United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

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

Docket No. 10-420
Issued: September 21, 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 November 27, 2009 appellant timely appealed the September 9, 2009 merit decision
of the Office of Workers’ Compensation Programs, which granted a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award
claim.1
ISSUE
The issue is whether appellant has more than eight percent impairment of the right upper
extremity.

1

The record also includes an August 4, 2009 wage-earning capacity determination that appellant did not appeal.
See 20 C.F.R. § 501.3(c) (2009).

FACTUAL HISTORY
Appellant, a 67-year-old mail clerk, injured her right upper extremity in an employmentrelated fall on October 10, 2007. The Office accepted her claim for right shoulder contusion and
right rotator cuff tear. On April 25, 2008 appellant underwent arthroscopic surgery to repair her
right shoulder, which the Office authorized. Following surgery she returned to full-time, limitedduty work on May 27, 2008 and filed a claim for a schedule award.
In a report dated September 30, 2008, appellant’s surgeon, Dr. Sanagaram S. Shantharam,
a Board-certified orthopedic surgeon, advised that her right shoulder condition had stabilized and
that she was permanent and stationary. He found 10 percent impairment to the right upper
extremity for limited range of motion (ROM) in the shoulder. Dr. Shantharam indicated that 140
degrees of forward flexion represented three percent impairment. He also found three percent
impairment for zero degrees extension.2 Dr. Shantharam noted that 110 degrees of abduction
represented three percent impairment and 70 degrees external rotation represented one percent
impairment. He further noted that 70 degrees of internal rotation represented zero percent
impairment. Adding the range of motion impairments totaled 10 percent right upper extremity
impairment.
The Office referred the record to its district medical adviser, Dr. Arthur S. Harris, a
Board-certified orthopedic surgeon. In a report dated January 26, 2009, Dr. Harris diagnosed
status post right shoulder arthroscopy with arthroscopic debridement, subacromial
decompression and partial distal clavicle excision with open rotator cuff repair. Based on
Dr. Shantharam’s September 30, 2008 examination findings, Dr. Harris found seven percent
impairment of the right upper extremity for loss of shoulder flexion (three percent), abduction
(three percent) and internal rotation (one percent). However, with respect to the three percent
impairment, Dr. Shantharam identified for loss of extension, Dr. Harris noted that the
September 30, 2008 examination did not document any residual loss of shoulder extension.
Consequently, he did not include this impairment found seven percent impairment of the right
upper extremity and noted that the date of maximum medical improvement was
September 30, 2008.
On February 10, 2009 the Office granted a schedule award for seven percent impairment
of the right arm. The award covered a period of 21.84 weeks from October 1, 2008 through
January 17, 2009.
Appellant requested a review of the written record. In a decision dated July 23, 2009, an
Office hearing representative set aside the February 10, 2009 schedule award to obtain
clarification from Dr. Shantharam regarding loss of shoulder extension.
The Office requested that Dr. Shantharam submit another impairment rating. It provided
a copy of Dr. Harris’ January 26, 2009 report and noted there was some confusion whether loss
of right shoulder extension was found on September 30, 2008. The Office advised that the

2

While Dr. Shantharam found three percent impairment ostensibly due to limitations in shoulder extension, his
September 30, 2008 physical examination findings did not include measurements for right shoulder extension.

2

impairment rating should be prepared in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment.
While the case was still pending before the Branch of Hearings and Review, the Office
referred appellant to Dr. Alice M. Martinson, a Board-certified orthopedic surgeon, for a second
opinion examination. In a report dated July 28, 2009, Dr. Martinson advised that the anterior
portion of appellant’s rotator cuff repair had clinically failed. She diagnosed probable failed
rotator cuff repair, right shoulder. The Office did not ask Dr. Martinson to provide an
impairment rating; however, her examination findings included range of motion measurements.
In an August 17, 2009 report, Dr. Shantharam advised that appellant did not have any
loss of extension when he examined her on September 30, 2008. He noted that appellant’s
physical therapy records from July 7, 2008 revealed that she had 45 degrees of extension in both
shoulders, which was a normal examination. Dr. Shantharam explained that because there was
no loss of extension, it was not utilized for purposes of rating appellant’s impairment. He
reiterated his September 30, 2008 right shoulder range of motion measurements for forward
flexion (140 degrees), abduction (110 degrees), internal rotation (70 degrees) and external
rotation (70 degrees). Dr. Shantharam also noted that appellant had a marginal loss of muscular
strength (4/5) in the right shoulder and subjective complaints of pain and discomfort. He did not
apply the 6th edition of the A.M.A., Guides as the Office requested.
The Office referred the record to Dr. Harris. In an August 29, 2009 report, Dr. Harris
determined that appellant had eight percent impairment of the right upper extremity. He applied
the sixth edition of the A.M.A., Guides to Dr. Shantharam’s September 30, 2008 right shoulder
measurements and found three percent impairment for loss of flexion, three percent for loss of
abduction and two percent for loss of internal rotation.3
In a decision dated September 9, 2009, the Office found that appellant had eight percent
impairment of the right upper extremity. Because appellant was previously compensated for
seven percent impairment, the Office granted a schedule award for one percent impairment,
which represented an additional 3.12 weeks of compensation.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,

3

Dr. Harris did not reference Dr. Martinson’s July 28, 2009 report, which the Office received on August 3, 2009.

4

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).

3

5 U.S.C.

Guides as the appropriate standard for evaluating schedule losses.5 Effective May 1, 2009,
schedule awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).6
Although the diagnosis-based approach is the preferred method of evaluating permanent
impairment under the sixth edition of the A.M.A., Guides, the shoulder regional grid, Table 15-5,
A.M.A., Guides 401-05, provides that, if loss of motion is present, the impairment may
alternatively be assessed using section 15-7, range of motion impairment.7 A range of motion
impairment stands alone and is not combined with a diagnosis-based impairment.8
ANALYSIS
The Office properly determined that appellant had eight percent impairment of the right
arm due to loss of motion in the shoulder. In an August 17, 2009 report, Dr. Shantharam
clarified that appellant had no loss of shoulder extension when he examined her on
September 30, 2008. He reaffirmed his previous examination findings. While appellant’s
surgeon did not rate her impairment under the sixth edition of the A.M.A., Guides, Dr. Harris
was able to apply Dr. Shantharam’s September 30, 2008 examination findings to the sixth edition
of the A.M.A., Guides.
According to Table 15-34, A.M.A., Guides 475, forward flexion of 140 degrees
represents three percent impairment of the upper extremity. Abduction of 110 degrees also
represents three percent upper extremity impairment under Table 15-34. Seventy degrees of
internal rotation represents two percent upper extremity impairment. Seventy degrees of external
rotation represents zero percent impairment under Table 15-34. Adding the right shoulder
measurements totals eight percent impairment of the right upper extremity as correctly found by
Dr. Harris. The Board notes that the right shoulder measurements reported by Dr. Martinson do
not result in a greater impairment under the A.M.A., Guides (6th ed. 2008).9 Accordingly, the
medical evidence of record does not establish more than eight percent right arm impairment.
CONCLUSION
The Board finds that appellant has eight percent impairment of the right upper extremity.

5

20 C.F.R. § 10.404 (2009).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
7

See A.M.A., Guides 459, 461, section 15-7.

8

Id. at 461.

9

The July 28, 2009 examination revealed the following bilateral (R/L) shoulder ROM measurements (and their
corresponding right upper extremity impairment under Table 15-34): Flexion 170 degrees/170 (three percent);
abduction 170 degrees/160 (zero percent); internal rotation 70 degrees/70 (two percent); external rotation 90
degrees/90 (zero percent); and extension 40 degrees/40 (one percent). Under Table 15-34 these measurements result
in an overall right upper extremity impairment of six percent.

