United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Coleman, FL, Employer
__________________________________________

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

Docket No. 11-518
Issued: October 20, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2010 appellant filed a timely appeal from the September 29, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which determined his
wage-earning capacity. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 determined that appellant has the capacity to earn
entry-level wages as a customer service representative in the open labor market.
FACTUAL HISTORY
On November 29, 2007 appellant, a 42-year-old correctional officer, sustained an injury
in the performance of duty when he fell to the ground while conducting a ceiling search for
contraband. OWCP accepted his claim for lumbar sprain, displacement of intervertebral disc at
1

5 U.S.C. § 8101 et seq.

L4-5, and unspecified internal derangement of the left knee. Appellant underwent low back and
left knee surgery and received compensation for temporary total disability on the periodic rolls.
Medical evidence showed that appellant could not return to his regular duties as a
correctional officer but that he could perform sedentary duty eight hours a day. A rehabilitation
counselor reviewed his work history, education, training and restrictions and performed a
transferable skills analysis. After identifying suitable jobs, including that of customer service
representative, he developed a job search plan for a 50-mile radius of appellant’s hometown of
Spring Hill, Florida. Labor market statistics showed 29,650 customer service representative
positions in the Hernando-Pasco-Hillsborough-Pinellas County area with an entry-level wage of
$11.47 an hour.
After placement efforts ended, OWCP’s rehabilitation specialist advised that appellant’s
résumé showed his capacity to work in a sedentary job as a customer service representative. He
added that appellant had taken two short-term training classes that provided him with current
computer skills necessary for the successful performance of sedentary office jobs in his
commuting area.
On August 25, 2010 OWCP issued a notice of proposed reduction in appellant’s wageloss compensation. It found that the position of customer service representative was medically
and vocationally suitable for him.
Appellant informed OWCP that he began work as a full-time long-term substitute teacher
earning $12.40 per hour. He explained that the position was only available until such time that a
long-term substitute was not needed for class reduction size. Appellant showed how much he
was expected to earn each month “as long as I am employed.” He was hopeful that he would be
able to pick up a long-term substitution position again in September 2011, otherwise he would be
unemployed.
Appellant further stated that he was unable to obtain a customer service representative
job during placement efforts: “I applied for jobs similar to this one and was denied or not even
considered due to [my] lack of experience in the field.” He felt that the classes he recently took
did not qualify him as a viable candidate for employment in that field.
In a decision dated September 29, 2010, OWCP found that appellant’s actual earnings as
a substitute teacher did not fairly and reasonably represent his wage-earning capacity. The
position was not permanent, he would be employed only part of the year, and the position was
considered “light” employment and therefore not consistent with his permanent restriction to
sedentary duty. OWCP found that appellant did have the capacity to earn wages as a customer
service representative. The medical evidence supported that he was able to perform such
sedentary duty, and although he did not find a job during vocational placement efforts, a recent
labor market survey supported that the job was being performed in sufficient numbers so as to be
considered available in his commuting area.
On appeal, appellant questions why the market survey was not conducted closer to his
residence. He notes that Tampa is 40 to 50 miles away, and the Suncoast Parkway Toll Road
would cost $150.00 a month plus gas. Appellant requests detailed information on the basis for

2

selecting a customer service representative job, and he asks whether other positions were
considered in closer proximity to his residence.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.2 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.3
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by his actual earnings if his actual earnings fairly and reasonably
represent his wage-earning capacity. If the actual earnings of the employee do not fairly and
reasonably represent his wage-earning capacity or if the employee has no actual earnings, his
wage-earning capacity as appears reasonable under the circumstances is determined with due
regard to the nature of his injury, the degree of physical impairment, his usual employment, his
age, his qualifications for other employment, the availability of suitable employment, and other
factors or circumstances which may affect his wage-earning capacity in his disabled condition.4
When OWCP makes a medical determination of partial disability and of the specific
work restrictions, it should refer the employee’s case to an OWCP wage-earning capacity
specialist for selection of a position, listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open labor market, that fits the employee’s
capabilities in light of his physical limitations, education, age and prior experience. Once this
selection is made, a determination of wage rate and availability in the open labor market should
be made through contact with the state employment service or other applicable service. Finally,
application of the principles set forth in the Shadrick decision will show the percentage of the
employee’s loss of wage-earning capacity.5
A position determined to be the goal of a training plan is assumed to represent the
employee’s earning capacity if it is suitable and performed in sufficient numbers so as to be
reasonably available, whether or not the employee is placed in such a position.6
ANALYSIS
The medical evidence established that appellant’s November 29, 2007 employment injury
no longer totally disabled him for work. He could not return to his date-of-injury position as a
correctional officer, but he could perform sedentary duty on a full-time basis. OWCP was
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

5 U.S.C. § 8115(a)

5

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

6

20 C.F.R. § 10.520.

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therefore required to determine the compensation to which he was entitled for his partial
disability.
The wage-earning capacity of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent his wage-earning capacity. Appellant began work
as a long-term full-time substitute teacher earning $12.40 per hour. OWCP found, however, that
actual earnings as a substitute teacher did not fairly and reasonably represent his wage-earning
capacity because the position was not permanent, year-long or consistent with his permanent
medical restrictions.
When actual earnings do not fairly and reasonably represent an employee’s wage-earning
capacity, OWCP must determine wage-earning capacity as appears reasonable under the
circumstances.7 OWCP referred appellant to a vocational rehabilitation expert, who reviewed his
work history, education, training and restrictions and who performed a transferable skills
analysis. The rehabilitation counselor identified several suitable positions, including the position
of customer service representative. Appellant took two training classes that provided him with
current computer skills necessary for the successful performance of sedentary office jobs. The
record supported that the selected position of customer service representative was medically
suited to his physical restrictions and vocationally suited to his history, education and training.
Further, a labor market survey showed nearly 30,000 such jobs from the county of appellant’s
residence down to Tampa and St. Petersburg. The survey also confirmed an entry-level wage of
$11.47 an hour, or $458.80 a week.
The Board finds that OWCP properly determined appellant’s wage-earning capacity as
appears reasonable under the circumstances. The evidence showed that he was capable of
performing such sedentary duty, and a labor market survey supported that such positions were
performed in sufficient numbers within his commuting area so as to be considered reasonably
available to him, regardless of whether he was able to secure a similar position during the period
of the job search. OWCP followed standard procedures in reducing appellant’s compensation for
wage loss by his capacity to earn wages in the open labor market. The Board will therefore
affirm OWCP’s September 29, 2010 decision.
Appellant argues that Tampa is up to 50 miles from his residence and that commuting
costs would exceed $150.00 a month, but that is the extreme case. OWCP is not requiring him to
find a job on the outskirts of his commuting area. The labor market survey of available positions
included appellant’s home county and the counties extending toward and including the TampaSt. Petersburg Metropolitan Area.8

7

See T.O., 58 ECAB 377 (2007) (when the claimant’s actual earnings did not fairly and reasonably represent his
wage-earning capacity, OWCP reduced his compensation based on his ability to earn wages in a selected position,
which the Board affirmed).
8

Compare Lawrence D. Price, 54 ECAB 590 (2003), in which the claimant argued that his commute would be
about 120 miles round-trip, which he considered excessive, and that the commuting costs would almost equal the
expected earnings of the selected position. The Board found, however, that OWCP properly relied on the
rehabilitation specialist’s expertise in determining that the constructed position was reasonably available within the
claimant’s commuting area. It was noted that the labor market surveyed was the nearest viable labor market.

