United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Great Falls, MT, Employer
__________________________________________

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

Docket No. 19-0160
Issued: January 16, 2020

Case Submitted on the Record

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

JURISDICTION
On September 4, 2018 appellant filed a timely appeal from a May 10, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days had
elapsed from OWCP’s last merit decision, dated May 19, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.
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 April 25, 2014 appellant, then a 39-year-old postal support employee (PSE), filed a
traumatic injury claim (Form CA-1) alleging that on March 26, 2014 he sustained a right shoulder
1

5 U.S.C. § 8101 et seq.

injury as a result of placing a package in a bag while in the performance of duty. He stopped work
on that date. On the reverse side of the claim form, a supervisor noted that continuation of pay
was controverted, noting that appellant had filed an occupational disease claim (Form CA-2) for
both shoulders and that it was the same injury.2
In a letter dated April 25, 2014, the employing establishment controverted appellant’s
claim noting that he had filed another claim for both shoulders and that there were inconsistencies
with how the claimed March 26, 2014 injury occurred.
In a development letter dated December 12, 2016, OWCP advised appellant that the
evidence of record was insufficient to establish his claim. Specifically, it informed him that the
evidence of record did not include a legible description of how the claimed March 26, 2014 injury
occurred and, therefore, fact of injury had not been established. OWCP advised appellant of the
type of medical and factual evidence needed and afforded him 30 days to respond.
In an undated letter, appellant responded that while working light duty on March 26, 2014,
he lifted and placed boxes, packages, and letters into shipping sacks; lifted those sacks; and placed
them into containers to be scanned. During that time, appellant felt pain in his elbows. He
continued working and noticed that a “pumpkin” container needed to be separated. Appellant
reached down into the container, grabbing a package that weighed 15 to 20 pounds, and proceeding
to place it in its proper location. While doing so, he felt a sharp pain in his right shoulder, his arm
went limp, and his right hand began to tingle. Appellant sought medical treatment at a hospital
emergency room.
In an emergency department report dated March 26, 2014, Dr. Christian Mannsfeld, Boardcertified in emergency medicine, examined appellant for a complaint of upper extremity pain.
Noting that appellant had similar symptoms previously, he diagnosed a strained right shoulder and
told him not to work for two days.
In a report dated April 16, 2014, Dr. Paul Johnson, Board-certified in family medicine,
examined appellant for complaints of musculoskeletal pain. He noted that the onset of the pain
was on February 21, 2014. Dr. Johnson diagnosed lateral epicondylitis and disorders of the bursae
and tendons of the shoulder region. In an accompanying duty status report (Form CA-17) he noted
that appellant should be off work due to these diagnoses.
By decision dated June 5, 2014, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish causal relationship between appellant’s diagnosed right
shoulder strain and the accepted employment incident of March 26, 2014.
In an attending physician’s report (Form CA-20) dated June 9, 2014, Dr. Johnson checked
a box marked “yes,” indicating that appellant’s diagnosed rotator cuff tendinitis and internal

2

The Board notes that under OWCP File No. xxxxxx992, appellant claimed an occupational disease with a date of
injury of February 21, 2014. As of April 25, 2014, this case was under development with no adjudicated status, and
no ICD9 code had been identified. Appellant’s claims have not been administratively combined. Upon return of the
case record OWCP should consider administratively combining appellant’s upper extremity claims.

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derangement was caused or aggravated by employment activities. He explained that chronic
overuse from repetitive movement was the cause of the employment injury.
In a report dated March 31, 2014, Dr. Johnson noted musculoskeletal pain related to a
workers’ compensation claim and that appellant had a new injury. He described the new injury as
a reinjury of appellant’s right shoulder while lifting packages.
On June 27, 2014 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
A notification of personnel action (Form SF-50) with an effective date of November 10,
2014 noted that appellant had been terminated from the employing establishment as of that date,
as he had not reported to work since March 26, 2014.
In a report dated March 27, 2014, with regard to appellant’s lateral epicondylitis,
Dr. Johnson noted that the medical evidence submitted established that the diagnosed condition
was causally related to a work-related injury.
The hearing was held on February 11, 2015. During the hearing, counsel argued that the
medical evidence of record was sufficient to establish causal relationship. The hearing
representative held the record open for 30 days for submission of additional evidence.
By decision dated April 17, 2015, the hearing representative affirmed the June 5, 2014
decision finding that the medical reports of record failed to provide sufficient medical rationale,
based on a complete medical background, explaining how appellant’s diagnosed conditions were
caused or aggravated by the March 26, 2014 “work injury.”
On April 27, 2015 appellant, through counsel, requested reconsideration. Accompanying
the request were copies of the March 26 and 31, 2014 reports of Dr. Mannsfeld and Dr. Johnson,
respectively.
By decision dated May 28, 2015, OWCP denied appellant’s request for reconsideration
without conducting a merit review finding that the March 26 and 31, 2014 reports submitted on
reconsideration had previously been reviewed and addressed.
A magnetic resonance imaging (MRI) scan dated May 12, 2015 of appellant’s right
shoulder demonstrated a high-grade, partial articular surface tear, a type 2 acromion, subtle
irregularity of the anterior inferior labrum, and trace subacromial subdeltoid fluid. In a report
dated May 20, 2015, Dr. Chris Haraszti, a Board-certified orthopedic surgeon, examined appellant
for complaints of right shoulder pain, noting that it had worsened on March 27, 2014 when he had
a trauma. He diagnosed a partial, almost full thickness, rotator cuff tear.
On September 22, 2015 appellant again requested reconsideration.
In an operative note dated October 9, 2015, Dr. Haraszti described performing rotator cuff
repair, biceps tenodesis, and arthroscopic limited debridement on appellant’s right shoulder.

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By decision dated January 26, 2016, OWCP reviewed the merits of appellant’s case, but
denied modification of its April 17, 2015 decision finding that the evidence submitted on
reconsideration did not contain a physician’s opinion on causal relationship, and that as such, it
was not of sufficient probative value to modify the prior decision.
On February 22, 2016 appellant requested reconsideration of OWCP’s January 26, 2016
decision. With his request he enclosed a February 3, 2016 report from Dr. Haraszti. Dr. Haraszti
noted that while he had a low level of pain in his right shoulder prior to 2014, appellant believed
that the March 26, 2014 incident was the factor resulting in his need for surgery. He opined that
it was reasonable to assume that because his pain was of a different quality and more severe after
March 26, 2014, the incident on that date either caused or aggravated a rotator cuff tear, but that
because he had not seen appellant until a year after the injury, there was no way of firmly
establishing a causal relationship.
By decision dated March 4, 2016, OWCP denied appellant’s request for reconsideration
without conducting a merit review finding that Dr. Haraszti’s February 3, 2016 note was irrelevant.
The hearing representative further noted that under OWCP File No. xxxxxx992, appellant’s claim
had been accepted for a partial tear of the right rotator cuff, and that he was currently in receipt of
medical and wage-loss benefits under that case number.
On November 2, 2016 appellant again requested reconsideration. With his request, he
submitted an October 4, 2016 letter from Dr. Haraszti. Dr. Haraszti noted that he had an injury to
his right shoulder on March 24, 2016, when he lifted a package and felt severe pain in his right
shoulder. He opined that an injury on March 24, 2014 more likely than not resulted in an
incomplete right rotator cuff tear and biceps tendinitis of the right shoulder, which should be
considered work related. Dr. Haraszti noted that as he had not seen appellant until several months
after the claimed injuries, he could not be completely definitive as to causal relationship. However,
he found that it was more likely than not that appellant’s diagnoses were a direct result of the duties
of his federal employment. In an addendum report dated December 19, 2016, Dr. Haraszti
corrected the date of appellant’s claimed work-related injury, noting that it occurred on March 24,
2014, not March 24, 2016.
By decision dated January 30, 2017, OWCP reviewed the merits of appellant’s case, but
denied modification of its January 26, 2016 decision, finding that Dr. Haraszti’s October 4, 2016
opinion on causal relationship was speculative in nature and therefore, it was not of sufficient
probative value to modify the prior decision.
On March 7, 2017 appellant requested reconsideration of OWCP’s January 30, 2017
decision. With his request he enclosed an addendum from Dr. Haraszti dated March 6, 2017,
which noted that appellant had an injury to his right shoulder on March 26, 2014, not March 24,
2016, when he lifted a package out of a pumpkin container and felt a pop in his shoulder.
By decision dated May 19, 2017, OWCP reviewed the merits of appellant’s case, but
denied modification of its January 30, 2017 decision, finding that Dr. Haraszti had not offered a
sufficiently rationalized opinion on causal relationship establishing that appellant’s diagnosed
right shoulder conditions were related to the accepted employment incident of March 26, 2014.

