United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melvindale, MI, Employer
__________________________________________

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

Docket No. 09-696
Issued: March 8, 2010

Case Submitted on the Record

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

JURISDICTION
On January 13, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated December 22, 2008. Under 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 the Office met its burden of proof to terminate appellant’s
compensation benefits; and (2) whether appellant has established that she had disability caused
by residuals of the accepted employment injury following the termination of compensation.
FACTUAL HISTORY
On February 5, 2000 appellant, a 35-year-old mail handler, injured her lower back and
right ankle when she slipped on some ice in a parking lot and fell to the ground. She filed a
claim for benefits, which the Office accepted for lumbar strain, bilateral ankle strain and bilateral
ankle tendinitis. Appellant returned to work intermittently but has not worked since
May 8, 2003. The Office commenced paying her compensation for total disability.

In a report dated March 6, 2003, Dr. Lisa Grant, Board-certified in physical medicine and
rehabilitation, advised that appellant had complaints of chronic low back pain, bilateral
sacroiliitis and radicular symptoms in the lower extremities. She related that appellant
experienced considerable difficulty working due to her low back pain. Dr. Grant stated that
appellant was not able to do any kneeling, bending, standing or walking; she opined that
appellant’s pain was too severe to return to work and advised that she also experienced
depression. She recommended a course of physical therapy to deal with her back pain and
referral to a psychiatrist to deal with her depression. Dr. Grant opined that appellant would
benefit from a trial of epidural steroid injections.
In order to determine appellant’s current condition and to ascertain whether she still
suffered residuals from her accepted condition, the Office referred appellant for a second opinion
examination with Dr. Norman Pollak, Board-certified in orthopedic medicine. In an April 9,
2003 report, Dr. Pollak stated that based on his examination that there were no objective or
consistent subjective findings to indicate a disabling or pathological condition. He advised that
he was not able to make a diagnosis in regards to appellant’s continued complaints of low back
and ankle pain. Dr. Pollak stated that there was insufficient medical evidence to support her
accepted conditions of lumbar strain, bilateral ankle strain and bilateral ankle tendinitis, which
had resolved. He noted that lumbosacral x-rays were normal and opined that appellant did not
appear to have any residuals aside from her continued complaints of pain. Dr. Pollak concluded
that she could perform her job as a mail handler without restrictions.
In a report dated June 12, 2003, Dr. Grant noted that appellant was no longer working at
the employing establishment because her position was not currently available. She stated,
however, that she believed that appellant would be unable to perform her work anyway because
she could not do any prolonged standing or sitting secondary to her back pain. Dr. Grant
expressed her disagreement with Dr. Pollock’s opinion that appellant’s lumbar strain had
resolved. She advised that appellant continued to experience bilateral sacroiliitis, although she
noted that this injury typically resolved within a couple of months of treatment. Dr. Grant was
not able to explain why appellant’s pain had not responded to treatment, but stated that she still
appeared to have a significant amount of pain. She noted that appellant had depression
secondary to her pain and opined that she was not getting the treatment needed. Dr. Grant
advised that she had treated appellant with physical therapy and epidural injections; however, she
had not obtained any relief and Dr. Grant advised that appellant was required treatment from a
chronic pain clinic.
The Office found that there was a conflict in the medical evidence between appellant’s
treating physician, Dr. Grant, who opined that appellant was totally disabled and still had
residuals from her accepted conditions, and Dr. Pollak, the second opinion physician, who
opined that appellant’s accepted conditions had resolved and that she was able to perform her
date-of-injury job without restrictions. It referred the case to a referee medical specialist,
Dr. Kanwaldeep S. Sidhu, a Board-certified orthopedic surgeon, on December 9, 2003. In a
February 10, 2004 report, Dr. Sidhu reviewed the medical history and statement of accepted facts
and stated findings on examination. He advised that there was no objective evidence to indicate
that appellant currently had any disability. Dr. Sidhu noted that she complained of lower back
pain but did not indicate that she had pain in either ankle. He stated that appellant had no
muscular atrophy and no sensory deficits; she showed obvious signs of exaggeration and

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possible malingering. Dr. Sidhu stated that her magnetic resonance imaging (MRI) scan
demonstrated degenerative changes physiologic with her age and noted that her lumbar x-rays
were normal.
Dr. Sidhu concluded that appellant could return to work without restrictions. He opined
that she did not require any further treatment due to her February 2000 work injury.
On January 18, 2007 the Office asked the referee physician, Dr. Sidhu, to reevaluate
appellant and issue a new impartial report in light of the length of time that had elapsed since he
submitted his February 10, 2004 report.1 In a report dated February 16, 2007, Dr. Sidhu stated
that there were no objective findings, which indicated that she still had residuals from her
work-related lumbar strain, bilateral ankle strain and bilateral ankle tendinitis. He stated that
these soft tissue symptoms had long resolved and stated that there was no objective basis to
explain appellant’s current symptoms. Dr. Sidhu noted that her imaging studies and x-rays did
not indicate a structural injury to the spine. He advised that appellant was able to perform the
duties of a mail handler without restrictions.
On February 27, 2007 the Office issued a notice of proposed termination of compensation
to appellant. It found that the weight of the medical evidence, as represented by Dr. Sidhu’s
referee opinion, established that her accepted, employment-related lower back and right ankle
conditions had resolved. The Office allowed appellant 30 days to submit additional evidence or
legal argument in opposition to the proposed termination.
By decision dated April 4, 2007, the Office terminated appellant’s compensation, finding
that Dr. Sidhu’s opinion represented the weight of the medical evidence.
On May 1, 2007 appellant’s attorney requested an oral hearing, which was held on
September 26, 2007.
In a September 18, 2007 report, Dr. Charles G. Kissel, a specialist in podiatry, noted that
he had treated appellant for foot pain since the February 2000 work injury. He stated that the
incident had aggravated and worsened her foot pain. Dr. Kissel advised that appellant had
developed chronic degenerative changes in the subtalar joint and chronic tendinitis in the
posterior tibial tendon; he had treated her condition conservatively with bracing, injection
therapy, etc. He stated that she had long-term partial disability due to her inability to use her foot
for standing, walking, lifting or carrying. Dr. Kissel opined with absolute certainty that the
tendon injury aggravated, worsened and caused additional degenerative changes in the subtalar
joint, which was now the main area of disability.
In a report dated October 1, 2007, Dr. Jeffrey Kimpson, Board-certified in anesthesiology
and a specialist in pain management, stated that he had been treating appellant for her low back
pain since June 2002. He advised that, in his most recent evaluation on September 20, 2007, she
had continued complaints of persistent low back pain radiating down both lower extremities.
1