4

Appellant asks about the basis for the selected position and whether other positions were
considered closer to his residence. As noted earlier, the vocational rehabilitation expert
identified several suitable positions after reviewing appellant’s history, education, training and
restrictions and after performing a transferable skills analysis. OWCP selected one that was
widely available to appellant within his commuting area, but to be clear, OWCP does not require
appellant to work as a customer service representative. Appellant is free to work any job he can
find, anywhere he can find one, as he demonstrated when he began work as a long-term
substitute teacher. The selection of a suitable position that is reasonably available merely stands
as a proxy for his capacity to earn wages in the open labor market; it gives OWCP a basis for
adjusting his compensation from total disability to partial disability as appears reasonable under
the circumstances.
CONCLUSION
The Board finds that OWCP properly determined that appellant has the capacity to earn
entry-level wages as a customer service representative in the open labor market.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Memphis, TN, Employer
__________________________________________

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

Docket No. 10-2331
Issued: June 21, 2011

Case Submitted on the Record

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

JURISDICTION
On September 20, 2010 appellant filed a timely appeal from a June 7, 2010 nonmerit
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 does
not have jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was untimely and failed to show clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The last merit decision in this case was issued on May 7, 2009. As appellant did not file this appeal within 180
days of the May 7, 2009 decision, the Board does not have jurisdiction over the merits of this case. See 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On June 13, 2006 appellant, then a 55-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a right knee injury in the performance of
duty on June 1, 2006. He stated that he stepped out of a vehicle and hurt his right knee. OWCP
accepted the claim for right knee contusion and a torn right lateral meniscus. Appellant
underwent right knee surgery on March 1, 2007 and continued to receive compensation for wage
loss.
Appellant was referred to vocational rehabilitation services. By decision dated
August 27, 2008, OWCP reduced his compensation on the grounds that he could earn the wages
of a receptionist/information clerk. In a decision dated October 9, 2008, it vacated the
August 27, 2008 decision, finding that they failed to issue a preliminary notice of a proposed
reduction of compensation.
In a letter dated April 6, 2009, OWCP advised appellant that it proposed to reduce his
compensation for wage loss on the grounds that he had the capacity to earn wages of $380.76 a
week as a receptionist/information clerk. It indicated that appellant should submit evidence or
argument within 30 days. The letter was sent to appellant’s address of record.
On May 5, 2009 appellant submitted an undated letter, requesting that OWCP decline to
reduce his compensation. He stated that he was still in pain when he walked short distances, up
stairs, sitting with knees bent or riding distances.
By decision dated May 7, 2009, OWCP determined that appellant could earn wages of
$380.76 a week in the selected position of receptionist/information clerk. Appellant’s net
compensation was reduced to $1,058.00 every four weeks.
In a memorandum of telephone call dated September 9, 2009, appellant asked why his
compensation was reduced and why he was informed that a wage-earning capacity determination
was completed on May 7, 2009 and he should exercise appeal rights. He stated that he did not
receive a decision, and he was advised to submit a statement of his nonreceipt and a copy of the
decision would be mailed to him.
On February 3, 2010 the Office received treatment notes from Dr. Thad Broussard, an
attending orthopedic surgeon, covering the period February 20, 2008 to December 16, 2009. The
notes included a July 21, 2008 treatment note stating appellant was totally disabled.
A Form CA-110 memorandum dated May 18, 2010 indicated that appellant asserted he
did not receive the April 6 or May 7, 2009 letters. A letter from OWCP dated May 19, 2010
indicated that they had been unable to contact appellant by telephone, and a copy of the May 7,
2009 decision was being sent to him. On May 21, 2010 appellant submitted a March 31, 2010
note from Dr. Broussard, stating that appellant was disabled from his former occupation.
By letter dated and postmarked May 27, 2010, appellant requested reconsideration of the
May 7, 2009 decision.

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In a decision dated June 7, 2010, OWCP found that appellant had submitted an untimely
application for reconsideration. It further denied the application on the grounds that it was
insufficient to establish clear evidence of error.3
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.4 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.5 There
is no time limitation for a request to modify a wage-earning capacity determination.6
ANALYSIS
OWCP issued a decision dated May 7, 2009 reducing appellant’s compensation pursuant
to 5 U.S.C. § 8115.7 Appellant’s May 27, 2010 letter and additional evidence was considered by
OWCP to be an untimely application for reconsideration of the May 7, 2009 decision.
Although appellant requested “reconsideration,” he submitted medical evidence on
disability for work, both before and after the May 7, 2009 wage-earning capacity determination.
As noted above, a claimant may request modification of a wage-earning capacity determination
on the grounds that the original determination was erroneous, as well as on the grounds that there
was a material change in the nature and extent of the injury-related condition. The Board has
held that, when a wage-earning capacity determination has been issued, and appellant submits
evidence with respect to disability for work, OWCP must evaluate the evidence to determine if a
modification of the wage-earning capacity is warranted.8
In this case, OWCP improperly characterized the evidence as an untimely application for
reconsideration. It was a request for modification of an existing wage-earning capacity

3

The Board notes the record also contains a September 2, 2010 decision suspending appellant’s compensation for
failure to accurately complete a (Form EN1032) regarding employment activity, dependents and receipt of other
benefits. Appellant did not request review of this decision, and the Board notes that appellant did submit a Form
EN1032 and the record indicates there was no interruption in compensation for wage-loss benefits.
4

Sue A. Sedgwick, 45 ECAB 211 (1993).

5

Id.

6

See W.W., Docket No. 09-1934 (issued February 24, 2010).

7

This section provides that if actual earnings do not fairly and reasonably represent wage-earning capacity, or if
the claimant has no earnings, the wage-earning capacity is determined with due regards to the nature of the injury,
the degree of physical impairment, the employee’s usual employment, age, qualifications for other employment,
availability of suitable employment and other factors that may affect his wage-earning capacity.
8

See J.J., Docket No. 10-1379 (issued March 4, 2011); see also L.C., Docket No. 10-827 (issued March 4, 2011);
W.W., supra note 5.

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determination and OWCP should have issued an appropriate merit decision on the issue. The
case will be remanded to OWCP for an appropriate decision.
CONCLUSION
The Board finds that appellant submitted a request for modification of a wage-earning
capacity determination and the case is remanded for an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 7, 2010 is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: June 21, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Catoosa, OK, Employer
__________________________________________

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

Docket No. 12-379
Issued: July 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2011 appellant filed a timely appeal from an October 14, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim for an
additional schedule award. 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 schedule award
decision.
ISSUE
The issue is whether appellant established that she has more than a 10 percent impairment
of the right lower extremity for which she received a schedule award.
FACTUAL HISTORY
On October 22, 2004 appellant, then a 45-year-old postmaster, filed an occupational
disease claim, asserting that bending, twisting and lifting at work caused degenerative disc
1

5 U.S.C. §§ 8101-8193.

disease. OWCP accepted L4-5 radiculopathy, lumbar spondylosis and thoracic/lumbosacral
neuritis. On September 14, 2005 appellant was granted a schedule award for a 10 percent
impairment of the right lower extremity.
On June 2, 2006 Dr. Donnie L. Hawkins,
Board-certified in orthopedic surgery, performed decompressive surgery at L4-5. Appellant
resigned, effective July 8, 2006.2
By decision dated July 25, 2007, OWCP reduced appellant’s compensation benefits
based on her capacity to earn wages as a human resource administrator, which yielded a 37
percent wage-earning capacity. On November 7, 2007 appellant elected retirement benefits from
the Office of Personnel Management.
Appellant filed schedule award claims on August 27, 2009 and May 12, 2010. In an
April 13, 2010 report, Dr. David A. Traub, an internist, who practices pain management, advised
that, under Table 17-4 of the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),3 she had a 22 percent whole
person impairment. On June 5, 2010 OWCP’s medical adviser reviewed the medical record
including Dr. Traub’s April 13, 2010 report. The medical adviser noted that an award for a
spinal impairment was not allowed under FECA and recommended a second opinion evaluation
and impairment evaluation in accordance with the sixth edition of the A.M.A., Guides.
In August 2010, OWCP referred appellant to Dr. Christopher Jordan, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a September 11, 2010 report, Dr. Jordan
reviewed the medical record and performed a physical examination. In an attached permanent
impairment worksheet, he advised that, under proposed Table 2, Spinal Nerve Impairment:
Lower Extremity Impairments, appellant had class 1 impairments each for L5 and S1
radiculopathy on the right. Dr. Jordan found a grade 1 modifier for Functional History (GMFH)
and concluded that she had a three percent lower extremity impairment for L5 radiculopathy and
a three percent lower extremity impairment for S1 radiculopathy. He combined the impairments
and concluded that appellant had a five percent right lower extremity impairment.
On October 14, 2010 OWCP’s medical adviser reviewed the record, including
Dr. Jordan’s report and agreed with his conclusion that appellant had a five percent right leg
impairment. On November 29, 2010 the medical adviser stated that, since appellant had
previously received a schedule award for a 10 percent right lower extremity impairment, she was
not entitled to an additional award.4
By decision dated December 8, 2010, OWCP found that appellant was not entitled to an
increased schedule award.5 On May 12, 2011 appellant requested reconsideration and submitted
2

The resignation was part of a settlement agreement signed by appellant on July 27, 2006.

