United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., Appellant
and
U.S. POSTAL SERVICE, RICHLAND
STATION, Dallas, TX, Employer
__________________________________________

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

Docket No. 17-1203
Issued: January 9, 2018

Case Submitted on the Record

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

JURISDICTION
On May 9, 20171 appellant filed a timely appeal from a November 10, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an emotional condition in the performance of duty.

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 10, 2016, the date of OWCP’s last decision was
May 9, 2017. Since using May 10, 2017, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is May 9, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 12, 2015 appellant, then a 28-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that she developed post-traumatic stress disorder and mental
stress on December 6, 2014. The employing establishment advised that appellant stopped work
on December 31, 2014 and had not returned.
In a narrative statement, appellant asserted that on December 6, 2014 she received a text
message from S.W., her supervisor. She reported that the text read, “Well at least I tried, one
day you might say what the hell I’m gonna give him some.” Appellant alleged that this message
made her uncomfortable, caused her stress, and exacerbated her gastrointestinal issues. She felt
weak and vomited for a few days and then sought medical attention. Appellant’s physician
informed her that her stress and anxiety were causing her stomach symptoms. Appellant
reported the sexual harassment to her station manager, J.S., on December 18, 2014 when she
returned to work. She also worked on December 26 and 30, 2014. Appellant indicated that S.W.
appeared at her duty station after her return to work.
Appellant’s supervisor, J.S., controverted appellant’s claim on January 20, 2015 and
asserted that she filed the claim due to pending corrective action and because she was a
disgruntled employee. The employing establishment noted that an internal investigation was
being conducted regarding appellant’s allegations of sexual harassment, but was still pending.
In a letter dated February 12, 2015, OWCP requested additional factual and medical
evidence from appellant. It also requested additional information from the employing
establishment on that same date.
Appellant provided a statement from a coworker, C.T., alleging that S.W. had made
unwanted sexual advances toward her. She also submitted a report by Dr. Jerry Franz, an
occupational medicine physician, who diagnosed anxiety, depression, and stress due to
appellant’s work duties.
In a decision dated April 1, 2015, OWCP denied appellant’s emotional condition claim,
finding that she had not substantiated a compensable factor of employment as causing or
contributing to her diagnosed condition.
Appellant requested reconsideration on November 30, 2015. She provided her Equal
Employment Opportunity (EEO) investigative file and an affidavit. The EEO materials included
appellant’s review of text messages with S.W. beginning with a breakfast invitation on
October 14, 2014 which she declined. Appellant denied providing S.W. with her telephone
number. She applied for and received a position as a 204B and S.W. began training her. This
interaction began professionally, but S.W. later began to make suggestive comments after the last
carrier left for the day. He continued to contact appellant directly, through calls and texts, for
dates, sex, oral sex, as well as offering her money. Appellant declined S.W.’s requests and
informed him that she had a boyfriend. S.W. invited her to his house on November 17, 2014 and
again asked for sex on December 6, 2014. Appellant alleged that S.W. sexually harassed her
from October through December 2014. She alleged that she was afraid of S.W. because he had
been a Marine and “knew how to put people down.” S.W. informed her of his physical
altercations at the workplace and that he brought guns to work. He insinuated that he struggled
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with post-traumatic stress disorder which caused him to explode with coworkers. S.W. informed
appellant that he had software which enabled him to gain access to personal information
including home addresses. He told appellant that supervisors, J.S., and S.O., spread rumors that
he and appellant were having a sexual relationship. Appellant stopped working as a 204B
because she was uncomfortable with S.W. A coworker informed her of similar harassment by
S.W.
Appellant noted on December 18, 2014 that S.O., a female supervisor, instructed her to
report for an attendance-related predisciplinary interview. She asked that supervisors S.O. and
J.S. stop spreading rumors concerning her relationship with S.W. Both denied knowledge of the
rumors. Appellant then informed the supervisors of S.W.’s sexual harassment of her and that she
had documentation. On that same date J.S. instructed appellant to go home after she confronted
him and S.W. about the harassment, alleging that she had instigated a verbal altercation. J.S.
asserted that S.W. was pending removal from the employing establishment. Appellant claimed
that J.S. retaliated against her because of her harassment complaint and that the employing
establishment investigator, R.D., was alleged to have had a sexual relationship with J.S. She
noted that she had no further contact with R.D. after the initial interview. J.S. denied that
appellant’s discipline was retaliation for EEO activity or based on discrimination.
Appellant submitted a series of text messages, purportedly from S.W., originating at
telephone number xxx-xxx-4151, which began with a breakfast invitation on October 14, 2014
which appellant refused noting that she would like to “keep things professional.” In her EEO
investigative affidavit appellant provided the dates for the texts she submitted. In a
November 14, 2014 text, S.W. noted, “Plus you would look a whole lot sexier in different
outfits.” He texted on November 15, 2014, “Please don’t get upset. But I’m attracted to you
respectfully. I truly enjoy speaking with you. I’m afraid of one thing but I still like our
conversations.” S.W. indicated that he did not want to threaten appellant, but that they could be
“buds” and “platonic.” Appellant noted that she did not talk to coworkers of the opposite sex
outside of work and that she did not want things to be awkward. S.W. replied that she would not
feel odd as his personality would not allow it. He asked, “Let’s just keep it fun ok?” S.W. then
asked if appellant was interested in females. He noted, “I’m not complaining or changing, you
still what you are to me.” S.W. added, “Beautiful” and then apologized. Appellant assured him
that she was not mad on Sunday, November 16, 2014.
In a text dated November 17, 2014, S.W. informed appellant that it was okay if they
dated, providing he was her type. Appellant asked that he be specific about dating. S.W. noted
that he did not want to offend appellant or chase her away. Appellant replied that they were
“cool.”
In texts dated November 19, 2014, appellant apologized for missing S.W.’s call and he
replied, “Just mistreat me.” She indicated that she was shaking her head and laughing out loud.
In November 24, 2016 texts, S.W. directed appellant to call him if she needed or wanted him.
Appellant indicated that she was working. On November 25, 2014 S.W. noted that he was at a
restaurant alone wanting appellant to discuss work. Appellant indicated that she needed more
training with S.W. In a November 28, 2014 text, S.W. noted that it was fun working with
appellant and that he almost felt he was working with his baby sister and “at time with America’s
next top model who’s full of drama.” S.W. noted on November 29, 2014 that he knew appellant
had a boyfriend, “but I still want some of you.” Appellant replied that he was a trip and
3

