United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Austin, TX, Employer
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___________________________________________ )
D.B., Appellant

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

Docket No. 07-983
Issued: February 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 28, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs hearing representative’s January 16, 2007 decision, which affirmed the
termination of his compensation on the grounds that he refused an offer of suitable work.
Pursuant to 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 the Office properly terminated appellant’s compensation effective
June 3, 2006 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
On July 2, 2003 appellant, then a 35-year-old maintenance mechanic, felt pain in his
lower back while he was lifting and installing mailboxes into cemented ground.1 He was
1

The record reflects that appellant has a Veteran’s Administration disability of 100 percent to the right femur.

released to limited duty on July 3, 2003 with restrictions of no repetitive lifting over 30 pounds.
On July 31, 2003 the Office accepted his claim for lumbar strain. On April 27, 2004 the Office
accepted spondylolisthesis and displacement of lumbar intervertebral disc without myelopathy.
Appellant underwent authorized surgery for a herniated nucleus pulpsous at L5-S1 and
spondylolisthesis on April 15, 2004, which was performed by his treating physician,
Dr. Scott Spann, a Board-certified orthopedic surgeon. He received appropriate compensation
benefits.2
On October 13, 2004
maintenance mechanic for six
and lifting of no more than
November 30, 2004; however,
picked up a box at work.

appellant accepted a limited-duty assignment as a modified
hours per day. The position included sitting, standing, reaching
30 pounds. Appellant returned to full-time limited duty on
he sustained a subsequent injury on December 14, 2004 when he

In a February 10, 2005 report, Dr. Anthony Hicks, an occupational medicine specialist
and treating physician, indicated that appellant could occasionally sit-stand or walk and lift up to
10 pounds. On February 16, 2005 Dr. Hicks indicated that appellant could work for eight hours
per day, with restrictions that included no lifting. On March 9, 2005 he advised that appellant
should be “off duty for therapeutic rest.” In reports dated March 14 and April 6, 2005, Dr. Hicks
indicted that appellant was totally disabled beginning March 9, 2005. He checked the box “yes”
in response to whether appellant’s condition was caused or aggravated by an employment injury.
In an April 15, 2005 treatment note, Dr. Hicks also advised that appellant had depression that
was reactive to injury. In a May 10, 2005 report, he opined that appellant could not work
“indefinitely.”
On May 23, 2005 the Office referred appellant to Dr. Clark Race, a Board-certified
orthopedic surgeon, for a second opinion examination. In a June 7, 2005 report, Dr. Race noted
appellant’s history and diagnosed: failed back syndrome status post L5-S1 fusion with chronic
low back pain; neurogenic bladder probably related to the L5-S1 spondylolisthesis and
subsequent surgery; history of chronic back problems preceding the date of injury and chronic
pain syndrome. He conducted a physical examination and determined that appellant had a wellhealed scar, with no superficial tenderness and restricted lumbar range of motion with extension
and flexion of only 10 degrees. Dr. Race opined that the effects of appellant’s work-related
injury had not ceased as he had persistent bladder dysfunction that developed after the work
injury. He advised that the prognosis for recovery was limited in view of appellant’s ongoing
pain symptoms and the fact that he had no appreciable improvement of his back pain since his
surgery. Dr. Race noted that the effects of his work injury had not ceased and would prevent
appellant from returning to work as a maintenance mechanic as he was not able to bend, lift,
stoop or do any other physical activities required of the position. He also indicated that appellant
was taking narcotics, which made driving difficult but opined “if he could be weaned from his
narcotics” that it was “possible that [appellant] could work in a sedentary type of position for two
to four hours per day with frequent breaks to stand up and move around.” Dr. Race noted that a
functional capacity evaluation would be of limited value and opined that it could be utilized to
2

The fusion resulted in appellant having residual bladder dysfunction. On January 26, 2005 appellant underwent
a cystoscopy to rule out bladder outlet obstruction.

2

determine appellant’s sitting tolerance. However, he advised that based upon his clinical
examination, appellant would have an onset of back pain after sitting for more than 30 minutes
and he would not be unable to stand or walk for more than about 10 to 15 minutes at a time.
Dr. Race advised that a trial use of a spinal cord stimulator might help appellant function at a
higher level for a sedentary type of position and, if he demonstrated marked improvement, then
the implantation of a spinal cord stimulator would be a reasonable alternative. In an
accompanying June 7, 2005 work restriction evaluation, Dr. Race advised that appellant could
work two to four hours daily within restrictions.
Dr. Hicks continued to treat appellant and found that he was unable to work. In reports
dated June 15 and July 21, 2005, he indicated that the claimant continued to be totally disabled
for work. In reports date November 15, 2005 and January 9 and 19, 2006, Dr. Hicks indicated
that appellant should be off duly for therapeutic rest.”
By letter dated August 16, 2005, the Office requested an opinion from Dr. Hicks
regarding the recommendation for a trial of a spinal cord stimulator and an opinion as to whether
appellant could return to two to four hours of sedentary work.
On September 8, 2005 Dr. Hicks opined that appellant was “unable to work at all at
present.” He noted that, if better pain control was found, then sedentary duty could be attempted
on a limited basis. Dr. Hicks continued to advise that appellant was unable to work.
On January 31, 2006 the Office referred appellant along with a statement of accepted
facts and the medical record to Dr. Eradio Arredondo, a Board-certified orthopedic surgeon, for
an impartial medical evaluation to resolve a conflict in medical opinion between Dr. Hicks, who
opined that appellant was totally disabled and Dr. Race, the second opinion physician, who
opined that he could work two to four hours a day in a sedentary position.
By letter dated February 6, 2006, the Office paid appellant compensation for total
disability beginning March 14, 2005.
In a March 1, 2006 report, Dr. Arredondo noted appellant’s history of injury and
treatment, which included epidural steroid injections, bladder problems and depression. He
conducted a physical examination and determined that appellant’s gait was normal, there was no
atrophy of muscles, negative straight leg raising (SLR) and no sensory or motor loss of the lower
extremities. Dr. Arredondo diagnosed chronic low back pain with neurogenic bladder residuals.
He opined that “there is an explanation as to why he is still in chronic pain.” Dr. Arredondo
noted that there was “no objective evidence of any serious injury to his dorsal and lumbar spine,
from a second injury as he described it.” He opined that appellant was capable of returning to do
sedentary and light-duty work full time and driving. Dr. Arredondo noted that he would limit
lifting and repetitive bending and stooping to no more than two hours per day. He advised that
appellant could push and pull no more than 50 pounds and lift no more than 20 pounds.
Dr. Arredondo opined that he did not “see that [appellant] has any good reason to be restricted.”
He stated that appellant should not be on habit forming medications.
On March 2, 2006 Dr. Hicks repeated his opinion that appellant was unable to work.

3

On March 23, 2006 the employing establishment provided appellant with a modified job
offer effective that same date, doing mail search, vacuum reader and feeder modules of delivery
automation and equipment and other duties within his limitations to include paperwork and
computer data entry. The position also included opening equipment doors; minor bending,
stooping and twisting to remove lose mail from equipment for less than two hours. Additionally,
appellant would also pull and push a small vacuum of 10 to 15 pounds on wheels to and from
equipment to remove dust, debris and loose mail from equipment. The position also included
completing paperwork and data entry as required. The lifting requirement indicated that
appellant would be lifting less than 50 pounds.
By letter dated March 29, 2006, the Office advised appellant that Dr. Arredondo opined
that he could return to part-time sedentary work and that it had requested that the employing
establishment provide appellant with a modified job offer in accordance with the restrictions
provided by Dr. Arredondo.
On March 31, 2006 appellant informed the Office that he was unable to return to
modified work as he was approved for disability retirement. He also advised the Office that his
doctor would not release him to return to work.
By letter dated April 3, 2006, the Office advised appellant that the modified maintenance
position had been found to be suitable to his capabilities and was currently available. The Office
rated that, Dr. Arrendondo, had examined appellant on March 1, 2006 and provided work
restrictions that were consistent with the offered position. Appellant was advised that he should
accept the position or provide an explanation for refusing the position within 30 days. The
Office informed appellant that if he failed to accept the offered position and failed to
demonstrate that the failure was justified, his compensation would be terminated.
On April 3, 2006 appellant rejected the modified job offer and alleged that he was
approved for disability retirement effective March 10, 2006. He also alleged that his physician
was not releasing him to return to work.
In a letter dated April 4, 2006, the employing establishment advised the Office that
appellant retired on March 10, 2006.
By letter dated May 4, 2006, the Office informed appellant that his reasons for refusing
the position were not acceptable and allowed an additional 15 days for him to accept the
position. Appellant was advised that the weight of the medical evidence rested with
Dr. Arredondo, the impartial medical examiner. He was advised that no further reason for
refusal would be considered. Appellant did not respond.
By decision dated May 23, 2006, the Office terminated appellant’s entitlement to
monetary compensation benefits, effective June 10, 2006, on the basis that he had refused
suitable work. The Office determined that the report of Dr. Arredondo, the impartial medical
examiner, represented the weight of the evidence.
On May 30, 2006 appellant requested a hearing that was held on November 9, 2006. At
the hearing, his representative contended that Dr. Arredondo’s report was insufficient to be the
weight of the medical evidence. He alleged that Dr. Arredondo did not consider all of the factors
4