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ORDER
IT IS HEREBY ORDERED THAT the September 9, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-859
Issued: October 19, 2011

Case Submitted on the Record

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

JURISDICTION
On February 17, 2011 appellant filed a timely appeal from a January 25, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than a four percent bilateral thumb permanent
impairment.
FACTUAL HISTORY
On September 1, 2008 appellant, then a 61-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained bilateral carpometacarpal (CMC) joint arthritis as a

1

5 U.S.C. § 8101 et seq.

result of his federal employment. Following development of the evidence, OWCP accepted the
claim for bilateral thumb osteoarthritis on May 29, 2009.
In a report dated January 7, 2010, Dr. Richard Rogachefsky, an orthopedic surgeon,
provided a history and results on examination. He noted range of motion for the
metacarpophalangeal (MCP) and interphalangeal (IP) joints of the thumbs. Dr. Rogachefsky
opined that appellant had a 30 percent disability rating based on the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). In a
report dated January 19, 2010, he stated that he had applied Table 15-2, with a class 3 diagnosis
that had a 30 percent thumb impairment as a default value. Dr. Rogachefsky indicated that there
was no adjustment to the default of 30 percent for each thumb or the equivalent of 11 percent
arm impairment.
OWCP referred the case to its medical adviser for evaluation. In a report dated March 5,
2010, the medical adviser noted that Dr. Rogachefsky had not provided range of motion findings
for the CMC joint and there was no evidence of x-ray results. In a report dated April 15, 2010,
Dr. Rogachefsky stated that the 30 percent impairment was not based on range of motion, but the
diagnosis in Table 15-2. He indicated that he was submitting a fluoroscopy of appellant’s hands.
In a September 13, 2010 report, Dr. Rogachefsky reported that the range of motion for the CMC
was 35 degrees in both thumbs.
In a report dated September 23, 2010, OWCP’s medical adviser recommended that the
case be referred for a second opinion evaluation. The medical adviser stated that the impairment
for 30 percent under Table 15-2 was for a CMC arthroplasty and there was no indication that
surgery had been performed. OWCP’s medical adviser also noted that the range of motion
results were incomplete, as the A.M.A., Guides required measurements for adduction, radial
abduction and opposition.
Appellant was referred to Dr. Wendell Bulmer, an osteopath, for a second opinion
evaluation. In a report dated December 21, 2010, Dr. Bulmer reviewed a history of injury and
provided results on examination. With respect to the CMC joint, he found 35 degrees of
abduction and full opposition. Dr. Bulmer also reported MCP flexion of 45 degrees. He stated
that, “[b]ased on the range of motion testing for the thumb, radial abduction measurements and
linear measurements of thumb adduction, the table for linear measurements of the thumb
opposition and range of motion at [the] MCP and IPJ followed by grade modifier adjustments, he
is at a [g]rade C, labeled thumb impairment values due to lack of radial abduction, reveals [three
percent] thumb impairment due to range of motion.”
In a report dated January 19, 2011, OWCP’s medical adviser noted that Dr. Bulmer found
only the CMC joint was involved. The medical adviser stated that under Table 15-30 there was a
two percent impairment for 40 degrees of abduction and five percent important for 30 degrees,
therefore a four percent impairment if you split the difference. The date of maximum medical
improvement was reported as January 7, 2010.
By decision dated January 25, 2011, OWCP issued schedule awards for four percent
impairment to both thumbs. The period of the awards was six weeks commencing
January 7, 2010.

2

LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.2 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3
ANALYSIS
OWCP issued a schedule award decision based on its medical adviser’s review of
Dr. Bulmer’s December 21, 2010 report. The medical evidence, however, requires further
development to properly establish the permanent impairment in this case. As OWCP’s medical
adviser pointed out in his September 23, 2010 report, for the CMC joint the A.M.A., Guides
requires measurements for radial abduction, adduction and opposition.4 Dr. Bulmer provided
radial abduction results, but did not provide a specific measurement for adduction and reported
opposition as “full” without providing the measurement in centimeters as required under Figure
15-20. In addition, he stated that there was normal range of motion in the MCP joint, yet he
reported 45 degrees of flexion for the MCP joint, which would result in an impairment under
Table 15-30.5 OWCP’s medical adviser stated that Dr. Bulmer found only the CMC joint was
involved, but did not discuss the MCP joint. The Board notes that Dr. Bulmer did not
acknowledge that the reported flexion results would constitute an impairment under Table 15-30
or discuss causal relationship between any impairment and federal employment.
An appropriate medical report should contain all of the measurements required for a
proper application of Table 15-30. The Board also notes that there is no provision under Table
15-30 for the method used by OWCP’s medical adviser to “split the difference” in determining
the impairment. The A.M.A., Guides clearly state that joint range of motion should be rounded
to the nearest whole number ending in zero.6 If the 35 degrees CMC radial abduction is rounded
to 30 degrees, for example, the thumb impairment is five percent under Table 15-30.7
The case will be remanded to OWCP to obtain a medical report with complete range of
motion measurements and a rationalized medical opinion as to an employment-related permanent

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

A.M.A., Guides 462, Table 15-13.

5

Id. at 468, Table 15-30.

6

Id. at 461.

7

Supra note 5.

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impairment under the sixth edition of the A.M.A., Guides. After such further development as is
deemed necessary, OWCP should issue an appropriate decision.
On appeal, appellant argued that the rating of Dr. Rogachefsky should be applied. As the
OWCP’s medical adviser discussed on September 23, 2010, the impairment identified by
Dr. Rogachefsky under Table 15-2 for a class 3 impairment of 30 percent is for a CMC
arthroplasty, with residual symptoms.8 There was no evidence of record that an arthroplasty was
ever performed in this case. Dr. Rogachefsky failed to provide a reasoned opinion as to why the
arthroplasty rating protocol would be appropriate in this case. His opinion is therefore of
diminished probative value.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded for further
development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs January 25, 2011 is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: October 19, 2011
Washington, DC

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

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

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

8

Id. at 394, Table 15-2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Criotz, WI, Employer
__________________________________________

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

Docket No. 10-1760
Issued: April 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On June 22, 2010 appellant, through her attorney, filed a timely appeal from a May 11,
2010 nonmerit decision of the Office of Workers’ Compensation Programs denying her request
for a second hearing. Because more than 180 days has elapsed between the last merit decision of
November 17, 2009 and the filing of this appeal on June 22, 2010, the Board lacks jurisdiction to
review the merits of appellant’s claim. Pursuant to the Federal Employees’ Compensation Act1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board only has jurisdiction over the nonmerit issue.
ISSUE
The issue is whether the Office properly denied appellant’s request for a second hearing
under 5 U.S.C. § 8124.
FACTUAL HISTORY
On May 8, 2009 appellant, then a 42-year-old rural carrier associate, filed an
occupational disease claim for compensation for pinched nerves in her neck. She indicated that
1

5 U.S.C. § 8101 et seq.

she slipped on ice and heard a pop or crack followed by pain, numbness and tingling from her
neck to her left arm. Appellant stated that she was first aware of her condition in March 2007.
She stopped work on May 19, 2009 to undergo neck surgery.
By decision dated July 7, 2009, the Office denied appellant’s claim on the grounds that
fact of injury was not established. It found that the evidence submitted was insufficient to
establish that the events occurred as alleged and no medical evidence provided a diagnosis which
could be connected to the claimed event.
On July 15, 2009 appellant requested a review of the written record before an Office
hearing representative. She submitted a July 16, 2009 statement along with medical evidence
and diagnostic testing. By decision dated November 17, 2009, an Office hearing representative
affirmed the July 7, 2009 Office decision finding that the medical evidence was insufficient to
establish causal relationship.
On May 6, 2010 the Office received appellant’s request for a hearing.
submitted numerous medical records, diagnostic testing and physician reports.