‘laugh[ed] out loud’. S.W. noted that appellant could treat him badly, but that he still wanted her
respectfully. Appellant replied that she would not do that and ‘laugh out loud.’ S.W. informed
appellant that he had a “huge crush” on her and that he hoped she would “want me sorry mean
need me tonight.” S.W. then noted, “Haha you did need me.” Appellant noted that she needed
him “just for that” and that she closed by herself. He noted that he had lost appellant from this
day forward. Appellant told him to hush.
On Monday, December 1, 2014 S.W. texted that appellant would miss him when he was
gone. In a series of texts dated December 5, 2014, at 8:24 p.m., S.W. asked if appellant wanted
him to close, and noted that he would behave. Appellant replied that he could, but that J.S. was
still there. At 8:46 p.m. S.W. noted that he was “here waiting for you to be alone.” Appellant
asked if that were true and S.W. noted that a carrier just came back at 8:56 p.m. In her affidavit,
appellant noted her belief that S.W. was parked outside the employing establishment watching
during the course of the December 5, 2014 text messages. At 9:14 p.m. he asked if J.S. was still
at work and appellant replied in the affirmative. S.W. noted, “Damn, he’s blocking.” He
indicated that he was going to stay until 9:35 p.m. and that he wanted to hold appellant for five
seconds adding, “That’s like a whole day.” S.W. then texted, “What do you think? We should
meet somewhere once you leave and just keep it moving?” Appellant replied at 9:37 p.m., “It’s
up to you. J.S. just left. You don’t need no hug do you? LOL.” On December 6, 2014 S.W.
texted “You looked so sexy in those jeans. Last chance to sleep with you….” Appellant replied,
“Thank [you]. That’s not going to happen, sir.” S.W. texted, “Well at least I tried. One day you
might say what the hell I’m gonna give him some.”
Appellant also described conversations with S.W. alleging that he suggested that they get
married. She asserted that he told her all the “sexual things” he could do to her and what she
could do for him. S.W. allegedly informed appellant that she could live in one of his properties
rent free and that he wanted her to have his babies. In a voicemail he noted that appellant was
welcome at his home anytime of the day or night. S.W. suggested that he could make people at
the employing establishment miserable.
Supervisor S.W. completed an EEO interview on December 23, 2014 and admitted
asking appellant for breakfast which she declined. He did not recall asking appellant for sex on
December 6, 2014. S.W. denied e-mailing, texting, or calling employees for sex. He indicated
that he made comments that a person was sexy if they looked nice. S.W. noted that he did ask
appellant out, but that she told him she had a boyfriend. He did not believe that she had a
boyfriend and thought she was just telling him that. S.W. agreed that he offered for appellant to
come by his house “so that she could use his washer and dryer.” He opined that he and appellant
were friends and that she never seemed bothered by him. S.W. alleged that he was respectful to
appellant. He also asserted that appellant had talked about her personal life and that she told him
she “liked talking to him.”
The EEO investigator confirmed that the text messages to appellant were from S.W.
Appellant submitted interviews with C.T., who also alleged that S.W. sexually harassed
her and T.C., another coworker, who noted that S.W. wanted to be friends and, when she told
him she was married with a child, asked for her number. She refused, but later found he
attempted to determine her route.

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By decision dated February 26, 2016, OWCP denied modification of its April 2, 2015
decision. It reviewed the additional evidence submitted and found that appellant had not
substantiated a compensable factor of employment regarding harassment as there was no final
decision to show that the employing establishment was at fault related to the alleged sexual
harassment. OWCP noted that there was no proof that the text messages came from S.W. It also
found no error or abuse on the part of the employing establishment.
On August 16, 2016 appellant requested reconsideration. She disputed the allegation that
the text messages did not come from S.W. and provided a telephone number xxx-xxx-4151, from
an internet site which was attributed to S.W. and correlated to the number on the texts that
appellant received.
Appellant also provided an e-mail address from the employing
establishment’s counsel dated January 28, 2015 which apologized for appellant’s subjection to
“unwanted advances from [S.W.] and requested any additional information besides the texts and
her statement in regard to “pending, potential discipline for [S.W.].” Appellant asserted
that S.W. told her how he had avoided a previous sexual harassment case by using the accuser’s
words against her. She noted that EEO had not issued a final decision.
By decision dated November 10, 2016, OWCP reviewed the merits of appellant’s claim,
but denied modification of its prior decisions.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.4 There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.5 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.6 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is insufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force. Nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.7

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 136 (1999).

6

Supra note 3.

7

Id.

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Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.9 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.11
ANALYSIS
The Board finds this case not in posture for decision.
Appellant has attributed her emotional condition to a variety of factors, but not to
difficulties in carrying out her employment duties. She, therefore, has not implicated a
compensable factor of employment under Cutler.12
In Thomas D. McEuen,13 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under FECA would attach if the facts surrounding the
administrative or personnel action established error or abuse by employing establishment
superiors in dealing with the claimant. Absent evidence of such error or abuse, the resulting
emotional condition must be considered self-generated, and not employment generated. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.14

8

Charles D. Edwards, 55 ECAB 258 (2004).

9
Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
10

Roger Williams, 52 ECAB 468 (2001).

11

Alice M. Washington, 46 ECAB 382 (1994); E.C., Docket No. 15-1743 (issued September 8, 2016).

12

Supra note 3.

13

Supra note 9.

14

See Richard J. Dube, 42 ECAB 916, 920 (1991).

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Appellant has attributed her emotional condition to administrative actions of the
employing establishment which she asserted were erroneous. She alleged that she was
improperly subjected to discipline on December 14, 2014 when supervisor J.S. sent her home for
refusing to obey instructions and instigating a verbal altercation. Disciplinary actions are
considered administrative actions.15 Appellant did not provide any independent or probative
evidence to establish that the J.S. erred or was abusive in issuing the discipline.16 Therefore she
has not established a compensable factor in this regard.
Appellant also alleged that S.W. sexually harassed her from October through
December 2014. In support of this allegation, appellant submitted a series of text messages
purportedly from S.W. OWCP initially discounted these texts finding that there was no basis for
determining that the texts came from S.W. and also asserting that there was no final adverse EEO
decision or determination from the employing establishment investigation establishing sexual
harassment through the texts.
The Board finds that the record supports that the submitted text messages were from S.W.
The EEO investigator accepted that the texts were from S.W., appellant supplied evidence that
this telephone number was that of S.W., and there is no contrary evidence from the employing
establishment or S.W.17 The Board further notes the issue is not whether the claimant has
established harassment under standards applied by the EEO. Rather, the issue is whether the
claimant, under FECA, has submitted evidence sufficient to establish an injury arising in the
performance of duty. To establish entitlement to benefits, the claimant must establish a factual
basis for the claim by supporting allegations with probative and reliable evidence.18
The Board notes that OWCP had allotted time for the employing establishment to
respond to appellant’s allegations. However, no response was received. Nevertheless, OWCP
found that appellant had not established any compensable factors of employment.
OWCP procedures provide:
“If an employing [establishment] fails to respond to a request for comments on
the claimant’s allegations, the [claims examiner] may usually accept the
claimant’s statements as factual. However, acceptance of the claimant’s
statements as factual is not automatic in the absence of a reply from the
[employing establishment], especially in instances where performance of duty is
questionable. The Board has consistently held that allegations unsupported by
probative evidence are not established. James E. Norris, 52 ECAB 93 (1999);
Michael Ewanichak, 48 ECAB 364 (1997). The [claims examiner] should
15

L.R., Docket No. 14-1990 (issued January 17, 2015).