The Office indicated that it had not proceeded with its adjudication of the issue of whether appellant still had
residuals from his accepted physical conditions in order to address her claim for a consequential psychological
condition.

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Dr. Kimpson stated that on examination appellant continued to show decreased range of motion
of the lumbar spine secondary to pain with no focal deficits. He opined that her pain was
consistent with her MRI scan and lumbar pressure discography, which revealed degenerative
disc disease at the L5-S1 level and attendant pain. Dr. Kimpson stated that appellant continued
to have significant disability secondary to her back pain and was not able to perform her previous
occupation as a mail handler. He outlined restrictions of no heavy lifting greater than 20 pounds
and no excessive bending, twisting or walking. Dr. Kimpson stated his disagreement with
Dr. Sidhu’s opinion that appellant was able to return to work; he noted that it was a known fact
that patients with discogenic back pain, like appellant, demonstrated a relatively normal physical
examination, in addition to normal electromyelogram (EMG) and nerve conduction studies
(NCS).
By decision dated December 22, 2008, an Office hearing representative affirmed the
April 4, 2007 termination decision, finding that the Office met its burden to terminate
compensation.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to his or her
federal employment, the Office may not terminate compensation without establishing that the
disability has ceased or that it is no longer related to the employment.3
Section 8123(a) provides that 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.4
ANALYSIS -- ISSUE 1
In order to resolve the conflict in the medical evidence between appellant’s treating
physician, Dr. Grant, and Dr. Pollak, the second opinion physician, the Office referred the case
to a referee medical specialist, Dr. Sidhu, who stated in his February 16, 2007 report that
appellant had no residuals from the February 2000 work injury based on her examination and
diagnostic tests. Dr. Sidhu stated that there were no objective findings which showed residuals
from her accepted lumbar strain, bilateral ankle strain and bilateral ankle tendinitis conditions;
these were soft tissue symptoms which had long resolved. He advised that there was no
objective basis to explain appellant’s current symptoms and opined that she was able to perform
the duties of a mail handler without restrictions. The Office relied on Dr. Sidhu’s opinion in its
April 7, 2007 decision, finding that appellant had no residuals or continuing disability stemming
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Regina T. Pellecchia, 53 ECAB 155 (2001).

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from her February 2000 work injury and was therefore not entitled to compensation or medical
benefits.
The Board finds that Dr. Sidhu’s referee opinion negated a causal relationship between
appellant’s condition and disability and constituted medical evidence sufficient to establish that
she no longer had any residuals from her accepted February 2000 injury. His opinion is
sufficiently probative, rationalized and based upon a proper factual background. Therefore, the
Office properly accorded Dr. Sidhu’s opinion the special weight of an impartial medical
examiner.5
LEGAL PRECEDENT -- ISSUE 2
Once the Office properly terminated appellant’s compensation in its July 19, 2007
decision, the burden of proof shifted to her to establish continuing disability.6
ANALYSIS -- ISSUE 2
Following the Office’s April 7, 2007 termination decision, appellant requested
reconsideration and submitted reports from Drs. Kissel and Kimpson. Dr. Kissel noted that the
February 2000 employment injury aggravated and worsened her right foot pain and caused
additional degenerative changes in the subtalar joint, which was now the main area of disability.
He stated that appellant had also developed chronic tendinitis in the posterior tibial tendon.
Dr. Kissel opined that this had resulted in long-term partial disability stemming from her
inability to use the foot for standing, walking, lifting or carrying. In his October 1, 2007 report,
Dr. Kimpson stated that his disagreement with Dr. Sidhu’s opinion that appellant had no
residuals from the February 2000 work injury and was able to return to work without restrictions.
He noted that she had continued complaints of persistent, significant low back pain radiating
down both lower extremities, which was consistent with her MRI scan and lumbar pressure
discography showing degenerative disc disease at the L5-S1 level. Dr. Kimpson stated that on
examination appellant continued to show decreased range of motion of the lumbar spine
secondary to pain with no focal deficits. He stated that she still had work restrictions stemming
from the February 2000 employment injury; in his opinion, patients who experience discogenic
back pain typically reflected relatively normal physical examination, normal EMG and normal
NCS.
The reports from Drs. Kissel and Kimpson did not constitute a probative medical opinion
showing that appellant had any continuing disability or residuals from her accepted conditions.
These physicians indicated generally that her back and foot conditions were causally related to
the February 2000 employment injury, but failed to submit rationalized medical evidence to
establish causal relation between appellant’s current condition and her employment injury,
sufficient to modify the Office’s April 7, 2007 termination decision. Dr. Kissel and Dr. Kimpson
merely restated one side of the conflict in medical evidence which was resolved by Dr. Sidhu’s
opinion; they did not provide well-reasoned and sufficiently supported opinions that would
5

Gary R. Seiber, 46 ECAB 215 (1994).