3

A.M.A., Guides (6th ed. 2008).

4

Dr. Andreas F. Revelis, an anesthesiologist who practices pain medicine, performed monthly lumbar epidural
steroid injections beginning January 4, 2010. He did not perform an impairment evaluation.
5

The December 8, 2010 decision misidentifies the extremity involved as the right upper extremity rather than the
right lower extremity.

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a March 1, 2011 report in which Dr. Traub noted his disagreement with Dr. Jordan’s report and
advised that she should have been graded as class 4 based on her history and severe symptoms.
OWCP determined that a conflict in medical evidence had been created regarding the
degree of appellant’s lower extremity impairment and on June 24, 2011 referred her to
Dr. Andrew Olshen, a Board-certified physiatrist. In a July 27, 2011 report, Dr. Olshen noted his
review of the medical evidence and appellant’s complaints of constant chronic pain in her lower
back radiating down into both legs, with numbness and weakness. On physical examination, he
noted normal gait and station, full range of motion of the lower extremities, bilateral lower
extremity strength of 5/5 and advised that she could perform 10 single leg calf raises bilaterally.
Straight leg raise was negative bilaterally and there was no evidence of atrophy or ankylosis.
Dr. Olshen found decreased sensation to pin prick, only on the right, normal on the left. He
diagnosed chronic right L5 sensory radiculopathy, status post lumbar fusion surgery and advised
that appellant had reached maximum medical improvement on July 26, 2007. Dr. Olshen
indicated that she had no evidence of decreased strength, atrophy or ankylosis, with subjective
complaints of pain and discomfort. He advised that, under Table 16-11 of the sixth edition of the
A.M.A., Guides under Table 16-11, Sensory and Motor Severity, appellant had a severity 2,
moderate severity sensory deficit. Dr. Olshen identified the common peroneal nerve and found a
class 1 impairment under Table 16-12, Peripheral Nerve Injury, for a sensory deficit, which had a
default grade of C for a three percent impairment. He found a grade 2 modifier for GMFH and
no modifiers for Clinical Studies (GMCS) or Physical Examination (GMPE) because she had no
electrodiagnostic testing and a GMPE modifier was not to be used. Dr. Olshen concluded that
the default value of three percent should be increased by one percent based on the GMFH
modifier, for a total four percent right lower extremity impairment.
Following OWCP’s medical adviser’s recommendation, by letter dated September 13,
2011, OWCP asked Dr. Olshen to calculate appellant’s lower extremity impairment using the
method described in the July/August 2009 issue of “The Guides Newsletter.”6 In a
September 19, 2011 report, Dr. Olshen advised that, based on proposed Table 2, for L5
radiculopathy appellant had a moderate sensory deficit with a default value of three percent and a
grade 2 modifier for GMFH, for plus one. He again concluded that she had four percent right
lower extremity impairment.
On October 6, 2011 OWCP’s medical adviser reviewed the record including Dr. Olshen’s
July 27 and September 19, 2011 reports. The medical adviser advised that maximum medical
improvement was reached on July 27, 2011. The medical adviser noted that modifiers for
GMPE and GMCS were not applicable and agreed that appellant had a GMFH modifier of 2.
The medical adviser agreed with Dr. Olshen that appellant had a 4 percent right lower extremity
impairment and concluded that, since she had previously received a schedule award for 10
percent right lower extremity impairment, she was not entitled to an increased award.
In a merit decision dated October 14, 2011, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Olshen, who performed an impartial evaluation, and
concluded that appellant was not entitled to an increased schedule award for her right leg.
6

On September 19, 2011 OWCP informed appellant that she had been underpaid a fraction of a day in the
schedule award previously granted. On October 12, 2011 an additional payment of $46.62 was made.

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LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing federal regulations8 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.10
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.11 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.12
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The AMA
Guides Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition”
(July/August 2009) is to be applied.13
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on GMFH and if
electrodiagnostic testing were done, GMCS.14 The net adjustment formula is (GMFH - CDX) +
(GMCS - CDX).15
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

FECA Bulletin No. 09-03 (issued March 15, 2009).

11

Pamela J. Darling, 49 ECAB 286 (1998).

12

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

13

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Newsletter is included as
Exhibit 4.
14

A.M.A., Guides 533.

15

Id. at 521.

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Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.16 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.17
ANALYSIS
The Board finds that appellant has no more than 10 percent impairment of the right lower
extremity. OWCP accepted that she sustained employment-related L4-5 radiculopathy, lumbar
spondylosis and thoracic/lumbar neuritis. The Board finds that the weight of the medical
evidence regarding appellant’s right lower extremity impairment rests with the opinion of
Dr. Olshen who provided an impartial evaluation.
In the July 27, 2011 report, Dr. Olshen noted his review of the medical evidence and
appellant’s complaints of constant chronic pain in her lower back radiating down into both legs,
with numbness and weakness. He provided findings on physical examination, noting normal gait
and station, full range of motion of the lower extremities, bilateral lower extremity strength of
5/5, no evidence of atrophy or ankylosis and negative straight leg raise examination bilaterally.
Dr. Olshen found decreased sensation to pin prick, only on the right. He diagnosed chronic right
L5 sensory radiculopathy, status post lumbar fusion surgery and indicated that appellant reached
maximum medical improvement on July 26, 2007. Dr. Olshen advised that, under Table 16-11
of the sixth edition of the A.M.A., Guides under Table 16-11, Sensory and Motor Severity, she
had a severity two, moderate severity sensory deficit. He identified the common peroneal nerve
and found a class 1 impairment under Table 16-12, Peripheral Nerve Injury, for a sensory deficit,
which had a default grade of C for a three percent impairment. Dr. Olshen found a grade 2
modifier for GMFH and appropriately found that no modifiers for GMCS or GMPE.18 He
concluded that the default value of three percent should be increased by one percent based on the
GMFH modifier, for a total four percent right lower extremity impairment. When asked by
OWCP to provide an impairment analysis in accordance with the July/August 2009 issue of “The
Guides Newsletter,” which has been incorporated into OWCP procedures,19 Dr. Olshen
incorporated his previous impairment analysis and advised on September 19, 2011 that based on
proposed Table 2, for L5 radiculopathy appellant had a moderate sensory deficit with a default
value of three percent and a grade 2 modifier for GMFH, for plus one. He again concluded that
she had four percent right leg impairment. On October 6, 2011 OWCP’s medical adviser agreed
with Dr. Olshen’s conclusion.

16

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

17

Manuel Gill, 52 ECAB 282 (2001).

18

Both section 16.4c of the A.M.A., Guides and section 3.700, Exhibit 4, of OWCP procedures provide that
adjustments are to be made only for GMFH and GMCS, if appropriate testing is done. Supra note 14; Federal
(FECA) Procedure Manual, supra note 13.
19

Supra note 13.

5

As noted above, for peripheral nerve impairments to the upper or lower extremities
resulting from spinal injuries, OWCP procedures indicate that The AMA Guides Newsletter
“Rating Spinal Nerve Extremity Impairment using the sixth edition” (July/August 2009) is to be
applied.20 Dr. Olshen provided examination findings and rationale for his opinion and
incorporated the procedures described above in concluding that appellant had a right lower
extremity impairment of four percent. His report is thus entitled to the special weight accorded
to an impartial examiner and constitutes the weight of the medical evidence.21 Appellant
therefore did not establish that she has a right lower extremity impairment greater than 10
percent, for which she previously received a schedule award.
Appellant may request a schedule award or increased schedule award 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 did not establish that she has more than a 10 percent
impairment of the right lower extremity.

20

Id.