16

E.C., Docket No. 15-1743 (issued September 8, 2016).

1717

See C.V., Docket No. 16-0699 (issued November 4, 2016) (the Board accepted the texts without requiring a
substantiating source and with no contrary evidence).
18
Kathleen A. Donati, 53 ECAB 759 (2003); Martha L. Cook, 47 ECAB 226, 231 (1995); D.K., Docket No. 080157 (issued April 24, 2008).

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consider the totality of the evidence and evaluate any inconsistencies prior to
making a determination.”19
Based on appellant’s EEO affidavit, the January 20, 2015 letter from J.S., and the e-mail
from the employing establishment’s attorney, the Board concludes that the employing
establishment conducted an investigation into appellant’s allegations. Appellant averred that
once she presented the evidence and interviewed with the employing establishment official, she
did not hear anything further from the employing establishment. The Board finds that it is
unable to make an informed decision in this case as the employing establishment did not respond
to the request for comment made by OWCP in the February 12, 2015 development letter.
Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source.20 Since appellant’s allegations indicate that the
employing establishment would have in its possession evidence relevant to appellant’s sexual
harassment allegations, (i.e., findings of the Postal Inspection Service’s investigation) OWCP
should obtain a response from the employing establishment to the allegations of sexual
harassment and any relevant evidence or argument.21
This issue of the case will, accordingly, be remanded to OWCP for further development
of the evidence regarding appellant’s allegations of sexual harassment. It shall request that the
employing establishment provide a detailed statement and relevant evidence and/or argument
regarding appellant’s allegations. Following this and any necessary further development, OWCP
shall issue a de novo decision regarding whether appellant has established any compensable
factors of employment regarding sexual harassment and, consequently, sustained an injury in the
performance of duty.
CONCLUSION
The Board finds that appellant has not established any compensable factors of
employment relative to administrative or personnel matters. The Board further finds that the
case is not in posture for decision with regard to whether appellant has established a
compensable factor of employment as to allegations of sexual harassment. The case is remanded
for further evidentiary development as to whether appellant has sustained an injury in the
performance of duty.
19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)(1)
(June 2011).
20
See K.W., Docket No 1.5-1535 (issued September 23, 2016) (remanding the case for further development by
OWCP when the employing establishment did not provide an investigative memorandum in an emotional condition
claim based on sexual harassment).
21

Id.; see 20 C.F.R. § 10.117(a), which provides, the employing establishment who has reason to disagree with
any aspect of the claimant’s report shall submit a statement to OWCP that specifically describes the factual
allegation or argument with which it disagrees and provide evidence or argument to support its position. The
employing establishment may include supporting documents such as witness statements, medical reports or records,
or any other relevant information.

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ORDER
IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision.
Issued: January 9, 2018
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, SOUTH FLORIDA
LOGISTICS & DISTRIBUTION CENTER,
Opa-Locka, FL, Employer
__________________________________________

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

Docket No. 21-0098
Issued: May 19, 2021

Case Submitted on the Record

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

JURISDICTION
On October 29, 2020 appellant filed a timely appeal from a June 3, 2020 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days have elapsed
since OWCP’s last merit decision, dated May 15, 2019, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted to fully flesh out his
argument that he was entitled to total disability compensation and that the opinion of a second opinion physician did
not constitute the weight of the medical opinion evidence. The Board, in exercising its discretion, denies appellant’s
request for oral argument because the Board does not have jurisdiction over the merits of the case and the arguments
on appeal can adequately be addressed in a decision based on a review of the case record. Oral argument in this appeal
would further delay issuance of a Board decision and not serve a useful purpose. As such, the oral argument request
is denied and this decision is based on the case record as submitted to the Board.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 1, 2013 appellant, a 54-year-old mail handler equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that on December 31, 2012 he injured his lower back
when he off-loaded wire cages from a tow motor while in the performance of duty. On May 28,
2013 OWCP accepted the claim for displacement of lumbar intervertebral disc without
myelopathy. By decision dated December 17, 2014, it denied appellant’s claim for wage-loss
compensation for the period commencing May 17, 2014 and continuing. In a February 25, 2015
decision, OWCP terminated his wage-loss compensation and medical benefits, effective that date,
finding that the medical evidence of record established that he had no ongoing medical residuals
or disability due to his accepted condition. An OWCP hearing representative, in an October 13,
2015 decision, affirmed the December 17, 2014 decision denying wage-loss compensation. By a
subsequent decision dated January 6, 2016, a second OWCP’s hearing representative affirmed the
February 25, 2015 termination decision. In a decision issued on January 6, 2017, OWCP affirmed
in part and modified in the part the October 13, 2015 decision affirming the denial of wage-loss
compensation. It determined that appellant was entitled to wage-loss compensation for attending
medical appointments during the period May 8 through September 18, 2014. However, OWCP
affirmed the decision regarding his claim for disability compensation from May 17, 2014 and
continuing, finding that the medical evidence of record failed to sufficiently support a causal
relationship between his inability to work during the above period and his accepted December 31,
2012 employment injury. In decisions dated March 29, 2017 and April 3, 2018, it denied
modification of the January 6, 2016 termination decision. OWCP, in a decision issued on
September 6, 2018, denied appellant’s March 26, 2018 request for reconsideration of the merits of
his claim pursuant to 5 U.S.C. § 8128(a) pertaining to the termination of his wage-loss
compensation and medical benefits. In a decision dated May 15, 2019, it denied modification of
the April 3, 2018 decision which affirmed the termination of his compensation benefits.
On May 11, 2020 appellant requested reconsideration of the May 15, 2019 decision which
affirmed the termination of his wage-loss compensation and medical benefits. In an accompanying
letter dated May 2, 2020, he asserted that he was totally disabled. Appellant further asserted that
OWCP failed to follow its procedures as it failed to provide written notice of the proposed
termination of his compensation benefits that included specific evidence used as the basis for the
determination, and 30 days to respond to the proposed action.
In support of his reconsideration request, appellant sent several provisions from Title 20 of
the Code of Federal Regulations (C.F.R.) which defined the term disability and described the
circumstances under which OWCP may reduce or terminate FECA compensation benefits.
He also submitted a December 4, 2017 award letter from the Social Security Administration (SSA)
which indicated that he was totally disabled and received disability benefits under SSA beginning
in April 2016.

