United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Beaumont, TX, Employer
__________________________________________

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

Docket No. 16-0783
Issued: September 26, 2017

Case Submitted on the Record

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

JURISDICTION
On March 9, 2016 appellant filed a timely appeal from a December 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish more than eight
percent permanent impairment of his right upper extremity, for which he previously received
schedule awards; and (2) whether appellant met his burden of proof to establish permanent
impairment of his lower extremities due to his accepted lumbar conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 11, 2005 appellant, then a 46-year-old unit manager, filed a traumatic injury
claim (Form CA-1), assigned OWCP File No. xxxxxx921, alleging that on August 9, 2005 he
sustained a lower back injury at work. He noted that he felt a pull in his lower back while
running from the front lobby in response to a body alarm. Appellant did not stop work. OWCP
accepted his claim for sprain/strain of the lumbar region.2
On September 21, 2007 appellant filed a traumatic injury claim (Form CA-1) alleging
that on the same date he sustained back and shoulder injuries at work when he fell from a chair
to the floor. He stopped work on September 21, 2007 and returned to light-duty work in lateNovember 2007. Under File No. xxxxxx277, OWCP accepted that appellant sustained a sprain
of his lumbar region and a strain of his right shoulder.3
Under File No. xxxxxx277, appellant filed a notice of recurrence (Form CA-2a) on
November 3, 2009 alleging that on the same date he sustained a recurrence of disability due to
his accepted September 21, 2007 work injury. He noted having intense back pain and indicated
that he experienced increased difficulty when engaging in lifting, navigating stairs, standing, and
sitting at work. OWCP considered appellant’s recurrence claim to be a claim for a new injury
sustained on November 3, 2009 and, under File No. xxxxxx980, it accepted that he sustained
displacement of lumbar intervertebral disc without myelopathy, lumbosacral radiculitis (not
otherwise specified), and closed dislocation of his right shoulder (unspecified).
On April 8, 2011 appellant underwent OWCP-authorized arthroscopy and acromioplasty
of his right shoulder.
The findings of a February 17, 2012 magnetic resonance imaging (MRI) scan of
appellant’s lumbar spine contained an impression of L3-4 bilateral facet hypertrophy, herniated
disc at L4-5 into the floor of both neural foramina, foraminal stenosis on the left, and
degenerative changes throughout the spine.
On January 29, 2013 appellant filed a claim for a schedule award (Form CA-7) due to his
September 21, 2007 work injury.
2

The Board notes that OWCP File Number xxxxxx921 is the master file for the present case and that the other
files mentioned in this decision are subsidiary files of the master file.
3

Under OWCP File No. xxxxxx345, OWCP also accepted that on August 5, 2009 appellant sustained tears of the
lateral and medial menisci of his right knee and right hip/thigh contusions due to stepping into a ditch at work. On
March 8, 2011 appellant underwent OWCP-approved right knee surgery, including arthroscopic chondroplasty of
the patellofemoral joint, partial medial meniscectomy, and partial lateral meniscectomy. In an August 13, 2012
report, an OWCP medical adviser provided a rating of 10 percent permanent impairment of the right lower extremity
using the diagnosis-based impairment (DBI) rating method (right partial medial/lateral meniscectomies) under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (A.M.A., Guides). In a September 13, 2012 decision, OWCP granted appellant a schedule award for 10
percent permanent impairment of his left lower extremity. However, on September 17, 2014, OWCP amended its
September 13, 2012 decision to reflect that he actually had 10 percent permanent impairment of his right lower
extremity. The Board notes that the permanent impairment of appellant’s right lower extremity due to the right knee
condition he sustained on August 5, 2009 is not the subject of the present appeal.

2

In a February 8, 2013 report, Dr. Jennifer Johnson-Caldwell, an attending Board-certified
internist, noted that appellant reported experiencing low back pain that radiated down both legs,
right greater than left. She diagnosed lumbosacral neuritis, lumbar disc displacement,
dislocation of right shoulder, and rotator cuff tear post repair. Dr. Johnson-Caldwell determined
that appellant had seven percent permanent impairment of his right upper extremity using the
DBI method under Table 15-5 (Shoulder Regional Grid) of the sixth edition of the A.M.A.,
Guides. With respect to the lower extremities, she indicated that appellant’s lumbar disc
herniation and radiculopathy placed him under a class 3 default value of 19 percent on Table 174 (Lumbar Spine Regional Grid). Dr. Johnson-Caldwell found that application of grade
modifiers for functional history and physical examination to this default value (using Table 17-5)
meant that appellant had 17 percent permanent impairment of his whole person.
On April 9, 2013 an OWCP medical adviser determined that Dr. Johnson-Caldwell
properly found that appellant had seven percent permanent impairment of his right upper
extremity under the DBI impairment rating method of the sixth edition of the A.M.A., Guides.
The medical adviser indicated that Dr. Johnson-Caldwell’s impairment rating for 17 percent
permanent impairment of appellant’s whole person was not valid under the relevant standards.
In a decision dated June 18, 2013, OWCP granted appellant a schedule award for seven
percent permanent impairment of his right upper extremity. The award ran for 21.84 weeks from
February 8 to July 10, 2013 and was based on OWCP’s medical adviser’s evaluation of the
findings obtained by Dr. Johnson-Caldwell.
Appellant continued to claim entitlement to additional schedule award compensation and
he requested reconsideration of his claim on October 28, 2013. He submitted several new
reports of attending physicians, but none of the reports contained an impairment rating.
By decision dated February 20, 2014, OWCP denied modification of its June 18, 2013
decision. It determined that appellant did not establish more than seven percent permanent
impairment of his right upper extremity due to his September 21, 2007 work injury, for which he
previously received a schedule award. OWCP further found that appellant had not established
permanent impairment of his lower extremities due to his accepted lumbar conditions.
The findings of June 2, 2014 electromyogram and nerve conduction velocity
(EMG/NCV) testing of appellant’s lower extremities contained an impression of moderate
subacute L4-S1 radiculopathy on the right and the left, and diffuse axonal sensory motor
peripheral neuropathy of both lower extremities. There was no evidence of tarsal tunnel
syndrome.
OWCP referred appellant for a second opinion evaluation regarding permanent
impairment to Dr. Jerome O. Carter, a Board-certified physical medicine and rehabilitation
physician. In a report dated August 13, 2014, Dr. Carter used the range of motion (ROM) rating
method to determine that appellant had eight percent permanent impairment of his right upper
extremity under the sixth edition of the A.M.A., Guides. He also found that appellant did not
have any permanent impairment of his lower extremities under the standards of The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition

