to support that the diagnosis-based impairment method did not adequately reflect the
degree of appellant’s permanent impairment.
In a report dated July 19, 2011, Dr. Magliato stated that the reports of Drs. Diamond and
Draper both used correct methods of calculating impairment under the sixth edition of the
A.M.A., Guides. He noted that both examinations were old, and suggested that the conflict be
resolved by referral to a referee medical examiner.
OWCP forwarded medical records, along with the SOAF, to Dr. Howard Zeidman, a
Board-certified orthopedic surgeon, on August 26, 2011 for an independent medical
examination. In a report dated September 15, 2011, Dr. Zeidman provided results on
examination, noting reviewing the medical history, and found that appellant had no residual
disability identifiable on objective examination. He noted that the operative report of August 24,
2007 found that there had been no TFCC tear.
By decision dated October 20, 2011, OWCP denied appellant’s claim for an increased
schedule award based on Dr. Zeidman’s September 15, 2011 report, which found no residual
disability. It advised her that her previously paid schedule award would be recovered as an
overpayment.
On November 1, 2011 OWCP notified appellant of its preliminary finding of an
overpayment in the amount of $2,479.67 for the period June 28 through July 19, 2008.
On October 27 and November 7, 2011 appellant, through counsel, requested a prerecoupment hearing before an OWCP hearing representative. She noted that she disagreed with
the fact of overpayment, stating that she had a permanent disability to her wrist.
In a letter dated February 13, 2012, Dr. Diamond noted that Dr. Zeidman’s September 15,
2011 report did not include range-of-motion measurements, even as he noted that motion was
intact and symmetrical bilaterally. He contended that a TFCC tear diagnosis was reasonable
because the operative report noted that appellant had an osteochondral injury with cartilage
debrided.
The hearing was held on February 27, 2012. Counsel contended that the selection of an
independent medical examiner was incorrect, as Dr. Draper’s report had been “thrown out as
insufficient” and that there was no conflict before Dr. Magliato at the time of his evaluation of
Dr. Diamond’s July 19, 2011 report. He noted that Dr. Zeidman’s report was insufficient,
6

because Dr. Zeidman stated that appellant’s range of motion was symmetrical and therefore full,
despite the fact that she had a previous injury to her left upper extremity, and because he did not
give range-of-motion measurements. Counsel also noted that Dr. Zeidman’s report had not been
sent to a DMA for review.
By decision dated May 7, 2012, the hearing representative vacated the October 20 and
November 1, 2011 OWCP decisions. She found that Dr. Diamond’s February 13, 2012 report
indicated that appellant sustained a permanent impairment to the right upper extremity, and
supported his findings with medical rationale. The hearing representative directed that OWCP
should refer the SOAF, the case record, and Dr. Diamond’s February 12, 2012 report to
Dr. Zeidman for review, after which OWCP should issue a de novo decision.
The SOAF dated June 28, 2012 noted that appellant had sustained a work-related injury
to her left wrist on February 24, 2009, which was accepted under OWCP File No. xxxxxx931 for
left hand contusion, left wrist sprain, and left hand joint derangement.
In a report dated July 26, 2012, Dr. Zeidman stated that “the only item which is new at
this point is the letter from Dr. Zieman, dated February 13, 2012. He discussed the question of
evaluation of the motion and how it is reported.”4 Dr. Zeidman stated that “if the opposite
extremity is neither involved nor previously injured, it must be used to define normal for that
individual and any losses should be made in comparison to the opposite extremity.” He stated
that he noted that motion was symmetrical in his previous report.
OWCP forwarded Dr. Zeidman’s report, along with the SOAF and medical reports, to
Dr. Merola, a DMA. In a report dated August 23, 2012, Dr. Merola noted that, with regard to
Dr. Zeidman’s clinical measurements of range of motion, Dr. Zeidman’s supplemental report
dated July 26, 2012 “backs up his objective data with comparison of motion to the uninjured
side.” He concurred with Dr. Zeidman’s finding of no evidence of residual impairment.
By decision dated September 24, 2012, OWCP denied appellant’s claim for an increased
schedule award, as the evidence was insufficient to establish permanent impairment. It relied
upon Dr. Zeidman’s July 26, 2012 and Dr. Merola’s August 23, 2012 reports in determining
appellant’s eligibility for a schedule award.
On October 2, 2012 appellant, through counsel, requested a hearing before an OWCP
hearing representative. Counsel noted that Dr. Zeidman’s July 26, 2012 report referenced that
the only new evidence received was from a “Dr. Zieman,” which did not make sense. He also
noted that Dr. Zeidman apparently did not read the SOAF, as he justified his range of motion
measurements based upon appellant’s left wrist, referencing a part of the A.M.A., Guides that
allows the opposite extremity to be used as a baseline. Appellant’s left wrist sustained a workrelated previous injury and thus could not be so compared. Counsel contended that, as
Dr. Magliato stated that Dr. Diamond’s assessment of 15 percent impairment under the sixth
edition of the A.M.A., Guides was correct, appellant should be paid that amount. He stated that

4

Dr. Zeidman’s reference to a “Dr. Zieman” appears to be a typographical error, as the only February 13, 2012
letter of record was a letter from Dr. Diamond.