6

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

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vitiate the Office’s April 7, 2007 determination that appellant did not have any employmentrelated disability or residuals stemming from the February 2000 work injury. Their reports do
not outweigh Dr. Sidhu’s opinion nor do they negate the Office’s finding that Dr. Sidhu’s
February 16, 2007 report represented the weight of the medical evidence. Thus, the Office
hearing representative properly affirmed the April 7, 2007 termination decision.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits in its April 7, 2007 decision. The Board finds that appellant has not met
her burden to establish continuing disability.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 18-0006
Issued: March 8, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant, through counsel, filed a timely appeal from an August 1,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish bilateral carpal tunnel
syndrome causally related to the accepted factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 2016 appellant, then a 57-year-old retired data entry operator, filed an
occupational disease claim (Form CA-2) alleging that her carpal tunnel syndrome was causally
related to her 37 years of work at the employing establishment. On the reverse side of the claim
form, appellant’s supervisor reported that appellant had retired on July 25, 2014.
Appellant underwent an electrodiagnostic evaluation, which included electromyography
(EMG) and nerve conduction velocity (NCV) studies, by Dr. Daniel Phillips, a Board-certified
neurologist. In an August 15, 2016 report, Dr. Phillips noted that appellant’s complaints began
in 2010. He provided examination findings of severe, right more than left, sensorimotor median
neuropathies across the carpal tunnel.
By letter dated September 26, 2016, OWCP informed appellant that the evidence of
record was insufficient to support her claim. It advised her of the type of medical and factual
evidence necessary to establish her claim and provided a development questionnaire for her
completion. Appellant was afforded 30 days to submit the requested evidence.
On October 4, 2016 appellant responded to OWCP’s development questionnaire. She
described her daily work duties noting that when she arrived at work she first opened mail with a
hand held mail opener, which required use of her fingers, wrist, and elbows. Next, appellant
spent two to three hours keying in each piece of mail and opening up “CN08s,” (regarding
international mail) if time allowed. She also filed and batched mail, which required lifting,
pulling, and pushing. Appellant related that these activities caused pain in her fingers, elbows,
and wrists. Occasionally she took pain medication and wore wrist braces when she performed
her duties. Appellant further explained that in 2010 she began experiencing numbness and
tingling in her hands. She attributed her bilateral carpal tunnel condition to years of continuous
repetitive work duties of data entry, filing, and boxing up documents.
By decision dated November 2, 2016, OWCP accepted the alleged employment factors
and that appellant had been diagnosed with a medical condition. However, it denied her claim
because the medical evidence of record failed to establish that the diagnosed medical condition
was causally related to the accepted factors of her federal employment.
On November 30, 2016 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative, which was held on June 14, 2017.
In an April 18, 2017 report, Dr. Wade Hammond, a Board-certified orthopedic surgeon,
related that he had examined appellant on March 29, 2017. He performed a physical
examination and reviewed medical reports. Under history of injury, Dr. Hammond indicated that
appellant retired in 2014. He noted she had previously performed data entry eight hours per day
five days a week and that this work required repetitive hand, elbow, fingers, and wrist
movement. Dr. Hammond also noted that appellant was injured on April 27, 2005 when she
carried heavy boxes. Appellant complained of tingling, discomfort, and significant numbness in
both upper extremities and her neck. Her physical examination revealed no significant elbow or
shoulder abnormalities, slightly positive bilateral wrist Tinel’s sign, markedly diminished grip
strength, and diminished bilateral hand fingertip sensation. Dr. Hammond diagnosed bilateral

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upper extremity overuse syndrome and bilateral carpal tunnel syndrome, which he attributed to
her 38 years of data entry at the employing establishment.
By decision dated August 1, 2017, OWCP’s hearing representative affirmed the
November 2, 2016 decision, finding that the evidence of record failed to establish causal
relationship between her diagnosed bilateral carpal tunnel syndrome and the accepted
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty, and that any
specific condition or disability for work for which compensation is claimed is causally related to
that employment injury.5 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.7 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.8

3

Supra note 2.

4

J.P., 59 ECAB 178 (2007), Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143 (1989).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, id.

6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
bilateral carpal tunnel syndrome was causally related to the accepted factors of her federal
employment.
In support of her claim appellant submitted an April 18, 2017 report by Dr. Hammond
who related appellant retired in 2014 from her data entry job. He noted complaints of tingling,
discomfort, and significant numbness. Dr. Hammond diagnosed bilateral carpal tunnel syndrome
based on her diminished grip strength and positive wrist Tinel’s sign. According to
Dr. Hammond, appellant’s bilateral carpal tunnel syndrome was employment related due to
overuse of her wrists during 38 years of data entry. The Board finds that Dr. Hammond did not
provide adequate medical rationale on causal relationship. Dr. Hammond’s statement on
causation failed to provide a sufficient explanation as to the mechanism of injury pertaining to
this occupational disease claim as alleged by appellant, namely, how data entry would cause or
aggravate her bilateral carpal tunnel syndrome.9 Without explaining how physiologically the
movements involved in appellant’s employment duties caused or contributed to her diagnosed
condition, Dr. Hammond’s opinion on causal relationship is equivocal in nature and of limited
probative value.10 Thus, Dr. Hammond’s April 18, 2017 report is insufficient to meet appellant’s
burden of proof.
Dr. Phillips’ August 15, 2016 EMG/NCV study report is likewise insufficient to establish
causal relationship. The Board has held that reports of diagnostic tests are of limited probative
value as they fail to provide an opinion on the causal relationship between appellant’s
employment duties and the diagnosed condition. For this reason, this evidence is insufficient to
meet her burden of proof.11
On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds counsel’s arguments are not
substantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish bilateral
carpal tunnel syndrome causally related to the accepted factors of her federal employment.