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Additionally, appellant submitted an August 29, 2014 benefit statement from the U.S.
Department of Labor (DOL) that was previously of record. He further submitted copies of a Board
decision to support his contention that OWCP has the burden of proof to terminate his
compensation benefits, and OWCP’s May 15, 2019 decision denying modification of its decision
to terminate his compensation benefits.
OWCP, by decision dated June 3, 2020, denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

3

Id. at § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

7
Id. at § 10.608(b); see B.S., Docket No. 20-0761 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

3

Appellant’s timely May 11, 2020 request for reconsideration does not demonstrate that
OWCP erroneously applied or interpreted a specific point of law. Additionally, the Board finds
that he did not advance a relevant legal argument not previously considered by OWCP. On
reconsideration appellant contended that he continued to be totally disabled due to his accepted
employment injury and that OWCP failed to follow its procedures as it did not provide written
notice of the proposed termination of his compensation benefits that included specific evidence
used as the basis for the determination, and 30 days to respond to the proposed action. The Board
notes, however, that OWCP issued a January 7, 2015 notice of proposed termination of his wageloss compensation and medical benefits, finding that the weight of the medical evidence of record
rested with a December 1, 2014 medical opinion of Dr. Peter J. Millheiser, a Board-certified
orthopedic surgeon and OWCP referral physician, that appellant no longer suffered from any
residuals or continuing disability from work due to appellant’s December 31, 2012 employment
injury. Dr. Millheiser also advised that appellant could return to his regular work duties with no
restrictions. OWCP afforded appellant 30 days to submit additional evidence to refute the
proposed termination of benefits. Following the submission of additional medical evidence,
OWCP, in a February 25, 2015 decision, finalized the termination of his wage-loss compensation
and medical benefits effective that date. Consequently, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP in support of his reconsideration request under 20 C.F.R.
§ 10.606(b)(3). As noted, OWCP previously terminated appellant’s wage-loss compensation and
medical benefits, effective February 25, 2015, based on Dr. Millheiser’s second opinion that
appellant no longer had continuing employment-related residuals or disability. In support of his
reconsideration request, appellant submitted new evidence which included several provisions from
Title 20 of the Code of Federal Regulations which defined the term disability and described the
circumstances under which OWCP may reduce or termination FECA compensation benefits. He
also submitted a December 4, 2017 award letter from the SSA which indicated that he was totally
disabled and received disability payments beginning in April 2016. This evidence is not relevant
to the underlying medical issue in this case of whether appellant had continuing residuals or
disability causally related to the December 31, 2102 employment injury. The Board has held that
the submission of evidence or argument which does not address the particular issue involved does
not constitute a basis for reopening a case.8 As such, this evidence does not require reopening of
appellant’s claim for review on the merits.
Appellant also resubmitted an August 29, 2014 DOL benefit statement. Additionally, he
submitted copies of a Board decision and OWCP’s May 15, 2019 decision, which are part of the
claim record. The Board has held that evidence that repeats or duplicates evidence already in the
case record, has no evidentiary value, and does not constitute a basis for reopening a case.9 As

8

Y.L., Docket No. 20-1025 (issued November 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);
R.R., Docket No. 18-1562 (issued February 22, 2019); K.B., Docket No. 18-1392 (issued January 15, 2019).
9
J.V., Docket No. 19-0990 (issued August 26, 2020); D.M., Docket No. 18-1003 (issued July 16, 2020); L.C.,
Docket No. 19-0503 (issued February 7, 2020); A.A., Docket No. 18-0031 (issued April 5, 2018).

4

appellant did not provide relevant and pertinent evidence, he is not entitled to a merit review based
on the third requirement under 20 C.F.R. § 10.606(b)(3).10
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.11
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

10

See S.V., Docket No. 20-1309 (issued December 22, 2020); C.C., Docket No. 20-0950 (issued October 29, 2020).

11

D.G., Docket No. 19-1348 (issued December 2, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the June 3, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0768
Issued: June 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a January 28, 2016 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 OWCP properly terminated appellant’s wage-loss compensation
effective April 17, 2015.
FACTUAL HISTORY
On September 4, 2012 appellant, then a 52-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 30, 2012 he sustained a right
1

5 U.S.C. § 8101 et seq.

shoulder injury due to lifting a heavy car seat at work. OWCP accepted appellant’s claim for
sprain of the rotator cuff right shoulder and a sprain of his right upper arm.
Appellant continued to work for the employing establishment on a full-time basis. He
stopped work to undergo OWCP-authorized right shoulder surgery on March 1, 2013 which
included rotator cuff repair, complete synovectomy, acromioplasty, and distal clavicle resection.
The surgery was performed by Dr. Steven Nolan, an attending Board-certified orthopedic
surgeon.2 Appellant received disability compensation on the daily rolls beginning March 12,
2013 and on the periodic rolls beginning April 7, 2013.
On March 26, 2014 Dr. Nolan released appellant to perform modified work on a full-time
basis beginning on April 1, 2014 with work restrictions of performing each of the activities of
walking, standing, twisting, pushing, and pulling for up to two hours and lifting for up to one
hour. He indicated that appellant could not squat, kneel, bend, or stoop. Dr. Nolan indicated that
the restrictions would last for three months.
On March 31, 2014 the employing establishment offered appellant a temporary light-duty
assignment which involved performing modified duties including directing passengers through
the airport security process and watching security monitors. The assignment allowed the
employee to switch between standing, sitting, and walking as personally needed and required
occasional lifting of a radio weighing less than two pounds and some other items weighing up to
five pounds. The employing establishment advised that appellant chose to resign rather than to
accept the offer and provided a copy of a form containing appellant’s March 31, 2014 rejection
of the offer.3 Appellant indicated on the form that even though his physician felt that he could
return to light-duty work, he was still having issues with his left knee.
In an April 8, 2014 medical disability note, Dr. Nolan provided an opinion that appellant
had recovered sufficiently such that he could return to his regular work on a full-time basis as of
March 26, 2014.
On May 13, 2014 the employing establishment confirmed that the temporary light-duty
assignment offered to appellant remained available.
By notice dated May 14, 2014, OWCP advised appellant that it proposed to reduce his
wage-loss compensation on the basis of his rejection of the temporary limited-duty assignment
offered him by the employing establishment as a transportation security officer.4 It found that
2

Under a separate claim file, OWCP accepted in 2007 that appellant sustained an occupational disease in the form
of joint effusion of his right elbow. Also under a separate claim file, it accepted that he sustained a medial meniscus
tear of his left knee on January 24, 2013 when he slipped on a step. Appellant underwent OWCP-authorized left
knee surgeries in September 2013 and January 2014. The files for these conditions have been combined with the
file for the present claim.
3

A Form SF-50 (Request for Personnel Action) dated April 1, 2014 indicates appellant had resigned from his
employment effective that date.
4

OWCP indicated that appellant’s entitlement to medical benefits for his accepted work injuries would not be
affected.