3

(July/August 2009) (The Guides Newsletter).4 On September 18, 2014 an OWCP medical
adviser agreed with Dr. Carter’s impairment rating.
By decision dated September 24, 2014, OWCP determined that, based on the opinions of
Dr. Carter and OWCP’s medical adviser, appellant had permanent impairment of his right upper
extremity totaling eight percent. It further found that appellant did not have any permanent
impairment of either lower extremity. In another decision dated September 24, 2014, OWCP
granted appellant a schedule award for an additional one percent permanent impairment of his
right upper extremity. Appellant thereby received schedule award compensation for permanent
impairment of his right upper extremity totaling eight percent.
Appellant continued to claim entitlement to additional schedule award compensation and
requested reconsideration of his claim on January 30, 2015.
Appellant submitted a January 16, 2015 report from Dr. Frank L. Barnes, an attending
Board-certified orthopedic surgeon, who determined that he had 20 percent permanent
impairment of his right upper extremity under the ROM rating method of the sixth edition of the
A.M.A., Guides.5 Dr. Barnes also determined that appellant had 17 percent permanent
impairment of his lumbar spine under Table 17-4 (Lumbar Spine Regional Grid) of the sixth
edition of the A.M.A., Guides.6 He indicated that appellant had reached maximum medical
improvement on November 28, 2014.
In a February 6, 2015 letter, OWCP advised Dr. Barnes that, under FECA, an award for
permanent impairment could not be paid for the spine, but that such an award could be paid for
permanent impairment of the upper or lower extremities caused by injury to a spinal nerve. It
requested that Dr. Barnes provide a supplemental report and indicated that, if appellant had a
work-related spinal nerve injury which caused impairment to his extremities, he should render an
impairment rating for the affected extremities by using The Guides Newsletter.
In a supplemental report received on March 23, 2015,7 Dr. Barnes determined that
appellant had 22 percent permanent impairment of his right upper extremity under the ROM
rating method of the sixth edition of the A.M.A., Guides. He noted, “I am informed by the U.S.
Department of Labor that there are no awards for impairment of the spine. Therefore the spine
will not be rated.” Dr. Barnes further indicated that there was no evidence of nerve damage in
appellant’s upper or lower limbs on the basis of the injuries to his spine. He posited that,
therefore, no rating could be given for nerve damage. Dr. Barnes advised that the generalized
4

See infra note 20. Dr. Carter noted that there was normal sensation of spinal dermatomes from L1 through S1 as
well as normal 5/5 motor strength in both lower extremities.
5

In one portion of the report, Dr. Barnes indicated that appellant had 28 percent permanent impairment of his
right upper extremity, but the content and context of his report shows that he actually provided an opinion that
appellant had 20 percent permanent impairment of his right upper extremity.
6

Dr. Barnes mentioned Table 17-2 (Cervical Spine Regional Grid) but the content and context of his report
shows that he meant to refer to Table 17-4 (Lumbar Spine Regional Grid).
7

Dr. Barnes’ supplemental report, like his initial report, was dated January 16, 2015. It contained some text in
common with his initial report dated January 16, 2015.

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weakness of appellant’s lower limbs did not correspond to the distribution of the motor nerves in
the lower limbs. He indicated that the finding of weakness was probably due to pain avoidance
or anticipation of pain, rather than nerve damage.
In April 2015 OWCP referred appellant for a second opinion examination to Dr. Zvi
Kalisky, a Board-certified physical medicine and rehabilitation physician, in order to evaluate his
permanent impairment due to the accepted work injuries. Dr. Kalisky examined appellant on
May 15, 2015.
Dr. Kalisky arranged for appellant to undergo new EMG/NCV testing as part of the
second opinion examination. The testing was performed on June 9, 2015 by Dr. Goran Jezik, a
Board-certified physical medicine and rehabilitation physician. Dr. Jezik noted in the impression
section of his report that there was electrodiagnostic evidence of motor polyneuropathy affecting
the lower extremities, with mild active peripheral denervation on needle EMG examination,
consistent with the clinical diagnosis of generalized diabetic peripheral neuropathy. It was
indicated that there was an otherwise normal electrodiagnostic evaluation of the lower
extremities. There was no clear myotomal involvement on needle EMG examination root screen
of the lower extremities to conclusively support the diagnosis of lumbosacral radiculopathy or
plexopathy on either side. There was no electrodiagnostic evidence of generalized muscle
disease affecting the lower extremities.
In a report dated June 22, 2015, Dr. Kalisky discussed appellant’s factual and medical
history, including his history of past diagnostic testing.8 He noted that EMG/NCV testing results
obtained on June 9, 2015 showed no electrodiagnostic evidence of lumbosacral radiculopathy,
lumbosacral plexopathy, or lower extremity peripheral neuropathy. Dr. Kalisky reported the
findings of his May 15, 2015 physical examination, noting that Waddell signs were positive for
superficial tenderness, nonorganic distribution of tenderness, axial loading, simulated rotation,
and give-away weakness in all muscle groups in the bilateral lower extremities. The sensory
examination was intact and, upon motor examination, there was give-away weakness in all
muscle groups in the bilateral lower extremities that would be inconsistent with ambulation.9
Using the ROM method of evaluating upper extremity impairment, Dr. Kalisky
determined that appellant had eight percent permanent impairment of his right upper extremity
under the standards of the sixth edition of the A.M.A., Guides. He found that, utilizing Table 2
of The Guides Newsletter, appellant belonged in class 0 for his L3, L4, L5, and S1 nerve roots,
which meant that he had zero percent permanent impairment of his right lower extremity and
zero percent permanent of his left lower extremity. Dr. Kalisky indicated that he based this
8

Dr. Kalisky noted that appellant injured himself when he fell from a chair at work, but he inadvertently listed the
date of the incident as November 3, 2009 rather than the actual date of September 21, 2007. He indicated that
June 2, 2014 EMG and NCV testing of the lower extremities revealed evidence of moderate subacute L4-S1
radiculopathy on the right and left, and evidence of diffuse axonal sensory motor peripheral neuropathy of the lower
extremities.
9

Dr. Kalisky diagnosed lumbar sprain/strain with thoracic and lumbar chronic pain complaints, pain radiation to
the bilateral lower extremities with no objective findings of radiculopathy, multiple positive Waddell signs
suggesting symptom magnification, displacement of lumbar intervertebral disc without myelopathy, right shoulder
contusion, and status post right shoulder arthroscopy and acromioplasty.