9

S.W., Docket No. 08-2538 (issued May 21, 2009).

10

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25,
2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued
November 16, 2012).
11

See A.B., Docket No. 17-1301 (issued May 19, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2017 is affirmed.
Issued: March 8, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
DEPARTMENT OF THE NAVY, POLICE
PRECINCT, JOINT EXPEDITIONARY BASE
LITTLE CREEK-FORT STORY,
Virginia Beach, VA, Employer
__________________________________________

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

Docket No. 20-0149
Issued: February 24, 2021

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 October 25, 2019 appellant filed a timely appeal from an October 17, 2019 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.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the October 17, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 23
percent permanent impairment of the right lower extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On March 30, 2010 appellant, then a 35-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on that date, she sustained right knee ligament damage when she
lost her footing during a nonlethal weapons training exercise while in the performance of duty.
OWCP initially accepted the claim for right knee sprain of the right lateral collateral ligament and
a tear of the medial meniscus, and later expanded acceptance of the claim to include right leg
osteoarthrosis and derangement of the right meniscus.
On April 26, 2010 appellant underwent OWCP-approved right knee arthroscopic-assisted
anterior cruciate ligament (ACL) reconstruction, chondroplasty of the medial femoral condyle, and
arthroscopic debridement. On January 25, 2011 she underwent OWCP-approved right knee
arthroscopy, lysis of adhesions, and excision of a cyclops lesion.
In progress notes dated May 4, 2011, Dr. Arthur W. Wardell, a Board-certified orthopedic
surgeon, examined appellant for continued pain. On physical examination of the right knee, he
observed range of motion (ROM) from 15 to 110 degrees and anterior joint line tenderness. In
notes dated June 1, 2011, Dr. Wardell, referring to Table 16-3, page 510, of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),3 calculated that appellant had 15 percent permanent impairment of her right lower
extremity.
On June 6, 2011 appellant filed a claim for a schedule award (Form CA-7).
On March 29, 2012 OWCP referred the record, including a statement of accepted facts
(SOAF), to Dr. Lawrence A. Manning, a Board-certified orthopedic surgeon serving as an OWCP
district medical adviser (DMA), to determine appellant’s percentage of permanent impairment and
date of maximum medical improvement (MMI). By letter dated March 31, 2012, Dr. Manning
reviewed the medical record, including Dr. Wardell’s May 4, 2011 report, and found that, while
there was evidence of permanent impairment, her right knee ROM was inconsistent on different
dates of examination, and that as such, it was difficult to assign impairment based on ROM. He
suggested that appellant may be entitled to greater impairment than the 15 percent assigned by
Dr. Wardell given the degree of arthritic changes and depending on an accurate assessment of
ROM. Dr. Manning proposed that she be referred for another medical evaluation to resolve the
outstanding questions.
On May 3, 2012 OWCP referred appellant to Dr. Edward W. Gold, a Board-certified
orthopedic surgeon, for a second opinion evaluation of appellant’s permanent impairment. In a
report dated June 29, 2012, Dr. Gold reviewed her history of injury and the medical record. On
physical examination of appellant’s right knee, he observed ROM of 20 to 95 degrees of flexion,
3

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

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tenderness to palpation of the medial and lateral retinaculum and medial and lateral joint lines, and
a mildly positive Lachman test. Dr. Gold diagnosed status post arthroscopic ACL reconstruction
of the right knee and chronic pain of the right knee. Referring to the sixth edition of the A.M.A.,
Guides, Table 16-3, page 510, he stated that appellant had a class 1, grade C impairment, which
resulted in 10 percent permanent impairment of the right lower extremity due to her ACL injury.
Dr. Gold found that there was no evidence of significant arthritis attributable to her injury and
therefore found no impairment of her knee due to arthritis.
OWCP forwarded Dr. Gold’s report to Dr. Manning, serving as DMA, on
November 13, 2012. By letter dated November 14, 2012, Dr. Manning concurred with Dr. Gold’s
finding of 10 percent permanent impairment of the right lower extremity. He noted that ROM was
not considered due to inconsistencies in various measurements, in accordance with the sixth
edition of the A.M.A., Guides, page 517, section 16.3b. Dr. Manning noted that the date of MMI
was January 25, 2012.
By letter dated November 16, 2012, OWCP informed appellant that it had been determined
that she would be entitled to a schedule award for 10 percent permanent impairment of the right
lower extremity. The period of the award would be for 28.80 weeks. OWCP noted that appellant
was currently receiving compensation from OWCP for loss of wage-earning capacity (LWEC) and
that she needed to approve an interruption of her compensation for LWEC as she could not receive
benefits for temporary total or partial disability and a schedule award at the same time.
On November 20, 2012 appellant confirmed that she wished to receive her schedule award
and understood that her LWEC compensation would be interrupted during the period of payment
of the schedule award. OWCP thereafter paid her schedule award compensation from
November 18, 2012 until June 1, 2013.
On January 27, 2016 OWCP referred appellant to Dr. James Schwartz, a Board-certified
orthopedic surgeon, for a second opinion evaluation of appellant’s accepted conditions and
disability status. On March 1, 2016 Dr. Schwartz reviewed a SOAF and the medical record. On
examination of the right knee, he noted an antalgic gait, limited ROM on extension, flexion to 90
degrees, and a positive anterior drawer test. Dr. Schwartz diagnosed ACL reconstruction with
residual instability and right knee arthrofibrosis. He recommended additional right knee surgery.
On August 23, 2016 appellant underwent OWCP-approved right knee arthroscopy,
excision of the medial plica, and chondroplasty of the medial femoral condyle performed by
Dr. Wardell.
On December 6, 2016 Dr. Wardell examined appellant’s right knee for complaints of
continued pain. Physical examination of the right knee demonstrated marked pain over the anterior
and medial joint lines and motion to 95 degrees with crepitus and pain. Referring to the sixth
edition of the A.M.A., Guides, Dr. Wardell stated that appellant had a class 1, grade A impairment
for primary knee osteoarthritis, which resulted in 5 percent impairment rating, and a class 2, grade
C impairment for cruciate ligament injury, which resulted in a 16 percent impairment rating, under
Table 16-3 of the A.M.A., Guides. He concluded that her total right lower extremity permanent
impairment rating was 21 percent.
On December 15, 2016 appellant filed a Form CA-7 for an increased schedule award.