Appellant

In a May 11, 2010 decision, the Office denied appellant’s request for a hearing as she had
a previous written hearing (a review of the written record) on the issue of whether she sustained
an injury as alleged. It further considered the request and determined that the issue of whether
she sustained an injury as alleged could be equally well addressed on reconsideration.
LEGAL PRECEDENT
A claimant for compensation not satisfied with a decision by the Office is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on her
claim before a representative of the Secretary.2 As section 8124(b)(1) is unequivocal in setting
forth the time limitations for requesting a hearing, a claimant is not entitled to a hearing on her
claim as a matter of right unless the request is made within the requisite 30 days.3
A request received after that time will be subject to the Office’s discretion.4 The Board
has held that the Office, in its broad discretionary authority in the administration of the Act, has
the power to hold hearings in certain circumstances where no legal provision was made of such
hearings and that the Office must exercise this discretionary authority in deciding whether to
grant a hearing.5 The Board has held that the Office has the discretion to grant or deny a hearing
request on a claim6 when a request is made after the 30-day period for requesting a hearing,7 and
2

5 U.S.C. § 8124(b)(1).

3

Delmont L. Thompson, 51 ECAB 155 (1999); Charles J. Prudencio, 41 ECAB 499 (1990).

4

20 C.F.R. § 10.616(b).

5

Johnny S. Henderson, 34 ECAB 216 (1982).

6

Rudolph Bermann, 26 ECAB 354, 360 (1975).

7

Herbert C. Holley, 33 ECAB 140, 142 (1981).

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when the request is for a second hearing on the same issue.8 In these instances, the Office will
determine whether a discretionary hearing should be granted or, if not, will so advise the
claimant with reasons.9
ANALYSIS
In the instant case, the Office issued a decision denying appellant’s claim.10 The Office
hearing representative reviewed the written record and affirmed the Office’s decision that
appellant did not meet her burden of proof by decision dated November 17, 2009. On May 10,
2010 appellant requested a hearing regarding the same matter. The Board finds that the Office
properly determined that she was not entitled to a second hearing under section 8123 as a matter
of right.
The Office also exercised its discretion in further considering appellant’s hearing request
and denied it on the basis that she could pursue her claim by requesting reconsideration and
submitting additional relevant and probative evidence. As appellant may pursue this issue
through an alternative procedure, by submitting to the Office a request for reconsideration and by
submitting supporting evidence, the Board finds that the Office did not abuse its discretion in
denying her request for a second hearing.11
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a second hearing.

8

Johnny S. Henderson, supra note 5.

9

Id.

10

A review of the written record is a type of hearing. See 20 C.F.R. § 10.615 (provides that a hearing can be in
one of two formats: an oral hearing or a review of the written record).
11

See L.D., 58 ECAB 344 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the May 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Steven Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0573
Issued: May 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 2, 2016 appellant, through her representative, filed a timely appeal from a
January 4, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established impairment warranting a schedule award.
FACTUAL HISTORY
On November 15, 2004 appellant, then a 53-year-old letter carrier filed an occupational
disease claim, Form CA-2, alleging that she developed bilateral heel pain while in the
performance of duty. She became aware of her condition on September 10, 2004 and
subsequently related it to her employment. OWCP accepted appellant’s claim for exacerbation
1

5 U.S.C. § 8101 et seq.

of bilateral retrocalcaneal bursitis and exacerbation of gait disturbance. Appellant did not stop
work.
Appellant came under the treatment of Dr. Louis J. Geller, a podiatrist, from October 25,
2004 to June 10, 2005, for bilateral retrocalcaneal bursitis which had been symptomatic for two
years. X-rays of both feet revealed posterior calcaneal spur formations and he treated appellant
with a series of cortisone injections in both heels and physical therapy. Dr. Geller opined that
appellant’s conditions were exacerbated by her job as a postal worker. In reports dated March 31
to January 30, 2007, he noted that appellant continued to have posterior left heel pain and
retrocalcaneal bursitis and could not walk up steps. Dr. Geller recommended physical therapy.
In a duty status reports dated January 19, 2005 to January 29, 2008, he diagnosed retrocalcaneal
bursitis of the left foot and released appellant to work with restrictions.
On February 22, 2006 and February 25, 2008 OWCP offered appellant a light-duty
position as a modified city carrier. Appellant accepted the position and returned to work.
On March 31, 2014 appellant filed a claim for a schedule award. On April 22, 2014 she
again filed a Form CA-7 claim for a schedule award.
On May 9, 2014 OWCP requested that appellant submit a detailed report from her
treating physician which provided an impairment evaluation pursuant to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2 No further response was received.
On August 13, 2014 OWCP denied appellant’s claim for a schedule award. The decision
was returned by the U.S. Postal Service, however, as undeliverable.
In a November 19, 2014, letter to appellant, OWCP noted developing and denying her
request for a schedule award. However, the previous claims examiner overlooked her address
change and the decision was again returned as undeliverable. Due to the oversight OWCP again
requested that appellant submit a detailed report from her treating physician which provided an
impairment evaluation pursuant to the A.M.A., Guides. This request was sent to the address of
record. It specifically requested an opinion as to whether she had reached maximum medical
improvement, a diagnosis upon which the impairment was based, and a detailed description of
objective findings including decreased strength, atrophy, ankyloses, sensory changes and
subjective complaints such as pain or discomfort and a detailed description of any permanent
impairment under the applicable criteria and tables in the A.M.A., Guides.
Appellant submitted a December 18, 2014 report from Dr. Geller who had seen appellant
for an impairment rating. Dr. Geller diagnosed bilateral foot pain, hallux rigidus of the right
foot, capsulitis of the first metatarsophalangeal joint of the right foot and retrocalcaneal bursitis
of the bilateral feet. Gait examination revealed a limp on the right and left lower extremity,
osseous hypertrophy of the dorsal aspect of the metatarsophalangeal joint of the right foot,
positive pop on metatarsophalangeal joint of the right foot, pain with attempted active/passive
first metatarsophalangeal joint dorsiflexion and plantar flexion of the right foot, the
2

A.M.A., Guides (6th ed. 2009).

2

metatarsophalangeal joint dorsiflexion of the right foot was two degrees, erythema/edema was
present at the dorsal aspect of the first metatarsophalangeal joint of the right foot, limited range
of motion and weakness bilaterally of the feet and ankle due to the work-related injuries.
Dr. Geller noted treating appellant since 2005 for bilateral heel and foot pain. He indicated that
surgery, physical therapy, injections, custom orthotics, and other conservative care was provided
without improvement in appellant’s condition. Dr. Geller noted that appellant reached maximum
medical improvement. However, he did not reference any impairment values.
On February 18, 2015 OWCP denied appellant’s claim for a schedule award as the
evidence was insufficient to establish permanent impairment to a scheduled member due to the
accepted work injury.
On February 24, 2015 appellant requested an oral hearing which was held before an
OWCP hearing representative on October 16, 2015. At the hearing, appellant’s representative
contended that appellant’s physician was not familiar with the A.M.A., Guides, and that OWCP
should have further developed the medical evidence. The hearing representative informed the
representative of the need to submit medical evidence supporting that appellant had permanent
impairment.
In a decision dated January 4, 2016, OWCP denied appellant’s claim for a schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides5 has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.7 The Board notes that, before applying the A.M.A., Guides, OWCP must
determine whether the claimed impairment of a scheduled member is causally related to the

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

A.M.A., Guides (6th ed. 2009).

6

See 20 C.F.R. § 10.404.

7

Thomas P. Lavin, 57 ECAB 353 (2006).

3

accepted work injury.8 The claimant has the burden of proving that the condition for which a
schedule award is sought is causally related to his or her employment.9
ANALYSIS
Appellant alleges permanent impairment of her feet due to the accepted conditions. For a
schedule award, she must establish permanent impairment of a listed member of the body due to
an employment injury.10 Appellant’s condition was accepted for exacerbation of bilateral
retrocalcaneal bursitis and exacerbation of gait disturbance. On November 19, 2014 OWCP
requested that she submit a medical opinion from her treating physician addressing her degree of
permanent impairment under the A.M.A., Guides.
However, the Board finds that appellant failed to submit sufficient medical evidence to
establish permanent impairment due to her accepted conditions. She submitted a December 18,
2014 report from Dr. Geller who diagnosed various medical conditions following an
examination. Dr. Geller noted that appellant had reached maximum medical improvement.
However, the report from him failed to include an impairment rating or provide an adequate
description of her physical condition so that an impairment rating could be determined by an
OWCP medical adviser. For instance, Dr. Geller in his report dated December 18, 2014, noted
pain with attempted active/passive of the first metatarsophalangeal joint dorsiflexion and plantar
flexion of the right foot, the metatarsophalangeal joint dorsiflexion of the right foot was two
degrees, limited range of motion and weakness to the bilateral feet and ankle. However, he
failed to explicitly define impairment in terms of the A.M.A., Guides, i.e., whether it was based
on findings of pain, loss of range of motion or loss of strength.11
In order to meet her burden of proof appellant’s physician must provide a sufficiently
detailed description of her condition so that the claims examiner and others reviewing the file
would be able to clearly visualize the impairment with its resulting restrictions and limitations.12
As Dr. Geller did not adequately describe appellant’s condition or correlate his findings with the
A.M.A., Guides, his report is insufficient to establish the extent of appellant’s permanent
8

Michael S. Mina, 57 ECAB 379, 385 (2006).