7

there was no conflict for a referee yet and that appellant should be directed for a new second
opinion examination.
By decision dated May 30, 2013, the hearing representative vacated the September 24,
2012 decision of OWCP. He found that direction for a referee examination based upon the
reports of Drs. Diamond and Draper was proper because they were two reports of equal quality
and weight. However, the hearing representative also found that Dr. Zeidman had not resolved
the conflict in medical opinion because he did not explain why he did not use the accepted
condition of a right wrist TFCC tear in lieu of the right wrist sprain diagnosis, and because he
failed to acknowledge that appellant’s left wrist was previously injured and could not be used for
an accurate determination of range of motion. He directed that OWCP schedule a new impartial
referee examination and that this examination be forwarded to a DMA for review.
On June 10, 2013 OWCP forwarded medical records, along with a SOAF, to Dr. Zohar
Stark, a Board-certified orthopedic surgeon, in order to resolve the conflict in medical opinion
between Drs. Diamond and Draper. In a report dated July 9, 2013, Dr. Stark found that appellant
had zero percent permanent impairment. He noted complaints of numbness over the dorsal
aspect of the third and fourth fingers of her right hand. On examination of appellant’s right
wrist, Dr. Stark found local tenderness to palpation over the dorsoradial aspect of the wrist, no
tenderness to palpation over the ulnar aspect of the wrist, and a range of motion of dorsiflexion
to 0 to 60 degrees, ulnar flexion to 0 to 70 degrees, radial deviation to 0 to 20 degrees, and ulnar
deviation to 0 to 30 degrees. He noted no crepitation or clicking on motion and no sensory
deficit to the digits. Dr. Stark noted strength at 28 kilogram (kg), pinch strength of 7 kg, and
negative Tinel’s and Phalen’s tests. He stated that there was no evidence of a TFCC tear and that
as such, it was not appropriate to calculate appellant’s impairment with the diagnosis of a TFCC
tear.
Regarding the TFCC tear, Dr. Stark wrote, “Although that was an accepted condition, it
is my opinion that if [appellant] had the TFCC tear, she has completely recovered from it. At
this point the diagnosis for [appellant] is nonspecific wrist pain postacute injury or surgery.” He
used the Wrist Regional Grid, page 395 and diagnosed a class 1 impairment for nonspecific wrist
pain because there was a history of painful injury and residual symptoms without consistent
objective findings. As to functional history, according to Table 15-7, page 406, Dr. Stark found
pain symptoms with strenuous-vigorous activities with or without medication to control her
symptoms and found appellant able to perform self-care activities independently which
warranted a grade modifier of 1. For physical examination adjustment, he provided a grade
modifier of 1 according to Table 15-8, page 408, based on clicking or clanking by history that is
not reproducible. As for clinical study adjustments, Dr. Stark noted that no imaging studies were
available thereby warranting a zero grade modifier. The net adjustment was minus one
corresponding to grade B and class 1 which was zero percent permanent impairment.
On September 17, 2013 OWCP forwarded Dr. Stark’s report to DMA, Dr. Magliato, for
review. Dr. Magliato concurred with Dr. Stark’s report. He stated that the date of maximum
medical improvement was September 15, 2011.

8

By decision dated October 1, 2013, OWCP denied appellant’s claim for an increased
schedule award relying upon the well-rationalized report of Dr. Stark, the impartial medical
specialist.
On October 7, 2013 appellant, through counsel, requested a hearing before an OWCP
hearing representative.
By letter dated October 31, 2013, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $2,479.67 from June 28 through
July 19, 2008 because she received a schedule award for one percent impairment, but that
subsequent formal decisions found that she actually had zero percent impairment. It found that
she was without fault in the creation of the overpayment. Attached to the decision was a Form
OWCP-20 overpayment recovery questionnaire. OWCP allotted appellant 30 days to complete
the questionnaire and provide supporting documentation for any income or expenses listed.
Appellant did not respond.
The hearing was held on February 19, 2014. Counsel contended that Dr. Stark’s medical
examination was lacking, because he did not perform any neurological testing other than Tinel’s
and Phalen’s tests, range-of-motion measurements, or motor strength measurements. He stated
that Dr. Stark found that there was no TFCC tear, but that this determination was contrary to the
SOAF. Counsel requested that the case file be remanded for another referee medical
examination.
By decision dated May 9, 2014, the hearing representative affirmed the October 1, 2013
decision of OWCP and finalized the overpayment of $2,479.67. Appeal rights for both the
schedule award decision and the overpayment decision were provided to appellant and his
counsel.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
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 the law, good administrative practice requires the use of uniform standards
applicable to all claimants.7 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.8 For decisions issued after

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

8

Id.

9

May 1, 2009, the sixth edition is used to calculate schedule awards.9 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment Class of
Diagnosis condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).12 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.14 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.15
To be of probative value, a medical opinion must be based on a complete factual and
medical background, must be of reasonable medical certainty, and be supported by medical
rationale.16 Medical rationale is a medically sound explanation for the opinion offered.17
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.18
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 1
(January 2010).
10

See Dale B. Larson, 41 ECAB 481, 490 (1990); id. at Chapter 3.700.3.a.3 (January 2010). This portion of
OWCP procedures provide that the impairment rating of a given scheduled member should include any preexisting
permanent impairment of the same member or function.
11

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
12

Id. at 383-419.

13

Id. at 411.