2

the assignment was appropriate and within appellant’s medical restrictions. OWCP provided
appellant 30 days to accept the assignment or provide a written explanation for not doing so. It
pointed out that appellant’s failure to accept the assignment without good cause would justify
termination of his wage-loss compensation under 20 C.F.R. § 10.500(a).5
In a Form EN-1032, dated August 4, 2014, appellant indicated that he worked briefly as a
driver for a private freight company from April 14 to May 9, 2014.
In an April 17, 2015 decision, OWCP terminated appellant’s wage-loss compensation
effective April 17, 2015. It noted that appellant had not accepted the temporary light-duty
assignment offered by the employing establishment which was within his medical restrictions
and found that, therefore, the termination of his wage-loss compensation was justified under 20
C.F.R. § 10.500(a).
Appellant requested a hearing with an OWCP hearing representative regarding the
termination of his wage-loss compensation. He submitted a June 29, 2015 report in which
Dr. Nolan noted that he complained of pain and swelling in his left knee.
At the hearing held on November 12, 2015, appellant testified that his physician told him
in March 2014 that he would have to release him back to work because OWCP would otherwise
make him meet with one of their doctors and then put him back to work at full duty. He reported
that he had a lot of pain in his left knee and therefore he told the employing establishment that he
was resigning rather than accepting the light-duty position which he knew he could not perform.
Appellant testified that he briefly worked as a truck driver “just delivering stuff,” but that he had
problems with his left knee that prevented him from continuing in the position.
By decision dated January 28, 2016, OWCP’s hearing representative denied modification
of OWCP’s April 17, 2015 decision terminating appellant’s wage-loss compensation effective
April 17, 2015. She indicated that appellant had not accepted a temporary light-duty assignment
offered by the employing establishment which was within his medical restrictions. The hearing
representative found that, therefore, the termination of appellant’s wage-loss compensation
effective April 17, 2015 was justified under 20 C.F.R. § 10.500(a).
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.6 OWCP may not terminate compensation
without establishing that the disability has ceased or that it was no longer related to the

5

On June 2, 2014 appellant told an OWCP claims examiner via telephone that he would accept the temporary
light-duty assignment offered by the employing establishment. The record also contains a June 2, 2014 statement to
this effect that appellant sent to OWCP.
6

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

3

employment.7 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.8
Section 10.500(a) of the Code of Federal Regulations provides:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him
or her from earning the wages earned before the work-related injury. For
example, an employee is not entitled to compensation for any wage-loss claimed
on a [Form] CA-7 to the extent that evidence contemporaneous with the period
claimed on a [Form] CA-7 establishes that an employee had medical work
restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was
available. Similarly, an employee receiving continuing periodic payments for
disability was not prevented from earning the wages earned before the workrelated injury if the evidence establishes that the employing [establishment] had
offered, in accordance with OWCP procedures, a temporary light-duty assignment
within the employee’s work restrictions.”9
ANALYSIS
OWCP accepted that on August 30, 2012 appellant sustained a sprain of the rotator cuff
of his right shoulder and a sprain of his right upper arm. On March 1, 2013 Dr. Nolan performed
OWCP-authorized right shoulder surgery which included rotator cuff repair, complete
synovectomy, acromioplasty, and distal clavicle resection.
On March 31, 2014 the employing establishment offered appellant a temporary light-duty
assignment which involved performing modified duties including directing passengers through
the airport security process and watching security monitors.10 The physical restrictions were
consistent with the treating physician’s restrictions. In April 17, 2015 and January 28, 2016
decisions, OWCP noted that appellant had not accepted the temporary light-duty assignment
which was within his medical restrictions and found that, therefore, the termination of his wageloss compensation effective April 17, 2015 was justified under 20 C.F.R. § 10.500(a).
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective April 17, 2015. Appellant did not accept the temporary light-duty assignment offered
by the employing establishment which was within his medical restrictions. He refused the
7

Charles E. Minniss, 40 ECAB 708, 716 (1989).

8

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

9

20 C.F.R. § 10.500(a).

10

The assignment allowed the employee to switch between standing, sitting, and walking as personally needed
and required occasional lifting of a radio weighing less than two pounds and some other items weighing up to five
pounds.

4

assignment on March 31, 2014 and resigned from the employing establishment effective
April 1, 2014. Therefore, the termination of appellant’s wage-loss compensation effective
April 17, 2015 was justified under 20 C.F.R. § 10.500(a).11
The Board finds that the medical evidence of record shows that appellant could perform
the temporary light-duty assignment offered by the employing establishment. On March 26,
2014 Dr. Nolan released appellant to perform modified work on a full-time basis beginning on
April 1, 2014 with work restrictions of performing each of the activities of walking, standing,
twisting, pushing, and pulling for up to two hours and lifting for up to one hour.12 In an April 8,
2014 medical disability note, Dr. Nolan found that appellant had recovered sufficiently such that
he could return to his regular work on a full-time basis as of March 26, 2014.
On appeal appellant alleges that he did not have an opportunity to accept the temporary
light-duty assignment offered by the employing establishment.13 However, the record reveals
that appellant had an opportunity to accept the temporary light-duty assignment, but he explicitly
rejected it on March 31, 2014 and resigned effective April 1, 2014.
The evidence of record reflects that appellant failed to accept a temporary light-duty
assignment offered by the employing establishment which was within his medical restrictions
and, therefore, OWCP properly terminated his wage-loss compensation effective April 17, 2015
under 20 C.F.R. § 10.500(a).
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective April 17, 2015.

11

See supra note 9.

12

Dr. Nolan also indicated that appellant could not squat, kneel, bend, or stoop.

13

Supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Oakwood, VA,
Employer
__________________________________________
Appearances:
P. Heith Reynolds, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 13-1197
Issued: August 28, 2013

Case Submitted on the Record

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

JURISDICTION
On April 18, 2013 appellant, through his representative, filed a timely appeal from a
nonmerit December 18, 2012 decision of the Office of Workers’ Compensation Programs
(OWCP) denying his request for reconsideration. The most recent merit decision of record is
dated July 26, 2011. There is no merit decision within 180 days of April 18, 2013, the date
appellant filed his appeal with the Board. Therefore, 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.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 8128(a).