in appellant’s case, including both his employment and nonemployment-related factors. For
example, the representative alleged that Dr. Arredondo did not explain why appellant was in
chronic pain and that he did not note all of the factors in appellant’s case, including his
service-connected fracture of the right femur, his residual bladder dysfunction, chronic pain
syndrome and psychological condition. He also alleged that Dr. Arredondo did not make an
analysis of the job offer.
In a letter dated December 18, 2006, the employing establishment noted that appellant
did not raise the issue of a possible mental condition and the medical record did not contain any
references other than a brief mention in one of Dr. Hick’s April 2005 treatment notes.
By decision dated January 16, 2007, the Office hearing representative affirmed the
May 23, 2006 decision.
LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits.3 This includes cases in which the Office terminates
compensation under section 8106(c)(2) of the Federal Employees’ Compensation Act for refusal
to accept suitable work.
Section 8106(c)(2)4 of the Act provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation. Section 10.517(a)5 of the Office’s regulations provides that an
employee who refuses or neglects to work after suitable work has been offered or secured for
him or her has the burden to show that this refusal or failure to work was reasonable or justified.
After providing the two notices described in section 10.516,6 the Office will terminate the
employee’s entitlement to further compensation under 5 U.S.C. §§ 8105, 8106 and 8107, as
provided by 5 U.S.C. § 8106(c)(2). However, the employee remains entitled to medical benefits
as provided by 5 U.S.C. § 8103 or justified. To justify termination, the Office must show that
the work offered was suitable7 and must inform appellant of the consequences of refusal to
accept such employment.8 According to Office procedures, certain explanations for refusing an
offer of suitable work are considered acceptable.9 Unacceptable reasons include appellant’s
3

Betty F. Wade, 37 ECAB 556, 565 (1986); Ella M. Garner, 36 ECAB 238, 241 (1984).

4

5 U.S.C. § 8106(c)(2).

5

20 C.F.R. § 10.517(a).

6

Id. at § 10.516.

7

See Carl W. Putzier, 37 ECAB 691 (1986); Herbert R. Oldham, 35 ECAB 339 (1983).

8

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992). See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.5(d)(1)
(July 1996).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.5(a)(1)-(5) (July 1996).

5

preference for the area in which he resides; personal dislike of the position offered or the work
hours scheduled; lack of promotional potential or job security.10
ANALYSIS
In this case, the Office properly found that Dr. Hicks disagreed with an Office referral
physician, Dr. Race, as to whether appellant was totally disabled due to his accepted condition.
The Office properly found a conflict in medical evidence which required a referral to an
impartial medical specialist for resolution. The Act, at 5 U.S.C. § 8123(a), in pertinent part,
provides: “If there is a 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.”
The Office referred appellant to Dr. Arredondo for an impartial medical evaluation to
resolve the conflict in opinion. Dr. Arredondo performed a thorough evaluation of appellant,
which included his preexisting conditions as well as his subsequent bladder control issues and
depression. He provided a reasoned opinion that appellant was capable of working eight hours a
day, in a limited capacity. Dr. Arredondo provided restrictions, for sedentary duty, which
included that appellant could push and pull no more than 50 pounds and lift no more than
20 pounds. He opined that “there is an explanation as to why [appellant] is still in chronic pain.”
The Board notes that Dr. Arredondo advised that there was “no objective evidence of any serious
injury to his dorsal and lumbar spine, from a second injury as he described it.” Furthermore,
Dr. Arredondo indicated that he did not “see that he has any good reason to be restricted.”
When a case is referred to an impartial medical specialist for the purpose of resolving a
conflict in medical opinion, the opinion of such specialist, if sufficiently well rationalized and
based on a proper background, must be given special weight.11 Dr. Arredondo’s opinion is
sufficiently well rationalized and based on a proper factual background such that it represents the
weight of the medical evidence on the issue of appellant’s ability to work and establishes that he
was capable of working eight hours per day in a sedentary position.
Subsequent to the evaluation by Dr. Arredondo, the employing establishment offered
appellant a sedentary position. The position accommodated the work restrictions given by
Dr. Arredondo. The Office reviewed the position and found it to be suitable for appellant.
To properly terminate compensation under section 8106(c), the Office must provide
appellant notice of its finding that an offered position is suitable and give him an opportunity to
accept or provide reasons for declining the position.12 The Office properly followed its
procedural requirements in this case. By letter dated April 3, 2006, the Office advised appellant
that the position was suitable and provided him 30 days to accept the position or provide reasons
for his refusal. The Office further notified appellant that the position remained open, that he
10

Arthur C. Reck, 47 ECAB 339 (1996); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Determining Wage-Earning Capacity, Chapter 2.814.5(c) (July 1996).
11

Kathryn Haggerty, 45 ECAB 383, 389 (1994); Jane B. Roanhaus, 42 ECAB 288 (1990).

12

See Maggie L. Moore, supra note 8.

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would be paid for any difference in pay between the offered position and his date-of-injury job,
that he could still accept without penalty and that a partially disabled employee who refused
suitable work was not entitled to compensation.
On March 31, 2006 appellant refused the position because he had accepted disability
retirement and noted that his doctor did not release him to work.
By letter dated May 4, 2006, the Office properly informed appellant that his reasons for
refusing the offered position were unacceptable and provided him 15 days to accept the position.
Appellant refused to do so and thus the Office properly terminated his wage-loss compensation
for refusal of suitable work. At the time of the termination, the weight of the medical evidence
established that appellant could perform the duties of the offered position.
Appellant’s representative subsequently alleged that the impartial medical examiner did
not consider appellant’s preexisting and subsequently acquired conditions. The Board notes that
the Office must consider preexisting and subsequently acquired conditions in determining the
suitability of an offered position.13 However, as noted, Dr. Arredondo considered appellant’s
preexisting and his subsequently acquired conditions. Furthermore, these were not the reasons,
for which appellant alleged that he was unable to accept the offered position. The Board noted
that appellant did not submit sufficient medical evidence to establish that any other medical
conditions prevented him from performing the sedentary position
An employee who refuses or neglects to work after suitable work has been offered to him
has the burden of showing that such refusal to work was justified.14 In the present case,
appellant has not shown that his refusal to work was justified. The weight of the medical
evidence continues to support that appellant’s accepted conditions did not prevent him from
performing the job he was offered on March 23, 2006. The medical reports received subsequent
to the evaluation by Dr. Arredondo, are insufficient to either overcome his opinion or create a
new conflict in the medical evidence.
Dr. Hicks submitted additional treatment notes, however, he merely repeated his previous
opinion that appellant was unable to work. His opinion was part of the conflict in medical
opinion for which appellant was referred to Dr. Arredondo.15 Dr. Hicks did not provide any
opinion with respect to appellant’s ability to perform the offered position. Dr. Arredondo did not
provide any findings and rationale to support that appellant would have been unable to perform
the limited-duty position during the time period it was offered and available to him.16 Other
13

See Gayle Harris, 52 ECAB 319 (2001).

14

See M.S., 58 ECAB ___ (Docket No. 06-797, issued January 31, 2007).

15

Submitting a report from a physician who was on one side of a medical conflict that an impartial specialist
resolved is, generally, insufficient to overcome the weight accorded to the report of the impartial medical examiner
or to create a new conflict. Jaja K. Asaramo, 55 ECAB 200 (2004).
16

In order to establish causal relationship, a physician’s report must present rationalized medical opinion
evidence, based on a complete factual and medical background; see Kathryn Haggerty, 45 ECAB 383 (1994).
Rationalized medical evidence is evidence which relates a work incident or factors of employment to appellant’s
condition, with stated reasons of a physician; see Gary L. Fowler, 45 ECAB 365 (1994).

