United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cheyenne, WY, Employer
__________________________________________

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

Docket No. 20-1547
Issued: October 4, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 21, 2020 appellant filed a timely appeal from a May 20, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 23
percent permanent impairment of the right upper extremity for which he previously received a
schedule award.
FACTUAL HISTORY
On February 13, 2018 appellant, then a 64-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 12, 2018 he experienced right shoulder pain when
1

5 U.S.C. § 8101 et seq.

he lifted a tray of flat mail onto a cart while in the performance of duty. He stopped work on
February 14, 2018. OWCP accepted his claim for right shoulder rotator cuff tear or rupture.2
The record reveals that appellant has a previously accepted the June 14, 2004 occupational
disease claim (Form CA-2) for right shoulder rotator cuff tear and right shoulder osteoarthritis,
which OWCP assigned OWCP File No. xxxxxx252. On January 12, 2005 appellant underwent
authorized right shoulder surgery for repair of tendons and partial removal of the collar bone. On
June 7, 2005 OWCP granted appellant a schedule award for 23 percent right upper extremity
permanent impairment under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).3 Appellant also has a previously accepted
traumatic injury claim for a right shoulder rotator cuff tear causally related to a January 19, 2016
employment injury, which OWCP assigned OWCP File No. xxxxxx516. On August 16, 2018
OWCP administratively combined the present claim, under OWCP File No. xxxxxx127, with
OWCP File Nos. xxxxxx252 and xxxxxx516, designating OWCP File No. xxxxxx252 as the
master file.
Appellant retired from federal service, effective June 30, 2018.
On October 30, 2018 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
Appellant submitted an August 27, 2018 examination report by Dr. Bruce D. Smith, a
Board-certified orthopedic surgeon, who recounted that appellant was seen for follow up of right
shoulder pain. Upon examination of appellant’s right shoulder, Dr. Smith observed tenderness in
the deltoid, greater tubercle and supraspinatus area and positive cross arm and Hawkins tests. He
assessed complete right shoulder rotator cuff tear and chronic right shoulder pain.
In a November 9, 2018 development letter, OWCP requested that appellant’s treating
physician submit an impairment evaluation report in accordance with the sixth edition of the
A.M.A., Guides.4 It afforded him 30 days to submit additional medical evidence in support of his
schedule award claim.
In a March 4, 2019 report, Dr. Gregory Reichhardt, a Board-certified physiatrist, discussed
that appellant had a history of two prior rotator cuff repairs and wa s doing well until the
February 12, 2018 work injury. He recounted appellant’s complaints of pain over the anterior and
lateral aspect of the shoulder. Upon examination of appellant’s shoulder, Dr. Reichhardt observed
tenderness to palpation over the anterior and lateral aspect and mild weakness in the supraspinatus
2

A February 14, 2018 right shoulder x-ray scan showed two suture anchors in the humeral head from the two
rotator cuff repairs and demonstrated that the overlying rotator cuff was re-torn.
3
A.M.A., Guides (5 th ed. 2001). The award was based on a June 3, 2005 report of an OWCP district medical
adviser (DMA) who indicated that appellant had 12 percent right upper extremity permanent impairment due to loss
of range of motion (ROM) of the right shoulder, 10 percent right upper extremity permanent impairment due to a
diagnosis of status post distal clavicle-resection, and 2 percent right upper extremity permanent impairment due to
loss of strength on abduction for a combined rating of 23 percent right upper extremity permanent impairment.
4

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

2

and infraspinatus. ROM testing, performed three times, was 80 degrees flexion, 50 degrees
extension, 30 degrees adduction, 90 degrees abduction, and 40 degrees internal and external
rotation. Dr. Reichhardt diagnosed right shoulder pain and irreplaceable rotator cuff tear. He
noted that appellant had reached maximum medical improvement (MMI). Based on appellant’s
limitations in ROM, Dr. Reichhardt determined that appellant had 9 percent permanent impairment
for limited flexion, 0 percent permanent impairment for extension, 3 percent permanent
impairment for limited abduction, 1 percent permanent impairment for limited adduction, 4 percent
permanent impairment for limited external rotation, and 4 percent permanent impairment for
limited internal rotation for a total of 21 percent right upper extremity permanent impairment.
By decision dated March 19, 2019, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish that he sustained a
permanent impairment due to his accepted employment-related right shoulder condition.
On October 25, 2019 Dr. Morley Slutsky, a Board-certified occupational and preventive
medicine specialist serving as DMA, reviewed a statement of accepted facts, and the case file, and
noted that appellant’s claim was accepted for right shoulder rotator cuff tear. He indicated that,
since he was not provided with any surgery or diagnostic reports, he could not provide an
impairment rating utilizing the diagnosis-based impairment (DBI) rating method. Dr. Slutsky
referred to Table 15-34, (Shoulder Range of Motion), page 475, of the A.M.A., Guides and applied
the right shoulder ROM measurements provided by Dr. Reichhardt. He determined that appellant
had 9 percent permanent impairment for 80 degrees flexion, 0 percent permanent impairment for
50 degrees extension, 3 percent permanent impairment for 90 degrees abduction, 1 percent
permanent impairment for 30 degrees adduction, 4 percent permanent impairment for 40 degrees
internal rotation, and 2 percent permanent impairment for 40 degrees external rotation for a total
of 19 percent right upper extremity permanent impairment. Dr. Slutsky noted that he disagreed
with Dr. Reichhardt’s impairment of four percent permanent impairment for 40 degrees external
rotation based on Table 15-34. He assigned a grade modifier for functional history (GMFH) of 1
because appellant’s shoulder was still symptomatic. Applying the net adjustment formula,
Dr. Slutsky determined that there was no net adjustment, which resulted in a total of 19 percent
right upper extremity permanent impairment. He reported that appellant had reached MMI on
March 4, 2019. Dr. Slutsky further indicated that, because appellant had a prior award for 23
percent right upper extremity permanent impairment, appellant was not entitled to an additional
schedule award.
In a November 14, 2019 decision, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish that he sustained a permanent
impairment due to his accepted employment-related right shoulder condition. It noted that,
because he was previously awarded a schedule award for 23 percent right upper extremity
permanent impairment, he was not entitled to an increased schedule award based on the
October 25, 2019 DMA report of Dr. Slutsky.
On December 5, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review. By decision dated February 14, 2020, a hearing
representative set aside the November 14, 2019 decision and remanded the case for further medical
development. On remand OWCP was instructed to provide the DMA with the requested reports

