United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 15-0318
Issued: September 8, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 25, 2014 appellant, through counsel, timely appealed from an August 21,
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 OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective February 6, 2013 as her accepted employment-related
injury had ceased without residuals; and (2) whether appellant established that she had any
continuing employment-related residuals or disability.
On appeal counsel argues that OWCP has not met its burden of proof in terminating
appellant’s compensation benefits. He also argues that the record contains no proof that the
impartial medical examiner was properly selected.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This matter has previously been before the Board.2
On March 16, 2003 appellant, then a 51-year-old clerk, filed an occupational disease
claim alleging that on February 3, 2003 she first realized her carpal tunnel condition was due to
continuous movement and typing on a 1000 machine. OWCP accepted the claim for right carpal
tunnel syndrome, which was expanded to include right ulnar nerve compression, and a July 4,
2006 claim for a recurrence of disability. By letter dated May 21, 2007, OWCP placed appellant
on the periodic rolls for temporary total disability.
On March 27, 2008 OWCP found a conflict in the medical opinion evidence between
Dr. Scott Fried, a treating Board-certified osteopathic orthopedic surgeon, and Dr. Robert A.
Smith, a second opinion Board-certified orthopedic surgeon, on the issue of appellant’s disability
status and need for additional treatment. On April 23, 2008 appellant was referred to Dr. Elliot
Menkowitz, a Board-certified orthopedic surgeon, to resolve this conflict.
In a May 6, 2008 report, Dr. Menkowitz, based upon a review of the medical evidence,
statement of accepted facts, and physical examination, concluded that appellant was capable of
working. He noted that appellant had right carpal tunnel surgery on July 15, 2005 and that she
was currently not working. A physical examination revealed normal finger, hand, and wrist
range of motion, normal pinch and grip strength and no shoulder atrophy. Dr. Menkowitz opined
that appellant was capable of returning full time to a modified job, provided restrictions, and
concluded that she had recovered from her 2003 employment injury.
On August 21, 2008 the employing establishment offered appellant a modified mail
processor position based on Dr. Menkowitz’s restrictions.3 Appellant accepted the position and
started work on October 3, 2008.
In an October 23, 2008 progress note, Dr. Fried related that appellant reported increased
symptoms following the start of her modified job on October 3, 2008. Appellant reported
throbbing pain, numbness, and tingling as a result of casing mail. Dr. Fried, in an October 23,
2008 disability note, opined that appellant was unable to work and was under his care.
On October 24, 2008 appellant filed a claim for a recurrence of disability beginning
October 23, 2008.

2

Docket No. 10-2399 (issued September 28, 2011).

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The duties of the position included up to four hours of casing mail and manual letter distribution and up to four
hours of verifying caller trays in acceptance unit. The physical requirements of the position were listed as no
standing more than 6 hours; reaching up to 2 hours; up to 1 hour of lifting up to 10 pounds; less than 1 hour of
reaching above the shoulder; and 10-minute breaks every 3 hours. Appellant initially rejected the position as she
was unable to case mail due to the severity of her condition. She accepted the position following a September 8,
2008 letter from OWCP informing her that the position was found to be suitable and advising her of the penalty
provision of 5 U.S.C. § 8106(c).

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In a November 13, 2008 progress note, Dr. Fried and Dana Steiner, a certified physician
assistant, reported that appellant continued to be disabled from work due to flared upper
extremity symptoms. They noted her symptoms have calmed down since stopping work on
October 23, 2008, but she has not returned to baseline. Dr. Fried and Ms. Steiner opined that the
modified job appellant returned to was not suitable as the activities required of the position were
outside her physical restrictions.
Dr. Fried and Ms. Steiner, in December 8, 2008 progress notes, reported that appellant
continued to experience numbness spreading bilaterally from her shoulders into her hands.
Appellant continued to be disabled from working.
In subsequent progress notes dated January 19 and February 16, 2009, Dr. Fried and
Ms. Steiner reported that appellant continued to have ongoing numbness which was worsening.
They opined that she continued to be disabled due to her accepted employment injuries.
In a February 3, 2009 report, Dr. Menkowitz related that his physical examination
revealed a normal examination of the upper extremities, no atrophy and “[t]he sensory patterns
did not follow any anatomic description.” He reported that he found no evidence of any
orthopedic abnormalities and recommended a psychological evaluation. Dr. Menkowitz opined
that appellant had recovered from her accepted employment injury.
In a March 11, 2009 report, Dr. Fried opined that appellant’s work injuries were
substantial, severe, and worsening. A physical examination revealed bilateral positive median
nerve dysesthesias, a positive Tinel’s sign of the left ulnar nerve, positive Roos and Hunter tests,
and spasm in the trapezius muscle. Diagnoses included: bilateral tenosynovitis, bilateral
neuropathy, and bilateral carpal tunnel syndrome.
In a supplemental report dated April 10, 2009, Dr. Menkowitz opined that appellant did
not have a recurrence of disability on October 23, 2008 as a result of her accepted employment
injury.
By decision dated April 9, 2009, OWCP denied appellant’s recurrence claim.
In a letter dated April 14, 2009, appellant’s counsel requested an oral hearing before an
OWCP hearing representative.
By decision dated June 11, 2009, an OWCP hearing representative set aside the denial of
appellant’s recurrence claim as the statement of accepted facts provided to Dr. Menkowitz
contained “irrelevant” and “potentially prejudicial” information. In this regard, the statement
included a prior denial of appellant’s claim for hypnotherapy and that appellant was being
represented by a law firm. The hearing representative remanded the case to OWCP for
preparation of a new statement of accepted facts and referral to another physician.
The record reflects that a new statement of accepted facts was prepared on August 19,
2009 pursuant to OWCP’s hearing representative’s instructions and a referee medical referral
form was ordered noting physicians involved in the case.

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On August 28, 2009 OWCP referred appellant to Dr. Stephanie Sweet, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Fried
and Drs. Smith and Menkowitz on the issue of appellant’s disability status and need for
additional treatment. It also requested that Dr. Sweet provide an opinion as to whether appellant
sustained a recurrence of disability beginning October 23, 2008.
On October 15, 2009 Dr. Sweet, based upon a statement of accepted facts, review of the
medical evidence and physical examination, opined that appellant did not sustain a recurrence of
disability on October 23, 2008 due to her accepted employment injury. She reported signs of
symptom magnification on physical examination. A physical examination revealed no obvious
right shoulder restriction, no atrophy, nonanatomic radiation at the right cubital tunnel, negative
Phalen’s test, and no true loss of strength. Dr. Sweet reviewed electromyography (EMG) studies
performed on July 5 and August 1, 2006 and October 21, 2008, which showed no abnormalities.
In support of this conclusion, she related that she found no evidence of any ongoing work-related
problem and her complaints of pain were out of proportion to the objective and physical findings.
Dr. Sweet related the EMG studies did not correlate with appellant’s symptoms. She noted that
appellant had been previously treated for right carpal tunnel syndrome with successful right
nerve compression surgery. Dr. Sweet concluded that appellant was capable of returning to work
with no restrictions and required no further medical treatment.
By decision dated December 2, 2009, OWCP denied appellant’s claim for a recurrence of
disability beginning October 23, 2008. It found the report of Dr. Sweet established that appellant
did not have a recurrence of disability due to her accepted employment injury.
In a letter dated December 8, 2009, appellant’s counsel requested an oral hearing before
an OWCP hearing representative, which was held on March 31, 2010.
By decision dated July 12, 2010, OWCP hearing representative affirmed the December 2,
2009 decision denying appellant’s claim for a recurrence of disability.
Appellant appealed to the Board on September 27, 2010.
In an order dated
September 28, 2011, the Board set aside the July 12, 2010 OWCP hearing representative’s
decision and remanded the case to OWCP as the evidence of record was insufficient to establish
that OWCP had properly selected Dr. Sweet as an impartial medical examiner.4 On May 25,
2012 the Board issued an order denying the Director of OWCP’s petition for reconsideration.5
The Board also issued a separate order denying the Director of OWCP’s request for an oral
argument.6
In a September 13, 2011 report, Dr. Arthur Becan, an orthopedic surgeon, noted
appellant’s employment and medical history. He noted that EMG studies dated February 22,
2003, May 13 and October 14, 2004 showed abnormalities in the carpal tunnel. Dr. Becan
diagnosed right carpal tunnel syndrome, status post right carpal tunnel release, right elbow ulnar
4

Docket No. 10-2399 (issued September 28, 2011).