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medical reports submitted by appellant did not provide a specific opinion regarding appellant’s
ability to perform the offered position.
Following the termination of his benefits, appellant has not established that the offered
position was outside of his physical recommendations. The Board finds that appellant did not
meet his burden of proof to show that his refusal to accept suitable work was justified.
The Board finds that the Office met its burden of proof in terminating appellant’s
compensation benefits effective June 3, 2006 and that appellant did not, thereafter, establish that
his refusal of suitable work was justified.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation effective June 3, 2006 on the grounds that he refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2007 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: February 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

)
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)
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)

Appearances:
Darrell Dunham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0413
Issued: June 27, 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 December 14, 2016 appellant, through counsel, timely appealed from an August 24,
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 over the merits of appellant’s claim.
ISSUE
The issue is whether appellant has established that her claimed low back, left hip, ankles,
and left leg conditions are causally related to the accepted May 20, 2015 employment incident.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 10, 2015 appellant, then a 32-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on May 20, 2015, she was moving a tray of mail and
turned her whole body, but the tray shifted and she almost fell. She explained that she caught it
and straightened up. Appellant indicated that she sustained a ruptured disc “not applicable” to the
lower back, left hip, knee, ankles, and muscles of the left legs. The employing establishment
checked the box for continuation of pay (COP) not to exceed 45 days and checked the box marked
“yes” in response to whether the injury occurred in the performance of duty. J.H., a coworker,
revealed that he remembered approximately two to three weeks prior that appellant had made a
comment that she felt that her “butt is on fire.” He indicated that he teased her about it by
rewording a popular song titled, “Girl on Fire.” J.H. also noted that she continued to complain
about her pain and commented that it might be sciatica and “it got so bad she could n[o]t walk
anymore.”
OWCP received a June 1, 2015 work excuse, placing appellant off work from June 1
through 5, 2015 and a June 5, 2015 duty status report (Form CA-17) from an individual whose
signature is illegible. The individual described the incident as lifting tubs, parcels, and mail from
equipment to cases and into vehicle, causing pain in the lower back, hips and numbness in right
leg. The diagnosis provided was lumbar radiculopathy and herniated lumbar discs.
In a development letter dated July 2, 2015, OWCP noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal or no lost time from work and appellant’s
claim was administratively handled to allow payment of a limited amount of medical expenses
because the employing establishment did not controvert COP or challenge the merits of the case.
However, appellant’s claim was now being reopened on the merits. OWCP informed her of the
type of evidence needed to support her claim and requested that she submit such evidence within
30 days.
OWCP received July 3, 13, and 23, 2015 notes from nurses and physician assistants.
In a July 13, 2015 report, Dr. Shannon Rider, a Board-certified internist, who noted that
appellant presented with lower back pain radiating down to her legs, and numbness in both feet.
He advised that appellant felt nauseated earlier secondary to pain. Dr. Rider indicated that
appellant related that she had herniated discs at L4-L5 that usually caused her lower back pain and
pain in her left leg. He noted that appellant “denies change in activity that could have triggered
the pain.” Additionally, Dr. Rider advised that appellant saw a neurosurgeon once in the past. He
diagnosed chronic back pain, acute sciatica, and acute lumbar radiculopathy.
By decision dated August 6, 2015, OWCP denied appellant’s claim, finding that she had
not established causal relationship between the diagnosed condition and the accepted May 20,
2015 employment incident. It found that the medical evidence submitted lacked rationale
sufficient to establish causal relationship. OWCP notified appellant that medical treatment was
not authorized and prior authorization, if any, was terminated.
OWCP received nurses’ notes dated June 13, July 13, and August 17, 2015. The nurse’s
intake notes revealed that appellant had a prior history of chronic back pain from a motor vehicle

2

accident in 2010. The nurse noted that the symptoms of pain in the left butt cheek which slowly
progressed to lower back pain radiating down to the left leg into the knee began on May 20, 2015.
In a July 13, 2015 report, Dr. Christian Mannsfeld, Board-certified in emergency medicine,
noted that appellant presented to the emergency room with lower back pain radiating down both
of her legs and both feet were numb. She also felt nauseated earlier secondary to pain. He related
that appellant reported having herniated discs at L4-L5 that usually caused her low back pain and
pain in her left leg. Dr. Mannsfeld determined that her prior history was chronic back pain, asthma,
lumbar herniated disc at L4 and L5, and spinal stenosis at the L4-L5 level. He diagnosed chronic
back pain, acute sciatica and acute lumbar radiculopathy.
On July 1, 2016 counsel requested reconsideration and submitted additional medical
evidence.
In a June 13, 2016 report, Dr. Rider noted that appellant’s history of injury included that
appellant was working on May 20, 2015 when she was carrying a 3 foot wide, 30-pound tray of
mail when her boot caught on a floor mat, which caused her to stumble. In the process of
attempting to prevent the tray from dropping to the floor, appellant pulled her lower back.
Dr. Rider related that she immediately felt an acute burning, radiating pain in her lower left
buttock. He advised that appellant did not work for several days, and when she went back to work,
her condition did not improve. Dr. Rider advised that it worsened. He explained that she saw
appellant on May 29, 2015 and she complained of unrelenting lower back pain that progressively
worsened and she was off work since that date. Dr. Rider related that a magnetic resonance
imaging (MRI) scan had been taken in June 2015 and that it revealed disc disease “completely
consistent with her symptoms.” He opined that “with a reasonable degree of medical certainty,
[appellant’s] pathology in her low back, was caused by and is related to her work accident on
May 20, 2015. It is my opinion, within a reasonable degree of medical certainty, that all medical
treatment since May 20, 2015, to the present and until appellant reaches maximum medical
improvement is related to her work accident of May 20, 2015.”
In a March 25, 2016 report, Dr. Rider advised that appellant was off work since June 6,
2015 due to a work-related injury to her lumbar spine and related that she was currently getting
treatment through pain management and was pending an evaluation by a neurosurgeon for possible
surgical intervention. He advised that he was unable to provide a return to work date due to
pending evaluation.
In a February 5, 2016 operative report, Dr. Amanda Carroll, specializing in obstetrics and
gynecology, performed a laparoscopic-assisted hysterectomy, bilateral salpingectomy, and
cystoscopy.
OWCP also received a preadmission assessment from a nurse, an intraoperative nursing
record, and a post-anesthesia record dated February 5, 2016. It also received laboratory reports
and a note from a physician assistant dated September 4 and 5, 2015.
By decision dated August 24, 2016, OWCP denied modification of its August 6, 2015
decision.

3

LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.7
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.8
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.9
ANALYSIS
The Board finds that the medical evidence of record contains no reasoned explanation of
how the specific employment incident on May 20, 2015 caused or aggravated appellant’s claimed
conditions.10

3

Id.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6
John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s). Id.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

9

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified

4

OWCP received nurses’ notes and physician assistants’ notes dated June 13 to
September 5, 2015. However, these providers are not considered physicians as defined under
FECA.11 Thus, their opinions on causal relationship do not constitute rationalized medical
opinions and have no weight or probative value.12
OWCP also received laboratory reports and a post anesthesia record dated February 5,
September 4 and 5, 2015. Diagnostic studies are of limited probative value as they do not address
whether the employment incident caused any of the diagnosed conditions.13
Appellant submitted several reports from Dr. Rider. They included a July 13, 2015 report,
in which Dr. Rider advised that appellant presented with lower back pain radiating down to her
legs, and numbness in both feet. He indicated that appellant related that she had herniated discs at
L4-L5 that usually caused her lower back pain and pain in her left leg. Dr. Rider noted that
appellant “denies change in activity that could have triggered the pain.” He also noted that
appellant saw a neurosurgeon once in the past. Dr. Rider diagnosed chronic back pain, acute
sciatica, and acute lumbar radiculopathy. However, he merely provided diagnoses and did not
offer any opinion on causal relationship. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.14
In a June 13, 2016 report, Dr. Rider noted that appellant’s history of injury included that
appellant was working on May 20, 2015 when she was carrying a 3 foot wide, 30-pound tray of
mail when her boot caught on a floor mat, which caused her to stumble. The Board notes that the
description of the incident is inconsistent with the description provided by appellant on her
Form CA-1. Appellant noted that the tray of mail shifted and she turned her whole body trying to
catch the shifting tray. It is well established that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.15 Therefore, Dr. Rider’s opinion that the pathology
in her low back was caused by and was related to her work accident on May 20, 2015 is of limited
probative value.
In a March 25, 2016 report, Dr. Rider advised that appellant was off work since June 6,
2015 due to a work-related injury to her lumbar spine. However, as noted, without an accurate
by medical rationale is of little probative value).
11
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23,
2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law).
12

See M.M., Docket No. 16-1851 (issued January 19, 2018); see also Joe T. Williams, 44 ECAB 518, 521 (1993).

13

See J.S., Docket No. 17-1039 (issued October 6, 2017).

14

K.W., supra note 9.

15

Douglas M. McQuaid, 52 ECAB 382 (2001).