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On April 16, 2018 appellant requested reconsideration of OWCP’s May 19, 2017 decision.
With his request he attached a letter in which he argued that there was a month’s worth of medical
documentation related to this traumatic injury claim under OWCP File No. xxxxxx992.
By decision dated May 10, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.3 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).4 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5 Section 10.608(b) provides that, when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.6 A request for
reconsideration must also be received by OWCP within one year of the date of OWCP’s decision
for which review is sought.7 If OWCP chooses to grant reconsideration, it reopens and reviews
the case on its merits.8 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.9
In support of a request for reconsideration, a claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.10 He or she needs only to submit

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.608(a).

5

Id. at § 10.606(b)(3).

6

Id. at § 10.608(b).

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 OWCP’s 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 § 10.608(a); see also A.P., Docket No. 19-0224 (issued July 11, 2019).

9

Id. at § 10.608(b); A.G., Docket No. 19-0113 (issued July 12, 2019).

10

P.L., Docket No. 18-1145 (issued January 4, 2019); Helen E. Tschantz, 39 ECAB 1382 (1988).

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relevant, pertinent evidence not previously considered by OWCP.11 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.12
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. § 8128(a).
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Appellant also did not advance a relevant legal argument not previously
considered by OWCP. While he submitted a statement with his April 16, 2018 reconsideration
request, in which he argued that there was a month’s worth of medical documentation related to
this claim under OWCP File No. xxxxxx992, this statement is not relevant to the underlying issue
of causal relationship for which appellant has the burden of proof. Thus, appellant is not entitled
to a review of the merits based on the first or second requirements under 20 C.F.R. § 10.606(b)(3).
As noted, the underlying issue of the present case is medical in nature, i.e., whether
appellant submitted medical evidence sufficient to establish causal relationship between diagnosed
right shoulder conditions and the accepted March 26, 2014 incident. On reconsideration appellant
did not submit new evidence in support of his claim. Therefore, appellant is not entitled to a review
of the merits based on the third requirement under 20 C.F.R. § 10.606(b)(3).
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. § 8128(a).

11

S.S., Docket No. 18-0647 (issued October 15, 2018).

12

P.L., supra note 10; Annette Louise, 54 ECAB 783 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the May 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 16, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Lauderdale, FL, Employer
__________________________________________

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

Docket No. 07-354
Issued: July 9, 2007

Case Submitted on the Record

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

JURISDICTION
On November 21, 2006 appellant filed a timely appeal from a September 14, 2006 merit
decision of the Office of Workers’ Compensation Programs which denied her claim and an
October 30, 2006 decision which denied her request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
was totally disabled for the period beginning February 1, 2004; and (2) whether the Office
properly refused to reopen her claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On May 20, 1998 appellant, then a 37-year-old clerk, sustained an employment-related
lumbar strain when her chair collapsed and she fell. She came under the care of Dr. Philip F.
Averbuch, a Board-certified orthopedic surgeon, who advised on August 10, 1998 that appellant

could return to limited duty. A July 9, 1998 bone scan demonstrated no occult fracture of the
spine or hips. An August 25, 1998 magnetic resonance imaging (MRI) scan of the lumbar spine
demonstrated degenerative and hypertrophic changes at T11-12 with a component of left
paracentral disc herniation and compression of the thecal sac and disc desiccation at L5-S1 with
left paracentral disc herniation and hypertrophy of the articular facets and sclerosis contributing
to encroachment upon the neural foramina and other milder degenerative changes. In a
September 3, 1998 report, Dr. Averbuch advised that the MRI scan did not show a true herniated
disc.
By report dated September 29, 1998, Dr. Martin Lesser, a Board-certified neurologist,
noted appellant’s complaints of left-sided pain and advised that her weight was 300 pounds.
Lower extremity electromyography (EMG) on October 8, 1998 was mildly abnormal consistent
with but not diagnostic of left S1 radiculopathy. Dr. Jay Lasner, Board-certified in
anesthesiology and pain medicine, began a series of epidural injections on January 28, 1999. A
March 12, 1999 MRI scan of the lumbar spine revealed no significant change and a lumbar
myelogram on April 8, 1999 demonstrated a herniated disc at L5-S1 with minor disc bulging at
L3-4 and L4-5. On May 25, 1999 Dr. Averbuch advised that appellant could return to full duty
on May 26, 1999. Lumbar spine discography on August 6, 1999 demonstrated annular tears at
L5-S1 “to the degenerated pattern of this disc.”1
By report dated August 14, 2002, Dr. Lasner noted that he had not seen appellant since
August 1999. He reported appellant’s complaints of pain and diagnosed morbid obesity and a
herniated degenerated disc at L5-S1 with left leg radiculopathy, rule out facet arthropathy. In
reports dated December 30, 2002 and September 12, 2003, Dr. Lasner recommended pain
management.
In November 2003, appellant came under the care of Dr. Matthew C. Deutscher, a Boardcertified physiatrist, and stopped work on November 29, 2003. Dr. Deutscher provided reports
dated November 18 and December 2, 2003 in which he noted a history that she injured her back
at work and presented with symptoms of radiating pain into the left lower extremity. Straight leg
raising was negative. Examination findings included antalgic gait and tenderness on
examination of the left buttock. Dr. Deutscher diagnosed L5-S1 herniated nucleus pulposus
(HNP) and obesity. By report dated December 8, 2003, Debbie Layton-Tholl, Psy.D., a licensed
clinical psychologist, described the history of injury and appellant’s past medical treatment. She
provided psychological test results and stated that appellant was being evaluated prior to a pain
management program. Dr. Layton-Tholl diagnosed pain disorder with both psychological
factors and general medical condition, adjustment disorder mixed with anxiety and depression,
morbid obesity and herniated discs and advised that psychosocial stressors were pain and
decreased function and that appellant needed psychotherapy. In an attending physician’s report
dated December 19, 2003, Dr. Deutscher diagnosed depression secondary to L5-S1 HNP with S1
radiculopathy, low back pain and obesity. He checked the “yes” box, indicating that the
diagnosed conditions were employment related and advised that appellant was totally disabled
1

On March 28, 2002 appellant filed a Form CA-2a, recurrence of disability claim, stating that her symptoms of
back pain were the same and could be unbearable. She advised that the date of recurrence was March 27, 2002 but
did not stop work. By letter dated July 23, 2002, the Office advised appellant that her claim remained open for
medical treatment.

