United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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U.S. POSTAL SERVICE, REMOTE ENCODING )
CENTER, Glendale, AZ, Employer
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__________________________________________ )
W.Q., Appellant

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

Docket No. 07-250
Issued: August 8, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge

JURISDICTION
On November 7, 2006 appellant timely appealed the August 11, 2006 merit decision of
the Office of Workers’ Compensation Programs, which accepted her occupational disease claim
for left radial tunnel syndrome and left lateral epicondylitis. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the claim.1
ISSUE
The issue is whether appellant sustained a cervical condition in the performance of duty
on or about February 22, 2005.
FACTUAL HISTORY
Appellant, a 39-year-old data conversion operator, has an accepted occupational disease
claim for bilateral wrist tendinitis and bilateral carpal tunnel syndrome, which arose on or about
1

The record on appeal contains evidence that was received after the Office issued its August 11, 2006 decision.
The Board may not consider evidence that was not in the case record when the Office rendered its final decision.
20 C.F.R. § 501.2 (2007).

August 2, 1999, file number 13-1195763.2 She also has an accepted claim for aggravation of
bilateral cubital tunnel syndrome, arising on or about September 15, 2001, file
number 13-2042446. With respect to this latter claim, appellant underwent bilateral ulnar nerve
transposition and cubital tunnel release in August 2002. She returned to full-time, regular duty
on October 5, 2002.
On June 10, 2005 appellant filed an occupational disease claim for pain in her wrists,
elbows and neck, file number 13-2131743. Her claimed condition was allegedly due to
continuous keying at work, which she performed for 55 minutes each hour during an 8-hour
shift. Appellant identified February 22, 2005 as the date she was first aware of her employmentrelated condition.
By letter dated July 7, 2005, the Office advised appellant that, because her prior claims
for bilateral upper extremity conditions remained open, it would only address the newly claimed
cervical condition.
The relevant medical evidence regarding appellant’s cervical condition included a
May 10, 2005 magnetic resonance imaging (MRI) scan that revealed a minimal disc bulge and
facet hypertrophy at C6-7, with minimal left neural foraminal stenosis. Dr. Mark Whitaker, a
family practitioner, examined appellant on May 17, 2005 and diagnosed cervical disc disease and
cervicothoracic strain. He believed that appellant’s condition was aggravated by her
employment, but did not otherwise explain the basis for his opinion.3 Dr. Whitaker saw
appellant on several occasions between July and August 2005 and continued to diagnose
cervicothoracic strain, cervical disc disease and cervical radiculopathy. He explained that
appellant’s duties at work involved data entry and keying all day, which can aggravate her
symptoms.
Dr. Edward J. Dohring, a Board-certified orthopedic surgeon, examined appellant on
behalf of the employing establishment. In his July 15, 2005 report, he found no evidence of an
injury having occurred on February 22, 2005. Dr. Dohring explained that, although appellant
complained of cervical paraspinal muscle myofascial-type pain, as well as aching pain in the
forearms, she had no imaging or examination evidence whatsoever that she has a diagnosable
condition relating to the cervical spine or to the upper extremities. With regard to appellant’s
cervical spine, he stated: “she has a normal cervical spine.” (Emphasis in the original.)
Dr. Dohring also noted that the May 10, 2005 cervical MRI scan was within normal limits for
someone of appellant’s age and the disc bulge identified was so small as to be barely noticeable.
He further explained that there was certainly no evidence of sufficient degenerative changes to
explain appellant’s symptoms.
In a decision dated September 20, 2005, the Office denied appellant’s claim for an
employment-related cervical condition. On December 6, 2005 she requested reconsideration.

2

She underwent right and left carpal tunnel releases on November 17, 1999 and January 5, 2000, respectively.

3

Dr. Whitaker reported his findings on (Form CA-20) and checked the “Yes” box on item number eight, which
asks whether the diagnosed condition was caused or aggravated by an employment activity.

2

Dr. Christopher A. Yeung, a Board-certified orthopedic surgeon, examined appellant on
September 13, 2005 for complaints of neck and bilateral wrist pain. In addition to appellant’s
prior bilateral upper extremity conditions, he noted a history of a motor vehicle accident some
18 years prior, which caused a whiplash injury. Physical examination of the cervical spine
revealed good range of motion without apparent limitations. However, appellant exhibited some
discomfort with neck range of motion and tenderness was noted at the base of the cervical spine
and the trapezium. Her x-ray showed good alignment of the cervical spine and appellant’s MRI
scan showed only mild spondylosis and a mild disc protrusion on the left at C6-7, with some
mild foraminal stenosis. The cervical MRI scan also revealed a benign appearing syrinx from
the C5-6 level down to C7. Dr. Yeung diagnosed mild cervical spondylosis with left C6-7
foraminal stenosis and syrinx in the cervical spine from C5 to 7. He noted that appellant had
some spondylosis, but no current radiculopathy or radiculitis. Dr. Yeung also explained that,
with bilateral cubital tunnel and carpal tunnel surgeries, it was difficult to tell if appellant had
any residual symptoms from this or from the syrinx. He further explained that appellant
certainly could have some wrist and hand symptoms from the syrinx, which most likely occurred
after her motor vehicle accident 18 years ago.
The Office denied modification by decision dated February 15, 2006.
Appellant filed another occupational disease claim on January 30, 2006, with a date of
injury of January 24, 2006, file number 13-2145667. She stated that she recently began
experiencing pain in her elbows and forearms. While appellant’s neck pain seemed to have
resolved, her forearms and elbows were very painful, which prevented her from working.
On March 7, 2006 appellant filed a request for reconsideration of the Office’s
February 15, 2006 decision under file number 13-2131743. She also asked the Office to
combine that file with her January 30, 2006 file number 13-2145667 for bilateral elbow and
forearm injuries. Appellant explained that she initially believed that her arm pain was caused by
her neck pain, but now she believed her neck pain was caused by her arm pain. According to
her, she had radial tunnel syndrome, which was responsible for both her neck pain and her
bilateral arm pain.
On January 26, 2006 Dr. Whitaker referred appellant to an orthopedist to rule out radial
tunnel syndrome. In a February 2, 2006 report, Dr. Kishore Tipirneni, a Board-certified
orthopedic surgeon, diagnosed radial tunnel syndrome, which he attributed to repetitive motion
and keying. He also recommended obtaining a cervical MRI scan and additional diagnostic
studies to rule out cervical radiculopathy.
A February 9, 2006 MRI scan revealed a small central disc protrusion at C6-7, with an
annular tear. The MRI scan also showed partial disc desiccation at C3-4 to C5-6, straightened
cervical lordosis and no abnormal signal characteristics within the cervical cord.
The Office denied file number 13-2145667 in a decision dated March 16, 2006.
Appellant requested reconsideration on April 6, 2006.
On March 21, 2006 Dr. Peter J. Campbell, a Board-certified orthopedic surgeon,
examined appellant on behalf of the employing establishment. He indicated that her clinical