5

Order Denying Petition for Recon., Docket No. 10-2399 (issued May 25, 2012).

6

Order Denying Request for Oral Argument, Docket No. 10-2399 (issued May 25, 2012).

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neuropathy, and status post right wrist ulnar nerve neurolysis. On physical examination he noted
a positive Tinel’s sign along the right elbow ulnar nerve, restricted right elbow range of motion,
pain on flexion and extension, right wrist palmar tenderness, positive right wrist Tinel’s and
Phalen’s signs, restricted right wrist range of motion, and pain on palmar flexion, ulnar
deviation, and dorsiflexion. Using the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Becan found 11
percent right upper extremity permanent impairment.
On December 15, 2011 appellant filed a claim for a schedule award.
OWCP prepared a statement of accepted facts, a list of specific questions, and a statement
of the conflict. The record contains a memorandum of Referral to Specialist, an ME023Appointment Schedule Notification referring appellant to Dr. John R. Donahue, a Board-certified
orthopedic surgeon, screen captures indicating that Drs. Menkowitz and Sweet were bypassed to
perform the impartial medical examination as they had previously seen appellant, and screen
captures indicating that Dr. Evan Kovalsky, a Board-certified orthopedic surgeon, and
Dr. William Spellman, a Board-certified orthopedic surgeon, were bypassed to perform the
impartial medical examination as they did not perform impairment ratings.
By letter dated August 9, 2012, OWCP requested that Dr. Donahue resolve the conflict in
the medical opinion evidence regarding appellant’s claim of a recurrence of disability beginning
October 23, 2008 and the issue of appellant’s disability status and need for additional treatment.
It also requested him to assess appellant’s right upper extremity impairment pursuant to the sixth
edition of the A.M.A., Guides.
In a September 17, 2012 report, Dr. Donahue detailed the reports and objective tests that
he reviewed. A physical examination revealed negative elbow Tinel’s sign; negative bilateral
Spurling’s test; no evidence of thenar eminence weakness; normal pinch strength; normal elbow
and wrist extension, flexion, abduction, and adduction; full bilateral wrist, hand, elbows, and
shoulders range of motion without pain; normal stability and strength; unremarkable motor,
reflex, and sensory examination although appellant complained of right arm variable tingling.
He related that a physical examination revealed no objective findings supporting ongoing carpal
tunnel syndrome or ulnar nerve compression. Thus, he concluded that appellant was capable of
performing her date-of-injury position with no restrictions and required no further medical
treatment for the accepted employment conditions. In an attached work capacity evaluation
(Form OWCP-5c) dated July 18, 2012, Dr. Donahue indicated that appellant had no restrictions
and was capable of performing her date-of-injury job.
By decision dated October 1, 2012, based on Dr. Donahue’s report, OWCP denied
appellant’s claim for a schedule award as there was no employment-related permanent
impairment entitling appellant to a schedule award.
On October 12, 2012 OWCP issued a notice proposing to terminate appellant’s
compensation benefits based on Dr. Donahue’s report. It allotted appellant 30 days to submit
additional information. Appellant did not respond within the allotted time.

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By decision dated February 6, 2013, OWCP terminated appellant’s compensation
benefits effective that day.
In a letter dated February 11, 2013, appellant’s counsel requested an oral hearing before
an OWCP hearing representative, which was changed to a request for review of the written
record.
On February 26, 2013 OWCP received a December 11, 2012 report by Dr. Stanton O.
Bree, an examining Board-certified physiatrist, and a February 11, 2013 report from Dr. Fried.
In a December 11, 2012 EMG report, Dr. Bree noted that appellant was seen that day and
provided a medical and employment injury history. He performed motor and sensory conduction
studies and an EMG examination. Based on these studies, Dr. Bree diagnosed mild right wrist
median neuropathy, moderate left wrist neuropathy, and mild right C5 radiculopathy. A motor
conduction study revealed right median nerve prolonged distal latency, normal conduction
velocity and normal amplitude, and right ulnar nerve above and below the elbow normal
amplitude, distal latency, and conduction velocity. A sensory examination revealed normal right
ulnar nerve latency and amplitude.
In a February 11, 2013 report, Dr. Fried noted the history of appellant’s employment
injury, her work history, and medical care received. He disagreed with Dr. Donahue’s opinion
that appellant’s condition had resolved as the report did not contain any documentation that
“standard neurologic testing for carpal tunnel or brachial plexus involvement in either upper
extremity” was performed. Dr. Fried diagnosed bilateral flexor tenosynovitis, bilateral radial
neuropathy at the radial tunnel, brachial plexitis, carpal tunnel median neuropathy due to work
activities, and right Raynaud’s versus White hand syndrome. He related that objective testing in
the form of EMG examination and nerve conduction studies show that appellant continues to
have residuals of right carpal tunnel syndrome as well as “[p]roximal involvement at the brachial
plexus” and radial and ulnar nerve involvement.
By decision dated August 14, 2013, OWCP’s hearing representative affirmed the
termination of appellant’s compensation benefits, but remanded for further development of the
evidence based on the new evidence received following the February 6, 2013 decision
terminating appellant’s compensation.
In a September 13, 2013 letter, OWCP requested a supplemental report from
Dr. Donahue based on an OWCP hearing representative’s findings in the August 14, 2013
decision.
In a supplemental report dated October 3, 2013, Dr. Donahue, based on a review of a
December 11, 2012 EMG report by Dr. Bree, and a February 11, 2013 report from Dr. Fried,
reiterated his conclusion that appellant had no residuals or disability due to her accepted
conditions. He stated that he “inadvertently left out the negative Tinel’s and Phalen’s sign” on
the examination of appellant’s right wrist. Dr. Donahue related that he found no evidence of
carpal tunnel syndrome either clinically or objectively and that the condition had been surgically
corrected.

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In a November 12, 2013 report, an OWCP medical adviser reviewed the evidence
relevant to appellant’s schedule award claim. The medical adviser noted that “[m]ultiple EMG
studies have demonstrated significant distal latencies in the carpal tunnel” including the most
recent study of December 11, 2012.” Based on review of this objective evidence, the medical
adviser opined that there was “definite abnormality in regard to the EMG study.” The medical
adviser stated that Dr. Donahue omitted key examination findings in his original report, but
stated they were normal in the October 3, 2013 supplemental report.
In a December 13, 2013 decision, OWCP found the evidence insufficient to establish that
she had any residuals from her accepted right ulnar nerve lesion and right carpal tunnel disease
and she was not entitled to any further wage-loss compensation based on the termination of her
benefits. It found the special weight of the evidence rested with Dr. Donahue that appellant’s
accepted conditions had resolved with no residuals or disability. Dr. Donahue also opined that
appellant was not entitled to a schedule award as there was no hand impairment.
In a letter dated December 19, 2013, appellant’s counsel requested an oral hearing before
an OWCP hearing representative, which was held on May 22, 2014.
By decision dated August 21, 2014 an OWCP hearing representative affirmed the
December 13, 2013 OWCP decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.7 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.8 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.10 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.11
Section 8123(a) of FECA provides in pertinent part: if there is 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 an examination.12 This is called a
7

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

8

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

9

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

10

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

11

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

12

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

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referee examination and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.13
When there exists opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14
A physician selected by OWCP to serve as an impartial medical specialist should be
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.15
The Medical Management Application (MMA), which replaced the Physician Directory
System (PDS), allows users to access a database of Board-certified specialist physicians and is
used to schedule referee examinations. The application contains an automatic and strict
rotational scheduling feature to provide for consistent rotation among physicians and to record
the information needed to document the selection of the physician.16
The claims examiner is not able to determine which physician serves as the impartial
medical specialist. A medical scheduler inputs the claim number into the application, from
which the claimant’s home zip is loaded. The scheduler chooses the type of examination to be
performed (second opinion or impartial referee) and the applicable medical specialty. The next
physician in the roster appears on the screen and remains until an appointment is scheduled or
the physician is bypassed. If the physician agrees to the appointment, the date and time are
entered into the application. Upon entry of the appointment information, the application prompts
the medical scheduler to prepare an ME023 appointment notification report for imaging into the
case file. Once an appointment with a medical referee is scheduled, the claimant and any
authorized representative are to be notified.17
If an appointment cannot be scheduled in a timely manner or cannot be scheduled for
some other reason such as a conflict or the physician is of the wrong specialty, the scheduler will

13

20 C.F.R. § 10.321.

14

S.R., Docket No. 09-2332 (issued August 16, 2010); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J.
Godfrey, 52 ECAB 486 (2001).
15

D.A., Docket No. 09-936 (issued January 13, 2010); Raymond J. Brown, 52 ECAB 192 (2001).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5
(May 2013); see also R.C., Docket No. 12-468 (issued October 25, 2012).
17

Id.

