States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURE RESEARCH SERVICE,
Beltsville, MD, Employer
__________________________________________

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

Docket No. 15-0918
Issued: August 12, 2016

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 March 17, 2015 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated February 12, 2015. Because more
than 180 days has elapsed between the last merit decision dated February 3, 2014 and the filing
of this appeal on March 17, 2015, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2 and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

FACTUAL HISTORY
Appellant, a 50-year-old temporary tractor operator, injured his lower back on April 12,
1991 when he jumped from a tractor. He filed a claim for traumatic injury (Form CA-1) on
April 15, 1991, which OWCP accepted for lumbar sprain with radiculopathy.
In a report dated May 20, 1991, it was indicated that appellant underwent a magnetic
resonance imaging (MRI) scan of the lumbar spine, the results of which showed that he had
degenerative disc disease at L3-4, L4-5, and L5-S1.
Appellant has not worked since September 19, 1991. OWCP commenced payment of
compensation for temporary total disability and placed him on the periodic rolls effective
September 19, 1991.
In a letter to OWCP dated July 28, 1999, appellant requested that his claim be expanded
to include neck, left shoulder, left hand, left knee, and left leg conditions.
In a report dated August 12, 1999, Dr. Robert S. Viener, a Board-certified orthopedic
surgeon, stated that appellant underwent an MRI scan for his neck and shoulder, in addition to
electromyogram (EMG) and nerve conduction velocity (NCV) studies of the upper and lower
extremities. He advised that the results of these diagnostic tests were consistent with
degenerative change at multiple levels of the cervical spine in addition to rotator cuff tear in his
left shoulder. The EMG study was consistent with carpal tunnel syndrome on the left and
possible tarsal tunnel syndrome on the left. Dr. Viener recommended that appellant undergo left
carpal tunnel release surgery and epidural injections to his lower back.
To determine whether appellant was still disabled and still had residuals from his
accepted condition, OWCP referred him to Dr. John B. Cohen, a Board-certified orthopedic
surgeon for a second opinion examination. In an August 27, 1999 report, Dr. Cohen stated that
appellant’s degenerative lumbar disc disease, as shown by MRI scan, was not causally related to
the April 12, 1991 work injury. He opined that appellant could work light-duty full time in
regard to his left shoulder rotator cuff condition. Dr. Cohen stated that appellant’s claimed
cervical spine, carpal tunnel, left tarsal tunnel, and left shoulder conditions were not medically
related to the April 12, 1991 injury.
OWCP found that a conflict existed between the opinions of Drs. Viener and Cohen as to
whether appellant’s claimed conditions were causally related to the April 12, 1991 employment
injury. It referred appellant to Dr. Melinda Gardner, Board-certified in orthopedic surgery, for a
referee medical examination. In a report dated January 12, 2000, Dr. Gardner found that his
claimed conditions of cervical degenerative disc disease, carpal tunnel syndrome, left rotator cuff
tear, and left tarsal tunnel syndrome were not causally related to the April 12, 1991 employment
injury. She opined that appellant could work limited duty for eight hours per day.
By decision dated February 22, 2000, OWCP denied expansion of the claim for the
conditions of cervical spine degenerative changes, left carpal tunnel syndrome, left tarsal tunnel
syndrome, and left rotator cuff tear.

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In a report dated September 23, 2008, Dr. Viener diagnosed a herniated disc at L5-S1
based on the May 20, 1991 MRI scan. He stated that appellant also had lumbar radiculopathy at
L5 on the left side, in addition to lumbar stenosis. Dr. Viener opined that appellant continued to
be totally disabled secondary to the April 12, 1991 employment injury. He asserted that the
findings from his current examination, x-ray tests and his previous MRI scan and EMG/NCV
tests confirmed his diagnosis and opinion.
To determine whether appellant still had residuals from his accepted April 12, 1991 work
injury and whether his claimed lumbar degenerative disc disease was causally related to the
April 1991 injury, he was referred to Dr. Robert F. Draper, Board-certified in orthopedic surgeon
for a second opinion examination. In a November 16, 2012 report, after stating findings on
examination and reviewing the medical history and the statement of accepted facts, Dr. Draper
concluded that appellant’s lumbar and cervical degenerative disc disease were preexisting and
were not causally related to the April 12, 1991 work injury. He opined that appellant did not
have any additional pathology in the lumbar spine. Dr. Draper advised that appellant sustained a
lumbosacral strain in 1991, which should have lasted six months at most. He asserted that
appellant’s continued lower back problems were not due to the 1991 low back strain, but were
attributable to the degenerative disc disease and spinal stenosis at L3-4, L4-5, and L5-Sl, as
documented in the May 20, 1991 lumbar MRI scan. Dr. Draper opined that the etiology of
appellant’s present conditions was due to his nonwork-related lumbar degenerative disc disease
at multiple levels, and his spinal stenosis. He advised that his accepted conditions of
lumbosacral strain and radiculopathy would not prevent him from working; he would be capable
of returning to work for eight hours per day with restrictions of no lifting more than 20 pounds
occasionally and 10 pounds frequently; no standing for more than two hours; and no sitting for
more than six hours.
On April 22, 2013 OWCP denied expansion of the claim for a left knee condition.
OWCP issued a notice of proposed termination of compensation to appellant on
May 30, 2013. It found that the weight of the medical evidence, as represented by Dr. Draper’s
referral report, established that appellant was no longer disabled due to his accepted April 12,
1991 injury.
By decision dated July 2, 2013, OWCP terminated appellant’s compensation for medical
benefits, finding that Dr. Draper’s referral opinion represented the weight of the medical
evidence.
On July 25, 2013 appellant requested an oral hearing, which was held on
December 9, 2013.
By decision dated February 3, 2014, an OWCP hearing representative affirmed the
July 2, 2013 termination decision.
By letter dated April 13, 2014, appellant requested reconsideration of the February 3,
2014 termination decision.
In an April 16, 2014 report, Dr. Eric G. Dawson, a specialist in orthopedic surgery, stated
that the results of a lumbar MRI scan taken six months previously showed that appellant had
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lumbar disc protrusion or herniated nucleus pulposus at the L5-S1 paramedian level. He advised
that appellant had multiple signs of osteoarthritic changes at multiples levels, including the discs,
and the facets; the tests showed that he also had spondylolysis and spondylolisthesis.
Dr. Dawson advised that appellant had continuing disc problems at multiple joints, particularly at
the L3-4, L4-5, and L5-S1 levels. He asserted that these findings displayed an accelerated curve
of degenerative changes in the lumbar spine and disc.
By decision dated April 27, 2014, OWCP denied appellant’s request for reconsideration,
finding that it neither raised substantive legal questions, nor included new and relevant evidence
sufficient to require OWCP to review its prior decision.
In a May 9, 2014 report, Dr. Dawson essentially reiterated his previous findings and
conclusions.
By letter dated May 13, 2014, appellant again requested reconsideration. He submitted
reports dated June 5 and July 17, 2014 from Dr. Dawson in which he essentially reiterated his
previous findings and conclusions.
By decision dated September 23, 2014, OWCP denied appellant’s request for
reconsideration, finding that it neither raised substantive legal questions, nor included new and
relevant evidence sufficient to require OWCP to review its prior decision.
By letter dated January 16, 2015, received by OWCP on January 21, 2015 appellant’s
counsel at the time requested reconsideration. He submitted reports dated October 29 and
December 3, 2014, and January 17, 2015 from Dr. Dawson in which he essentially reiterated his
previous findings and conclusions.
In his December 3, 2014 report, Dr. Dawson stated that it had been “essentially proven”
by the MRI scan results and nerve studies that appellant had lumbar disc and nerve impingement.
He noted that there was sufficient concern regarding appellant’s lower back condition that
Dr. Viener scheduled appellant for an MRI scan on May 20, 1991 one month subsequent to his
April 12, 1991 injury, which showed a herniated nucleus pulposus at L5-S1 with possible free
fragment. Dr. Dawson also noted that medical records showed that by 1993 appellant had
sustained a chronic lumbar sprain with lumbar radiculopathy; he opined that this was significant
given that appellant had not sustained any additional lumbar injuries. He concluded that based
on these findings the accepted condition was not correct at the time and his symptoms were
incorrectly attributed to a preexisting, degenerative condition, when in fact they were indicative
of conditions that were much more extensive.
In his January 17, 2015 report, Dr. Dawson reiterated that appellant’s medical reports and
records described his lumbar conditions as a herniated nucleus pulposus and lumbar disc and
nerve impingement with radiculopathy. He advised that although his medical reports and
diagnostic records contemporaneous with appellant’s original 1991 injury were lacking, he
believed that they would have documented that the conditions appellant has today were
“indisputably” the same conditions he sustained in his April 12, 1991 workplace fall.
Dr. Dawson reiterated that appellant sustained a very significant back injury -- more than a strain
or sprain -- the seriousness of which became obvious within a month with the May 20, 1991 MRI