3

symptoms were consistent with radial tunnel syndrome. However, it was unclear whether
appellant’s repetitive employment duties caused her symptoms. Dr. Campbell noted that there
were no specific activities at work which seem to aggravate her condition, nor had appellant’s
second-month absence from work significantly improved her symptoms. He advised that
appellant could resume her full employment duties.
A March 21, 2006 electromyogram and nerve conduction study showed a mild median
nerve lesion on the right at the wrist and mild slowing of the radial nerve on both sides.
On March 30, 2006, after reviewing the recent diagnostic studies, Dr. Tipirneni
diagnosed possible radial tunnel syndrome. On April 6, 2006 he provided a definitive diagnosis
of radial tunnel syndrome and administered corticosteroid injections on both sides. Dr. Tipirneni
saw appellant again on April 27, 2006 and noted that he had reviewed Dr. Campbell’s report. He
indicated that appellant’s radial tunnel syndrome may be related to her keying at work. In light
of appellant’s improved symptoms following corticosteroid injections, Dr. Tipirneni released her
to return to her regular employment duties. However, he advised that, if her symptoms returned,
she might be a candidate for a radial tunnel release. Within a week’s time, appellant returned to
Dr. Tipirneni with complaints of bilateral forearm pain. She attempted to resume working, but
after two hours her arms were reportedly too painful. On May 4, 2006 Dr. Tipirneni referred
appellant to Dr. Kent H. Chou, a Board-certified orthopedic surgeon, for a surgical consultation.
Dr. Chou saw appellant on May 12, June 9 and July 18, 2006. He diagnosed lateral
epicondylitis and radial tunnel syndrome, with the left side being much more symptomatic than
the right. In his July 18, 2006 report, Dr. Chou explained that appellant’s symptoms were
exacerbated by lifting and keyboarding, both of which she performed on a regular basis at work.
Because of the past failure of conservative treatment, he recommended surgical intervention to
treat appellant’s left lateral epicondylitis and left radial tunnel syndrome. On August 2, 2006
Dr. Chou performed a left radial tunnel release and left lateral epicondylar release with
ostectomy.
By decision dated August 11, 2006, the Office modified the February 15, 2006 decision
in file number 13-2131743. The Office accepted appellant’s claim for left radial tunnel
syndrome and left lateral epicondylitis. Additionally, the Office found that she failed to establish
that she sustained an employment-related cervical condition.4
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as

4

In a September 1, 2006 letter, the Office advised appellant that file numbers 13-2145667 and 13-2131743 were
combined under the latter file number. The Office also stated that the August 11, 2006 decision was equally
applicable to appellant’s request for reconsideration of the March 16, 2006 decision in file number 13-2145667.
5

5 U.S.C. § 8101 et seq (2000).

4

alleged and that any specific condition or disability claimed is causally related to the
employment injury.6
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.7
ANALYSIS
The Office accepted appellant’s claim for left radial tunnel syndrome and left lateral
epicondylitis. Additionally, the Office found that she had not established an employment-related
cervical condition. On appeal, the only issue specifically raised was whether the Office should
have also included right radial tunnel syndrome as an accepted condition. However, this issue is
not currently before the Board because the Office has yet to render a specific finding and a final
decision on whether appellant has employment-related right radial tunnel syndrome.8
The only adverse finding in the Office’s August 11, 2006 decision was that appellant had
not established an employment-related cervical condition. The Board notes that she did not
specifically challenge this finding on appeal. Moreover, the medical evidence of record does not
establish an employment-related cervical condition. Dr. Whitaker, a family practitioner, was the
only physician of record to diagnose an employment-related cervical condition. He authored a
series of reports between May and August 2005, in which he diagnosed cervicothoracic strain,
cervical disc disease and cervical radiculopathy. Dr. Whitaker indicated that data entry and
keying, which appellant performed all day at work, aggravates her symptoms. However, despite
his ultimate finding, his various reports offer little or no support for his opinion on causal
relationship.9 Furthermore, beginning in January 2006, Dr. Whitaker appeared to have
6

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty and must
be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors. Id.
7

Victor J. Woodhams, supra note 6.

8

The Board’s jurisdiction is limited to reviewing final decisions issued by the Office’s 20 C.F.R. § 501.2(c).

9

On May 17, 2005 Dr. Whitaker reported his findings on a Form CA-20 and checked the “Yes” box on item
number eight, which asks whether the diagnosed condition was caused or aggravated by an employment activity.
He also underscored the word “aggravated,” but offered no explanation for his opinion on causal relationship.
Dr. Whitaker’s July 19, 2005 report on a Form CA-20 similarly provides no explanation regarding causal
relationship. But even in the two reports where he mentioned appellant’s repetitive keying and data input
responsibilities as aggravating factors, Dr. Whitaker still failed to provide a rationalized opinion on causal
relationship.

5

abandoned his previous cervical-related diagnoses in favor of a diagnosis of radial tunnel
syndrome. Additionally, Drs. Dohring and Yeung, both of whom are Board-certified orthopedic
surgeons, did not identify an employment-related cervical condition. Dr. Dohring found that
appellant had a normal cervical spine. Dr. Yeung noted a benign syrinx from C5-6 to C7, which
likely developed after a whiplash injury appellant sustained in motor vehicle accident 18 years
ago. The Board finds that the Office properly determined that appellant had not demonstrated
the presence of an employment-related cervical condition.
CONCLUSION
Appellant has not established that she sustained an employment-related cervical
condition.
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Middleton, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0619
Issued: February 19, 2020

Case Submitted on the Record

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

On January 22, 2019 appellant filed a timely appeal from July 23 and December 20, 2018
decisions of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 19-0619.1
On April 13, 2017 appellant, then a 43-year old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she injured her neck and back when her mail truck was hit
by another vehicle as she delivered mail while in the performance of duty. By decision dated
July 23, 2018, OWCP accepted the claim for sprains of the cervical and lumbar areas of spine. It
denied the claim, however, with regard to the additional conditions of cervical and lumbar
radiculopathies, left shoulder impingement syndrome, cervical and lumbar herniated nucleus
pulposus, and cervical, thoracic, and lumbar subluxations, finding that the evidence of record was
insufficient to establish causal relationship.