14

5 U.S.C. § 8123(a).

15

20 C.F.R. § 10.321.

16

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

17

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

10

ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained right wrist sprain and a right TFCC tear as a
result of her June 28, 2007 employment injury. By decision dated December 2, 2009, it granted
a schedule award for one percent impairment of her right upper extremity. However, in
subsequent decisions by OWCP and hearing representatives, OWCP denied increased schedule
awards and found that the previous award of one percent impairment had been issued in error.
The most recent OWCP decision of May 9, 2014 affirmed the finding of no permanent
impairment and finalized the $2,479.67 overpayment due to the previously-awarded one percent
schedule award.
On June 10, 2013 OWCP forwarded medical records, along with a SOAF, to Dr. Stark, to
resolve the conflict in medical opinion between Drs. Diamond and Draper. In a report dated
July 9, 2013, Dr. Stark found zero percent impairment. He noted: “Although [TFCC tear] was
an accepted condition, it is my opinion that if she had the TFCC tear, she has completely
recovered from it. At this point the diagnosis for [appellant] is nonspecific wrist pain post-acute
injury or surgery.” Dr. Stark found no tenderness over the area of the TFCC and a full range of
motion and no instabilities of her wrist. As such he opined that it was inappropriate to include
any calculations for a TFCC tear in his schedule award calculation.
With regard to the impairment calculation, Dr. Stark calculated the impairment of the
wrist using the Wrist Regional Grid on page 395. He placed appellant in class 1 impairment for
nonspecific wrist pain given the history of painful injury and residual symptoms without
consistent findings. As to functional history Dr. Stark indicated that she was able to perform
self-care activities independently which warranted a grade modifier of 1. For physical
examination adjustment he assigned a grade modifier 1 for clicking or clanking that was not
reproducible. For clinical studies, Dr. Stark reported no relevant imaging studies in the record
warranting a grade modifier of 0. The net adjustment formula of (GMFH-CDX) + (GMPECDX) + (GMCS-CDX) would equal (1-1) + (1-1) + (0-1) = -1. This would correspond to grade
B and class 1, grade B which is zero percent impairment.
The Board finds that Dr. Stark’s report is well rationalized, based on the SOAF, and
properly applies the A.M.A., Guides to the examination results. Dr. Stark is properly afforded
the weight of the medical evidence.
On appeal, counsel argues that Dr. Stark’s July 9, 2013 report is insufficiently
rationalized because Dr. Stark stated that appellant had no sensory deficit in the digits without
indicating neurological testing, and he did not indicate whether he performed a measurement of
range of motion in accordance with the A.M.A., Guides. He also contends that Dr. Stark
inappropriately found that appellant did not have a TFCC tear, which was contrary to the
accepted conditions listed in the SOAF. However, Dr. Stark’s report provided results on
examination and was based on all of the relevant medical records and diagnostic studies.
Furthermore, his report is not contrary to the SOAF. Dr. Stark recognized that OWCP accepted
the condition of right TFCC tear, but he opined that “if she had the TFCC tear, she has
18

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

11

completely recovered from it.” This observation was based on a physical examination and a
complete review of the medical record. As such, the Board finds the permanent impairment
rating of zero percent was appropriate and based on sound medical explanation.
The Board finds that OWCP properly found an impairment rating of zero percent of the
right upper extremity.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA 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 her duty.19 Section 8129(a) of FECA provides, in pertinent part: When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.20
ANALYSIS -- ISSUE 2
By decision dated December 2, 2009, OWCP granted appellant a schedule award for one
percent permanent impairment of her right upper extremity, for a total payment of $2,479.67. As
it later correctly established that appellant did not have a ratable permanent impairment of the
right upper extremity, she was not entitled to a schedule award for such impairment.21 The entire
amount of the December 2, 2009 schedule award constituted an overpayment of compensation.
Therefore, OWCP’s May 9, 2014 decision finding an overpayment of compensation in the
amount of $2,479.67 was proper under the law and facts of this case.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA22 provides that, where an overpayment of compensation has
been made because of an error of fact or law, adjustments shall be made by decreasing later
payments to which an individual is entitled.23 The only exception to this requirement is found in
section 8129(b) of FECA, which provides that adjustments or recovery may not be made when
incorrect payments have been made to an individual who is without fault and when such
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.24

19

5 U.S.C. § 8102(a).

20

Id. at § 8129(a).

21

See Charles H. Potter, 39 ECAB 645 (1988).

22

5 U.S.C. § 8129(a).

23

Id. at § 8129(a).

24

Id. at § 8129(b).

12

Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment.25 OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in sections 10.434-37 of the implementing
federal regulations.26 Recovery of an overpayment will defeat the purpose of FECA is such
recovery would cause hardship to a currently or formerly entitled beneficiary because: (a) the
beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living
expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics.27 A higher amount is specified for
a beneficiary with one or more dependents.28 Recovery of an overpayment is considered to be
against equity and good conscience when any individual who received an overpayment would
experience severe financial hardship in attempting to repay the debt.29 Recovery of an
overpayment is also considered to be against equity and good conscience when any individual, in
reliance on such payments or on notice that such payments would be made, gives up a valuable
right or changes his or her position for the worse.30
Section 10.438 of the FECA’s implementing regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver and no further request for waiver shall be considered until the requested information is
furnished.31
As the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment or
actions taken which are contrary to both logic and probable deductions from known facts.32
ANALYSIS -- ISSUE 3
In this case, appellant was found to be without fault in the creation of the overpayment.
Accompanying the October 31, 2013 preliminary notice of overpayment, OWCP provided her
25

James Lloyd Otte, 48 ECAB 334, 338 (1997); see William J. Murphy, 40 ECAB 569, 571 (1989).

26

20 C.F.R. §§ 10.434-37.

27

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
28

20 C.F.R. § 10.436.

29

Id. at § 10.437(a).

30

Id. at § 10.437(b).

31

Id. at § 10.438; Linda Hilton, 52 ECAB 476 (2001).

32

Daniel J. Perea, 42 ECAB 214 (1990).

