United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, DISTRICT OF COLUMBIA
)
SUPERIOR COURT, Washington DC, Employer )
__________________________________________ )
K.M., Appellant

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

Docket No. 19-1784
Issued: April 20, 2021

Case Submitted on the Record

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

JURISDICTION
On August 23, 2019 appellant filed a timely appeal from a February 26, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
has elapsed from the last merit decision, dated November 14, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction3 over the merits of this case.
1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.2(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, he asserted that oral argument should be granted because OWCP had applied an incorrect
standard to the evidence submitted as the medical evidence established employment-related disability. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 26, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 22, 2015 appellant, then a 50-year-old deputy United States Marshal, filed a
traumatic injury claim (Form CA-1) alleging that on January 14, 2014 he experienced a sudden
onset of lumbar radiculopathy and severe pain after spending the workday in a seated stationary
position in a courtroom while in the performance of duty. He indicated that he had increased pain
with sitting down and standing up from his chair and the nature of his injury included a lumbar
injury, herniated disc, and lumbar radiculopathy. Appellant stopped work on January 14, 2014.
On August 13, 2015 OWCP accepted the claim for exacerbation of spondylolisthesis, L5-S1, and
exacerbation of sciatica.
Beginning on August 19, 2015 appellant filed a series of claims for compensation (Form
CA-7) for disability for the period March 10 through November 28, 2014.
In reports dated March 10, April 9, June 25, August 6, and, October 1, 2014 and
January 29, 2015, Dr. Christopher R. Good, a Board-certified orthopedic surgeon, noted
appellant’s history of injury January 14, 2014, finding that appellant developed severe low back
pain after prolonged sitting during a trial and advised that appellant was disabled from January 16
through December 1, 2014. He reviewed appellant’s April 9, 2014 magnetic resonance imaging
(MRI) scan and diagnosed spondylolysis, spondylolisthesis, instability, disc collapse, progressive
pain, and neurologic symptoms. Dr. Good opined that prolonged positioning, including sitting
during a long trial, increased the pressure in the discs of the lumbar spine resulting in increased
inflammation and worsening symptoms including stenosis on subsequent neural structures at the
L5-S1 level where appellant had an isthmic spondylolisthesis. He requested that appellant’s
accepted conditions be expanded to include additional conditions beyond lumbar sprain including
lumbar spondylolisthesis and radiculopathy. Dr. Good noted that appellant could return to work
without restrictions on December 1, 2014. He also recommended lumbar decompression and
stabilization at L4-5 and L5-S1.
Lindsay D. Orosz, a physician assistant, completed a work release note and asserted that
appellant was totally disabled from March 10 through November 28, 2014 due to his accepted
work-related injury.
In an August 28, 2015 development letter, OWCP requested that appellant provide
additional medical evidence, explaining why he was unable to perform the duties of his position
beginning March 10, 2014. It afforded him 30 days for a response.
On May 8, 2014 Dr. K.C. Glidiner, an employing establishment physician, conducted a
medical review and opined that appellant was medically unqualified to perform the essential
functions of his position. He found that appellant continued to experience severe back and leg
pain. On May 23, 2014 the employing establishment restricted appellant from full duty and noted
that it had no permanent limited-duty positions available for law enforcement employees.
By decision dated November 30, 2015, OWCP denied appellant’s disability claim for the
period from March 10 through November 28, 2014.
2

In a December 9, 2015 note, Lani Ellis, a physician assistant, noted that appellant was out
of work for much of 2014 due to symptoms of his conditions.
On January 4, 2016 appellant requested reconsideration. He provided documents from the
employing establishment restricting him from work. On May 8, July 14, and October 1, 2014
Dr. Glidiner found appellant unable to perform aggressive law enforcement activities and not
medically qualified for his position.
By decision dated March 25, 2016, OWCP denied modification of its prior decisions.
On May 23, 2016 appellant requested reconsideration. He provided May 22 and June 25,
2014 form reports in which Dr. Good indicated that appellant was totally disabled due to severe
low back and bilateral pain. Dr. Good diagnosed lumbar spondylolisthesis, radiculopathy, and
segmental instability.
On May 27, 2014 Dr. Glidiner restricted appellant from any work duty with the employing
establishment.
In a September 10, 2014 report, Dr. Good diagnosed isthmic spondylolisthesis at L5-S1,
stress fracture of the low back, spinal instability, and lumbar radiculopathy. He found that
appellant was unable to participate in the activities of daily living or to perform the full range of
duties for his federal position in law enforcement. Dr. Good recommend lumbar stabilization
surgery with a fusion at L4-5 and L5-S1.
On September 8, 2014 Dr. Glidiner found that appellant was medically disqualified for his
position. In a November 11, 2014 report, he found that appellant could perform nonexertional
duty without aggressive law enforcement activities.
By decision dated August 19, 2016, OWCP denied modification of its prior decisions.
On August 21, 2017 appellant requested reconsideration. He provided an August 15, 2017
letter, asserting that OWCP had not properly applied its regulations, an excerpt from a medical
publication, a history of his employment injuries, and an assertion that he was totally disabled due
to his employment injuries from January 15 through December 3, 2014. Appellant noted that he
was removed from service on August 6, 2014 as he was not medically qualified to perform the
essential functions of his federal job and removed from his position on November 19, 2015.
By decision dated November 14, 2017, OWCP denied modification of its prior decision.
On November 13, 2018 appellant requested reconsideration of the November 14, 2017
decision. In support of his request, he provided an additional report dated November 12, 2018
from Dr. Good. Dr. Good noted that appellant experienced an initial exacerbation of his symptoms
in 2014. He diagnosed lumbar spondylolisthesis and lumbar sciatica and found that appellant’s
disc herniation, spondylolysis, segmental instability, and radiculopathy were all part of
spondylolisthesis causing sciatica. Dr. Good opined that the exacerbation of spondylolisthesis and
sciatica were responsible for appellant’s total disability for the period between January and
December 2014. He again recommended surgical intervention in the form of lumbar fusion.
By decision dated February 26, 2019, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
3

LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has impose certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (i) shows that OWCP erroneously applied or interpreted a
specific point of law; (ii) advances a relevant legal argument not previously considered by OWCP;
or (iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.8
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for
review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8182(a).
Appellant filed a timely request for reconsideration on November 13, 2018, but did not
show that OWCP erroneously applied or interpreted a specific point of law, or advance a new and
relevant legal argument not previously considered by OWCP. Consequently, he was not entitled
to a review of the merits based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
The underlying issue in this case is whether appellant has submitted sufficient medical
evidence to establish that he was totally disabled from work for the period March 10 through
November 28, 2014 due to his accepted conditions of exacerbation of spondylolisthesis, L5-S1,
and exacerbation of sciatica. However, he did not submit any relevant and pertinent new evidence
with his November 13, 2018 request for reconsideration.
Appellant provided a medical report from Dr. Good dated November 12, 2018 with his
request for reconsideration. Dr. Good repeated his previous diagnoses, findings, and conclusions.
As this report repeats evidence already in the case record, it is cumulative and does not constitute
relevant and pertinent new evidence. Providing additional evidence that either repeats or
4

5 U.S.C. § 8128(a). Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [appellant’s] own motion or on application.” 5 U.S.C. § 8128(a).
5

6

20 C.F.R. § 10.607.

7
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(b).