1

The Board notes that, following the December 20, 2018 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.

Appellant filed claims for wage-loss compensation (Form CA-7) for the period from
May 29, 2017 to December 21, 2018.
By decision dated December 20, 2018, OWCP denied appellant’s wage-loss compensation
claim for the period May 29, 2017 and continuing as the medical evidence of record was
insufficient to establish total disability from work due to the accepted conditions. It also denied
modification of the July 23, 2018 decision as to the issue of claim expansion, finding that the
medical evidence of record was insufficient to establish that the additional conditions claimed were
work related.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
In the case of William A. Couch,2 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
The Federal Employees’ Compensation Act provides that OWCP shall determine and make
findings of fact in making an award for or against payment of compensation after considering the
claim presented by the employee and after completing such investigation as OWCP considers
necessary with respect to the claim.3 Since the Board’s jurisdiction of a case is limited to reviewing
that evidence which was before OWCP at the time of its final decision,4 it is necessary that OWCP
review all evidence submitted by a claimant and received by OWCP prior to issuance of its final
decision. As the Board’s decisions are final as to the subject matter appealed,5 it is crucial that all
evidence relevant to that subject matter which was properly submitted to OWCP prior to the time
of issuance of its final decision be addressed by OWCP.7
The Board finds that OWCP did not review or address reports, dated April 7 and August 2
and 10, 2018, and disability certificates from Dr. Clifton Burt, a physical medicine and
rehabilitation specialist; attending physician reports (Form CA-20) and duty status reports (Form
CA-17) dated October 2, 2018 from Dr. Ravi Naik, a physician specializing in pain medicine and
anesthesiology; or physical therapy notes covering the period from April 13, 2017 to
August 21, 2018. In addition, OWCP failed to address whether appellant was entitled to wageloss compensation benefits for her attendance at medical appointments during the claimed period.

2
41 ECAB 548, 553 (1990); see also R.P., Docket No. 19-0301 (issued August 21, 2019); .K.L., Docket No.
16-1341 (issued December 20, 2016); E.Z., Docket No. 14-274 (issued March 16, 2015); Linda Johnson, 45 ECAB
439 (1994).
3

5 U.S.C. § 8124(a)(2).

4

20 C.F.R. § 501.2(c).

5

Id. at § 501.6(d).

2

For these reasons, the case will be remanded to OWCP for proper consideration of all the
evidence of record at the time of the December 20, 2018 decision. Following such further
development as OWCP deems necessary, it shall issue an appropriate decision on the claim.
IT IS HEREBY ORDERED THAT the December 20 and July 23, 2018 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: February 19, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, MAIN OFFICE,
Long Island City, NY, Employer
__________________________________________

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

Docket No. 12-1148
Issued: November 1, 2012

Case Submitted on the Record

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

JURISDICTION
On May 2, 2012 appellant filed a timely appeal of an April 11, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on October 26, 2010.
FACTUAL HISTORY
On October 26, 2010 appellant, then a 33-year-old letter carrier, filed a traumatic injury
claim alleging that she was picking up a bucket of mail that morning when her right hand slipped

1

5 U.S.C. § 8101 et seq.

and snapped backwards.2
January 1, 2011.3

She thereafter filed a claim for disability compensation on

In November 6 and 18, 2010 attending physician’s reports, Dr. Vaijinath M. Chakote, a
Board-certified internist, stated that appellant injured her right hand on October 26, 2010 after
she picked up a bucket of mail. He checked the “yes” box indicating that the injury resulted
from her federal employment.4 In a November 16, 2010 duty status report, Dr. Chakote
diagnosed injured right hand, wrist and thumb and recommended that appellant be placed on
modified duty.5
Dr. David W. Rabinovici, a neurologist, detailed in a December 21, 2010 report that
appellant was carrying a basket at work on October 26, 2010 when she nearly dropped it. As she
was grabbing hold of the basket with her right hand, appellant bent her thumb. On examination
of the right upper extremity, Dr. Rabinovici observed decreased pinprick and vibratory sensation
along the hand and forearm, positive Tinel’s signs at the wrist and elbow and shoulder pain. He
diagnosed injured right thumb.
OWCP informed appellant in a January 20, 2011 letter that additional evidence was
needed to establish her claim. It gave her 30 days to submit a medical report from a qualified
physician explaining how an October 26, 2010 work event caused or contributed to a diagnosed
condition.6
X-rays obtained by Dr. Chakote on December 2, 2010 exhibited degenerative joint
disease of the right finger, hand and wrist. He specified in a February 15, 2011 note that a
bucket of mail fell on appellant’s hand on October 26, 2010, which led to her condition and
necessitated physical therapy.7
In reports dated January 18, 2011, Dr. Rabinovici related that appellant experienced right
thumb, wrist, elbow and shoulder discomfort. An electromyogram (EMG) showed evidence of
chronic bilateral carpal tunnel syndrome while motor and sensory nerve conduction, F-wave and

2

Appellant did not immediately incur any lost time from work. Her supervisor signed a Form CA-16 on
October 26, 2010 authorizing urgent care. Multiple duty status reports and an attending physician’s report from that
day contained illegible signatures.
3

The case record contains several subsequent compensation claims.

4

Appellant also provided Dr. Chakote’s other attending physician’s reports for the period November 23, 2010 to
February 15, 2011. Except for the November 23, 2010 version, which mistakenly addressed a left hand injury, they
essentially duplicated the content of the earlier reports.
5

Appellant also provided Dr. Chakote’s other duty status reports for the period October 28, 2010 to
February 15, 2011. Except for the October 28, 2010 version, which mistakenly addressed a left hand injury, they
essentially duplicated the content of the earlier report.
6

OWCP pointed out that the claim was originally received as a simple, uncontroverted case resulting in minimal
or no lost time from work and payment was approved for limited medical expenses without formal adjudication.
7

The case record contains physical therapy records from January 28, 2011.