5

factual and medical background, along with a rationalized opinion on causal relationship, this
report is of limited probative value.
In a July 13, 2015 report, Dr. Mannsfeld, noted that appellant presented to the emergency
room with lower back pain radiating down both of her legs and both feet were numb and she felt
nauseated earlier secondary to pain. He related that appellant reported having herniated discs at
L4-L5 that usually caused her low back pain and pain in her left leg. Dr. Mannsfeld determined
that her prior history was chronic back pain, asthma, lumbar herniated disc at L4 and L5 and spinal
stenosis at the L4-5 level. He diagnosed chronic back pain, acute sciatica and acute lumbar
radiculopathy. However, this report does not offer any support that the May 20, 2015 incident
caused or aggravated an injury. A medical opinion should reflect a correct history and offer a
medically sound explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed conditions. The report of Dr. Mannsfeld is,
therefore, insufficient for appellant to meet her burden of proof.
In a February 5, 2016 operative report, Dr. Amanda Carroll, specializing in obstetrics and
gynecology, performed a laparoscopic-assisted hysterectomy, bilateral salpingectomy, and
cystoscopy. This report does not offer any opinion that the accepted May 20, 2015 employment
incident caused or aggravated an injury. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.16 These reports, therefore, are insufficient to establish appellant’s
claim.
Because the medical reports submitted do not address how the accepted May 20, 2015
work incident caused or aggravated a low back, left hip, left leg, or ankle condition, these reports
are of limited probative value and are insufficient to establish appellant’s claim.17
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 failed to establish that her claimed low back, left hip, ankles,
and left leg conditions are causally related to the accepted May 20, 2015 employment incident.

16

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
17

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

6

ORDER
IT IS HEREBY ORDERED THAT the August 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 27, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Miami, FL, Employer
__________________________________________

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

Docket No. 07-702
Issued: September 26, 2007

Case Submitted on the Record

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

JURISDICTION
On January 13, 20071 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated January 13, 2006 terminating her compensation
and medical benefits and a nonmerit decision dated May 17, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective November 30, 2004; (2) whether appellant has any
continuing disability and residual due to her accepted employment on or after November 30,
2004; and (3) whether the Office properly denied appellant’s request for reconsideration under
section 10.440 of the governing regulations.

1

Although appellant’s appeal was received in the office of the Clerk of the Board on January 17, 2007, it was
post-marked January 13, 2007, within one year of the January 13, 2006 decision. Therefore, the Board has
jurisdiction to review this decision on appeal. 20 C.F.R. § 501.3(d)(2)(ii).

FACTUAL HISTORY
On May 24, 1999 appellant, then a 26-year-old manual clerk, filed a traumatic injury
claim alleging that on that date she injured her neck and upper back while pushing a general
purpose mail contained. The Office accepted appellant’s claim for single episode of cervical
strain on July 29, 1999. Appellant returned to light-duty work on January 20, 2000 and stopped
work on that date. She was involved in a nonemployment-related motor vehicle accident on
March 7, 2000. In response to the query of maximum injury severity, the police officer stated
“possible.”
On January 5, 2001 the Office proposed to terminate appellant’s compensation benefits
noting that both her physician and a second opinion physician found that she was capable of fullduty work. The Office terminated appellant’s compensation benefits on February 6, 2001.
Appellant requested an oral hearing. By decision dated November 5, 2001, the hearing
representative affirmed the February 6, 2001 termination decision and denied appellant’s claim
for a low back injury sustained at the time of her May 24, 1999 employment injury.
Appellant requested reconsideration on March 10, 2002 and submitted medical evidence.
In a report dated January 8, 2002, Dr. Bruce D. Kohrman, a Board-certified neurologist, noted
that appellant experienced a motor vehicle accident on December 4, 2001 with increased pain
and stiffness in her neck. Appellant underwent a repeat magnetic resonance imaging (MRI) scan
on January 4, 2001, which did not demonstrate any significant difference from her August 2000
MRI scan exhibiting a herniated disc at C5-6. Dr. Kohrman diagnosed chronic cervical sprain
with C5-6 disc herniation. He noted appellant’s employment injury in 1999 and stated that her
first MRI scan was September 2000. Dr. Kohrman opined that appellant’s herniated disc was
probably present from the onset of her symptoms in 1999.
By decision dated May 8, 2002, the Office vacated its prior decisions terminating
appellant’s compensation benefits. It accepted a herniated disc at C5-6. Appellant’s attending
physician, Dr. Carrie Landess, a Board-certified neurologist, examined appellant on May 21,
2003 and found decreased cervical flexion, extension and lateral rotation with moderate pain and
spasm. Dr. Landess diagnosed cervical strain and cervical radiculopathy and recommended
physical therapy. The Office entered appellant on the periodic rolls on July 5, 2002.
The Office referred appellant for a second opinion evaluation with Dr. Kenneth C.
Fischer, a Board-certified neurologist. In a report dated December 15, 2003, Dr. Fischer noted
appellant’s history of injury and medical history. He found that appellant had a history of neck
sprain with no evidence of any residual neurological abnormalities. Dr. Fischer stated that a
MRI scan showed a small herniated disc which was not appropriate for surgical treatment. He
concluded that appellant had no ongoing neurological process and needed no further treatment.
In a letter dated January 6, 2004, the Office made a preliminary finding that appellant had
received an overpayment of compensation in the amount of $5,889.33 due to the Office’s failure
to withhold health benefit premiums.
The Office requested a supplemental report from Dr. Fischer on February 4, 2004. He
responded on February 9, 2004 and stated that appellant’s accepted herniated disc was

2

insignificant. Dr. Fischer stated: “While it might have been precipitated or aggravated by the
[employment injury] the disc has no physiological significance.” He opined that appellant could
return to her full duty as a manual distribution clerk.
On March 25, 2004 the Office requested that Dr. Landess respond to the report of
Dr. Fischer.
By decision dated June 14, 2004, the Office finalized its overpayment decision and found
that appellant was not entitled to waiver. The Office indicated that appellant could appeal this
decision to the Board. Appellant filed an appeal with this Board on August 23, 2004.
In a note dated September 17, 2004, Dr. Landess found decreased cervical flexion,
extension and lateral flexion and rotation with moderate pain and spasms. She noted positive
trigger points in appellant’s neck. Dr. Landess stated that appellant had signs and symptoms of
cervical disc herniation and recommended physical therapy. An MRI scan dated September 28,
2004 revealed disc desiccation and mild disc space narrowing at C5-6 as well as a new
subarticular degenerative marrow signal change. The MRI scan demonstrated a broad-based
posterior slightly more focal left paracentral disc bulge impressing upon the thecal sac and
contracting the anterior surface of the cervical spinal cord.
The Office found a conflict in the medical opinion evidence regarding appellant’s work
capacity and whether her work-related condition had resolved. The Office referred appellant, the
medical records, a list of specific questions and a statement accepted facts for an impartial
medical evaluation with Dr. Benjamin Barnea, a Board-certified physician in both neurology and
psychiatry. The statement of accepted facts indicated that appellant had a motor vehicle accident
on March 7, 2000 and that her injuries were possibly severe.
In Dr. Barnea’s September 30, 2004 report, he noted appellant’s history of injury and
performed a physical evaluation noting that she exhibited guarding in all active movements of
her neck in all directions. He reviewed the statement of accepted facts and medical records and
diagnosed cervical spine disc disease with herniated disc at C5-6, pain disorder and symptom
magnification. Dr. Barnea opined that it was questionable whether appellant’s herniated disc
was due to her accepted employment injury. He stated: “The question of the C5-6 herniation as
related to the alleged industrial accident of May 24, 1999 is questionable. The actual activity
that she describes of pushing the [cart] on wheels and that she acknowledges was not heavy
simply cannot explain the spontaneous presentation of a C5-6 herniation. This leads me to
conclude that her severe motor vehicle accident of March 2000 was a more likely cause of her
neck pathology.” He found that appellant was neurologically fully capable of gainful
employment, that her cervical strain should have resolved itself in a few weeks and that her
work-related dysfunction and complaints ended in July 1999.
In a letter dated October 28, 2004, the Office proposed to terminate appellant’s
compensation and medical benefits. By decision dated November 30, 2004, the Office
terminated appellant’s compensation and medical benefits finding that the report of Dr. Barnea
was entitled to the weight of the medical opinion evidence and established that appellant was no
longer disabled for work and did not require further medical treatment due to her May 24, 1999
employment injury.