4

duplicates information already in the record does not constitute a basis for reopening a claim.10
Therefore, it is insufficient to require OWCP to reopen the claim for consideration of the merits.
Because appellant has not provided relevant and pertinent new evidence, he was not entitled to a
review of the merits based on the third requirement under section 10.606(b)(3).11
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8182(a).
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10
P.W., Docket No. 20-0380 (issued November 23, 2020); S.F., Docket No. 18-0516 (issued February 21, 2020);
James W. Scott, 55 ECAB 606, 608 n.4 (2004).
11

20 C.F.R. § 10.606(b)(3)(iii).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1816
Issued: June 20, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 28, 2018 appellant, through counsel, filed a timely appeal from a July 31,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
more than 10 percent permanent impairment of each upper extremity, for which she previously
received a schedule award.
FACTUAL HISTORY
On February 17, 1998 appellant, then a 34-year-old letter carrier, filed a notice of
occupational disease (Form CA-2), alleging that she sustained a “knuckle/index finger” injury due
to factors of her federal employment, including delivering mail and operating her vehicle ignition
and door locks. OWCP accepted the claim for bilateral tendinitis and bilateral carpal tunnel
syndrome. It also authorized right carpal tunnel release surgery, which appellant underwent on
April 19, 1999 and left carpal tunnel release surgery, which she underwent on May 5, 1999.3
By decision dated February 15, 2000, OWCP granted appellant a schedule award for 10
percent permanent impairment of each upper extremity. The award ran for 62.40 weeks for the
period November 22, 1999 to February 1, 2001.4
On November 5, 2015 appellant filed a claim (Form CA-7) for an increased schedule
award.
In a September 23, 2015 report, Dr. Mesfin Seyoum, a family medicine specialist,
conducted an impairment rating evaluation. His physical examination found that appellant’s right
wrist palpation revealed mild tenderness palpable in the wrist and there was full right wrist range
of motion (ROM) with her reporting right wrist pan at the end range. The Tinel’s sign and Phalen’s
testing were positive in the right wrist/hand. Examination of the left wrist demonstrated evidence
of a well-healed keloid scar, palpation revealed tenderness palpable in the left wrist, and there was
full left wrist ROM with appellant reporting left wrist pain at the end range. The Tinel’s sign and
Phalen’s testing were positive in the left wrist/hand. Thumb and index trigger fingers with slight
tenderness were noted, bilaterally. Sensory examination showed decreased sensation in the
distribution patterns of the median nerve in the hands, bilaterally. Motor strength examination
revealed slightly reduced muscle strength in the fingers. Deep tendon reflexes were 2+/4 in the
upper extremities. Dr. Seyoum concluded that appellant had reached maximum medical
improvement (MMI) as of the date of his examination. Utilizing Table 15-23, page 449, the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
3

Appellant had a claim that was previously accepted for left trigger thumb (acquired) under OWCP File No.
xxxxxx622. OWCP doubled the claims and then authorized a left median nerve decompression at the wrist, which
appellant underwent on January 29, 2003.
4

In a decision dated September 18, 2002, OWCP terminated appellant’s compensation because she had been
reemployed as a modified city carrier effective May 29, 1999 with wages of $710.83 per week, which exceeded the
wages of her date-of-injury position, and fairly and reasonably represented her wage-earning capacity. By decision
dated September 16, 2009, OWCP denied appellant’s claim for wage-loss compensation for the period July 29 to
September 2, 2009 because the medical evidence failed to establish disability for the period claimed. By decision
dated August 13, 2010, it accepted that she had sustained a recurrence of total disability on July 29, 2009 due to her
accepted right carpal tunnel syndrome condition and determined that she was entitled to compensation for the period
July 29 to September 9, 2009.

2

(A.M.A., Guides), he found that appellant had five percent permanent impairment based on her
right carpal tunnel syndrome with a grade modifier of 2 for physical examination (GMPE) due to
her decreased sensation in the right hand, a grade modifier of 2 for functional history (GMFH) due
to her reported intermittent significant symptoms in the right wrist/hand, and a grade modifier of
2 for clinical studies (GMCS) due to her positive nerve testing for right carpal tunnel syndrome.
Dr. Seyoum noted that appellant had a QuickDASH score of 50, which corresponded to moderate
functional impairment and did not change the final impairment rating. He calculated that she had
a default of five percent permanent impairment of the right upper extremity for her right carpal
tunnel syndrome. Dr. Seyoum further found that appellant had five percent permanent impairment
based on her left carpal tunnel syndrome with a grade modifier of 2 for physical examination
(GMPE) due to her decreased sensation in the left hand, a grade modifier of 2 for functional history
(GMFH) due to her reported intermittent significant symptoms in the left wrist/hand, and a grade
modifier of 2 for clinical studies (GMCS) due to her positive nerve testing for left carpal tunnel
syndrome. He noted that she had a QuickDASH score of 50, which corresponded to moderate
functional impairment and did not change the final impairment rating. Dr. Seyoum calculated that
appellant had a default of five percent permanent impairment of the left upper extremity for her
left carpal tunnel syndrome. He opined that she had six percent permanent impairment of the
bilateral upper extremities due to her bilateral trigger thumb condition based on Table 15-2, page
392, of the A.M.A., Guides. Dr. Seyoum found that appellant’s most impairing diagnosis was
trigger thumb, status post trigger finger release, and assigned a grade modifier of 2 for functional
history (GMFH) based on Table 15-7, page 406, grade modifier of 1 for physical examination
(GMPE) due to slight palpatory findings, and found that a grade modifier for clinical studies
(GMCS) was not applicable since there were no clinical studies of the thumb for review. He
concluded that she had a net adjustment of +1, which equated to six percent permanent impairment
of the bilateral upper extremities based on her bilateral trigger thumb condition. Regarding
appellant’s bilateral index trigger finger condition, Dr. Seyoum opined that she had six percent
permanent impairment based on Table 15-2, page 392, due to trigger index finger, status post
trigger finger release. He assigned a grade modifier of 2 for functional history (GMFH) based on
Table 15-7, page 406, a grade modifier of 1 for physical examination (GMPE) due to slight
palpatory findings, and found that a grade modifier for clinical studies (GMCS) was not applicable
since there were no clinical studies of the index finger for review. Dr. Seyoum calculated that
appellant had a net adjustment of +1 and therefore the index finger impairment would be one grade
higher, which was seven percent and corresponded to one percent permanent impairment of the
upper extremity. He concluded that she had a total of two percent permanent impairment of the
bilateral upper extremities for her bilateral index finger impairment. Dr. Seyoum calculated that
appellant had a total combined 17 percent permanent impairment of the bilateral upper extremities
due to her right carpal tunnel, left carpal tunnel, bilateral thumb trigger finger, and bilateral index
trigger finger conditions.
On May 1, 2016 Dr. Herbert White Jr., an OWCP district medical adviser (DMA) and
Board-certified internist and occupational medicine specialist, reviewed the medical evidence of
record and determined that appellant’s date of MMI was the date of Dr. Seyoum’s impairment
examination. He found, however, that Dr. Seyoum opined that appellant had impairment from her
bilateral thumb and index trigger finger releases, he did not conclude that these resulted in any
impairment. Dr. White found that appellant’s most impairing diagnosis was entrapment/
compression neuropathy of the right and left median nerve based on Table 15-23, page 449, of the
A.M.A., Guides and he assigned a grade modifier of 0 for clinical studies (GMCS) because the
test findings were normal, a grade modifier of 2 for functional history (GMFH) due to significant
3