2

physical examination findings were within normal limits. Dr. Rabinovici advised that appellant
was unable to return to work in a February 13, 2011 status note.
Appellant recounted in a February 16, 2011 statement that she picked up a bucket of mail
to case on October 26, 2010 when it slipped from her grasp. She “went to catch it” and her
thumb “bent back.” Appellant remained symptomatic since the incident.8
By decision dated February 22, 2011, OWCP denied appellant’s claim, finding the
medical evidence insufficient to demonstrate that the accepted October 26, 2010 employment
incident caused or contributed to a right hand injury.
Appellant requested reconsideration on April 4, 2011. Her representative argued in an
April 5, 2011 memorandum that OWCP was obligated to pay for appellant’s initial medical care
and that the medical evidence established an industrial injury.
Dr. Chakote remarked in a January 29, 2011 note that appellant sustained a right hand
injury when she picked up a falling basket of mail on October 26, 2010. He reiterated the results
of the December 2, 2010 x-rays and Dr. Rabinovici’s January 18, 2011 EMG and nerve
conduction study. Dr. Chakote’s subsequent March 28, 2011 note stated that a bucket of mail
fell on appellant’s right hand.
In a February 15, 2011 follow-up report, Dr. Rabinovici examined appellant’s right arm,
observed tenderness to palpation and diagnosed mild carpal tunnel syndrome based on his
January 18, 2011 findings.9
On July 7, 2011 OWCP denied modification of the February 22, 2011 decision.
Appellant requested reconsideration on November 15, 2011. In a November 8, 2011
memorandum, counsel asserted that Dr. Chakote misdiagnosed appellant’s condition and that
new medical evidence established an industrial injury.
In September 28, 2011 reports, Dr. Pamela M. Levine, a Board-certified orthopedic
surgeon, related that a bucket of mail fell on appellant’s right hand on October 26, 2010. On
examination, she observed right wrist tenderness to palpation, decreased range of motion
(ROM), first, second and third digit pain and positive Watson’s and Finkelstein’s tests.
Dr. Levine diagnosed torn right scapholunate ligament and ruled out degenerative joint disease.
A September 29, 2011 right hand x-ray obtained by Dr. Franco G. Policaro, a Board-certified
diagnostic radiologist, was normal.
On April 11, 2012 OWCP denied modification of the July 7, 2011 decision.

8

Appellant later furnished additional factual statements.

9

Appellant also submitted an unsigned November 3, 2010 medical note and an illegible February 4, 2011 report
from Dr. Sairamachandra R. Kolla, a Board-certified physiatrist.

3

LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,10
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.11 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.12
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.13
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.14
ANALYSIS
The case record supports that appellant caught a bucket of mail with her right hand on
October 26, 2010. Nonetheless, the Board finds that she did not establish her claim because the
medical evidence did not sufficiently demonstrate that the accepted employment incident was
causally related to a right hand injury.
Dr. Chakote’s reports from November 6, 2010 to February 15, 2011 indicated that
appellant sustained degenerative joint disease of the right finger, hand and wrist and attributed
the condition to picking up a falling basket of mail on October 26, 2010. However, subsequent
February 15 and March 28, 2011 notes specified that a bucket of mail fell on appellant’s right
hand. Inconsistent records from the same physician lack probative value.15 Moreover,

10

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

11

R.C., 59 ECAB 427 (2008).

12

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

13

T.H., 59 ECAB 388 (2008).

14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

15

K.S., Docket No. 11-2071 (issued April 17, 2012); Cleona M. Simmons, 38 ECAB 814 (1987). See also
John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment incident
described by the claimant caused or contributed to the diagnosed medical condition).

4

Dr. Chakote failed to pathophysiologically explain how the accepted October 26, 2010
employment incident caused or contributed to the diagnosed condition.16
In a December 21, 2010 report, Dr. Rabinovici reviewed appellant’s account of the
October 26, 2010 work event and conducted a physical examination. He later diagnosed carpal
tunnel syndrome in January 18 and February 15, 2011 reports based on EMG findings.
Dr. Rabinovici did not provide an opinion regarding causal relationship: he appeared to be
merely communicating appellant’s belief on the matter.17 Assuming arguendo that this
represented his opinion on causal relationship, he did not offer fortifying medical rationale.18
Dr. Levine stated in reports dated September 28, 2011 that a bucket of mail fell on
appellant’s hand. Following an examination, she diagnosed torn right scapholunate ligament.
Dr. Levine, however, did not discuss whether the October 26, 2010 employment incident that
was accepted by OWCP, namely catching a bucket of mail with her right hand, caused or
contributed to the diagnosed injury.19 In the absence of rationalized medical opinion evidence,
appellant failed to meet her burden of proof.20
Appellant may submit new evidence or argument as part of a formal 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 10.607.21
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on October 26, 2010.

16

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). The Board also points
out that Dr. Policaro’s September 29, 2011 x-ray report did not support Dr. Chakote’s diagnosis.
17

See P.K., Docket No. 08-2551 (issued June 2, 2009) (an award of compensation may not be based on a
claimant’s belief of causal relationship).
18

George Randolph Taylor, 6 ECAB 986, 988 (1954).

19

See John W. Montoya, supra note 15. See also M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB
1805 (1980) (medical opinions based on an incomplete or inaccurate history are of diminished probative value).
20

The Board adds that January 27, 2011 physical therapy records, an unsigned November 3, 2010 medical note,
and Dr. Kolla’s illegible February 4, 2011 report each lacked probative value. First, medical opinion is generally
given by a qualified physician. Charley V.B. Harley, 2 ECAB 208, 211 (1949). A physical therapist is not a
physician under FECA. 5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996). Second, an unsigned report
cannot constitute competent medical evidence because one cannot determine whether the report was completed by a
qualified physician. See R.M., 59 ECAB 690, 693 (2008). Finally, an unreadable report lacks evidentiary weight.
Charlie McRae, Docket No. 98-1730 (issued February 22, 2000).
21

The Board notes that the employing establishment completed a Form CA-16 on October 26, 2010. See supra
note 2. A properly executed Form CA-16 creates a contractual obligation, which does not involve the employee
directly, to pay the cost of the examination or treatment, regardless of the action taken on the claim. See Elaine M.
Kreymborg, 41 ECAB 256 (1989). Although OWCP adjudicated and denied appellant’s traumatic injury claim, it
has not yet addressed the issue of medical reimbursement pursuant to the Form CA-16.