5

conclusion on the fact that appellant had no specific dermatomal distribution of pain or
paresthesias, that there were no objective valid motor or sensory findings of radiculopathy
identified during the May 15, 2015 evaluation, and that the EMG/NCV study of the lower
extremities was negative.
By decision dated July 13, 2015, OWCP denied modification of its September 24, 2014
decision. It determined that appellant had not established more than eight percent permanent
impairment of his right upper extremity due to his September 21, 2007 work injury, for which he
previously received schedule awards. OWCP further found that appellant had not established
permanent impairment of his lower extremities due to his accepted lumbar conditions.
In a form and letter dated October 5, 2015 and received by OWCP on October 9, 2015,
appellant requested reconsideration of OWCP’s July 13, 2015 decision. In his letter, appellant
argued that his claim for greater permanent impairment was supported by medical evidence
already of record, including the reports of Dr. Johnson-Caldwell and Dr. Barnes and the report of
June 2014 EMG/NCV testing.
By decision dated December 22, 2015, OWCP denied modification of its July 13, 2015
decision. It determined that appellant had not established more than eight percent permanent
impairment of his right upper extremity due to his September 21, 2007 work injury, for which he
previously received schedule awards. OWCP further found that appellant had not established
permanent impairment of his lower extremities due to his accepted lumbar conditions.
LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.11 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
10

See 20 C.F.R. §§ 1.1-1.4.

11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
12

20 C.F.R. § 10.404; see also, Ronald R. Kraynak, 53 ECAB 130 (2001).

6

printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
ANALYSIS -- ISSUE 1
The first issue on appeal is whether appellant has met his burden of proof to establish
more than eight percent permanent impairment of his right upper extremity, for which he
previously received schedule awards. The Board finds that this case is not in posture for
decision with respect to this issue.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.15
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the
application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.17
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the December 22, 2015 decision with
respect to its determination of appellant’s right upper extremity permanent impairment. Utilizing
a consistent method for calculating permanent impairment for upper extremities to be applied
uniformly, and after such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

Isidoro Rivera, 12 ECAB 348 (1961).

15

T.H., Docket No. 14-0943 (issued November 25, 2016).

16

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

17

See supra note 15.

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LEGAL PRECEDENT -- ISSUE 2
Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.18 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.19 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology
for rating spinal nerve extremity impairment.20 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.21
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his lower extremities due to his accepted lumbar conditions.
Appellant submitted a February 8, 2013 report in which Dr. Johnson-Caldwell, an
attending physician, concluded that he had 17 percent permanent impairment of his whole person
under the standards of the sixth edition of the A.M.A., Guides.22 The Board notes that the
submission of this report does not establish appellant’s claim for permanent impairment of his
lower extremities due to his September 21, 2007 work injury. The February 9, 2013 report of
Dr. Johnson-Caldwell is of limited probative value on this matter because neither FECA, nor its
implementing regulations provide for a schedule award for impairment to the back, spine, or to the
body as a whole.23
Appellant also submitted a January 16, 2015 report in which Dr. Barnes, an attending
physician, determined that he had 17 percent permanent impairment of his lumbar spine under
Table 17-4 (Lumbar Spine Regional Grid) of the sixth edition of the A.M.A., Guides. This
report also is of limited probative value regarding permanent impairment of the lower extremities
because, as noted above, a schedule award is not payable for the back or spine under FECA.24
18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5c(3).
20

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
21

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

22

Dr. Johnson-Caldwell indicated that appellant’s lumbar disc herniation and radiculopathy placed him under a
class 3 default value of 19 percent on Table 17-4 (Lumbar Spine Regional Grid) of the sixth edition of the A.M.A.,
Guides. She found that application of grade modifiers for functional history and physical examination to this default
value meant that appellant had 17 percent permanent impairment of his whole person.
23

See supra note 18.

24

See id.

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The Board notes that Dr. Barnes indicated in a second report dated January 16, 2015, “I am
informed by the U.S. Department of Labor that there are no awards for impairment of the spine.
Therefore the spine will not be rated.”25 He further advised that there was no evidence of nerve
damage in appellant’s upper or lower limbs on the basis of the injuries to his spine. Dr. Barnes
posited that, therefore, no rating could be given for nerve damage.26
The findings of June 2, 2014 electromyogram EMG testing of appellant’s lower
extremities contained an impression of moderate subacute L4-S1 radiculopathy on the right and
the left, and diffuse axonal sensory motor peripheral neuropathy of both lower extremities. The
Board finds that this report is of limited probative value on the relevant issue of the present case
because it does not contain an opinion regarding whether appellant had permanent impairment of
his lower extremities due to his September 21, 2007 work injury.27
Moreover, the record contains other evidence showing that appellant did not have
permanent impairment of his lower extremities due to his September 21, 2007 work injury. In a
report dated June 22, 2015, Dr. Kalisky, an OWCP referral physician, provided an opinion that
appellant did not have permanent impairment of his lower extremities due to his September 21,
2007 work injury. He found that the most current electrodiagnostic testing showed that appellant
did not have a radiculopathy extending from the back into the lower extremities.28 In reaching
his impairment determination, Dr. Kalisky applied the standards of the sixth edition of the
A.M.A., Guides, including the standards of The Guides Newsletter.29
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