intermittent symptoms, and a grade modifier of 3 for physical examination (GMPE) due to
weakness. He concurred that appellant’s QuickDASH score of 50 did not change the impairment
rating. Dr. White calculated that the average grade modifier was 2, which equated to a default
impairment rating of five percent permanent impairment of the right and left upper extremity based
on her right and left entrapment/compression neuropathy conditions. Regarding appellant’s
impairment due to her bilateral trigger thumb and bilateral trigger index finger conditions,
Dr. White found that Dr. Seyoum had indicated that appellant had slight tenderness in the thumbs
and index fingers, but he did not document any triggering. He asserted that in order to be put in a
class 1 diagnosis, triggering needed to be present. Dr. White further found that the previous
examinations of record failed to indicate thumb tenderness being present and concluded that
Dr. Seyoum’s findings of tenderness in the thumbs and index fingers were inconsistent with the
medical record and would, therefore, be excluded from the ratings process. He concluded that
without the physical finding of triggering, appellant had zero percent permanent impairment of the
bilateral upper extremities due to her bilateral trigger finger conditions in the thumb and index
finger. Using the Combined Values Chart, Dr. White concluded that appellant had 10 percent
permanent impairment of the bilateral upper extremities based on her bilateral carpal tunnel
syndrome condition.
By development letter dated March 1, 2017, OWCP requested a supplemental report from
Dr. Seyoum in response to the opinion of the DMA, Dr. White, regarding appellant’s impairment
rating and afforded him 30 days for submission.
In response, Dr. Seyoum submitted a report dated March 8, 2017 indicating that he did not
fully agree with Dr. White’s opinion. He argued that his findings of slight tenderness clearly
documented that triggering was present and that was why “trigger” was used to describe
appellant’s conditions. Dr. Seyoum clarified that appellant did have triggering present upon
examination and that was why it was documented.
In an amended report dated August 21, 2017, Dr. White reviewed Dr. Seyoum’s
supplemental report and concurred with his findings of triggering. He recalculated appellant’s
impairment rating and concurred again with Dr. Seyoum’s determinations of seven percent
permanent impairment of the left and right upper extremity due to her right trigger thumb
condition, which converted to three percent permanent impairment of the left and right upper
extremities. Regarding appellant’s bilateral trigger index finger condition, however, Dr. White
found that Dr. Seyoum did not exclude the GMFH as indicated on page 406, which states that this
should be excluded because it was already used to determine to rate the highest diagnosis-based
impairment (DBI) in the extremity. He calculated that excluding the GMFH resulted in six percent
permanent impairment, which converted to one percent permanent impairment of the right and left
upper extremities. Using the Combined Values Chart, Dr. White concluded that appellant had a
total of nine percent permanent impairment of each extremity (five percent for bilateral carpal
tunnel syndrome, three percent for bilateral trigger thumb, and one percent for bilateral trigger
index finger). The DMA noted that appellant had previously received a schedule award for 10
percent permanent impairment of each upper extremity and no additional impairment had been
incurred.
By decision dated November 1, 2017, OWCP denied appellant’s claim for an increased
schedule award because the medical evidence of record failed to establish that she had sustained

4

more than 10 percent permanent impairment of the right upper extremity or 10 percent permanent
impairment of the left upper extremity, for which she previously received a schedule award.
On November 8, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review and submitted a brief in support of
appellant’s claim.
A telephonic hearing was held before an OWCP hearing representative on May 16, 2018.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
Counsel subsequently resubmitted his brief arguing that the medical evidence of record
was sufficient to establish appellant’s entitlement to an increased schedule award and that the
proper edition of the A.M.A., Guides was not used in this case.
By decision dated July 31, 2018, OWCP’s hearing representative affirmed the prior
schedule award decision finding that the sixth edition of the A.M.A., Guides was properly utilized
in appellant’s case and the medical evidence was insufficient to establish a rating higher than nine
percent permanent impairment of the right upper extremity and nine percent permanent
impairment of left upper extremity. As appellant had previously received a schedule award based
upon 10 percent permanent impairment of the right and left upper extremity, there was no basis to
increase the schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA, however,
does not specify the manner in which the percentage loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of the
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The A.M.A.,
Guides has been adopted by OWCP as a standard for evaluation of schedule losses and the Board
has concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is
evaluated under the sixth edition of the A.M.A., Guides, published in 2009.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

7

D.T., Docket No. 12-0503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (March 2017); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8
A.M.A., Guides (6th ed., 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.

5

diagnosed condition (CDX), which is then adjusted by GMFH, GMPE, and GMCS.9 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of diagnoses
from regional grids and calculations of modifier scores.10
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the Guides
allow for the use of both the DBI and ROM methods to calculate an impairment
rating for the diagnosis in question, the method producing the higher rating should
be used. (Emphasis in the original.)”11
The Bulletin further advises that if the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than 10
percent permanent impairment of each upper extremity, for which she previously received a
schedule award.
OWCP accepted that appellant developed bilateral carpal tunnel syndrome, bilateral
tendinitis, and left trigger thumb due to factors of her federal employment. It authorized surgeries
and granted her a schedule award for 10 percent permanent impairment of the right upper extremity
and 10 percent permanent impairment of the left upper extremity. It is appellant’s burden to submit
sufficient evidence to establish the extent of permanent impairment.13

9

Id. at 494-531.

10

R.V., Docket No. 10-1827 (issued April 1, 2011).

11

Supra note 8 at 475, Table 15-34.

12

Id.

13

Annette M. Dent, 44 ECAB 403 (1993).

6

In a report, Dr. Seyoum indicated that appellant reached MMI on September 23, 2015. He
conducted a physical examination and based on his findings, he opined that when utilizing Table
15-23, page 449, the sixth edition of the A.M.A., Guides, appellant had nine percent permanent
impairment of each upper extremity.14
In accordance with its procedures, OWCP properly referred the evidence of record to its
DMA, Dr. White, who agreed that appellant’s date of MMI was September 23, 2015. Dr. White
reviewed Dr. Seyoum’s reports and determinations of seven percent permanent impairment of the
left and right upper extremity due to her right trigger thumb condition, which converted to three
percent permanent impairment of the left and right upper extremities. Regarding appellant’s
bilateral trigger index finger condition, however, Dr. White found that Dr. Seyoum did not exclude
the GMFH as indicated on page 406, as it was already used to determine to rate the highest DBI
in the extremity. He calculated that excluding the GMFH resulted in six percent permanent
impairment, which still converted to one percent permanent impairment of the right and left upper
extremities. Based on these calculations, Dr. White concluded that appellant had a total of nine
percent permanent impairment of the right upper extremity and nine percent permanent
impairment of the left upper extremity (five percent for bilateral carpal tunnel syndrome, three
percent for bilateral trigger thumb, and one percent for bilateral trigger index finger). Nonetheless,
the DMA found that appellant had previously received a schedule award for 10 percent permanent
impairment of the right upper extremity and 10 percent permanent impairment of the left upper
extremity and no additional impairment had been incurred.
The Board finds that the DMA discussed how he arrived at his conclusion by listing
appropriate tables and pages in the A.M.A., Guides, establishing that appellant sustained nine
percent permanent impairment of the right upper extremity and nine percent permanent
impairment of the left upper extremity. His opinion represents the weight of the medical evidence
and establishes that appellant does not have greater than 10 percent permanent impairment of each
upper extremity previously awarded. Thus, the Board finds appellant has not met her burden of
proof to establish that she is entitled to an additional schedule award.
The Board further finds that there is no current medical evidence of record, in conformance
with the sixth edition of the A.M.A., Guides, establishing that appellant has more than 10 percent
permanent impairment of the right upper extremity and 10 percent permanent impairment of the
left upper extremity. Accordingly, appellant has not established entitlement to a schedule award
greater than that previously awarded.15
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

14
The Board notes that, while Dr. Seyoum’s indicated that appellant has a total combined permanent impairment
rating of 17 percent, his calculations total 18 percent permanent impairment of the bilateral upper extremities.
15

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability. 5 U.S.C.
§ 8108; 20 C.F.R. § 10.404(c).