5

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


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

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Docket No. 14-1947
Issued: February 11, 2016

Case Submitted on the Record

ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

On January 7, 2015 the Board issued a decision in the above-entitled matter, which set
aside the August 28, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). The Board remanded the case for further consideration of appellant’s claim for an
additional schedule award. Appellant, however, did not timely receive a copy of the January 7,
2015 decision because the Clerk of the Board inadvertently mailed the decision to an incorrect
address.
Pursuant to 20 C.F.R. § 501.6(f), the Board “will send its decisions and orders to the
[a]ppellant … at the time of issuance.” In Bertha Keeble, the Board noted that a decision is
issued when it is filed and mailed, and it is presumed that this was accomplished on the issue
date appearing on the decision.1 In Keeble, the decision was mailed to an incorrect address, and
therefore, the Board found that it had not properly issued the decision. Consequently, the Board
ordered that the decision be correctly issued. In the current case, the Board mailed its January 7,
2015 decision to an incorrect address, and thus, the decision was not issued in accordance with
20 C.F.R. § 501.6(f). As such, the decision in the above-entitled case shall be reissued effective
this date.

1

45 ECAB 355, 356 (1994) (citing Ralph W. Moody, 44 ECAB 375 (1993)).

While a case is on appeal to the Board, OWCP has no jurisdiction over the claim with
respect to issues which directly relate to the issue or issues on appeal.2 Although appellant did
not timely receive a copy of the Board’s January 7, 2015 decision, OWCP was aware of the
decision, and has since issued three decisions regarding appellant’s entitlement to an additional
schedule award. Because appellant was not properly served, the Board effectively did not
relinquish jurisdiction over the schedule award claim. Consequently, OWCP’s decisions dated
March 17, 18, and May 15, 2015 are set aside as null and void.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of issuance....”3
IT IS HEREBY ORDERED THAT the Board’s January 7, 2015 decision is reissued.4
Issued: February 11, 2016
Washington, DC

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

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

2

20 C.F.R. § 10.626 (2014); see, e.g., Lawrence Sherman, 55 ECAB 359, 360 n.4 (2004).

3

Id. at § 501.6(d).

4

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015 and did not participate in the preparation of this order.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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

Docket No. 14-899
Issued: July 28, 2014

Case Submitted on the Record

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

JURISDICTION
On March 7, 2014 appellant filed a timely appeal of the September 30, 2013 decision of
the Office of Workers’ Compensation Programs (OWCP), which found an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$19,548.52 overpayment of compensation for the period December 26, 2006 to September 14,
2007; and (2) whether OWCP properly determined that appellant was at fault in creating the
overpayment of compensation, thereby precluding waiver of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is the second appeal in the present case.2 In a July 19, 2004 decision, the Board set
aside OWCP’s October 14, 2003 decision, which affirmed a schedule award decision.3 The
Board determined that in view of the disparity of evaluations of permanent impairment between
an OWCP medical adviser and appellant’s treating physician, Dr. David Weiss, OWCP should
refer the claim to an OWCP referral physician to determine the ratable impairment of the right
and left upper extremity. The facts of the case as set forth in the Board’s prior decision are
incorporated herein by reference.
The evidence relevant to the current appeal reveals that on September 27, 1999 appellant
requested a schedule award. An OWCP medical adviser opined that she had five percent
impairment of the right arm based on her accepted right carpal tunnel syndrome and
tenosynovitis of the right hand. In a December 6, 1999 decision, OWCP issued appellant a
schedule award for five percent impairment of the right upper extremity. On September 11,
2002 appellant requested an additional award. In a report dated October 26, 2002, the medical
adviser opined that she had 10 percent impairment of the right arm for right carpal tunnel
syndrome and tenosynovitis of the right hand and 9 percent impairment for the left arm for left
carpal tunnel syndrome. Since appellant was previously granted five percent impairment of the
right upper extremity, she was entitled to an additional award of five percent.
In a decision dated November 19, 2002, OWCP granted appellant schedule awards for 19
percent impairment of both upper extremities. The period of the award was from May 13, 2002
to March 14, 2003. In this decision, OWCP provided:
“Degree and Nature of Permanent Disability: 19 percent permanent partial loss of
use or loss of right and left upper extremities. However, five percent was already
paid to [appellant] for the right upper extremity on December 10, 1999.
Therefore, [she is] entitled to 14 percent of this schedule award.”
On April 11, 2007 appellant requested an additional schedule award. She submitted a
September 24, 2009 report from Dr. Weiss who noted 12 percent right arm impairment.
Dr. Weiss noted 2 percent impairment of the right wrist for de Quervain’s, 6 percent impairment
for median nerve entrapment at the right wrist and 6 percent impairment for the ulnar nerve
entrapment at the right elbow or a combined impairment of 12 percent for the right arm. The
medical adviser concurred in this rating.
In a decision dated January 6, 2010, OWCP granted appellant 12 percent impairment for
the right arm. The period of the award was from December 26, 2006 to September 14, 2007.
2

On May 4, 1998 appellant, then a 29-year-old data transcriber, filed an occupational disease claim alleging that
she developed acute tendinitis in both hands due to excessive keying at work. She became aware of her condition on
March 6, 1998 and stopped work that time. OWCP accepted bilateral carpal tunnel syndrome, right wrist
tenosynovitis and authorized right carpal tunnel release.
3

Docket 04-876 (issued July 19, 2004). The Board noted that OWCP decision dated November 19, 2003 granted
appellant a schedule award for 19 percent permanent impairment of both upper extremities; however, OWCP did not
indicate the percentage impairment for each extremity.