21

See Sharyn D. Bannick, 54 ECAB 537 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the October 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Dallas, TX, Employer
__________________________________________

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

Docket No. 21-0171
Issued: November 29, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 9, 2020 appellant filed a timely appeal from an October 7, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 2
ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective October 7, 2020, pursuant to 20 C.F.R. § 10.500(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 7, 2020 decision, appellant submitted additional evidence to OWCP.
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

FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 2, 2010 appellant, then a 58-year-old census enumerator, filed a traumatic
injury claim (Form CA-1) alleging that on July 13, 2010 she sustained bruising to both knees when
she tripped and fell while in the performance of duty. She stopped work on July 14, 2010. OWCP
accepted appellant’s claim for neck, back, and knee sprains and subsequently expanded the
acceptance of her claim to include bilateral internal knee derangement, left knee medial meniscus
tear, and left knee Baker’s cyst. It paid her wage-loss compensation benefits and placed her on
the periodic rolls, effective July 3, 2011.
Appellant continued to receive medical treatment. She underwent OWCP-approved left
knee arthroscopic surgery on December 28, 2011 and right knee arthroscopic surgery on
November 6, 2013.
On July 26, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. William Dinenberg, a Boardcertified orthopedic surgeon, for a second opinion evaluation regarding whether she continued to
have residuals of the accepted July 13, 2010 employment injury and if she was able to return to
work. In an August 16, 2019 report, Dr. Dinenberg indicated that he had reviewed the SOAF and
noted her accepted conditions for cervical, lumbar, and bilateral knee sprains, bilateral internal
knee derangement, left knee medial meniscus tear, and left knee Baker’s cyst. On examination he
observed that appellant used a walker for ambulation and had a “very unsteady slow gait.”
Dr. Dinenberg reported that physical examination of her cervical spine revealed diffuse tenderness
to light touch throughout the paraspinous region and in the midline extending down onto the
bilateral trapezius. On physical examination of appellant’s lumbar spine, he noted tenderness to
palpation primarily in the lower paraspinous region. Examination of her bilateral knees
demonstrated positive medial and lateral joint line tenderness and no effusion, erythema, or
ecchymosis.
In response to OWCP’s questions, Dr. Dinenberg indicated that appellant’s cervical,
lumbar, and bilateral knee sprains had resolved. Regarding her bilateral knee conditions, he opined
that she remained symptomatic and explained that she had undergone two knee arthroscopic
surgeries without relief. Dr. Dinenberg also indicated that appellant suffered from degenerative
disc disease of the cervical and lumbar spines and the bilateral knees, which were not related to
the July 13, 2010 employment incident. He concluded that she could not return to her date-ofinjury position because she could not perform the duties of intermittent driving, walking, or
climbing up and down stairs, and occasional bending and stooping. Dr. Dinenberg completed a
work capacity evaluation form (OWCP-5c form) and noted “no work.”

3

Docket No. 13-0036 (issued April 9, 2013).

2

In a September 12, 2019 letter, the employing establishment, requested that OWCP obtain
a supplemental report from Dr. Dinenberg, which specifically addressed whether appellant could
return to sedentary or light-duty work.
The employing establishment also submitted a September 11, 2019 report by Dr. James
Caviness, a Board-certified occupational medicine physician, who alleged that Dr. Dinenberg’s
August 16, 2019 second opinion report was not well reasoned. Dr. Caviness noted that
Dr. Dinenberg had indicated that appellant’s subjective complaints outweighed her objective
findings and asserted that Dr. Dinenberg did not provide any medical rationale to support his
opinion that she was totally disabled from work.
On September 24, 2019 OWCP requested that Dr. Dinenberg provide a supplemental
opinion clarifying appellant’s ability to work. It specifically requested that he opine on whether
she was able to work in a sedentary or light-duty position.
In an October7, 2019 supplemental report, Dr. Dinenberg indicated that he would complete
a new OWCP-5c form to reflect the restrictions that appellant had secondary to her work-related
knee injury and that it was “probably best” to alter the restrictions rather than noting that she could
not work. In an OWCP-5c form, he noted that she could work full time with restrictions of walking
and standing for 30 minutes a day, pushing, pulling, and lifting up to 10 pounds for 3 hours a day,
and no operating a motor vehicle, squatting, kneeling, or climbing. Dr. Dinenberg further reported
“permanently sitting duties, no walk or stand [more than 15 minutes at] a time, allow to use a
walker.”
OWCP received an offer of modified assignment dated April 3, 2020. The assignment title
was “modified field representative.” The job offer letter noted that the position was a temporary
appointment, not-to-exceed 90 days, and would be available on August 4, 2020. It indicated that
appellant would work a part-time schedule, up to 20 hours per week, by telephone only from her
home. The duties of the job position required interviewing respondents to collect data required for
current surveys, one-time surveys, and special census. The physical requirements of the modifiedduty position included intermittent sitting up to 3 to 4 hours per day, intermittent repetitive
movements, including keyboarding, up to 1 to 2 hours per day, intermittent walking and standing
up to 30 minutes per day, but no more than 15 minutes at a time, lifting, carrying, pushing, and
pulling up to five pounds for less than 15 minutes per day, intermittent reaching up to 30 minutes
per day, bending and turning up to 15 minutes per day, and no stooping, squatting, kneeling,
climbing, and driving.
On May 4, 2020 the employing establishment confirmed that the job offer for a modified
field representative position remained available.
On May 4, 2020 OWCP informed appellant that it found the April 3, 2020 job offer suitable
and in accordance with the work restrictions provided by Dr. Dinenberg. It noted that the
employing establishment confirmed that the position remained open and available to her. OWCP
advised appellant that an employee who refuses an offer of suitable work without reasonable cause
is not entitled to further compensation for total wage loss. It afforded her 30 days to accept the
assignment and report to duty or provide a written explanation of her reasons for not accepting the
assignment.

3

In a June 5, 2020 letter, OWCP advised appellant that she had an additional 30 days to
respond to its May 4, 2020 letter and submit additional evidence.
In a July 7, 2020 letter, appellant asserted that any job offered was unfit due to her
deteriorating health conditions and physical requirements. She submitted medical reports
previously of record dated 2010 through 2018, previous correspondence with OWCP, postal
service tracking information, and copies of prior OWCP decisions.
On August 25, 2020 the employing establishment confirmed that the April 3, 2020 job
offer remained available.
On August 26, 2020 OWCP issued another letter, which informed appellant that the
April 3, 2020 job offer was found suitable and remained open and available to her. It provided her
an additional 30 days to accept the position or provide her reasons for refusal in writing.
In a September 18, 2020 letter, appellant noted her disagreement with OWCP’s August 26,
2020 letter. She asserted that the history provided was inaccurate and also described the
inconsistencies and inaccuracies she had with Dr. Dinenberg’s examination and report. Appellant
submitted various medical reports previously of record dated from 2011 to 2017.
By decision dated October 7, 2020, OWCP terminated appellant’s wage-loss
compensation, effective that date, pursuant to 20 C.F.R. § 10.500(a).
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of compensation benefits. 4
OWCP regulations at 20 C.F.R. § 10.500(a) provides 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 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 OWCP

4

T.C., Docket No. 20-1163 (issued July 13, 2021); A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

procedures, a temporary light-duty assignment within the employee’s work
restrictions.”5
When it is determined that an employee is no longer totally disabled from work and is on
the periodic rolls, OWCP’s procedures provide that the claims examiner should evaluate whether
the evidence of record establishes that light-duty work was available within his or her restrictions.
The claims examiner should provide a pretermination or prereduction notice if appellant is being
removed from the periodic rolls. 6 When the light-duty assignment either ends or is no longer
available, the claimant should be returned to the periodic rolls if medical evidence supports
continued disability.7
OWCP’s procedures further advise: “If there still would have been wage loss if the
claimant had accepted the light-duty assignment, the claimant remains entitled to compensation
benefits based upon the temporary actual earnings WEC [wage-earning capacity] calculation (just
as if he/she had accepted the light-duty assignment).”8
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation benefits, effective October 7, 2020, pursuant to 20 C.F.R. § 10.500(a).
By decision dated October 7, 2020, OWCP terminated appellant’s wage-loss compensation
benefits, pursuant to 20 C.F.R. § 10.500(a), based on the opinion of Dr. Dinenberg, the second
opinion examiner.
In an August 16, 2019 report, Dr. Dinenberg provided examination findings and opined
that appellant’s accepted cervical, lumbar, and bilateral knee sprains had resolved. He further
reported that she continued to suffer residuals of her bilateral knee conditions and opined that she
could not return to her date-of-injury position. Dr. Dinenberg completed an OWCP-5c form and
noted “no work.” In a supplemental October 7, 2019 report, he indicated that it was “probably
best” to alter appellant’s work restrictions on the OWCP-5c form rather than indicating that she
could not work. Dr. Dinenberg completed a new OWCP-5c form with restrictions of walking and
standing for 30 minutes a day, pushing, pulling, and lifting up to10 pounds for 3 hours a day, and
no operating a motor vehicle, squatting, kneeling, or climbing.
The Board finds, however, that Dr. Dinenberg’s opinion was conclusory in nature and did
not contain sufficient medical reasoning to establish that appellant was capable of working in a
modified-duty, sedentary position. 9 Rationalized medical evidence must include rationale
5

20 C.F.R. § 10.500(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.9(c)(1)
(June 2013).
7

Id.