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for the period December 1 through 31, 2003 and that it was unknown when she could return to
work.
On December 31, 2003 appellant submitted a claim for compensation for the period
December 1 to 31, 2003 and on February 5, 2004 for the period January 1 to 31, 2004. By letters
dated February 11 and April 7, 2004, the Office informed her of the evidence needed to support
these claims.
Dr. Deutscher submitted reports and therapy notes dating January 7 to March 4, 2004. In
a January 20, 2004 report, he related that appellant was first seen by him on November 18, 2003
and on December 1, 2003 he reported that she did not go to work because of increased pain.
Examination on December 2, 2003 and January 7, 2004 revealed significant tenderness
throughout her buttocks, lumbosacral and thoracic hip area with an antalgic gait to the left.
Dr. Deutscher stated that appellant started a pain management program on December 8, 2003 and
diagnosed L5-S1 HNP with S1 radiculopathy and obesity and advised that she could not work.
In treatment notes dating January 5 to February 23, 2004, Dr. Layton-Tholl advised that
appellant was seen for individual psychotherapy and relaxation training. A functional capacity
evaluation dated March 9, 2004 noted that appellant complained of low back pain with repetitive
bending, squatting, stair climbing and maneuvering a 200-pound cart. The report concluded that
she could do medium work exerting 20 to 50 pounds occasionally, 10 to 25 pounds frequently or
up to 10 pounds constantly. An April 30, 2004 MRI scan of the lumbar spine demonstrated
posterior disc protrusions into the central canal at T11-12, L4-5 and L5-S1 with posterior disc
bulging in the neural canals and bilateral neural canal narrowing at all levels between T10 and S1
except at T12-L1 with desiccation of the T11-12 disc, bilateral facet joint disease at L4-5 and
L5-S1, impingement on the L4 and L5 nerve roots within their neural canals bilaterally and no
significant central spinal stenosis.
In decisions dated May 18, 2004, the Office found that appellant did not sustain
recurrences of disability for the period December 1 through 31, 2003 or January 1 through
31, 2004. On June 14, 2004 appellant requested a review of the written record and submitted
additional reports from Dr. Deutscher dated from May 20 through August 26, 2004.
Dr. Deutscher reiterated his findings and advised that appellant could not work. He noted that
appellant worked as a letter sorter/box clerk and was being treated for a 1998 work injury and
described her job duties of lifting up to 70 pounds, prolonged standing, constant bending and
repetitive activities, relating that “[appellant] states [that] she cannot do these and I do not feel
she can do these either. I would recommend sedentary duty for her.” In a June 9, 2004 report,
Dr. Deutscher addressed the April 30, 2004 MRI scan findings and opined that “because of
[appellant’s] complaints and physical condition and spinal pathology, I feel she cannot do her job
as a box clerk as she described to me.”
By decision dated December 17, 2004, an Office hearing representative affirmed both
May 18, 2004 decisions.2
On September 21, 2005 appellant submitted a claim for compensation for the period
March 2004 through September 2005 and submitted additional medical evidence including
2

Appellant did not file an appeal with the Board of this decision.

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reports from Dr. Deutscher dated December 7, 2004 to January 31, 2006 in which he noted that
appellant was markedly obese and reiterated his diagnoses regarding her back. Dr. Deutscher
stated that appellant’s pain was from the 1998 employment injury, continued to advise that she
was unable to work and recommended postrehabilitation training. In an October 8, 2005
attending physician’s report, he checked the “yes” box, explaining that appellant’s diagnosis of
L5-S1 HNP was documented on an April 2004 MRI scan and advised that she must lose weight.
In a May 17, 2006 letter, the Office informed appellant that the accepted conditions were
back contusion and lumbar strain and that the medical evidence submitted did not explain how
the L5-S1 HNP with radiculopathy was causally related to the May 20, 1998 employment injury.
The letter explained that a physician’s opinion was crucial to her claim and outlined what the
medical report should contain. In a May 22, 2006 report, Dr. Deutscher reiterated his diagnoses
and conclusions and by report dated June 22, 2006, noted that appellant reported that “she
injured her back at work after a fall.” He advised that his current examination demonstrated
consistent pain behavior and tenderness on palpation of the lumbosacral area, on paraspinal
motion, antalgic gait and impaired functional mobility. Dr. Deutscher reiterated the diagnoses
and MRI scan findings and stated that appellant had a history of morbid obesity which was
“apparently” exacerbated by her pain and restricted movement, again concluding that she could
not work. On form reports dated June 28, 2006, he advised that appellant demonstrated criteria
of a disorder of the spine with compromise of a nerve root, a neuron-anatomic distribution of
pain, limited range of motion of the spine and motor loss with painful dysesthesia and that
appellant needed to change her position or posture more than once every two hours and was
unable to ambulate effectively. Dr. Deutscher checked that his opinion was based on his direct
observation and treatment, physical examination, historical medical records, clinical testing, her
report, his own experience and background and imaging studies.
In a September 14, 2006 decision, the Office found that appellant was not entitled to
compensation benefits for the period commencing February 1, 2004.
On October 18, 2006 appellant requested reconsideration and submitted an October 10,
2006 report in which Dr. Deutscher reiterated that appellant’s pain and impairment were
secondary to the May 20, 1998 employment injury. By decision dated October 30, 2006, the
Office denied appellant’s reconsideration request on the grounds that she failed to submit
evidence or argument sufficient to warrant merit review. The Office noted that Dr. Deutscher’s
October 10, 2006 report was cumulative in nature.
LEGAL PRECEDENT -- ISSUE 1
Where appellant claims a recurrence of disability due to an accepted employment-related
injury, he has the burden of establishing by the weight of reliable, probative and substantial
evidence that the recurrence of disability is causally related to the original injury. This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally

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related to the employment injury.
physician’s conclusion.3

Moreover, sound medical reasoning must support the

The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury. In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship. While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.4
Under the Federal Employees’ Compensation Act5 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.6 Disability is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act,7 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.8 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.9
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.10 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.11

3

Ricky S. Storms, 52 ECAB 349 (2001).

4

Id.

5

5 U.S.C. §§ 8101-8193.

6

See Prince E. Wallace, 52 ECAB 357 (2001).

7

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

8

Donald E. Ewals, 51 ECAB 428 (2000).

9

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, supra note 8.