3

of surgery and diagnostic studies so that he could provide an opinion on whether an impairment
rating based on the DBI method was appropriate.
In an April 14, 2020 supplemental report, Dr. Slutsky, the DMA, indicated that he was
provided with appellant’s right shoulder surgery note, but not his right shoulder magnetic
resonance imaging (MRI) scan. He utilized that the DBI rating method to find that, under Table
15-5, (Shoulder Regional Grid), page 403, the class of diagnosis (CDX) for appellant’s right rotator
cuff tear resulted in a class 1 impairment with a default value of five percent. Dr. Slutsky assigned
a GMFH of 1 because appellant was still symptomatic and grade modifier for physical examination
(GMPE) of 2 based on ROM measurements. He explained that a grade modifier for clinical studies
(GMCS) was not applicable because diagnostic studies were used for class assignment. Applying
the net adjustment formula, (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX) = (1 – 1) +
(2 – 1), Dr. Slutsky calculated a net adjustment of +1 for grade D or six percent permanent
impairment of the right upper extremity. He also reported that, under the ROM method, appellant
had 19 percent right upper extremity permanent impairment and provided the calculations for the
ROM method as noted in his previous October 25, 2019 report. Dr. Slutsky reiterated that, since
appellant was previously granted a schedule award for 23 percent right upper extremity permanent
impairment, appellant was not entitled to additional impairment.
On April 23, 2020 OWCP requested that Dr. Slutsky clarify his impairment rating and
noted that it was providing the February 23, 2016 operative report and January 21 and March 28,
2016 MRI scan reports.
In a May 10, 2020 supplemental report, Dr. Slutsky discussed the additional diagnostic
reports provided to him, reviewed the history of injury, and noted that appellant’s claim was
accepted for right shoulder rotator cuff tear. He referred to the A.M.A., Guides and determined
that, under the ROM method for rating appellant’s right shoulder, appellant had 19 percent right
upper extremity permanent impairment. Dr. Slutsky provided the same calculations as his
previous reports. Using the DBI method, he referred to Table 15-5, page 403, and determined that,
for a CDX of right rotator cuff tear, appellant had a class 1 impairment for residual dysfunction
with a default value of five percent. Dr. Slutsky assigned a GMFH of 1 and a GMPE of 2. He
assigned a GMCS of 2 based on x-ray and MRI scan diagnostic testing. After applying the net
adjustment formula, (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX) = (1 – 1) + (2 – 1) +
(2 – 1), Dr. Slutsky calculated a net adjustment of +2 for grade E or seven percent permanent
impairment of the right upper extremity. He noted that the ROM impairment rating of 19 percent
exceeded the DBI impairment rating of 7 percent right upper extremity permanent impairment.
Dr. Slutsky reiterated that, since appellant was previously granted a schedule award for 23 percent
right upper extremity permanent impairment, he was not entitled to a n additional impairment
rating.
By decision dated May 20, 2020, OWCP denied appellant’s claim for an increased
schedule award. It found that the medical evidence of record was insufficient to establish greater
permanent impairment than the 23 percent right upper extremity permanent impairment previously
awarded.

4

LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has conc urred in such
adoption.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards. 8
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish that the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the present
case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the
CDX is determined from the Shoulder Regional Grid (including identification of the default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. 9 The net
adjustment formula is (GMFH – CDX) + (GMPE – CDX) + (GMCS – CDX).10 Under Chapter
2.3, evaluators are directed to provide reasons for their impairment choices, including the choices
of diagnoses from regional grids and calculations of modifier scores.11
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e. DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
9

A.M.A., Guides 405-12; see M.P., Docket No. 13-2087 (issued April 8, 2014).

10

Id. at 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

5

Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the
higher rating should be used.” (Emphasis in the original.)12
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allows for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”13
It is well established that benefits payable under 5 U.S.C. §8107(c) are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
cases is for impairment of the same member or function; and (2) the latter impairment in whole or
in part would duplicate the compensation payable for the preexisting impairment. 14
ANALYSIS
The Board finds that this case is not in posture for decision.
On June 7, 2005 OWCP previously granted appellant a schedule award for 23 percent right
upper extremity permanent impairment under the fifth edition of the A.M.A., Guides. On
October 30, 2018 appellant filed a claim for a schedule award under this present claim. OWCP
initially received a March 4, 2019 report from Dr. Reichhardt, who provided ROM testing,
performed three times, of 80 degrees flexion, 50 degrees extension, 30 degrees adduction, 90
degrees abduction, and 40 degrees internal and external rotation. Dr. Reichhardt applied his ROM
measurements to the applicable table of the A.M.A., Guides and determined that, under the ROM
method, appellant had a total of 21 percent right upper extremity permanent impairment.
In accordance with its procedures, OWCP properly routed Dr. Reichhardt’s March 4, 2019
report to its DMA who provided permanent impairment ratings using both the DBI and ROM
methodologies. Dr. Reichhardt determined that appellant had 7 percent right upper extremity
permanent impairment under the DBI method for the CDX of rotator cuff tear and 19 percent right
upper extremity permanent impairment under the ROM method. The DMA concluded that the
ROM method yielded the greater impairment.
The Board has reviewed the DMA’s ROM impairment rating under Table 15-34, page 475,
of the A.M.A., Guides, based on the findings of Dr. Reichhardt and finds that appellant has 19
percent right upper extremity permanent impairment based upon the ROM method. Pursuant to
Table 15-34, 80 degrees flexion equals 9 percent permanent impairment, 50 degrees extension
12

FECA Bulletin No. 17-06 (issued May 8, 2017).

13

Id.

14

20 C.F.R. § 10.404(d); see S.M., Docket No. 17-1826 (issued February 26, 2018); T.S., Docket No. 16-1406
(issued August 9, 2017); T.S., Docket No. 09-1308 (issued December 22, 2009).

6

equals 0 percent permanent impairment, 90 degrees abduction equals 3 percent permanent
impairment, 30 degrees adduction equals 1 percent permanent impairment, 40 degrees internal
rotation equals 4 percent permanent impairment, and 40 degrees external rotation equals 2 percent
permanent impairment for a total of 19 percent right upper extremity permanent impairment. The
DMA properly found a GMFH of 1, which resulted in no adjustment. He concluded that
appellant’s current permanent impairment of the right upper extremity was based on the ROM
method as it yielded a higher permanent impairment rating than the DBI method. Accordingly,
the Board finds that the DMA properly calculated that appellant has 19 percent right upper
extremity permanent impairment.15 The DMA further explained that, since appellant was
previously granted a schedule award for 23 percent right upper extremity permanent impairment,
he was not entitled to an additional impairment rating. Accordingly, OWCP determined that
appellant was not entitled to a schedule award greater than the 23 percent permanent impairment
previously awarded based on the opinion of its DMA.
Although the DMA sought to apportion appellant’s impairment between the current
accepted condition and the previously accepted condition, the Board notes that a claimant is not
precluded from an additional schedule award solely because he or she received a greater award to
the same scheduled member from another claim. 16 The Board has previously held that simply
comparing the prior percentage of permanent impairment awarded to the current impairment for
the same member is not always sufficient to deny an increased schedule award claim. 17 The issue
is not whether the current permanent impairment rating is greater than the prior impairment ratings,
but whether it duplicates in whole or in part the prior impairment rating. 18
The Board notes that, under OWCP File No. xxxxxx252, OWCP granted appellant a
schedule award for a total of 23 percent right upper extremity p ermanent impairment, with 12
percent due to loss of ROM of the right shoulder, 10 percent for a diagnosis of status post distal
clavicle resection, and 2 percent due to loss of abduction strength . In the present case, the DMA
calculated 19 percent right upper extremity permanent impairment due to loss of ROM of the right
shoulder; however, because appellant had previously received schedule award compensation for
23 right upper extremity percent permanent impairment, OWCP found that he was not entitled to
an increased schedule award. The Board finds, however, that OWCP failed to take into account
that the previous right upper extremity rating included ratings that were not based on the same
accepted conditions. 19 Therefore, the Board finds that OWCP has not properly analyzed
appellant’s entitlement to schedule award benefits in the present claim for his accepted right
shoulder rotator cuff tear condition.