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update the application with an appropriate bypass code. Upon the entering of a bypass code, the
MMA will select the next physician in the rotation.18
ANALYSIS -- ISSUE 1
OWCP accepted the claim for right carpal tunnel syndrome and right ulnar nerve
compression. In a February 6, 2013 decision, it terminated her wage-loss compensation and
medical benefits finding that she had no residuals of her accepted February 3, 2003 work injury.
OWCP relied on the September 17, 2012 report of Dr. Donahue, a Board-certified orthopedic
surgeon, who served as an impartial medical specialist. On August 14, 2013 an OWCP hearing
representative affirmed the termination of appellant’s compensation benefits, but remanded for
further development based on new evidence submitted subsequent to the February 6, 2013
decision. The issue on appeal is whether OWCP met its burden of proof to terminate appellant’s
compensation. The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits.
Contrary to counsel’s argument, the record demonstrates that OWCP properly utilized the
MMA in selecting Dr. Donahue as the impartial medical examiner. OWCP confirmed
Dr. Donahue’s availability on August 9, 2012 and scheduled appellant for an appointment. The
record includes a RME Referral Form, iFECS Report: ME023 -- Appointment Schedule
Notification and iFECS screen captures which indicated that Drs. Kovalsky, Menkowitz,
Spellman, and Sweet had been properly bypassed. Drs. Menkowitz and Sweet were bypassed
because they had previously seen appellant while Drs. Kovalsky and Spellman were bypassed
because they did not perform impairment ratings. The Board finds OWCP properly selected
Dr. Donahue as an IME.19
In his reports of September 17, 2012 and October 3, 2013, Dr. Donahue concluded, based
on physical examination findings, that appellant had no objective findings supporting ongoing
right carpal tunnel or right ulnar nerve compression. He also concluded that appellant no longer
had any residuals or disability due to the employment-related conditions and was capable of
performing her date-of-injury position without restrictions. Dr. Donahue related that he found
normal range of motion of the right upper extremity, no evidence of carpal tunnel syndrome
either clinically or objectively, and that the condition had been surgically corrected. His opinion
is sufficient to resolve the question of whether appellant continued to suffer from any residuals
or disability causally related to her accepted right carpal tunnel syndrome and right ulnar nerve
compression.20
The Board finds that, under the circumstances of this case, the opinion of Dr. Donahue is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant’s work-related conditions had ceased.21 Where
18

Id.

19

C.W., Docket No. 12-1211 (issued November 15, 2012); Darlene R. Kennedy, supra note 14.

20

D.C., Docket No. 12-1921 (issued August 13, 2013); Darlene R. Kennedy, supra note 14.

21

T.B., Docket No. 13-1960 (issued February 18, 2014); Jaja K. Asaramo, 55 ECAB 200 (2004).

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there exists a conflict of medical opinion and the case is referred to an impartial specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, is entitled to special weight.22
The Board has carefully reviewed the opinion of Dr. Donahue and finds that it has
reliability, probative value, and convincing quality with respect to its conclusions regarding the
relevant issue in the present case. Dr. Donahue reviewed the statement of accepted facts and
provided detailed physical examination findings.23 He related his comprehensive examination
findings to opine that appellant no longer had any residuals from her accepted right carpal tunnel
or right ulnar nerve compression. As there were no objective findings related to her accepted
conditions, Dr. Donahue further opined, that appellant’s disability had ceased, there were no
limitations on her physical capacity, and that she could resume her normal work activities. He
provided medical rationale for his opinion by explaining that appellant’s carpal tunnel surgery
corrected her accepted conditions. Dr. Donahue’s opinion is sufficiently probative, rationalized,
and based upon a proper factual background.24 Dr. Donahue’s report is entitled to special weight
as the impartial medical examiner and establishes that OWCP properly terminated her
compensation benefits effective February 6, 2013.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to appellant to establish that she had any disability causally related to her accepted
injury.25
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for a decision on the issue of whether
appellant had continuing disability or residuals as a result of her accepted right carpal tunnel
syndrome and right ulnar nerve compression conditions.
In a February 11, 2013 report, Dr. Fried disagreed with Dr. Donahue’s opinion that
appellant’s condition resolved as the report did not contain any documentation that “standard
neurologic testing for carpal tunnel or brachial plexus involvement in either upper extremity”
was performed. He diagnosed bilateral flexor tenosynovitis, bilateral radial neuropathy at the
radial tunnel, brachial plexitis, carpal tunnel median neuropathy due to work activities, and right
Raynaud’s versus White hand syndrome. Dr. Fried related that objective testing in the form of
EMG study examination and nerve conduction studies show that appellant continues to have
residuals of right carpal tunnel syndrome as well as “[p]roximal involvement at the brachial
plexus” and radial and ulnar nerve involvement.

22

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

23

See Melvina Jackson, 38 ECAB 443 (1987).

24

L.S., Docket No. 13-716 (issued June 4, 2013).

25

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

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In a supplemental report dated October 3, 2013, Dr. Donahue, reviewed a December 11,
2012 EMG report by Dr. Bree, and a February 11, 2013 report from Dr. Fried and reiterated his
conclusion that appellant had no residuals or disability due to her accepted conditions
In a November 12, 2013 report, an OWCP medical adviser disagreed with Dr. Donahue’s
opinion regarding the objective evidence as “[m]ultiple EMG studies have demonstrated
significant distal latencies in the carpal tunnel” including the most recent study of
December 11, 2012.” Based on review of this objective evidence, the medical adviser opined
there was “definite abnormality in regard to the EMG study.”
The Board finds that there is an unresolved conflict in the medical opinion evidence with
respect to issue of whether appellant continues to have residuals or disability due to her accepted
conditions. Dr. Donahue’s opinion is in conflict with that of appellant’s treating physician and
the OWCP medical adviser regarding the interpretation of EMG studies and continued residuals.
Dr. Fried submitted a February 11, 2013 report explaining his disagreement with Dr. Donahue’s
opinion and that the objective evidence supports continued residuals. His opinion supports
appellant’s contention that her accepted conditions had not resolved and that she continued to
have residuals of her accepted conditions.
Due to the unresolved conflict of the medical opinion, OWCP should refer appellant to an
appropriate Board-certified specialist for an impartial medical examination, pursuant to 5 U.S.C.
§ 8123(a), to resolve this remaining issue. After this and such other development as OWCP
deems necessary, OWCP should issue a de novo decision on the issue.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective February 6, 2013. The Board further finds that the case is not in
posture for a decision as to whether appellant continued to suffer from employment-related
residuals or disability as a result of her accepted right carpal tunnel syndrome and right ulnar
nerve compression conditions.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2014 is affirmed in part with regard to termination of
benefits and set aside in part with regard to continuing disability. The case is remanded for
further action consistent as set forth above.
Issued: September 8, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
FRANK M. TEJEDA OUTPATIENT CLINIC,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 07-639
Issued: July 20, 2007

Case Submitted on the Record

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

JURISDICTION
On January 4, 2007 appellant filed an appeal of an April 21, 2006 decision of the Office
of Workers’ Compensation Programs denying his occupational disease claim and an October 31,
2006 decision denying his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has established that he sustained musculoskeletal or
neurologic conditions in the performance of duty; (2) whether he has established that he
sustained an emotional condition in the performance of duty; and (3) whether the Office properly
denied appellant’s request for an oral hearing.