13

with a Form OWCP-20 overpayment recovery questionnaire to obtain information about her
income, assets, and expenses. Appellant did not provide a response to this questionnaire. As a
result, OWCP was unable to review her financial information to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
Consequently, as appellant did not submit the financial information required under
OWCP’s regulations, which was necessary to determine her eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment of compensation in the amount of
$2,479.67.
CONCLUSION
The Board finds that appellant has no ratable impairment of her right upper extremity.
The Board further finds that OWCP properly determined that she received an overpayment of
compensation in the amount of $2,479.67, and OWCP did not abuse its discretion in denying
waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 9, 2014 is affirmed.
Issued: December 28, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Manorville, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq. for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0161
Issued: October 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On October 28, 2019 appellant, through counsel, filed a timely appeal from a September 5,
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 his burden of proof to establish a left upper
extremity condition causally related to the accepted January 25, 2018 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 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 25, 2018 appellant, then a 48-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that same date he was reaching for a scanner from a seated
position and felt a sudden sharp pop/pain in his left bicep and armpit area while in the performance
of duty. He notified his supervisor, stopped work, and sought medical treatment on the date of
injury.
In a development letter dated January 29, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence required and afforded him 30 days to provide the necessary evidence.
In support of his claim, appellant submitted a February 2, 2018 duty status report (Form
CA-17), and February 7, 2018 attending physician’s report from Dr. John-Paul Blaber, Boardcertified in emergency medicine. Dr. Blaber diagnosed left bicep injury and left bicep ecchymosis,
reporting that appellant injured his left bicep while reaching for a scanner at work. In a February 7,
2018 form report, he additionally checked a box marked “Yes” indicating that the conditions were
caused or aggravated by an employment activity. Dr. Blaber provided appellant restrictions,
reported that he was totally disabled from work until further evaluation, and referred him to
orthopedics for additional treatment.
In a February 12, 2018 medical report, Dr. Michael Sileo, a Board-certified orthopedic
surgeon, reported that appellant presented for evaluation of left arm pain following a January 25,
2018 work-related injury. Appellant described a pop in his left bicep muscle while reaching for a
tray at the level of the shoulder. Dr. Sileo reviewed left shoulder x-rays and recommended a
magnetic resonance imaging (MRI) scan of the left shoulder to evaluate for a proximal biceps
tendon rupture versus a possible rotator cuff tear.
In a February 27, 2018 medical report, Dr. Sileo reviewed the results of the February 17,
2018 left shoulder MRI scan which revealed a high-grade partial thickness tear of the rotator cuff,
as well as a more acute rupture of the long head bicep tendon. He opined that this injury was a
direct and causal result of the work-related incident. Dr. Sileo placed appellant on temporary total
disability and discussed surgery to repair the left shoulder.

3

Order Remanding Case, Docket No. 19-0301 (issued August 21, 2019).

2

By decision dated March 8, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that the diagnosed left rotator cuff tear and left
biceps tendon rupture were causally related to the accepted January 25, 2018 employment incident.
In a March 9, 2018 narrative statement, appellant reported that on January 25, 2018, he was
at work for approximately four and a half hours and had finished about one third of his route. He
reached for a scanner from the dashboard cradle when his bicep popped and felt like it exploded.
Appellant described experiencing great pain and called his postmaster to inform her that he had
been injured. He reported no similar pain prior to this incident.
Medical and form reports dated February 2, 2018 were submitted from Dr. Blaber
documenting treatment at urgent care. Dr. Blaber reported that appellant injured his left bicep on
January 25, 2018 while at work. Appellant stated that he was reaching for a scanner and felt a pop
and pain in his left bicep radiating to his left shoulder. Dr. Blaber diagnosed unspecified injury of
muscle, fascia, and tendon of other parts of biceps, left arm. Appellant was discharged with work
restrictions and scheduled for an MRI scan of the left shoulder.
A March 19, 2018 progress note, was also submitted from Richard Georges, a physician
assistant, documenting a follow-up evaluation of the left shoulder.
On August 7, 2018 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a July 13, 2018 report, Dr. Sileo described the January 25, 2018 employment incident
when appellant was reaching across the dashboard of his postal vehicle at the level of his shoulder
and felt a pop in the shoulder and bicipital area, with sudden and severe pain radiating from the
shoulder into the bicep musculature. He noted that this was associated with visible deformity of
the bicep musculature and significant bruising and swelling. Dr. Sileo initially evaluated appellant
on February 12, 2018 and a February 17, 2018 MRI scan of the left shoulder revealed evidence of
rupture of the long head of the bicep, as well as a high-grade partial tear of the rotator cuff
anteriorly (directly next to his bicep tendon rupture). He noted that no evidence of muscle atrophy
was appreciated on his MRI scan, suggesting the ﬁndings were acute (new). Dr. Sileo also noted
some tearing of the labral cartilage.
Dr. Sileo described appellant’s course of treatment and reported no previous history of left
shoulder or bicep pain when he sustained a work-related injury on January 25, 2018. He opined
that the work-related injury directly and causally resulted in a symptomatic left shoulder long head
of the bicep tendon rupture and a high-grade partial tear of the rotator cuff. Dr. Sileo explained
that appellant struggled with persistent pain, and associated weakness of the shoulder, which was
consistent with his objective MRI scan ﬁndings. Furthermore, the MRI scan findings showed no
muscle atrophy (shrinking), which provided objective support suggesting the acute onset of his
injury. Dr. Sileo recommended left shoulder arthroscopic repair and provided work restrictions
for appellant, noting that his condition was permanent and would not improve without surgery.
By decision dated October 29, 2018, OWCP denied modification of the March 8, 2018
decision.
On November 20, 2018 appellant, through counsel, filed an appeal before the Board.
3