8

Id. at Chapter 2.814.9(c)(8).

9

See C.G., Docket No. 20-0808 (issued April 23, 2021); J.W., Docket No. 19-1014 (issued October 24, 2019).

5

explaining how the physician reached the conclusion he or she is supporting. 10 Dr. Dinenberg did
not provide medical explanation as to how appellant’s physical examination findings established
that she was capable of working sedentary duty or how she was capable of working even though
he determined that she continued to suffer residuals of her work-related bilateral knee conditions.11
He merely noted that it was “probably best” to alter her work restrictions even though he had
previously reported that she was totally disabled from work. Inconsistent and contradictory reports
from the same physician lack probative value. 12 Accordingly, the Board finds that Dr. Dinenberg’s
report lacks sufficient medical reasoning to establish that appellant was capable of working in a
modified-duty, sedentary position.
Once OWCP undertook development of the record, it was required to complete
development of the record by procuring medical evidence that would resolve the relevant issue in
the case.13 As it did not request that Dr. Dinenberg provide a supplemental opinion clarifying his
opinion, the Board finds that OWCP did not meet its burden of proof in terminating appellant’s
wage-loss compensation benefits based on his reports.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation benefits, effective October 7, 2020, pursuant to 20 C.F.R. § 10.500(a).

10

B.B., Docket No. 19-1102 (issued November 7, 2019); Beverly A. Spencer, 55 ECAB 501 (2004).

11

See C.B., Docket No. 20-0629 (issued May 26, 2021); G.G., Docket No. 20-0513 (issued January 12, 2021).

12

See J.O., Docket No. 19-0850 (issued October 22, 2020); K.S., Docket No. 11-2071 (issued April 17, 2012);
Cleona M. Simmons, 38 ECAB 814 (1987).
13

See J.F., Docket No. 17-1716 (issued March 1, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

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

Docket No. 16-0054
Issued: February 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 13, 2015 appellant filed a timely appeal of an October 2, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit decision in this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that claimed
conditions were causally related to her federal employment.
FACTUAL HISTORY
On May 5, 2015 appellant, then a 54-year-old retail sales clerk, filed an occupational
disease claim (Form CA-2), alleging that she developed carpal tunnel syndrome and trigger
fingers as a result of performing repetitive job duties including sorting letters, pushing the stamp
1

5 U.S.C. § 8101 et seq.

collection from the safe, pushing and pulling displays, keying, lifting boxes, and pushing wire
racks. She underwent surgery for carpal tunnel syndrome in 1999 and for trigger fingers in 2014
and 2015.2 Appellant first became aware of her condition on October 20, 2013 and realized it
was caused by her employment on January 13, 2014.
Appellant submitted a narrative statement and noted from 1985 to 1996 she worked as a
clerk and her duties included keying mail, loading ledges with full trays of mail, sweeping the
back of machines, pulling full trays of mail and pushing u-carts. From 1996 to 1998 she worked
in automation clerk pushing floats of mail to machines, loading machine ledges, sweeping the
machine, pulling full trays of mail, and dispatching mail to the dock. From 1999 to 2015
appellant worked as a retail window clerk throwing packages, placing mail in post office boxes,
pushing stamp carts, keying and lifting boxes and tubs of mail. She submitted an employing
establishment job application and distribution window clerk and mark-up clerk job descriptions.
Appellant submitted a duty status report (Form CA-17) from Dr. Joseph Curtis, a Boardcertified orthopedist, dated April 24, 2015. Dr. Curtis diagnosed bilateral trigger finger and
bilateral hand pain and noted that she could work full time with restrictions. In an attending
physician’s report (Form CA-20) dated April 27, 2015, he noted findings of tenderness over the
A1 pulley which was locked in extension. Dr. Curtis diagnosed bilateral hand pain and found
that appellant’s condition was not caused or aggravated by an employment activity. Dr. Curtis
returned her to work light duty on May 11, 2015.
By letter dated May 18, 2015, OWCP advised appellant of the type of evidence needed to
establish her claim, particularly requesting that she submit a physician’s reasoned opinion
addressing the relationship of her claimed condition and specific employment factors.
Appellant submitted a statement of work history dated May 21, 2015. On December 18,
1995 Dr. Curtis performed a right trigger thumb release of A1 pulley and diagnosed right trigger
thumb. Similarly, on December 18, 1996 he again performed a right trigger thumb release A1
pulley and diagnosed right trigger thumb. In reports dated October 14 and 22, 1999, Dr. Curtis
noted that appellant was a postal worker who performed repetitive work and experienced
progressive hand pain over the last two months. He diagnosed trigger fingers and carpal tunnel
syndrome and noted that the conditions were work related. Dr. Curtis indicated that a common
cause of carpal tunnel syndrome and trigger fingers was repetitive use of the hands. In a report
dated November 4, 1999, he again opined that appellant’s carpal tunnel syndrome was work
related. Dr. Curtis noted terminal latency of 4.2, positive Tinel’s sign, positive Phalen’s sign,
and numbness in the median distribution. He indicated that appellant worked in a repetitive
stress position that was known to aggravate or cause carpal tunnel and opined that this condition
was directly related to her work. On December 20, 1999 Dr. Curtis performed a right carpal
tunnel release and diagnosed right carpal tunnel syndrome. On April 27, 2000 he performed a
release of A1 pulley left thumb and diagnosed left lock trigger thumb.
In a report dated January 13, 2014, Dr. Curtis noted that appellant presented with
triggering in the right ring finger. He noted examination revealed classic triggering of the right
ring finger and tenderness over a nodule at the Al pulley. Dr. Curtis diagnosed right ring finger
2

These surgeries were not authorized by OWCP.

2

trigger finger. On February 3, 2014 he performed a trigger finger release on appellant’s right
ring finger. On September 29, 2014 Dr. Curtis noted that she presented with triggering in her left
index finger, her right little finger, and right shoulder stiffness. He noted findings of classic
triggering in these digits and injected the Al pulley of the right little finger and the left index
finger with Celestone. Dr. Curtis noted tightness in all extremes, negative impingement, and
diagnosed left early adhesive capsulitis. In a report dated February 27, 2015, he treated appellant
for left index finger trigger finger. Dr. Curtis noted examination findings of tenderness over the
Al pulley which was locked in extension. He diagnosed left index finger trigger finger and
classic triggering in her right little finger. In reports dated March 16 and April 20, 2015,
Dr. Curtis noted that appellant was six days status post left index, and right fifth trigger finger
releases. In a May 11, 2015 report, he noted that she was eight weeks out from bilateral trigger
finger releases with improvement in her right finger; however, her left index finger remained
sore. Dr. Curtis continued physical therapy.
In a June 22, 2015 decision, OWCP denied the claim, finding that the medical evidence
was insufficient to establish an injury or medical condition causally related to the accepted work
events.
On September 11, 2015 appellant requested reconsideration. She submitted a June 22,
2015 report from Dr. Curtis who returned her to regular duty. In a July 20, 2015 report,
Dr. Curtis noted that appellant’s right fifth finger continued to improve, but the left index finger
occasionally locked. He diagnosed persistent or recurrent postoperative left index trigger finger
and performed an injection. On August 10, 2015 Dr. Curtis noted appellant’s recurrent
postsurgical left index trigger finger resolved after the last injection. He noted that she worked at
the employing establishment and was diagnosed with carpal tunnel syndrome and trigger fingers
and opined that these conditions were work related.
In a decision dated October 2, 2015, OWCP denied modification of its June 22, 2015
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place, and in the
manner alleged. Appellant must also establish that such event, incident, or exposure caused an
injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton,
40 ECAB 1143 (1989).