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained more than 10 percent permanent impairment of each upper extremity, for which she
previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 31, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 20, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, EL PASO
INTERNATIONAL AIRPORT, El Paso, TX,
Employer
__________________________________________

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

Docket No. 17-0654
Issued: May 8, 2018

Case Submitted on the Record

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

JURISDICTION
On January 31, 2017 appellant filed a timely appeal from a November 22, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last OWCP merit decision dated August 25, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3 the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its November 22, 2016 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a) as it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On September 17, 2013 appellant, then a 39-year-old lead transportation security officer,
filed a traumatic injury claim (Form CA-1) alleging that, on that date, he injured his right foot, left
leg and lower left back when he ran after a passenger who had breached the checkpoint. He
stopped work the next day, September 18, 2013. The employing establishment noted that
appellant had undergone foot surgery four weeks prior and that his doctor had released him to full
duty without restrictions on September 17, 2013.
An authorization for examination and/or treatment (Form CA-16) was issued by the
employing establishment on September 17, 2013. On the form, appellant indicated that he had
pain, tingling/numbness of right foot, left leg, and lower back. Dr. Francisco Guerra, a family
practitioner, noted that appellant had right heel spur surgery in August 2013 and had a history of
lumbar disc degenerative joint disease. He diagnosed sciatica, right limb pain and lumbago and
checked a box marked “yes” indicating that the conditions were caused or aggravated by the
employment activity of running after a passenger.
In a September 23, 2013 report, Dr. Vivianne Nguyen, a podiatrist, noted the claimed
September 17, 2013 incident. Appellant’s diagnoses were listed as status post endoscopic plantar
fasciotomy, right foot contusion and neuritis of medial dorsal cutaneous nerve and deep peroneal
nerve. Dr. Nguyen indicated that appellant’s right foot contusion was not surgery related, but was
from the strain of running after a suspect at work.
By development letter dated October 4, 2013, OWCP advised appellant of the deficiencies
in his claim and requested additional factual and medical evidence. Appellant was advised that he
should provide a narrative medical report from his physician which contained a medical
explanation as to how the reported work incident caused or aggravated a medical condition. He
was afforded 30 days to provide such evidence.
In a September 23 and 30, 2013 attending physician’s report, an unknown provider with a
specialty in family practice, noted that appellant had previously undergone right foot surgery by
Dr. Nguyen for heel spur. On the day appellant was released back to work, he had to run, which
caused pain in foot and back. A diagnosis of right foot injury and lumbago with radiculopathy
was provided. The provider checked “yes” to indicate that the condition was believed to have been
caused or aggravated by the employment activity described.
In September 30 and October 7, 2013 reports, Dr. Nguyen diagnosed contusion and right
foot strain, with neuritis of the medial dorsal cutaneous nerve and deep peroneal nerve.
Several reports from Dr. Barry L. Cromer, an orthopedic surgeon, were submitted. He
noted that appellant’s injury occurred on September 17, 2013 when appellant was chasing an

2

unscreened passenger. Diagnoses of lumbar radiculopathy, sciatica, lumbago, lumbar sprain and
low back pain were noted. In an October 4, 2013 report, Dr. Cromer indicated that appellant did
not have any preexisting problems with the injured areas. In November 5 and 11, 2013 reports, he
advised that appellant’s symptoms had worsened. Dr. Cromer indicated that his lumbar spine and
right lower leg problems began on September 17, 2013. In a December 3, 2013 report, he
indicated that appellant’s symptoms had improved. Dr. Cromer noted that his diffuse pain was
related to a workers’ compensation injury of September 17, 2013. He released appellant to
modified work with restrictions. Work capacity evaluations (Form OWCP-5c) dated October 4,
November 11, and December 6, 2013 were also provided.
In a December 3, 2013 report, Dr. David M. Sack, a preventive medicine/occupational
environmental specialist and physician for the employing establishment, noted appellant’s history
of the claimed employment incident and that appellant had been off work since the incident. He
related that, on the date of the alleged injury, appellant had just returned from a five-week work
absence related to treatment and surgery for a heel spur. Dr. Sack opined that, while it might be
feasible that the reported mechanism caused a foot injury, he was not sure how it would precipitate
such a prolonged and debilitating back condition. He further opined that appellant’s restrictions
disabling him from work were not supported and were likely prolonging recovery. Dr. Sack
concluded that the involvement of multiple physicians complicated the development and execution
of a focused return to work plan.
By decision dated December 18, 2013, OWCP accepted that the September 17, 2013
employment incident occurred as alleged and that appellant had diagnosed medical conditions.
However, it denied the claim finding that the medical evidence of record was insufficient to
establish that his diagnosed foot and back conditions were causally related to the accepted work
incident.
On February 21, 2014 appellant requested reconsideration. Evidence submitted in support
thereof consisted of appellant’s narrative statement received February 21, 2014 reports pertaining
to the foot and back from physical therapists and nurse practitioners, authorization requests, and
diagnostic testing. The employing establishment controverted the claim by letter of April 1, 2014.
In a January 10, 2014 letter, Dr. Cromer opined that the history of injury was consistent
with a workers’ compensation injury. He explained that it was plausible that appellant injured the
previous surgical site due to strenuous sprinting. It was also medically feasible that appellant’s
back strain/sprain was causally related to the September 17, 2013 work incident.
Progress reports and work capacity evaluations from Dr. Cromer were provided.
Dr. Cromer indicated that the conditions of lumbago, lumbar sprain, and plantar fasciitis were
actively being treated. In a December 6, 2013 report, he indicated that the symptoms of appellant’s
limb pain and lumbar radiculopathy were localized to peroneal nerve distribution. Dr. Cromer
stated that this condition was related to the September 17, 2013 “workers’ compensation injury.”
In a January 10, 2014 report, he indicated that appellant’s symptoms had worsened. Dr. Cromer
stated that the initial injury occurred to the lumbar spine and right foot on September 17, 2013 and
opined that appellant’s problems were related to that injury. Follow-up reports of January 17 and
March 20, 2014 were provided. In a March 20, 2014 report, Dr. Cromer indicated that appellant’s
lumbar spine and right foot problems started on September 12, 2013 and were related to that injury.

3

In a January 24, 2014 report, Dr. Nguyen stated that she performed endoscopic plantar
surgery on appellant on August 13, 2013. Appellant’s postoperation treatment ended on
September 16, 2013 and he was released to go back to work the following day. Dr. Nguyen stated
that appellant presented to the office on September 23, 2013 after he abruptly chased someone
during work hours and started to have pain on the right foot at the heel area as well as numbness
and pain on the first intermetatarsal base. She opined that he had a right foot contusion due to the
injury he sustained at work. Dr. Nguyen indicated that appellant received a strain and neuritis of
the medial dorsal cutaneous nerve and deep peroneal nerve from running after a suspect at work.
She also stated that the mechanism of his injuries from his history was consistent with the work
event. Thus, Dr. Nguyen opined that appellant’s persistent pain since September 17, 2013 resulted
from the September 17, 2013 work incident.
By decision dated June 2, 2014, OWCP denied modification of its December 13, 2013
decision. It found that the medical reports of record contained inconsistencies and speculative
wording. Additionally, the medical reports lacked a rationalized medical opinion based on a
complete factual and medical background explaining causal relationship between the diagnosed
condition and the accepted employment incident.
On December 16, 2014 appellant requested reconsideration. In support thereof, he
submitted a May 27, 2014 statement and an undated statement received on December 16, 2014.
An October 24, 2014 supervisor’s statement, in connection with disability retirement, indicated
that appellant had been unable to perform his job since January 22, 2014 as his medical limitations
did not meet the minimum physical requirements of the employing establishment.
Diagnostic testing reports and reports pertaining to lumbar epidural steroid injections at
L5-S1 were received.
In an October 8, 2014 report, Dr. Gregory R. Misenhimer, an orthopedic surgeon, provided
an assessment of lumbosacral neuritis and degeneration of lumbosacral intervertebral disc. He
indicated that appellant’s August 27, 2014 electromyogram and nerve conduction velocity
EMG/NCV study showed strong evidence of an acute radiculopathy affecting the right L5 nerve
root. The most recent magnetic resonance imaging (MRI) scan revealed degeneration of the L4
and L5 discs without herniation.
In September 26 and November 3, 2014 reports, Dr. Caesar A. Zuniga, a podiatrist,
diagnosed plantar fasciitis, equinus deformity, and foot pain. No history of injury was provided.
In an August 27, 2014 report, Dr. Michael K. Boone, a physiatrist, indicated that
appellant’s symptoms had been present since September 12, 2013. He noted the history of injury
and provided a chart of appellant’s medical history, noting the date of onset for each condition.
Dr. Boone provided an assessment of lumbosacral root lesions.
Dr. Cromer continued to treat appellant for the conditions of foot pain, foot sprain,
lumbago, lumbar radiculopathy, lumbar strain, plantar fasciitis, and sciatica. In his September 11,
2014 report, Dr. Cromer reported that appellant had surgery on his right foot two months ago.
By decision dated August 25, 2015, OWCP denied modification of its prior decision.