3

Appellant objected to the proposed termination of compensation in a letter dated
November 26, 2004 and received by the Office on December 6, 2004. She objected to the
characterization of her motor vehicle accident as serious noting that she merely bumped her head
on the visor. Appellant disagreed with the reports from Dr. Fischer and Dr. Barnea. She
requested an oral hearing on December 14, 2004.
The Board
February 17, 2005.2
April 25, 2005.

affirmed the Office’s June 14, 2004 overpayment decision on
Appellant requested reconsideration of the Board’s decision on

On September 19, 2005 the Branch of Hearings and Review scheduled appellant’s oral
hearing for October 24, 2005. On November 2, 2005 the hearing representative informed
appellant that as her oral hearing was cancelled due to a hurricane. Appellant could either wait
for the oral hearing to be rescheduled or request either a review of the written record or a
telephonic hearing. She requested a review of the written record on November 28, 2005 and
submitted an additional statement. Appellant alleged that she was not provided with 30 days to
submit her response to the proposed termination of compensation. She noted that a letter mailed
to London, Kentucky from Miami, Florida could take between five to seven days to arrive.
Appellant argued that she was not in fact pushing a GPMC, weighing between 230 to 1,200
pounds, as noted on her claim form, but was pushing an eastern regional mail container which
weighed between 209 and 1,200 pounds. She stated that she was not pushing an empty
container, that she had to load the container with 40-pound trays of mail including parcels and
magazines and that she had to push the container through the facility on a twisting bumpy path.
She denied that she had a serious motor vehicle accident noting that she struck her head on the
visor with no abrasions and minor dizziness. Appellant objected to the intrusive nature of
Dr. Barnea’s examination.
By decision dated January 13, 2006, the hearing representative affirmed the Office’s
November 30, 2004 decision and found that appellant had no continuing residuals of her
accepted employment injury.
In a decision dated May 17, 2006, the Office denied appellant’s request for
reconsideration of the Board’s February 17, 2005 overpayment decision. The Office stated that
final overpayment decisions were not subject to reconsideration requests.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.4 The
Office’s burden of proof in termination compensation includes the necessity of furnishing
2

Docket No. 04-2090 (issued February 17, 2005).

3

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement of
disability. To terminate authorization for medical treatment, the Office must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.6
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on proper factual and medical background must be given special weight.7
ANALYSIS -- ISSUE 1
The Office terminated appellant’s compensation benefits based on the findings of
Dr. Barnea, a Board-certified psychiatrist and neurologist, selected by the Office to resolve the
conflict of medical opinion evidence between her attending physician, Dr. Landess, a Boardcertified neurologist, and Dr. Fischer, a Board-certified neurologist and Office referral physician.
The Office stated that it found a conflict of medical opinion between these physicians regarding
appellant’s work capacity and whether her work-related condition had resolved. Dr. Landess
indicated that appellant had a continuing cervical disc herniation which required additional
physical therapy, while Dr. Fischer indicated that appellant required no further medical treatment
due to her employment injuries including the cervical disc herniation and could return to full
duty.
The Board finds that Dr. Barnea’s report is not sufficient to resolve the existing conflict
of medical opinion evidence. In his September 30, 2004 report, Dr. Barnea noted appellant’s
history of injury as well as her medical treatment. He found her past medical history was
significant for reported head trauma in a motor vehicle accident which occurred in March 2000.
Dr. Barnea found that appellant had a normal motor examination but noted guarding in active
movements of the neck in all directions. He diagnosed cervical spine disc disease with herniated
disc at C5-6, paid disorder and symptom magnification. Dr. Barnea noted that appellant’s initial
MRI scan in September 2000 showed only a small herniation while repeat examinations in 2001
and 2002 showed a larger herniation. He stated, “The question of the C5-6 herniation as related
to the alleged industrial accident of May 24, 1999 is questionable. The actual activity that she
describes of pushing the [cart] on wheels and that she acknowledges was not heavy simply
cannot explain the spontaneous presentation of a C5-6 herniation. This leads me to conclude that
her severe motor vehicle accident of March 2000 was a more likely cause of her neck
pathology.” Dr. Barnea’s conclusion is couched in speculative terms, noting that the severe
motor vehicle accident of March 2000 was a “more likely” cause of her neck pathology.
Dr. Barnea did not submit adequate medical reasoning for his conclusion that appellant’s neck
condition was due to the motor vehicle accident rather than to the accepted employment injury.
He failed to explain why pushing a cart would not be competent to result in a cervical disc
5

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

6

Mary A. Lowe, supra note 4.

7

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

5

herniation. The Board has held that opinions such as the condition was “probably” related,
“most likely” related or “could be” related are speculative and diminish the probative value of
the medical opinion evidence. The opinion regarding causal relationship does not have to reduce
the cause or etiology of a disease or condition to an absolute certainty, but the opinion must be
one of reasonable medical certainty regarding the relationship of the condition to the
employment and must be supported with affirmative evidence explained by medical rationale
and based upon a complete and accurate factual and medical background.8 Dr. Barnea couched
his opinion in speculative terms as to how appellant’s herniated disc occurred. His opinion is not
of reasonable medical certainty. The Board finds that Dr. Barnea’s report is not sufficient to
meet the Office’s burden of proof to terminate appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
Section 10.440(b) of the Office’s regulations provides that “[t]he only review of a final
decision concerning an overpayment is to the Employees’ Compensation Appeals Board. The
provisions of 5 U.S.C. § 8124(b) (concerning hearings) and 5 U.S.C. § 8128 (concerning
reconsiderations) do not apply to such a decision.”9 The Board has found that the
implementation of this regulation is a proper exercise of the director’s discretion and that a
claimant has no further right to review by the Office once a final decision on the issue of
overpayment has been issued.10
ANALYSIS -- ISSUE 2
In the June 14, 2004 final overpayment decision, the Office properly informed appellant
that she had the right to appeal to the Board. Appellant followed this appeal right and the Board
reviewed the overpayment decision on February 17, 2005 affirming the findings of the Office.
She then requested reconsideration of the overpayment decision before the Office on
April 25, 2005. By decision dated May 17, 2006, the Office informed appellant that she was not
entitled to request reconsideration of a final overpayment decision. The Board finds that
appellant has pursued all her appeal rights in regard to the final overpayment decision and has no
further recourse in regard to this issue.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits.11 The Board further finds that the Office properly denied appellant’s
request for reconsideration from the Office following review of an Office final decision of
overpayment by the Board.

8

Kathy A. Kelley, 55 ECAB 206, 211-12 (2004).

9

20 C.F.R. § 10.440(b).

10

Charles E. Nance, 54 ECAB 447, 453 (2003).

11

In view of the Board’s disposition of the first issue, the second issue is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the January 13, 2006 decision of the Office of
Workers’ Compensation Programs is reversed. The May 17, 2006 decision of the Office is
affirmed.
Issued: September 26, 2007
Washington, DC

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

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

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

7


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

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

Docket No. 15-1151
Issued: January 27, 2016

Case Submitted on the Record

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

JURISDICTION
On April 27, 2015 appellant filed a timely appeal from the April 14, 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 merits of this case.
ISSUE
The issue is whether appellant sustained more than nine percent permanent impairment of
his left upper extremity, for which he previously received schedule awards.
FACTUAL HISTORY
On August 10, 2004 appellant, then a 40-year-old motor vehicle operator, filed a
traumatic injury claim alleging that on August 5, 2004, while pushing a container onto a vehicle,
he suffered from shoulder pain and a stiff neck. On September 15, 2004 OWCP accepted his
claim for cervical strain and left shoulder impingement syndrome. Appellant received
1

5 U.S.C. § 8101 et seq.

continuation of pay from August 5 to September 19, 2004 and returned to full duty on
September 24, 2004.
Appellant submitted a February 27, 2013 impairment determination wherein Dr. Cheng
Lee, a chiropractor, assessed appellant with five percent whole person impairment due to clinical
evidence of intervertebral disc herniations (at C3-C4, C4-C5, and C5-C6, and C6-C7). He noted
that appellant presented without signs of radiculopathy at that time, but had nonuniform loss of
motion segment integrity. Appellant also concluded that appellant had zero percent upper
extremity impairment according to the American Medical Association, Guides to the Evaluation
of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).2
On March 25, 2013 appellant filed a claim for a schedule award.
On April 8, 2013 OWCP referred appellant’s case, along with Dr. Lee’s report, to an
OWCP medical adviser to assess the date of maximum medical improvement, functional loss of
use, and percentage of impairment of an injured member in accordance with the A.M.A., Guides.
In response, the medical adviser noted that while Dr. Lee’s assessment of whole person
impairment for the cervical spine may be a correct evaluation, FECA does not allow a schedule
award for the spine nor for the whole person, and that therefore a diagnosed injury originating in
the spine may be considered only to the extent that it results in permanent impairment of the
extremities. He noted that spinal nerve injury is best determined using The Guides Newsletter
July/August 2009.3 The medical adviser recommended referral for a second opinion evaluation.
On May 31, 2013 OWCP referred appellant to Dr. Zvi Kalisky, a Board-certified
physiatrist, for a second opinion evaluation. On June 18, 2013 it also referred appellant to
Dr. Goran A. Jezic, also a Board-certified physiatrist, for an additional second opinion
examination.
In a June 18, 2013 report, Dr. Jezic determined that there was electrodiagnostic evidence
of mild median sensorimotor mononeuropathy at both wrists, demyelinating only, right slightly
more pronounced than left, consistent with the clinical diagnosis of carpal tunnel syndrome. He
noted that otherwise normal electrodiagnostic evaluation of the upper extremities and cervical
paraspinal muscles.
In a June 17, 2013 report, Dr. Kalisky reviewed the results of his physical examination
and the medical evidence, including the tests done by Dr. Jezic. He listed impressions of left
shoulder sprain/strain with impingement syndrome and cervical sprain/strain with chronic neck
pain and no objective physical or electrodiagnostic findings of radiculopathy. Dr. Kalisky listed
the date of maximum medical improvement as February 27, 2013, the date of his impairment
rating evaluation with Dr. Lee. He noted that, based on appellant’s loss of range of motion in his
left shoulder, per Table 15-34, of the A.M.A., Guides4 appellant had three percent upper
extremity impairment for flexion, three percent upper extremity impairment for abduction, and
two percent for internal rotation with a total of eight percent upper extremity impairment.
2

A.M.A., Guides 564, Table 17-2.