9

Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).
10

Id.

11

Lela M. Shaw, 51 ECAB 372 (2000) (where the Board found that a physician’s opinion which does not
explicitly define impairment in terms of the A.M.A., Guides, i.e., whether it be based on findings of pain, loss of
range of motion or loss of strength, is insufficient to establish that appellant sustained any permanent impairment
due to her accepted employment injury). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3a(2) (January 2010).
12

Renee M. Straubinger, 51 ECAB 667, 669 (2000) (where the Board found in providing an estimate of the
percentage loss of use of a member of the body listed in the schedule provisions, a description of a claimant’s
impairment must be obtained from his or her physician which is in sufficient detail so that the claims examiner and
others reviewing the file will be able to clearly visualize the impairment and its resulting restrictions and
limitations).

4

impairment. Without the necessary reasoned medical opinion evidence establishing the type and
extent of appellant’s impairment correlated with the A.M.A., Guides, and explaining the causal
relationship between these findings and her accepted employment injury, appellant has failed to
establish permanent impairment of a scheduled member as a result of her accepted conditions.13
On appeal appellant asserts that Dr. Geller’s report provided a detailed outline of
appellant’s permanent disabilities, noted that she had reached maximum medical improvement
and complied with OWCP’s request for information substantiating her claim for a schedule
award. However, Dr. Geller failed to explain how he calculated the impairment rating under the
A.M.A., Guides. Appellant further asserted that OWCP should have referred appellant to a
second opinion physician or a district medical adviser for a schedule award determination. The
Board notes that it is appellant’s burden to provide a description of impairment from his or her
physician which is of sufficient detail so that a claims examiner or others can visualize
impairment. As noted above, Dr. Geller’s report contained insufficient data to calculate an
impairment rating under the A.M.A., Guides.14
Appellant may request a 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 failed to establish that she is entitled to a schedule award.

13

Id.; see also supra note 11.

14

Supra notes 11 and 13.

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ORDER
IT IS HEREBY ORDERED THAT the January 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dallas, TX, Employer
__________________________________________

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

Docket No. 07-170
Issued: April 10, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 24, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated December 27, 2005 finding that she had not established
an injury on June 15, 2005. 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 has met her burden of proof to establish that she sustained
an injury in the performance of duty on June 15, 2005.
FACTUAL HISTORY
On June 22, 2005 appellant, then a 51-year-old vocational nurse, filed a traumatic injury
claim alleging that on June 15, 2005 she injured her neck, back and upper extremities while
helping a coworker transfer a patient from one gurney to another gurney.

In support of her claim, appellant submitted an employee health record and a June 22,
2005 duty status report (Form CA-17) by Dianne Keller, physician’s assistant, diagnosing right
trapezius spasm.
On July 13, 2005 the Office informed appellant that the evidence was currently
insufficient to support her claim as the record contained no diagnosis of any condition due to the
June 15, 2005 incident. Appellant was advised to submit a physician’s opinion containing a
diagnosis with an explanation of how the diagnosed condition was causally related to the
June 15, 2005 employment incident.
The Office subsequently received x-ray interpretations dated July 15, 2005 of the
shoulder, cervical spine, thoracic spine and lumbar spine and a July 27, 2005 report by
Dr. Robert L. Gardiner, a treating physician, who requested a magnetic resonance imaging
(MRI) scan for appellant and opined that she injured her neck and right shoulder while moving a
patient. He noted that appellant “has a lost (sic) of ROM [range of motion] of both body parts.”
By decision dated August 15, 2005, the Office denied appellant’s claim on the grounds
that she failed to establish that the diagnosed condition was causally related to the accepted
employment incident.
Following the August 15, 2005 decision, the Office received additional medical and
factual evidence including an August 3, 2005 Texas Workers’ Compensation work status report,
an undated addendum to initial diagnoses, by Dr. Gardiner, reports dated July 12 and August 3,
2005 by Brian Saul, a chiropractor, and rehabilitation therapy notes.
In the August 3, 2005 Texas Workers’ Compensation work status report, Dr. Gardiner
diagnosed right shoulder rotator cuff tear and cervical compression fracture. He reported the
injury as occurring when appellant was lifting a patient from one gurney to another.
In a report dated July 12, 2005, Dr. Saul diagnosed cervical, right shoulder, thoracic and
myospasms. He reported that appellant injured herself on June 15, 2005 while helping to
transfer a patient. A physical examination revealed decreased cervical and spinal range of
motion and tender and taut muscles in the cervical spine and right shoulder girdle area. On
August 3, 2005 Dr. Saul diagnosed shoulder pain and stiffness, muscle spasm and difficulty with
shoulder movement. The chiropractor attributed appellant’s shoulder symptoms to the June 15,
2005 employment injury.
On September 26, 2005 appellant requested reconsideration and submitted evidence in
support of her claim including a September 22, 2005 report by Dr. James Barry diagnosing mild
right carpal tunnel syndrome.
Appellant subsequently submitted various rehabilitation therapy notes, an October 11,
2005 Texas Workers’ Compensation work status report by Dr. Gardiner and an August 23, 2005
report by Dr. Saul. Dr. Gardiner, in the work status report, diagnosed cervical strain and
compression fracture of the cervical vertebrae. He noted that the injury occurred while appellant
was moving a patient from a gurney to a shower bed on June 15, 2005. On August 23, 2005
Dr. Saul diagnosed S/S cervical, S/S right shoulder, S/S thoracic and myospasms. He reported
that appellant injured herself on June 15, 2005 while helping to transfer a patient. A physical
2

examination revealed decreased cervical and spinal range of motion and tender and taut muscles
in the cervical spine and right shoulder girdle area.
On December 27, 2005 the Office denied appellant’s request for modification.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase sustained while in the performance of duty is regarded as the
equivalent of the coverage formula commonly found in workers compensation laws, namely,
arising out of and in the course of employment.3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
1

5 U.S.C. § 8101 et seq.

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Paul Foster, 56 ECAB ___ (Docket No. 04-1943, issued December 21, 2004); see also Katherine J. Friday,
47 ECAB 591 (1996).
6

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.7
ANALYSIS
The Office accepted that transferring of the patient on June 15, 2005 as described by
appellant occurred in the performance of duty. The issue at hand, therefore, is whether the
medical evidence submitted is sufficient to establish that her diagnosed condition is causally
related to the June 15, 2005 employment incident. The Board finds that appellant has submitted
insufficient medical evidence to establish that her diagnosed medical condition was caused or
aggravated by factors of her federal employment.
In the Texas Workers’ Compensation work status reports dated August 3 and October 11,
2005, Dr.Gardiner noted a history of appellant injuring herself while assisting in lifting a patient
on June 15, 2005 and he diagnosed a cervical strain and compression fracture of the cervical
vertebrae. He did not, however, provide any opinion on causal relationship between the
diagnosed condition and a June 15, 2005 employment incident. While a physician’s opinion
regarding a cervical strain and compression fracture of the cervical vertebrae may not require
extensive medical rationale, there must be an opinion on causal relationship based on an accurate
factual and medical background and with supporting explanation. To the degree that
Dr. Gardiner’s statement can be construed as an opinion as to the cause of appellant’s diagnosed
condition, it is unsupported by medical rationale explaining the nature of the relationship
between the diagnosed conditions and the specific employment factor identified by the claimant.8
The Board has long held that a medical report not containing rationale on causal relation are
entitled to little probative value and are generally insufficient to meet an employee’s burden of
proof.9 As Dr. Gardiner provided no supporting rationale explaining how appellant’s diagnosed
conditions were caused or aggravated by the June 15, 2005 incident, they are of diminished
probative value.
Dr. Saul in reports dated July 12 and August 23, 2005 diagnosed S/S cervical, S/S right
shoulder, S/S thoracic and myospasms and noted that appellant injured herself on June 15, 2005
while helping to transfer a patient. Under section 8101(2) of the Act, chiropractors are only
considered physicians and their reports considered medical evidence, to the extent that their
services are limited to treatment consisting of manual manipulation of the spine to correct
subluxations as demonstrated by x-ray to exist.10 The Office’s regulation at 20 C.F.R. § 10.5(bb)
have defined subluxation as an incomplete dislocation, off-centering, misalignment, fixation or
abnormal spacing of the vertebrae which must be demonstrable on any x-ray film to an
individual trained in the reading of x-rays.11 There is no indication from the record that
7