FACTUAL HISTORY
On September 28, 2005 appellant, then a 58-year-old rating specialist, filed an
occupational disease claim (Form CA-2), asserting that beginning in February 2005 workplace
exposures to cold temperatures and high humidity caused his bodily tissues to “gell.” From
September 30 to November 22, 2005, he submitted a series of occupational disease claims
asserting that he sustained petit mal and absence seizures, headaches, joint pain, fibromyalgia,
lumbar pain, numbness, muscle cramping, stiffness, arthritis, photophobia, high cholesterol,
anxiety and stress due to an involuntary schedule change from 7:00 a.m. to 3:30 p.m. to 8:00
a.m. to 4:30 p.m. which would expose him to increased rush hour traffic, fluorescent lights,
computer problems, climbing stairs, low ambient humidity, high ambient humidity, excessive
heat, a lack of handicapped parking spaces and commuting by car in slow traffic. Appellant also
attributed his seizures to air conditioner humming, strobe lights, crowds of people conversing,
machine noise, cloudy days, allergies, pollution, airplane noise, weather changes within 600
miles of his person and solar flares.
Appellant submitted numerous reports from 1966 to 2002 documenting the presence of
petit mal and absence seizures, congenital malformations of the lumbar spine, lumbar
spondylolisthesis, lumbar strains, generalized degenerative arthritis, osteopenia of the hands and
sleep apnea. In a February 27, 2004 report, Dr. Hardeep Singh, an attending Board-certified
internist, diagnosed depression. These reports did not mention work factors. Appellant also
submitted a chronology of the development and treatment of his conditions.
In an October 14, 2005 letter, Ann Alvarez, a coworker, asserted that the building in
Houston where she and appellant worked until January 2005 had humidity problems and a strong
smell of urine due to leaking showers on an upper floor.
The employing establishment controverted appellant’s claims. In a November 7, 2005
memorandum, it was asserted that a September 2005 inspection did not reveal any environmental
concerns relevant to appellant’s allegations. In a November 9, 2005 email, the employing
establishment explained that it replaced his computer three times due to his complaints but, that,
no specific problem was ever identified. In a November 30, 2005 letter, the employing
establishment explained that, on August 21, 2005, appellant and his ten-team members were
placed on a modified flex schedule of 8:00 a.m. to 4:30 p.m., one hour later than appellant’s 7:00
a.m. to 3:30 p.m. schedule. The employing establishment affirmed that on one unspecified date
appellant had to search for several minutes to find a handicapped parking space.
In a December 15, 2005 letter, the Office advised appellant of the additional evidence
need to establish his claim. The Office emphasized the need for a detailed report from his
attending physician explaining how and why work factors caused or aggravated the claimed
conditions.
Appellant submitted reports from Dr. Thomas A. Castoldi, an attending osteopathic
physician Board-certified in family practice. On December 19, 2002 Dr. Castoldi prescribed an

2

orthopedic chair due to appellant’s spina bifida occulta and spondylolisthesis.1 He opined that
appellant was totally and permanently disabled due to back pain. In reports dated January 19 and
February 20, 2004, Dr. Castoldi recommended that appellant work outside of Houston
environment as wet, humid and cold weather worsened his arthritis. He recommended San
Antonio as more stable and less polluted. On January 25, 2005 Dr. Castoldi stated that appellant
needed to change positions every 30 minutes due to arthritis. In an April 11, 2005 report, he
opined that appellant was permanently and totally disabled due to musculoskeletal pain. In an
October 10, 2005 report, Dr. Castoldi stated that bright lights and humidity worsened appellant’s
fibromyalgia symptoms.
In a February 23, 2004 letter, the employing establishment granted appellant’s request for
a transfer from Houston to San Antonio.2
By decision dated April 21, 2006, the Office denied appellant’s claim on the grounds that
causal relationship was not established. The Office found that appellant submitted insufficient
medical evidence explaining how and why the identified work factors would cause or aggravate
the claimed musculoskeletal and seizure conditions. The Office further found that appellant
submitted insufficient evidence to establish that he was exposed to heat, cold, humidity,
fluorescent lights, strobe lights, crowds of people conversing, cloudy days, machine noise,
allergens, pollution or airplane noise in the performance of duty. The Office noted that appellant
submitted insufficient evidence to establish that he sustained an emotional condition in the
performance of duty. The Office accepted as factual that the employing establishment granted
appellant’s request to transfer from Houston to San Antonio.
In a letter postmarked October 6, 2006, appellant requested a review of the written record
by a representative of the Office’s Branch of Hearings and Review.3 He submitted October 2006
minutes from a union meeting that did not directly address his claim.
By decision dated October 31, 2006, the Office denied appellant’s request for an oral
hearing on the grounds that it was not timely filed within 30 days of the Office’s April 21, 2006
1

On January 3, 2003 appellant requested that the employing establishment provide him an orthopedic chair. The
record does not indicate if the employing establishment did so.
2

On September 15, 2005 the Office of Personnel Management (OPM) denied appellant’s application for
disability retirement. The Board has previously held that the decisions of other administrative agencies do not
establish appellant’s entitlement to benefits under the Federal Employees’ Compensation Act. See Daniel Deparini,
44 ECAB 657 (1993). Appellant submitted February 16 and April 6, 2005 letters of counseling advising him of
performance deficiencies in his work accuracy and productivity. He did not allege that these performance appraisals
caused or aggravated any medical condition. The Board notes, however, performance appraisals are administrative,
noncompensable matters unless error or abuse is shown. Beverly A. Spencer, 55 ECAB 501 (2004). Appellant also
submitted the employing establishment’s denial of his September 2005 request to use voice-operated dictation
equipment. The employing establishment did not respond to his request to telecommute. Appellant did not assert
that the employing establishment’s actions caused or aggravated any of the claimed conditions. The Board notes
that frustration over not being able to work in a particular environment is not compensable. Peter D. Butt Jr., 56
ECAB ___ (Docket No. 04-1255, issued October 13, 2004).
3

The record indicates that appellant also requested reconsideration on October 16, 2006. The Office does not
appear to have taken any action on the reconsideration request.

3

decision. The Office found that appellant could pursue his request equally well by requesting
reconsideration and submitting evidence establishing that he sustained an injury in the
performance of duty.4
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act5 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 the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.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 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) 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.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medial 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.8
ANALYSIS -- ISSUE 1
The Office denied appellant’s claims for musculoskeletal and neurologic conditions on
the grounds that the medical evidence submitted was insufficient to establish a causal
4

Appellant submitted additional evidence accompanying his request for appeal. The Board may not consider
new evidence for the first time on appeal that was not before the Office at the time it issued the final merit decision
in the case. 20 C.F.R. § 501.2(c).
5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

Solomon Polen, 51 ECAB 341 (2000).

4

relationship between his work factors and the development of any medical condition. Appellant
submitted numerous reports from 1966 to 2002 regarding his treatment for various
musculoskeletal conditions and petit mal seizures. However, these reports do not mention his
federal employment or otherwise address the causal relationship appellant asserted.
Dr. Castoldi, an attending osteopathic physician Board-certified in family practice, stated
in reports from January 2004 to October 2005, that appellant’s arthritis required a dry, warm
weather work environment in which he could change positions frequently. He also stated that
appellant’s fibromyalgia symptoms were worsened by bright lights and humidity. However,
Dr. Castoldi did not provide any pathophysiologic explanation of how and why humidity, cold or
bright lights would cause or aggravate any diagnosed medical condition. Without such rationale,
his opinion is of insufficient probative value to establish causal relationship in this case.9
In an April 11, 2005 report, Dr. Castoldi found appellant permanently and totally disabled
due to musculoskeletal pain, but appellant was working at the employing establishment in
April 2005. He did not explain why he found appellant totally disabled for work while he was
clearly able to work. This discrepancy further diminishes the probative value of Dr. Castoldi’s
opinion.10 The Board notes that, in a December 15, 2005 letter, the Office advised appellant of
the critical need for a rationalized report from his attending physician explaining how and why
work factors would cause or aggravate the claimed conditions, but appellant did not submit such
evidence.
The Board finds that appellant has not established that he sustained a musculoskeletal or
neurologic condition in the performance of duty, as he submitted insufficient rationalized
medical evidence to establish causal relationship.
LEGAL PRECENT -- ISSUE 2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.11 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.12

9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

Tammy L. Medley, 55 ECAB 182 (2003).

11

5 U.S.C. §§ 8101-8193.

12

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).

5

In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.14
ANALYSIS -- ISSUE 2
Appellant alleged that he sustained stress and anxiety as a result of a number of
employment incidents and conditions which the Office found to be noncompensable. The Board
must review whether these alleged incidents and conditions are covered employment factors
under the terms of the Act.
The Office accepted as factual that the employing establishment granted appellant’s
request for a transfer from Houston to San Antonio. However, appellant did not allege that the
transfer caused or contributed to any claimed emotional condition. He alleged that frustration
over other aspects of his work environment caused him stress and anxiety. The Office found that
appellant did not establish these environmental and weather conditions as factual.
Appellant attributed his emotional condition, in part, to an involuntary work schedule
change in August 2005. The employing establishment confirmed appellant’s account of events
in a November 30, 2005 letter. Appellant submitted sufficient evidence to establish that his work
schedule was changed in August 2005. Generally, the assignment of a work schedule or tour of
duty is recognized as an administrative function of the employing establishment and, absent any
error or abuse, does not constitute a compensable factor of employment.15 In this case, appellant
expressed his frustration that a change in work schedule from 7:30 a.m. to 4:00 p.m. to 8:00 a.m.
to 4:30 p.m. would expose him to increased rush-hour traffic. However, he did not allege that he
could not perform his job at the new times, only that he preferred his previous schedule. The
record does not demonstrate that the change in work schedule adversely affected appellant’s
ability to do his work. The Board, therefore, finds that his frustration over the new work
schedule is self-generated and not compensable.
Appellant also attributed his condition to not finding a handicapped parking space
quickly enough on one occasion. The Board finds that he submitted sufficient evidence that he
once had difficulty finding a handicapped parking space. However, the circumstances of the
incident are too vague to establish a compensable employment incident.
13

See Norma L. Blank, 43 ECAB 384 (1992).