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scan. He stated that appellant had sustained a mechanical injury of the disc and nerve
impingement which occurred on April 12, 1991 and continues to this day.
By letter dated February 5, 2015, appellant’s counsel stated that he had erred in his
previous letter by referring to the date of May 3, 2012 as the date of OWCP’s proposed notice of
termination and as the date of the decision for which he was requesting reconsideration. Counsel
clarified that he was requesting reconsideration of OWCP’s most recent merit decision, which
was issued on February 3, 2014. He asserted that the request was timely as it was received by
OWCP on January 20, 2015.
By decision dated February 12, 2015, OWCP denied appellant’s request for
reconsideration finding appellant’s request for reconsideration was untimely and failed to
demonstrate clear evidence of error. It stated: “The basis for this decision is that your legal
representative states in his letter dated February 5, 2015 that he is requesting reconsideration …
regarding [the] proposed notice of [termination] dated May 30, 2013.”
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 does not entitle an
employee to a review of an OWCP decision as a matter of right.2 This section, vesting OWCP
with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).3 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.4 The Board has found that the imposition of

1

5 U.S.C. § 8128(a).

2

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989); petition for recon., denied,
41 ECAB 458 (1990).
3

Thus, although it is a matter of discretion on the part of OWCP whether to review an award for or against
payment of compensation, OWCP has stated that a claimant may obtain review of the merits of a claim by:
(1) showing that OWCP erroneously applied or interpreted a point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constituting relevant and pertinent new evidence not previously
considered by OWCP. See 20 C.F.R. § 10.606(b).
4

Id. at § 10.607(a).

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this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP granted under 5 U.S.C. § 8128(a).5
ANALYSIS
OWCP improperly determined in this case that appellant failed to file a timely
application for review. The last merit decision in this case was dated February 3, 2014.
Appellant’s request for reconsideration was received by OWCP on January 21, 2015.
In the February 3, 2014 decision, an OWCP hearing representative affirmed OWCP’s
July 2, 2013 termination decision. The appeal rights accompanying that decision advised
appellant that he could request reconsideration with OWCP within one year of the decision, if the
request was received by OWCP within one year of the decision, or file an appeal with the Board
within 180 days. Counsel clearly requested reconsideration in his January 16, 2015 letter,
received on January 21, 2015, but inadvertently referred to OWCP’s initial notice of proposed
termination as the decision for which he was requesting reconsideration in the letter; however, he
clarified in his February 5, 2015 follow-up letter that he was requesting reconsideration of the
February 3, 2014 merit decision of the OWCP hearing representative. As the January 21, 2015
letter was received within one year of that decision, the request therefore cannot be found
untimely pursuant to sections 10.607(a) and 10.606(b)(3) of OWCP’s regulations.6 The clear
evidence of error standard utilized by OWCP in its February 12, 2015 decision is appropriate
only for untimely reconsideration requests.7 The case will be remanded for OWCP to further
review appellant’s January 21, 2015 reconsideration request in accordance with its regulations
and procedures.
CONCLUSION
The Board finds that OWCP erred in finding appellant’s January 21, 2015
reconsideration request untimely filed.

5

See cases cited supra note 2.

6

See 20 C.F.R. § 10.607(b)(3) and supra note 4.

7

See R.M., Docket No. 14-625 (issued July 29, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the February 12, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 12, 2016
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERIVCE, MID-CAROLINAS
PERFORMANCE CLUSTER, Charlotte, NC,
Employer
__________________________________________

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

Docket No. 11-2054
Issued: June 18, 2012

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 September 14, 2011 appellant, through her attorney, filed a timely appeal from the
August 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 13, 2011 on the grounds that she had no
residuals of her work injuries after that date.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 24, 2003 appellant, then a 49-year-old city letter carrier, filed an occupational
disease claim alleging that she had pain in her hands, arms and shoulders from the performance
of her federal duties. OWCP accepted her claim for bilateral carpal tunnel syndrome and
tenosynovitis of the hands and wrists.
On November 28, 2003 appellant underwent release surgery on the right median and
ulnar nerves along with neurolysis of the median nerve and synovectomy of the flexor tendons.
On January 23, 2004 she underwent release surgery on the left median and ulnar nerves along
with neurolysis of the median nerve and synovectomy of the flexor tendons. The procedures
were authorized by OWCP.
Appellant returned to modified duty on May 11, 2004 and returned to regular duty on
July 10, 2004. She retired from federal service in September 2004.
In a November 4, 2004 report, Dr. Ajay Ajmani, an attending Board-certified
rheumatologist, advised that appellant continued to have residuals of her work-related injuries.
He stated that she could only perform modified work which did not require repetitive lifting or
manipulation of the hands.
In a March 13, 2007 decision, OWCP granted appellant a schedule award for a 27 percent
permanent impairment of each arm. At the expiration of her schedule award, appellant elected to
switch from her retirement benefits back to FECA benefits. OWCP reinstated her to the periodic
rolls for total disability effective September 27, 2007. The record reflects that there was a gap in
appellant’s medical treatment between 2007 and 2009.
On November 17, 2009 OWCP referred appellant for a second opinion examination with
Dr. Edward Mulcahy, a Board-certified orthopedic surgeon. By report dated December 8, 2009,
Dr. Mulcahy described appellant’s history and essentially normal findings on examination. He
diagnosed resolved bilateral wrist and hand pain, fibromyalgia by history and anxiety syndrome.
Dr. Mulcahy opined that appellant’s diagnoses were not related to the accepted work injuries.
He found that the accepted work conditions had resolved noting that there was no objective
evidence of tenosynovitis or carpal tunnel syndrome in either arm. Dr. Mulcahy stated that there
was no evidence of any orthopedic diagnosis to explain appellant’s ongoing shoulder, arm or
wrist complaints.
Appellant underwent a functional capacity evaluation (FCE) on January 21, 2010. The
FCE noted that her results suggested very poor effort or voluntary submaximal effort, which was
not necessarily related to pain, impairment or disability. It was recommended that appellant
work at the sedentary physical demand level for eight hours a day.
OWCP provided the FCE findings to Dr. Mulcahy. In a January 26, 2010 supplemental
report, Dr. Mulcahy noted that appellant showed very poor effort in the FCE testing, indicating a
voluntary submaximal effort. He modified her work restrictions to reflect that she could perform
light-duty work for eight hours a day.