1

5 U.S.C. § 8101 et seq.

On appeal, counsel asserts that OWCP erred by failing to accept the diagnosis of
pneumoconiosis or that appellant sustained pneumoconiosis in the performance of duty. He also
contends that OWCP wrongly accorded the weight of the medical evidence to a second opinion
physician and not appellant’s attending physicians.
FACTUAL HISTORY
On February 18, 2010 appellant, then a 60-year-old retired coal mine inspector, filed a
notice of occupational disease (Form CA-2) claiming that he sustained a respiratory disease on or
before June 22, 2005, the last date he was exposed to coal and rock dust at work. He retired
from the employing establishment on June 30, 2005. In an associated statement, appellant
explained that from 1978 to March 15, 2005, he was exposed to coal, rock and silica dust for
four to six hours a day, four days a week. He noted that, after smoking one pack of cigarettes a
day for many years, he quit in 2007.
In a March 8, 2010 letter, the employing establishment stated that from March 23, 1990
through March 15, 2005, appellant underwent mandatory periodic fitness-for-duty examinations
performed by employing establishment physicians. March 23, 1990, May 4, 1992 and May 12,
1993 examinations showed moderate obstructive dysfunction. A March 15, 2005 x-ray showed
I/0 interstitial changes. On May 26, 2005 Dr. Barbara Connors, an employing establishment
physician, diagnosed Stage I pneumoconiosis based on the March 15, 2005 x-ray and chronic
obstructive pulmonary disease (COPD) consistent with appellant’s cigarette smoking history.
January 13, 2010 x-rays showed small round opacities in the upper lung zones bilaterally
suggestive of pneumoconiosis, category Q 0/1. A January 18, 2010 pulmonary function test
showed airway resistance at 217 percent of predicted value, moderate restrictive infiltrate and
reduced forced vital capacity (FVC).
In a February 5, 2010 report, Dr. Thomas D. Brinegar, an attending osteopathic physician
Board-certified in family practice, diagnosed coal workers’ pneumoconiosis and COPD. He
opined that the pneumoconiosis was causally related to appellant’s federal employment as a coal
mine inspector.
In a March 25, 2010 letter, OWCP advised appellant of the additional evidence needed to
establish his claim. Appellant was afforded 30 days to submit such evidence.
In a March 30, 2010 letter, the employing establishment confirmed that appellant was
exposed to coal, rock and silica dusts for four to six hours a day, three to four days a week.
Appellant explained in an April 1, 2010 letter that, although he was issued a respirator, he did not
wear it frequently as it was too bulky to fit into the confined spaces he needed to inspect.
On August 17, 2010 OWCP obtained a second opinion from Dr. Charles E. Porterfield, a
Board-certified pulmonologist, who reviewed the medical record and a statement of accepted
facts provided by OWCP. Dr. Porterfield’s performed pulmonary function testing showing a
FVC of 60 percent of predicted value on room air, increased to 77 percent after using a
bronchodilator. He stated that a B-reading of an unspecified x-ray was negative for coal
workers’ pneumoconiosis or silicosis. Dr. Porterfield opined that exposure to coal and silica

2

dusts could aggravate appellant’s COPD. An August 17, 2010 x-ray interpreted by Dr. Manu
Patel, a Board-certified diagnostic radiologist, demonstrated “classifiable pneumoconiosis.”
By decision dated November 3, 2010, OWCP denied appellant’s claim on the grounds
that causal relationship was not established, based on Dr. Porterfield’s opinion as the weight of
the medical evidence.
In a November 22, 2010 letter, appellant requested an oral hearing, held by
videoconference on March 16, 2011. Following the hearing, the employing establishment
submitted a March 29, 2011 letter acknowledging that the respirator appellant used was bulky,
but that a smaller half-mask respirator would not have provided adequate protection.
Appellant submitted January 25 and April 7, 2011 reports from Dr. Brinegar noting that
appellant had a long history of COPD and coal workers’ pneumoconiosis. He opined that
appellant’s chest x-rays showed findings consistent with pneumoconiosis, and that the low
percentage of improvement on pulmonary function testing after using a bronchodilator
demonstrated that appellant’s shortness of breath was not due to COPD.
By decision dated and finalized May 3, 2011, an OWCP hearing representative set aside
OWCP’s November 3, 2010 decision and remanded the case to obtain a supplemental opinion
from Dr. Porterfield, explaining why he opined that appellant’s chest x-rays did not support a
diagnosis of pneumoconiosis. Dr. Porterfield responded on June 13, 2011, stating that the
findings noted on appellant’s March 15, 2005 x-ray were insufficient to justify a diagnosis of
pneumoconiosis.
By decision dated July 26, 2011, OWCP denied appellant’s claim on the grounds that the
medical evidence did not establish a causal relationship between the identified work factors and
the claimed respiratory condition. It accorded the weight of the medical evidence to
Dr. Porterfield.
In a March 30, 2012 letter, appellant requested reconsideration. He submitted a
February 16, 2012 x-ray report from Dr. Thomas Miller, an attending Board-certified diagnostic
radiologist and B-reader, opining that a February 16, 2012 chest x-ray showed primary and
secondary opacities throughout all lobes of both lungs. Dr. Miller noted 1/1 profusion and
International Labor Organization (ILO) profusion of I/0. He opined that the diffuse small
opacities demonstrable on x-ray were compatible with a diagnosis of pneumoconiosis.
By decision dated June 14, 2012, OWCP denied reconsideration on the grounds that
appellant did not submit new, relevant evidence. It found that Dr. Miller’s reports were
irrelevant to the critical issue of causal relationship.
In a July 24, 2012 letter, appellant requested reconsideration. He submitted a July 13,
2012 report from Dr. Brinegar, opining that opacities visible on chest x-rays substantiated a
diagnosis of pneumoconiosis. Dr. Brinegar noted that the lack of improvement in forced vital
capacity after using a bronchodilator indicated that appellant’s respiratory symptoms were not
due to COPD.

3

By decision dated December 18, 2012, OWCP denied appellant’s July 24, 2012 request
for reconsideration on the grounds that his request did not raise substantive legal questions or
include new, relevant evidence. It found that Dr. Brinegar’s July 13, 2012 report was cumulative
as it was highly similar to his January 25 and April 7, 2011 reports already of record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.5 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.6 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.7
ANALYSIS
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
OWCP issued a July 26, 2011 decision finding that appellant did not establish that he sustained
pneumoconiosis or silicosis in the performance of duty. Appellant requested reconsideration on
March 30, 2012, asserting that a February 16, 2012 diagnosis of pneumoconiosis by Dr. Miller,
an attending Board-certified diagnostic radiologist and B-reader, was sufficient to establish
causal relationship. OWCP denied reconsideration by decision dated June 14, 2012, finding that
as Dr. Miller did not provide medical rationale addressing the critical issue of causal relationship,
his reports were irrelevant to the claim. Appellant requested reconsideration on July 24, 2012.
He provided a July 13, 2012 report from Dr. Brinegar, an attending osteopathic physician Boardcertified in family practice, opining that opacities visible on chest x-rays and a lack of
improvement in FVC after using a bronchodilator were both indicative of pneumoconiosis.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

5

Helen E. Tschantz, 39 ECAB 1382 (1988).