By order dated August 21, 2019, the Board set aside the October 29, 2018 decision finding
that it failed to acknowledge, reference, or analyze the July 13, 2018 report of Dr. Sileo.4 The
Board therefore remanded the case for full consideration of all the evidence that was of record at
the time of the October 29, 2018 decision to be followed by a de novo decision.
On remand OWCP evaluated the evidence submitted and reviewed the merits of the case.
By decision dated September 5, 2019, it denied the claim finding that the evidence of record was
insufficient to establish that appellant’s diagnosed left shoulder and bicep conditions were causally
related to the accepted January 25, 2018 employment incident. OWCP found that Dr. Sileo’s
July 13, 2018 report, failed to provide a well-reasoned medical opinion regarding causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background, 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 incident identified
by the employee.10 The weight of the medical evidence is determined by its reliability, its

4

Id.

5

Supra note 2.

6

D.K., Docket No. 17-1186 (issued June 11, 2018); Gary J. Watling, 52 ECAB 278 (2001).

7

T.C., Docket No. 18-1498 (issued February 13, 2019); Michael E. Smith, 50 ECAB 313 (1999).

8

J.M., Docket No. 17-0284 (issued February 7, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

9

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

10

S.S., Docket No. 18-1488 (issued March 11, 2019).

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probative value, its convincing quality, the care of analysis manifested, and the medical rationale
expressed in support of the physician’s opinion.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left upper
extremity condition causally related to the accepted January 25, 2018 employment incident.
Appellant submitted medical reports from Dr. Blaber dated February 2 to 7, 2018.
Dr. Blaber discussed the history of injury when appellant injured his left bicep while reaching for
a scanner at work. In a form report dated February 7, 2018, he diagnosed left bicep ecchymosis
and left bicep injury in which he checked a box marked “Yes,” without further comment, indicating
that the diagnosed conditions were caused or aggravated by the employment incident. The Board
has held that when a physician’s opinion on causal relationship consists only of checking “Yes” to
a form question, without explanation or rationale, that opinion is of diminished probative value
and is insufficient to establish a claim.12 In the remainder of Dr. Blaber’s reports he did not offer
an opinion as to causal relationship. 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.13 Dr. Blaber’s reports, therefore, are insufficient to establish appellant’s claim.
OWCP also received medical reports dated February 12 through July 13, 2018, from
Dr. Sileo. Dr. Sileo diagnosed left shoulder long head of the bicep tendon rupture and high-grade
partial tear of the rotator cuff as evidenced on the February 17, 2018 left shoulder MRI scan, which
he opined were causally related to the January 25, 2018 employment incident. The Board finds
that the reports of Dr. Sileo are not well rationalized.14 While Dr. Sileo provided a firm medical
diagnosis pertaining to the left shoulder and bicep, he failed to provide a sufficient explanation,
based on medical rationale, on the cause of appellant’s conditions. Rather, he only generally noted
that the tendon rupture and rotator cuff tear were trauma-induced.15 The Board has held that
medical evidence that does not offer supporting rationale regarding the cause of an employee’s
condition is of limited probative value.16 Dr. Sileo’s general statement on causation failed to
provide a sufficient explanation as to the mechanism of injury pertaining to this traumatic injury
claim, namely, how reaching for a scanner from a seated position would cause ruptures and tears

11

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

12

M.G., Docket No. 18-1616 (issued April 9, 2020); Sedi L. Graham, 57 ECAB 494 (2006); D.D., 57 ECAB
734 (2006).
13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

R.C., Docket No. 19-0376 (issued July 15, 2019).

15

H.A., Docket No. 18-1466 (issued August 23, 2019).

16

See D.K., Docket No. 17-1549 (issued July 6, 2018).

5

to the left shoulder.17 Therefore, his medical opinion is of limited value and insufficient to
establish his claim.18
OWCP also received a February 17, 2018 MRI scan of the left shoulder. The Board has
held that diagnostic studies, standing alone lack probative value as they do not address whether
the employment incident caused any of the diagnosed conditions.19 Such reports are therefore
insufficient to establish appellant’s claim.
The physician assistant notes of record are also of no probative value. Such healthcare
providers are not considered “physician[s]” as defined under FECA.20 Consequently, their medical
findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.21
As the record lacks rationalized medical evidence establishing causal relationship between
the January 25, 2018 employment incident and appellant’s diagnosed left shoulder conditions the
Board finds that appellant has not met his burden of proof.
Appellant may submit additional evidence or argument with a written request for
reconsideration, to OWCP within one year of the Board’s 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 his burden of proof to establish a left upper
extremity condition causally related to the accepted January 25, 2018 employment incident.

17

See T.H., Docket No. 18-1736 (issued March 13, 2019); R.R., Docket No. 16-1901 (issued April 17, 2017).

18

C.M., Docket No. 19-0360 (issued February 21, 2020); see Mary A. Ceglia, 55 ECAB 626 (2004).

19

F.D., Docket No. 19-0932 (issued October 3, 2019).