3

On March 7, 2017 OWCP referred the record, including an SOAF, to Dr. Arthur S. Harris,
a Board-certified orthopedic surgeon serving as a DMA, and requested that he evaluate appellant’s
permanent impairment under the sixth edition of the A.M.A., Guides. In a report dated March 9,
2017, Dr. Harris reviewed the medical record, including the February 19, 2016 report of
Dr. Schwartz. He found that appellant’s established diagnoses were status post right knee
arthroscopy with arthroscopically-assisted ACL reconstruction, chondroplasty, and plica
debridement; and status post manipulation under anesthesia with arthroscopic lysis of adhesions
and excision of a cyclops lesion. Using the diagnosis-based impairment (DBI) method, the DMA
found that under the sixth edition of the A.M.A., Guides, Table 16-3, page 510, appellant had a
sole permanent impairment of 13 percent of the right lower extremity for residual problems status
post arthroscopic surgery including ACL reconstruction with documented residual motion deficits.
The DMA concluded that appellant had reached MMI as of Dr. Schwartz’ examination of
February 19, 2016.
By decision dated April 6, 2017, OWCP granted appellant a schedule award for 13 percent
permanent impairment of the right lower extremity. The award ran from April 2 through
December 20, 2017.4
On September 21, 2018 appellant again filed a Form CA-7 for an increased schedule award.
In a development letter dated October 5, 2018, OWCP informed appellant that no medical
evidence had been received in support of her schedule award claim. It requested that she submit
additional medical evidence from her treating physician including a date of MMI, the diagnosis on
which the impairment was based, a detailed description of any permanent impairment preexisting
the injury, and a final rating of the permanent impairment pursuant to the sixth edition of the
A.M.A., Guides. OWCP afforded appellant at least 30 days to submit this additional evidence.
By letter dated October 22, 2018, Dr. Wardell noted that appellant’s date of MMI was
December 6, 2016. In an enclosed permanent impairment rating dated December 6, 2016, he
stated that she had a class 1, grade A impairment for primary knee osteoarthritis, which resulted
in 5 percent impairment rating, and a class 2, grade C impairment for cruciate ligament injury,
which resulted in 16 percent impairment rating, under Table 16-3, pages 510-11, of the A.M.A.,
Guides. Dr. Wardell concluded that appellant’s right lower extremity permanent impairment
totaled 21 percent.
On December 18, 2018 OWCP referred the record, including an SOAF, to Dr. Harris,
serving as DMA. It noted that appellant had been previously paid a schedule award for 10 percent
permanent impairment of the right lower extremity based on Dr. Manning’s November 14, 2012
report and an additional 13 percent based on Dr. Harris’ March 14, 2017 report. OWCP indicated
that the total amount of schedule award compensation appellant had received for permanent
impairment of the right lower extremity was 23 percent. It requested that Dr. Harris evaluate
appellant’s permanent impairment under the sixth edition of the A.M.A., Guides and provide a
date of MMI.

4

The April 6, 2017 schedule award decision incorrectly identified the number of weeks of the schedule award as
262.08 weeks. A review of appellant’s compensation history reveals that the period of payment of the schedule award
was from April 2 through December 20, 2017.