4

On August 30, 2016 appellant requested reconsideration. In an undated statement, received
by OWCP on August 30, 2016, he stated that he worked successfully for the first six hours on his
first day back to work after plantar fasciitis surgery without swelling or pain to either his foot or
back until he had to abruptly chase a runner, someone who had breached and passed the TSA
checkpoint. Appellant argued that Dr. Cromer provided medical documentation to support the
mechanism of injury causal relationship in his September 30, 2013 and January 10, 2014 reports.
Documents including work restrictions and referrals were submitted. The reports
documented appellant’s medical course and progress, which included treatment with a dorsal
column stimulator (DCS), which had malfunctioned and was eventually removed, and the
development of restless leg syndrome. None of the reports provided an opinion regarding the
cause of appellant’s diagnosed conditions.
By decision dated November 22, 2016, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of
error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.3
In order to be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP’s merit decision for which review is sought. Timeliness is determined by the
document receipt date of the reconsideration request [the received date in the Integrated Federal
Employees’ Compensation System (iFECS).4 The Board has found that the imposition of this oneyear time limitation does not constitute an abuse of the discretionary authority granted OWCP
under 5 U.S.C. § 8128(a).5
Its regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in section 10.607 of OWCP regulations, if
the claimant’s application for review shows clear evidence of error on the part of OWCP.6 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
3

20 C.F.R. § 10.607(a) (2011).

4
Id. at § 10.607; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b)
(February 2016). R.R., Docket No. 17-1210 (issued April 12, 2018).
5
6
7

Thankamma Mathews, 44 ECAB 765 (1993); see also Jesus D. Sanchez, 41 ECAB 964 (1990).
20 C.F.R. § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).
See Alberta Dukes, 56 ECAB 247 (2005).

5

manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear evidence
of error. It is not enough to merely show that the evidence could be construed so as to produce a
contrary conclusion. This entails a limited review by OWCP of how the evidence submitted with
the reconsideration request bears on the evidence previously of record and whether the new
evidence demonstrates clear error on the part of OWCP. To show clear evidence of error, the
evidence submitted must be of sufficient probative value to prima facie shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.8
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.9
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP.10
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
The last decision on the merits of the claim was OWCP’s August 25, 2015 decision, which
denied modification of a June 2, 2014 determination that appellant had not established causal
relationship between his diagnosed medical conditions and the September 17, 2013 employment
incident. Appellant had one year from the date of that decision to make a timely request for
reconsideration. His request for reconsideration was received by OWCP on August 30, 2016.11
As his request for reconsideration was received more than one year after the August 25, 2015 merit
decision, it was untimely filed and, therefore, appellant must demonstrate clear evidence of error.12
The Board also finds that appellant’s untimely request for reconsideration failed to
demonstrate clear evidence of error on the part of OWCP.
On December 18, 2013 OWCP made its initial determination that the medical evidence of
record failed to establish that the claimed medical conditions to appellant’s foot and back were
causally related to the accepted work incident of September 17, 2013. Subsequently, OWCP
8

Robert G. Burns, 57 ECAB 657 (2006).

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
10

Nancy Marcano, 50 ECAB 110 (1998).

See 20 C.F.R. § 10.607(a) (the reconsideration request must be received within one year of OWCP’s decision for
which review is sought).
11

12

L.S., Docket No. 16-0603 (issued May 20, 2016).

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denied multiple requests for reconsideration of this decision, finding that the evidence was not
sufficient to modify the prior decision as there was no well-rationalized medical report from a
physician which explained whether and how appellant’s diagnosed medical conditions were
causally related to the accepted work incident of September 17, 2013. Appellant has failed to
submit the type of positive, precise, and explicit evidence which manifests on its face that OWCP
committed an error in denying his claim.13
On reconsideration appellant referred to reports dated September 30, 2013 and January 10,
2014, which he argued supported the mechanism of injury and causal relationship. While the
reports cited by him are generally supportive of causal relationship, they do not demonstrate clear
evidence of error on the part of OWCP. OWCP specifically found that the reports cited by
appellant, as well as other multiple reports of record, lacked a well-reasoned explanation from a
physician as to how his medical condition occurred as a result of his employment incident. The
Board notes that while appellant addressed his disagreement with OWCP’s decision denying his
claim for traumatic injury, his disagreement does not demonstrate clear evidence of error as it does
not raise a substantial question as to the correctness of OWCP’s most recent merit decision which
denied appellant’s claim for traumatic injury because of insufficient medical evidence addressing
causal relationship.14
To demonstrate clear evidence of error, it is not sufficient merely to establish that the
evidence could be construed so as to produce a contrary conclusion. The term clear evidence of
error is intended to represent a difficult standard.15 None of the evidence submitted manifests on
its face that OWCP committed an error in denying appellant’s claim for compensation.16 Appellant
also has not submitted new medical evidence which addresses the causal relationship of appellant’s
medical conditions. Accordingly, the Board finds that the arguments and evidence submitted by
appellant are insufficient to demonstrate clear evidence of error.17
For these reasons, the Board finds that appellant has not demonstrated clear evidence of
error by OWCP in the denial of his claim for traumatic injury.

13

See D.H., Docket No. 18-0042 (issued March 16, 2018).

14

See S.R., Docket No. 16-1107 (issued February 23, 2017); R.R., Docket No. 14-1272 (issued October 15, 2014).

15

Annie L. Billingsley, 50 ECAB 210 (1998).

16

See James R. Mirra, 56 ECAB 738 (2005).

17

The Board notes that a Form CA-16, authorization for examination and/or treatment, was issued by the employing
establishment on September 17, 2013. When the employing establishment properly executes a Form CA-16 which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16
creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form
CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c);
Tracy P. Spillane, 54 ECAB 608, 610 (2003).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a) as it was untimely filed and failed to demonstrate clear evidence of
error.
ORDER
IT IS HEREBY ORDERED THAT the November 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 17-1679
Issued: February 8, 2018

Case Submitted on the Record

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

JURISDICTION
On August 1, 2017 appellant filed a timely appeal from a February 8, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
durable medical equipment consisting of an adjustable bed, elliptical machine, and recumbent
cycle.
On appeal appellant asserts that the medical evidence establishes his need for the
requested equipment.
1