6

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

7

Annette Louise, 54 ECAB 783 (2003).

4

OWCP denied reconsideration by December 18, 2012 decision, finding that Dr. Brinegar’s
July 13, 2012 was cumulative of his opinions previously of record.
As noted above, the Board does not have jurisdiction over the July 26, 2011 OWCP merit
decision. In his July 24, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. He submitted a July 13, 2012 report from Dr. Brinegar, reiterating
opinions presented in his January 25 and April 7, 2011 reports already of record. However,
evidence which is duplicative or cumulative in nature is insufficient to warrant reopening a claim
for merit review.8 A claimant may be entitled to a merit review by submitting new and relevant
evidence, but appellant did not submit any new and relevant medical evidence in this case.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, counsel asserts that OWCP erred by failing to accept the diagnosis of
pneumoconiosis or that appellant sustained pneumoconiosis in the performance of duty. Counsel
also contends that OWCP wrongly accorded the weight of the medical evidence to a second
opinion physician and not appellant’s attending physicians. These arguments concern the merits
of the claim, regarding whether appellant established that he sustained pneumoconiosis or
another respiratory condition in the performance of duty. As stated, the Board does not have
jurisdiction over the merits of the claim on the present appeal. Therefore, the Board cannot
address counsel’s arguments.

8

Denis M. Dupor, 51 ECAB 482 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 18, 2012 is affirmed.
Issued: August 28, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
St. Louis, MO, Employer
)
__________________________________________ )
J.H., Appellant

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

Docket No. 09-2304
Issued: May 20, 2010

Case Submitted on the Record

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

JURISDICTION
On September 16, 2009 appellant filed a timely appeal from the June 24, 2009 decision
of the Office of Workers’ Compensation Programs adjudicating his schedule award claim and
the August 12, 2009 decision denying his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has more than 15 percent impairment to his left
upper extremity; and (2) whether the Office abused its discretion in denying his request for
reconsideration.1
FACTUAL HISTORY
On January 2, 2006 appellant, then a 53-year-old expeditor/clerk, filed a claim for a
traumatic injury to his left shoulder after feeling pain when he loaded trays of mail into a bulk
1

Appellant is not appealing a March 12, 2009 wage-earning capacity decision.

mail container. On April 11, 2006 the Office accepted a left rotator cuff tear, left bicipital
tenosynovitis and impingement syndrome as causally related to the January 2, 2006 employment
incident. On September 1, 2006 appellant underwent left shoulder arthroscopic surgery,
including subacromial decompression and a “mini open” rotator cuff repair performed by
Dr. Charles Mannis, an attending Board-certified orthopedic surgeon. Appellant subsequently
filed a claim for a schedule award.
On September 27, 2007 Dr. Mannis opined, based on his examinations and treatment of
appellant, that he had 20 percent impairment to his left arm due to his accepted rotator cuff tear.
He did not explain how he calculated the impairment.
On October 22, 2007 Dr. David H. Garelick, a Board-certified orthopedic surgeon and an
Office medical adviser, reviewed the case file and calculated six percent left arm impairment for
decreased range of motion.2
The Office found a conflict in medical opinion between Dr. Mannis and Dr. Garelick as
to appellant’s left arm impairment. It referred him, together with the case file, statement of
accepted facts and a list of questions, to Dr. David W. Strege, a Board-certified orthopedic
surgeon, for an independent medical examination and evaluation of his left arm impairment.
On February 26, 2008 Dr. Strege reviewed the medical history and provided findings on
physical examination. He found that appellant had not reached maximum medical improvement.
On October 15 and December 12, 2008 Dr. Mannis provided findings on physical
examination. Left shoulder range of motion measurements included forward elevation to 150
degrees, backward elevation to 30 degrees, extension to 30 degrees, abduction to 135 degrees,
adduction to 30 degrees, internal rotation to 45 degrees and external rotation to 75 degrees.
Appellant described his shoulder pain as 5 out of a maximum 10. There was no sensory loss.
Appellant’s weakness or atrophy of the left upper extremity was 4/5. The weakness was not
localized to any specific muscle group. There were no other types of left upper extremity
impairment. Dr. Mannis opined that appellant had 25 to 30 percent left upper extremity
impairment. He did not explain how he calculated the impairment.
On January 12, 2009 Dr. Garelick calculated appellant’s left upper extremity impairment
rating using the reports of both Dr. Mannis and Dr. Strege. He averaged the range of motion
measurements they provided and calculated 15 percent left upper extremity impairment.

2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (after obtaining all necessary medical evidence, the file should be routed to an
Office medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides, with the medical adviser providing rationale for the percentage of impairment specified, especially
when there is more than one evaluation of the impairment present).

2

By decision dated February 19, 2009, the Office granted appellant a schedule award
based on 15 percent left upper extremity impairment for 46.8 weeks, from October 15, 2008 to
September 7, 2009.3
On May 18, 2009 an Office hearing representative set aside the February 19, 2009
decision and remanded the case for further development of the medical evidence and a de novo
decision. She found that Dr. Garelick had improperly averaged the range of motion
measurements provided by Dr. Mannis and Dr. Strege. Additionally, the measurements of
Dr. Strege were made at a time when appellant had not reached maximum medical improvement.
On May 25, 2009 Dr. Garelick found that appellant had seven percent left upper
extremity impairment based on the 6th edition of the A.M.A., Guides.
By decision dated June 24, 2009, the Office found that appellant had no more than 15
percent left upper extremity impairment.
Appellant requested reconsideration. He submitted the October 15, 2008 report of
Dr. Mannis previously considered by the Office. On August 12, 2009 the Office denied
appellant’s reconsideration request on the grounds that the evidence submitted was not sufficient
to warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides 6th edition has been adopted
by the Office as the appropriate standard for evaluating schedule losses.6
Section 8123(a) of the Act provides that, “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”7 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
3

The Act provides for 312 weeks of compensation for 100 percent loss or loss of use of the upper extremity.
5 U.S.C. § 8107(c)(10). Multiplying 312 weeks by 15 percent equals 46.8 weeks of compensation.
4

5 U.S.C. § 8107.

5

See 20 C.F.R. § 10.404; see also FECA Bulletin No. 9-03, issued March 15, 2009 (effective May 1, 2009 the
Office began using the providing for use of the 6th edition of the A.M.A., Guides (6th ed. 2008).
6

Id.

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207 (1993).