14

Id.

15

Helen Allen, 47 ECAB 141 (1995).

6

The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty as he failed to establish any compensable factors of
employment. As he has not established any compensable work factors, the medical record
regarding any psychiatric conditions need not be addressed.16
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of the Act provides that “a claimant for compensation not satisfied
with a decision of the Secretary … is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”17
Sections 10.617 and 10.618 of the federal regulations implementing this section of the Act
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.18 The Office’s procedures, which require the Office
to exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration, are a proper interpretation of the Act and Board precedent.19
ANALYSIS -- ISSUE 3
The Office denied appellant’s claim by April 21, 2006 decision. Appellant’s letter
requesting an oral hearing was postmarked on October 6, 2006, more than 30 days after the
April 21, 2006 decision. Thus, the Office properly found that his request for an oral hearing was
not timely filed under section 8124(b)(1) of the Act and that appellant was not entitled to an oral
hearing as a matter of right.
The Office then exercised its discretion and determined that appellant’s request for an
oral hearing could equally well be addressed by requesting reconsideration and submitting
additional evidence establishing that the claimed musculoskeletal conditions were causally
related to his federal employment. As the only limitation on the Office’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.20 The Board finds that there is no evidence of record that the
Office abused its discretion in denying appellant’s request.
Thus, the Board finds that the Office’s denial of appellant’s request for a review of the
written record was proper under the law and facts of this case.

16

Margaret S. Krzycki, 43 ECAB 496, 502 (1992).

17

5 U.S.C. § 8124(b)(1).

18

20 C.F.R. §§ 10.616, 10.617.

19

Claudio Vasquez, 52 ECAB 496 (2002).

20

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

7

CONCLUSION
The Board finds that appellant has not established that he sustained musculoskeletal or
neurologic conditions in the performance of duty. It further finds that appellant has not
established that he sustained an emotional condition in the performance of duty. The Board
further finds that the Office properly denied appellant’s request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 31 and April 21, 2006 are affirmed.
Issued: July 20, 2007
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.P., Appellant
and
DEPARTMENT OF THE NAVY, HUNTERS
POINT NAVAL SHIPYARD, San Francisco, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1663
Issued: November 27, 2007

Case Submitted on the Record

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

JURISDICTION
On June 7, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ nonmerit decision dated May 18, 2007. Because more than one year has elapsed from
the last merit decision dated March 8, 2005 to the filing of this appeal on June 7, 2007, the Board
lacks jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits of his claim on the grounds that it was untimely filed and failed to
show clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On January 16, 2002
appellant, then a 64-year-old boilermaker, filed an occupational disease claim alleging that he

developed asbestosis due to exposures to asbestos while stripping pipes in ship boiler rooms. He
stopped work at the employing establishment on November 21, 1961. The Office accepted
appellant’s claim for calcified plaques due to asbestos exposure on October 8, 2002. Appellant
requested a schedule award on February 13, 2004. By decision dated March 16, 2004, the Office
granted appellant a schedule award for 30 percent impairment of his lungs. Appellant requested
reconsideration on May 22, 2004. By decision dated June 3, 2004, the Office declined to reopen
appellant’s claim for consideration of the merits. The Board reviewed these decisions on
December 3, 2004.1 The Board found that appellant had no more than 30 percent impairment of
his lungs and that the Office properly declined to reopen appellant’s claim for consideration of
the merits on June 3, 2004. The facts and the circumstances of the case as set forth in the
Board’s prior decision are adopted herein by reference.
Appellant alleged that he was totally disabled in a letter dated July 13, 2004 and
requested compensation payments. He completed a claim for compensation on July 13, 2004
and requested wage-loss compensation beginning in March 1997 and continuing. By decision
dated September 17, 2004, the Office denied appellant’s claim for wage loss finding that he had
not submitted the necessary medical evidence to establish that he was disabled due to his
accepted condition of calcified plaques due to asbestos exposure. Appellant requested a review
of the written record on October 8, 2004. By decision dated February 18, 2005 and finalized
March 8, 2005, the hearing representative denied appellant’s claim finding that he had submitted
no medical evidence establishing that he was disabled since 1987 due to his asbestos-related
condition. The hearing representative noted that appellant worked for several years in the private
sector and was currently retired.
Dr. M. Stein, a physician, examined appellant on September 25, 1984 and stated that he
retired as a cab driver due to arthritis of the spine. He examined appellant for possible asbestos
exposure and diagnosed chronic bronchitis. On September 28, 1984 Dr. Jan W. Patterson, a
physician, examined appellant’s chest x-ray and diagnosed pleural calcifications consistent with
asbestosis. On April 1, 1987 Dr. Stein noted that appellant had almost passed out and diagnosed
mild chronic obstructive pulmonary disease. He mentioned that appellant had a history of
alcohol abuse with blackouts. In a report dated March 16, 2004, Dr. Linda H. Morse, a physician
Board-certified in preventative medicine, indicated that appellant’s exercise tolerance was a few
blocks and diagnosed asbestos pleural plaques. In a report dated February 18, 2005, she found
that appellant had significant worsening of his asbestos-related disease.2 On March 10, 2005
appellant filed a claim for compensation requesting wage-loss compensation from
December 1961 through January 1968 and from February 1975 through the “present.” The
Office requested additional factual and medical evidence regarding this claim on April 5, 2005.
In a memorandum dated May 11, 2005, Dr. Morse stated that appellant was totally disabled due

1

Docket No. 04-1867 (issued December 3, 2004).

2

Appellant requested an additional schedule award on March 10, 2005. As the Office has not issued a final
decision addressing this request, the Board cannot consider this issue for the first time on appeal. 20 C.F.R.
§ 501.2(c).

2

to his asbestos-related disease. Appellant again requested continuing compensation benefits on
February 18, 2006.3
On a form dated February 3, 2006 appellant requested an additional oral hearing from the
hearing representative’s March 8, 2005 decision. By decision dated March 9, 2006, the Branch
of Hearings and Reviews denied appellant’s request for an oral hearing. Appellant appealed this
decision to the Board and in a decision and order dated January 23, 20074 the Board affirmed the
March 9, 2006 decision of the Branch of Hearings and Reviews.
Appellant requested reconsideration of the Board’s January 23, 2007 decision on
February 19, 2007. In support of his request, appellant submitted an x-ray report dated
March 22, 1997 from Dr. Horton C. Hinshaw, a Board-certified pulmonologist, diagnosing
bilateral pleural thickening typical of pleural disease due to asbestos. Appellant resubmitted
Dr. Morse’s February 18, 2005 report opining that appellant’s asbestos-related disease had
worsened. He submitted a copy of his March 16, 2004 schedule award. Appellant resubmitted a
report dated May 5, 2003 Dr. Gerald B. Levine, a Board-certified pulmonologist, opining that
appellant had asbestos-related pleural disease as well as chronic obstructive pulmonary disease.
He submitted a January 26, 2006 pulmonary function report.
By decision dated May 18, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that his request for reconsideration was not timely
filed within one year from the March 8, 2005 merit decision. The Office further found that
appellant did not establish clear evidence of error on the part of the Office. The Office stated
that it did not have jurisdiction to review the Board’s January 23, 2007 decision regarding
appellant’s right to an additional oral hearing and did not address that issue.5 The Office found
that appellant had not submitted clear evidence of error regarding the most recent merit decision,
the March 8, 2005 decision of the Branch of Hearings and Reviews.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act6 does not entitle a claimant
to a review of an Office decision as a matter of right.7 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
3

The Office has not issued final decisions regarding appellant’s additional claims for disability. As the Office
has not issued final decisions on these claims, the Board may not address these issues for the first time on appeal.
20 C.F.R. § 501.2(c).
4

Docket No. 06-1019 (issued January 23, 2007).