15

See I.L., Docket No. 20-0048 (issued July 7, 2020).

16

See S.M., supra note 14.

17

R.K., Docket No. 19-0247 (issued August 1, 2019); M.K., Docket No. 18-1614 (issued March 25, 2019).

18

Id.; see also Richard Saldibar, 51 ECAB 585 (2000).

19

See D.P., Docket No. 19-1514 (issued October 21, 2020); see also P.M., Docket No. 18-1215 (issued
June 18, 2020).

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Furthermore, OWCP’s procedures provide that claims for increased schedule awards may
be based upon additional exposure. 20 An increased schedule award may be awarded if it is
determined that, after payment of a schedule award, the claimant is entitled to a greater percentage
of loss or if the claimant sustains increased impairment at a later date.21 In this case, appellant
submitted a February 14, 2018 right shoulder x-ray scan report, which showed that his rotator cuff
was retorn. Accordingly, the Board will remand the case to OWCP to analyze appellant’s
entitlement to an additional schedule award for his accepted right upper extremity conditions. On
remand, OWCP should request that the DMA explain how appellant’s current right upper
extremity impairment rating duplicated the prior right upper extremity impairment rating.
Following this and other such further development, as deemed necessary, OWCP shall issue a de
novo decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2020 merit decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 4, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

Supra note 8, Chapter 2.808.9 (February 2013).

21

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 20-1207
Issued: August 5, 2021

Case Submitted on the Record

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

JURISDICTION
On May 27, 2020 appellant filed a timely appeal from January 29 and April 23, 2020
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days has elapsed from the last merit decision dated November 1, 2018, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s November 1, 2019 request
for reconsideration pursuant to 5 U.S.C. § 8128(a); and (2) whether OWCP properly denied
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of
Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first
time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for
the first time on appeal. Id.

appellant’s March 25, 2020 request for reconsideration, finding that it was untimely filed and
failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On November 29, 1999 appellant, then a 40-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 28, 1999 she sustained an injury when a box struck
her on the right side of her face.3 OWCP accepted the claim for right contusion of orbital tissues,
which was subsequently expanded to include right eye uveitis.4
On February 17, 2014 appellant obtained the services of Aaron B. Aumiller, Esq., and
Jason Lomax, Esq., to represent her before OWCP.
By letter dated March 16, 2015, OWCP acknowledged its receipt of appellant’s statement
designating Mr. Aumiller as her then-counsel and included an explanation of its procedures
pertaining to representative’s fee petitions. It advised that, in each case where a representative’s
fee is desired, a petition for approval of the fee must be submitted to OWCP. The petition must
contain an itemized statement acknowledging that the claimant is aware that he or she must pay
the fee and that OWCP is not responsible for paying (or reimbursing) the fee or other costs
associated with the representative’s services.
On June 27, 2017 then-counsel submitted a fee petition in the amount of $9,462.70 for
22.13 discounted hours of billed services rendered from February 17, 2014 through
March 22, 2016.5 An itemized statement listing the services and time spent on each date was
provided. Then-counsel advised that they were unable to obtain appellant’s approval of the
requested attorney fee.
On June 27, 2017 OWCP approved the fee petition, noting that it had been accompanied
by a signed statement from appellant approving the fee.
In a letter dated July 11, 2017, then-counsel informed OWCP that they did not submit a
signed fee approval from appellant. They requested OWCP issue a decision correcting that error.
Then-counsel further noted that the prior fee petition was sent in error. They requested that OWCP
review and approve their total fee in the amount of $22,819.50 for 46.10 hours. An itemized
statement listing the services and time spent on each date was provided.

3

Appellant was removed from employment with the employing establishment, effective August 2, 2001.

4

By decision dated July 5, 2007, OWCP denied appellant’s claim for disability for the period January 2, 1999
through August 2, 2001, which was affirmed by an OWCP hearing representative in a decision dated March 6, 2008.
It denied her claim for a schedule award in a decision dated March 6, 2014. By decision dated July 30, 2015, OWCP
vacated the denial of appellant’s claim for a schedule award. On November 6, 2015 it granted her a schedule award
for 100 percent permanent impairment of the right eye.
5
Counsel noted “By agreement, I have limited my fee to no more than twenty percent (20%) of her recovery of
compensation.”

2

In a September 26, 2017 letter, OWCP forwarded appellant a copy of then-counsel’s
revised fee petition. It afforded her 30 days to comment and denote whether the fee charged was
reasonable and appropriate.
In a letter dated October 11, 2017, appellant disagreed with counsel’s requested fee of
$22,891.50. She stated that she did not sign the form approving a fee in the amount of $9,462.70
as they were not entitled to receive 20 percent of her schedule award. Appellant asserted that they
were only entitled to five percent of the award, which had been paid in full.
In a letter dated August 31, 2018, then-counsel disagreed with appellant’s assertions that
she had either paid in full or overpaid for the provided legal services. They noted that the fee
agreement provided for a fee cap of 20 percent of a schedule award, but noted that the fee
agreement did not apply if their services were terminated. Then-counsel acknowledged receipt of
$3,177.10 from appellant, which remained in a representative trust account, and that a check in the
amount of $6,285.60 had been returned to her uncashed due to her hostility. They disagreed with
her assertion that counsel’s fee was limited to five percent of her schedule award by law.
Then-counsel again requested a fee in the amount of $22,819.50. Attached to the August 31, 2018
letter was a copy of the client agreement signed by appellant on February 17, 2014. Regarding the
fee for legal services, the agreement provided a rate of $495.00 per hour. Appellant would be
billed accordingly, but payment was not required unless a benefit was obtained on her behalf. At
that time, the fee would become due and would be capped at 20 percent of the benefit recovered.
In cases where there were opportunities for multiple benefits, the 20 percent fee cap would apply
each time there is a benefit recovery. Then-counsel further noted that they reserved the right to
collect the total fee in full if appellant terminated their services.6
In an October 17, 2018 letter, OWCP afforded her 30 days to comment and to denote
whether the fees charged were reasonable and appropriate.
In an October 22, 2018 letter, appellant asserted that then-counsel was owed nothing as
they had been paid the amount owed for the legal services provided. In support of her assertion,
she submitted a copy of an April 8, 2016 letter from them informing her that the total paid to date
was $9,462.70 and that the firm was not asking for any additional funds. Then-counsel attached
an itemized statement of time and services provided and requested that she sign, date, and return
the attached fee approval form. The letter emphasized that appellant was not being asked to pay
anything more than what she had already paid; they were merely requesting she return the attached
fee approval form.
By decision dated November 1, 2018, OWCP approved counsel’s fee petition in the
amount of $22,819.50 for services rendered from February 17, 2014 through March 22, 2016.7 It
found that appellant had not contested the reasonableness of the amount of the fee.
6
The Board notes that OWCP’s regulations provide that “[c]ontingency fees are not allowed in any form.”
20 C.F.R. § 10.702(a). See also, E.J., Docket No. 19-1909 (issued August 19, 2020).
7

The decision noted the period as February 17, 2014 through July 11, 2017; however, this appears to be a
typographical error as the July 11, 2017 fee petition notes that the legal services were rendered from February 17,
2014 through March 22, 2016.