3

or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
It is not disputed that appellant’s work duties as a retail sales clerk included repetitively
sorting letters, pushing the stamp collection from the safe, pushing and pulling displays, keying,
lifting boxes, and pushing wire racks. It is also not disputed that she was diagnosed with a
bilateral carpal tunnel syndrome, left index trigger finger, left thumb trigger finger, right ring
trigger finger, right little finger trigger, and right trigger thumb. However, the Board finds that
appellant has not submitted sufficient medical evidence to establish that her diagnosed conditions
are causally related to specific employment factors. On May 18, 2015 OWCP advised her of the
type of medical evidence needed to establish her claim. However, appellant has not submitted
sufficient medical evidence to establish that any of these conditions are causally related to
specific employment factors or conditions.
In reports dated October 14 and 22, 1999, Dr. Curtis noted that appellant was a postal
worker who performed repetitive work and experienced progressive hand pain. He diagnosed
trigger fingers and carpal tunnel syndrome and opined that these conditions were work related.
Dr. Curtis indicated that a common cause of carpal tunnel syndrome and trigger fingers was
repetitive us of the hands. In a report dated November 4, 1999, he indicated that appellant
worked at a repetitive stress job that was known to aggravate or cause carpal tunnel and opined
that these conditions were directly related to her work. The Board finds that, although Dr. Curtis
supported causal relationship, he did not provide medical rationale explaining the basis of his
conclusory opinion regarding the causal relationship between her trigger fingers and carpal
tunnel syndrome and the factors of employment.5 For example, Dr. Curtis did not explain the
process in which performing repetitive work duties would have caused the diagnosed condition
and or why such condition would not be due to any nonwork factors. Therefore, these reports
are insufficient to meet appellant’s burden of proof.

4

Solomon Polen, 51 ECAB 341 (2000).

5

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

4

On August 10, 2015 Dr. Curtis diagnosed with carpal tunnel syndrome and trigger
fingers. He opined that these conditions were work related. However, Dr. Curtis again failed to
provide a rationalized opinion regarding the causal relationship between appellant’s left knee
injury and the factors of employment believed to have caused or contributed to such condition.6
Operative reports from Dr. Curtis dated December 18, 1995 to February 3, 2014 noted
that appellant underwent a carpal tunnel release and several trigger finger release surgeries.
Dr. Curtis diagnosed right trigger thumb, right carpal tunnel syndrome, left lock trigger thumb,
and right ring finger trigger finger. In reports dated January 13, 2014 to February 27, 2015, he
diagnosed right ring trigger finger, left index trigger finger, and classic triggering in the right
little finger. Similarly, in reports dated March 16 to July 20, 2015, Dr. Curtis noted that
appellant was status post left index and right fifth finger releases and diagnosed persistent or
recurrent postoperative left index trigger finger. However, as noted above, these reports are
insufficient to establish the claim as he did not specifically address whether her employment
activities had caused or aggravated a diagnosed medical condition.7
An attending physician’s report from Dr. Curtis dated April 27, 2015 noted findings of
tenderness over the A1 pulley locked in extension. He diagnosed bilateral hand pain and
indicated that appellant’s condition was not caused or aggravated by an employment activity.
This report is insufficient to establish the claim as it indicates that her condition is not due to
employment activity.
On appeal appellant asserted that OWCP had improperly denied her claim and she
believed that she had submitted sufficient evidence to establish carpal tunnel syndrome and
trigger fingers as a result of performing repetitive duties at work. As found above, however, the
medical evidence failed to establish that her diagnosed conditions were causally related to her
employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
7

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

5

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE ARMY, CAMP
LEJEUNE, NC, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-887
Issued: October 2, 2014

Case Submitted on the Record

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

JURISDICTION
On March 10, 2014 appellant, through his representative, filed a timely appeal from the
January 30, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability on March 9, 2007
causally related to his accepted bilateral carpal tunnel condition.
FACTUAL HISTORY
This is the fourth appeal before the Board. Appellant, a 52-year-old mechanic, filed a
Form CA-2 claim for benefits on November 20, 2003, alleging that he developed a bilateral carpal
tunnel condition causally related to employment factors. By decision dated September 21, 2004,
OWCP accepted his claim for bilateral carpal tunnel syndrome.
1

5 U.S.C. § 8101 et seq.

In a disciplinary memorandum received by OWCP on February 28, 2005, the employing
establishment indicated that appellant’s North Carolina driver’s license had been suspended for one
year on May 26, 2004 due to his being convicted of driving under the influence of alcohol. As a
result of this suspension, appellant was forced to resign from the employing establishment because
his inability to operate a motor vehicle disqualified him from federal employment. He disputed
that he was discharged due to loss of his driver’s license. Rather, appellant alleged that he resigned
for medical reasons. The record contains a Form SF 50 indicating that he resigned effective
July 12, 2004 for medical reasons.
Appellant submitted a June 6, 2006 Form CA-7 requesting compensation for wage loss as
of May 27, 2004 and continuing.
By decision dated October 12, 2006, OWCP denied appellant’s claim for compensation
based on wage loss commencing May 27, 2004. It found that he failed to submit medical
evidence to support that he was disabled due to residuals of his accepted injury; it stated that the
evidence of record established that he had voluntarily resigned from his job with the employing
establishment on July 12, 2004 due to having his license suspended, not for reasons related to his
medical condition.
Pursuant to a pending schedule award claim,2 appellant was referred for an impartial
medical evaluation with Dr. Edwin Cooper, Board-certified in orthopedic surgery. In a report
dated April 5, 2007, Dr. Cooper found that appellant had a 24 percent permanent impairment of
the left and right upper extremities, causally related to his bilateral carpal tunnel condition. He
stated that appellant was disabled from returning to his job as a heating and air conditioning
technician. Dr. Cooper opined that his diagnoses and ratings were directly related to appellant’s
duties at the employing establishment, from which he resigned on May 27, 2004.
By decisions dated March 22 and August 6, 2007, OWCP denied modification of the
October 12, 2006 decision.
On September 20, 2007 OWCP accepted the additional conditions of ulnar nerve
compression of the left elbow and right wrist.
In a report dated April 14, 2008, Dr. Brian J. Battersby, a specialist in osteopathic
medicine, stated that he had recently examined appellant for bilateral carpal tunnel syndrome.
He advised that appellant still had subjective symptoms with normal nerve conduction velocities,
although it was difficult to assess based on his current physical examination. Although
Dr. Battersby stated that appellant required some type of treatment, he advised that appellant had
refused all treatment options.
In a May 20, 2008 decision,3 the Board affirmed OWCP’s August 6, 2007 decision.

2

In a previous Board decision, Docket No. 06-1609 (November 21, 2006) the Board set aside OWCP’s schedule
award decision and remanded for further development of the medical evidence to determine the appropriate degree
of permanent impairment for appellant’s left and right upper extremities causally related to his accepted bilateral
carpal tunnel condition.
3

Docket No. 07-2210 (issued May 20, 2008).

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On June 26, 2008 appellant submitted a June 26, 2008 Form CA-7 requesting
compensation for wage loss for March 9, 2007 to June 23, 2008.
In an October 21, 2008 report, Dr. Battersby stated that he agreed with Dr. Cooper’s
opinion that appellant was no longer capable of doing his date-of-injury job and that therefore it
would be correct to conclude that as of March 9, 2007 he was unable to work as a mechanic. He
advised that appellant would not be able to perform this job in the future and that he would be a
good candidate for vocational rehabilitation in order to obtain another type of position in the
future.
In a May 20, 2010 report, Dr. Battersby stated that appellant had been diagnosed with
bilateral ulnar nerve entrapment at the elbows and bilateral carpal tunnel syndrome. He advised
that these conditions resulted from his work as an air conditioner heating and cooling mechanic;
he opined that it was well documented that repetitive motion and physical labor such as
mechanic or repair work could cause these conditions. Dr. Battersby therefore concluded that
appellant’s current conditions were directly related to his employment as a heating and air
conditioning mechanic.
In reports dated May 6 and June 8, 2010, Dr. Battersby reiterated his diagnosis of
bilateral carpal tunnel syndrome and stated that appellant had complaints of bilateral wrist pain,
numbness and tingling. He advised that the onset of these symptoms occurred approximately
seven years ago and that his condition was worsening, with pain rated as a 6 on a scale of 1
to 10. Dr. Battersby stated that appellant’s symptoms were aggravated by lifting, grasping,
repetitive movements and twisting.
On June 27, 2011 appellant filed a Form CA-2a alleging that he sustained a recurrence of
disability on March 9, 2007 which was causally related to his accepted bilateral carpal tunnel
condition.
On November 3, 2011 appellant submitted a Form CA-7 requesting compensation for
wage loss for March 25, 2008 to November 2, 2011.
By letter dated May 31, 2012, OWCP advised appellant that it had already disposed of
his claims for recurrence of his work-related disability and that the Board had already denied his
claim in May 2008. It stated that he needed to submit an appeal of his claims to the Board.
By letter to the Board dated July 23, 2012, appellant’s attorney alleged that OWCP’s
May 31, 2012 letter constituted an effective denial of appellant’s claim for recurrence of
disability and/or wage-loss compensation and a final adverse decision, even though the letter
contained no statement of appeal rights.
In an order dated January 31, 2013,4 the Board set aside the finding OWCP made in its
May 31, 2012 letter, stating that appellant was claiming a recurrence of disability and
compensation for wage loss for periods subsequent to the Board’s May 28, 2008 decision. As
these claims had not yet been addressed, the Board remanded for consideration of these claims
and of the medical evidence he submitted in support of these claims. The complete facts of this
4

Docket No. 12-1638 (issued January 31, 2013).