5

In the absence of further review by the Office on the issue addressed in the January 23, 2007 decision, the
subject matter reviewed is res judicata and is not subject to further consideration by the Board. 5 U.S.C. § 8128;
Joseph A. Brown, Jr., 55 ECAB 542, 543 (2004). Appellant did not seek reconsideration of the Board’s January 23,
2007 decision pursuant to 20 C.F.R. § 501.7(a). A decision of the Board is final upon the expiration of 30 days from
the date of the decision 20 C.F.R. § 501.6(d).
6

5 U.S.C. § 8128(a).

7

Thankamma Mathews, 44 ECAB 765, 768 (1993).

3

compensation.8 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.9 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).10
The Office’s regulations require that an application for reconsideration must be submitted
in writing11 and define an application for reconsideration as the request for reconsideration
“along with supporting statements and evidence.”12 The regulations provide:
“[The Office] will consider an untimely application for reconsideration only if the
application demonstrates clear evidence of error on the part of [the Office] in its
most recent decision. The application must establish, on its face that such
decision was erroneous.”13
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.14
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.15 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.16 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.17 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.18 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record

8

Id. at 768; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

9

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
10

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 7 at 769; Jesus D. Sanchez, supra note 8 at 967.

11

20 C.F.R. § 10.606.

12

Id. at § 10.605.

13

Id. at § 10.607(b).

14

Thankamma Mathews, supra note 7 at 770.

15

Id.

16

Leona N. Travis, 43 ECAB 227, 241 (1991).

17

Jesus D. Sanchez, supra note 8 at 968.

18

Leona N. Travis, supra note 16.

4

and whether the new evidence demonstrates clear error on the part of the Office.19 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.20 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.21
ANALYSIS
Appellant filed his request for reconsideration on February 19, 2007. The most recent
decision addressing the merits of his claim was the March 8, 2005 decision of the hearing
representative.22 As appellant’s request for reconsideration was dated more than one year
following the most recent decision on the merits, the Office properly found that his request for
reconsideration was untimely and subject to the clear evidence of error standard.
The March 8, 2005 decision of the Branch of Hearings and Review denied appellant’s
claim on the grounds that he had not submitted the necessary medical evidence to establish that
he was totally disabled due to his accepted condition of calcified plaques due to asbestosis
exposure beginning in 1987 as alleged. Following the hearing representative’s decision,
appellant submitted medical evidence addressing his accepted condition. However, he did not
submit any medical evidence regarding any period of disability due to this condition. In 1984
Dr. Stein indicated that appellant was disabled due to a spine condition. In a report dated
March 16, 2004, Dr. Morse, a physician Board-certified in occupational and environmental
medicine, indicated that appellant’s exercise tolerance was only a few blocks. She stated that
appellant was totally disabled due to his asbestos-related disease on May 11, 2005. These
reports are not relevant to the issue for which the Office denied his claim, whether he was totally
disabled due to his asbestos exposure beginning in 1987. As the evidence does not address the
central issue in appellant’s claim, it is not relevant to appellant’s claim and is not sufficient to
establish clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that appellant’s untimely request for reconsideration did not contain the
necessary medical opinion evidence relevant to his claim to establish clear evidence of error on
the part of the Office.
19

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

20

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

21

Gregory Griffin, supra note 9.

22

The Board’s January 23, 2007 decision did not address the merits of appellant’s claim, but instead addressed
whether he was entitled to a second oral hearing on the same decision of the Office. Appellant did not submit any
new evidence or argument regarding this specific issue with his February 19, 2007 request for reconsideration and
the Office properly declined to address this aspect of appellant’s claim. See Joseph A. Brown, Jr., supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 27, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
R.N., Appellant
)
)
and
)
)
DEPARTMENT OF THE NAVY,
)
CAMP LEJUENE, NC, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 10-10
Issued: July 6, 2010

Case Submitted on the Record

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

JURISDICTION
On September 24, 2009 appellant filed a timely appeal of an August 5, 2009 decision of
the Office of Workers’ Compensation Programs which denied his request for a hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this issue.1
ISSUE
The issue is whether the Office properly denied appellant’s request for a hearing.

1

Appellant indicated that he was appealing a September 15, 2008 decision. For Office decisions issued prior to
November 19, 2008, a claimant had up to one year to file an appeal. 20 C.F.R. § 501.3(d) (2008). An appeal of
Office decisions issued on or after November 19, 2008 must be filed with 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2009). See 73 Fed. Reg. 62,190 (October 20, 2008). As the appeal was postmarked on September 24,
2009, the Board lacks jurisdiction over the September 15, 2008 decision.

FACTUAL HISTORY
On January 16, 2002 appellant, then a 42-year-old water plant operator, filed a traumatic
injury claim, alleging that on that same date, he hit his left knee on the tail gate of his vehicle
while in the performance of duty. He stopped work on January 16, 2002 and returned to work on
that same date. The Office accepted the claim for traumatic arthritis of the left knee and
aggravation of patella femoral arthritis.
Appellant subsequently requested a schedule award and, in a September 15, 2008
decision, the Office granted appellant a schedule award for 25 percent permanent impairment of
the left leg (less the 20 percent previously awarded for the same leg under a separate claim).
On December 4, 2008 appellant requested a hearing. He contacted the Office on several
occasions from March 23 to July 30, 2009 to inquire into the status of his hearing request.
In a decision dated August 5, 2009, the Office found that appellant was not entitled to a
hearing as his request was not made within 30 days of the September 15, 2008 decision. It
exercised its discretion and determined that it would not grant a hearing as the issue in the case
could equally well be addressed by requesting reconsideration and submitting new evidence not
previously considered pertaining to his claim for a schedule award.
LEGAL PRECEDENT
Section 8124 of the Federal Employees’ Compensation Act provides that a claimant is
entitled to a hearing before an Office representative when a request is made within 30 days after
issuance of an Office final decision.2
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”3
Section 10.616(a) of Title 20 of the Code of Federal Regulations further provides, “A
claimant injured on or after July 4, 1966, who had received a final adverse decision by the
district Office may obtain a hearing by writing to the address specified in the decision. The
hearing request must be sent within 30 days (as determined by postmark or other carrier’s date
marking) of the date of the decision for which a hearing is sought.”4

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

2

The Office’s regulations provide that a request received more than 30 days after the
Office’s decision is subject to the Office’s discretion5 and the Board has held that the Office
must exercise this discretion when a hearing request is untimely.6
ANALYSIS
Appellant requested a hearing on December 4, 2008. The Board notes that the request for
a hearing was more than 30 days after the Office issued its September 15, 2008 decision.
Because appellant did not request a hearing within 30 days of the September 15, 2008 decision,
he was not entitled to a hearing as a matter of right.
The Office properly exercised its discretion in denying a hearing upon appellant’s
untimely request by determining that the issue could be equally well addressed by requesting
reconsideration and submitting new evidence regarding his schedule award claim.
The only limitation on the Office’s authority is reasonableness. Abuse of discretion is
generally shown through proof of manifest error, a clearly unreasonable exercise of judgment or
actions taken which are contrary to logic and deductions from known facts.7 There is no
evidence of record that the Office abused its discretion in denying appellant’s requests for a
hearing under these circumstances.
On appeal, appellant advised that he was “no better than his last evaluation” and
continued to worsen, such that he had to walk with a cane. The Board notes that the issue of his
schedule award is not presently before the Board.8 The Board only has jurisdiction to address
whether the Office properly denied appellant’s request for a hearing.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing.

5

Id. at § 10.616(b).

6

Samuel R. Johnson, 51 ECAB 612 (2000).