3

On November 1, 2019 appellant requested reconsideration of the November 1, 2018
attorney fee decision. She resubmitted correspondence received from prior-counsel asserting that
this established that she had paid counsel in full for the legal services provided.
By decision dated January 29, 2020, OWCP denied appellant’s November 1, 2019 request
for reconsideration pursuant to 5 U.S.C. § 8128(a).
On March 25, 2020 appellant again requested reconsideration of the November 1, 2018
attorney fee decision. She again asserted that she had paid then-counsel what was owed in full,
i.e., “20 percent out of each schedule award check” she received. Appellant noted the amount she
paid and asserted that she never terminated then-counsel’s services or became hostile with them.
By decision dated April 23, 2020, OWCP denied appellant’s March 25, 2020 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.10
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.12
OWCP’s procedures provide that each request for reconsideration must be handled by a
senior claims examiner who was not involved in the making of the contested decision. All

8
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b (February 2016).
11

Id. at § 10.606(b)(3).

12

Id. at § 10.608(a), (b).

4

reconsideration decisions, whether affirmative or negative, must be issued by a senior claims
examiner or higher authority.13
ANALYSIS -- ISSUE 1
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).
Appellant disagreed with the November 1, 2018 decision and timely requested
reconsideration on November 1, 2019. The underlying issue on reconsideration is the approval of
attorney fees in the amount of $22,819.50 for services rendered from February 17, 2014 through
March 22, 2016. Appellant asserted that then-counsel had been paid in full for the legal services
rendered. The Board finds that her argument is relevant to the underlying issue of the approval of
a representative’s fee petition. Appellant asserted that then-counsel had been paid in full the
amount owed for their legal services. While this argument is not new, OWCP did not previously
address this assertion. As appellant has advanced a relevant legal argument which was not
previously considered by OWCP, such argument warrants further merit review.14
As appellant has raised a relevant legal argument not previously considered by OWCP, she
is entitled to a review of the merits of the claim under section 10.606(b)(3) of OWCP’s
regulations.15 Following any further development as deemed necessary, OWCP shall issue an
appropriate merit decision regarding counsel’s fee petition.16
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).17

13

Supra note 10 at Chapter 2.1602.2(b) (October 2011).

14
See M.R., Docket No. 19-1449 (issued March 11, 2020); D.K., Docket No. 19-0637 (issued December 11,
2019); D.M., Docket No. 16-1754 (issued January 10, 2018).
15

J.T., Docket No. 19-1829 (issued August 21, 2020); T.P., Docket No. 18-0608 (issued August 2, 2018). See L.K.,
Docket No. 15-0659 (issued September 15, 2016); T.L., Docket No. 16-0536 (issued July 6, 2016).
16

Supra note 6.

17

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the April 23 and January 29, 2020 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: August 5, 2021
Washington, DC

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

Patricia H. Fitzgerald, 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
__________________________________________
I.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Juan, PR, Employer
__________________________________________

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

Docket No. 16-1796
Issued: January 13, 2017

Case Submitted on the Record

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

JURISDICTION
On September 9, 2016 appellant filed a timely appeal of a June 6, 2016 merit decision
and an August 11, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for an oral
hearing as untimely; and (2) whether appellant has met her burden of proof to establish
permanent impairment of a scheduled member.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 14, 2014 appellant, then a 68-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on October 10, 2014 she sustained severe trauma to one of her
fingers when it was caught in a machine.
The employing establishment provided appellant with an authorization for treatment
(Form CA-16) and appellant’s physician completed the reverse side on October 14, 2014 noting
that appellant had sustained a partial amputation of her right ring finger.
In a letter dated October 30, 2014, OWCP noted that appellant’s claim initially appeared
to be a minor injury that resulted in minimal lost time from work and that payment of a limited
amount of medical expenses was administratively approved. It reopened her claim to formally
consider the merits of her claim and requested additional factual and medical evidence. OWCP
afforded appellant 30 days to respond.
On December 1, 2014 OWCP accepted appellant’s claim for open fracture of her right
phalanx.
Appellant filed a claim for a schedule award (Form CA-7) on February 12, 2015.
Dr. Eduardo Miralles Alonso, a general practitioner, diagnosed right third finger trauma and
laceration on November 5, 2014. On November 6, 2014 Dr. Carmen J. Negron, a radiologist,
diagnosed comminuted fracture of the tuft of the fourth finger with osteoarthritic changes at the
distal interphalangeal joint including joint space narrowing and marginal osteophytes.
In a letter dated March 30, 2015, OWCP requested that appellant provide additional
medical opinion evidence in support of her claim for permanent impairment. It advised that any
impairment rating should reference the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides). OWCP afforded appellant 30 days to respond.
In notes dated November 6, 2014 and April 28, 2015, Dr. John Velez-Rodriquez, a
physiatrist, diagnosed right fourth digit distal phalangeal laceration, comminute fracture, and
disturbance of skin sensation. He also noted hand osteoarthritis.
Dr. Miralles examined appellant on April 27, 2015 and found discomfort in the fourth
finger with fracture, laceration, and amputation and distal deformity as well as disorders in
sensitivity. Appellant submitted several medical reports in Spanish.
In a June 3, 2015 decision, OWCP denied appellant’s claim for a schedule award finding
that she failed to submit the requested medical evidence to establish permanent impairment.
On May 2, 2016 appellant filed a claim for a schedule award (Form CA-7). In a letter
dated May 5, 2016, OWCP requested that she provide additional medical evidence establishing
her permanent impairment for schedule award purposes. It again afforded appellant 30 days to
respond.

2

By decision dated June 6, 2016, OWCP denied appellant’s claim for a schedule award
finding that she had not submitted the medical evidence necessary to establish permanent
impairment of a scheduled member.
Appellant requested an oral hearing from OWCP’s Branch of Hearings and Review on
August 2, 2016. By decision dated August 11, 2016, OWCP’s Branch of Hearings and Review
denied her requested oral hearing finding that her request was untimely filed and that the issue in
the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b) of FECA concerning a claimant’s entitlement to a hearing before an
OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ...
not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after
the date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”2 Section 10.615 of OWCP’s regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record.3 OWCP regulations provide that the request must be sent within 30 days of the date of
the decision for which a hearing is sought and also that the claimant must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision.4
The Board has held that OWCP, in its broad discretionary authority in the administration
of FECA,5 has the power to hold hearings and reviews of the written record in certain
circumstances where no legal provision was made for such reviews and that OWCP must
exercise this discretionary authority in deciding whether to grant a hearing or review of the
written record.6 OWCP procedures, which require OWCP to exercise its discretion to grant or
deny a hearing or review of the written record when the request is untimely or made after
reconsideration, are a proper interpretation of FECA and Board precedent.7
ANALYSIS -- ISSUE 1
In the instant case, OWCP properly determined that appellant’s August 2, 2016 request
for an oral hearing was untimely filed as it was made more than 30 days after the issuance of
OWCP’s June 6, 2016 decision. It therefore, properly denied her hearing as a matter of right.
OWCP then appropriately proceeded to exercise its discretion, in accordance with Board
precedent, to determine whether to grant a hearing in this case. It determined that a hearing was
2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

5 U.S.C. §§ 8101-8193.

6

Marilyn F. Wilson, 52 ECAB 347 (2001).