25

Although there is no schedule award for the back under FECA, an impairment from a spinal nerve affecting the
lower extremities can be determined using The Guides Newsletter. See M.O., Docket No. 15-1830 (issued
January 6, 2016).
26

Dr. Barnes advised that the generalized weakness of appellant’s lower limbs did not correspond to the
distribution of the motor nerves in the lower limbs. He indicated that the finding of weakness was probably due to
pain avoidance or anticipation of pain, rather than nerve damage.
27

On appeal appellant argues that the reports of Dr. Johnson-Caldwell and Dr. Barnes and the report of June 2014
EMG and NCV testing establish his claim for permanent impairment of his lower extremities. However, the Board
has explained why these reports do not establish such impairment.
28

Dr. Kalisky relied on EMG and NCV testing results obtained in June 2015 which showed no evidence of
lumbosacral radiculopathy, lumbosacral plexopathy, or lower extremity peripheral neuropathy. The testing revealed
findings suggestive of generalized diabetic peripheral neuropathy but there is no indication that the condition
causing these findings was work related.
29

See supra notes 20 and 21. In addition, Dr. Carter, an OWCP referral physician, produced an August 13, 2014
report in which he found that appellant did not have any permanent impairment of his lower extremities under the
standards of The Guides Newsletter.

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish permanent
impairment of his lower extremities due to his accepted lumbar conditions. The Board further
finds that this case is not in posture for decision regarding whether appellant met his burden of
proof to establish more than eight percent permanent impairment of his right upper extremity, for
which he previously received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision.
Issued: September 26, 2017
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Dublin, CA, Employer
__________________________________________

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

Docket No. 12-1909
Issued: March 27, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 18, 2012 appellant filed a timely appeal from the June 4, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days
have elapsed since the most recent merit decision of January 26, 2011 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

1

2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
establish clear evidence of error.
FACTUAL HISTORY
On July 2, 2010 appellant, then a 33-year-old maintenance mechanic, filed a traumatic
injury claim alleging injury to his left elbow, when he attempted to open a gate using his left arm
on June 30, 2010. He did not stop work.
OWCP received a December 6, 2010 treatment note from Dr. Michael S. Petersen, a
Board-certified orthopedic surgeon, who indicated that appellant came in for left elbow pain
“since about last February.” Appellant believed his symptoms began after doing some cement
work and then, around June 30, 2010, he heard a pop when closing a large gait and felt pain in
his elbow. Dr. Petersen was familiar with appellant based on prior treatment for this problem
“before he filed a workers’ compensation claim.” Dr. Petersen diagnosed chronic left elbow pain
consistent with lateral epicondylitis. He advised that appellant had an episode where he felt a
sharp pop in his elbow which might represent an oval lesion or tear of the extensor origin.
Dr. Petersen advised that appellant could return to modified duty.
In a January 26, 2011 decision, OWCP denied appellant’s claim finding that the medical
evidence did not establish that a left elbow condition was causally related to the June 30, 2010
work incident.
In a letter dated January 31, 2012, appellant’s attorney asked for an updated status on the
claim and noted that he was enclosing medical evidence. In an August 26, 2009 report,
Dr. Petersen performed a right shoulder arthroscopic bankart repair with capsulorrhaphy and
arthroscopic extensive debridement of subscapularis. OWCP received a copy of Dr. Petersen’s
December 6, 2010 report and physical therapy reports dating from September 23 to
October 19, 2010.
In a November 22, 2010 report, Dr. James M. Kim, Board-certified in pain medicine,
noted that appellant was seen for medication maintenance. He advised that appellant’s onset of
pain began as work related. Dr. Kim diagnosed degenerative disc disease of the cervical spine,
cervicalgia, shoulder pain, depression, sexual dysfunction, insomnia and chronic pain.3
In a January 24, 2012 report, Dr. Petersen explained that he previously saw appellant on
December 6, 2010 for his present injury. He treated appellant earlier for left elbow lateral
epicondylitis which predated the work injury as well as an unrelated right shoulder condition. At
the time, he was concerned about the pop and sharp pain that appellant experienced at the time of
injury and recommended a magnetic resonance imaging (MRI) scan to rule out an avulsion tear
of the extensor origin. He opined that the MRI scan findings of a partial radial collateral
ligament tear were consistent with the described injury where he felt a pop in his elbow
3

A January 18, 2011 report from Dr. Kim provided a similar statement regarding causal relationship.

2

associated with a sharp pain when closing a large gate. Dr. Petersen advised that appellant had
an established condition of lateral epicondylitis but that a separate discernible work injury
occurred when he was closing the heavy gate. He explained that as he popped it, he felt it was
likely the partial tear to the radial collateral ligament noted on the MRI scan. Dr. Petersen noted
that appellant had increased and sharper pain in his elbow after this injury. He stated that six
months later the physical examination findings were fairly unremarkable other than tenderness in
the left lateral elbow, which was consistent with the long period of time that passed since the
injury to his prior examination. Dr. Petersen opined that appellant had preexisting lateral
epicondylitis, left elbow, with a subsequent partial radial collateral ligament tear of the left
elbow. He opined that “I do believe that the causal relationship of this injury was shutting the
heavy gate, which was a work injury. Dr. Petersen likely was predisposed to this injury from his
preexisting condition of lateral epicondylitis.”
In an April 5, 2012 report, Dr. Petersen noted appellant’s history of injury and treatment.
He examined appellant and determined that there was no obvious swelling of the right shoulder
and advised that his point tenderness was pretty minimal; mainly, posterior to the scapular ridge.
Appellant had crepitus and popping with range of motion of the shoulder, which appeared to be
subacromial. He diagnosed, recurrent injury of the right shoulder and noted that he did not
appear to have gross instability, although there was a lot of clicking and crepitus and a strain of
the rotator cuff without full thickness tear.
On April 6, 2012 appellant’s counsel requested reconsideration. He argued that appellant
secured a report from Dr. Petersen dated January 23, 20124 which established “a clear
explanation of the mechanics of injury and causal relationship.” Counsel argued that appellant
met the statutory requirements for a merit review although the request was more than one year
after the last merit decision. He argued that the report established that OWCP committed error.
Counsel also argued that OWCP should have developed the claim.
In a decision dated June 4, 2012, OWCP denied appellant’s request for reconsideration
for the reason that it was not timely filed and failed to present clear evidence of error.