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case are set forth in the Board’s May 20, 2008 decision and January 31, 2013 order and are
herein incorporated by reference.
By decision dated June 6, 2013, OWCP denied appellant’s claim, finding that the medical
evidence was insufficient to establish that he sustained a recurrence of his accepted bilateral
carpal tunnel condition from March 9, 2007 to June 23, 2008 and from March 25, 2008 to
November 2, 2011 and continuing.
On June 13, 2013 appellant’s attorney requested an oral hearing, which was held on
November 13, 2013.
In an August 30, 2013 report, Dr. Battersby stated that appellant’s job as a mechanic
required repetitive motion and using screwdrivers as an air conditioning mechanic, which led to
the development of bilateral carpal tunnel syndrome and pronator teres syndrome with pain and
weakness in both upper extremities; weakness across both hands, numbness and decreased grip
strength; pain, numbness, tingling and weakness; decreased range of motion and a positive
Tinel’s test, bilaterally in his wrists. He indicated that appellant was currently unable to perform
repetitive motion activity and restricted him from continuous lifting and working in extremes of
cold and heat. Dr. Battersby opined that his continued bilateral carpal tunnel syndrome and
pronator teres syndrome had prevented him from working.
By decision dated January 30, 2014, an OWCP hearing representative affirmed the
June 6, 2013 OWCP decision. The hearing representative noted appellant’s testimony that he
resigned after his supervisor informed him that he would be terminated due to the loss of his
driver’s license.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.6 Where no such rationale is present,
medical evidence is of diminished probative value.7

5

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

6

I.J., 59 ECAB 408 (2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

7

Michael Stockert, 39 ECAB 1186, 1187-88 (1988); see Ronald C. Hand, 49 ECAB 113 (1957).

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In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between his present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.8
Even if an appellant has been terminated from employment for cause, in John W.
Normand,9 the Board explained that the issue remained whether he had established disability
causally related to the accepted injury, i.e., whether appellant was able to earn the wages he was
earning on the date of injury.
ANALYSIS
Pursuant to the Normand line of cases, the Board finds that the issue remains whether
appellant has established a recurrence of disability causally related to the accepted injury. In the
instant case, appellant has failed to submit any medical opinion containing a rationalized,
probative report which relates his claimed recurrence of disability for work as of March 9, 2007
and for the overlapping periods of March 9, 2007 to June 23, 2008 and March 25, 2008 to
November 2, 2011 and continuing, to his accepted bilateral carpal tunnel condition. For this
reason, he has not discharged his burden of proof to establish his claim that he sustained a
recurrence of disability as a result of his accepted employment condition.
In Dr. Battersby’s April 14, 2008 report, he stated that appellant had bilateral carpal
tunnel syndrome and was experiencing subjective symptoms with normal nerve conduction
velocities. He advised that it was difficult to assess appellant’s condition based on his current
physical examination and noted his refusal to undergo treatment. Dr. Battersby did not provide
an explanation which included a history of bridging symptoms from the 2003 injury.
In his October 21, 2008 report, Dr. Battersby stated that his concurrence with
Dr. Cooper’s opinion that appellant was no longer capable of doing his date-of-injury job and
that he agreed that he was unable to work as a mechanic as of March 9, 2007. He opined that
appellant would not be able to perform this job in the future and that he was a suitable candidate
for vocational rehabilitation for other types of employment. Dr. Battersby asserted in his
May 20, 2010 report that appellant had bilateral ulnar nerve entrapment and bilateral carpal
tunnel syndrome and that these conditions resulted from his work as an air conditioner/heating
and cooling mechanic. He advised that repetitive motion and physical labor such as mechanic or
repair work could cause these conditions and opined that appellant’s current conditions were
directly related to his employment as a heating and air conditioning mechanic. In his May 6 and
June 8, 2010 reports, Dr. Battersby reiterated his diagnosis of bilateral carpal tunnel syndrome
and related that appellant had complaints of bilateral wrist pain, numbness and tingling, which
commenced approximately seven years ago. He advised that appellant’s symptoms were
worsening and were aggravated by lifting, grasping, repetitive movements and twisting.
Dr. Battersby also submitted an August 30, 2013 report in which he reiterated the diagnosis of
bilateral carpal tunnel syndrome and listed the symptoms accompanying this condition; he stated
that his bilateral carpal tunnel syndrome developed due to his job as an air conditioning
mechanic, which required repetitive motion and using screwdrivers. He stated that appellant’s
8

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

9

39 ECAB 1378 (1988).

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continued bilateral carpal tunnel syndrome, in addition to pronator teres syndrome, prevented
him from working. The Board notes that none of the activities cited by Dr. Battersby were
related to appellant’s employment, which no longer performed after May 27, 2004.
Dr. Battersby did not provide a rationalized, probative medical opinion indicating that
appellant sustained a recurrence of disability on March 9, 2007 causally related to his accepted
bilateral carpal tunnel syndrome. His opinion on causal relationship is of limited probative value
in that he did not provide adequate medical rationale in support of his conclusions.10
Dr. Battersby did not explain why appellant’s current condition and alleged disability were
causally related to the accepted injury. While he stated findings on examination, described
symptoms and complaints of pain appellant experienced as a result of bilateral carpal tunnel
syndrome, these statements are broad and vague as they do not explain whether appellant’s
accepted bilateral carpal tunnel syndrome contributed to his claimed condition and/or disability
as of March 9, 2007. Dr. Battersby failed to sufficiently explain whether appellant required
medical treatment beginning March 9, 2007 due to his accepted bilateral carpal tunnel
syndrome.11
Similarly, Dr. Cooper’s 2007 report was previously reviewed by the Board in its May 28,
2008 decision; as noted in that decision his report was intended as an impartial medical opinion
for appellant’s schedule award claim. It did not contain a rationalized, probative opinion on the
issue of whether appellant sustained a recurrence of disability causally related to his accepted
bilateral carpal tunnel condition.
Appellant has not submitted a physician’s reasoned opinion in which the physician
explains the reasons why his condition as of March 9, 2007 was causally related to the accepted
bilateral carpal tunnel condition. For these reasons, the medical evidence is insufficient to
establish a recurrence of a medical condition causally related to the accepted bilateral carpal
tunnel condition. The Board affirms the January 30, 2014 decision affirming the denial of
appellant’s claim for a recurrence of disability beginning March 9, 2007.
CONCLUSION
The Board finds that appellant has not sustained a recurrence of disability on March 9,
2007 causally related to his accepted bilateral carpal tunnel condition.

10

William C. Thomas, 45 ECAB 591 (1994).

11

See Mary A. Ceglia, 55 ECAB 656 (2004) (appellant has the burden of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that the condition is
causally related to the employment injury and supports that conclusion with sound rationale).