2

In a schedule award payment worksheet dated January 6, 2010, OWCP noted the gross
amount of schedule award paid for 12 percent right upper extremity for the period December 26,
2006 to September 14, 2007 was $23,374.89.
On January 13, 2010 appellant requested a review of the written record.
In a gross calculation report dated April 22, 2011, OWCP determined that the total
schedule award paid pursuant to the January 6, 2010 decision was for 12 percent impairment of
the right upper extremity in the amount of $23,374.89. It determined, however, that appellant
was previously paid for 10 percent impairment of the right upper extremity for the same
condition and should only have been paid for an additional 2 percent impairment in the amount
of $3,826.37. As a result a $19,548.52 overpayment was created.
In a decision dated February 14, 2012, an OWCP hearing representative affirmed the
January 6, 2010 decision determining that appellant sustained 12 percent impairment of the right
upper extremity. The hearing representative noted that OWCP failed to deduct the impairment
rating previously granted for 10 percent impairment of the right upper extremity therefore
appellant had only an additional 2 percent impairment. The hearing representative advised that
an overpayment was created and the case would be remanded to OWCP to determine the amount
of the overpayment.
On December 12, 2012 appellant requested reconsideration. In a decision dated March 5,
2013, OWCP denied modification of the February 14, 2012 decision.
In an August 30, 2013 overpayment calculation worksheet, OWCP noted that appellant
was granted 12 percent impairment of the right upper extremity for the period December 26,
2006 to September 14, 2007, or a total award of $23,374.89. However, appellant was previously
paid 10 percent impairment of the right upper extremity for the same conditions and was
therefore entitled to an additional 2 percent impairment of the right upper extremity. OWCP
noted that she was entitled to pay for the schedule award for 43.68 days; however, she was paid
for 262.08 days. It further noted that the schedule award began on December 26, 2006 and
should have ended on February 7, 2007, but continued to September 14, 2007. OWCP indicated
that appellant was entitled to a schedule award of $3,826.37 but was incorrectly paid $23,374.89
for an overpayment of $19,548.52.
In an August 30, 2013 preliminary overpayment determination, OWCP found that
appellant was paid a schedule award for 12 percent impairment of the right arm on January 6,
2010 for the period December 26, 2006 to September 14, 2007. However, appellant was
previously granted a schedule award for 10 percent impairment of the right arm and OWCP
erroneously failed to deduct the prior award. OWCP determined that she was entitled to an
additional schedule award of two percent impairment for the right arm. It noted that the total
amount of the schedule award for an additional 2 percent permanent impairment was $3,826.37;
however, OWCP erroneously issued a schedule award for 12 percent impairment in the amount
of $23,374.89, which resulted in a $19,548.52 overpayment. OWCP found that appellant was at
fault in creating the overpayment. It provided that “[She] was advised by letter, Form CA-181 of
November 19, 2002, that she was entitled to an award for an impairment to both the right and left
upper extremities, but that payment for such award must be reduced by monies previously paid

3

for another award to the right upper extremity (five percent, issued December 6, 1999). As such,
[appellant] had immediate knowledge that any award issued must be reduced by any award
previously paid.” OWCP also informed appellant that she had a right to a prerecoupment
hearing before an OWCP hearing representative. It instructed her to complete an enclosed
overpayment recovery form and submit supporting documentation.
On September 30, 2014 OWCP finalized the overpayment determination, finding that
appellant received a $19,548.52 overpayment of compensation, for the period December 26,
2006 to September 14, 2007, for which she was at fault. It advised that the overpayment
occurred because she was paid a schedule award for impairment to the right arm without
deducting for an award previously paid. The award was for 12 percent impairment to the right
arm issued on January 6, 2010 for the period December 26, 2006 to September 14, 2007. OWCP
determined that the award should have deducted 10 percent impairment for a previous award to
the right arm and only run through February 7, 2007. It found that appellant was at fault in
creating the overpayment. OWCP noted that she was “advised by letter, Form CA-181 of
November 19, 2002, that you were entitled to an award for an impairment to both the right and
left upper extremities, but that payment for such award must be reduced by monies previously
paid for another award to the right upper extremity” and “as such, [appellant] had immediate
knowledge that any award issued must be reduced by any award previously paid” but she
“nevertheless retained the payment for the period December 26, 2006 through
September 14, 2007.” It noted that appellant did not submit an overpayment questionnaire with
supporting documentation and therefore she was instructed to repay the debt in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.5
It is well established that benefits payable under section 8107(c)6 are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
cases is for impairment of the same member or function or different parts of the same member or
function; and (2) the latter impairment would duplicate in whole or in part the compensation paid
for the prior impairment.7

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8107(c).

7

K.H., Docket No. 13-176 (issued March 25, 2013); 20 C.F.R. § 10.404(c).

4

ANALYSIS -- ISSUE 1
OWCP accepted appellant’s condition for bilateral carpal tunnel syndrome, right wrist
tenosynovitis and authorized right carpal tunnel release. On September 27, 1999 appellant
requested a schedule award. An OWCP medical adviser found that she had five percent
impairment of the right arm for her accepted right carpal tunnel syndrome and tenosynovitis of
the right hand. On December 6, 1999 OWCP issued appellant a schedule award for five percent
right arm impairment. After appellant requested an additional award, an OWCP medical adviser
on October 26, 2002 opined that she had 10 percent impairment of the right upper extremity for
right carpal tunnel syndrome and right hand tenosynovitis and 9 percent impairment for the left
upper extremity for left carpal tunnel syndrome. As she previously received an award for five
percent right arm impairment, she was entitled to an additional award of five percent for the right
arm. On November 19, 2002 OWCP granted appellant a schedule award for 19 percent
impairment of both upper extremities. It advised, however, that 5 percent was already paid for
the right arm on December 10, 1999 such that she was entitled to 14 percent of the schedule
award.
On April 11, 2007 appellant requested an additional schedule award. In a September 24,
2009 report, Dr. Weiss opined that she had 12 percent right arm impairment. He noted 2 percent
impairment of the right wrist for de Quervain’s, 6 percent impairment for median nerve
entrapment at the right wrist and 6 percent impairment for the ulnar nerve entrapment at the right
elbow for a combined impairment of 12 percent for the right upper extremity. The medical
adviser concurred in this rating. In a January 6, 2010 decision, OWCP granted appellant 12
percent impairment for the right upper extremity.
By notice dated August 30, 2013 and finalized September 30, 2014, OWCP found a
$19,548.52 overpayment of compensation for the period December 26, 2006 to
September 14, 2007. It found that the 12 percent awarded on January 6, 2010 duplicated the
19 percent awarded on November 19, 2002 for impairment of the right arm. OWCP found that
appellant was only entitled to an additional two percent impairment. It advised that the
January 6, 2010 award for 12 percent impairment to the right arm should have deducted
10 percent impairment for a previous award to the right arm. The Board finds that the evidence
reveals that the January 6, 2010 schedule award was not totally duplicative of the prior awards.
While an overpayment may exist, it is less than what OWCP calculated.
The Board finds that OWCP did not adequately explain why the January 6, 2010 award
predicated on right wrist de Quervain’s syndrome, median nerve entrapment and ulnar nerve
entrapment for the elbow duplicated the November 19, 2002 award for right carpal tunnel
syndrome and tenosynovitis of the right hand. It is not enough simply to compare the final
impairment ratings of the two schedule awards. OWCP must examine the basis of the
impairment ratings and determine whether appellant has previously received compensation for
the impairments found.8 The American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) contemplate that there may be impairments in different
regions of the same extremity. Chapter 15 of the A.M.A., Guides specifies that the wrist and
8