10

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

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ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a lumbar strain and back contusion on
May 20, 1998. Appellant was released to return to limited duty in August 1998 and to full duty
on May 26, 1999. She did not submit any medical reports regarding her back condition between
August 1999 and August 2002 when Dr. Lasner noted her complaints of pain and diagnosed
morbid obesity and a herniated degenerated disc at L5-S1 with left leg radiculopathy.
The medical evidence submitted regarding the claimed disability beginning February 1,
2004 consists of reports from Dr. Deutscher.12 Appellant’s treatment with Dr. Deutscher began
on November 18, 2003 when he noted a history that she injured her back at work and presented
with symptoms of radiating pain into the left lower extremity. Dr. Deutscher diagnosed L5-S1
HNP and obesity. In subsequent reports, he related a history that appellant injured her back after
a fall at work, advised that she could not work and concluded that her May 20, 1998 employment
injury attributed to her back pain, restricted movement and obesity.13 Dr. Deutscher related that,
when appellant was injured in 1998, she was working as a letter sorter/box clerk and described
her job duties as lifting up to 70 pounds with prolonged standing and constant bending which he
advised that she could not do. He opined that the 1998 injury caused appellant pain and
recommended a sedentary position. In an attending physician’s report dated October 8, 2005,
Dr. Deutscher checked the “yes” box indicating that the diagnosed conditions were employment
related, explaining that her diagnoses of L5-S1 HNP was documented on an April 2004 MRI
scan. He also advised that she must lose weight.
In form reports dated June 28, 2006, Dr. Deutscher checked a number of statements
advising that appellant demonstrated criteria of a disorder of the spine with compromise of a
nerve root, a neuron-anatomic distribution of pain, limited range of motion of the spine and
motor loss with painful dysesthesia and that she needed to change her position or posture more
than once every two hours and was unable to ambulate effectively. He checked that his opinion
was based on his direct observation and treatment, physical examination, historical medical
records, clinical testing, appellant’s report, his own experience and background and imaging
studies.
Appellant submitted no medical evidence between August 1999 and August 2002. The
medical evidence must demonstrate that the claimed recurrence was caused, precipitated,
accelerated or aggravated by the accepted injury.14 In this regard, medical evidence of bridging
symptoms between the recurrence and the accepted injury must support the physician’s
12

Appellant also submitted reports from Dr. Layton-Tholl, a psychologist, dating from December 8, 2003 to
February 23, 2004. Dr. Layton-Tholl performed psychological testing and counseling while appellant was in a pain
management program. She, however, provided no opinion regarding the cause of appellant’s back condition and
medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. Willie M. Miller, 53 ECAB 697 (2002). The record does not
indicate that the pain management program was authorized.
13

Regarding the latter, it is noted that appellant weighed 300 pounds in July 1998, a few months after her
May 1998 employment injury.
14

Rickey S. Storms, supra note 3.

6

conclusion of a causal relationship.15 As there was an absence in the case record of evidence of
bridging symptoms between Dr. Lasner’s August 1999 report and his report dated
December 2002, the evidence in the record does not support that appellant had any back
complaints during that period.
The Board finds that Dr. Deutscher’s reports are insufficient to establish that appellant’s
condition and disability on or after February 1, 2004 were caused by the May 20, 1998
employment injury. The Office did not accept the condition of herniated disc or any condition
other than a lumbar strain and back contusion. Dr. Deutscher did not exhibit a thorough
knowledge of appellant’s work injury and failed to provide a rationalized medical opinion
explaining how appellant’s condition and disability in February 2004 were related to the
accepted work injury. His reports of the history of injury merely indicated that appellant fell at
work without expressing specific knowledge of the fall from her chair or any explanation of the
process of how this fall caused her diagnosed HNP with radiculopathy or disability from work.16
Furthermore, Dr. Deutscher did not explain why, with the absence of medical findings between
1999 and 2002, appellant’s work-related lumbar strain had progressed to total disability from
work.17 Appellant has not submitted the necessary rationalized medical evidence to substantiate
that her diagnosed condition and disability on or after February 1, 2004 is causally related to the
May 20, 1998 employment injury.18
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.19 Section 10.606(b)(2) of Office regulations provides that a claimant
may obtain review of the merits of the claim by either: (1) showing that the Office erroneously
applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office.20 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.21 Evidence or argument that repeats or duplicates evidence
previously of record has no evidentiary value and does not constitute a basis for reopening a

15

Id.

16

See generally Bonnie A. Contreras, 57 ECAB ____ (Docket No. 06-176, issued February 7, 2006).

17

Ricky S. Storms, supra note 3.

18

See Mary A. Ceglia, 55 ECAB 626 (2004).

19

5 U.S.C. § 8128(a).

20

20 C.F.R. § 10.606(b)(2).

21

20 C.F.R. § 10.608(b).

7

case.22 Likewise, evidence that does not address the particular issue involved does not constitute
a basis for reopening a case.23
ANALYSIS -- ISSUE 2
On her form requesting reconsideration, appellant merely checked that she was
requesting reconsideration. Appellant, therefore, did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. Consequently, she is not entitled to a review of the
merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(2).24
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted a report dated October 10, 2006 from Dr. Deutscher. The Board finds that this report
is cumulative and repetitive of Dr. Deutscher’s numerous previous reports as it merely restated
his opinion that appellant’s pain and impairment were secondary to the May 20, 1998
employment injury. Evidence that repeats or duplicates evidence already in the case record has
no evidentiary value and does not constitute a basis for reopening a case.25 Appellant, therefore,
did not constitute relevant and pertinent new evidence not previously considered by the Office
and the Office properly denied her reconsideration request.26
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for the period beginning February 1, 2004 causally related to
her employment injury and that the Office properly denied her request for reconsideration.

22

Helen E. Paglinawan, 51 ECAB 591 (2000).

23

Kevin M. Fatzer, 51 ECAB 407 (2000).

24

20 C.F.R. § 10.606(b)(2).

25

Roger W. Robinson, 54 ECAB 846 (2003).

26

The Board notes that appellant submitted additional evidence subsequent to the October 30, 2006 decision of
the Office. The Board, however, cannot consider this evidence as its review of the case is limited to that evidence
which was before the Office at the time of its final decision. 20 C.F.R. § 501.2c.

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 30 and September 14, 2006 be affirmed.
Issued: July 9, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Amarillo, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0392
Issued: August 14, 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 December 19, 2017 appellant filed a timely appeal from a December 8, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established more than seven percent permanent
impairment of the right lower extremity, for which he previously received a schedule award, or
any permanent impairment of his left lower extremity.
FACTUAL HISTORY
On May 27, 2004 appellant, then a 45-year-old mail processor, filed a notice of traumatic
injury (Form CA-1) alleging that on May 24, 2004 he reached up to place mail in a case slot and

1

5 U.S.C. § 8101 et seq.

experienced lumbar pain with right-sided radiculopathy and paresthesias.2 OWCP accepted that
the May 24, 2004 employment incident caused a lumbosacral strain, L5-S1 disc derangement,
lumbar disc degeneration, and right-sided lumbar radiculopathy.
In a report dated June 15, 2006, Dr. John W. Ellis, an attending Board-certified family
practitioner, provided a history of injury and treatment. He noted that appellant had alleged a
second work-related lumbar injury on May 19, 2005 when he bent down to pick up a fallen
clipboard.3 On examination Dr. Ellis found decreased reflexes in the right foot, decreased range
of lumbar motion, a positive right straight leg raising test, and bilateral paraspinal muscle spasms.
He diagnosed a lumbosacral strain, L5-S1 disc derangement, and right lower extremity
radiculopathy.
On September 6, 2006 appellant filed a claim for a schedule award (Form CA-7).
In a report dated September 21, 2006, an OWCP district medical adviser reviewed the
medical record. He opined that appellant had attained maximum medical improvement (MMI) on
June 1, 2005, one year following the May 24, 2004 employment injury. The medical adviser found
that appellant had sustained seven percent permanent impairment of the right lower extremity
according to the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment4 (A.M.A., Guides) then in effect, three percent for diminished sensation,
and four percent for atrophy or decreased strength.
By decision dated September 27, 2006, OWCP granted appellant a schedule award for
seven percent permanent impairment of the right lower extremity. The period of the award ran
from June 1 to October 20, 2005.
On May 10, 2007 appellant underwent right L2, L3, L4, and L5 lumbar facet medial branch
neurotomies by radiofrequency ablation.
An August 27, 2007 lumbar MRI scan demonstrated disc desiccation and small diffuse disc
protrusions with minimal central canal and bilateral neural foraminal stenosis at L2-3, L3-4, and
L4-5.
Dr. Ellis provided a June 8, 2009 impairment rating, finding 24 percent permanent
impairment of appellant’s right lower extremity based on 13 percent impairment of the L5 nerve
root, 13 percent impairment of the right S1 nerve root, and 9 percent permanent impairment of the
left lower extremity due to S1 nerve root impairment. Subsequently, an OWCP district medical
adviser reviewed Dr. Ellis’ June 8, 2009 impairment rating on February 22, 2010. He opined that
it did not conform to the appropriate rating methodologies of the A.M.A., Guides.