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In a February 11, 2010 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits because she ceased to have residuals of her
accepted work injuries. Appellant was informed that she had 30 days from the date of the letter
to provide supportive evidence if she disagreed with the proposal to terminate her compensation.
Appellant’s counsel argued that there was a conflict in the medical opinion regarding
continuing work-related residuals. OWCP found that there was a conflict in the medical opinion
evidence between Dr. Ajmani and Dr. Mulcahy regarding whether the accepted work injuries
had resolved. It referred appellant to Dr. William D. Schaefer, a Board-certified orthopedic
surgeon, for an impartial medical examination and opinion on this matter.
By report dated May 5, 2010, Dr. Schaefer described appellant’s history and reported
findings on examination. Physical examination of both wrists and hands revealed well-healed
surgical scars over the volar aspect of the wrists, with no atrophy or discoloration. Dr. Schaefer
noted that appellant had full range of motion of the wrists and all digits in flexion and extension,
with 5/5 strength upon flexion and extension of each digit and 5/5 strength upon opposition of
the thumb. He noted intact sensation throughout the hands to light touch and that she had
negative Tinel’s and Phalen’s tests bilaterally. There was full cervical range of motion with no
evidence of paracervical spasm. Dr. Schaefer opined that appellant’s diagnoses were
fibromyalgia, carpal tunnel syndrome, bilateral tenosynovitis of the hand and wrist and anxiety
syndrome. He found that the diagnoses were not related to her work factors and stated that her
work-related conditions had resolved. Appellant had a negative Finkelstein’s test bilaterally and
no evidence of tenosynovitis. Dr. Schaefer opined that her prolonged disability was likely due to
fibromyalgia, as her main complaints had multiple sites of pain without identifiable orthopedic
cause. He stated given the lack of objective physical examination findings and reproducible
clinical studies, he did not feel that appellant’s subjective complaints of pain correlated to her
work injuries.
By report dated October 15, 2010, Dr. Ajmani diagnosed a history of carpal tunnel
syndrome, fibromyalgia and cervical spine radiculopathy. He opined that the accepted injury
related conditions were still medically present and disabling and that the work injury has not
totally resolved. Dr. Ajmani stated that the employment injury was not an aggravation of a
preexisting condition. He opined that appellant was a candidate for vocational rehabilitation.
In a December 9, 2010 letter, OWCP again advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits. It noted that its proposed termination was
based on the impartial opinion of Dr. Schaefer. Appellant was advised that she had 30 days to
provide supportive evidence if she disagreed with the proposal to terminate her compensation.
By report dated January 5, 2011, Pamela Hudak, a physician’s assistant, noted that
appellant gave her office a history of fibromyalgia since 1998 and a history of carpal tunnel
syndrome and bilateral tenosynovitis of the hands and wrists since at least 2004, both conditions
being caused by repetitive movements. She opined that there was a reasonable probability that
the carpal tunnel syndrome and tenosynovitis aggravated appellant’s fibromyalgia. Ms. Hudak’s
report was cosigned by Dr. Mary Watson, a Board-certified rheumatologist. Counsel submitted a
letter in which he claimed that OWCP failed to follow the relevant rotation procedures for
selecting Dr. Schaefer, the impartial medical specialist.

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By decision dated February 4, 2011, OWCP terminated appellant’s compensation
effective February 13, 2011. It noted that she had provided additional treatment notes from
Dr. Watson’s office, but that they failed to provide any medical rationale to relate her
fibromyalgia condition to work factors. OWCP asserted that it followed the relevant rotation
procedures for selecting Dr. Schaefer, noting that the record contained an appointment schedule
notification report. It found the weight of medical evidence with Dr. Schaefer, indicating that
appellant’s physicians had relied on her subjective complaints of pain to provide a diagnosis
without providing medical rationale based on objective findings.
Appellant disagreed with the February 4, 2011 decision and requested an oral hearing
before an OWCP hearing representative. A telephonic hearing was held on June 1, 2011. At the
hearing, counsel stated that Dr. Watson found that appellant’s fibromyalgia was aggravated by
her work-related carpal tunnel syndrome. He asserted that if OWCP felt that Dr. Watson’s report
was not sufficient, it should have asked for more information from the physician or sent
appellant for a second opinion. Counsel argued the evidence of record does not establish that
Dr. Schaefer was properly selected on a rotational basis. Moreover, Dr. Schaefer did not
adequately explain why appellant’s work-related condition had resolved. Appellant testified that
she was diagnosed with fibromyalgia by an attending physician in 1998 or 1999 and that she
later saw Dr. Ajmani for treatment of this condition.
In a July 19, 2011 decision, OWCP’s hearing representative set aside the February 4,
2011 decision and remanded the case for further development. She directed OWCP to further
explain how Dr. Schaefer was selected as an impartial medical specialist noting that it did not
appear that the relevant documents regarding this selection process were in the case record.
Subsequent to the July 19, 2011 decision, OWCP provided additional information
regarding the selection of Dr. Schaefer as an impartial medical specialist. The case record was
supplemented to include a print-screen which shows the IFECS (Integrated Federal Employees
Compensation System) Medical Management Schedule Appointment for appellant. This
document indicates that there were no bypasses prior to Dr. Schaefer’s selection.
In an August 16, 2011 decision, OWCP’s hearing representative determined that OWCP
met its burden of proof to terminate appellant’s wage-loss compensation and medical benefits
effective February 13, 2011. Appellant had no residuals of her work injuries after that date. She
found that Dr. Schaefer was properly selected as an impartial medical specialist and represented
the weight of the medical opinion evidence regarding appellant’s work-related residuals.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.2 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3

2

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

3

Id.

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OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”5 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.6
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialists
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialists will be selected on a strict rotating basis in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.7 OWCP has an
obligation to verify that it selected the impartial medical specialist in a fair and unbiased manner.
It maintains records for this very purpose.8
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and
tenosynovitis of the hands and wrists due to her repetitive work duties. On November 28, 2003
appellant underwent release surgery on the right median and ulnar nerves along with neurolysis
of the median nerve and synovectomy of the flexor tendons. On January 23, 2004 she underwent
similar surgery on her left arm. Appellant received compensation for total disability related to
her accepted injuries. OWCP terminated her wage-loss compensation and medical benefits
based on the May 5, 2010 report of Dr. Schaefer, a Board-certified orthopedic surgeon, who
served as an impartial medical specialist.
OWCP properly determined that there was a conflict in the medical opinion between
Dr. Ajmani, an attending Board-certified rheumatologist, and Dr. Mulcahy, a Board-certified
orthopedic surgeon serving as an OWCP referral physician, on the issue of whether appellant
continued to have residuals of her work injuries.9 In order to resolve the conflict, it properly
4

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

5

5 U.S.C. § 8123(a).

6

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

7

Raymond J. Brown, 52 ECAB 192 (2001).

8

M.A., Docket No. 07-1344 (issued February 19, 2008).

9

In a November 4, 2004 report, Dr. Ajmani indicated that appellant continued to have residuals of her workrelated injuries. In contrast, Dr. Mulcahy indicated in a December 8, 2009 report that the accepted work conditions
had resolved, noting that there was no objective evidence of tenosynovitis or carpal tunnel syndrome in either arm.

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referred appellant, pursuant to section 8123(a) of FECA, to Dr. Schaefer for an impartial medical
examination and an opinion on the matter.10
Counsel questioned whether Dr. Schaefer was properly selected under the relevant
standards for selecting impartial medical specialists. The Board finds that the record contains
documentation showing that Dr. Schaefer was properly selected under the rotational method for
choosing impartial medical specialists. The record contains a print-screen which shows the
IFECS Medical Management Schedule Appointment for appellant. This document indicates that
there were no bypasses prior to Dr. Schaefer’s selection.11
The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Schaefer, the impartial medical specialist selected to resolve the
conflict in the medical opinion.12 The May 5, 2010 report of Dr. Schaefer establishes that
appellant had no disability due to her employment injuries after February 13, 2011.
By report dated May 5, 2010, Dr. Schaefer stated that the physical examination of both
wrists and hands revealed well-healed surgical scars over the volar aspect of the wrists, with no
atrophy or discoloration. He noted that appellant had full range of motion of the wrists and all
digits in flexion and extension, with 5/5 strength upon flexion and extension of each digit and 5/5
strength upon opposition of the thumb. Dr. Schaefer indicated that she had intact sensation
throughout the hands to light touch and that she had negative Tinel’s and Phalen’s tests
bilaterally. There was full cervical range of motion with no evidence of paracervical spasm.
Dr. Schaefer concluded that appellant did not have any residuals of her work injuries, bilateral
carpal tunnel syndrome and tenosynovitis of the hands and wrists.
The Board has reviewed the opinion of Dr. Schaefer and finds that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue of the present case. Dr. Schaefer provided a thorough factual and medical history and
accurately summarized the relevant medical evidence.13 He provided medical rationale for his
opinion by explaining that the lack of objective physical examination findings and reproducible
clinical studies showed that appellant no longer had residuals of the accepted work injuries.

10

See supra note 5.