20
5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. K.C., Docket No. 19-0834 (issued October 28, 2019); E.T., Docket No. 17-0265 (issued May 25, 2018)
(physician assistants are not considered physicians under FECA).
21

N.B., Docket No. 19-0221 (issued July 15, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
WEAPONS STATION, China Lake, CA,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-366
Issued: September 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
On November 30, 2010 appellant filed an application for review of a November 5, 2010
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his August 13,
2010 request for reconsideration on the grounds that the request was untimely filed and the
evidence failed to establish clear evidence of error. The appeal was docketed as No. 11-366.
In a May 18, 2010 decision, the Board affirmed OWCP decisions dated December 19,
2008 and March 20, 2009 which denied appellant’s claim for an attendant allowance and denied
his request for reconsideration.1 On August 13, 2010 appellant requested reconsideration from
the May 18, 2010 decision and submitted evidence in support of his claim. In a November 5,
2010 decision, OWCP denied the request finding that his reconsideration request was not filed
within one year of OWCP’s December 19, 2008 merit decision.
The Board has considered the matter and finds that the August 13, 2010 request
constituted a timely request for reconsideration. OWCP regulations provide that “[a]n
application for reconsideration must be sent within one year of the date of the OWCP decision
for which review is sought.”2 OWCP procedures note that the one-year time limit for requesting
1

Docket No. 09-1497 (issued May 18, 2010).

2

20 C.F.R. § 10.607(a).

reconsideration begins on the date of the original decision and also accompanies any subsequent
merit decision on the issues, including “any merit decision by the [Board].”3 As the May 18,
2010 decision of the Board was a merit decision, appellant had one year from May 18, 2010 to
request reconsideration. The Board finds that his request was timely, as it was dated August 13,
2010 and received on August 19, 2010, and was clearly made within one year of the Board’s
May 18, 2010 decision. Because appellant filed a timely reconsideration request, the case will be
remanded to OWCP for application of the standard for reviewing timely requests for
reconsideration.4 The “clear evidence of error” standard utilized by OWCP in its November 5,
2010 decision is appropriate only for untimely reconsideration requests. After such further
development as OWCP deems necessary, it should issue an appropriate decision to protect
appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the November 5, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this order.
Issued: September 28, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

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

4

See 20 C.F.R. § 10.606(b)(2).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTION,
Edgefield, SC, Employer
__________________________________________

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

Docket No. 18-0839
Issued: November 19, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 13, 2018 appellant filed a timely appeal from a February 20, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated July 19, 2017, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly determined that appellant had abandoned her request
for a telephone hearing before an OWCP hearing representative.
FACTUAL HISTORY
On August 16, 2016 appellant, then a 46-year-old case manager, filed a traumatic injury
claim (Form CA-1) alleging that on August 9, 2016 she developed lower back pain at work while
she attempted to open a file drawer that appeared to be tightly sealed.
OWCP received a letter dated August 17, 2016 from Kelly A. Blount, a physician assistant,
an undated medical report and a report dated December 19, 2016 from Dr. Cynthia S. Murray, a
Board-certified family practitioner, and reports dated August 16 and 23, 2016 from Dr. Franklin E.
Payne, a Board-certified family practitioner, who diagnosed lumbar strain and addressed
appellant’s work capacity.
OWCP, by development letter dated June 15, 2017, advised appellant that when her claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the merits of the case, payment of a limited amount of medical
expenses was administratively approved. It indicated that it had reopened the claim for
consideration because her medical bills had exceeded $1,500.00. OWCP requested additional
medical evidence and afforded appellant 30 days to submit such evidence. It also requested that
the employing establishment submit treatment notes if she was treated at an employing
establishment medical facility. Neither appellant, nor the employing establishment responded in
the allotted period.
By decision dated July 19, 2017, OWCP denied appellant’s traumatic injury claim as the
medical evidence of record did not contain a rationalized medical opinion explaining how her
diagnosed lumbar condition was causally related to the accepted August 9, 2016 employment
incident.
In an appeal request form dated July 24, 2017 and date stamped as received by OWCP on
August 21, 2017, appellant requested a telephone hearing before an OWCP hearing representative.
On August 21, 2017 OWCP acknowledged receipt of the hearing request.
OWCP received an August 16, 2016 authorization for examination and/or treatment (Form
CA-16). It also received a work capacity evaluation (Form OWCP-5c) dated August 16, 2016,
wherein Ms. Blount advised that appellant was able to perform her usual job eight hours a day
with restrictions.
In a January 3, 2018 letter, a representative of OWCP’s Branch of Hearings and Review
advised appellant that a telephone hearing would be held on February 8, 2018 at 1:45 p.m. Eastern

2

Standard Time (EST).3 The hearing representative instructed her to call the provided toll-free
number shortly before the hearing time and enter the passcode to gain access to the conference
call. She advised appellant that postponement of the hearing would be permitted only upon receipt
showing that her nonelective hospitalization or the death of a spouse, parent, or child prevented
her attendance. The hearing representative mailed the hearing notice to her last known address of
record.
At the appointed time of the scheduled telephone hearing, appellant neither called, nor
contacted OWCP’s Branch of Hearings and Review within the requisite 10 days thereafter.
By decision dated February 20, 2018, the same OWCP hearing representative found that
appellant had failed to appear at the February 8, 2018 telephone hearing and had abandoned her
request. She found that there was no evidence that appellant had contacted OWCP either prior to
or subsequent to the scheduled hearing to explain her failure to appear.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final adverse
decision by OWCP is entitled to receive a hearing upon writing to the address specified in the
decision within 30 days of the date of the decision for which a hearing is sought.4 Unless otherwise
directed in writing by the claimant, OWCP’s hearing representative will mail a notice of the time,
place, and method of the oral hearing to the claimant and any representative at least 30 days before
the scheduled date.5 OWCP has the burden of proving that it mailed notice of a scheduled hearing
to a claimant.6
A hearing before OWCP’s Branch of Hearings and Review can be considered abandoned
only under very limited circumstances.7 With respect to abandonment of hearing requests, Chapter