7

Daniel J. Perea, 42 ECAB 214, 221 (1990).

3

unnecessary as the issue could be resolved through the submission of evidence in the
reconsideration process. Therefore, OWCP properly denied appellant’s request for a hearing as
untimely and properly exercised its discretion in determining to deny her request for a hearing as
she had other review options available.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.10
OWCP’s procedures provide that specific medical evidence is required to support a
schedule award including: competent medical evidence which shows that the impairment has
reached a permanent and fixed state or maximum medical improvement; medical evidence which
describes the impairment in sufficient detail for the claims examiner to visualize the character
and degree of disability; and medical evidence which gives a percentage of impairment based on
a specific diagnosis.11
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member entitling her to a schedule award.
On May 2, 2016 appellant filed a claim for a schedule award. In a letter dated May 5,
2016, OWCP requested that she provide additional medical evidence establishing her permanent
impairment for schedule award purposes. It afforded appellant 30 days to respond. Appellant
did not provide any evidence addressing her permanent impairment. The Board notes that there
is no evidence of record complying with the requirements to establish permanent impairment, no
medical opinion that appellant has reached maximum medical improvement, no medical
evidence which describes the impairment in sufficient detail for the claims examiner to visualize
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability, Chapter 2.808.5
(February 2013).

4

the character and degree of disability, and no medical evidence which gives a percentage of
impairment based on a specific diagnosis.12 As appellant failed to provide medical evidence of
permanent impairment as a result of her accepted condition of open fracture of her right phalanx,
she has not met her burden of proof.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the Branch of Hearings and Review properly denied appellant’s
request for an oral hearing as untimely. The Board further finds that appellant has not met her
burden of proof to establish permanent impairment of a scheduled member entitling her to a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT August 11 and June 6, 2016 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: January 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

See id.; see also Vanessa Young, 55 ECAB 575 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1505
Issued: June 21, 2019

Case Submitted on the Record

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

On August 1, 2018 appellant filed a timely appeal from a May 31, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-1505.1
In a November 15, 2017 preliminary notice, OWCP advised appellant of its determination
that he had received an overpayment of compensation in the amount of $8,442.13 because he
received Social Security Administration (SSA) Federal Employees Retirement System age-related
benefits for his federal service, as well as Federal Employees’ Compensation Act (FECA) benefits
for the period from October 1, 2001 to October 2, 2017. It also informed him of its preliminary
determination that he was at fault in the creation of the overpayment because he accepted payments
which he knew or should reasonably have known were incorrect. Appellant contested the
preliminary determination as to the amount of the overpayment and the finding of fault.

1

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

By decision dated May 31, 2018, OWCP finalized its determination that appellant received
an $8,442.13 overpayment of compensation for the period commencing December 1, 2001 when
he began receiving SSA age-based benefits. It found that he was at fault in the creation of the
overpayment, thereby precluding waiver of recovery of the overpayment. OWCP informed him
that the overpayment would be collected by withholding $100.00 from his continuing
compensation payments, every 28 days, beginning June 23, 2018.
The record contains a December 30, 2008 agreement by appellant accepting a lump-sum
settlement of a schedule award for the period December 21, 2008 to February 9, 2013. OWCP’s
regulations provide that retirement benefits paid by the Office of Personnel Management or SSA
can be paid concurrently with schedule award compensation under FECA without a deduction
from the FECA benefits.2
The Board has held that, in overpayment cases, it is essential that OWCP provide the
recipient of compensation with a clear statement showing how the overpayment was calculated.3
With respect to the fact and amount of overpayment, the Board finds that OWCP has not provided
adequate findings of facts which would allow appellant to understand the precise defect of his
claim and the kind of evidence which would tend to overcome it.4 It has not adequately explained
how the amount of the overpayment was determined in light of appellant’s receipt of schedule
award compensation for a portion of the period of the overpayment. The Board therefore finds
that the overpayment determination must be set aside and the case remanded for further
consideration of evidence followed by a de novo decision.

2

FECA Bulletin No. 97-09 (issued February 3, 1997); K.H., Docket No. 18-0171 (issued August 2, 2018); A.S.,
Docket No. 17-1459 (issued December 22, 2017).
3

See Teresa A. Ripley, 56 ECAB 528 (2005).

4
20 C.F.R. § 10.126; H.H., Docket No. 18-0356 (issued October 24, 2018); P.G., Docket No. 14-0430 (issued
August 1, 2014).

2

IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: June 21, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laurens, SC, Employer
__________________________________________

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

Docket No. 11-608
Issued: September 22, 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 January 5, 2011 appellant filed a timely appeal from a November 26, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her occupational
disease claim. 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 met her burden of proof to establish that her carpal tunnel
syndrome is causally related to factors of her federal employment.
FACTUAL HISTORY
On June 25, 2010 appellant, then a 44-year-old rural carrier associate, filed an
occupational disease claim alleging that she sustained carpal tunnel syndrome as a result of her
employment. She stated that the injury occurred because she had to perform grasping and other
1

5 U.S.C. § 8101 et seq.

repetitive movements with her hands. Appellant submitted a June 29, 2010 Form CA-17 duty
status report, with an illegible signature, which noted her physical restrictions.
On July 19, 2010 OWCP advised appellant of the deficiencies in her claim and provided
her with the opportunity to submit additional evidence. Appellant was asked to describe the
development of her claimed condition, and submit a physician’s opinion supported by a medical
explanation as to how work activities in her federal employment caused, contributed to or
aggravated her medical condition.
OWCP received two letters dated July 19, 2010 from the employing establishment
challenging the claim. In a July 21, 2010 statement, a Wanda Watts noted appellant’s gardening
activities. Appellant submitted a Form CA-17, with an illegible signature dated August 5, 2010
with a diagnosis of “diabetic neuropathy, possible carpal tunnel syndrome.”
OWCP also received a medical note dated August 6, 2010, by Dr. Subha Parchuri, Boardcertified in internal medicine, who stated that appellant had upper extremity neuropathy
numbness, with tingling in the thumb and first three fingers. Dr. Parchuri indicated that
appellant should undergo electromylogram (EMG) evaluation to evaluate neuropathy involving
the carpal tunnel. She concluded that prolonged repetitive work may exacerbate carpal tunnel
syndrome.
In an August 27, 2010 decision, OWCP denied appellant’s claim finding that she failed to
submit sufficient medical evidence to establish a carpal tunnel condition caused by factors of her
federal employment.
In support of a request for reconsideration, appellant submitted an August 5, 2010 form
report from Dr. Parchuri which noted diagnoses of carpal tunnel and diabetic neuropathy.
OWCP also received a nerve conduction and EMG report dated August 24, 2010 which was
interpreted by Dr. Nasir Waheed, a Board-certified neurologist, as revealing mild-to-moderate
bilateral carpal tunnel syndrome.
In a report dated September 1, 2010, Dr. William Owens, a Board-certified orthopedic
surgeon, opined that appellant has “EMG documented bilateral carpal tunnel syndrome, right
greater than left.” He noted that appellant had diabetic neuropathy in her upper extremities and
she was “curious as to whether her job has caused her carpal tunnel syndrome.” Dr. Owens
noted that it is difficult to determine if her job caused her the condition, but the motions she
described to him could certainly exacerbate carpal tunnel syndrome.
In a November 26, 2010 decision, OWCP denied the claim finding that she failed to
establish that her diagnosed condition was causally related to factors of her federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden to establish the essential
elements of her claim including the fact that the individual is an employee of the United States
2