11

In a July 19, 2011 decision, OWCP’s hearing representative set aside the February 4, 2011 decision and
remanded the case to further develop the matter of Dr. Schaefer’s selection as an impartial medical specialist. On
appeal, counsel cited a portion of OWCP procedure which he believed indicated that the hearing representative must
gain approval from the district Director before setting aside a prior OWCP decision. He has misinterpreted this
portion of OWCP’s procedure. It relates to the appropriate process when a district Director wishes to point out a
serious error of fact or law in the hearing representative’s decision. This portion of OWCP procedure does not
preclude an OWCP hearing representative’s ability to set aside a prior OWCP decision. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter 2.1601.9c (October 2011).
12

See supra note 6.

13

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

6

Dr. Schaefer further noted that appellant’s continuing complaints could be explained by her
nonwork-related condition of fibromyalgia.14
Counsel argued that the termination of appellant’s compensation was premature as her
fibromyalgia might be work related and this matter should be developed by OWCP. It is noted
that the condition of fibromalgia has never been accepted as work related and the record does not
contain probative medical evidence establishing that this condition is causally related to the
accepted work injuries.15 When a claimant asserts that a condition not accepted or approved by
OWCP is due to an employment injury, she bears the burden of proof to establish that the
condition is causally related to the employment injury through the submission of rationalized
medical evidence.16 Appellant did not meet her burden in this case.
For these reasons, OWCP met its burden of proof to terminate appellant’s compensation
effective February 13, 2011.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 13, 2011 on the grounds that she had no
residuals of her work injuries after that date.

14

On appeal, counsel argued that Dr. Schaefer’s opinion was not well rationalized, but he did not adequately
explain the basis for this belief. By report dated October 15, 2010, Dr. Ajmani noted that he had diagnosed
appellant with a history of carpal tunnel syndrome, fibromyalgia and cervical spine radiculopathy. He opined that
the accepted injury related conditions were still medically present and disabling and indicated that the work injury
has not totally resolved. However, as Dr. Ajmani was on one side of the conflict, his additional report is essentially
duplicative of his stated opinion and is insufficient to give rise to a new conflict. See Richard O’Brien, 53 ECAB
234 (2001).
15

On January 5, 2011 Dr. Watson, a Board-certified rheumatologist, cosigned a report which had been produced
by a physician’s assistant. The report noted that there was a reasonable probability that the carpal tunnel syndrome
and tenosynovitis aggravated appellant’s fibromyalgia. However, Dr. Watson did not provide any medical rationale
for this opinion.
16

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the August 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2012
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
DEPARTMENT OF THE ARMY, MILITARY
TRAFFIC MANAGEMENT SERVICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 07-1534
Issued: November 6, 2007

Case Submitted on the Record

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

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from the December 22, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his claim. He also filed a
timely appeal from the April 30, 2007 decision denying his request for reconsideration. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant established that he sustained mantel cell lymphoma
in the performance of duty as a result of his exposure to Agent Orange; and (2) whether the
Office properly refused to reopen his case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On March 25, 2002 appellant, then a 74-year-old retired traffic management specialist,
filed an occupational disease claim alleging that he suffered from mantle cell lymphoma (non-

Hodgkin’s disease) as a result of exposure to herbicides during his federal service in Vietnam.
He submitted a copy of an extract from the Department of the Army indicating that he was to be
sent to Long Binh in the Republic of Vietnam for a 30-day period to commence on or about
April 4, 1972. He also submitted a surgical pathology report dated December 3, 2001 indicating
that he had mantle cell lymphoma.
By letter dated October 17, 2002, the Office requested that appellant submit medical
evidence in support of his claim. In response, he submitted a December 24, 2002 medical report
from Dr. Martin Gutierrez, a Board-certified internist, who stated:
“[Appellant] is a patient of mine, who is being seen and treated for the diagnosis
of mantle cell lymphoma.
“I understand that [appellant] is a Vietnam veteran who worked as a military
advisor in Vietnam during the Vietnam War in 1972 and during that time [he]
states [that] he had been exposed to Agent Orange. This is based on data from the
National Academies Press, new update in 2000, which has studied the evidence
regarding association between disease and exposure to Dioxin and other
chemicals. In herbicides used in Vietnam, the conclusion is that among the data
there is evidence of a link between exposure and development of soft tissue
sarcomas and non-Hodgkin’s lymphomas in patients that have been exposed to
them.”
Appellant submitted the results of a computed tomography of his abdomen and pelvis and
thorax. He also submitted a copy of a publication for Vietnam veterans with regard to Agent
Orange together with articles from the Cancer Control Journal and the Armed Forces
Information Service.
By decision dated January 23, 2003, the Office denied appellant’s claim for
compensation finding that he had not established a causal relationship between the alleged
exposure to Agent Orange and his mantle cell lymphoma.
On March 19, 2003 appellant requested reconsideration. At that time, he contended that
in 1972 he was deployed to the Republic of Vietnam with the Armed Forces in Zone III Corps
Area -- the area that received the heaviest concentration of Agent Orange spraying. Appellant
indicated that he traveled extensively in this area visiting military and commercial shipping
installations in order to complete his mission. He argued that Congress provided that anyone
who served in Vietnam from January 9, 1962 through May 7, 1975 does not need to show
exposure to herbicides to collect benefits and that it is the Federal Government’s burden of proof
to show that his disease was caused by factors other than his Vietnam service. Appellant
submitted a copy of the schedule of activities for the transportation assistance team in Vietnam, a
copy of a map from an internet site showing alleged areas of herbicide spray in missions in
Vietnam and a copy of the Department of the Army Civilian Employee Deployment Guide.
By decision dated June 13, 2003, the Office denied appellant’s request for
reconsideration without further merit review.

2

On September 29, 2003 appellant again requested reconsideration of his claim. By letter
dated November 6, 2003, the Office advised him that the only right of appeal he was afforded
after the June 13, 2003 decision was an appeal and that accordingly, his case had been forwarded
to the Employees’ Compensation Appeals Board. On January 28, 2004 the Board dismissed the
appeal at appellant’s request, so that he could submit new evidence to the Office for
reconsideration.1
On January 9, 2004 appellant requested reconsideration. He contended that the Office’s
denial of his claim violated the Veteran’s Dioxin and Radiation Exposure Compensation
Standards Act of 1984. Appellant contended that only a statistical association was required to
prove that his illness resulted from exposure to Agent Orange.
By decision dated December 21, 2004, the Office denied appellant’s request for
reconsideration without further merit review.
By letter dated January 11, 2005 received on January 18, 2005, appellant filed an appeal
with the Board. On June 7, 2005 the Board issued an order remanding case. Due to the Office’s
delay in transmitting the case record to the Board, the case was remanded for reconstruction and
proper assemblage of the case record and the issuance of an appropriate decision to protect
appellant’s rights.2
By decision dated December 22, 2006, the Office denied appellant’s claim for the reason
that the medical evidence did not demonstrate that the claimed medical condition was related to
the established work-related events.
On January 12, 2007 appellant requested reconsideration. He again contended that the
Office’s rules with regard to medical evidence of herbicide exposure and non-Hodgkin’s
lymphoma discriminated against civilians who served in Vietnam.
By decision dated April 30, 2007, the Office denied appellant’s request for
reconsideration without merit review.
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion 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

1

Docket No. 04-381 (issued January 28, 2004).

2

Docket No. 05-623 (issued April 6, 2005).