2

A lumbar magnetic resonance imaging (MRI) scan performed on May 27, 2004 demonstrated an L3-4 annular
bulge, a mild diffuse bulge at L4-5, moderate bilateral foraminal narrowing at L4-5, and mild bilateral foraminal
narrowing at L3-4.
3

The record does not reflect that appellant filed a claim for a May 19, 2005 employment injury.

4

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

2

A June 18, 2009 electromyography (EMG) and nerve conduction velocity (NCV) study
was negative for lumbar radiculopathy. It indicated a possible peripheral polyneuropathy affecting
both lower extremities.
On June 23, 2010 OWCP obtained a second opinion regarding the appropriate percentage
of permanent impairment from Dr. John A. Sklar, a Board-certified physiatrist. Based on a review
of the medical record, statement of accepted facts, and a clinical examination, Dr. Sklar opined
that appellant had no impairment of either lower extremity due to lumbar nerve root impingement.
An OWCP medical adviser reviewed Dr. Sklar’s report on September 30, 2011 and concurred with
his findings and impairment rating.
Appellant retired from the employing establishment, effective April 28, 2011.
On January 13, 2015 appellant filed a claim for an increased schedule award (Form CA-7).
He provided a report dated September 11, 2014 from Dr. Ellis in which he opined that the accepted
lumbar injuries had disabled appellant from all work and continued to worsen. In a report dated
October 20, 2014, Dr. Ellis noted findings on examination of decreased sensation in the L4, L5,
and S1 dermatomes bilaterally, and an absent right ankle reflex. He diagnosed a thoracic sprain,
displaced lumbar disc, and lumbosacral disc degeneration. Dr. Ellis opined that, according to
Table 16-2 of the A.M.A., Guides and The Guides Newsletter, appellant had 18 percent permanent
impairment of the right L5 nerve root, and 13 percent permanent impairment of the right S1 nerve
root. He combined these values to equal 29 percent permanent impairment of the right lower
extremity. On the left Dr. Ellis found three percent permanent impairment of the left L4 nerve
root, three percent permanent impairment of the left L5 nerve root, and one percent impairment of
the left S1 nerve root. He combined these values to find a total of seven percent permanent
impairment of the left lower extremity. Dr. Ellis opined that appellant had attained MMI.5
On March 10, 2016 OWCP obtained another second opinion from Dr. Michael S. Brown,
a Board-certified physiatrist. Dr. Brown reviewed the medical record and a statement of accepted
facts (SOAF). On examination he found mildly limited lumbar motion, negative straight raising
tests bilaterally, normal sensation throughout both legs, bilaterally present deep tendon reflexes,
and no focal strength deficits in either lower extremity on manual muscle testing. Dr. Brown
diagnosed lumbar degenerative disc disease. He opined that as appellant had a “normal neurologic
examination including normal strength and normal sensation in the lower extremities with intact
reflexes, no evidence of nerve injury is appreciated.” Therefore, according to page 533 of the sixth
edition of the A.M.A., Guides, appellant had no permanent impairment of either lower extremity.

5

In a January 29, 2015 report, an OWCP district medical adviser recommended that OWCP obtain a second opinion
as Dr. Ellis’ October 20, 2014 impairment rating contained significant inconsistencies and did not conform to the
A.M.A., Guides. He recommended that OWCP obtain a second opinion on the issue of permanent impairment. On
September 2, 2015 OWCP obtained a second opinion report from Dr. Edward Brandecker, a Board-certified
physiatrist and pain management specialist, who provided an impairment rating of the lumbar spine. In a
September 14, 2015 report, an OWCP district medical adviser explained that Dr. Brandecker’s evaluation erred by
rating the spine itself as FECA did not allow for a schedule award for permanent impairment of the spine. OWCP’s
district medical adviser therefore recommended that OWCP obtain a new second opinion.

3

In a report dated March 21, 2016, an OWCP district medical adviser concurred with
Dr. Brown that appellant had no permanent impairment of the lower extremities. He opined that
appellant had attained MMI on March 10, 2016.
By decision dated March 23, 2016, OWCP denied appellant’s claim for an additional
schedule award, based on Dr. Brown’s opinion as the weight of the medical evidence. It found
that Dr. Brown provided a well-rationalized opinion, based on the appropriate portions of the
A.M.A., Guides.
On June 14, 2016 appellant requested reconsideration and submitted additional medical
evidence.
An April 18, 2016 EMG study demonstrated right L3 radiculopathy with no motor
weakness, bilateral tarsal tunnel syndrome, and spinal stenosis superimposed on a history of
diabetes.
In a report dated May 31, 2016, Dr. Ellis related appellant’s subjective complaints of
decreased sensation in his legs, feet, and bladder. He noted that appellant had been diagnosed with
adult onset diabetes in 2007, treated with oral medication. Dr. Ellis opined that, according to Table
16-12 and The Guides Newsletter, appellant had 4 percent impairment of the right L3 spinal nerve
root, 6 percent permanent impairment of the right L4 spinal nerve root, 6 percent permanent
impairment of the right L5 spinal nerve root, and 10 percent permanent impairment of the right S1
spinal nerve root. Using the Combined Values Chart, he calculated a total of 23 percent permanent
impairment of the right lower extremity. For the left lower extremity, he found 6 percent
impairment of the left L5 spinal nerve root and 4 percent permanent impairment of the left S1
spinal nerve root, combined to equal a total of 10 percent permanent impairment of the left lower
extremity.
On July 15, 2016 an OWCP district medical adviser opined that Dr. Ellis’ May 31, 2016
impairment rating differed significantly from that of Dr. Brown. The district medical adviser noted
that OWCP should clarify whether there was a conflict of medical opinion which required
resolution by an impartial medical specialist.
In a report dated May 30, 2017, Dr. Ellis provided an American Academy of Orthopedic
Surgeons (AAOS) lower limb questionnaire with a score of 22 on the right and 14 on the left, and
a pain disability questionnaire (PDQ) score of 138. He repeated the impairment rating set forth in
his May 31, 2016 opinion of 23 percent permanent impairment of the right lower extremity and 10
percent permanent impairment of the left lower extremity.
OWCP found a conflict of medical opinion between Dr. Ellis, for appellant, and
Dr. Brown, for the government, regarding the appropriate percentage of permanent impairment.
To resolve the conflict, OWCP selected Dr. Sami R. Framjee, a Board-certified orthopedic
surgeon.6 In a June 8, 2017 report, Dr. Framjee reviewed the medical record and a SOAF. On
6
OWCP had originally selected Dr. Stephen Ringel, a Board-certified orthopedic surgeon, but the examination did
not take place as Dr. Ringel did not perform schedule award evaluations using the sixth edition of the A.M.A., Guides.
Dr. Andrew Parkinson, a Board-certified orthopedic surgeon, as impartial medical examiner. However, OWCP
cancelled the appointment due to a conflict of interest.