5 U.S.C. §§ 8101-8193.

2

within the meaning of FECA, that the claim was timely filed, that an injury was sustained in the
performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.3
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.4
The Board has held that medical conclusions unsupported by rationale are of diminished
probative value and insufficient to establish causal relationship.5 While the medical opinion of a
physician supporting causal relationship does not have to reduce the cause or etiology of a
disease of condition to an absolute medical certainty, neither can such opinion be speculative or
equivocal.6 As a matter of law, terms such as suspected, could, may, might be, and possible
establish an opinion as equivocal, speculative or conjectural and, therefore, of limited probative
value.7
ANALYSIS
OWCP has accepted that appellant performed grasping and repetitive motion in her
employment and that she was diagnosed with bilateral carpal tunnel condition. The issue is
whether the medical evidence of record establishes that her bilateral carpal tunnel syndrome is
causally related to her federal employment. The Board finds that the medical evidence of record
lacks a rationalized medical opinion explaining the causal relationship between appellant’s
medical condition and factors of her federal employment. The Board finds that she has not
satisfied her burden of proof.
Dr. Waheed diagnosed mild-to-moderate bilateral carpal tunnel syndrome based upon
EMG evaluation, but offered no opinion regarding the cause of this condition.
Appellant also submitted a progress note by Dr. Parchuri dated August 6, 2010 and a
medical note from Dr. Owens dated September 1, 2010. However, neither of these reports are
3

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404 (1997).

5

See Albert C. Brown, 52 ECAB 152 (2000).

6

Samuel Senkow, 50 ECAB 370 (1999).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.3(g) (April 1993).

3

sufficient to establish her claim. Dr. Parchuri stated that “prolonged repetitive work may
exacerbate carpal tunnel syn[drome].” However, he did not make reference to a specific history
of injury or describe the actual duties of the position appellant performed in her employment.
The term “prolonged repetitive work” is not sufficient to establish that Dr. Parchuri had a clear
history of appellant’s employment or adequately explain how any job duties caused her
condition. Therefore, this medical report does not provide the necessary rationalized medical
opinion to establish that appellant’s federal employment duties caused or aggravated her carpal
tunnel condition.
The report by Dr. Owens dated September 1, 2010 diagnosed bilateral carpal tunnel
syndrome, right greater than left, and raised the possibility that appellant’s work could have
exacerbated her carpal tunnel syndrome. Dr. Owens, however, failed to provide a clear history
of injury or a detailed description of appellant’s actual job duties. He only stated that carpal
tunnel syndrome “could be” exacerbated by her working conditions. Dr. Owens did not state a
medical opinion with any degree of medical certainty.8 At best, this statement is an equivocal
opinion that is unsupported by sufficient medical rationale. As such, this medical report also
fails to establish causal relationship.
There is sufficient rationalized medical evidence of record to establish that appellant’s
diagnosed condition was caused or aggravated by her federal employment duties as alleged. The
Board finds that she failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant failed to establish that her carpal tunnel condition was
caused by her federal employment.9

8

In order to be considered rationalized, a physician’s opinion must be expressed in terms of a reasonable degree
of medical certainty and supported by medical rationale explaining the nature of the relationship between the
diagnosed condition to specific employment factors. See Gary M. DeLeo, 56 ECAB 656 (2005).
9

Appellant may submit additional evidence, together with a written request for reconsideration, to OWCP within
one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 26, 2010 is affirmed.
Issued: September 22, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE NAVY, FEDERAL
FIRE DEPARTMENT, San Nicolas Island, CA,
Employer
__________________________________________

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

Docket No. 07-485
Issued: April 26, 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 December 12, 2006 appellant timely appealed the September 5, 2006 merit decision
of the Office of Workers’ Compensation Programs, which denied a schedule award for
employment-related hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has a ratable hearing loss.
FACTUAL HISTORY
Appellant, a 52-year-old retired firefighter, has an accepted claim for binaural moderate
high-frequency sensorineural hearing loss. He was last examined on January 27, 2005 by
Dr. Arthur S. Peters, a Board-certified otolaryngologist and Office referral physician. In
March 2006, appellant telephoned the Office inquiring about possible entitlement to a schedule

award.1 In response, the Office referred the case file to Dr. David N. Schindler, a Board-certified
otolaryngologist, to determine if appellant’s accepted hearing loss was sufficient to warrant a
schedule award. In a report dated April 30, 2006, Dr. Schindler found that, based on the
January 27, 2005 audiogram, appellant did not have a ratable hearing loss. In a decision dated
September 5, 2006, the Office denied appellant’s claim for a schedule award. The Office
explained that appellant’s accepted hearing loss was not severe enough to be considered ratable.
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.2 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 American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4
Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the losses at each
frequency are added up and averaged.5 Then, the “fence” of 25 decibels is deducted because, as
the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to
hear everyday speech under everyday conditions.6 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.7 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, and then added to the greater loss and the total is divided by six to arrive at
the amount of the binaural hearing loss.8
ANALYSIS
In reviewing appellant’s January 27, 2005 audiogram, the frequency levels recorded at
500, 1,000, 2,000 and 3,000 hertz for the right ear reveal decibel losses of 15, 10, 10 and 30,
1

Appellant did not file a claim for a schedule award (Form CA-7) until August 25, 2006.

2

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2000).
3

20 C.F.R. § 10.404 (2006).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

A.M.A., Guides 250 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

2

respectively, for a total of 65 decibels. This figure when divided by 4 results in an average
hearing loss of 16.25 decibels. The average loss of 16.25 is reduced by 25 decibels to 0, which
represents no ratable monaural hearing loss for the right ear. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 hertz revealed decibel losses of 15, 15, 15 and
50 decibels respectively, for a total of 95 decibels. Utilizing the above-noted formula, results in
a zero percent monaural hearing loss for the left ear. Accordingly, appellant’s most recent
audiogram does not establish a ratable hearing loss for either ear.
CONCLUSION
Appellant does not have a ratable hearing loss. As such, he is not entitled to a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the September 5, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 07-451
Issued: May 18, 2007

Case Submitted on the Record

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

JURISDICTION
On December 7, 2006 appellant filed a timely appeal from an October 11, 2006 merit
decision of the Office of Workers’ Compensation Programs that denied her claim for wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merit decision.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
during the period June 10 through August 14, 2006 as a result of her April 20, 2006 employment
injury.
FACTUAL HISTORY
On April 20, 2006 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim alleging that she sustained right wrist and shoulder pain that day while lifting a sack of
mail. She did not initially stop work.