3

the specific employment factors identified by the claimant.3 Causal relationship is medical in
nature and can be established only by medical evidence. Newspaper clippings, medical texts and
excerpts from publications are of no evidentiary value in establishing the necessary causal
relationship as they are of general application and are not determinative of whether the specific
condition claimed was causally related to the particular employment injury involved.4
ANALYSIS -- ISSUE 1
Appellant has established that he worked for the employing establishment in Vietnam for
a one-month period in 1972. He alleges that, during that time, he was exposed to Agent Orange
which gave rise to his mantle cell lymphoma. However, the Board finds that appellant has not
provided sufficient medical evidence to establish that his mantle cell lymphoma (non-Hodgkin’s
disease) is related to his exposure to Agent Orange in Vietnam in 1972. The only medical
evidence of record that addresses the issue of causal relationship is the opinion of Dr. Gutierrez,
who noted that studies indicated a link between exposure to Agent Orange and the development
of soft tissue sarcomas and non-Hodgkin’s lymphomas. Dr. Gutierrez did not expand on this
statement to explain whether appellant’s mantle cell lymphoma (non-Hodgkin’s disease) was
caused by his exposure to Agent Orange in Vietnam. Moreover, his opinion is couched in
generalities and is, accordingly, of diminished probative value and insufficient to establish
appellant’s claim. Dr. Gutierrez cited generally to medical studies to establish causal
relationship without explaining the pathophysiological process of how appellant’s exposure to
Agent Orange caused or contributed to his diagnosed condition. The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.5
On February 6, 1991 Congress enacted Pub. L. No. 102-4, Stat. 11, which provided a
statutory presumption of service connection for diseases sustained by veterans associated with
exposure to certain herbicide agents.6 Pursuant to this legislation, regulations were promulgated
with listed diseases for which the presumption of service connection would apply. However, the
legislation was made applicable to veterans in military service and not to civilian employees who
also served in Vietnam. Appellant’s contentions that the Office discriminated against civilian
employees is without merit. The legislation enacted by Congress clearly provided the statutory
presumption arises only in favor of military veterans. The Agent Orange Act was not made
applicable to claims arising under the Federal Employees’ Compensation Act. Therefore,
appellant bears the burden of proof in establishing his claim for compensation.
This Board further notes that appellant submitted various articles about Agent Orange in
support of his claim. However, these articles have no evidentiary value in establishing the causal
relationship between his claimed condition and appellant’s federal employment as such materials
3

Solomon Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

4

Mary J. Briggs, 37 ECAB 578 (1986); Ausberto Guzman¸ 25 ECAB 362 (1974).

5

See Norman E. Underwood, 43 ECAB 719 (1992).

6

Agent Orange Federal Employees’ Compensation Act of 1991, Pub. L. No. 102-4 § 2, 105 Stat. 11 (1991)
codified in part at 38 U.S.C. § 316 (2000).

4

are of general application and are not determinative of whether the specific condition claimed is
related to particular employment factors or incidents.7 The Board also notes that information
with regard to other federal agencies is not dispositive with regard to questions arising under the
Act.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment, nor
his belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.9 The Board finds that appellant failed to submit such
evidence and the Office, therefore, properly denied his claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.10
Section 8128(b) provides that when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for review on the merits.11
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
value and does not constitute a basis for reopening a case.12 Likewise, evidence that does not
address a particular issue involved does not constitute a basis for reopening a case.13
ANALYSIS -- ISSUE 2
In the instant case, appellant does not meet any of the criteria for reopening his case for
review on the merits. His case was denied as he did not submit adequate medical evidence
establishing a causal relationship between his mantle cell lymphoma and his exposure to Agent
Orange in Vietnam. Appellant has not submitted any relevant or pertinent new evidence that
addresses this issue. Furthermore, he has not provided any new legal arguments not previously
7

Gloria J. McPherson, 51 ECAB 441 (2000).

8

Henry C. Garza, 52 ECAB 205 (2001).

9

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

10

20 C.F.R. § 10.606(b)(2)(i-iii).

11

20 C.F.R. § 10.606(b)(2).

12

Helen E. Paglinawan, 51 ECAB 407, 591 (2000).

13

Kevin M. Fatzer, 51 ECAB 407 (2000).

5

considered by the Office, nor has he shown that the Office incorrectly applied a specific point of
law. All of appellant’s assertions have been considered in prior opinions by the Office in this
case. As he has not met any of the requirements for reopening his case for merit review under
section 8128(a) of the Act, the Office properly denied reconsideration of appellant’s case on the
merits.
CONCLUSION
The Board finds that appellant has not established that he sustained mantle cell
lymphoma as a result of his exposure to Agent Orange while working in Vietnam during the war,
as alleged. Furthermore, it finds that the Office properly refused to reopen appellant’s case for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 30, 2007 and December 22, 2006 are affirmed.
Issued: November 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

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

Docket No. 13-1152
Issued: September 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 8, 2013 appellant filed a timely appeal from a nonmerit October 12, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 The most recent merit decision of record is dated June 23, 2011. There is no
merit decision within 180 days of April 8, 2013, the date appellant filed his appeal with the
Board. Therefore, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued on October 12, 2012, the 180-day computation begins on October 13, 2012. Since using April 12, 2013,
the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the
postmark is considered the date of filing. The date of the U.S. Postal Service postmark is April 8, 2013, which
renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.
On appeal, appellant asserts that OWCP erred by ignoring and manipulating information,
delaying her claim and failing to accept an impairment rating using the Greenleaf system.
FACTUAL HISTORY
This is the fifth appeal before the Board in this case. In the first appeal, by decision and
order issued June 1, 2004, the Board remanded the case to OWCP for further development of the
medical evidence regarding calcific tendinitis of the left shoulder.3 In the second appeal, the
Board issued an order on October 9, 2007 remanding the case to OWCP for doubling of
appellant’s claim under File No. xxxxxx828 accepted for bilateral carpal tunnel syndrome and
bilateral tendinitis of the hands, with File No. xxxxxx325, accepted for bilateral calcific
tendinitis of the shoulders and bilateral acromioclavicular arthritis.4 In the third appeal, the
Board issued an order on September 14, 2009 remanding the case for reconstruction of the
record.5 In the fourth appeal, the Board issued an order on February 25, 2011 remanding the
case for proper consideration of the medical evidence.6 The law and facts of the case as set forth
in the Board’s prior actions are incorporated by reference.
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, bilateral
tendinitis of the hands, bilateral calcific tendinitis of the shoulders and acromioclavicular
arthritis. Following development of the medical evidence, by decision dated September 5, 2007,
OWCP issued him a schedule award for two percent impairment of the right upper extremity.
Following additional development, OWCP issued a February 21, 2008 decision granting
appellant an additional schedule award for 8 percent impairment of the right arm, for a total of 10
percent and 9 percent impairment of the left arm.
By decision dated March 13, 2008, OWCP issued appellant a schedule award for an
additional 2 percent impairment of the right upper extremity, for a total of 12 percent, and an
additional 10 percent impairment of the left upper extremity, for a total of 19 percent. It based
the increase on reports from Dr. John P. George, an attending Board-certified orthopedic
surgeon, as reviewed by an OWCP medical adviser on March 3, 2008.
In March 24, 2008 letters, appellant requested reconsideration of the February 21 and
March 13, 2008 schedule award decisions. She submitted a March 12, 2008 report from
Dr. Douglas Hein, an attending Board-certified orthopedic surgeon. On April 10, 2008 an
OWCP medical adviser reviewed Dr. Hein’s report and opined that appellant was entitled to an

3

Docket No. 04-487 (issued June 1, 2004).

4

Docket No. 07-1194 (issued October 9, 2007).

5

Docket No. 09-160 (issued September 14, 2009).

6

Docket No. 10-1151 (issued February 25, 2011).