John W. Montoya, 54 ECAB 306 (2003).

8

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

9

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006).

10

5 U.S.C. § 8101(2); see Paul Foster, 56 ECAB ___ (Docket No. 04-1943, issued December 21, 2004).

11

20 C.F.R. § 10.5(bb).

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appellant’s chiropractor obtained an x-ray which demonstrated spinal subluxation to support the
diagnoses of S/S cervical, S/S right shoulder, S/S thoracic and myospasms or that his treatment
was limited to manual manipulation of the spine. Therefore, appellant’s chiropractor is not
considered a physician as defined under the Act and his reports are of no probative medical
value.
Appellant also submitted an employee health record, x-ray interpretations and physical
therapy notes. The employee health record and x-ray interpretations are insufficient to support
appellant’s claim as they contain no opinion on causal relationship. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of diminished probative value on the issue of causal relationship.12 The Board has also held
that physical therapist reports have no probative value on medical questions because therapists
are not physicians as defined under the Act.13 Similarly, as physician’s assistants are not
physicians as defined by the Act,14 Ms. Keller’s report is of no probative value. Appellant has
failed to meet her burden of proof.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her conditions. Appellant failed to do so. As
there is no probative, rationalized medical evidence addressing how appellant’s claimed
conditions were caused or aggravated by her employment, she has not met her burden of proof in
establishing that she sustained an injury in the performance of duty.
CONCLUSION
Appellant did not submit sufficient medical evidence to meet her burden of proof in
establishing an injury in the performance of duty on June 15, 2005.

12

Conard Hightower, 54 ECAB 796 (2003).

13

James Robinson, 53 ECAB 417 (2002); see also 5 U.S.C. § 8101(2).

14

See 5 U.S.C. § 8101(2).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 27, 2005 is affirmed.
Issued: April 10, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employee’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-568
Issued: July 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

On January 15, 2003 appellant, through his attorney, filed a notice of appeal with respect
to the December 4 and September 26, 2012 merit decisions of the Office of Workers’
Compensation Programs (OWCP). The Board docketed the appeal as No. 13-568.
Appellant, a 45-year-old registered nurse, was injured on December 21, 2011 when
attempting to manually raise a patient’s bed using a foot pedal. Appellant reportedly felt the
bone in his left knee pop out of place. OWCP accepted his claim for left mild patellar tendinitis.1
However, appellant also claimed to have injured his lumbar spine as a result of the December 21,
2011 employment incident. His accepted left knee condition improved to the point where he was
released to resume his regular nursing duties as of April 5, 2012. Appellant’s claimed lumbar
condition which affected his left lower extremity, precluded him from returning to work at that
time. He ultimately resumed his full-time, regular nursing duties on May 23, 2012.2
1

A December 22, 2011 left knee magnetic resonance imaging (MRI) scan revealed patellar tendinitis -- small
interstitial tear and a small effusion. There was no evidence of internal derangement, no bone lesions and no
visualized osteochondral defects.
2

Effective June 22, 2012, appellant voluntarily resigned from his position with the employing establishment.

The September 26, 2012 hearing representative’s decision which is the subject of the
current appeal, affirmed OWCP’s refusal to accept an employment-related lumbar condition.
The December 4, 2012 decision, also issued by the Branch of Hearings and Review, affirmed
OWCP’s termination of medical benefits and wage-loss compensation effective May 16, 2012.
This latter decision, authored by a different hearing representative, also concurred with the
September 26, 2012 finding that appellant failed to establish an employment-related lumbar
condition.
In a report dated February 3, 2012, Dr. Sherita M. Latimore-Collier, an internist,
explained how the December 21, 2011 employment incident not only caused damage to
appellant’s left knee, but also compressed the S1 nerve root resulting in lower back pain
radiating down appellant’s left leg into his left foot. Dr. Latimore-Collier first examined
appellant on December 21, 2011.3 She ordered the December 22, 2011 left knee MRI scan that
revealed patellar tendinitis.
Dr. Latimore-Collier also saw appellant in follow-up on
December 27, 2011, at which time she referred him to an orthopedist for further evaluation.4
Appellant identified Dr. Latimore-Collier as his wife.
In the September 26, 2012 decision, the hearing representative disregarded Dr. LatimoreCollier’s February 3, 2012 opinion on causal relationship solely because she is appellant’s
spouse. The hearing representative also mistakenly believed appellant had not received any
other medical treatment between the time of his December 21, 2011 visit to the employer’s
occupational health unit and December 28, 2011, when he first saw Dr. Harrer. The hearing
representative noted that appellant had not sought immediate treatment other than his
December 21, 2011 visit to the employee health unit. As such, the hearing representative
effectively ignored Dr. Latimore-Collier’s December 21 and 27, 2011 treatment notes which
specifically documented appellant’s lower back complaints.5
The December 4, 2012 decision also overlooked Dr. Latimore-Collier’s treatment
records. While this latter decision acknowledged that she had reportedly seen appellant on
December 21, 2011, the hearing representative incorrectly stated that the “record [did] not
include any examination notes or findings from Dr. Latimore-Collier’s December 21, 2011
examination.”
The case is not in posture for decision. Because Board decisions are final with regard to
the subject matter appealed, it is crucial that OWCP address all relevant evidence received prior
3

Earlier that same day, appellant was seen by a nurse practitioner, Sarah A. Foster-Chang, at the employing
establishment’s occupational health unit. The initial clinical impression was possible patellar subluxation and/or
joint effusion. Appellant was excused from work and advised against any weight bearing for two days. He was to
remain off duty until December 26, 2012.
4

He was seen the following day by Dr. Michael F. Harrer, a Board-certified orthopedic surgeon, whose initial
impression on December 28, 2011 was probable left lower back issue, creating left leg radiculopathy with minimal
patella tendinitis of the left knee. Dr. Harrer explained that this all started when appellant was at work manually
pumping up the bed with a patient in the bed. At the time, he ordered a lumbar MRI scan to rule out left-side L4-5
herniated nucleus pulposus.
5

OWCP received Dr. Latimore-Collier’s December 21 and 27, 2011 treatment records on February 3, 2012.

2

to the issuance of its final decision.6 In this instance, OWCP failed to consider relevant medical
evidence it received prior to the issuance of both the September 26 and December 4, 2012
decisions. Dr. Latimore-Collier was the first physician to examine appellant following the
December 21, 2011 employment injury. Her December 21 and 27, 2011 treatment notes are
relevant to the issues currently on appeal, and this evidence was part of the record at the time
OWCP issued both decisions. Whether OWCP receives relevant evidence on the date of the
decision or several days prior, such evidence must be considered.7 As it failed to address all
relevant evidence before it at the time, the case shall be remanded for a proper review of the
evidence and issuance of an appropriate final decision.
IT IS HEREBY ORDERED THAT the December 4 and September 26, 2012 decisions
of the Office of Workers’ Compensation Programs are set aside. The case is remanded for
further action consistent with this decision of the Board.
Issued: July 12, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6

20 C.F.R. § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990).

7

Willard McKennon, 51 ECAB 145 (1999).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL CENTER, San Diego, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-153
Issued: September 30, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 26, 2010 appellant, through her attorney, filed a timely appeal from a
September 2, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision
denying her claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant established that she sustained an injury on December 7,
2009 while in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Following issuance of the September 2, 2010 OWCP decision and on appeal, appellant submitted new evidence.
The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its final decision.
See 20 C.F.R. § 501.2(c)(1).