4

It appears to be the January 24, 2012 report from Dr. Petersen.

3

LEGAL PRECEDENT
Section 8128(a) of FECA5 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.”6
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).7 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
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.8
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.9
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.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8128(a).

7

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

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.607(b).

10

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

4

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.11
ANALYSIS
In its June 4, 2012 decision, OWCP properly determined that appellant failed to file a
timely application for review. It issued its most recent merit decision on January 26, 2011.
Appellant’s representative requested reconsideration on April 6, 2012, which was more than one
year after the January 26, 2011 merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, OWCP properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error, which would warrant reopening appellant’s case for merit review under
section 8128(a) of FECA, notwithstanding the untimeliness of the application. It reviewed the
evidence submitted by appellant in support of his application for review, but found that it did not
clearly show that OWCP’s most recent merit decision was in error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of OWCP’s most recent merit
decision and is insufficient to demonstrate clear evidence of error. The critical issue in this case
is whether appellant has shown clear evidence of error in OWCP’s January 26, 2011 decision,
which found that the medical evidence did not establish that the claimed medical condition was
related to established work-related events.
With his April 6, 2012 request for reconsideration, appellant submitted evidence from
Dr. Petersen and Dr. Kim, some of which supported that his condition is work related. His
attorney argued that the January 24, 2012 report from Dr. Petersen established a “clear
explanation of the mechanics of injury and causal relationship.” Dr. Petersen noted appellant’s
history and explained that MRI scan findings of a partial radial collateral ligament tear were
consistent with the described injury where appellant felt a pop in his elbow associated with a
sharp pain when closing a large gate. He explained that a separate discernible industrial injury
occurred when appellant was closing the heavy gate. Dr. Petersen explained that the pop was
likely the partial tear to the radial collateral ligament noted on the MRI scan. He indicated that,
while appellant had preexisting lateral epicondylitis of the left elbow, he sustained a subsequent
partial radial collateral ligament tear, of the left elbow. Dr. Petersen opined that “the causal
relationship of this injury was shutting the heavy gate, which was a work injury.” However, the
Board notes that OWCP procedures provide that the term “clear evidence of error” is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that
OWCP made an error (for example, proof of a miscalculation in a schedule award). Evidence
such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial, would
11

Id.

5

have created a conflict in medical opinion requiring further development, is not clear evidence of
error and would not require a review of a case.12 Thus, this report is insufficient to establish
clear evidence of error. Other reports of Dr. Petersen and Dr. Kim are also insufficient as they
either do not address the cause of appellant’s condition or do raise a substantial question
concerning the correctness of OWCP’s decision.
Physical therapy reports were also submitted. However, they do not constitute medical
evidence under 5 U.S.C. § 8101(2) and are therefore lacking in probative value. Therefore,
appellant has failed to demonstrate clear evidence of error on the part of OWCP.13
The Board finds that this evidence is insufficient to prima facie shift the weight of the
evidence in favor of appellant’s claim or raise a substantial question that OWCP’s denial of the
claim was erroneous. Therefore, the Board finds that appellant has not presented clear evidence
of error.
On appeal, appellant’s counsel asserts that OWCP’s decision is in error as appellant
should have received a merit review pursuant to the case of A.B.14 However, he has not
explained how the Board’s ruling in A.B. applies in the present case.15
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.

12

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

13

A physical therapist is not a physician within the meaning of section 8101(2) and cannot render a medical
opinion. Vickey C. Randall, 51 ECAB 357 (2000).
14

Docket No. 10-1070 (issued March 8, 2011).

15

In A.B., the underlying claim was for an emotional condition in which the claimant alleged being improperly
removed from her job and exposed to retaliation and discrimination. OWCP denied the claim because the claimant
did not establish a compensable employment factor. On reconsideration, the claimant submitted an EEOC decision
that raised a substantial question as to the correctness of OWCP’s decision. The EEOC decision made a specific
finding that the claimant’s supervisor retaliated against her and deliberately engaged in underhanded and deceitful
methods for terminating appellant. As explained, infra, the evidence submitted by appellant with her
reconsideration request is insufficient to raise a substantial question of OWCP’s merit decision.

6

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 27, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS, Barstow, CA, Employer
__________________________________________

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

Docket No. 21-1221
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On August 9, 2021 appellant filed a timely appeal from an April 6, 2021 merit decision
and a May 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of medical treatment causally related to his accepted May 5, 2009 employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2009 appellant, then a 24-year-old materials expediter, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2009 he injured his left knee when moving pallets of
material with the use of a pallet jack while in the performance of duty. Following a request for
surgery, OWCP formally adjudicated the claim and accepted left knee sprain, lateral collateral
ligament; old bucket handle tear of left medial meniscus and left knee contusion. Appellant
underwent OWCP-authorized left knee arthroscopic surgeries on July 23, 2009 and
October 27, 2016. OWCP paid him intermittent wage-loss compensation on the supplemental rolls
through November 21, 2016.
In a report dated May 17, 2017, Dr. Paul A. Stanton, an osteopath Board-certified in
orthopedic surgery, related that a final medical evaluation was performed at the request of
appellant. He related appellant’s medical history and physical examination findings. Dr. Stanton
noted that appellant had returned to full-duty work and that future medical care was not anticipated.
He concluded that appellant had reached a permanent and stationary level of disability.
Appellant’s last medical examination of record prior to his notice of recurrence of medical
treatment was conducted on December 1, 2017. In a report of even date, Dr. Amarilda
Christensen, a Board-certified occupational medicine specialist, performed a permanent
impairment evaluation and concluded that appellant had two percent permanent impairment of the
left lower extremity.2
On January 26, 2021 appellant filed a Form CA-2a alleging that he sustained a recurrence
of the need for medical treatment, commencing December 2, 2020 causally related to his accepted
left knee employment conditions. He asserted that it was difficult to bend, stoop, and climb stairs.
Appellant also noted that since he returned to work he could not seek medical treatment as his case
was closed.
In a development letter dated February 16, 2021, OWCP informed appellant of the
definition of a recurrence of a work-related medical condition for medical treatment and requested
that he submit additional evidence in support of his claim, including a physician’s opinion
supported by a medical explanation as to the relationship between h is current need for medical
treatment and the accepted employment conditions. It provided a questionnaire for his completion,
which posed questions regarding his medical treatment. 3 OWCP afforded appellant 30 days to
respond.
In a March 17, 2021 statement, appellant reported that he had experienced issues with his
left knee since his original injury, which had progressively worsened following the second surgery.