4

examination he observed bilateral paraspinal tenderness, restricted lumbar motion, negative
straight leg raising tests bilaterally, a normal sensory examination throughout both lower
extremities, and 4+ motor strength in each leg. Dr. Framjee obtained lumbar x-rays demonstrative
anterior osteophytes from L3 to L5, and a mild L3-4 retrolisthesis. He opined that appellant had
no objective evidence of focal neurologic deficits in either lower extremity secondary to any
lumbar pathology. Dr. Framjee found that appellant therefore had no ratable impairment of the
right or left leg due to nerve root involvement according to the A.M.A., Guides.
By decision dated July 10, 2017, OWCP denied modification of its prior decision, finding
that appellant had not submitted probative medical evidence establishing greater than seven
percent permanent impairment of the right lower extremity or any ratable impairment of the left
lower extremity. It accorded the weight of the medical evidence to Dr. Framjee, who provided a
thorough, well-rationalized opinion explaining that appellant had no impairment of either lower
extremity attributable to nerve root involvement.
On September 8, 2017 appellant requested reconsideration. He contended that Dr. Ellis’
opinion should be controlling as he was appellant’s attending physician. Appellant submitted
additional evidence.
In a report dated November 14, 2017, Dr. Ellis opined that appellant’s occupational lumbar
conditions had reached MMI as of May 30, 2017.7
By decision dated December 8, 2017, OWCP denied modification of its prior decision,
finding that the evidence submitted on reconsideration did not establish that appellant sustained
more than a seven percent permanent impairment of the right lower extremity or any permanent
impairment of the left lower extremity. It found that Dr. Ellis’ November 14, 2017 report did not
address the issue of permanent impairment.
LEGAL PRECEDENT
The schedule award provisions of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the

7
Appellant also provided copies of medical evidence previously of record, and his August and September 2017
correspondence to OWCP regarding contact information and mileage reimbursement.
8

Supra note 1.

9

20 C.F.R. § 10.404.

5

specified edition of the A.M.A., Guides.10 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.11
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.12 Neither FECA nor its implementing federal
regulations provide for payment of a schedule award for the permanent loss of use of the back, the
spine, or the body as a whole; a claimant is not entitled to such a schedule award.13 The Board
notes that section 8101(19) specifically excludes the back from the definition of organ.14 A
claimant may receive a schedule award for any permanent impairment to the upper or lower
extremities even though the cause of the impairment originated in the spine.15
The sixth edition of the A.M.A., Guides provides a specific methodology for rating spinal
nerve impairment, set forth in the July/August 2009 The Guides Newsletter.16 It was designed for
situations in which a particular jurisdiction, such as FECA, mandated ratings for extremities and
precluded ratings for the spine. FECA-approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities. The appropriate tables for rating spinal
nerve extremity impairment are incorporated in the Federal (FECA) Procedure Manual.17 The
Board has recognized the adoption of this methodology as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.18
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides with an OWCP medical adviser providing
rationale for the percentage of impairment specified.19

10
Id. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards
and Permanent Disability Claims, Chapter 2.808.5.a (March 2017).
11

Id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

12

Thomas J. Engelhart, 50 ECAB 319 (1999).

13

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

14

5 U.S.C. § 8101(9).

15

W.D., Docket No. 10-0274 (issued September 3, 2016).

16

The methodology and applicable tables were published in The Guides Newsletter, Rating Spinal Nerve Extremity
Impairments Using the Sixth Edition (July/August 2009).
17

See supra note 10 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

18

D.S., Docket No. 14-0012 (issued March 18, 2014).

19
See supra note 10 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
(March 2017).

6

ANALYSIS
The Board finds that appellant has not established greater than seven percent permanent
impairment of his right lower extremity for which he previously received a schedule award, or any
permanent impairment of the left lower extremity.
On September 27, 2006 OWCP granted appellant a schedule award for seven percent
permanent impairment of the right lower extremity.
On January 13, 2015 appellant claimed an increased schedule award based on Dr. Ellis’
October 20, 2014 impairment rating, which found 29 percent permanent impairment of the right
lower extremity and 7 percent permanent impairment of the left lower extremity according to
Table 16-2 of the sixth edition of the A.M.A., Guides and The Guides Newsletter. On March 10,
2016 Dr. Brown, a Board-certified physiatrist and second opinion examiner, opined that appellant
had no appreciable nerve injury affecting either of his lower extremities. OWCP denied
appellant’s claim for an increased schedule award on March 23, 2016 based on Dr. Brown’s
opinion as the weight of the medical evidence.
Pursuant to appellant’s June 14, 2016 request for reconsideration, OWCP found a conflict
of medical opinion between Dr. Brown and Dr. Ellis, and selected Dr. Framjee, a Board-certified
orthopedic surgeon, to resolve the conflict. Dr. Framjee provided a June 8, 2017 report, setting
forth detailed clinical findings of a normal motor and sensory examination throughout both lower
extremities. He therefore opined that appellant had no permanent impairment of either leg due to
nerve root impairment. By decision dated July 10, 2017, OWCP denied modification based on
Dr. Framjee’s opinion as the weight of the medical evidence.
Appellant requested reconsideration on September 8, 2017 and submitted a November 14,
2017 report from Dr. Ellis, which did not address the issue of permanent impairment. OWCP
denied modification by decision dated December 8, 2017.
The Board finds that OWCP properly accorded the special weight of the medical evidence
in the case to Dr. Framjee, who provided a detailed, well-rationalized report based on his clinical
examination, a review of the medical record, and SOAF. Dr. Framjee explained that there was no
evidence of focal neurologic deficit impairing either lower extremity. As noted, an appellant may
receive a schedule award for permanent impairment to the extremities even though the cause of
the impairment originated in the spine.20 In this case, however, Dr. Framjee explained that the
medical record and objective findings on examination failed to document any sensory or motor
deficit of either lower extremity attributable to nerve root impairment. As appellant has no
evidence of lumbar radiculopathy affecting the lower extremities he was not entitled to an
increased schedule award based on impairment to his lower extremities which originated in the

20
Francesco Veneziani, 48 ECAB 572 (1997). A schedule award is payable for a permanent impairment of the
extremities that is due to a work-related back condition; see also Denise D. Cason, 48 ECAB 530 (1997); J.S., Docket
No. 13-2129 (issued June 6, 2014).

7

spine.21 Therefore, he has not established greater than the seven percent permanent impairment of
the right lower extremity, for which he previously received a schedule award.
On appeal appellant contends that OWCP should have accorded the weight of the medical
evidence to Dr. Ellis as his reports were more accurate and complete than those of the second
opinion physician and impartial medical specialist. However, for the reasons set forth above, there
is no evidence which establishes that appellant sustained more than seven percent permanent
impairment of the right lower extremity or any impairment of the left lower extremity causally
related to the accepted lumbar spine conditions.
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.
CONCLUSION
The Board finds that appellant has not established greater than a seven percent permanent
impairment of the right lower extremity, for which he previously received a schedule award, or
any permanent impairment of his left lower extremity.