4

In a report dated December 20, 2018, Dr. Harris reviewed the medical record, including
the December 6, 2016 report and October 22, 2018 letter of Dr. Wardell. He found that the
following diagnoses were established: status post right knee arthroscopy with arthroscopicallyassisted ACL reconstruction, chondroplasty, and plica debridement; and status post manipulation
under anesthesia with arthroscopic lysis of adhesions and excision of a cyclops lesion. Dr. Harris
stated that there was insufficient information in the case file to make a determination of permanent
impairment based on the sixth edition of the A.M.A., Guides. He explained that Dr. Wardell’s
reports of December 6, 2016 and October 22, 2018, did not document appellant’s residual
subjective complaints or objective findings on examination. Dr. Harris’ report of December 6,
2016 discussed impairment for knee osteoarthritis, but there was no documentation of any
reviewed diagnostic studies demonstrating retained joint space, which was a requirement for
providing impairment for osteoarthritis based on the Knee Regional Grid, Table 16-3, page 509 of
the sixth edition of the A.M.A., Guides. The DMA requested additional information from
Dr. Wardell, or in the alternative, an examination by another physician.
Subsequently, OWCP requested additional information from Dr. Wardell on
February 7, 2019. It included the comments of the DMA for his response. Dr. Wardell responded
in a report dated March 11, 2019. He explained that appellant had a moderate problem with her
right knee, resulting in a grade modifier of 2, regarding her functional history adjustment (GMFH)
due to an antalgic limp under Table 16-6, page 516, of the sixth edition of the A.M.A., Guides.
Dr. Wardell stated that she had a mild deficit in ROM which was a grade modifier of 1 for physical
examination (GMPE) under Table 16-7. Appellant had moderate pathology in imaging studies,
resulting in a grade modifier of 2 for clinical studies (GMCS). Dr. Wardell noted that her rating
was based on her cruciate ligament injury, class of diagnosis (CDX), which was a class 2 moderate
problem due to moderate laxity. He calculated that appellant’s grade modifier adjustments resulted
in a grade B, 15 percent permanent impairment of the right lower extremity.
On May 29, 2019 OWCP requested further review by Dr. Harris, serving as a DMA, with
reference to Dr. Wardell’s March 11, 2019 response. On July 1, 2019 the DMA stated that
Dr. Wardell’s March 11, 2019 report could not be used as the basis for an impairment rating, as it
still did not contain documentation of appellant’s residual subjective complaints, objective
findings on examination, or complete explanation as to his impairment rating under the sixth
edition of the A.M.A., Guides. He recommended that she be evaluated by another physician.
OWCP prepared a SOAF on August 14, 2019 which listed the accepted conditions as right
knee sprain, lateral collateral ligament, right knee medial meniscus tear, right knee meniscus
derangement, and osteoarthrosis of the right lower extremity.
On August 14, 2019 OWCP referred appellant to Dr. Willie E. Thompson, a Boardcertified orthopedic surgeon, along with the medical record and a SOAF, for evaluation of her
permanent impairment, date of MMI, and medical status. On September 11, 2019 Dr. Thompson
reviewed the medical record and SOAF and conducted a physical examination. On examination
of appellant’s right lower extremity, he observed mild diffuse swelling beginning at the distal thigh
level and extending to the right ankle and foot, limited motion at the knee, mild laxity of the ACL,
and knee tenderness. Dr. Thompson noted that Dr. Wardell had reviewed a magnetic resonance
imaging (MRI) scan dated April 1, 2010, of her right knee, which he indicated demonstrated a tear
of the ACL. He noted that there was no evidence to support that appellant had a tear of medial
meniscus, but that she did have a tear of the ACL. Dr. Thompson opined that the SOAF should
include an ACL tear and should not include a medial meniscus tear. He further opined that
5

radiographs dated March 30, 2010 were within normal limits, and as such, the accepted condition
of osteoarthritis should be “deleted” from the SOAF, as it related to the right knee. Dr. Thompson
stated that appellant continued to suffer residuals of the injury of March 30, 2010 with subjective
findings of persistent pain, a persistent limp, and evidence of laxity of the ACL. He noted that she
was at maximum medical improvement as of August 26, 2017. Dr. Thompson rendered an
impairment rating under the sixth edition of the A.M.A., Guides, referencing the Knee Regional
Grid of Chapter 16-3, page 510. He opined that it should be rated as a class 1 with a GMPE of 1,
resulting in a class C impairment. Dr. Thompson calculated that appellant’s percentage of
permanent impairment of the right lower extremity was 10 percent for mild laxity of the ACL.
On September 26, 2019 OWCP forwarded Dr. Thompson’s report to Dr. Harris, serving as
a DMA. In a report dated October 10, 2019, the DMA reviewed the SOAF and medical record,
including Dr. Thompson’s September 11, 2019 report. He found that the following diagnoses were
established: status post right knee arthroscopy with arthroscopically-assisted ACL reconstruction,
chondroplasty, and plica debridement; status post manipulation under anesthesia with arthroscopic
lysis of adhesions and excision of a cyclops lesion; and status post right knee arthroscopic excision
of medial plica and chondroplasty of the medial femoral condyle. Referring to Table 16-3, page
510 of the sixth edition A.M.A., Guides, Dr. Harris calculated that, under the DBI method,
appellant had 10 percent permanent impairment of the right knee for ACL laxity. He found that
her condition did not meet any of the criteria discussed in section 16.7, page 543 of the A.M.A.,
Guides for rating of permanent impairment due to loss of ROM. The DMA concurred with
Dr. Thompson’s impairment rating of 10 percent permanent impairment of the right lower
extremity and found that the date of MMI was September 11, 2019.
By decision dated October 17, 2019, OWCP denied appellant’s claim for an increased
schedule award for permanent impairment of her right lower extremity. It noted that she had
previously been paid a schedule award for 13 percent permanent impairment of the right lower
extremity.5
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.

5
As noted above, appellant had previously been paid schedule awards for 10 percent permanent impairment of the
right lower extremity from November 18, 2012 through June 1, 2013 and for 13 percent permanent impairment of the
from April 2 through December 20, 2017.
6

Supra note 1.

7

20 C.F.R. § 10.404.

6

OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH - CDX)
+ (GMPE - CDX) + (GMCS - CDX).11 The standards for evaluation of permanent impairment of
an extremity under the A.M.A., Guides are based on all factors that prevent a limb from functioning
normally, such as pain, sensory deficit, and loss of strength.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.13
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP had previously granted appellant schedule award compensation for a total 23
percent permanent impairment of the right lower extremity. On September 21, 2018 appellant
filed a claim for an increased schedule award.
On July 1, 2019 the DMA stated that the March 11, 2019 report from Dr. Wardell,
appellant’s treating physician, could not be used as the basis for a permanent impairment rating,
as it did not contain documentation of appellant’s residual subjective complaints, objective
findings on examination, or explanation as to his impairment rating under the sixth edition of the
A.M.A., Guides.
OWCP prepared a SOAF on August 14, 2019 which listed the accepted conditions as right
knee sprain, lateral collateral ligament, right knee medial meniscus tear, right knee meniscus
derangement, and osteoarthrosis of the right lower extremity and referred appellant for a second
opinion evaluation with Dr. Thompson. In a September 11, 2019 report, Dr. Thompson, conducted
8

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
9

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 521.