3

The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009).

4

A.M.A., Guides 475.

2

Dr. Kalisky noted the other motions were normal. He then applied a grade modifier of 2
pursuant to Table 15-35 and noted that since appellant’s functional history assessment is one unit
higher than his grade of motion grade modifier, per Table 15-36 his range of motion impairment
must be increased by a factor of 5 percent (to 8.4 percent), which is rounded to an 8 percent
upper extremity impairment for his left shoulder.5 With regard to his cervical spine, Dr. Kalisky
utilized Table 1 of The Guides Newsletter, and noted that given the fact that there are no
objective physical or electrodiagnostic findings of radiculopathy identified on his evaluation, the
claimant belonged in class 0 for nerve root impairments at C5, C6, C7, C8, and T1 which gives
him zero percent impairment for the right upper extremity and zero percent impairment for the
left upper extremity. Then, he noted that combining the eight percent upper extremity
impairment of the left shoulder with zero percent upper extremity impairment for left cervical
radiculopathy, totaled eight percent upper extremity impairment for the left upper extremity and
zero percent impairment for the right upper extremity.
On August 7, 2013 OWCP referred the case to a new OWCP medical adviser for an
impairment evaluation. In an August 22, 2013 report, the new OWCP medical adviser utilized
the findings in Dr. Kalisky’s report, applied the shoulder regional grid from Table 15-5 for left
diagnostic key factor strain/sprain,6 and noted range of motion findings on Table 15-34 as
follows: three percent impairment for 110 degrees of flexion, zero percent impairment for 60
degrees of extension, three percent impairment for 110 degrees of abduction, zero percent
impairment for 50 degrees of adduction, two percent impairment for 60 degrees of internal
rotation, and zero percent impairment for 90 degrees of external rotation.7 He added these
figures and determined that this yielded eight percent impairment for the left upper extremity.
The medical adviser listed range of motion adjustment for functional history pursuant to Table
15-35 and Table 15-36,8 noting range of motion grade modifier of 1, a functional history
adjustment QuickDASH compatible with functional history grade 2, for a functional history
grade adjustment of 1 (2-1 = 1 higher). He then noted the adjustment as 5 percent of 8 percent
equaled 0.4 percent, or no movement. The medical adviser concluded that the final impairment
figure was for eight percent impairment of the left upper extremity.
On August 7, 2013 OWCP asked its medical adviser to revisit the award considering the
one percent schedule award of the left upper extremity in appellant’s case number xxxxxx939.
In an October 18, 2013 addendum, the medical adviser, noted that he reviewed the previous
schedule award, that appellant had one percent impairment for left upper extremity based on left
middle finger tenosynovitis and eight percent impairment for range of motion deficit, and that
when these figures are combined, appellant has nine percent impairment of the left upper
extremity.
On September 18, 2013 appellant filed another claim for a schedule award.

5

Id. at 477.

6

Id. at 401.

7

Id. at 475.

8

Supra note 5.

3

On November 8, 2013 OWCP issued a schedule award for eight percent impairment of
the left upper extremity. It noted that appellant had previously received a schedule award for one
percent impairment of left upper extremity based on an injury to his middle finger under OWCP
case number xxxxxx939.
On July 18, 2014 appellant filed a claim for an additional schedule award.
On February 2, 2015 OWCP referred appellant to Dr. David Poindexter, a Board-certified
physiatrist, for a second opinion. Dr. Poindexter examined appellant on February 17, 2015 and
diagnosed cervical spine sprain/strain and left shoulder sprain/strain. He agreed with the prior
assessment that appellant reached maximum medical improvement on February 27, 2013.
Utilizing Table 15-34 of the A.M.A., Guides (6th ed. 2009), Dr. Poindexter noted that appellant
had 130 degrees of flexion which equaled three percent upper extremity impairment, extension
of 55 degrees which equaled zero percent upper extremity impairment, abduction of 110 degrees
which equaled three percent upper extremity impairment, adduction of 50 degrees which equaled
zero percent impairment upper extremity impairment, internal rotation of 50 degrees which
equaled two percent upper extremity impairment and external rotation of 80 degrees which
equaled zero percent upper extremity impairment.9
Adding these figures together, Dr. Poindexter determined that appellant had an eight
percent impairment of the left upper extremity. He noted a grade 1 modifier for range of
motion10 and a functional history adjustment of grade 1,11 and determined that this yielded no
modification of the impairment rating. Dr. Poindexter further discussed appellant’s cervical
spine sprain/strain. He found no evidence of objective radiculopathy with sensation and noted
that motor testing was normal in bilateral upper extremities from C5 through C8 nerve
distribution. Dr. Poindexter determined that under FECA and The Guides Newsletter,
July/August 2009, appellant would receive zero percent left and right upper extremity
impairment rating for his cervical strain/sprain.
On April 3, 2015 OWCP referred the case to an OWCP medical adviser. In an April 9,
2015 response, the medical adviser noted that Dr. Poindexter properly observed that FECA does
not allow a schedule award for the spine, and therefore, a diagnosed injury originating in the
spine may be considered only to the extent that it results in permanent impairment of the
extremities, generally manifest as spinal nerve impairment. He noted that spinal nerve
impairment is best described in The Guides Newsletter, and Dr. Poindexter determined no ratable
impairment of spinal nerve as the sensory and motor examinations for spinal nerves C7 through
C8 were intact in both upper extremities. The medical adviser also recommended a permanent
impairment of the left upper extremity of eight percent based on appellant’s injury to his left
shoulder, agreeing with Dr. Poindexter’s calculations. He found that appellant had already
received a prior award of nine percent of the left upper extremity, and that therefore, no further
award was due at this time.

9

Id. at 475, Table 15-34.

10

Id. at 477, Table 15-35.

11

Id. at Table 15-36.

4

On April 14, 2015 OWCP denied appellant’s claim for an additional schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA12 and its implementing regulations13 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
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 insure equal justice under the law to all claimants, good administrative practice
necessitates the use of single set of tables so that here may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.14 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.15
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Evidence (GMPE) and Clinical Studies (GMCS).16 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).17
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.18 A
schedule award is not payable for the loss, or loss of use, of a part of the body that is not
specifically enumerated under FECA.19
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.20
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
12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

14

Id.

15

See A.A., Docket No. 15-898 (issued July 28, 2015).

16

A.M.A., Guides 494-531.

17

Id. at 521.

18

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

19

M.P., Docket No. 14-777 (issued July 18, 2014).

20

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

5

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Impairment Using the Sixth Edition (July/August 2009) is to be
applied.21 The Board has long recognized the discretion of OWCP to adopt and utilize various
editions of the A.M.A., Guides for assessing permanent impairment.22 In particular, the Board
has recognized the adoption of this methodology for rating extremity impairment, including the
use of The Guides Newsletter, as proper in order to provide a uniform standard applicable to each
claimant for a schedule award for extremity impairment originating in the spine.23
After obtaining all necessary medical evidence, the file should be routed to an OWCP
medical adviser for a rationalized opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides.24
ANALYSIS
OWCP accepted appellant’s claim for cervical strain and left shoulder impingement
syndrome. It previously issued schedule awards totaling nine percent for permanent impairment
of appellant’s left upper extremity. Appellant requested an increased schedule award. The
Board has evaluated the evidence, and finds that appellant has not established impairment greater
than that for which he was previously awarded.
The Board notes that OWCP properly issued a schedule award for eight percent
impairment on November 8, 2013, which when added to appellant’s previous award of one
percent permanent impairment, resulted in a total award of nine percent permanent impairment
of the left upper extremity.
Dr. Lee assessed appellant with five percent whole person impairment.25 However, as
properly noted by the first OWCP medical adviser, FECA does not authorize the payment of
schedule awards for the permanent impairment of the whole person.26 OWCP referred appellant
for second opinions, and Dr. Kalisky, after reviewing Dr. Jezic’s diagnostic tests, determined that
appellant had eight percent impairment of the left upper extremity based on loss of motion in the
left shoulder. OWCP referred the case to an OWCP medical adviser, who agreed with
Dr. Kalisky’s calculations.
21

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, n.5 (January 2010).
22

D.S., Docket No. 14-12 (issued March 18, 2014).