21

Supra note 14.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 8, 2017 is affirmed.
Issued: August 14, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, BAY SHORE POST
OFFICE, Bay Shore, NY, Employer
__________________________________________

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

Docket No. 19-1072
Issued: November 7, 2019

Case Submitted on the Record

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

JURISDICTION
On April 16, 2019 appellant, through counsel, filed a timely appeal from a March 7, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 7, 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 has met its burden of proof to reduce appellant’s wage-loss
compensation, effective September 14, 2018, under 20 C.F.R. § 10.500(a) based on his earnings
had he accepted a temporary, limited-duty assignment.
FACTUAL HISTORY
On June 21, 2017 appellant, then a 45-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 20, 2017 he injured his neck and shoulder while in the
performance of duty.4 He stopped work on June 21, 2017. OWCP accepted appellant’s claim for
right shoulder rotator cuff strain and right shoulder subluxation. Appellant received continuation
of pay (COP) from June 21 through August 4, 2017 and was paid wage-loss compensation on the
supplemental rolls beginning August 5, 2017.
On January 25, 2018 appellant underwent authorized right shoulder arthroscopic surgery.
Appellant continued to receive medical treatment. In an April 18, 2018 narrative report,
Dr. Jonathan Ticker, a Board-certified orthopedic surgeon, recounted appellant’s complaints of
right shoulder pain after a case fell on his arms. He reviewed appellant’s history and noted that he
underwent right shoulder surgery on January 25, 2018. Upon examination of appellant’s right
shoulder, Dr. Ticker observed tenderness in his anterior shoulder upon palpation. Range of motion
testing was completed and Dr. Ticker reported that impingement testing was positive and
neurological testing showed no sensory deficits. He diagnosed partial tear of the right
subscapularis tendon and right biceps tendinitis. Dr. Ticker related that appellant was “not ready
at all for the demands of his job, nor any [light-duty] option.”
On May 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. David Benatar, a Board-certified orthopedic surgeon, for a
second opinion examination. In a June 1, 2018 report, Dr. Benatar reviewed appellant’s history,
medical records, including the SOAF. He recounted appellant’s current complaints of pain,
stiffness, and weakness of the right shoulder. Upon examination of appellant’s right shoulder,
Dr. Benatar observed tenderness anteriorly along the biceps and posteriorly and minimally along
the acromioclavicular (AC) joint. Impingement testing was positive. Dr. Benatar diagnosed status
post right shoulder arthroscopy with subscapularis repair.
Dr. Benatar reported that appellant’s objective findings were consistent with his subjective
complaints. He explained that limited range of motion and complaints of pain and weakness were
consistent with appellant’s prior surgical procedure. Dr. Benatar opined that appellant’s accepted
condition had not resolved and still required medical treatment. He reported that appellant could
not return to his date-of-injury job, but was capable of working in a full-time, limited-duty
capacity. Dr. Benatar completed a work capacity evaluation form (OWCP-5c), which indicated
that appellant could work full time with limitations of lifting or carrying up to 10 pounds for one
to two hours, pushing/pulling up to 20 pounds for two to three hours, reaching and reaching above
the shoulder up to three hours with the left shoulder and no reaching above the shoulder with the
right arm, and no climbing ladders.

4

Appellant alleged that the top shelf and case fell, causing discomfort to his neck and right shoulder.

2

In a May 30, 2018 report, Dr. Ticker recounted appellant’s complaints of worsening right
shoulder pain. Upon examination of appellant’s right shoulder, he observed tenderness at the
anterior shoulder upon palpation and positive impingement testing. Neurological examination
showed no sensory deficits. Dr. Ticker reported that appellant was not ready for all the demands
of his job nor any light-duty option. He recommended appellant continue with physical therapy.
Dr. Ticker diagnosed partial tear of the right subscapularis tendon and biceps tendinitis on the
right.
On July 17, 2018 the employing establishment offered appellant a part-time, modified
position, effective July 21, 2018, as a city carrier. Appellant’s duties included casing mail up to
10 pounds for three hours. The physical requirements of the job were pushing/pulling up to 20
pounds for three hours, lifting up to 10 pounds for three hours, and no reaching above the shoulder
with his right arm. Appellant’s hours were 8:00 a.m. to 11:00 a.m. and his salary was $62,499.00.
The position was based upon Dr. Benatar’s June 1, 2018 restrictions of lifting/carrying up to 10
pounds for one to two hours, pulling/pushing up to 20 pounds for one to three hours, reaching for
one to three hours, and no reaching above the shoulder with the right arm. The employing
establishment related that the job offer was available indefinitely while the restrictions were
temporary in nature. It further noted that, since his physician had authorized him to work eight
hours, all efforts would be made to increase the hours as other work became available.
On July 20, 2018 appellant refused to accept the July 17, 2018 modified job offer.
On July 24, 2018 the employing establishment informed OWCP that the light-duty job
offer remained available and that appellant had not returned to work. It further noted that it was
unable to offer full-time (eight hours) work within appellant’s restrictions, and that the job offer
would remain available indefinitely.
On July 26, 2018 the employing establishment provided OWCP with pay rate information.
It indicated that the current weekly pay rate, as of July 26, 2018, for appellant’s date-of-injury job
was $1,201.90 and that the weekly pay rate when appellant’s disability began, as of June 20, 2017,
was $1,151.13.
In a notice dated August 1, 2018, OWCP proposed to reduce appellant’s compensation
based on his refusal of the July 17, 2018 light-duty assignment. It advised him that it had reviewed
the work restrictions provided by Dr. Benatar and determined that the position offered him was
within his restrictions.5 OWCP informed appellant of the provisions of 20 C.F.R. § 10.500(a) and
advised him that any claimant who declined a temporary light-duty assignment deemed
appropriate by OWCP was not entitled to compensation for total wage loss. It calculated that
appellant’s compensation should be adjusted to $2,141.10 every four weeks using the formula set
forth in Albert Shadrick.6 Appellant was afforded 30 days to accept the assignment and report to
duty or provide a written explanation of his reasons for not accepting the job assignment.
OWCP received additional medical evidence. In an August 22, 2018 work status note,
Dr. John Muratori, Board-certified in family medicine, indicated that he had examined appellant
5

OWCP also noted that appellant’s treating physician, Dr. Ticker had not explained why he remained totally
disabled from work despite surgical intervention and conservative treatment.
6