2

additional schedule award for four percent impairment of the right arm and nine percent
impairment of the left arm.
By decision dated May 2, 2008, OWCP issued appellant a schedule award for 4 percent
additional impairment of the right upper extremity, for a total of 16 percent, and an additional 9
percent impairment of the left upper extremity, for a total of 28 percent.
In June 20, August 18 and September 4, 2008 letters, appellant requested reconsideration.
She asserted that OWCP’s impairment ratings were inequitable and unjust. Appellant submitted
a May 15, 2008 report from Dr. George changing a medication. By decision dated
September 26, 2008, OWCP denied reconsideration on the grounds that the evidence submitted
was not new or relevant and did not establish legal error by OWCP.
Thereafter, appellant submitted physical therapy notes, and a November 13, 2008 report
from Dr. George diagnosing a complete left rotator cuff tear.
By decision dated November 22, 2010, OWCP denied appellant’s claim for an additional
schedule award on the grounds that the evidence submitted did not establish percentages of
impairment greater than those previously awarded.
Appellant submitted prescription slips, physical therapy notes and reports from Dr. Hein
dated from April 19, 2010 to April 6, 2011 noting continued upper extremity pain. Following
the Board’s February 25, 2011 order, by decision dated May 17, 2011, OWCP denied
reconsideration on the grounds that the evidence submitted was irrelevant, did not establish error
by OWCP or advance a new, relevant legal argument.
In an April 8, 2011 letter, appellant requested reconsideration of the November 22, 2010
merit decision denying her claim for an additional schedule award. She submitted medical
reports dated August 11 and December 22, 2010 and February 16, 2011 from Dr. Spencer
Wheeler, a Board-certified orthopedic surgeon, providing range-of-motion measurements for the
left shoulder and prescribing medication.
By decision dated June 23, 2011, OWCP denied modification on the grounds that the
additional evidence submitted did not establish a greater percentage of impairment than that
previously awarded.
In a July 25, 2011 letter, appellant requested reconsideration. She asserted that OWCP
did not fully consider her physicians’ opinions when rating her upper extremity impairments.
Appellant submitted copies of her letters previously of record, a statement from a private
individual who was not a physician, chart notes from Dr. George dated from January 13, 2005 to
August 15, 2007, reports from Dr. Hein dated from December 5, 2007 to July 27, 2011, a
December 6, 2004 surgical report, September 29, 2011 reports from Dr. Wheeler and an undated
Greenleaf Evaluation System Configuration chart and an e-mail from the president of the
Greenleaf company.
By decision dated September 2, 2011, OWCP denied reconsideration on the grounds that
the evidence submitted as cumulative and repetitious. It found that the new evidence was not
relevant to the schedule award issue in the claim and did not demonstrate that OWCP committed
legal error or advance a new, relevant legal argument.
3

In August 6 and 18, 2012 letters, appellant requested reconsideration. She asserted that
she was entitled to 27 percent impairment of the left hand using the Greenleaf rating system, and
that she had not reached maximum medical improvement when rated on March 3, 2008.
Appellant submitted a September 8, 2011 electrodiagnostic report showing moderate right and
mild left carpal tunnel syndrome, office notes from Dr. Hein dated from July 27, 2011 to July 2,
2012 noting continued bilateral hand symptoms, prescription slips, work absence slips, physical
therapy notes, chart notes from Dr. Wheeler dated August 24, 2011 to August 29, 2012 noting
continued bilateral upper extremity symptoms, telephone call logs and copies of OWCP
correspondence previously of record.
By decision dated October 12, 2012, OWCP denied appellant’s August 6, 2012 request
for reconsideration on the grounds that her request was not timely filed and failed to present clear
evidence of error. It found that her August 6 and 18, 2012 letters were dated and received more
than one year after the June 23, 2011 decision, the final merit decision in the claim.
LEGAL PRECEDENT
Section 8128(a) of FECA7 does not entitle a claimant to a review of an OWCP decision
as a matter of right.8 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.9 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.10 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).11
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.12 OWCP regulations state that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of OWCP.13

7

5 U.S.C. § 8128(a).

8

Thankamma Mathews, 44 ECAB 765, 768 (1993).

9

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

10

20 C.F.R. §§ 10.607, 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
11

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 8, Jesus D. Sanchez, supra note 9.

12

Supra note 8.

13

20 C.F.R. § 10.607(b).

4

To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which is decided by OWCP.14 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.15 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.16 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.17 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.18 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.19
ANALYSIS
In its October 12, 2012 decision, OWCP properly determined that appellant failed to file
a timely application for review. It rendered its most recent merit decision on June 23, 2011.
Appellant requested reconsideration on August 6, 2012, more than one year from the issuance of
the June 23, 2011 merit decision. OWCP denied the request by October 12, 2012 decision on the
grounds that it was not timely filed and failed to present clear evidence of error.
As the reconsideration request was not timely filed, it must now be determined whether
the request demonstrated clear evidence of error in OWCP’s June 23, 2011 decision. The Board
finds that the additional evidence submitted does not demonstrate clear evidence of error.
In her August 6 and 18, 2012 letters, appellant asserted that she did not reach maximum
medical improvement as of March 3, 2008 and was entitled to 27 percent impairment of the left
hand using the Greenleaf rating system, an evaluating methodology not recognized by OWCP.20
Therefore, these arguments are not relevant to the claim and are insufficient to raise substantial
question concerning the correctness of OWCP’s decision. Dr. Hein’s and Dr. Wheeler’s reports,
the electrodiagnostic test results, prescription slips, physical therapy notes and call logs also do
not address the percentage of upper extremity impairment. They are therefore irrelevant to the
critical issue in the claim and do not establish clear evidence of error.21 Appellant also submitted
14

Thankamma Mathews, supra note 8.

15

Leona N. Travis, 43 ECAB 227 (1991).

16

Jesus D. Sanchez, supra note 9.

17

Supra note 15.

18

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

19

Gregory Griffin, supra note 10.

20

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. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by OWCP as a standard for evaluation of schedule losses and
the Board has concurred in such adoption. Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See 20 C.F.R. § 10.404.
21

Supra note 15.

5

copies of correspondence previously of record. The Board has held that evidence that repeats or
duplicates evidence previously submitted is insufficient to shift the weight of the evidence in
favor of the claimant.22
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in his favor and raise a substantial question as to the
correctness of OWCP’s June 23, 2011 merit decision. Consequently, OWCP properly denied his
reconsideration request as his request does not establish clear evidence of error.
On appeal, appellant asserts that OWCP erred by ignoring and manipulating information,
delaying her claim, and failing to accept an impairment rating using the Greenleaf system. The
Board notes that there is no evidence of misconduct by OWCP in the processing of appellant’s
claims.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2012 is affirmed.
Issued: September 26, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

22

D.E., 59 ECAB 438 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
)
)
J.H., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE
)
Albany, NY, Employer
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 14-1612
Issued: January 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 14, 2014 appellant filed a timely appeal of a June 12, 2014 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 and because more than 180
days elapsed from May 16, 2013, the date of the most recent OWCP merit decision, to July 14,
2014, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2013 appellant, then a 37-year-old city letter carrier, filed a traumatic
injury claim alleging that on February 22, 2013 she sustained pain in her left knee while in the
performance of duty. She stopped work on February 23, 2013.
In a February 22, 2013 report, Dr. Carsten Stracke, Board-certified in family medicine,
noted that the history of injury included: “no known injury, acute onset of left knee pain.” He
responded “yes” with regard to whether there was any history of evidence of concurrent or
preexisting injury or disease or physical impairment. Dr. Stracke indicated that appellant had a
left labral tear of the hip one year ago. He provided findings of tenderness over the left medial
knee. Dr. Stracke stated that x-rays were not indicated. He diagnosed pain in the joint and lower
leg and advised that appellant had a possible medial meniscus tear. Dr. Stracke responded “yes”
with regard to whether he believed that the condition was caused or aggravated by an
employment activity and filled in “walking.” He placed appellant on total disability for the
period February 22 to 25, 2013.
On March 19, 2013 appellant filed a notice of recurrence. She alleged that her recurrence
began on March 12, 2013. Appellant indicated that she returned to work for two days on
March 11 and 12, 2013 and by the end of the second day she had the same problem with her left
knee.
In a letter dated April 16, 2013, OWCP noted that appellant’s claim initially appeared to
be a minor injury that resulted in minimal or no lost time from work and her claim was
administratively approved but the merits of the claim had not been formally considered. It
explained that her claim was now being reopened because she had filed a claim for a recurrence.
OWCP informed appellant of the type of factual and medical evidence needed to support her
claim and requested that she submit such evidence within 30 days.
By decision dated May 16, 2013, OWCP denied appellant’s claim for compensation as
the evidence was not sufficient to establish that the claimed event occurred as alleged. It further
found that the medical evidence did not establish that the February 22, 2013 employment
incident caused an injury.2
On May 21, 2014 appellant requested reconsideration. She noted that, on February 22,
2013, she was performing her duties as a mail carrier on her assigned route in Albany, New
York. Appellant’s duties included walking from house to house delivering the mail, climbing
stairs, and carrying parcels to people’s homes. She indicated that, toward the late morning to
afternoon, she started to feel pain in her left knee, and as the day progressed, her pain worsened
and her knee began to swell. Appellant advised that she called her supervisor and informed him
that she was in a lot of pain and could not continue her deliveries. She explained that she never
had an injury or pain prior to the incident and that it was actually an occupational disease, as
described by her physician. Appellant noted that she had worked as a full-time mail carrier for
8 to 10 hours a day, five days a week for 12 years. She indicated that she always walked many
2

On that same date, OWCP advised appellant that no further action would be taken regarding her claim for a
recurrence as her claim was denied.