7

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

8

See supra note 1. The Board notes that appellant retains the right to file a claim for an increased schedule award
based on new exposure or on medical evidence indicating that the progression of an employment-related condition,
without new exposure to employment factors, has resulted in a greater permanent impairment than previously
calculated. Linda T. Brown, 51 ECAB 115 (1999).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2009 is affirmed.
Issued: July 6, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NY, Employer
__________________________________________

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

Docket No. 13-40
Issued: May 7, 2013

Case Submitted on the Record

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

JURISDICTION
On October 5, 2012 appellant, through his attorney, filed a timely appeal of a June 27,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a back injury on
April 25, 2011.
On appeal counsel argues that appellant has submitted sufficient evidence to establish a
work-related aggravation of his low back condition on April 25, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 2, 2011 appellant, then a 57-year-old electronic technician, maintenance, filed a
traumatic injury claim alleging on April 25, 2011 that he bent over to unlock a mail processing
machine and ruptured discs in his back. He received an authorization for medical treatment from
the employing establishment on April 25, 2011 due to his complaint of a sharp pain in the left
side of his back near his kidney. Appellant submitted a note dated April 28, 2011 from
Dr. Michael C. Russonella, an osteopath, diagnosing lumbar strain and spinal stenosis.
OWCP requested additional factual medical evidence in support of appellant’s claim on
May 5, 2011. Appellant resubmitted the medical evidence of record including physical therapy
notes. In an April 25, 2011 report, Dr. Russonella stated that appellant had a work-related injury
on April 25, 2011. He diagnosed low back pain syndrome, right lower extremity radiculopathy
and multiple level spondylolysis with facet hypertrophy. On April 28, 2011 Dr. Russonella
again opined that appellant had low back pain syndrome with multiple levels of spondylolysis as
well as facet hypertrophy and spinal stenosis.
The employing establishment controverted appellant’s claim on May 17, 2011. It argued
that he could not have sustained a back injury on April 25, 2011 as he merely bent over to unlock
a lock. The employing establishment noted that appellant was not straining to lift and stated that
his degenerative disease should not have resulted from one physical action.
On May 23, 2011 Dr. Russonella noted that appellant reported injuring himself at work
on April 25, 2011. He stated that appellant reported lifting something heavy at work and that he
aggravated his low back. Dr. Russonella opined that appellant sustained a work-related injury.
He noted that appellant had a January 2011 slip and fall from which he had recovered with no
disability.
By decision dated June 7, 2011, OWCP denied appellant’s claim for a traumatic injury
finding that he had not submitted medical evidence based on a proper history of injury
establishing that he sustained an injury due to his accepted employment incident of bending over
to release a lock. Counsel requested an oral hearing, before an OWCP hearing representative, on
June 28, 2011.
Appellant submitted a form report from Dr. Russonella dated June 14, 2011 indicating
with a checkmark “yes” that appellant aggravated his low back when lifting a heavy item. He
submitted a narrative statement dated September 22, 2011 alleging that his injury was the result
of several repetitive motion activities including moving and carrying mail equipment and a
maintenance toolbox during the two hours immediately prior to his back pain. On November 21,
1997 Dr. Bernard P. Newman, III, a Board-certified orthopedic surgeon, completed a note which
stated in its entirety that appellant sustained a lower back injury at work on October 1, 1997 and
was feeling better on that date.
Dr. Mark A.P. Filippone, a physician Board-certified in physical medicine and
rehabilitation, reported on October 5, 2011 that he reviewed appellant’s statement dated June 24,
2011 and diagnosed low back derangement with clear evidence of internal derangement of the
lumbar spine and obvious evidence of cervical radiculitis. He stated that the injury on April 25,

2

2011 was the culmination of all of appellant’s back injuries as it was “quite literally the straw
that broke the camel’s back, as the saying goes, not to imply that [appellant] is a camel.”
Appellant testified at the oral hearing on October 11, 2011. He stated that he sustained
employment-related back injuries in 1974, 1984 and 1997. Appellant was also injured in a
nonemployment-related motor vehicle accident in 1994. He stated that he returned to full duty
after each of these injuries. In January 2011, appellant fell outside a library and injured his back.
He stated that his duties included cleaning postal machines. This task involved moving a tool
case weighing 40 pounds as well as a separate toolbox weighing 200 pounds, a tool bag
weighing 25 pounds, rolling a vacuum cleaner weighing 20 pounds and moving the letter
equipment from around and atop the machine. Appellant stated that the letter equipment
included carts weighing between 400 and 550 pounds which had to be pushed away from the
machine. He stated that his back pain occurred after completing two of the four machines
assigned to him while releasing a maintenance lock on the circuit breaker. Appellant stated that
he pulled the circuit breaker and stood up. He experienced pain in his back and then a few
minutes later numbness going down his right leg.
By decision dated November 23, 2011, the hearing representative denied appellant’s
claim finding that he failed to submit sufficient medical opinion evidence based on a proper
history of injury to establish a causal relationship between appellant’s diagnosed back condition
and his employment incident of April 25, 2011.
Counsel requested reconsideration on December 5, 2011. In a statement dated June 24,
2011, appellant described his prior back injuries including the slip and fall on January 28, 2011.
He stated that he returned to work on February 17, 2011 and performed his full duties. Appellant
stated on April 25, 2011 at 3:00 p.m. that he reported for duty and was required to perform a
daily maintenance route on mail processing equipment machines by 6:00 p.m. He stated that he
had to remove all items from around the machines including mail equipment, letter containers,
trays and any other items. Appellant then assembled all the assigned tools in the area including a
vacuum cleaner, toolbox and replacement machine parts. He then performed the maintenance
including vacuuming while working in a crouched or kneeling position and reaching into the
machine. Appellant wiped down the machine with cleaning solution and removed any damaged
or worn components. He then removed his tools, removed the maintenance lock, restored power
to the machine and started the machine. Appellant removed his tools and repeated the process.
He stated that after he completed the assigned tasks on the second machine at 6:00 p.m. and was
in the process of removing the maintenance lock he stood up and immediately felt severe pain in
his lower back. Appellant rested for a few minutes and then felt a numbing sensation down his
right leg.
By decision dated June 27, 2012, OWCP denied modification of its prior decision finding
that the medical reports did not provide a consistent mechanism of injury and are insufficient to
establish that the employment injury occurred as alleged.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
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, that
an injury was sustained 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.3
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.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.9

2

5 U.S.C. §§ 8101-8193.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

4

ANALYSIS
Appellant alleged that he sustained a back injury on April 25, 2011 in the performance of
duty. He alleged that his injury occurred after completing the maintenance on two machines
including moving heavy mail equipment, tools and parts. Appellant stated that he experienced
back pain after he arose after bending to remove a maintenance lock from the second machine.
OWCP has accepted appellant’s description of the events which resulted in the employment
injury. On November 21, 1997 Dr. Newman stated that appellant sustained a lower back injury
at work on October 1, 1997. Appellant also received diagnoses of low back syndrome, right
lower extremity radiculopathy and multiple level spondylolysis with facet hypertrophy from
Drs. Russonella and Filippone. These physicians have attributed appellant’s diagnosed
conditions to his employment activities on April 25, 2011.
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that his employment activities on April 25, 2011 resulted in his diagnosed conditions.
Dr. Newman did not provide a specific diagnosis, history of injury or rationale. Without further
medical findings and factual details, his report is not sufficient to meet appellant’s burden of
proof. Dr. Russonella attributed appellant’s back condition to lifting a heavy object. This report
does not address appellant’s detailed mechanism of injury and is therefore not sufficient to
establish a causal relationship between his condition and his employment activities.
Dr. Filippone stated that he had reviewed appellant’s history of back injuries as well as
his description of employment activities on April 25, 2011. He diagnosed low back
derangement. Dr. Filippone stated that appellant’s current condition was as a result of the
culmination of his previous back injuries. He opined that the April 25, 2011 injury was “the
straw that broke the camel’s back.” The Board finds that this report does not provide the
necessary medical explanation of how appellant’s work activities that day caused or contributed
to his diagnosed condition. Without medical reasoning, this report is not sufficient to meet his
burden of proof. Dr. Filippone did not explain how or why appellant’s work activities that day
resulted in his diagnosed condition. Due to the deficiencies in the medical evidence, appellant
has failed to meet his 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 submitted the necessary medical evidence to
establish a causal relationship between his diagnosed back conditions and his accepted
employment activities on April 25, 2011.