A.G., Docket No. 12-563 (issued September 10, 2012).

5

elbow are two distinct regions of the upper extremity.9 In this instance, appellant did not receive
a prior award for the ulnar nerve entrapment for the elbow, for which Dr. Weiss and the medical
adviser both attributed six percent right arm impairment. In finding an overpayment of
compensation, OWCP offered no reasoning for why this portion of the January 6, 2010 schedule
award was duplicative the prior right arm schedule awards. While it appears that the portion of
the January 6, 2010 schedule award attributable to the right wrist duplicated impairment from
prior awards, there is no evidence establishing that impairment attributed to the right elbow
duplicated any previous impairment for which appellant received schedule awards.
The Board finds that OWCP has established fact of overpayment but the amount of the
overpayment must be recalculated to take into consideration the nonduplicative right ulnar nerve
entrapment award for the elbow. The record does not support OWCP’s finding that appellant
received an overpayment of $19,548.52 as a result of the January 6, 2010 schedule award.
Therefore, the Board will set aside and remand OWCP’s September 30, 2013 decision with
regard to the amount of any overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
An overpayment in compensation shall be recovered by OWCP unless incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of FECA or would be against equity and good conscience.10 Conversely, a
waiver of recovery is not possible if the claimant is at fault in the creation of the overpayment.11
A claimant who has done any of the following will be found to be at fault with respect to
creating an overpayment: (1) made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; (2) failed to provide information which he or she
knew or should have known to be material; or (3) accepted a payment which he or she knew or
should have known to be incorrect. Whether or not an individual was at fault depends on the
circumstances surrounding the overpayment.12
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or should have known to be incorrect. The Board finds,
however, that she was without fault.
OWCP’s procedures regarding fault determinations provide that, where an overpayment
results from OWCP’s error in calculating the length and/or percentages of a schedule award of
compensation, it should always result in a finding of without fault unless it is shown that the

9

A.M.A., Guides 384, Figure 15-1, Upper Extremity Regions.

10

5 U.S.C. § 8129(b); Linda E. Padilla, 45 ECAB 768 (1994).

11

Donald L. Overstreet, 54 ECAB 678 (2003); Gregg B. Manston, 45 ECAB 344 (1994).

12

20 C.F.R. § 10.433.

6

individual had actual knowledge of the calculation error.13 Here, the evidence establishes that
appellant was not aware of the calculation error by OWCP. OWCP has not established that she
accepted a payment which she knew or should have known to be incorrect. Therefore, appellant
is not at fault in creating an overpayment of compensation with regard to OWCP’s erroneous
payment of schedule award compensation. The finding of fault is set aside.
CONCLUSION
The Board finds that this case is not in posture for decision as to the amount of the
overpayment of compensation. OWCP did not establish that appellant was at fault in creating an
overpayment of compensation with regard to the erroneous payment of schedule award
compensation. Upon return of the case record, it shall further develop the amount of the
overpayment and evaluate whether she is entitled to waiver. Following this and such other
development as it deems necessary, OWCP shall issue an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2013 decision of the Office of
Workers’ Compensation Programs is hereby set aside and remanded for further development in
accordance with this decision of the Board.
Issued: July 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200(5)(b)(1)(b) (June 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
BORDER PATROL TUCSON SECTOR,
Tucson, NM, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1257
Issued: January 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 16, 2009 appellant filed a timely appeal of a March 25, 2009 merit decision of
the Office of Workers’ Compensation Programs which found that he had no more than seven
percent permanent impairment of the left leg for which he received a schedule award. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue on appeal is whether the Office properly determined that appellant had no more
than seven percent permanent impairment of the left lower extremity for which he received a
schedule award.
FACTUAL HISTORY
On November 27, 2007 appellant, then a 35-year-old border patrol trainee, filed a claim
alleging that on November 21, 2007 he injured his left knee during defensive tactics training.