12

P.W., Docket No. 19-1493 (issued August 12, 2020); C.H., Docket No. 17-1065 (issued December 14, 2017);
E.B., Docket No. 10-0670 (issued October 5, 2010); Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan,
53 ECAB 229 (2001).
13

A.C., Docket No. 19-1333 (issued January 8, 2020); B.B., Docket No. 18-0782 (issued January 11, 2019); supra
note 8 at Chapter 2.808.6(f) (March 2017).

7

a physical examination of appellant’s right lower extremity, in which he observed mild diffuse
swelling beginning at the distal thigh level and extending to the right ankle and foot, limited motion
at the knee, mild laxity of the ACL and knee tenderness. Dr. Thompson reviewed a magnetic
resonance imaging (MRI) scan dated April 1, 2010, of her right knee, which demonstrated a tear
of the ACL. Dr. Thompson noted that there was no evidence to support that appellant had a tear
of medial meniscus, but that she did have a tear of the ACL. He opined that the SOAF should
include an ACL tear and should not include a medial meniscus tear. Dr. Thompson further opined
that radiographs dated March 30, 2010 were within normal limits, and as such, the accepted
condition of osteoarthritis should be “deleted” from the SOAF, as it related to the right knee.
Dr. Thompson stated that, under the diagnosis of ACL tear, appellant continued to suffer residuals
of the injury of March 30, 2010, with subjective findings of persistent pain, a persistent limp, and
evidence of laxity of the ACL. He noted that she was at MMI as of August 26, 2017.
Dr. Thompson rendered a permanent impairment rating under the sixth edition A.M.A.,
Guides, referencing the Knee Regional Grid of Chapter 16-3, page 510. He opined that it was a
CDX 1 problem with a GMPE of 1, resulting in a class C impairment. Dr. Thompson calculated
that appellant’s percentage of permanent impairment of the right lower extremity was 10 percent
for mild laxity of the ACL.
The Board finds that Dr. Thompson’s opinion is of limited probative value as he provided
opinions that were not in keeping with the statement of accepted facts.14 OWCP provided
Dr. Thompson with a statement of accepted facts to use as a frame of reference in forming his
opinion. The statement of accepted facts made clear that OWCP had accepted appellant’s claim
for numerous conditions, including medial meniscus tear and osteoarthrosis of the right lower
extremity. OWCP’s procedures provide that, when the second opinion physician or impartial
medical specialist does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is diminished or negated altogether.15
The Board notes that Dr. Thompson indicated in his reports that he did not accept all of the
conditions listed in the SOAF as valid employment conditions. Dr. Thompson posited that he had
reviewed appellant’s April 2010 MRI scan and March 2010 x-rays, and that appellant did not have
a medial meniscus tear or osteoarthritis of the right lower extremity; however, he offered no
explanation as to why these conditions could not have developed subsequent to these 2010
diagnosis studies and be causally related to appellant’s accepted employment injury. Given his
failure to acknowledge all the accepted employment conditions without adequate explanation,
Dr. Thompson’s opinion regarding appellant’s right lower extremity permanent impairment is of
limited probative value.16
This case will be remanded to OWCP for referral of appellant and the case record to a new
second opinion physician for examination and an opinion regarding appellant’s permanent
impairment under the relevant standards. After such further development as OWCP deems

14

D.B., Docket No. 17-1845 (issued February 16, 2018).

15

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.600.3(10) (October 1990).

16

Supra note 14.

8

necessary, a de novo decision shall be issued regarding the extent of appellant’s right lower
extremity permanent impairment.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 24, 2021
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

9


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

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Appearances:
Alan Peacock, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1453
Issued: February 1, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 1, 2011 appellant, through his representative, filed a timely appeal from the
May 16, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than one year has elapsed from the issuance of the most recent merit decisions,
February 12 and September 30, 1998, to the filing of this appeal on June 1, 2011, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
only has jurisdiction to review OWCP’s May 16, 2001 nonmerit decision.2

1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions of OWCP 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 decisions of OWCP issued on and after
November 19, 2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s April 26, 2011 request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.
FACTUAL HISTORY
On September 25, 1996 appellant, a 34-year-old city letter carrier, sustained an injury in
the performance of duty when he caught a falling case. OWCP accepted his claim for right
shoulder strain, lumbar strain and cervical strain. Appellant underwent two right shoulder
arthroscopies and eventually returned to limited duty.
In a decision dated February 12, 1998, OWCP terminated appellant’s compensation on
the grounds that the weight of the medical opinion evidence established that he no longer had
continuing disability or need for further medical treatment as a result of his September 25, 1996
work injury. In a decision dated September 30, 1998, it modified the termination to reinstate
medical benefits for the accepted right shoulder condition. Appellant had one year from the date
of that decision to request reconsideration or an appeal to the Board.
On April 26, 2011 appellant asked OWCP to expand the acceptance of his claim to
include his neck or cervical area and lower back or lumbar area, as those were accepted injuries
in his 1996 claim. He provided an updated medical report as evidence of his ongoing symptoms.
In an undated report, Dr. Raul F. Nodal, a neurologist, stated that appellant had been
symptomatic from his low back condition without interruption since he first presented in 2006.
He noted that appellant’s low back pain was covered under workers’ compensation as the result
of cumulative injuries. Dr. Nodal found that appellant currently suffered from L4-5 bilateral
facet synovitis, concentric annular bulge and left greater than right facet hypertrophy with mild
central stenosis. Appellant had painful limitation of motion and a positive bilateral straight leg
raising test without motor or sensory deficits. Dr. Nodal wanted to rule out disc herniation. He
supported the reopening of appellant’s claim for medical coverage of his current lumbar
condition.
Appellant also submitted diagnostic testing of his cervical spine from
December 2010.
In a decision dated May 16, 2011, OWCP denied appellant’s April 26, 2011 request for
reconsideration. It found that the request was untimely and failed to present clear evidence of
error in the February 12, 1998 decision to terminate compensation for his accepted lumbar and
cervical strain.
On appeal, appellant argued that OWCP authorized and paid for lumbar and cervical
medical treatment until October 2010, when it sent a notice that it would discontinue. He
contends that the medical conditions for which he was treated still exist.