23

R.L., Docket No. 14-1479 (issued October 28, 2014); see also E.D., Docket No. 13-2024 (issued April 24,
2014); D.S., Docket No. 13-2011 (issued February 18, 2014).
24

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (February 2013). See also B.F., Docket No. 15-826 (issued November 5, 2015).
25

The Board has held that, as a chiropractor may only qualify as a physician in the diagnosis and treatment of
spinal subluxation, his or her opinion is not considered competent medical evidence in evaluation of other disorders,
including those of the extremities, although these disorders may originate in the spine. As the chiropractor is not an
extremity expert and there is no schedule award for the spine, a chiropractor’s opinion in evaluating an extremity
award case is of no probative medical value. See N.B., Docket No. 15-1390 (issued November 6, 2015).
26

Y.M., Docket No. 13-1626 (issued November 13, 2013).

6

Applying Table 15-34 of the A.M.A., Guides, these physicians properly noted that
appellant had three percent impairment based on 110 degrees of flexion, three percent
impairment based on 110 degrees of abduction, and two percent impairment due to 60 degrees of
internal rotation, which yielded eight percent impairment of the left upper extremity.27 After
making the appropriate adjustments pursuant to Table 15-35 and Table 15-36 of the A.M.A.,
Guides, Dr. Kalisky and OWCP’s medical adviser noted that appellant’s impairment rating
would be adjusted and rounded to eight percent and therefore yielded no greater impairment.28
The medical adviser then reviewed the record and noted that appellant had previously received a
one percent permanent impairment award for left upper extremity due to left middle finger
tenosynovitis. He therefore concluded that appellant had a total permanent impairment of the
left upper extremity of nine percent.
The Board notes that none of the medical evidence submitted after the November 8, 2013
determination established that appellant had greater than nine percent permanent impairment of
his left upper extremity. Dr. Poindexter examined appellant on February 17, 2015, and properly
noted that, pursuant to Table 15-34 of the A.M.A., Guides, appellant had three percent
impairment of his left upper extremity due to 130 degrees flexion, three percent impairment
based on 110 degrees of abduction, and two percent impairment based on internal rotation of 50
degrees, which equaled a total impairment of the left upper extremity based on his shoulder
injury of eight percent.29 He noted no impairment based on extension, adduction, and external
rotation.30 Since appellant’s range of motion and functional history grade modifier adjustments
were both the same grade modifier of 1, no modification of his impairment was needed.31 The
medical adviser also agreed with these calculations. Further, he properly agreed with
Dr. Poindexter’s conclusion that there was no impairment based on appellant’s cervical strain.
FECA does not allow a schedule award for the spine, and a diagnosed injury originating in the
spine may be considered only to the extent that it results in a permanent impairment of the
extremities, generally manifesting itself as spinal nerve impairment, which is described in The
Guides Newsletter. Both the medical adviser and Dr. Poindexter properly determined that there
was no ratable impairment of the spinal nerve as the sensory and motor examinations for spinal
nerves C7 through C8 were intact in both extremities.
The Board finds that Dr. Poindexter and OWCP medical adviser properly applied the
A.M.A., Guides and determined that appellant had nine percent permanent impairment of his left
upper extremity. Appellant has previously received a schedule award in this amount. Thus, the
medical evidence does not establish that appellant is entitled to an additional schedule award.32

27

Supra note 4 at 476.

28

Id. at 477.

29

Id.

30

Supra note 9.

31

Id. at 477, Table 15-35, Table 15-36.

32

See E.W., Docket No. 14-1977 (issued June 26, 2015).

7

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 sustained greater than nine percent impairment of
his left upper extremity, for which he previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2015 is affirmed.33
Issued: January 27, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

33

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY CENTER, Oakland, CA, Employer
__________________________________________

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

Docket No. 13-1236
Issued: November 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 23, 2013 appellant filed a timely appeal of a March 20, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP), finding that appellant’s request for
reconsideration was untimely and failed to show clear evidence of error. 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 March 20, 2013 decision. The Board does not have jurisdiction over a
decision on the merits of the claim.2
ISSUE
The issue is whether OWCP properly determined 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 was an OWCP decision dated January 12, 2012 finding appellant was entitled to a
schedule award for a 40 percent binaural hearing loss. A claimant has 180 days to file an appeal with the Board for
OWCP decisions issued on or after November 19, 2008. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On February 18, 2010 appellant, then a 67-year-old retired mason, filed an occupational
claim (Form CA-2) alleging that he sustained hearing loss as a result of his federal employment.
He indicated that he first became aware of an employment-related hearing loss in February 1983.
OWCP referred appellant for a second opinion examination by Dr. Barry Baron, a Boardcertified otolaryngologist.
In a report dated August 8, 2010, Dr. Baron opined that appellant had bilateral
sensorineural hearing loss causally related to noise exposure in federal employment. On
August 16, 2010 OWCP accepted bilateral sensorineural hearing loss and bilateral tinnitus. In a
report dated July 27, 2011, an OWCP medical adviser opined that appellant had a 40 percent
binaural hearing loss based on a July 27, 2010 audiogram performed for Dr. Baron. The medical
adviser noted that appellant had not worked at the employing establishment since 1991, and he
requested additional employing establishment audiograms but none were available.3
By decision dated January 12, 2012, OWCP issued a schedule award for a 40 percent
binaural hearing loss. The period of the award was 80 weeks from July 27, 2010.
In a letter dated August 27, 2012, addressed to both OWCP and appellant’s congressional
representative, appellant indicated that he was requesting copies of all medical records from his
federal employment. Appellant stated that the date of injury was reported as February 1, 1983,
but he had only been compensated from July 27, 2010. He stated that he was in the process of
filing a reconsideration request to be compensated from “the date in which the current award was
issued.”
In a letter dated January 25, 2013 and received by OWCP on February 11, 2013,
appellant requested reconsideration of his claim. He stated that hearing loss was first detected in
employing establishment physical examinations in the 1980’s and he had made several
unsuccessful attempts to get these records.
By decision dated March 20, 2013, OWCP denied the reconsideration request on the
grounds it was untimely filed and failed to show clear evidence of error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.4 The
employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”5

3

The record does contain audiograms dated November 15, 1982, August 18, 1983, June 19, 1984, July 24, 1985
and June 27, 1986.
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.605.

2

According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.6 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.7 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.8 As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought. OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise and explicit and must manifest on its face that OWCP
committed an error.9
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.10 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.11 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.12 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.13
ANALYSIS
In the present case, OWCP issued a schedule award decision dated January 12, 2012. By
letter dated August 27, 2012, appellant indicated that he was seeking additional medical reports
from the employing establishment during the period he worked, and he intended to file a
reconsideration request. He did not, however, request reconsideration until a letter received by

6

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

7

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
8

5 U.S.C. §§ 8101-8193.

9

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

10

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

11

Jimmy L. Day, 48 ECAB 652 (1997).

12

Id.

13

Thankamma Mathews, 44 ECAB 765 (1993).