2
By decisions dated February 17, 2010 and Ma rch 6, 2018, OWCP granted appellant schedule award for one
percent permanent impairment of the left lower extremity, and an additional schedule award for two percent permanent
left lower extremity, respectively, for a total three percent permanent impairment of the left lower extremity.
3

OWCP advised appellant that, if a new traumatic work injury or occupational disease (Form CA-2) produced by
the work environment occurred, a new claim might need to be filed. This was true even if the new incident or exposure
involved the same part of the body as previously affected.

2

He noted that recent x-rays showed his knee was arthritic and narrowing as a result of his
arthroscopic surgeries and meniscus tear repair.
Appellant submitted reports from Dr. Benjamin M. Woodhead, an orthopedic surgeon,
dated February 19 and March 10, 2021. In his February 19, 2021 report, Dr. Woodhead noted that
appellant was seen for follow up six weeks’ status postsurgery, and his left knee. With regard to
the left knee, he noted appellant’s medical history, presented examination findings, and diagnosed
left knee patellofemoral syndrome and left knee mild arthritis. Dr. Woodhead indicated that
appellant had some irritation in the knee, but that it was difficult to say if his patellofemoral
symptoms stemmed from his prior surgeries or work-related injuries without having all the records.
In the March 10, 2021 report, he indicated that appellant had anterior knee pain, patellofemoral
symptoms; mild-to-moderate degenerative changes on x-rays; left knee patellofemoral syndrome,
mild arthritis. Dr. Woodhead reiterated that he was unable to answer questions regarding causal
relationship as he did not have all of appellant’s records.
By decision dated April 6, 2021, OWCP denied appellant’s recurrence claim, finding that
the medical evidence of record was insufficient to establish a recurrence of the need for medical
treatment due to a worsening of his accepted employment injuries. It found that there was no
medical evidence to support that the claimed recurrence was due to the accepted work -related
injury of May 5, 2009.
On April 26, 2021 appellant requested reconsideration. He indicated that he was never
notified by OWCP that his case was closed for medical treatment and argued that it should not
have been closed. Appellant requested that his case be reopened, and that the acceptance of his
claim be expanded to include osteoarthritis and patellofemoral injuries and medical treatment for
such conditions. Duplicative copies of evidence previously of record was submitted.4
By decision dated May 5, 2021, OWCP denied appellant’s request for reconsideration. 5
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment f or the accepted condition or injury when there is no
accompanying work stoppage. 6 An employee has the burden of proof to establish that he or she

4

This included June 2, 2012 and August 13, 2016 magnetic resonance imaging (MRI) scans of the left knee and
Dr. Woodhead’s February 19 and March 10, 2021 reports.
OWCP explained why an “October 26, 2020” medical report from Dr. Louis C. Redix, Jr., an orthopedic surgery
specialist, supported case closure. The Board notes that the medical report from Dr. Redix OWCP referenced is dated
October 26, 2009, not October 26, 2020. In his October 26, 2009 report, Dr. Redix, indicated, “The patient will not
require any additional medical treatment or follow up. The patient is not a surgical candidate nor is he likely to become
one. There is no need for continued medication or physical therapy. No further intervention will be needed or
anticipated.” This report was used in the calculation of appellant’s February 17, 2010 schedule award. See supra
note 2.
5

6

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause. 7
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden. 8 To meet this burden, the employee must submit medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history , supports that the
condition is causally related and supports his or her conclusion with sound medical rationale. 9
Where no such rationale is present, medical evidence is of diminished probative value. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury.
In a report dated May 17, 2017, Dr. Stanton, appellant’s treating physician, related that a
final medical evaluation was performed at appellant’s request. He noted that appellant had
returned to full-duty work and that future medical care was not anticipated. Following this report,
the other medical evidence received of record prior to appellant’s request for further medical
treatment did not document further medical treatment, but evaluated appellant for schedule award
purposes. The Board therefore finds that appellant’s claim for recurrence of medical condition
was made more than 90 days after release from medical care by Dr. Stanton, and therefore his
claim for recurrence of medical treatment must be supported by medical evidence of a causal
relationship between his current condition and the accepted May 5, 2009 employment injury. 11
In his February 19, 2021 report, Dr. Woodhead noted the medical history of appellant’s
left knee, presented examination findings, and diagnosed left knee patellofemoral syndrome and
left knee mild arthritis. He indicated that appellant had some irritation in the knee, but opined that
it was difficult to say if appellant’s patellofemoral symptoms stemmed from his prior surgeries or
work-related injuries without having all the records. In the March 10, 2021 report, Dr. Woodhead
reiterated that he was unable to answer the causal relationship of appellant’s anterior knee pain,
patellofemoral symptoms; mild-to-moderate degenerative changes on x-rays; left knee
patellofemoral syndrome, mild arthritis as he did not have all of appellant’s records and films. His
reports are of limited probative value as he was unable to offer an opinion on the issue of causal
relationship. The Board has held that a medical report is of no probative value on a given medical
7

M.P., Docket No. 19-0161 (issued August 16, 2019); E.R., Docket No. 18-0202 (issued June 5, 2018).

8

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

S.P., Docket No. 19-0573 (issued May 6, 2021); A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket
No. 15-0778 (issued June 25, 2015).
10

M.P., supra note 7; Michael Stockert, 39 ECAB 1186 (1988).

11

Supra note 9.