In April 20, 2006 reports, Dr. Patrick Bray, Board-certified in preventative medicine,
advised that appellant felt sharp pain in her right hand, radiating up to her shoulder, on that date
while pulling sacks out of a hamper. He advised that he treated appellant during the prior year
for a right wrist sprain that had resolved. Dr. Bray noted that appellant had carpal tunnel
syndrome 15 to 20 years prior that seemed to have resolved after surgery. On examination, he
noted some complaints of tenderness and loss of sensation in the right arm but advised that there
was no unusual swelling or redness in the wrist and that strength at the right rotator cuff
appeared to be normal. Dr. Bray diagnosed a right wrist sprain/strain and a right shoulder strain
and released appellant to work with restrictions on lifting more than 10 pounds or using her right
arm. In subsequent reports, he renewed appellant’s work restrictions.
Appellant began treatment with Dr. Bruce Cohn, a Board-certified orthopedic surgeon.
In a May 26, 2006 report, he characterized appellant’s condition as work related and noted that
she was working a light-duty assignment with restrictions on the use of her right arm. She
reported a constant ache in the front of her shoulder and radiating into the upper arm, with some
numbness on the side of the upper arm. Dr. Cohn performed a physical examination in which
appellant reported some pain in the right wrist and shoulder. He diagnosed right wrist
contusion/sprain, right elbow contusion/strain, rule out lateral epicondylitis, right shoulder and
upper arm contusion/sprain. Dr. Cohn advised appellant to remain on light duty, left handed
work. He also examined x-ray scans of appellant’s right shoulder, elbow and wrist and noted no
significant abnormality. In a June 23, 2006 report, Dr. Cohn advised that appellant reported that
her condition was worsening. He repeated his prior diagnoses and advised that appellant should
“continue off work.” In an attached June 23, 2006 “work excuse,” Dr. Cohn requested that
appellant be excused from work from June 22 to 26 2006 due to her April 20, 2006 work injury.
On June 30, 2006 he noted that appellant presented in his office after having to “call off work on
Wednesday due to pain.” On examination, appellant exhibited pain in the right wrist and
shoulder. Dr. Cohn repeated his previous diagnoses and also diagnosed a possible right rotator
cuff tear and a possible right scaphoid fracture. He recommended that appellant remain off work
until July 3, 2006. In a form report prepared the same day, he checked a box indicating that
appellant was totally disabled from work from June 28 to July 2, 2006 and added the notation
“because of work-related injury.” In a July 10, 2006 narrative report, Dr. Cohn indicated that
appellant would remain off work until her next visit.
On July 13, 2006 appellant submitted claims for compensation covering the periods
June 1 to 5 and 22 to 26, June 28 to July 6 and July 6 to 31, 2006. A representative of the
employing establishment indicated that appellant did not return from her leave without pay
ending July 31, 2006. She submitted a June 2, 2006 treatment note from Dr. Cohn, indicating
that she was off work from June 1 to 5, 2006 and “can return.” Appellant also provided July 10,
2006 reports from Dr. Cohn indicating that appellant was “totally off work” from July 6
to 31, 2006. On the July 10, 2006 form report Dr. Cohn checked a box indicating that appellant
was totally disabled from July 6 to 31, 2006 and added the notation “work[-]related injury.” In a
July 10, 2006 narrative report, he stated that appellant presented for follow-up examination of
her right shoulder and wrist which he related was a “work[-]related injury.” Dr. Cohn stated that
appellant missed work the previous Thursday and Friday “because her wrist and shoulder pain
was so bad.” He advised that appellant would remain off work.

2

On July 20, 2006 the Office accepted appellant’s claim for right wrist sprain and right
shoulder and upper arm sprain. On July 24, 2006 it advised appellant that Dr. Bray was her
authorized physician and to submit medical evidence to support her claim for wage-loss
compensation. In an undated letter, appellant requested to change of physicians from Dr. Bray to
Dr. Cohn.
In a July 31, 2006 form report, Dr. Cohn indicated that appellant was totally disabled
from July 31 to August 14, 2006. However, in a narrative report prepared the same day, he
indicated that appellant could perform limited duty, left handed work. In an August 16, 2006
narrative report, Dr. Cohn indicated that appellant had returned to a limited-duty assignment and
recommended that she continue with her restrictions. On August 21, 2006 he opined that
appellant’s shoulder condition was “directly related to her injury at work,” noting that he had
diagnosed right shoulder strain.
On August 19, 2006 appellant requested compensation for the period August 1
to 14, 2006.
On September 11, 2006 the Office advised appellant to submit a medical opinion from
Dr. Cohn explaining why he found appellant to be disabled when Dr. Bray had indicated that she
could work limited duty.
In a September 26, 2006 report, Dr. Cohn characterized appellant’s right wrist and
shoulder condition as work[-]related injuries and stated: “On June 23, 2006 I examined
[appellant] and specified during that visit that she was not to return to work until her next
follow[-]up appointment. On June 30, 2006 I stated that [appellant] was to remain off work until
July 3, [2006] at which time she would have restrictions which essentially were left handed
work.” Dr. Cohn explained that his physical examinations of appellant yielded findings of
tenderness and pain from the right wrist to shoulder. He stated: “Certainly, we made every
attempt to return her to some form of work as manifested by the times we sent her back to light,
left handed work only.”
By decision dated October 11, 2006, the Office denied appellant’s claim for
compensation from June 10 to August 14, 2006.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including that any specific condition
or disability for which she claims wage-loss compensation is causally related to the employment
injury.2 Whether a particular injury causes an employee to be disabled for work and the duration

1

5 U.S.C. § 8101 et seq.

2

Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

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of that disability are medical issues that must be proven by a preponderance of the reliable,
probative and substantial medical evidence.3
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.4 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.5
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
was disabled from June 10 through August 14, 2006, due to her accepted April 20, 2006
employment injury. She sustained a right wrist sprain and a right shoulder sprain at work on
April 20, 2006. Dr. Bray examined her on the date of injury and released her to light-duty work
with restrictions. She continued working until she stopped on June 10, 2006.6
Shortly before appellant stopped work, she began receiving treatment from Dr. Cohn,
who advised on May 26, 2006 that she could continue performing limited duty. On June 23,
2006 Dr. Cohn advised that her condition was worsening and that she stop on June 22
to 26, 2006. However, Dr. Cohn’s reports are insufficient to show that appellant’s claimed
disability was causally related to her April 20, 2006 employment injury. Although Dr. Cohn
characterized appellant’s disability as “work related,” he did not offer a rationalized medical
opinion supporting causal relationship between her intermittent disability and her accepted
employment injury. Dr. Cohn’s reports lack a full, narrative explanation explaining why
appellant was unable to continue light duty with her left hand. His June 23 and 30, July 3 and 31
and August 16, 2006 reports noted appellant’s complaints but did not address how or why the
accepted condition caused disability on specific dates. Instead, many of the reports merely noted
that appellant had complained of increasing pain without any explanation from Dr. Cohn
regarding how the employment injury caused her symptoms and why she was totally disabled.
In an August 21, 2006 report, he stated that it was his opinion appellant’s shoulder
condition was “directly related to her injury at work.” However, the claim was accepted by the
Office for sprain of the upper extremity. Dr. Cohn did not address the issue of disability for
work on the dates claimed. The Board has held that conclusory statements of support for causal
relationship without supporting rationale are of little probative value.7 Dr. Cohn’s September 26,
2006 report is similarly conclusory. He again noted that appellant’s right wrist and shoulder
injuries were work related, but did not provide adequate explanation on the issue of how the
3

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

4

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, id.