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A claimant is entitled to a hearing or review of the written record as a matter of right only if the request is filed
within the requisite 30 days determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration. 20 C.F.R. § 10.616(a). However, the Branch of Hearings and Review may exercise its
discretion to either grant or deny a hearing. 5 U.S.C. §§ 8124(b)(1) and 8128(a); Hubert Jones, Jr., 57 ECAB 467,
472-73 (2006); Herbert C. Holley, 33 ECAB 140 (1981). As noted, appellant’s July 24, 2017 telephone hearing
request was date stamped as having been received by OWCP on August 21, 2017. The imaged copy of the envelope
that is in the record before the Board does not have a legible postmark date. Where the postmark is illegible, the
hearing request will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting
that the request is untimely. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.4a (October 2011). Although the evidence regarding date of delivery was more than 30 days
after OWCP’s July 19, 2017 decision, OWCP’s hearing representative properly exercised her discretionary authority
in granting a hearing.
4

5 U.S.C. § 8124(b); 20 C.F.R. § 10.616(a).

5

Id. at § 10.617(b).

6

Michelle R. Littlejohn, 42 ECAB 463 (1991).

7

Claudia J. Whitten, 52 ECAB 483 (2001).

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2.1601(g) of OWCP’s procedures8 and section 10.622(f) of its regulations9 provide in relevant part
that failure of the claimant to appear at the scheduled hearing, failure to request a postponement,
and failure to request in writing within 10 days after the date set for the hearing that another hearing
be scheduled shall constitute abandonment of the request for a hearing. Under these circumstances,
the Branch of Hearings and Review will issue a formal decision finding that the claimant has
abandoned his or her request for a hearing and return the case to the district office.10
ANALYSIS
The Board finds that OWCP properly determined that appellant had abandoned her request
for a telephone hearing before an OWCP hearing representative.
OWCP’s Branch of Hearings and Review received appellant’s July 24, 2017 request for a
telephone hearing which it acknowledged by letter dated August 21, 2017. By letter dated
January 3, 2018, the hearing representative with OWCP’s Branch of Hearings and Review
provided her 30 days written notice of her hearing, which was scheduled for February 8, 2018 at
1:45 p.m. EST.11 OWCP mailed the January 3, 2018 notice of hearing to appellant’s last known
address of record. On appeal, appellant contends that she did not receive notice of the hearing.
However, the record reflects that a copy of the January 3, 2018 hearing notice was mailed to the
correct address of record and was not returned as undeliverable.12 The Board has held, in the
absence of evidence to the contrary, a letter properly addressed and mailed in the due course of
business is presumed to have arrived at the mailing address in due course. This is known as the
mailbox rule.13 As the record reflects that OWCP properly mailed a hearing notice to appellant’s
address of record, it is presumed that it arrived at her mailing address.
Further, appellant did not call-in as instructed for the February 8, 2018 scheduled telephone
hearing and there is no indication that she requested postponement of the hearing.14 Moreover,
she did not submit a written request within the 10-day period following the scheduled hearing
explaining her absence and requesting that another hearing be scheduled.15 The regulations
provide that, where good cause for failure to appear is shown, another hearing will be scheduled

8

Supra note 4 at Chapter 2.1601.6(g) (October 2011).

9

20 C.F.R. § 10.622(f).

10

See supra note 8.

11

See supra note 5.

12

See K.F., Docket No. 17-1035 (issued August 24, 2017).

13

See R.M., Docket No. 14-1512 (issued October 15, 2014).

14

See 20 C.F.R. § 10.622(c).

15

Id. at § 10.622(f).

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and conducted by teleconference.16 Under the circumstances, OWCP’s hearing representative
properly found that appellant abandoned her hearing request.17
CONCLUSION
The Board finds that OWCP properly determined that appellant had abandoned her request
for a telephone hearing before an OWCP hearing representative.
ORDER
IT IS HEREBY ORDERED THAT the February 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2018
Washington, DC

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

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

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

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Id.

17

The case record includes an August 16, 2016 authorization for examination and/or treatment (Form CA-16).
When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a result
of an employee’s claim for an employment-related injury, the Form CA-16 creates a contractual obligation, which
does not involve the employee directly, to pay for the cost of the examination or treatment regardless of the action
taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date
of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
STATION EVERETT, Everett, WA, Employer
__________________________________________

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Appearances:
Cathy C. Deno, for the appellant
Office of Solicitor, for the Director