Appellant initially timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of
Procedure. 20 C.F.R. § 501.5(b). By correspondence dated August 30, 2017, he withdrew the request.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 11, 2000 appellant, then a 44-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his lower back on that date while lifting mail trays.
OWCP initially denied the claim on November 30, 2000. Appellant requested reconsideration
and, in a February 16, 2001 decision, OWCP reversed its prior decision and accepted
aggravation of facet syndrome. He stopped work on the date of injury and returned to modified
duty on August 11, 2001. OWCP adjudicated the claim under File No. xxxxxx082.
On April 2, 2002 OWCP expanded acceptance of the claim to include aggravation of
lumbar degenerative disc disease. Appellant stopped work on May 3, 2002 and filed Form CA-7
claims for compensation. In an August 28, 2002 decision, OWCP accepted his claims for
compensation beginning May 3, 2002,3 and he was placed on the periodic compensation rolls.
On August 30, 2002 appellant underwent lumbar spine fusion surgery. On December 6,
2002 OWCP expanded his claim to include prolonged post-traumatic stress disorder (PTSD) and
major depressive disorder, recurrent episode.
On November 18, 2003 appellant filed a traumatic injury claim for a November 5, 2002
injury that occurred while descending stairs to attend a second opinion evaluation. The claim
was adjudicated by OWCP under File No. xxxxxx385. On April 1, 2003 OWCP accepted left
shoulder sprain/strain. Appellant underwent arthroscopic shoulder repair on February 10, 2003.
On October 3, 2003 appellant had a second lumbar surgical procedure.
By decision dated December 13, 2005, OWCP denied appellant’s request for an
adjustable orthopedic mattress.4 Following appellant’s requests for reconsideration, in merit
decisions dated May 18, 2006 and January 11, 2007, it denied modification of the December 13,
2005 decision.
Appellant returned to modified duty for four hours daily on June 11, 2007. He increased
his work hours to six hours daily on August 7, 2007. Appellant’s compensation was
appropriately adjusted.
He began working eight hours of modified duty daily on
September 15, 2007.
In February 2008 OWCP authorized the purchase of durable medical equipment. On
February 28, 2008 it accepted dental caries extending to pulp and dental caries root as a
consequence of medications prescribed for appellant’s employment injuries.
Appellant retired on disability effective September 2, 2008. On that day he filed an
occupational disease claim (Form CA-2) for right cubital syndrome and bilateral carpal tunnel
3
OWCP previously denied appellant’s claims for compensation in decisions dated June 20 and July 9, 2002.
Appellant requested reconsideration and in the August 28, 2002 decision reversed the June 20 and July 9, 2002
decisions.
4

The bed had been recommended by Dr. Dmitriy Buyanov, appellant’s attending Board-certified pain
management specialist. An OWCP medical adviser reviewed the record and request and advised that it would not
affect appellant’s outcome in any significant way.

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syndrome. OWCP adjudicated the occupational disease claim under File No. xxxxxx230 and
accepted bilateral carpal tunnel syndrome and lesion of ulnar nerve on November 12, 2008. On
September 11, 2008 it expanded the claim under OWCP File No. xxxxxx385 to include complete
rotator cuff rupture, left. OWCP administratively combined File Nos. xxxxxx082, xxxxxx385,
and xxxxxx230 on November 12, 2008, with File No. xxxxxx082 serving as the master file.
In separate letters dated December 3, 2014, Dr. Buyanov described the medical necessity
for the acquisition of a hospital bed, recumbent cycle, and elliptical machine. Regarding the
hospital bed, he maintained that it was appropriately indicated due to appellant’s ongoing
recurrent, persistent pain, muscle spasm, and muscle cramping that was a result of his underlying
pain syndrome. Dr. Buyanov noted that appellant’s current medical regimen included a hospital
bed which had provided a substantial improvement in overall baseline pain control by increasing
bed rest time, thereby allowing appellant to adequately rest and then be able to adequately
perform the activities of daily living as well as maintain an acceptable quality of life. He
continued that a hospital bed facilitated treatment because it could be adjusted to provide
appellant less painful access to both entry and exit from the bed with the least amount of stress,
tension, and aggravation of his underlying painful condition which, in turn, enhanced the healing
process significantly and would reduce swelling of the upper and lower extremities because he
would be more comfortable and could access bed rest when needed. Dr. Buyanov indicated that,
if the hospital bed were not approved, pain control and the ability to perform activities of daily
living and an acceptable quality of life would be significantly impaired and this would lead to the
increased use of opioid narcotic analgesics.
With regard to the recumbent cycle and elliptical machine, Dr. Buyanov also maintained
that these were appropriately indicated due to appellant’s ongoing recurrent, persistent pain,
muscle spasm, and muscle cramping that was a result of his underlying pain syndrome. He noted
that both machines would provide appellant with a low impact cardiovascular workout that
would burn calories and help build lean muscle mass, and that, while each machine used similar
muscle groups, there were unique advantages to each and appellant should choose the one that
best fit his personal fitness needs.
By development letter dated February 4, 2015, that was resent on March 13, 2015,
OWCP informed appellant of the type of evidence needed to support his request for a mattress
and exercise equipment. This was to include a statement from his physician that described the
basic equipment and the medical reasons for recommending the equipment, the specific goals of
or benefits expected from this equipment, how often appellant would utilize the equipment, the
expected duration of its use, and a description of alternative treatment that might achieve the
same results. He was also to provide at least two detailed quotes for the equipment.
On March 26, 2015 Dr. Buyanov advised that appellant would use a hospital bed,
elliptical machine, and recumbent cycle on a daily basis. He maintained that there was no
alternative treatment. Dr. Buyanov forwarded his December 3, 2014 letters of medical necessity.
In correspondence dated May 1, 2015, appellant indicated that an orthopedic bed, which
had been authorized in 2008, was worn out and broken, and that his exercise equipment was also
worn out, which caused him to gain weight and increased his pain. He forwarded two quotes for
a recumbent cycle and elliptical machine, and two quotes for adjustable beds.

3

On September 2, 2015 OWCP asked its medical adviser for an opinion on the
recommended mattress/hospital bed, elliptical machine, and recumbent cycle. He was informed
of the accepted conditions. In a September 3, 2015 report, Dr. Ronald Blum, an OWCP medical
adviser and a Board-certified orthopedic surgeon, noted the accepted conditions and history of
injury. Regarding Dr. Buyanov’s recommendations, Dr. Blum opined that the requested bed was
not medically necessary, indicating that the effect of an adjustable bed could be achieved by a
bed board under the mattress and a simple pad on top of the mattress to simulate the feeling and
support provided by an adjustable hospital bed, with the judicious use of pillows to achieve the
correct position in the bed. As to the recommended purchase of a recumbent cycle and elliptical
machine, Dr. Blum advised that he was not aware of any scientific proof that the use of these
devices was of medical benefit in treating chronic pain syndrome. He concluded that he could
not support the purchase of either machine.
In a September 23, 2015 decision, OWCP denied the claim for purchase of an adjustable
bed, elliptical machine, and recumbent cycle. It found the weight of the medical evidence rested
with the OWCP medical adviser, noting that the record contained no objective medical evidence
to establish that the requested durable medical equipment was medically necessary.
On September 12, 2016 appellant requested reconsideration. He noted that after receipt
of the September 23, 2015 denial, he had been attending a fitness center at a nearby military base
but that it became very busy with wait times of more than an hour. Appellant’s physician then
requested physical therapy, which was denied. Appellant maintained that the documentation
provided by Dr. Buyanov was sufficient to approve the requested exercise equipment and
adjustable bed. He submitted Dr. Buyanov’s December 3, 2014 letters of medical necessity and
his March 26, 2015 correspondence. Appellant also submitted an April 28, 2015 letter that was
an exact copy of May 1, 2015 his letter, also previously of record.
In a merit decision dated February 8, 2017, OWCP denied modification of its
September 23, 2015 decision. It found that the medical evidence of record did not reflect that the
purchase of the requested durable medical equipment would cure, give relief, reduce the degree
or period of disability, or aid in lessening the amount of monthly compensation.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.5
While OWCP is obligated to pay for treatment of employment-related conditions, the employee
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.6

5

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

6

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

4

Section 10.310(a) of OWCP’s implementing regulations provides that employee is
entitled to receive all medical services, appliances or supplies which a qualified physician
prescribes or recommends and which it considers necessary to treat the work-related injury.7 Its
procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if
OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation.8
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.9 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore
has broad administrative discretion in choosing means to achieve this goal.
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 established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.10
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request to
purchase durable medical equipment. Under File No. xxxxxx082, OWCP accepted lumbar and
lumbosacral strain, aggravation of lateral facet syndrome, aggravation of lumbar degenerative
disc disease, prolonged PTSD and major depressive disorder, left shoulder strain, dental caries,
impotence of organic origin, thoracic and lumbosacral neuritis or radiculitis, lumbar
degeneration, and spinal stenosis. Under File No. xxxxxx230, bilateral carpal tunnel syndrome
and lesion of the ulnar nerve, right were accepted. A complete rotator cuff rupture was accepted
under File No. xxxxxx385.
Appellant requested authorization to purchase an adjustable hospital-type bed, elliptical
machine, and recumbent cycle. In decisions dated September 23, 2015 and February 8, 2017,
OWCP denied appellant’s request. It found the weight of the medical evidence rested with the
opinion of Dr. Blum, its medical adviser.
On December 3, 2014 Dr. Buyanov advised that the acquisition of a hospital bed,
recumbent cycle, and elliptical machine would relieve appellant’s ongoing recurrent, persistent
pain, muscle spasm, and muscle cramping which resulted from his underlying pain syndrome.
7

20 C.F.R. § 10.310(a).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3.d(5)
(October 1995); Federal (FECA) Procedure Manual, Part 2 -- Claims, Durable Medical Equipment, Chapter
2.810.17.h (June 2014); D.J., Docket No. 13-1637 (December 2013).
9

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

10

Minnie B. Lewis, 53 ECAB 606 (2002).