5

Jacquelyn L. Oliver, supra note 2 at 232.

6

There is no evidence that light-duty work did not remain available.

7

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

4

accepted strains worsened so as to cause disability between June 10 and August 14, 2006. The
fact that appellant sustained employment-related injuries is not in dispute. There is no reasoned
medical evidence explaining how or why these accepted injuries caused disability during the
claimed period. The Board finds that Dr. Cohn’s reports are insufficient to discharge appellant’s
burden of proof in establishing that her intermittent disability for the period June 10 to
August 14, 2006.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that her
claimed disability from June 10 to August 14, 2006 was causally related to her April 20, 2006
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 11, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, RICON STATION
POST OFFICE, Tucson, AZ, Employer
__________________________________________

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

Docket No. 21-1087
Issued: March 1, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 12, 2021 appellant, through counsel, filed a timely appeal from a June 1, 2021
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated May 6, 2021, which became final after 30 days of
issuance and is not subject to further review. 2 As there was no merit decision on the underlying
issue of suitable work by OWCP within 180 days of the filing of this appeal, 3 pursuant to the

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

20 C.F.R. § 501.6(d); see J.R., Docket No. 19-0364 (issued July 3, 2019); see A.F., Docket No. 18-0645 (issued
October 26, 2018).
3

Counsel did not appeal a March 25, 2021 OWCP merit decision, which denied appellant’s claim for a schedule
award. As counsel did not appeal from that decision, it is not presently before the Board. See 20 C.F.R. § 501.3.

Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
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
This case has previously been before the Board. 5 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hand condition causally related to factors of her
federal employment, including repeated trauma caused by casing and carrying mail. OWCP
accepted the claim for right hand synovitis and tenosynovitis, and primary osteoarthritis of the
right hand. 6 It paid appellant wage-loss compensation on the supplemental rolls effective
October 29, 2016, and on the periodic rolls effective, April 2, 2017.
By decision dated October 3, 2019, OWCP terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits, effective October 3, 2019, based on her refusal of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It explained that Dr. Michael A. Steingart,
OWCP’s second opinion physician, an osteopathic physician specializing in sports medicine
provided a well-reasoned opinion as to appellant’s current work limitations and the employing
establishment had offered her a job within those restrictions.
On October 14, 2019 appellant requested reconsideration of the October 3, 2019 decision.
She resubmitted medical evidence previously of record, including a November 9, 2017 narrative
report and a November 5, 2017 work capacity evaluation (Form OWCP-5c) from Dr. John R.
Klein, a Board-certified orthopedic surgeon.
On December 13, 2019 OWCP thereafter received a copy of a July 9, 2019 report from
Dr. Amit Sahasrabudhe, a Board-certified orthopedic surgeon. This report was previously
received by OWCP on October 1, 2019 but was not reviewed in OWCP’s decision dated
October 3, 2019.7

4

5 U.S.C. § 8101 et seq.

5

Docket No. 20-0676 (issued May 6, 2021).

6

Appellant was diagnosed with a concurrent nonindustrial injury to include a degenerative full-thickness central
perforation tear of the triangular fibrocartilage articular disc (TFCC) and had a right wrist arthroscopy with TFCC
debridement on January 3, 2017.
7

Also on December 13, 2019, OWCP issued a final overpayment determination, finding that appellant received an
overpayment of compensation in the amount of $1,028.45, for which she was at fault, for the period October 3
through 12, 2019 as she continued to receive wage-loss compensation following the termination of her benefits.

2

In a progress report dated December 20, 2019, Dr. Mark A. Braunstein, a Board-certified
orthopedic surgeon, related that appellant was seen in follow-up after a right wrist arthroscopic
procedure. He related that appellant had returned to work and was experiencing wrist pain when
working with a scanner. Dr. Braunstein concluded that appellant was doing well, with continued
pain on the ulnar side of her right wrist. 8
Appellant appealed to the Board on February 6, 2020.
OWCP subsequently received copies of medical reports previously of record, including
March 28 and November 5, and 9, 2017 reports from Dr. Klein, a May 4, 2018 report from
Dr. Braunstein, and the July 9, 2019 report from Dr. Sahasrabudhe. It also received a February 7,
2020 work status form, bearing an illegible signature, which indicated that appellant could return
to work on February 8, 2020.
Counsel also forwarded to OWCP a July 8, 2020 permanent impairment evaluation report
from Dr. Mesfin Seyoum, a family medicine specialist. In a report dated September 16, 2020,
Dr. Nathan Hammel, a Board-certified orthopedic surgeon acting as an OWCP medical adviser,
reviewed the record including Dr. Seyoum’s July 8, 2020 permanent impairment report.
On March 25, 2021 OWCP received duplicate copies of reports from Dr. Klein dated
November 5, 2017, and reports of Dr. Steingart dated November 13, 2018 and April 15, 2019,
previously of record.9
By decision dated May 6, 2021, the Board affirmed the October 3, 2019 termination
decision, finding that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award beneﬁts, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).10
On May 14, 2021 appellant, through counsel, requested reconsideration of the October 3,
2019 termination decision.
By decision dated June 1, 2021, OWCP denied appellant’s May 14, 2021 request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. 11 OWCP has discretionary authority in this regard and has imposed certain

8

On February 11, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award.

9

Also on March 25, 2021 OWCP denied appellant’s February 11, 2020 schedule award claim. See supra note 3.

10

The Board also affirmed in part and reversed in part the December 13, 2019 overpayment determination. Supra
note 5.
11

This section provides in pertinent part: The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

3

limitations in exercising its authority. 12 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 13
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written request for
reconsideration, including all supporting documents, sets forth arguments and contain evidence
which either: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP. 14 Section 10.608(b)
provides that any request for reconsideration of the merits of the claim which does not meet at
least one of the requirements listed in section 10.606(b) will be denied by OWCP without review
of the merits of the claim. 15
ANALYSIS
The Board finds that the case is not in posture for decision.
Following the October 3, 2019 OWCP decision which terminated appellant’s
compensation benefits for refusal of suitable work, OWCP continued to receive additional medical
evidence, including a December 20, 2019 progress report by Dr. Braunstein and a February 7,
2020 work status form. However, it did not review or address this evidence in the June 1, 2021
decision.16
In the case of William A. Couch,17 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that OWCP reviewed any of the medical evidence
submitted after the October 3, 2019 decision.18
As the Board’s decisions are final with regard to the subject matter appealed,19 it is crucial
that all evidence relevant to the subject matter of the claim, which was properly submitted to
12

20 C.F.R. § 10.607.

13

See J.R., supra note 2; C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a).

14

Id. at § 10.606(b)(3).

15

Id. at § 10.608(b). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
16

See D.B., Docket No. 21-0693 (issued November 9, 2021).

17

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

18

See T.G., Docket No. 19-1930 (issued January 8, 2021).

19

See 20 C.F.R. § 501.6(d).

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OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 20
Because OWCP failed to consider all of the medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal. 21
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record.22 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.23
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).

20

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 17.
21

20 C.F.R. § 501.2(c)(1). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

22

See M.J., Docket No. 18-0605 (issued April 12, 2019).

23

B.N., Docket No. 17-0787 (issued July 6, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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