3

such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision.
Due to the conflict in medical opinion between Dr. Mannis and Dr. Garelick as to
appellant’s left upper extremity impairment, the Office properly referred appellant to Dr. Strege
for an impartial medical evaluation. On February 26, 2008 Dr. Strege reviewed the medical
history and provided findings on physical examination. He found that appellant had not reached
maximum medical improvement. The period covered by a schedule award commences on the
date that the employee reaches maximum medical improvement from the residuals of the
accepted employment injury.9 Maximum medical improvement arises at the point at which the
injury has stabilized and will not improve further. This determination is factual in nature and
depends primarily on the medical evidence.10 Because Dr. Strege found that appellant had not
reached maximum medical improvement, he could not determine appellant’s permanent
impairment of his left upper extremity at that time.
Dr. Garelick reviewed the medical evidence following appellant’s examination by
Dr. Strege. He calculated appellant’s left upper extremity impairment at 15 percent, using the
reports of Dr. Mannis and Dr. Strege. The Office did not follow its procedures in referring the
case to Dr. Garelick. Office procedures state, “No report which addresses a conflict should be
reviewed by [an Office medical adviser] who was involved in creating the conflict since bias
might be inferred from this action. Arrangements must be made to have another [Office medical
adviser] or a physician acting as a consultant to the Office review the file.”11 Following the
May 18, 2009 decision vacating the February 19, 2009 schedule award decision, the case was
again improperly referred to Dr. Garelick. The Board finds that this case must be remanded for
referral of the case to a new Office medical adviser, or a physician acting as a consultant to the
Office, to review the medical evidence, determine whether appellant has reached maximum
medical improvement and if so calculate appellant’s left upper extremity impairment.
In light of the Board’s resolution of the first issue, the second issue is moot.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer the case file for review by a new Office medical adviser or an Office medical

8

See Roger Dingess, 47 ECAB 123 (1995); Glenn C. Chasteen, 42 ECAB 493 (1991).

9

See Mark A Holloway, 55 ECAB 321 (2004).

10

Peter C. Belkind, 56 ECAB 580 (2005).

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5(c)
(March 2005).

4

consultant. After such further development as the Office deems necessary, it should issue an
appropriate decision on appellant’s left upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 12 and June 24, 2009 are set aside and the case is
remanded for further action consistent with this decision.
Issued: May 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT SAC, San Antonio, TX,
Employer
__________________________________________

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

Docket No. 17-0102
Issued: April 13, 2017

Case Submitted on the Record

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

JURISDICTION
On October 21, 2016 appellant filed a timely appeal from a September 26, 2016 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 that he is entitled to a schedule award for
permanent impairment of the right lower extremity sufficient to warrant a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 26, 2015 appellant, then a 48-year-old special agent, filed a traumatic injury
claim (Form CA-1) alleging that on February 24, 2015 he sustained a right knee condition when
the vehicle he was driving was struck from behind, causing him to hit his knee on the steering
column. He stopped work on April 9, 2015 and returned on April 27, 2015. By decision dated
April 22, 2015, OWCP accepted the claim for right collateral ligament knee sprain.
Following the accepted employment incident, appellant sought treatment with
Dr. Geoffrey Glidden, a Board-certified orthopedic surgeon. In a March 19, 2016 medical
report, Dr. Glidden reported that appellant complained of transient pain in his right knee, made
worse with prolonged sitting or standing. He provided findings on physical examination and
diagnosed right knee sprain/strain and prepatellar contusion. Dr. Glidden reported that appellant
had returned to work without restrictions for approximately six months and competently
performed his job duties without difficulty. He noted that appellant wished to be discharged
from medical treatment. Dr. Glidden found this to be appropriate and informed appellant to
follow up when necessary.
On April 1, 2016 appellant filed a claim for a schedule award (Form CA-7).
By letter dated April 20, 2016, OWCP requested that appellant submit a report from his
attending physician addressing his work-related condition, the date of maximum medical
improvement (MMI), objective findings, subjective complaints, and an impairment rating
rendered according to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides).2 Appellant was advised that, if his
physician was unable or unwilling to provide the required report, he should advise OWCP in
writing. He was afforded 30 days to provide the requested information. Appellant did not
respond.
By decision dated September 26, 2016, OWCP denied appellant’s claim for a schedule
award as the evidence was insufficient to establish any permanent impairment to a scheduled
member or function of the body.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.3 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

2

A.M.A., Guides (2009).

3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

2

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
It is the claimant’s burden to establish that he has sustained a permanent impairment of
the scheduled member or function as a result of any employment injury.5 OWCP procedures
provide that, to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred (date of MMI), describes the impairment in sufficient detail so that it can
be visualized on review, and computes the percentage of impairment in accordance with the
A.M.A., Guides.6
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment Class of Diagnosis
(CDX) condition, which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).7 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Evaluators are directed to
provide reasons for their impairment rating choices, including choices of diagnoses from
regional grids and calculations of modifier scores.9
ANALYSIS
OWCP accepted appellant’s claim for right collateral ligament knee sprain. On April 1,
2016 appellant filed a claim for a schedule award. By decision dated September 26, 2016,
OWCP denied his schedule award claim finding that he had failed to submit an impairment
evaluation to establish a permanent impairment resulting from his work injury.
The Board finds that appellant has failed to submit evidence of permanent impairment to
a scheduled member warranting a schedule award. By letter dated April 20, 2016, OWCP
informed him of the type of evidence necessary to establish his schedule award claim and
specifically requested that he submit an impairment evaluation from his attending physician in
accordance with the sixth edition of the A.M.A., Guides. It afforded 30 days.
Appellant did not respond to OWCP’s development letter. The only recent medical
report of record was Dr. Glidden’s March 19, 2016 report which noted complaints of continued
4

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
5

Tammy L. Meehan, 53 ECAB 229 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013).
7

Supra note 2 at 493-531.

8

Id. at 521.

9

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

3

knee pain and discharged appellant from medical treatment. The Board finds that Dr. Glidden’s
report is insufficient to establish any permanent impairment. OWCP procedures provide that
MMI must be reached before a schedule award can be made.10 Dr. Glidden failed to address
whether MMI had been reached and provided no impairment rating for the right lower
extremity.11 His report is therefore insufficient to establish permanent impairment of his right
knee.
It is appellant’s burden of proof to establish a permanent impairment of a scheduled
member.12 The medical evidence must include a description of any physical impairment in
sufficient detail so that the claims examiner and others reviewing the file would be able to clearly
visualize the impairment with its resulting restrictions and limitations.13 Appellant did not
submit such evidence and thus, OWCP properly denied his schedule award claim.14
On appeal, appellant argues that his right knee injury entitles him to a schedule award,
but his physician failed to provide him an MMI date or an impairment rating.15
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 has not met his burden of proof to establish entitlement to
a schedule award for permanent impairment.

10

Supra note 6 at Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).

11

E.D., Docket No. 10-967 (issued January 7, 2011).

12

Supra note 5.

13

See A.L., Docket No. 08-1730 (issued March 16, 2009).

14

V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

15

On appeal, appellant requested an evaluation from a Department of Labor physician. Any requests pertaining
to his treatment should be made in writing to OWCP.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 26, 2016 is affirmed.
Issued: April 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5