5

He noted that appellant’s current regimen included a hospital bed which provided a substantial
improvement in overall baseline pain control by increasing bed rest time, which allowed
appellant to adequately perform the activities of daily living and maintain an acceptable quality
of life. Dr. Buyanov continued that a hospital bed facilitated treatment because it could be
adjusted to provide appellant less painful access to both entry and exit from the bed with the least
amount of stress, tension, and aggravation of his underlying painful condition which, in turn,
enhanced the healing process significantly and would reduce swelling of the upper and lower
extremities because he would be more comfortable and could access bed rest when needed. With
regard to the recumbent cycle and elliptical machine, he indicated that both would provide
appellant with a low-impact cardiovascular workout that would burn calories and help build lean
muscle mass.
The Board finds that Dr. Buyanov did not provide a sufficient explanation as to how the
adjustable bed, elliptical machine, or recumbent cycle would cure, give relief, reduce the degree
or period of disability, or aid in lessening the amount of monthly compensation.11 OWCP’s
obligation to pay for medical treatment under section 8103 of FECA extends only to treatment of
employment-related conditions.12 As noted, OWCP’s medical adviser concluded that the
requested equipment was not medically necessary.
As to appellant’s assertion on appeal that OWCP had paid for a similar bed and
equipment in 2008, previously authorizing the expense for an orthopedic mattress did not
preclude OWCP from exercising its discretion to deny authorization for a new mattress in 2015
or 2017.13
The Board finds that the medical evidence submitted provided insufficient explanation
for the necessity of the items requested and the weight of the evidence rested with Dr. Blum,
who advised that there was no evidence that the requested durable medical equipment would aid
the accepted conditions. For these reasons, the Board finds that OWCP did not abuse its
discretion in denying appellant’s request to authorize the purchase of an adjustable bed,
recumbent cycle, and elliptical machine.14
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 OWCP did not abuse its discretion in denying authorization to
purchase durable medical equipment consisting of an adjustable bed, elliptical machine, and
recumbent cycle.
11

Supra note 6.

12

D.J., Docket No. 13-1637 (issued December 16, 2013).

13

Id.

14

Supra note 9.

6

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1002
Issued: November 14, 2013

Case Submitted on the Record

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

JURISDICTION
On March 22, 2013 appellant filed a timely appeal from a March 12, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) suspending her compensation. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits for
failure to submit a CA-1032 form when requested.
FACTUAL HISTORY
On October 15, 2008 appellant, then a 59-year-old general clerk, was injured when she
slipped while walking down stairs. She sustained injury to her neck, low back and twisted her
knee. OWCP accepted appellant’s claim for cervical and lumbar strain and right medial and
1

5 U.S.C. § 8101 et seq.

lateral meniscus tear. Appellant did not immediately stop work but received wage-loss
compensation on the periodic rolls for disability in 2009.
On January 15, 2013 OWCP asked appellant to complete a Form CA-1032 within 30
days to provide information regarding any earnings during the prior reporting period. Appellant
was advised that her benefits would be suspended pursuant to 20 C.F.R. § 10.528 if a completed
CA-1032 form was not received by OWCP within 30 days. No response was received.
By decision dated March 12, 2013, OWCP suspended appellant’s wage-loss benefits
effective March 10, 2013. It found that she did not submit a complete Form CA-1032, as
requested. OWCP informed appellant that, when she completed the CA-1032 form, her
compensation would be restored retroactively from the date of suspension.2
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.4 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.5
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.6
ANALYSIS
OWCP requested that appellant submit a CA-1032 form with respect to any employment
activity performed for the prior 15 months. It requested the information by letter dated
January 15, 2013 and advised her to submit the form within 30 days or her compensation could
be suspended. The record establishes that appellant did not respond prior to the March 12, 2013
OWCP decision.
2

The Board notes that appellant submitted a Form CA-1032 to the Board on appeal. The Board, however, may
only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003). This decision does not
preclude appellant from submitting this form to OWCP.
3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528.

5

See N.G., Docket No. 12-981 (issued December 4, 2012); Lucille A. Pettaway, 55 ECAB 228 (2004); Demetrius
Beverly, 53 ECAB 305 (2002).
6

Supra note 4.

2

Based on the evidence of record, the Board finds that OWCP properly suspended
appellant’s compensation effective March 10, 2013 pursuant to 20 C.F.R. § 10.528.
On appeal appellant asserts that she submitted the CA-1032 forms in January 2013. The
evidence of record does not establish that the CA-1032 form was received by OWCP prior to the
March 12, 2013 decision.
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 OWCP properly suspended appellant’s compensation benefits based
on her failure to timely submit a completed CA-1032 form when requested.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 12, 2013 is affirmed.
Issued: November 14, 2013
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1947
Issued: May 6, 2014

Case Submitted on the Record

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

JURISDICTION
On August 23, 2013 appellant filed a timely appeal from an August 5, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a traumatic right knee
injury in the performance of duty.
On appeal, appellant contends that she promptly reported her injury and that her
physician’s reports were sufficient to establish causal relationship.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 5, 2013 appellant, then a 52-year-old customs and border protection officer, filed
a claim for traumatic injury (Form CA-1) alleging that on May 28, 2013 she sustained a right
knee injury during defensive tactics recertification. She stated that, during the “red man”
scenario, she used her knee to make the subject comply with her orders. Appellant asserted that
on May 29, 2013 her right knee became sore and swollen. She did not stop work at the time of
her claim. The employing establishment controverted appellant’s claim, asserting that there were
no witnesses to the claimed injury, that she delayed reporting the injury for several days and that
the training scenario was “not that physical.”
In support of her claim, appellant submitted June 10, 2013 reports from Dr. John Lee
Berger, an attending Board-certified orthopedic surgeon, who related her account of twisting her
right knee at work on May 28, 2013 during defensive tactics training. Dr. Berger obtained right
knee x-rays within normal limits. On examination, he noted tenderness in the posterior aspect
and over the medial joint line and limited flexion and extension. Dr. Berger diagnosed
post-traumatic synovitis of the right knee with internal derangement, rule out meniscal injury and
rule out chondromalacia. He administered a cortisone injection and prescribed medication and
physical therapy.
In a June 28, 2013 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including factual information substantiating the May 28, 2013 incident. It
also emphasized the importance of submitting a report from her attending physician explaining
how and why the May 28, 2013 incident would cause the claimed right knee injury. OWCP
afforded appellant 30 days to submit additional evidence.
In response, appellant submitted a July 3, 2013 report from Dr. Berger, noting that her
right knee improved significantly following the June 10, 2013 cortisone injection. She had full
range of motion, normal contour and full weight bearing. Dr. Berger released appellant to full
duty as of July 8, 2013 and discharged her from care. Appellant also submitted June 20 and 26,
2013 physical therapy notes.
By decision dated August 5, 2013, OWCP denied appellant’s claim on the grounds that
fact of injury was not established. It found that appellant did not establish that the May 28, 2013
training incident occurred at the time, place and in the manner alleged. OWCP noted that even if
the May 28, 2013 incident was established as factual, the medical evidence did not explain how
and why the event would cause the diagnosed right knee injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