Docket No. 14-836
Issued: July 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2014 appellant, through his representative, filed a timely appeal of a
February 10, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) which denied his request for reconsideration. As more than 180 days elapsed from
issuance of the most recent merit decision of August 16, 2013 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of this case pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that OWCP did not review all of the medical evidence he
submitted, particularly an August 30, 2013 report from Dr. Gregory Ennis, a Board-certified
family practitioner.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 7, 2012 appellant, then a 54-year-old safety and occupational health
specialist, filed a traumatic injury claim (Form CA-1) alleging that he sustained a lower back
injury on September 24, 2012 as a result of bending and stooping to enter ships in the
performance of duty.
By decision dated December 10, 2012, OWCP denied the claim on the basis that
appellant had failed to establish fact of injury.2
On April 12, 2013 appellant, through his representative, requested reconsideration and
submitted reports dated September 17, 2012 through March 20, 2013 from Dr. Ennis. In a
February 26, 2013 report, Dr. Ennis stated that appellant injured his back at work on
September 24, 2012. On March 20, 2013 he stated that appellant’s pain was so intense that he
developed a blood clot in the leg that broke off and went to his lungs. Appellant was admitted to
the hospital on January 29, 2013 and required an infusion of a clot busting drug to treat his
pulmonary symptoms. Dr. Ennis reported that the attending physician at the hospital, Dr. John
Hutchinson, a Board-certified pulmonologist, stated that the pulmonary embolism (PE) was a
direct result of appellant’s back injury. In a February 2, 2013 report, Dr. Hutchinson indicated
that appellant had been under his care in the intensive care unit for a large pulmonary embolus.
He opined that this was related to appellant’s recent sedentary lifestyle due to his back injury.
By decision dated April 29, 2013, OWCP modified the December 10, 2012 decision to
find that appellant established the September 24, 2012 incident. It denied the claim on the basis
that the medical evidence failed to establish the causal relationship between his low back
condition and the accepted incident.
On June 5, 2013 appellant, through his representative, requested reconsideration. He
submitted a narrative statement and a May 31, 2013 report from Dr. Ennis, who reiterated the
history of appellant’s condition. Dr. Ennis opined that appellant “injured his back while
negotiating a partially blocked watertight door during an inspection on September 24, 2012,
exactly as [appellant] described … and his symptoms support the accident as described.”
By decision dated August 16, 2013, OWCP denied modification of the April 29, 2013
decision.
On October 10, 2013 appellant, through his representative, requested reconsideration. He
resubmitted the February 2, 2013 report from Dr. Hutchinson. Appellant also submitted an
August 30, 2013 report from Dr. Ennis, an attending family practitioner, who stated that
appellant’s injury was caused while passing through a partially occluded watertight doorway
during an inspection aboard a ship on September 24, 2012. The doorway was blocked by an
array of cables, wires, hoses and vents. Appellant stooped to place one foot through the hatch
2

On December 11, 2012 appellant, through his representative, requested an oral hearing before an OWCP hearing
representative. In an April 12, 2013 letter, appellant filed a petition to withdraw his request for an oral hearing. By
decision dated April 24, 2013, an OWCP hearing representative accepted appellant’s request for withdrawal of the
hearing.

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and twisted his torso while trying to find a hand-hold. This was accomplished while ducking his
head and bringing his other foot through the doorway. Dr. Ennis indicated that these combined
movements placed tremendous strain on appellant’s low back. Appellant reported an intensely
sharp, searing pain in his low back just before he was able to get all the way through the
doorway, which Dr. Ennis found was consistent with the magnetic resonance imaging (MRI)
scan findings: a large disc extrusion at L3-4, and smaller other lumbar disc extrusion, all of
which were impinging upon the nerves leading to his legs. He diagnosed lumbar spinal stenosis
with neural claudication from L3-4 disc herniation and indicated that “the disc herniation was
paracentral into the spinal column, unlike most disc herniations that are posterior going away
from the spinal column” and the disc herniation created a narrowing of the spinal canal.
Dr. Ennis explained that what was being “misconstrued [was] that the back injury did not
directly cause the blood clot, but the pain associated with the injury made [appellant] not want to
move” and his “lack of movement allowed blood to pool and a clot to form in his leg.” The clot
broke and traveled to his lungs which caused appellant to pass out and require hospitalization.
Dr. Ennis opined that “[h]ad there been no back injury, there would have been no blood clot, no
PE and no hospitalization.”
By decision dated February 10, 2014, OWCP denied appellant’s request for
reconsideration of the merits finding that he did not submit pertinent new and relevant evidence
or show that OWCP erroneously applied or interpreted a point of law not previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
3

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

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ANALYSIS
In support of his October 10, 2013 reconsideration request, appellant submitted a new
medical report dated August 30, 2013 from Dr. Ennis who stated that appellant’s injury was
caused while passing through a partially occluded watertight doorway during an inspection
aboard a ship on September 24, 2012. The doorway was blocked by an array of cables, wires,
hoses and vents requiring appellant to stop and place one foot through the hatch, then twist his
torso and reach through the doorway to find a hand-hold or try to stand after shifting his upper
body through the doorway. Dr. Ennis stated that these combined movements placed tremendous
strain on appellant’s lower back. Appellant reported an intensely sharp, searing pain in his low
back before he was able to get all the way through the doorway; a pain that Dr. Ennis found was
consistent with the diagnostic findings of a large disc extrusion at L3-4, and smaller other lumbar
disc extrusion, which impinged upon the nerves leading to his legs. He diagnosed lumbar spinal
stenosis with neural claudication from L3-4 disc herniation and stated that “the disc herniation
was paracentral into the spinal column, unlike most disc herniations that are posterior going
away from the spinal column” and the disc herniation created a narrowing of the spinal canal.
Dr. Ennis advised that the back injury did not directly cause the blood clot, but the pain
associated with the injury made appellant not want to move. This lack of movement allowed
blood to pool and a clot to form in his leg. Dr. Ennis stated that “[h]ad there been no back injury,
there would have been no blood clot, no PE and no hospitalization.”
The Board notes that Dr. Ennis addressed the grounds upon which OWCP denied
appellant’s claim. The report pertains to the issue of causal relationship between appellant’s
back condition and the September 24, 2012 employment incident. The Board finds that
Dr. Ennis’ August 30, 2013 report constituted relevant and pertinent new evidence not
previously considered by OWCP. As it meets one of the standards for obtaining a merit review
of his case, the Board finds that OWCP improperly denied appellant’s request.
The Board will set aside OWCP’s February 10, 2014 decision denying appellant’s
request for reconsideration and remand the case for a merit review. After such further
development of the evidence as might be necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).

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ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision of the Board.
Issued: July 21, 2014
Washington, DC

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

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

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

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