4

matter if it does not contain an opinion on that matter. 12 Thus, these reports are insufficient to
establish appellant’s recurrence claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing that appellant required further medical care on or after December 2, 2020 causally
related to his accepted employment conditions, the Board finds that appellant has not met his
burden of proof to establish his recurrence claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 15 If the request is timely, but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits. 16

12

See S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018);
Charles H. Tomaszewski, 39 ECAB 461 (1988).
13

5 U.S.C. § 8128(a); T.T., Docket No. 19-0319 (issued October 26, 2020); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
14

20 C.F.R. § 10.606(b)(3); see V.D., Docket No. 20-0569 (issued December 7, 2020); B.R., Docket No. 19-0372
(issued February 20, 2020); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
16

Id. at § 10.608(b); see M.E., Docket No. 20-0067 (issued October 15, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant argued that OWCP prematurely closed his case as he was not released from
medical care. However as previously discussed, Dr. Stanton in his May 17, 2017 report released
appellant from medical care. Appellant’s allegations that he was not released from medical care
do not demonstrate that OWCP erroneously applied or interpreted a specific point of law and do
not constitute a valid new legal argument. Consequently, the Board finds that appellant was not
entitled to a review of the merits based on the first or second above -noted requirements under
20 C.F.R. § 10.606(b)(3).17
Appellant also failed to submit relevant and pertinent new evidence in support of his
reconsideration request. He submitted duplicative evidence previously of record. Evidence which
repeats or duplicates evidence already of record has no evidentiary value and does not constitute a
basis for reopening a case.18 Therefore, appellant also failed to satisfy the third requirement under
20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury. The Board further finds that OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

17

D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).
18

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005); Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6 and May 5, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
Inglewood, CA, Employer
__________________________________________

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

Docket No. 13-2126
Issued: December 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On September 17, 2013 appellant filed a timely appeal from a March 21, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed between the last merit decision dated
January 27, 2012 to the filing of this appeal and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
On appeal, appellant contends that her appeal was timely filed as OWCP received her
request on January 30, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 21, 1998 appellant, then a 48-year-old distribution window clerk, filed a
traumatic injury claim alleging that on that date she sustained neck, shoulder and upper back pain
due to her employment duties. OWCP accepted the claim for left shoulder tendinitis and cervical
strain and authorized left shoulder arthroscopic surgery, which was performed on
November 21, 2001.2
Appellant filed claims for wage-loss compensation (Form CA-7) beginning May 5, 2009.
By decision dated June 29, 2009, OWCP denied her claim for wage-loss compensation
on and after May 5, 2009.
Following a review of the written record, by decision dated November 13, 2009, the
OWCP hearing representative affirmed the June 29, 2009 decision.
By decision dated June 7, 2010, OWCP denied modification of the November 13, 2009
decision.
By decision dated May 5, 2011, OWCP denied modification of its June 7, 2010 decision.3
By decision dated January 27, 2012, OWCP denied modification of its June 7, 2010 and
May 5, 2011 decisions.
In a letter dated January 23, 2013 and received by OWCP on January 31, 2013, appellant
requested reconsideration of the January 27, 2012 decision. She argued that OWCP erred in
finding that the medical evidence did not support her claim. Appellant further argued that
OWCP mishandled her claim in denying it. In support of her claim, she resubmitted evidence
previously of record. Additionally, appellant also included progress notes by Dr. Michael
Esposito, an orthopedic surgeon, dated January 18, 2013. Dr. Esposito reported that appellant
should be referred for psychological testing.
By decision dated March 21, 2013, OWCP denied appellant’s request for reconsideration
finding it was not timely filed and failed to present clear evidence of error.

2

On June 12, 2003 OWCP issued a loss of wage-earning capacity determination in which it found that her actual
earnings in her modified distribution window clerk position fairly and reasonably represented her wage-earning
capacity.
3

By decision dated April 27, 2011, OWCP denied appellant’s claim for a recurrence of disability on and after
January 20, 2011. An OWCP hearing representative affirmed this denial on January 8, 2013. In another decision
dated April 27, 2011, OWCP denied appellant’s claim for an additional schedule award, finding that she had no
greater than a nine percent impairment of the left upper extremity. An OWCP hearing representative affirmed on
December 12, 2011.

2

LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.4 It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.5
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.6
Its procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth under section 10.607 of its regulations,7 if the claimant’s
application for review shows clear evidence of error on the part of OWCP.8 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.10 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which 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 to merely 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. To show clear
evidence of error, the evidence submitted 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.11
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear

4

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

5

20 C.F.R. § 10.607; see B.W., Docket No. 10-323 (issued September 2, 2010); A.F., 59 ECAB 714 (2008);
Gladys Mercado, 52 ECAB 255 (2001).
6

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

7

20 C.F.R. § 10.607.

8

See M.L., Docket No. 09-956 (issued April 15, 2010); Robert G. Burns, 57 ECAB 657 (2006).

9

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

10

F.R., Docket No. 09-575 (issued January 4, 2010); S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB
554 (2006).
11

J.S., Docket No. 10-385 (issued September 15, 2010); D.D., 58 ECAB 206 (2006); Robert G. Burns, supra note

8.

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evidence of error.12 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.13
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. Its procedures provide that any request for reconsideration must be
received within one year from the date of the original OWCP decision.14 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.15
As appellant’s January 23, 2013 request for reconsideration was received by OWCP on
January 31, 2013, more than one year after the last merit decision issued on January 27, 2012, it
was untimely. Consequently, she must demonstrate clear evidence of error by OWCP in denying
her claim for wage-loss compensation for the period on and after May 5, 2009.16
The Board finds that appellant’s request for reconsideration fails to demonstrate clear
evidence of error. The request does not show on its face that OWCP’s denial of wage-loss
compensation for the period on and after May 5, 2009 was erroneous. In support of her request,
she resubmitted evidence previously of record, which was insufficient to establish clear of
evidence of error. Additionally, appellant submitted progress notes by Dr. Esposito, dated
January 18, 2013, which did not address the issue of disability related to the December 21, 1998
employment injury. Dr. Esposito recommended her for a psychological evaluation. Appellant
also noted her disagreement with OWCP’s handling of her claim, concluding that she had
established her claim based on the evidence as presented. However, she has not shown how
OWCP committed any error in denying her claim for wage-loss compensation. Consequently,
the Board finds that OWCP properly denied appellant’s reconsideration request as it was
untimely and failed to establish clear evidence of error.
On appeal appellant argues that she timely filed her request for reconsideration as OWCP
received her request on January 30, 2013. Contrary to appellant’s contention the receipt of her
reconsideration request on January 30, 2013 instead of January 31, 2013 does not render the
request timely. In order to have submitted a timely request for reconsideration, the request
should have been received by OWCP on or before January 28, 2013.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to establish clear evidence of error.
12

James Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration,
Chapter 2.1602.3(c) (October 2011).
13

See M.L., supra note 8; G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006).