employment injury.2 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.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.4
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6 The
employee’s statement, however, must be consistent with the surrounding facts and circumstances
and his subsequent course of action. An employee has not met his burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.7
ANALYSIS
Appellant claimed that she sustained a right knee injury on May 28, 2013 in a “red man”
scenario during defensive tactics recertification. OWCP denied the claim by August 5, 2013
decision, finding both that she failed to establish the May 28, 2013 incident as factual and that
the medical evidence was insufficient to establish causal relationship.
In her June 5, 2013 claim form, appellant explained that she used her right knee to make
the “red man” comply with her orders. She did not describe the physical requirements of the
scenario or explain how she believed the exercise physically caused the claimed injury. The
probative quality of appellant’s account of events was also called into question by the employing
establishment’s contention that the training scenario was “not that physical.” OWCP advised her
by June 28, 2013 letter of the additional factual evidence needed to establish her claim, including
corroboration that the “red man” incident occurred at the time and in the manner alleged.

2

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

3

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

4

Gary J. Watling, 52 ECAB 278 (2001).

5

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

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

3

However, appellant did not submit such evidence. The Board therefore finds that OWCP
properly denied the claim due to a lack of factual evidence.8
As appellant did not meet the threshold requirement of establishing the May 28, 2013
incident as factual, it is not necessary to address the medical issue of causal relationship.
On appeal, appellant contends that she reported her injury promptly and that her
physician’s reports were sufficient to establish causal relationship. As stated, she submitted
insufficient evidence to establish that the claimed May 28, 2013 incident occurred as alleged. It
is therefore premature to address the medical issue of causal relationship.
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 established that she sustained a traumatic right
knee injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2013 is affirmed.
Issued: May 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
8

Gary J. Watling, supra note 4.

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
P.B., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Coppell, TX, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-565
Issued: October 15, 2009

Case Submitted on the Record

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

JURISDICTION
On December 22, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated October 17, 2008. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of her claim for a
schedule award.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she has
more than 23 percent impairment of the right lower extremity.
FACTUAL HISTORY
On October 16, 2003 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim alleging that she stepped off a curb and twisted her right knee. She noted that she had two
prior surgeries to the knee in 2001 and 2002. Appellant stopped work on October 16, 2003. The
Office accepted the claim for sprain/strain of the right knee and leg, a sprain/strain of the
lumbosacral joint and a tear of the medial meniscus of the right knee. Appellant underwent an

arthroscopy of the right knee on May 17, 2004. She received appropriate compensation and
benefits.1
On June 30 and July 21, 2008 appellant filed a claim for a schedule award.
In support of her claim, appellant submitted a May 13, 2008 report from Dr. Louis D.
Zegarelli, a Board-certified family practitioner and osteopath, who noted appellant’s history of
injury and treatment and utilized the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001) (A.M.A., Guides). Dr. Zegarelli indicated that appellant
reached maximum medical improvement on May 13, 2008. He provided range of motion
measurements for the right knee which included 135 degrees of flexion and 0 degrees of
extension. Dr. Zegarelli referred to Table 17-10 and concluded that appellant did not have
impairment for loss of range of motion in the right knee.2 He also indicated that she did not have
valgus or varus weakness or joint disruption. Dr. Zegarelli indicated that appellant underwent a
partial medial meniscectomy which would afford two percent leg impairment. He also indicated
that she had arthritis and underwent four operative procedures on her right knee. Dr. Zegarelli
explained that two of the knee surgeries were directly related to the events of October 16, 2003
and the other two surgeries were associated with other work-related injuries. He also noted that
an x-ray evaluation demonstrated a cartilage interval measurement of two millimeters for the
right knee. Dr. Zegarelli referred to Table 17-313 and determined that this would equate to 20
percent impairment to the lower extremity. He determined that no sensory or motor function
deficit was noted and that appellant did not show evidence of muscle atrophy. Dr. Zegarelli
combined the 20 percent lower extremity impairment for the degenerative arthritic condition
with the 2 percent for the partial medial meniscectomy and opined that appellant had 22 percent
lower extremity impairment.
On July 31, 2008 the Office requested that the Office medical adviser review
Dr. Zegarelli’s report and provide an opinion regarding permanent impairment to the right lower
extremity.
In a report dated August 7, 2008, the Office medical adviser noted appellant’s history of
injury and treatment and utilized the A.M.A., Guides. He concurred with Dr. Zegarelli regarding
the extent of appellant’s impairment and opined that she reached maximum medical
improvement on May 13, 2008. However, the Office medical adviser explained that appellant
had previously received right leg schedule awards for total impairment of 23 percent. As this
amount must be subtracted from any current impairment rating, he opined that she did not have
any additional impairment for the right leg.
1

The record reflects that appellant has received previous schedule awards. They include two percent to the right
leg under No. xxxxxx149. She also received a schedule award of 14 percent to the right leg and 4 percent to the left
leg under No. xxxxxx839. These other claims are not before the Board on this appeal. On April 11, 2005 appellant
received a schedule award of seven percent to the right leg in the present claim, No. xxxxxx650. On May 9, 2005
the Office reduced her wage-loss compensation to zero finding that she was reemployed as a modified city letter
carrier and that her actual wages met or exceeded the current wages of the job she held when injured.
2

A.M.A., Guides 537.

3

Id. at 544.

2

On October 17, 2008 the Office denied appellant’s claim for a schedule award.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions,
and organs of the body.5 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.6 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.7
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to an increased
schedule award in accordance with the fifth edition of the A.M.A., Guides.
The Office accepted appellant’s claim for sprain/strain of the right knee and leg and a
sprain/strain of the lumbosacral joint/ligament for which appellant underwent an arthroscopy of
the right knee on May 17, 2004. It also accepted a tear of the medial meniscus of the right knee.
The Office previously paid appellant schedule awards representing 23 percent impairment of the
right leg.
The Board notes that both Dr. Zegarelli and the Office medical adviser were in agreement
that appellant had impairment of 22 percent to the right lower extremity and reached maximum
medical improvement on May 13, 2008. Dr. Zegarelli, on May 13, 2008, determined that the
range of motion measurements for the right knee were not severe enough to warrant a rating.
Regarding the partial medial meniscectomy, the physicians referred to Table 17-33.8 The Board
notes that a partial medial meniscectomy would afford appellant two percent lower extremity
impairment. Dr. Zegarelli and the Office medical adviser also concurred that appellant had 20
percent leg impairment due to her knee arthritis under Table 17-31.9 The Board finds that
Dr. Zegarelli and the Office medical adviser properly found that these combined impairments
totaled 22 percent right lower extremity impairment.10 Further, the Office medical adviser
explained that appellant had previously received a total impairment of 23 percent for the right
lower extremity based on findings for the right knee. He subtracted the previous award from the
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8107.

6

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

7

20 C.F.R. § 10.404.

8

A.M.A., Guides 546.

9

Id. at 544.

10

See id. at 604.

3

present finding of 22 percent and explained that appellant was not entitled to receive any
additional impairment.
As appellant previously received an award of 23 percent to the right leg, and her current
impairment rating is, as noted, 22 percent for the right leg, she is not entitled to an increased
schedule award. She did not submit any other medical evidence to support that she was entitled
to an increased schedule award for her right leg. Accordingly, the Board finds that appellant has
not established entitlement to an increased schedule award.11
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
entitled to an increased schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2008 is affirmed.
Issued: October 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

The Board notes that, subsequent to the Office’s October 17, 2008 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

4