2

miles up and down stairs, through the snow, and on uneven terrain. Appellant denied engaging
in any other outside activities, sports or otherwise, with the exception of caring for her two
children.
In support of her claim, appellant submitted additional medial evidence. OWCP received
reports dated March 27 and April 1, 2013 from Dr. James Alfandre, a Board-certified orthopedic
surgeon. In the duty status report dated March 27, 2013, Dr. Alfandre described the injury as
occurring by indicating that appellant felt pain in her left knee an hour into her route and it
worsened throughout the day. In the March 1, 2013 report, he noted that she walked at work and
over used her knee. Dr. Alfandre’s findings included: edema and pain on flexion to 120
degrees. He diagnosed chondromalacia of the patella. Dr. Alfandre checked “yes” with regard
to whether he believed that the condition was caused or aggravated by an employment activity
and filled in “prolong walking.” He advised that appellant was disabled from March 11 to
April 8, 2013. Dr. Alfandre provided restrictions to limit walking two hours per day.
Also submitted was a copy of the February 22, 2013 report from Dr. Stracke.
Additionally, OWCP also received: physical therapy notes from March 15 to April 15, 2013;
notes from physician’s assistants; discharge instructions dated February 22, 2013; a letter from
the employing establishment to appellant; and a May 24, 2013 letter from Travelers Insurance to
appellant related to its refusal to make a payment with regard to an “unwitnessed fall.”
In a June 12, 2014 decision, OWCP denied appellant’s request for reconsideration finding
that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).4 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
3

5 U.S.C. § 8128(a).

4

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

3

provide that an application for reconsideration must be received within one year of the date of
OWCP decision for which review is sought.5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.7 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.8
ANALYSIS
In its June 12, 2014 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision on May 16, 2013. Appellant’s
May 21, 2014 letter requesting reconsideration was submitted more than one year after the
May 16, 2013 merit decision and was, therefore, untimely.
OWCP properly performed a limited review to determine whether appellant’s untimely
reconsideration request showed clear evidence of error. It reviewed the additional evidence
submitted by her in support of her reconsideration request, but found that it did not clearly show
that OWCP’s prior decision was in error.
The Board finds that the evidence submitted by appellant in support of her application for
review does not raise a substantial question as to the correctness of OWCP’s decision and is
insufficient to demonstrate clear evidence of error. The critical issue in this case is whether
OWCP on May 16, 2013 properly denied her claim for a traumatic injury on February 27, 2013.
5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

8

Id.

4

The issue underlying appellant’s claim is whether the February 22, 2013 employment incident
occurred at the time, place and in the manner alleged. This is factual in nature.
On reconsideration, appellant provided a statement describing how she believed her
injury occurred. She explained that, on February 22, 2013, she was performing her duties as a
mail carrier on her assigned route in Albany, New York. Appellant described her duties which
included: walking from house to house delivering the mail, climbing stairs, and carrying parcels
to people’s homes. She also explained that, toward the late morning to afternoon, she started to
feel pain in her left knee, and as the day progressed, her pain worsened and her knee started to
swell. Appellant advised that she called her supervisor and informed him that she was in a lot of
pain and could not continue her deliveries. She explained that she never had an injury or pain
prior to the incident and she believed that it was actually an occupational disease, as described by
her physician.9
The Board notes that this statement does not provide positive, precise or explicit evidence
that manifests on its face that OWCP committed an error. The Board notes that clear evidence of
error is intended to represent a difficult standard,10 and as noted, it is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion.
The Board also notes that the medical evidence submitted by appellant is not relevant to
the pertinent issue of whether she has established the occurrence of the February 22, 2013
employment incident. In order to establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by OWCP.11 Appellant submitted medical
reports from Drs. Alfandre and Strack. The submission of medical evidence is insufficient to
resolve the factual question of whether the February 22, 2013 employment incident occurred at
the time, place, and in the manner alleged.12
Other documentation provided by appellant does not provide positive, precise or explicit
evidence that manifests on its face that OWCP committed an error.
Appellant did not submit any evidence or legal arguments sufficient to raise a substantial
question as to the correctness of OWCP’s decision. To establish clear evidence of error, the
evidence submitted must be positive, precise, and explicit and must manifest on its face that
OWCP committed an error.13 Appellant did not submit such evidence. Consequently, OWCP
properly denied her reconsideration request as it does not establish clear evidence of error.
On appeal, appellant asserts that causal relationship was at issue in her case and that she
had submitted medical evidence supporting that she sustained a work-related injury. However,
9

The Board notes that, if appellant is alleging that she sustained an occupational disease, she may wish to file a
separate claim for an occupational disease.
10

See E.R., Docket No. 09-599 (issued June 3, 2009).

11

Howard Y. Miyashiro, 51 ECAB 253 (1999).

12

Andrew Fullman, 57 ECAB 574 (2006).

13

Robert F. Stone, 57 ECAB 292 (2005).

5

as explained, the Board does not have jurisdiction over the merits of the claim. The Board may
only consider whether the reconsideration request was timely and, if not, whether appellant
presented clear evidence of error in OWCP’s May 16, 2013 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lock Haven, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-527
Issued: July 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 5, 2012 appellant, through counsel, filed a timely appeal from an October 26,
2011 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing
representative denying his claim for a schedule award. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment warranting a schedule
award.
FACTUAL HISTORY
On August 14, 2002 appellant, then a 48-year-old part-time clerk, filed a traumatic injury
claim alleging a lower back injury when he leaned over to remove a tray of mail from a machine
1

5 U.S.C. § 8101 et seq.

on August 12, 2002. OWCP accepted his claim for a herniated disc at L4-5. Appellant stopped
work on August 17, 2002 and returned to light duty on November 14, 2003.
This case was previously before the Board with respect to the termination of
compensation benefits. By decision dated September 24, 2007, the Board affirmed the
August 21 and March 1, 2006 OWCP decisions to terminate appellant’s medical and wage-loss
compensations benefits effective March 1, 2006 as he no longer had any employment-related
medical residuals or disability.2 It found that the weight of the medical evidence rested with the
impartial medical examiner, Dr. Charles R. Levine, a Board-certified orthopedic surgeon, who
determined that appellant no longer had residuals or disability related to his accepted
employment injury. The facts and history as set forth in the prior decision are incorporated by
reference.
In a December 3, 2009 report, Dr. David Weiss, an orthopedic surgeon, examined
appellant for injuries sustained during the course of his employment. He described a
November 18, 1999 incident at work when appellant felt a popping sensation in his right arm
after lifting heavy garbage containers and appellant’s August 12, 2002 injury.3 Dr. Weiss related
appellant’s current complaints including low back pain and radicular pain into both lower
extremities. Appellant complained that he had difficulty with activities of daily living and lifting
weights greater than 25 pounds.
Examination of the lumbar spine revealed no tenderness to palpation. Range of motion
revealed forward flexion of 65/80 degrees, backward extension of 15/30 degrees, left lateral
flexion of 10/30 degrees and right lateral flexion of 10/30 degrees. Straight leg raise tests
revealed midline low back pain on the right at 90 degrees and on the left at 75 degrees.
Dr. Weiss opined that the November 18, 1999 and August 12, 2002 injuries at work were the
competent producing factors for appellant’s subjective and objective findings. Utilizing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (6th ed. 2008) (A.M.A., Guides) Chapter 16, he stated that appellant had a 9 percent
impairment for the left lower extremity based on a class 1 sensory deficit of the left S1 never
root, and a 12 percent impairment for the right lower extremity based on a class 1 sensory deficit
of the right L4 and S1 nerve roots. Dr. Weiss noted that appellant was at maximum medical
improvement.
OWCP referred the case to Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
and district medical adviser, on March 15, 2010, together with a statement of accepted facts, to
determine whether appellant sustained any permanent impairment as a result of his accepted
herniated lumbar disc and the extent of any impairment in accordance with the A.M.A., Guides
(6th ed 2008). Dr. Berman provided an accurate history of the August 12, 2002 work-related
injury and reviewed Dr. Weiss’ December 3, 1999 impairment evaluation. Regarding Dr. Weiss’
recommendations for the lower extremities, the district medical adviser stated that the
examination results did not reveal a nerve root injury, but rather the impairment should be related
2

Docket No. 07-945 (issued September 24, 2007).