2

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, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought. OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.6
ANALYSIS
To the extent that appellant’s April 26, 2011 request was for reinstatement of benefits for
his previously accepted lumbar and cervical injuries, OWCP properly considered this a request
for reconsideration of its February 12, 1998 decision to terminate compensation for the accepted
injuries. Appellant had one year to request reconsideration. His April 26, 2011 request is
therefore untimely. The question is whether appellant’s request shows clear evidence of error in
OWCP’s February 12, 1998 decision.
Appellant correctly observed that OWCP previously accepted his low back and neck
injury, but he ignores the nature of the accepted injuries and the reason OWCP terminated
benefits. OWCP accepted a lumbar and cervical strain, soft-tissue injuries. It terminated
compensation for those soft-tissue injuries because the weight of the medical opinion evidence
established that they no longer caused continuing disability for work or the need for further
medical treatment.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

6

Id., Chapter 2.1602.3.d(1).

3

Dr. Nodal, appellant’s neurologist, supported the reopening of appellant’s case for
medical coverage of his lumbar condition, which now included L4-5 bilateral facet synovitis,
concentric annular bulge and left greater than right facet hypertrophy with mild central stenosis,
painful limitation of motion, positive bilateral straight leg raising and possible disc herniation.
He did not, however, address the nature of the accepted lumbar injury and the reason OWCP
terminated benefits in 1998. Dr. Nodal did not explain how disability or the award for treatment
in 2011 related to the accepted strain.
Diagnostic testing showing the current condition of appellant’s cervical spine suffers the
same defect.
The Board finds that appellant’s untimely request for reconsideration, including the
medical evidence provided, fails to establish, on its face, that OWCP’s 1998 termination of
benefits for lumbar and cervical strains was erroneous. The Board will affirm, therefore,
OWCP’s May 16, 2011 decision denying his April 26, 2011 request for reconsideration.
If OWCP paid for medical treatment of appellant’s lumbar and cervical spine until
October 2010, it was a gratuitous benefit to which appellant was not entitled by operation of the
1998 termination. The Board has held that the mere authorization of treatment does not
constitute an acceptance of causal relationship.7 OWCP never accepted appellant’s claim for
degenerative disc disease, or for any of the medical conditions Dr. Nodal mentioned in his
undated report. Appellant’s April 26, 2011 request asked for expansion of his 1996 claim to
include as compensable his currently diagnosed lumbar and cervical conditions. This issue is not
presently before the Board as there is no final decision on this aspect of his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s April 26, 2011 request for
reconsideration.

7

Robert J. Adcock, 9 ECAB 459 (1957); see Mae G. Heede, 5 ECAB 171 (1952) (although the Bureau, OWCP,
continued to furnish the claimant medical treatment for her nervous disorder for several years after her accepted
tuberculosis had been arrested, apparently in an attempt to lessen the likelihood of a recurrence of the tuberculosis,
such treatment did not indicate that the Bureau had accepted the nervous condition as being causally related to the
tuberculosis nor did it entitle the claimant to continued benefits when the weight of the medical evidence showed
that she no longer suffered from any disability causally related to her employment).

4

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed. The case is remanded for further action
consistent with this decision.
Issued: February 1, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-0723
Issued: July 29, 2015

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On February 2, 2015 appellant filed an application for review, from a December 12, 2014
decision of the Office of Workers’ Compensation Programs (OWCP) which denied appellant’s
claim for a traumatic injury.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In William A. Couch,1 the Board held that, when
adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by
appellant and received before the final decision is issued. The Couch principle applies with
equal force when evidence is received by OWCP the same day a final decision is issued.2 After
appellant filed his traumatic injury claim, OWCP advised him on November 13, 2014 of the type
of evidence needed to establish his claim. He was provided 30 days to submit the additional
evidence. In response, on November 25, 2014 and received by OWCP on December 12, 2014
appellant submitted a June 23, 2014 emergency room treatment report and a November 25, 2014
attending physician’s report, prepared by Dr. Emily Binstadt, a Board-certified emergency

1

41 ECAB 548 (1990).

2

Linda Johnson, 45 ECAB 439 (1994).

physician. In its December 12, 2014 decision, OWCP denied appellant’s claim because he had
failed to submit any medical evidence to establish causal relationship.
The Board finds that OWCP, in its December 12, 2014 decision, did not review all the
evidence of record at the time it issued the decision to deny appellant’s claim.3 Accordingly, the
case will be remanded to permit OWCP to review all of the evidence. Following this and any
further development deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s claim.
IT IS HEREBY ORDERED THAT the December 12, 2014 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: July 29, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3

The Board notes that OWCP did not follow its regulations which require that OWCP advise a claimant of the
additional evidence needed to support his claim and allow 30 days in which to submit such evidence. In this case,
OWCP’s November 13, 2014 letter advised appellant of the type of evidence needed to establish his claim and
allowed his 30 days in which to respond. OWCP’s December 12, 2014 decision was issued prior to the end of the
30-day period. See 20 C.F.R. § 10.121; J.V., Docket No. 13-295 (issued April 17, 2013).

2