14

20 C.F.R. § 10.607(a).

15

Robert F. Stone, 57 ECAB 393 (2005).

16

20 C.F.R. § 10.607(a); see D.G., supra note 6; Debra McDavid, 57 ECAB 149 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2013 is affirmed.
Issued: December 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, ABERDEEN
PROVING GROUNDS, Aberdeen, MD,
Employer
__________________________________________

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

Docket No. 15-1575
Issued: October 27, 2015

Case Submitted on the Record

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

JURISDICTION
On July 16, 2015 appellant filed a timely appeal from a June 1, 2015 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed since
the last merit decision dated July 18, 2013, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was untimely filed and failed to show clear evidence or error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 15, 2012 appellant, then a 61-year-old engineering equipment operator, filed a
traumatic injury claim (Form CA-1) alleging that on May 12, 2012 he sustained injury to his left
index finger while in the performance of duty. He stated on the claim form that his finger was
caught as he pulled a gate shut. On August 6, 2012 OWCP accepted the claim for open wound
of the finger without complications, left.
Appellant submitted a claim for compensation (Form CA-7) on May 2, 2013, checking a
box indicating that he was claiming a schedule award. By letter dated June 16, 2013, OWCP
advised him that he needed to submit medical evidence with a diagnosis, a detailed description of
any permanent impairment, and a rating of the impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
By decision dated July 18, 2013, OWCP denied appellant’s claim for a schedule award,
finding that the medical evidence was insufficient to establish permanent impairment.
On July 23, 2013 OWCP received a July 12, 2013 report from Dr. Ramon DeJesus, a
Board-certified hand surgeon, who provided results on examination. Dr. DeJesus reported that
appellant’s grip strength of the left hand was 4/5. He noted that appellant had reached maximum
medical improvement. Dr. DeJesus diagnosed a finger contusion. On September 16, 2013
appellant submitted a revised copy of the July 12, 2013 report from Dr. DeJesus, containing an
additional diagnosis of finger open wound and a note: “correction [September 9, 2013] to
include original diagnosis.” Follow-up on the same injury.
The record contains a January 28, 2014 e-mail correspondence from an employing
establishment compensation specialist requesting that OWCP schedule a second opinion
physician examination. The compensation specialist stated that appellant was having difficulty
obtaining a permanent impairment rating.
On November 4, 2014 OWCP received a reconsideration request dated October 10, 2014.
Appellant did not submit additional evidence or argument.
By decision dated June 1, 2015, OWCP found that the reconsideration request was
untimely and failed to establish clear evidence or error. The reconsideration request was
accordingly denied.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.2 The

2

5 U.S.C. § 8128(a).

2

employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”3
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.4 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.5 It, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of
FECA.6 As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.7 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of it in its most recent merit decision. The
evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.8
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.9 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.10 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.11 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.12
ANALYSIS
In the present case, appellant submitted an application for reconsideration on
November 4, 2014. When the underlying compensation issue is a schedule award, an initial
question is whether the claimant has submitted an application for reconsideration or has
3

20 C.F.R. § 10.605 (2012).

4

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

5

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.607 (2012).

8

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

9

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

10

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

11

Id.

12

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

3

requested an increased schedule award. Even if appellant has requested “reconsideration,” if
there is new and relevant evidence with respect to an increased permanent impairment, then a
claimant may be entitled to a merit decision on the issue.13 However, when a claimant does not
submit any relevant evidence with respect to an increased schedule award, then OWCP may
properly determine that appellant has filed an application for reconsideration of a schedule award
decision.14 In this case, appellant did not submit any relevant evidence with respect to an
increased permanent impairment. He did not submit any medical evidence or refer to any
medical evidence submitted after July 18, 2013. The July 12, 2013 report from Dr. DeJesus,
submitted on July 23, 2013, does not provide an opinion as to a permanent impairment under the
A.M.A., Guides. The September 9, 2013 addendum report from Dr. DeJesus also does not
address a permanent impairment. Therefore OWCP properly considered appellant’s submission
as an application for reconsideration.
As an application for reconsideration of the July 18, 2013 decision, it must have been
received by OWCP within one year of OWCP’s decision from which review is sought, to be
considered timely. The application in this case was received on November 4, 2014. As this was
more than one year after the July 18, 2013 decision, it is untimely filed.
An untimely application for reconsideration must show clear evidence or error by
OWCP. The Board finds that appellant did not show clear evidence of error in this case.
Appellant did not submit any evidence or argument with respect to error by OWCP in
determining that he was not entitled to a schedule award. OWCP found that the medical
evidence was insufficient to establish an employment-related permanent impairment to a
scheduled member or function of the body, and no clear evidence of error was presented.
On appeal, appellant indicates that he had requested that OWCP schedule a second
opinion examination. He may at any time request an increased schedule award and submit new
and relevant medical evidence to OWCP with respect to an employment-related permanent
impairment. The Board’s review in the present case is limited to the clear evidence of error
issue. For the reasons stated, the Board will affirm the June 1, 2015 decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was untimely filed and failed to show clear evidence of error.

13

See Linda T. Brown, 51 ECAB 115 (1999).

14

See W.J., Docket No. 12-1746 (issued February 5, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2015 is affirmed.
Issued: October 27, 2015
Washington, DC

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

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

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

5