On appeal counsel contends that whether appellant was authorized to come into work
early is not relevant to the claim and that she was at work a reasonable interval before the start of
her work shift.
FACTUAL HISTORY
On December 9, 2009 appellant, a 62-year-old vocational nurse, filed a traumatic injury
claim (Form CA-1) alleging that on December 7, 2009 she sustained a compound fracture of the
radius and ulna of her left forearm when she slipped and fell due to a large pool of water from a
rain leak on the floor. A witness stated that she came across a large puddle of water on the third
floor which was marked with a “caution” sign, heard appellant fall and ran to assist her.
Appellant’s supervisor contended that the injury did not occur in the performance of duty in that
it occurred at 4:30 p.m., 2 hours and 15 minutes before her regular shift began at 6:45 p.m.
Appellant was not required to arrive at the workplace earlier than her scheduled start time.
By letter dated December 22, 2009, OWCP requested additional evidence from appellant
in support of her claim and allotted 30 days for submission.
In a December 9, 2009 medical report, Dr. Dana C. Covey, a Board-certified orthopedic
surgeon, diagnosed left open galleazzi fracture and performed surgery. He released appellant to
light duty for 30 days after 21 days of leave.
In a December 11, 2009 radiological report, Dr. Scott Alexander, a Board-certified
radiologist, diagnosed distal radius and ulna fractures and degenerative changes in the left wrist
and hand. In a December 12, 2009 radiological report, Dr. Mark D. Stanley, a Board-certified
radiologist, diagnosed postoperative changes status post plate and screw fixation of a distal
radius fracture as well as dual pin fixation of the distal radial ulnar joint and the distal radius and
ulna in near anatomic alignment without evidence of gross complications. In a December 28,
2009 radiological report, Dr. Dean Asher, a Board-certified radiologist, diagnosed left distal
radius and ulna fractures status post open reduction internal fixation (ORIF) with retained
hardware and no apparent complication.
In a December 23, 2009 medical report, Dr. James E. Toledano, a Board-certified
orthopedic surgeon, diagnosed fracture of radius/ulna open and released appellant to work with
restrictions.
In a December 28, 2009 narrative statement, appellant reported that she did not see the
water puddle when she was walking down the hallway and fell on her left hand and arm. She
was placed in a wheelchair and taken to the emergency room where they took x-rays and
performed surgery. Appellant stated that she was not aware of what time it was because she was
in too much pain. She came into work to complete her yearly annual update, like other staff
members did, as it was overdue and she did not want to take away from patient care.
In a January 5, 2010 work capacity evaluation, Dr. Keith R. Fischer, a Board-certified
family practitioner, released appellant to limited duty on February 8, 2010 with a two-month
restriction on reaching, reaching above the shoulder, operating a motor vehicle at work, pushing,
pulling, lifting, and repetitive wrist and elbow movements. In a January 5, 2010 attending

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physician’s report, he indicated that appellant was at work to do her work assessment duties
when she fell and injured herself.
By decision dated January 29, 2010, OWCP denied appellant’s claim on the grounds that
the evidence submitted was not sufficient to establish that she was injured in the performance of
duty. It explained that the evidence of record did not establish that she was on paid overtime or
that it was customary for employee’s to arrive to work two hours prior to the start of a work shift.
On March 5, 2010 OWCP received a January 26, 2010 report from Dr. Covey who
released appellant to limited duty with restrictions and possible full duty on March 26, 2010.
On March 5, 2010 appellant filed a claim for compensation for the period January 22, to
February 14, 2010. By letter dated March 9, 2010, OWCP notified appellant that, as her claim
was denied in the January 29, 2010 decision, she was not entitled to compensation or medical
benefits.
On June 14, 2010 appellant, through her attorney, filed a request for reconsideration.
Counsel contended that when the injury occurred appellant was engaged in activity central to her
duties and not her own personal convenience.
By letter dated June 24, 2010, the employing establishment controverted appellant’s
claim, reiterating that her injury did not occur during her normal work hours. It reported that
appellant’s regular work schedule was 6:45 p.m. to 7:15 a.m. and she came into work early to
complete an overdue yearly annual update. Appellant was not required to arrive at the workplace
earlier than her scheduled start time and was not on prior authorized overtime.
By decision dated September 2, 2010, OWCP denied modification of its January 29, 2010
decision, finding that there was no evidence that appellant was authorized to come to work early.
It found that appellant did not establish that other employees came to work early to complete
work so not to take away from patient care or that her employer condoned or encouraged such a
practice.3
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relationship. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.4 The phrase while in the
performance of duty has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of arising out of and in the course of

3

By letter dated September 15, 2010, OWCP accepted appellant’s September 10, 2010 petition to withdraw her
hearing request.
4

See 5 U.S.C. § 8102(a).

3

employment. The phrase course of employment is recognized as relating to the work situation
and more particularly, relating to elements of time, place and circumstance.5
In the compensation field, to occur in the course of employment, in general, an injury
must occur: (1) at a time when the employee may reasonably be said to be engaged in his
employer’s business; (2) at a place where he may reasonably be expected to be in connection
with the employment; and (3) while he was reasonably fulfilling the duties of his employment or
engaged in doing something incidental thereto.6
The Board has accepted the general rule of workers’ compensation law that, as to
employees having fixed hours of work, injuries occurring on the premises of the employing
establishment, while the employee is going to or from work, before or after working hours or at
lunch time, are compensable.7 Given this rule, the Board has noted that the course of
employment for employees having a fixed time and place of work includes a reasonable time
while the employee is on the premises engaged in preparatory or incidental acts. However,
presence at the employing establishment’s premises during work hours or a reasonable period
before or after a duty shift is insufficient, in and of itself, to establish entitlement to benefits for
compensability. The claimant must also establish the concomitant requirement of an injury
arising out of the employment. This encompasses not only the work setting, but also the causal
concept that some factor of the employment caused or contributed to the claimed injury. In order
for an injury to be considered as arising out of the employment, the facts of the case must show
substantial employer benefit is derived or an employment requirement gave rise to the injury.8
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities, unrelated to his or her employment. The
Board has noted that the standard to be used in determining that an employee has deviated from
his or her employment requires a showing that the deviation was aimed at reaching some specific
personal objective.9
The Board has permitted relief for employees on employer premises when the claimed
injury occurred during a reasonable time before or after work or, in the case of injuries occurring
far outside regular work hours, when the employee was acting in service of the employer.10 In
John F. Castro,11 an employee was injured in an automobile accident at a naval station five
5

See Annie L. Ivey, 55 ECAB 480 (2004). See also Alan G. Williams, 52 ECAB 180 (2000).

6

Id.

7

See James P. Schilling, 54 ECAB 641 (2000). See also Narbik A. Karamian, 40 ECAB 617 (1989).

8

See Eileen R. Gibbons, 52 ECAB 209 (2001). See also Cheryl Bowman, 51 ECAB 519 (2000); Shirlean
Sanders, 50 ECAB 299 (1999); Charles Crawford, 40 ECAB 474 (1989).
9

See Rebecca LeMaster, 50 ECAB 254 (1999).

10

See William W. Knispel, 56 ECAB 639 (2005).

11

Docket No. 03-1653 (issued May 14, 2004).