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, Fairfield, CA, Employer
__________________________________________

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

Docket No. 09-1755
Issued: March 5, 2010

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 June 29, 2009 appellant filed a timely appeal from the March 10, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration of his
case. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this
denial.
ISSUE
The issue is whether the Office properly denied appellant’s December 8, 2008
reconsideration request on the grounds that it was untimely filed and failed to demonstrate clear
evidence of error.
FACTUAL HISTORY
On October 14, 1967 appellant, then a 32-year-old aircraft mechanic, sustained an injury
in the performance of duty while working on spoiler panels from a maintenance stand. He

slipped and struck his back against the stand. The Office accepted appellant’s claim for lumbar
contusion.1
On January 3, 1977 appellant then working as a machinist for the Department of the
Navy at the Mare Island Naval Shipyard, sustained a cervical strain while working in an
awkward position.2 In a letter dated May 8, 1980, the employing establishment informed him
that light duty was no longer available. Appellant did not return to work at the employing
establishment and retired on disability effective February 9, 1982.
On August 13, 1982 the Office found that appellant failed to establish a recurrence of
disability beginning May 8, 1980 causally related to either of his accepted employment injuries.
On September 13, 1983 it denied modification of its decision.
On August 8, 1985 appellant filed a claim for an occupational disease, listing the nature
of his disease as a back problem from his 1967 injury and indicating that he lost pay between
May 10, 1980 and January 1982. In a decision dated September 8, 1993, the Office found that
his current cervical problems were not causally related to his 1967 or 1977 work injuries: “There
is no convincing medical evidence establishing that his two minor work injuries affected this
[degenerative] process.” On June 27, 2002 the Office found that the weight of the medical
opinion evidence rested with the well-rationalized opinion of Dr. Frederick W. Tiley, an
orthopedic surgeon and second opinion physician. It found that Dr. Tiley provided a proper
factual and medical history and sound medical reasoning for his opinion. Dr. Tiley found no
current relationship between the accepted employment injuries and appellant’s current
preexisting osteoarthritis. On February 14, 2003 an Office hearing representative affirmed the
denial of appellant’s claim.3
On August 22, 2006 appellant filed a recurrence claim alleging that his medical
treatments since January 3, 1977 and his work stoppage in May 1980 were causally related to his
back injury in 1967. He noted that he had back troubles ever since the 1967 accident. On
December 15, 2006 the Office denied appellant’s recurrence claim. It found that the medical
evidence was insufficient to establish that, his current medical condition was due to the accepted
work injury.
The Office reviewed the merits of appellant’s case on March 15, 2007 but denied
modification of its prior decision. It reviewed the opinion of Dr. Nancy Keller, who related his
left-sided weakness to the 1967 injury. The Office found that Dr. Keller’s opinion was
speculative, based on an unsupported history of cervical complaints and hospitalization and
inconsistent with x-rays and the findings of the initial treating physician. In an attached
statement of appeal rights, the Office notified appellant that, if he disagreed with the decision, he
had one calendar year of the date of that decision to request reconsideration.

1

OWCP File No. xxxxxx380 (sub).

2

OWCP File No. xxxxxx344 (sub).

3

OWCP File No. xxxxxx776 (master).

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Appellant filed a timely reconsideration request on May 31, 2007. In a September 12,
2007 decision, the Office denied the request as insufficient to warrant further merit review of his
case. Appellant asked the Board to review the Office’s September 12, 2007 nonmerit decision
but subsequently withdrew the appeal so he could submit additional medical evidence to the
Office and request reconsideration. The Board granted his request and dismissed the appeal on
August 25, 2008.4
On November 12, 2008 appellant requested reconsideration. He submitted evidence to
show that his back had no fracture prior to his October 14, 1967 fall. In a November 25, 2008
decision, the Office denied reconsideration of appellant’s case on the grounds that his request
was more than a year after the Office’s March 15, 2007 decision, which was the last merit review
of his case. It further found that his untimely request did not show clear evidence of error in the
Office’s March 15, 2007 decision.
On December 8, 2008 appellant again requested reconsideration. He took issue with the
Office’s finding that his prior request was untimely. Together with a reconsideration request
form, the Office received a January 15, 2009 report from Dr. Keller, who stated that appellant’s
original injury, with some interspinous ligament laxity from the tears, would promote the
osteoarthritis from which he currently suffers. Dr. Keller stated:
“Since the fall, [appellant] has been in significant pain. He has had problems with
his left side, left shoulder and left arm pain, probably radiculopathy from the
original injury. With the ligaments pulled and the previous injuries, [appellant]
has progressed to a traumatic osteoarthritis at multiple levels. At this point, the
best thing to do is proceed with surgery. [Appellant] has had chronic weakness of
his left side. I do n[o]t think that [i]s going to improve but basically he needs to
proceed with surgery for pain control. [Appellant’s] problem stems from his
original injury in 1967.”
In a decision dated March 10, 2009, the Office denied appellant’s request for
reconsideration. It found that the request was untimely and failed to show clear evidence of error
in the last merit review of his case on March 15, 2007. The Office explained that Dr. Keller had
previously advanced her opinion in a January 4, 2007 report, which the Office’s March 15, 2007
decision had considered.
On appeal, appellant argues that he still has serious problems stemming from his accepted
injuries. He submitted an August 30, 2007 medical report and copy of Dr. Keller’s January 15,
2009 report.

4

See Docket No. 08-266 (issued August 25, 2008).

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”5
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in its most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.6
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made a mistake, for
example, proof that a schedule award was miscalculated. Evidence such as a detailed, wellrationalized 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.7 If
clear evidence of error has not been presented, the Office should deny the application by letter
decision, which includes a brief evaluation of the evidence submitted and a finding made that
clear evidence of error has not been shown.8
ANALYSIS
The Office reviewed the merits of appellant’s case on March 15, 2007. It found that the
medical evidence was insufficient to establish that his current medical condition was due to the
accepted work injury. The appeal rights attached to that decision explained, if appellant
disagreed, he had one calendar year or until March 15, 2008, to request reconsideration.
Appellant’s December 8, 2008 request for reconsideration is therefore untimely.

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004)
(citing Board precedent).
8

Id., Chapter 2.1602.3.d(1).

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Appellant received other decisions after March 15, 2007, but none of those decisions
reviewed the merits of his case or provided him another year in which to request reconsideration.
The time period for requesting reconsideration expired on March 15, 2008.
Because appellant’s December 8, 2008 request for reconsideration is untimely, it must
present “clear evidence of error.” This evidence must show on its face that the March 15, 2007
decision was erroneous. It cannot be a matter of opinion, where reasonable minds can disagree.
It cannot be a matter of possibility. It must be a matter of positive proof, such as proof of a
mathematical error. “Clear evidence of error” is intended to be a difficult standard to meet.
In his December 8, 2008 reconsideration request, appellant questioned how the Office
could find his prior request untimely. However, this contention does not address the Office’s
finding that the medical evidence was insufficient to establish that his current medical condition
was due to the accepted work injury. Arguments about the timeliness of later procedural
requests do not show clear evidence of error in the Office’s March 15, 2007 merit review of
appellant’s claim.
Appellant did submit a January 15, 2009 report from Dr. Keller, who again stated that his
problem stemmed from his 1967 injury. However, this report adds very little to the opinion she
previously expressed, which the Office considered and found was flawed for several reasons.
Dr. Keller did not correct those deficiencies. Her opinion remains only weakly supportive of
appellant’s claim. As such, it falls far short of the type of evidence needed to establish clear
error to reopen his case for another merit review.
Construed in the light most favorable to appellant, Dr. Keller’s opinion may simply
create a conflict with Dr. Tiley, the second-opinion orthopedic surgeon who found no causal
relationship between the accepted employment injuries and appellant’s current osteoarthritic
condition. The Office found that Dr. Tiley’s opinion stood as the weight of the medical
evidence. The Board has held that evidence such as a detailed, well-rationalized medical report
which, if submitted before the denial was issued, would have crated a conflict in medical
opinion, is not clear evidence of error.9
The Board finds that appellant’s untimely reconsideration request fails to show clear
evidence of error in the Office’s March 15, 2007 merit decision. The Board will therefore affirm
the Office’s March 10, 2009 nonmerit decision denying that request.
On appeal, appellant contends that he has serious problems stemming from his accepted
injuries. The issue of whether his current back condition is causally related to what happened on
October 14, 1967 or January 3, 1977 is a matter of medical opinion. The Office has determined
that the weight of the medical opinion rests with Dr. Tiley. On appeal, appellant submitted an
August 30, 2007 medical report. However, he did not submit this evidence to support his
December 8, 2008 request for reconsideration. The Board may not consider it for the first time
on appeal.10
9

See James R. Mirra, 56 ECAB 738 (2005); Pete F. Dorso, 52 ECAB 424 (2001).

10

See 20 C.F.R. § 501.2(c)(1).

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CONCLUSION
The Board finds that the Office properly denied appellant’s December 8, 2008 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2010
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

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