5 ECAB 376 (1953); see 20 C.F.R. § 10.403.

3

on July 23, 2018 for his right shoulder injury and that appellant was totally disabled due to swelling
and pain.
On September 10, 2018 the employing establishment verified that the light-duty job offer
remained available.
By decision dated September 14, 2018, OWCP reduced appellant’s compensation,
effective September 14, 2018, because he failed to accept the July 17, 2018 temporary light-duty
assignment in accordance with 20 C.F.R. § 10.500(a). It noted that appellant had not accepted the
modified job offer, which was within the restrictions provided by Dr. Benatar in his June 1, 2018
report. OWCP further determined that appellant had not submitted sufficient medical evidence to
support his refusal of the light-duty job offer. It also provided a final computation memorandum,
which demonstrated that appellant’s compensation should be adjusted to $2,141.10 every four
weeks using the Shadrick formula. OWCP noted that the base weekly pay rate for appellant’s
date-of-injury position was $1,151.13, effective June 20, 2017. It then indicated that appellant’s
current pay rate for his date-of-injury position, effective July 26, 2018, was $1,201.90. OWCP
indicated that appellant was currently capable of earning $450.75 a week. It then determined that
appellant had 38 percent loss of wage-earning capacity, resulting in a new net compensation rate
of $2,141.10 every four weeks.
On October 12, 2018 appellant, through counsel, requested a review of the written record
by an OWCP hearing representative.
Appellant continued to file claims for wage-loss compensation (Form CA-7) due to total
disability from work. OWCP paid wage-loss compensation based on his loss of wage-earning
capacity and placed appellant on the periodic rolls, effective March 3, 2019.
By decision dated March 7, 2019, an OWCP hearing representative affirmed the
September 14, 2018 decision.
LEGAL PRECEDENT
OWCP regulations at section 10.500(a) provide in relevant part:
“(a) Benefits are available only while the effects of a work-related condition
continue.
“Compensation for wage loss due to disability is available only for any periods
during which an employee’s work-related medical condition prevents [him or her]
from earning the wages earned before the work-related injury. For example, an
employee is not entitled to compensation for any wage loss claimed on a [Form]
CA-7 to the extent that evidence contemporaneous with the period claimed on a
[Form] CA-7 establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that the employee
was previously notified in writing that such duty was available. Similarly, an
employee receiving continuing periodic payments for disability was not prevented
from earning the wages earned before the work-related injury if the evidence
establishes that the employing [establishment] had offered, in accordance with

4

OWCP procedures, a temporary light-duty assignment within the employee’s work
restrictions.”7
OWCP procedures advise, “If there would have been wage loss if the claimant had accepted
the light-duty assignment, the claimant remains entitled to compensation benefits based on the
temporary actual earnings WEC [wage-earning capacity] calculation (just as if he/she had accepted
the light-duty assignment).”8
OWCP procedures further advise that, if a part-time, temporary light-duty assignment is
offered to a claimant who is not on the periodic rolls, the claims examiner should not pay for the
hours when light duty within the claimant’s work restrictions was available if there is evidence
that the claimant was previously performing light duty or was notified in writing that such light
duty was available.9
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 14, 2018, pursuant to 20 C.F.R. § 10.500(a) because he declined a temporary
light-duty assignment that was within his identified work restrictions.
On July 17, 2018 the employing establishment offered appellant a light-duty assignment
as a part-time modified city carrier, working 15 hours a week. Appellant’s duties included casing
mail weighing up to 10 pounds for up to three hours. The physical requirements were
pulling/pushing up to 20 pounds for three hours, lifting up to 10 pounds for three hours, and no
reaching above the right shoulder with the right arm.
The determination of whether an employee has the physical ability to perform a position
offered by the employing establishment is primarily a medical question that must be resolved by
the medical evidence.10
OWCP relied on the opinion of Dr. Benatar, an OWCP second opinion examiner, in finding
that the July 17, 2018 temporary job offer was within appellant’s physical limitations. In a June 1,
2018 report, Dr. Benatar reviewed appellant’s history, including the SOAF, and provided
examination findings. He indicated that appellant’s accepted condition had not resolved and that
he still required medical treatment. Dr. Benatar reported that appellant could not return to his dateof-injury job, but was capable of working in a full-time, limited-duty capacity. He completed a
work capacity evaluation form with specified restrictions.
The Board finds that the medical evidence of record establishes that the physical
requirements of the offered assignment were within the medical restrictions as provided by

7

20 C.F.R. § 10.500(a).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(c)(1)
(June 2013).
9

Id. at Chapter 2.814.9(b)(4).

10

See J.J., Docket No. 17-0885 (issued June 16, 2017); G.C., Docket No. 17-0140 (issued April 13, 2017); N.D.,
Docket No. 15-0027 (issued February 4, 2016); T.T., 58 ECAB 296 (2007).

5

Dr. Benatar in his June 1, 2018 second-opinion report.11 The offered part-time, light-duty
assignment was also appropriate because appellant was notified in writing that such light duty was
available when the employing establishment issued the July 17, 2018 job offer.12 Furthermore, in
its July 17, 2018 job offer, the employing establishment indicated that it would make all efforts to
increase work hours as work became available.
The Board further finds that OWCP complied with its procedural requirements. The
employing establishment provided appellant a written job offer on July 17, 2018. In its August 1,
2018 prereduction notice, OWCP provided him another copy of the July 17, 2018 job offer, along
with relevant medical evidence from Dr. Benatar and provided appellant an opportunity to respond
to its prereduction notice. Additionally, it properly applied the provisions of Shadrick in
determining appellant’s loss of wage-earning capacity.13
Dr. Ticker, appellant’s treating physician, submitted multiple reports detailing his
treatment of appellant. In reports dated March 14 to May 30, 2018, he provided examination
findings and diagnosed partial tear of the right subscapularis tendon and right biceps tendinitis.
Dr. Ticker opined that appellant was not able to perform the demands of his job nor any light-duty
option. The Board finds that Dr. Ticker’s medical reports do not establish that appellant could not
perform the July 17, 2018 light-duty assignment. Dr. Ticker did not attribute appellant’s inability
to work to his accepted June 20, 2017 employment injury. As he did not attribute appellant’s
inability to work to his accepted June 20, 2017 right shoulder strain and subluxation injury, his
opinion is of limited probative value to establish that appellant was unable to perform the July 17,
2018 light-duty assignment and insufficient to create a conflict in medical opinion evidence.14
The remaining medical evidence submitted after OWCP’s August 1, 2018 prereduction
notice is likewise insufficient to establish that appellant could not perform the offered July 17,
2018 light-duty assignment. In an August 22, 2018 work status note, Dr. Muratori indicated that
on July 23, 2018 he had treated appellant for his right shoulder injury and opined that appellant
was totally disabled due to swelling and pain. He did not, however, provide any medical reasoning
to support his opinion on disability, nor did he opine that appellant was unable to perform the
July 17, 2018 light-duty assignment.15 Dr. Muratori’s note is therefore of limited probative value
and insufficient to create a conflict in medical opinion evidence.
The Board thus finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 14, 2018, pursuant to 20 C.F.R. § 10.500(a), based on his earnings had he
accepted a light-duty assignment.
On appeal counsel argues that OWCP’s decision was contrary to law and fact. He did not,
however, provide any evidence or additional explanation to support his argument.
11

Dr. Benatar noted that appellant could work with restrictions of lifting or carrying up to 10 pounds for one to two
hours, pushing/pulling up to 20 pounds for two to three hours, reaching and reaching above the shoulder up to three
hours with the left shoulder and no reaching above the shoulder with the right arm, and no climbing ladders.
12

Supra note 7.

13

J.F., Docket No. 18-0923 (issued July 5, 2019).

14

C.B., Docket No. 18-0040 (issued May 7, 2019).

15

R.C., Docket No. 17-0748 (issued July 20, 2018); P.W., Docket No. 17-0154 (issued June 9, 2017).

6

CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective September 14, 2018, pursuant to 20 C.F.R. § 10.500(a), based on his earnings had he
accepted a light-duty assignment.
ORDER
IT IS HEREBY ORDERED THAT he March 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 7, 2019
Washington, DC

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

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

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

7