4

minutes after the end of his shift.12 It found that such a short time period fell within the scope of
a reasonable interval before going to or leaving from work. In Catherine Callen,13 the employee
was found to be in the performance of duty under FECA for an injury sustained on the employer
premises six hours after the end of her regular shift, primarily because she remained on the
premises to complete a project at the request of her employer.14 In Nona J. Noel,15 the employee
arrived one and one-half hours prior to the start of her workday to avoid heavy traffic and to eat
breakfast at the Noncommissioned Officer’s (NCO) Club where she sustained an injury. The
Board found that the act of having breakfast, coupled with the length of time appellant arrived at
her employer’s premises prior to her official starting time to avoid heavy traffic, placed her
activity outside the scope of the employment. In T.F.,16 the employee sustained an injury when
she tripped on a loose floor tile 25 minutes before her work shift began at 6:00 a.m. She was on
the premises of her employer in the vicinity of her work cubicle. The Board affirmed the denial
of compensability under FECA, noting that finding a good parking place, drinking coffee, having
breakfast and putting her lunch away were personal activities and not reasonably incidental to the
work of her employer. The Board found that her presence at the premises some 25 minutes prior
to the commencement of her work shift did not constitute a reasonable interval under the
circumstances.
ANALYSIS
The Board finds that appellant’s injury was not sustained in the performance of duty.
Although the December 7, 2009 incident occurred on the employing establishment’s
premises, it did not occur during appellant’s regular work shift or during a lunch or recreation
period as a regular incident of her employment. In order for an injury to be considered as arising
out of the employment, the facts of the case must show some substantial employer benefit or
requirement which gave rise to the injury.17 It is incumbent upon appellant to establish that it
arose out of her employment. In other words, some contributing or causal employment factor
must be established.
Appellant has not shown that her presence at the employing establishment on
December 7, 2009 at 4:30 p.m. was a reasonable interval before work. Her usual work shift
began at 6:45 p.m. Appellant’s presence on the premises is not alone sufficient to establish
compensability. She arrived to work 2 hours and 15 minutes before the start of her shift and

12

Id.

13

47 ECAB 192 (1995).

14

The Board found that, although the employee had been cautioned about unauthorized overtime and did not
request it on the date-of-injury, there was not an express prohibition concerning her overtime work. Rather, the
support staff was routinely requested by attorneys to work overtime and management was generally aware that they
were on the premises after regular duty tour hours. See id.
15

36 ECAB 329 (1984).

16

Docket No. 09-154 (issued July 16, 2009).

17

See Dwight D. Henderson, 46 ECAB 441 (1995).

5

such an early arrival is outside the scope of reasonable allowance for entrance and egress.18
Appellant entered the premises well before the usual start of her work shift. The Board had held
that what constitutes a reasonable interval before a work shift begins depends not only on the
length of time involved, but also on the circumstances for the time interval and nature of the
employment activity.19 The employing establishment reported that it had not directed appellant
to perform any services related to her work as a vocational nurse prior to her normal tour of duty
and that she was not authorized to work overtime. There is no evidence that the employer in this
case expressly or impliedly required appellant’s presence on the premises prior to her regular
hours. There is no evidence that appellant sought approval by her supervisor to be on the
premises prior to her regular-duty hours in order to prepare for her daily activities or to work on
an overdue annual report. Accordingly, the Board finds that appellant’s presence on the
premises some 2 hours and 15 minutes prior to the commencement of her tour of duty on the
morning of the accident was not reasonable.20
Appellant’s arrival at the employing establishment prior to official starting time does not
automatically place her activities outside the scope of the employment.21 She stated that she
arrived early to work at 4:30 p.m. in order to complete a yearly annual update that was overdue.
However, unlike Catherine Callen,22 there is no evidence that the employer expressly or
impliedly required appellant’s presence on the premises outside of her regular duty hours in
order to complete this work assignment. There is no evidence that her supervisor was ever made
aware that she would be present on the premises before her regular duty hours.23 Appellant did
not submit sufficient evidence to establish that the employing establishment condoned or
encouraged employees to come into work early in order to complete work assignments, such as
yearly annual updates, in order not to take away from patient care. Only as a matter of personal
convenience did she choose to arrive at the premises of her employer early on December 7, 2009.
The Board finds that the act of arriving at work early without authorized overtime or
authorization by a supervisor, places appellant’s injury outside the scope of the employment.

18

See L.L., Docket No. 10-2384 (issued July 15, 2011).

19

See Maryann Battista, 50 ECAB 343 (1999). See also Narbik A. Karamian at 618 supra note 7; (citing Clayton
Varner, 37 ECAB 248 (1985)).
20

See Howard M. Faverman, 57 ECAB 151 (2005). Cf. Cemeish E. Williams, 57 ECAB 509 (2006) (where
claimant arrived for duty 15 or 30 minutes prior to her scheduled shift and was adjusting her uniform tie and
reaching for her bag when the injury occurred on the escalator on the way to sign in for her afternoon shift; the
Board found that when the injury occurred, appellant was on the premises for a reasonable time before her specific
working hours in preparation for her shift, thereby providing the employing establishment some substantial benefit
from the activity involved).
21

See James E. Chadden, 40 ECAB 312, 315 (1988) (stating that claimant’s arrival at the employing
establishment a half hour prior to his official starting time was not so early as to place claimant’s activity outside the
scope of employment).
22

See supra note 13.

23

See supra note 14. See also S.D., Docket No. 10-1391 (issued August 24, 2011) (The Board found that the
employee was not in the performance of duty when she was injured in the lobby while assisting a coworker to gain
entry through the handicap door before her work shift began. She arrived early in order to secure a desired parking
space close to her employment.

6

On appeal counsel contends that the issue of whether appellant was authorized to come
into work early is irrelevant and that she was at work a reasonable interval before the start of her
work shift. The Board finds that the issue of whether she was authorized to be at work some two
hours before her official work tour is relevant. For the reasons stated above, the Board finds that
appellant’s injury was not sustained in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained injury on
December 7, 2009 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 30, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0270
Issued: August 24, 2018

Case Submitted on the Record

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

JURISDICTION
On November 20, 2017 appellant, through counsel, filed a timely appeal from a
September 19, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated October 7,
2016, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 7, 2016 appellant, then a 51-year-old city carrier, filed an occupational disease
claim (Form CA-2) for a left knee injury. She stated that, while delivering mail on June 18, 2016,
she began to feel a pain in her left knee. Appellant identified June 18, 2016 as the date she first
became aware of her claimed condition and its relation to her federal employment. A supervisor
noted that appellant had not reported to work since June 20, 2016.
Appellant submitted a diagnostic report dated June 27, 2016, but the second page
containing the remainder of the findings, impressions, and the physician’s signature was omitted.3
In a statement dated June 27, 2016, she explained that on June 18, 2016 she came into work as she
was delivering the mail and felt a pain in her left knee towards the end of her route. Upon arrival
to her station, appellant had a slight limp due to the pain. On June 20, 2016 she went to work and
told her acting manager that her knee hurt. Appellant completed her route that day and left at 6:00
p.m. She called out of work the next day, June 21, 2016, due to the pain in her knee. Appellant
visited her physician on June 22, 2016, and informed her supervisor the next day about her
physician’s findings.
By development letter dated August 12, 2016, OWCP informed appellant that she had not
submitted sufficient evidence to support her claim. It noted that she had not submitted evidence
of a diagnosis from a physician of a condition resulting from an employment activity, and that she
had not provided an explanation of how employment activities caused, contributed to, or
aggravated her medical condition. OWCP also requested additional information regarding
employment factor(s) allegedly responsible for her claimed condition(s), as well as information
regarding any outside activities, and/or prior injuries to her left lower extremity, and to clarify
whether she was claiming for a traumatic injury or an occupational disease. It afforded appellant
at least 30 days to submit the requested factual and medical evidence.
Appellant responded by letter on September 6, 2016. She explained that, from October 15,
2005 through June 20, 2016, she had been a mail carrier, with duties including walking
approximately four to eight hours per day, sometimes walking up and down stairs with heavy mail
and packages in her hands. Appellant noted that over the years, her left knee would hurt, and she
would take over-the-counter medications to treat it. She stated that she had not experienced any
prior problems with her left knee, and that, on her time off, she would sit and watch television, use
the computer, go to the movies or a restaurant, or read a book. Appellant clarified that she was
claiming an occupational disease. In an accompanying cover letter dated September 9, 2016,
counsel noted that appellant’s responses to the questionnaire were enclosed, and that narrative
medical evidence from her attending physician followed under a separate cover.