5

ORDER
IT IS HEREBY ORDERED THAT the June 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 07-1607
Issued: December 21, 2007

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal of a May 4, 2007 merit decision of the
Office of Workers’ Compensation Programs, which affirmed a schedule award for a 15 percent
permanent impairment of the left eye. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has more
than a 15 percent impairment of her left eye.
FACTUAL HISTORY
On June 13, 1991 appellant, then a 38-year-old temporary officer in charge, sustained
injury to her left eye in the performance of duty when she was involved in a motor vehicle
accident. Her claim was accepted for chronic cervical/thoracic strain, fractured teeth and facial
injuries. On January 25, 1994 appellant sustained a recurrence. On May 31, 1994 her claim was

accepted for subretinal hemorrhage of the left eye related to the January 25, 1994 employment
injury.
On May 23, 2001 appellant filed for a schedule award. In a report dated February 20,
2003, her treating physician, Dr. John Latona, a Board-certified ophthalmologist, indicated that
her best corrected visual acuity was 20/40. Using the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, Dr. Latona opined that
appellant had a visual impairment rating of 24 percent. In a second opinion report dated
December 12, 2003, Dr. David Eriksen, a Board-certified ophthalmologist, reviewed appellant’s
medical records and found a 15 percent visual acuity impairment rating based on the A.M.A.,
Guides and a maximum medical improvement date of June 17, 1994.
On March 10, 2004 the Office granted appellant a schedule award for a 15 percent
impairment of her left eye. On March 18, 2004 appellant requested an oral hearing.
By decision dated October 31, 2005, the Office hearing representative set aside the
March 10, 2004 schedule award on the grounds that appellant’s loss of vision should have been
determined without regard to correction, as required under the Federal Employees’
Compensation Act, section 8107(c)(19).
By letter dated February 22, 2006, the Office asked Dr. Eriksen to review appellant’s
record and rate appellant without regard to correction based on the statement of accepted facts.
In a report dated March 2, 2006, Dr. Eriksen stated that assessing uncorrected vision
measurements for appellant was meaningless as she had extremely strong glasses prior to the
injury with uncorrected vision in the 20/800 to 20/1000 range and was still in the same range
postinjury. He also opined that the impairment rating should be based on the best corrected
visual acuity.
On June 12, 2006 the Office issued a decision denying an increase in excess of 15 percent
impairment for appellant’s left eye on the grounds that the medical evidence was insufficient.
On June 27, 2006 appellant requested an oral hearing.
March 8, 2007. She submitted additional medical information.

The hearing was held on

On May 4, 2007 the Office hearing representative affirmed the June 12, 2006 decision,
finding that the medical evidence did not establish that appellant’s uncorrected vision loss in the
left eye was work related.
LEGAL PRECEDENT
The schedule award provision of the Act1 and its implementing regulation2 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. The Act, however, does not
1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.404.

2

specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of the Office.3 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.4
Section 8107(c)(19) of the Act provides that the degree of loss of vision or hearing under
this schedule is determined without regard to correction.5 Permanent visual impairment is
defined by the A.M.A., Guides as a permanent loss of vision that remains after maximal medical
improvement of the underlying medical condition has been reached.6 The A.M.A., Guides
indicate that the evaluation of visual impairment is based on the functional vision score (FVS),
which is the combination of an assessment of visual acuity, the ability of the eye to perceive
details necessary for activities such as reading and; an assessment of visual field, and the ability
of the eye to detect objects in the periphery of the visual environment, which relates to
orientation and mobility.7 The A.M.A., Guides also allow for individual adjustments for other
functional deficits, such as contrast and glare sensitivity, color vision defects and binocularity,
stereopsis, suppression and diplopia, only if these deficits are not reflected in a visual acuity or
visual field loss.8 However, the A.M.A., Guides specifically limit adjustment of the impairment
rating for these deficits to cases which are well documented and state that the adjustment should
be limited to an increase in the impairment rating of the visual system (reduction of the FVS) by,
at most, 15 points.9
ANALYSIS
The Board finds that the Office was incorrect in its June 12, 2006 decision finding that
appellant’s eye condition was not work related. The Office previously accepted appellant’s
claim for subretinal hemorrhage of the left eye on May 31, 1994 and granted appellant a
schedule award based on this injury.

3

Linda R. Sherman, 56 ECAB ___ (Docket No. 04-1510, issued October 14, 2004); Danniel C. Goings, 37
ECAB 781, 783-84 (1986).
4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

5 U.S.C. § 8107(c)(19).

6

A.M.A., Guides 278 (5th ed. 2001).

7

Id. at 278, 280, 296. This represents a change from the visual efficiency scale that was used up to the fourth
edition of the A.M.A., Guides, as the extra scale and losses for diplopia and aphakia have been removed. The
current edition of the A.M.A., Guides, the fifth edition, also utilizes a different formula for calculating visual
impairment ratings to better account for situations where the binocular function is not identical to the function of the
better eye.
8

A.M.A., Guides 297.

9

Id.

3

The Board also notes that it is well established that, in determining the degree of
impairment for a member of the body that sustained an employment-related permanent
impairment, preexisting impairments of the body member are to be included in the evaluation of
the permanent impairment.10 The Board has noted Larson’s explanation that this principle “is
sometimes expressed by saying that the employer takes the employee as it finds that
employee.”11 The Office’s procedures also require that, in evaluating loss of use of a scheduled
member due to employment injury, the total amount of the permanent impairment of the
scheduled member be determined.
In this regard, the FECA Program Memorandum No. 69, entitled “Payment of a
Scheduled Award Where Prior, Permanent Disability of the Same Member or Function Exists”
provides in pertinent part as follows:
“Recent inquiries indicate that it is necessary to reiterate the Bureau’s general
policy concerning reduction of compensation for subsequent injury to the same
member or function or for disfigurement.
“It has been and continues to be the Bureau’s policy to include in the payment of
a scheduled award, any preexisting permanent disability of the same member or
function. There are, however, two exceptions: (1) where the Bureau has paid or
will pay a scheduled award under 5 U.S.C. [§] 8107 on account of an earlier
injury; and (2) where the Veterans Administration (VA) has paid or is paying an
award for a preexisting disability. These are the only exceptions believed to be
authorized by the provisions of 5 U.S.C. § 8108.”
***
“It is also necessary to comment on those injury cases involving a preexisting 100
percent loss or loss of use of a member or function of the body. In such cases, a
scheduled award is not necessarily ruled out. Cases of this type should be
developed to determine: (1) the prior usefulness of the member or function; and
(2) whether the injury in federal employment has diminished any such usefulness
in whole or in part.
“When the question of scheduled award entitlement arises in cases involving what
appears to be a prior 100 percent loss or loss of use, the case should be referred to
the central Office for review and decision after all necessary factual and medical
evidence has been obtained.”12
Appellant had not previously been paid a schedule award for an earlier injury for the
same eye and had not received any VA award for preexisting disability. The Office’s general
policy to include in the payment of a schedule award any preexisting permanent impairment of
10

Kenneth E. Leone, 46 ECAB 133 (1994).

11

Id. See A. Larson, The Law of Workers’ Compensation, § 9.02 (2002).

12

FECA Program Memorandum No. 69 (issued May 6, 1968).

4

the same member was, therefore, applicable in this case. In Mike E. Reid,13 the employee
essentially had a preexisting 100 percent loss of the left eye prior to the injury. The Board found
that, as noted in the program memorandum, a schedule award is not necessarily ruled out. A
schedule award is still payable if the employment injury diminished any usefulness of the eye in
whole or in part. In Franklin E. Larsen,14 the employee was inspecting lumber when a hot cinder
was blown into his left eye. The claim for a schedule award was denied by the Office on the
grounds that he had 10/0 vision in the left eye prior to the employment injury and that he was,
therefore, wholly blind prior to the employment injury. The Office determined that, as claimant
had no useful vision in the left eye prior to the injury, he was not entitled to a schedule award
under the Act. The Board found, however, that the medical evidence indicated that claimant had
light perception in the left eye prior to the injury and that the ability to perceive light was useful
vision. As the claimant lost useful vision as a result of the employment injury, even though
appellant had 100 percent loss of the eye prior to the injury, the Board found that the claimant
was entitled to a schedule award for 100 percent loss of use of the left eye.
In the present case, while appellant had a preexisting loss of visual acuity, the Office has
not determined whether she had useful vision in the left eye prior to the employment injury,
which was diminished by the employment injury.
Finally, the Board notes that Dr. Eriksen improperly applied the A.M.A., Guides in
determining that appellant had no more than a 15 percent permanent impairment for loss of use
of her left eye. When assessing the degree of vision loss under the Act, he must use appellant’s
uncorrected vision measurements.15 As none of the medical reports contain an impairment rating
based on appellant’s uncorrected vision, the case will be remanded in order for the proper rating
to be assessed.
CONCLUSION
The Board finds that this case is not in posture for a decision.

13

51 ECAB 543 (2000).

14

17 ECAB 391 (1966).

15

“[T]he degree of loss of vision or hearing under this schedule is determined without regard to correction”
section 8107(c)(19).

5

ORDER
IT IS HEREBY ORDERED THAT the May 4, 2007 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to the Office for further
development consistent with this decision of the Board.
Issued: December 21, 2007
Washington, DC

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

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

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

6