3

Dr. Weiss assessed appellant’s impairment to the upper extremities resulting from the 1999 injury. The issue of
impairment of appellant’s upper extremities is not before the Board in the present appeal.

2

to appellant’s accepted herniated lumbar disc, which would support impairment of the L5 nerve
root. Utilizing Chapter 16 of the A.M.A., Guides (6th ed. 2008), he determined that appellant had
seven percent impairment of both the right and left lower extremities.4 The district medical
adviser noted the date of maximum medical improvement as December 3, 2009.
Appellant resubmitted Dr. Weiss’ December 3, 2009 report with additional information.
He noted diagnoses of distal biceps tendon tear to the right arm, chronic post-traumatic
lumbosacral strain and sprain, herniated nucleus pulposus L3-L4, L4-L5, and L5-S1, lumbar
radiculitis and aggravation of preexisting age-related quiescent osteoarthritis of the lumbar spine.
Dr. Weiss examined the lumbar spine and noted restricted and painful range of motion on
forward flexion, backward extension and left and right lateral flexion. Straight leg raise testing
produced complaints of midline low back pain on the right at 90 degrees above the horizontal
and low back pain on the left at 75 degrees.
In a March 22, 2010 note, Dr. Stephen Goykovich, an orthopedic surgeon, stated that he
reviewed Dr. Weiss’ December 3, 2009 evaluation and agreed with the finding that appellant had
12 percent impairment of the right lower extremity.
In a March 31, 2011 decision, OWCP denied appellant’s claim for a schedule award. It
based its determination on the prior termination of compensation benefits on March 1, 2006.
On April 7, 2011 appellant submitted a request for a hearing, which was held on
August 10, 2011. Counsel for appellant noted that Dr. Weiss properly applied the sixth edition
of the A.M.A., Guides (2008) to determine that appellant sustained 9 percent impairment to the
left leg and 12 percent impairment to the right leg based on the class 1 sensory deficit at the S1
and L4 nerve roots. He also pointed out that the medical adviser found seven percent
impairment to each lower extremity in accordance with the sixth edition of the A.M.A.,
Guides, (2008) but OWCP’s denial only referred to the prior report of Dr. Levine, which was the
basis for the termination decision. He contended that it was improper to rely upon appellant’s
prior termination as there was a difference between physical impairment and disability for wage
loss. Counsel contended that OWCP did not properly consider the reports from the district
medical adviser and Dr. Weiss.
By decision dated October 26, 2011, an OWCP hearing representative affirmed the
March 31, 2011 decision denying a schedule award. He found that Dr. Weiss had not provided
any medical rationale to support that appellant’s condition was causally related to the accepted
employment injury. The hearing representative also found that the district medical adviser’s
report merely applied the A.M.A., Guides to the findings of record, but did not establish
permanent impairment causally related to the accepted injury.
4

Based on Table 17-4, page 570 of the A.M.A, Guides (6th ed. 2008), class 1 for intervertebral disc herniation,
the medical adviser determined that appellant had a default value of seven percent impairment. Utilizing the grade
modifiers for Functional History on Table 17-6, page 575, grade modifier 1, Physical Examination on Table 17-7,
page 576, grade modifier 1, and Clinical Studies on Table 17-9, page 581, grade modifier 0, he determined that an
adjustment of -1 was necessary. As applied to the Lumbar Spine Regional Grid, Table 17-4, page 570, appellant’s
grade was reduced from C to B to six percent whole person impairment. The medical adviser converted the whole
personal impairment to lower extremity utilizing Impairment Values Calculated for Lower Extremity, Table 16-10,
page 530 to reach 14 percent total lower extremity impairment.

3

LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.9 OWCP
procedures provide that to support a schedule award the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.10
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.11 Neither FECA nor the implementing regulations
provide for the payment of a schedule award for the permanent loss of use of the back or the
body as a whole.12 However, a claimant may be entitled to a schedule award where the
employment-related back condition affects the upper and/or lower extremities.13
When a claimant’s compensation is terminated, but the termination is not based on his
refusal of suitable work under 5 U.S.C. § 8106(c), he or she is not barred from receiving a
schedule award for permanent impairment related to the accepted injury.14
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id.

8

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(b) (January 2010).
11

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

12

5 U.S.C. § 8107(c) (2006); 20 C.F.R. § 10.404(a) (2011); see Jay K. Tomokiyo, 51 ECAB 361 (2000).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6a(3) (January 2010).
14

Wayne B. Carlton, Docket No. 98-1994 (issued July 14, 2000); see also B.S., Docket No. 07-1786 (issued
January 11, 2008).

4

ANALYSIS
Appellant’s claim was accepted for a herniated disc at L4-L5. OWCP terminated
appellant’s compensation on March 1, 2006. As the termination was not based upon a refusal of
suitable work, appellant is not precluded from receiving a schedule award if the medical
evidence of record established permanent impairment causally related to the employment injury.
On January 25, 2011 appellant filed a claim for a schedule award. As noted, FECA does
not provide for a schedule award based on impairment to the back or spine.15 Appellant may
receive a schedule award for impairment to the lower extremities if such impairment is
established as being due to her accepted lumbar condition.16 By decisions dated March 31 and
October 26, 2011, OWCP denied appellant’s claim for a schedule award finding that the medical
evidence failed to establish that he sustained a permanent impairment causally related to the
accepted employment injury. The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted a December 3, 2009 report from Dr. Weiss,
who opined that appellant had 9 percent impairment for the left lower extremity, and 12 percent
impairment for the right lower extremity based on the sixth edition of the A.M.A., Guides. On
March 15, 2010 at OWCP’s request an OWCP medical adviser reviewed Dr. Weiss’ report. The
issue presented to Dr. Berman was “what is the extent of permanent partial impairment due to
the employment in accordance with the A.M.A., Guides to the evaluation of permanent
impairment (sixth edition) is there any permanent impairment as a result of the work-related
injury?” He reported that appellant’s impairment should be related to appellant’s accepted
herniated lumbar disc, and would support impairment to the L5 nerve root from the herniated
disc. Utilizing the sixth edition of the A.M.A., Guides (2008), the medical adviser concluded
that appellant sustained 7 percent impairment of each lower extremity.
OWCP denied appellant’s schedule award claim finding that the prior termination of
benefits in 2006 precluded consideration of a schedule award for permanent impairment.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.17
The Board notes that Dr. Berman did not reference The AMA Guides July/August 2009
Newsletter regarding spinal nerve extremity impairments. OWCP procedures indicate that the
Newsletter would be the appropriate method of determining lower extremity impairment in this
case. The Newsletter provides a specific method for determining impairments such as

15

Supra note 10.

16

Supra note 11; see also C.H., Docket No. 11-981 (issued January 11, 2012).

17

Horace L. Fuller, 53 ECAB 775, 777 (2002).

5

radiculopathy.18 It explains that in the sixth edition, impairment for radiculopathy is reflected in
the diagnosis-based impairment for the spinal region.19
On remand, OWCP should further develop the medical evidence of record. It should
request a medical opinion properly applying the sixth edition of the A.M.A., Guides, including
the 2009 Newsletter. Thereafter, OWCP shall issue an appropriate final decision on appellant’s
entitlement to a schedule award.20
CONCLUSION
The Board finds that this case was not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2011 Office of Workers’
Compensation Programs’ hearing representative’s decision is set aside and remanded for further
action consistent with this decision of the Board.
Issued: July 16, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

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

18

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5
(January 2010). The Newsletter is included as Exhibit 4.
19

P.G., Docket No. 12-30 (issued May 15, 2012).

20

S.G., Docket No. 09-2310 (issued July 6, 2010).

6