3

OWCP on February 11, 2013.14 Since this is more than one year after the January 12, 2012
decision, it is untimely filed.15
As an untimely reconsideration request, the issue is whether appellant has demonstrated
clear evidence of error. In his January 25, 2013 letter, appellant did not provide a specific
argument as to error on the January 12, 2012 OWCP decision. He noted only that he was
seeking employing establishment medical reports from the 1980’s with respect to hearing loss.
To the extent that appellant is arguing that the period of schedule award did not reflect the period
of his actual hearing loss, there was no clear evidence of error. It is well established that a
schedule award begins at the date of maximum medical improvement.16 The medical evidence
determines the date of maximum medical improvement and the degree of impairment,17 and the
number of weeks of compensation is determined by 5 U.S.C. § 8107(c). Complete binaural
hearing loss is 200 weeks of compensation, and appellant was paid 80 weeks (40 percent of 200)
from July 27, 2010, the date of the most recent audiogram.
The evidence is not sufficient to raise a substantial question as to the correctness of
OWCP’s decision. As appellant did not establish clear evidence of error, OWCP properly denied
merit review.
On appeal, appellant indicated that he was submitting medical evidence that documented
his hearing loss, stating that it shows his hearing loss began in 1982. The Board notes that the
medical evidence submitted appeared to be copies of the employing establishment audiograms
previously of record. To the extent that any new evidence was submitted, the Board cannot review
new evidence on appeal.18 As noted above, the period of the schedule award is not determined by
the date an impairment began, but by the date of maximum medical improvement. If appellant
believes his employment-related hearing loss has worsened, he may at any time seek an increased
schedule award based on new and relevant medical evidence.
CONCLUSION
The Board finds that appellant’s application for reconsideration was untimely and failed
to show clear evidence of error.
14

According to 20 C.F.R. § 10.607, the application for reconsideration must be received within one year of
OWCP’s decision. OWCP procedures provide that, for decisions after August 28, 2011, the date received is the
received date in the Integrated Federal Employees’ Compensation System (iFECS). Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).
15

While a claimant may at any time seek an increased schedule award based on new and relevant evidence
regarding a worsening of his condition, (see Linda T. Brown, 51 ECAB 115 (1999)), in this case appellant did not
submit evidence as to a current impairment but sought reconsideration of the January 12, 2012 OWCP decision.
16

Adela Hernandez-Piris, 35 ECAB 839 (1984); James T. Rogers, 33 ECAB 347 (1981).

17

Under FECA the degree of permanent impairment is determined by application of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.
18

20 C.F.R. § 501.2(c)(1) provides the Board’s review of a case is limited to evidence that was before OWCP at
the time of its final decision.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 20, 2013 is affirmed.
Issued: November 6, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dayton, OH, Employer
__________________________________________

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

Docket No. 10-998
Issued: November 30, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2010 appellant, through his attorney, filed a timely appeal from
September 2, 2009 and February 1, 2010 decisions of the Office of Workers’ Compensation
Programs denying his claim for continuation of pay. Pursuant to 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 is entitled to continuation of pay for his October 22, 2007
employment injury.
On appeal, appellant contends that the Office decisions are contrary to fact and law.
FACTUAL HISTORY
On March 11, 2008 appellant, then a 46-year-old materials handler, filed a traumatic
injury claim (Form CA-1) alleging that he injured his right shoulder while moving and flipping a
table right-side up at work on October 22, 2007. The claim form had a note from the employing
establishment that stated, “Do not count as late; CA-1 [form] was originally filed in employee

health file.” The employing establishment controverted appellant’s claim for continuation of pay
on the grounds that he failed to submit a CA-1 form claim within 30 days of the October 22,
2007 injury, as required. On March 19, 2009 the Office accepted his claim for a right shoulder
and upper arm sprain. On August 27, 2009 it expanded the acceptance of his claim to include a
right shoulder rotator cuff tear.
By decision dated September 2, 2009, the Office denied appellant’s claim for
continuation of pay, finding that he failed to submit a written claim within 30 days of his
October 22, 2007 employment injury.
Appellant requested a hearing before an Office hearing representative that was held on
December 10, 2009. He testified that he did not complete a CA-1 form. Appellant stated that,
after his work injury, he was sent to the occupational health clinic by Pearl Hawkins, his fill-in
supervisor. The clinic had him fill out some paperwork that “might have been a CA-1” form.
Appellant’s union representative, Ray Delawder, Jr., testified that the CA-1 form claim had to be
generated by employee health and forwarded to the supervisor. Appellant understood that the
injury form was to be forwarded and completed by his supervisor. Appellant’s attorney advised
that appellant did not know whether the clinic initiated the claim form process at the time of the
injury. Appellant later learned that the employing establishment did not forward the paperwork
to his supervisor, Elaine Aniton. Initially, Ms. Aniton refused to fill out the injury form because
he was on vacation at the time, but completed it after the chief of service intervened. Appellant
testified that the reason for his untimely filing was the uncooperative nature of the employing
establishment.
In a letter to the Office dated January 8, 2010, the employing establishment contended
that appellant “could have been assisted, if he wanted to file a claim” at the time of the
employment injury on October 22, 2007. After appellant contacted the employing establishment
in January 2008 concerning the October 22, 2007 work injury, it reviewed the incomplete CA-1
form in its Automated Safety Information Surveillance Tracking System (ASISTS) and the
injury report that was initiated by the clinic. The employing establishment noted that it gave him
a copy of the CA-1 form for completion and it was signed by appellant and his supervisor on
March 11, 2008.
By decision dated February 1, 2010, an Office hearing representative affirmed the
September 2, 2009 decision denying continuation of pay for appellant’s October 22, 2007
employing injury as untimely filed.
LEGAL PRECEDENT
Section 8118 of the Federal Employees’ Compensation Act1 provides for payment of
continuation of pay, not to exceed 45 days, to an employee who has filed a claim for a period of
wage loss due to traumatic injury with her immediate supervisor on a form approved by the
Secretary of Labor within the time specified in section 8122(a)(2) of this title. Section
8122(a)(2) provides that written notice of injury must be given as specified in section 8119. The

1

5 U.S.C. §§ 8101-8193, 5 U.S.C. § 8118.

2

latter section provides in part that notice of injury shall be given in writing within 30 days after
the injury.2
Claims that are timely under section 8122 are not necessarily timely under section
8118(a). The Act authorizes continuation of pay for an employee who has filed a valid claim for
traumatic injury.3 Section 8118(a) makes continuation of pay contingent on the filing of a
written claim within 30 days of the injury. When an injured employee makes no written claim
for a period of wage loss within 30 days, he or she is not entitled to continuation of pay,
notwithstanding prompt notice of injury.4
Office regulations provide, in pertinent part, that to be eligible for continuation of pay, an
employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time due to the need for medical examination and treatment; (2) file a
CA-1 form within 30 days of the date of the injury; and (3) begin losing time from work due to
the traumatic injury within 45 days of the injury.5
ANALYSIS
On March 11, 2008 appellant filed a claim for an October 22, 2007 traumatic injury.
Because he did not file a claim within 30 days from the date of injury, the time specified in
section 8118(a) and 8122(a)(2) of the Act,6 he is not entitled to continuation of pay.
When an injured employee makes no written claim for a period of wage loss within
30 days, he is not entitled to continuation of pay, notwithstanding prompt notice of injury. The
record shows that appellant provided notice of injury to his acting supervisor on October 22,
2007, but this oral notice is not determinative of whether he is entitled to continuation of pay
under section 8118(a).7
Appellant argued that his untimely filing was due to the uncooperative nature of the
employing establishment, as it did not forward a CA-1 claim form to his supervisor. He noted
that he filled out paperwork at the employer’s health unit that might have been a CA-1 form. In
the case of William E. Ostertag,8 the Board explained that the exceptional circumstances
provision of section 8122(d)(3), which may excuse the untimely filing of an original claim for
compensation under section 8122(a) and (b), is not applicable to section 8118(a) which concerns
a claim for continuation of pay. Because the Act makes no provision for an exception to the time
limitation in section 8118(a), no exceptional or mitigating circumstance, including error by the
2

Id. at § 8119(a), (c).

3

Id. at § 8118(a).

4

P.R., 60 ECAB ___ (Docket No. 08-2239, issued June 2, 2009); W.W., 59 ECAB 533 (2008).

5

20 C.F.R. § 10.205(a)(1-3).

6

5 U.S.C. §§ 8118(a), 8122(a)(2).

7

J.M., 61 ECAB ___ (Docket No. 09-1563, issued February 26, 2010).

8

33 ECAB 1925, 1932 (1982).

3

employing establishment, can entitle a claimant to continuation of pay who has not filed a
written claim within 30 days of the date of injury.9 Appellant did not submit written notice of
injury on an approved form until March 11, 2008, more than 30 days after the October 22, 2007
employment injury, when he submitted a CA-1 form.10 Therefore, he is not entitled to
continuation of pay.
CONCLUSION
The Board finds that appellant is not entitled to continuation of pay for his October 22,
2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 and September 2, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 30, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9

J.M., supra note 7; Laura L. Harrison, 52 ECAB 515 (2001); see also Loretta R. Celi, 51 ECAB 560 (2000).

10

See Robert E. Kimzey, 40 ECAB 762 (1989) where the Board found that, despite appellant’s contentions that he
attempted to notify the proper employing establishment officials to file a compensation claim and they were
unaware of the correct filing procedures, as no exceptional circumstances excuse timely filing for continuation of
pay, he did not file his claim within the applicable time frames. The Board noted that appellant’s narrative
notification did not comport with the Office’s regulations setting forth the requirements for filing. Id. at 764 n.4.
See also 20 C.F.R. §§ 10.205(a) and 10.210(a).

4