3
Appellant later resubmitted this report, including the missing page with the remainder of the findings and
containing a physician’s signature, on June 21, 2016.

2

By decision dated October 7, 2016, OWCP denied appellant’s claim. It found that,
although she had established the factual component of her claim, she had not established the
medical component of her claim, as she had not submitted a medical report containing a diagnosis
in connection with her claimed injury. OWCP pointed out that appellant had not submitted any
medical evidence in support of her claim, noting that while counsel’s September 9, 2016 letter
indicated that a medical report was to follow under a separate cover, OWCP had not received such
medical evidence.
A June 27, 2016 magnetic resonance imaging (MRI) scan of the left knee revealed
moderate suprapatellar joint effusion; a multiloculated cystic-appearing structure in the
intercondylar notch; a horizontal tear of the posterior horn of the medial meniscus reaching the
inferior articular surface; a radial tear of the mid-posterior horn; medial extrusion of the body of
the posterior horn; mild blunting of the inner rim of the root ; osteoarthritic changes of the medial
compartment; irregular thinning of posterior lateral articular cartilage of the medial femoral
condyle; mild thinning of the articular cartilage of the medial tibial plateau; a bone marrow edema
of the medial aspect of the medial femoral condyle, extending into a moderate medial marginal
osteophyte; mild lateral osteophytes of the lateral femoral condyle and lateral tibial plateau; mild
patella alta and lateral tilt of the patella; thinning of the patellar articular cartilage; mild thinning
of the trochlear articular cartilage; an osteophyte of the trochlea of the lateral femoral condyle; and
mild soft tissue edema of the proximal lateral patella tendon.
In a report dated December 20, 2016, Dr. Caridad Fresneda, a Board-certified family
practitioner, stated that appellant had been seen in her office on 13 occasions between June 22,
2016 and February 22, 2017. Appellant had been referred to specialists and underwent a left knee
arthroscopy on July 27, 2016 with a partial medial and lateral meniscectomy, debridement, and
chondroplasty. Dr. Fresneda noted that appellant had undergone an MRI scan on June 27, 2016
and noted that appellant’s trochlea of the lateral femoral condyle may be due to a friction syndrome
from abnormal patellar tracking. She stated that the tears found in this MRI scan were results of
heaving/lifting of heavy objects, such as mailbags and boxes, and further noted that sudden turns,
stops, and pivoting motions while climbing stairs contributed to the finding of tears. Dr. Fresneda
observed that posterior horn medial meniscus tears are very specific to people who stand for long
periods of time, putting more stress on the workload of the knee. With regard specifically to
appellant, she noted that appellant carried sacks of mail and packages, stood and walked for long
periods of time, and loaded and unloaded mail at various locations, on a daily basis for 11 years.
Dr. Fresneda stated, “I have no doubt that this caused my patient to have a work[-]related injury
while performing her job at the [employing establishment]. This is my medical opinion.”
On June 21, 2017 appellant, through counsel, requested reconsideration of OWCP’s
October 7, 2017 decision. Counsel argued that the June 27, 2016 MRI scan of the left knee
diagnosed a horizontal tear of the medial meniscus, a radial tear of the mid-posterior horn, medial
extrusion of the body, and blunting of the inner rim of the root. As such, he contended that
appellant had submitted sufficient evidence to satisfy the medical component of fact of injury.
By decision dated September 19, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the medical
evidence submitted in support of her timely reconsideration request was irrelevant and immaterial
to the underlying issue of her case. OWCP noted that the left knee MRI scan was insufficient to

3

support her reconsideration request because it provided only interpretive information, which had
to be corroborated and explained by a qualified physician in a narrative medical report. It stated
that diagnostic reports, alone, could not establish a diagnosis. OWCP further noted that
Dr. Fresneda’s report dated December 20, 2016 did not contain any diagnosis, referring only to
“specific types of tears noted in the MRI [scan] report,” and that her report was insufficient because
it merely restated the MRI scan findings without indicating any specific diagnosis.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.5 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.6 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.7
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.8 For OWCP decisions issued on or after
August 29, 2011, the date of the request for reconsideration is the “received date” as recorded in
the Integrated Federal Employees’ Compensation System (iFECS).9 The Board has held that the
submission of evidence or argument which repeats or duplicates evidence or argument already in
the case record and the submission of evidence or argument which does not address the particular
issue involved does not constitute a basis for reopening a case.10

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

8

Id. at § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987, there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP’s decision for which review is sought.
10
Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980); Edward Matthew
Diekemper, 31 ECAB 224, 225 (1979).

4

ANALYSIS
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of her claim.
The Board finds that she met the requirements of 20 C.F.R. § 10.606(b)(3) in her June 12, 2017
request for reconsideration, and OWCP incorrectly denied merit review.
In her June 12, 2017 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, she is not entitled to a review of the merits of her claim
based upon the first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient medical evidence to
establish a diagnosis in connection with her claimed left knee injury. A claimant may be entitled
to a merit review by submitting pertinent new and relevant evidence, and in the present claim,
appellant submitted pertinent new and relevant evidence that was mischaracterized as irrelevant
by OWCP.
In a report dated December 20, 2016, Dr. Fresneda, having the benefit of both pages of the
MRI scan report, stated that appellant’s trochlea of the lateral femoral condyle may be due to a
friction syndrome from abnormal patellar tracking, and that posterior horn medial meniscus tears
are very specific to people who stand for long periods of time, putting more stress on the workload
of the knee. She noted that appellant had undergone an MRI scan on June 27, 2016. Dr. Fresneda
stated that the tears found in this MRI scan were results of heaving/lifting of heavy objects, such
as mailbags and boxes, and further noted that sudden turns, stops, and pivoting motions while
climbing stairs contributed to the finding of tears. She also noted that appellant carried sacks of
mail and packages, stood and walked for long periods of time, and loaded and unloaded mail at
various locations, on a daily basis for 11 years.
By decision dated September 19, 2017, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It noted that
Dr. Fresneda’s report dated December 20, 2016 did not contain any diagnosis, referring only to
“specific types of tears noted in the MRI [scan] report,” and that her report was insufficient because
it merely restated the MRI scan findings without indicating any specific diagnosis.
The Board notes that at the time of Dr. Fresneda’s report of December 20, 2016 she had
the benefit of reviewing the last page of the MRI scan report which was entered into the record
containing further conditions. Dr. Fresneda refers to both trochlea of the lateral femoral condyle
and a posterior horn medial meniscus tear as diagnoses for appellant’s conditions. To establish
that an injury was sustained in the performance of duty in an occupational disease claim, a claimant
must submit medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed.11 As the complete MRI scan report Dr. Fresneda reviewed
contained two further conditions relative to appellant’s left knee in her report of December 20,
2016, and as the complete two-page report was not before OWCP at the time of its October 7, 2016
11

Victor J. Woodhams, 41 ECAB 345 (1989).

5

decision, appellant has submitted evidence not previously considered and relevant to the issue of
establishing further conditions in connection with her claimed left knee injury.
As such, the Board finds that OWCP improperly denied appellant’s request for
reconsideration of the merits in its decision of September 19, 2017. The complete MRI scan report
of June 27, 2016 contained further conditions related to the claimed injury, contrary to OWCP’s
characterization of her report in its September 19, 2017 decision. The underlying issue in this case
was establishing the presence or existence of a left knee injury, for which compensation was
claimed. Therefore, OWCP was required to reopen the case for merit review upon reconsideration.
The Board accordingly finds that appellant met the third above-noted requirement of 20
C.F.R. § 10.606(b)(3) in her reconsideration request of June 23, 2017. Appellant submitted
relevant and pertinent new evidence not previously considered. Thus, pursuant to 20 C.F.R.
§ 10.608, OWCP improperly denied merit review.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this opinion, to be followed by an appropriate decision.
Issued: August 24, 2018
Washington, DC

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

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

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

6