The Office accepted appellant’s claim for tear of the medial meniscus of the left knee and sprain
of the left lateral collateral ligament and authorized arthroscopic surgery which was performed
on January 4, 2008. Appellant stopped work on December 6, 2007 and returned to full-time
limited duty on October 17, 2008. Appropriate compensation benefits were paid.
Appellant was treated by Dr. Roger Hill, Board-certified in emergency medicine, from
November 21 to 29, 2007, for a left knee injury which occurred while at work. Dr. Hill
diagnosed left knee sprain, rule out meniscal tear. On November 29, 2007 appellant underwent a
magnetic resonance imaging (MRI) scan of the left knee which revealed a tiny tear in the
posterior horn of the medial meniscus, high-grade tear through the mid-fibers of the anterior
cruciate ligament, large knee joint effusion, prepatellar bursitis and deep intrapatellar bursitis.
Appellant sought treatment from Dr. Scott V. Slagis, a Board-certified orthopedist, from
December 6, 2007 to January 3, 2008, who diagnosed anterior cruciate ligament tear and
meniscus tear and recommended surgery. On January 4, 2008 Dr. Slagis performed a left knee
anterior cruciate ligament reconstruction using tibia anterior allograft and diagnosed anterior
cruciate ligament tear. He noted in reports dated January 17 to March 13, 2008 that appellant
was progressing well postoperatively and could return to work limited duty on January 17, 2008.
On April 23, 2008 the Office referred appellant for a second opinion to Dr. Jon T. Abbott,
a Board-certified orthopedist, for a determination of whether appellant has residuals of his
accepted conditions and whether he had permanent impairment attributable to his accepted
conditions.
In a May 13, 2008 report, Dr. Abbott noted a history of appellant’s work-related
condition and treatment. He noted examination findings of the left knee of normal gait, positive
Lachman test, healed arthroscopic portals, no joint line or patellar tenderness, sensory
examination was intact, no visible atrophy and the motor examination was normal in all motor
groups. Dr. Abbott diagnosed torn anterior cruciate ligament of the left knee, status post
reconstruction surgery. He noted minimal lack of terminal extension on examination and mild
residual laxity to Lachman testing without a pivot shift. Dr. Abbott noted that there was no
evidence of symptomatic instability or pivot shift and opined that the left knee reconstruction
was stable. He recommended continued physical therapy and advised that appellant could return
to modified duties at work subject to restrictions.
Appellant continued to submit reports from Dr. Slagis dated May 16 to December 6, 2008
who noted appellant was progressing well with no instability in the left knee. Dr. Slagis
anticipated appellant reaching maximum medical improvement in three months. In an
October 9, 2008 report and a November 20, 2008 attending physician’s report, he advised that
appellant reached maximum medical improvement and could return to work without restrictions.
Dr. Slagis advised that appellant’s knee was stable with no abnormalities. He opined that
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment1 (A.M.A., Guides) appellant had 17 percent permanent impairment due to his
anterior cruciate ligament tear.
On November 24, 2008 appellant filed a claim for a schedule award.
1

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

2

On February 19, 2009 appellant’s case record was referred to an Office medical adviser,
who noted in a report dated February 27, 2009 that in accordance with A.M.A., Guides appellant
sustained a seven percent impairment of the left lower extremity.2 The medical adviser
referenced the May 13, 2008 report from Dr. Abbott who noted findings of residual laxity and
mild residual laxity to Lachman testing. He also noted that Dr. Slagis’ recent reports indicated
that the knee was stable. The medical adviser opined that, in accordance with Table 17-33 of the
A.M.A., Guides, appellant had a stable anterior cruciate ligament reconstruction. He noted that
the postoperative notes did not indicate moderate or severe cruciate ligament instability.
Therefore, the medical adviser opined that the Office referrals findings of mild residual laxity
would equate to seven percent impairment of the left leg. He noted that Dr. Slagis recommended
17 percent impairment for moderate cruciate laxity; however, this finding was not supported by
the medical record. The medical adviser noted that maximum medical improvement was reached
on October 9, 2008.
On March 25, 2009 the Office granted appellant a schedule award for seven percent
permanent impairment of the left lower extremity. The period of the award was from October 9,
2008 to February 27, 2009.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5
ANALYSIS
Appellant asserts that he is entitled to 17 percent permanent impairment of the left lower
extremity in accordance with Dr. Slagis’ opinion. The Office accepted appellant’s claim for tear
of the medial meniscus of the left knee and sprain of the left lateral collateral ligament and
authorized arthroscopic surgery which was performed on January 4, 2008.
The Board has carefully reviewed Dr. Slagis’ reports and notes that he did not adequately
explain how his determination was reached in accordance with the relevant standards of the
A.M.A., Guides.6 In reports dated October 9 and November 20, 2008, Dr. Slagis determined that
2

Id. at 546-47, Table 17-33.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

6

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

3

appellant sustained 17 percent permanent impairment due to an anterior cruciate ligament tear.
While he referenced the A.M.A., Guides, he did not provide his reasoning or calculations in
support of this impairment determination. For example, Dr. Slagis did not cite to tables or charts
in the A.M.A., Guides to support his impairment rating and failed to provide findings upon
physical examination for cruciate ligament laxity to support 17 percent impairment rating.
Therefore the Board finds that Dr. Slagis did not properly follow the A.M.A., Guides. An
attending physician’s report is of little probative value where the A.M.A., Guides, are not
properly followed.7
In a February 27, 2009 report, the medical adviser properly applied the A.M.A., Guides,
to the medical evidence of record and found that appellant had impairment of seven percent of
the left lower extremity in accordance with Table 17-33 of the A.M.A., Guides.8 He referenced a
May 13, 2008 report from Dr. Abbott who noted findings of residual laxity and mild residual
laxity to Lachman testing. He also noted that Dr. Slagis’ recent reports stated that the knee was
stable. The medical adviser opined that, in accordance with Table 17-33 of the A.M.A., Guides,
appellant had a stable anterior cruciate ligament reconstruction. He indicated that postoperative
notes did not reveal findings of moderate or severe cruciate ligament instability and opined that
Dr. Abbott’s findings of mild residual laxity and Dr. Slagis’ recent reports supported mild laxity
only and a seven percent impairment of the left lower extremity. Although the medical adviser
noted that Dr. Slagis recommended 17 percent impairment, which equates to moderate cruciate
laxity, he opined that such a finding was not substantiated by the medical record. The medical
adviser noted maximum medical improvement was reached on October 9, 2008. This evaluation
conforms to the A.M.A., Guides and establishes that appellant has no more than seven percent
impairment of the left lower extremity.
The Board finds that, under the A.M.A., Guides, appellant has no more than seven
percent permanent impairment of the left lower extremity.
On appeal, appellant asserts that he was entitled to 17 percent permanent impairment of
the left leg pursuant to Dr. Slagis’ evaluation. As noted above, however, Dr. Slagis, in reports
dated October 9 and November 20, 2008, failed to explain pursuant to the A.M.A., Guides how
he determined this degree of impairment. This failure to explain how the impairment was
determined pursuant to the A.M.A., Guides is particularly important since these reports also
found the knee to be stable with no abnormalities.
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than
seven percent permanent impairment of the left leg for which he received a schedule award.

7

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
8

See supra note 2.

4

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0563
Issued: February 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 23, 2018 appellant filed a timely appeal from a December 14, 2017 merit
decision and a January 9, 2018 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.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish plantar
fasciitis causally related to the accepted factors of his federal employment; and (2) whether OWCP

1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. By order dated November 20, 2018, the Board, after exercising its
discretion, denied appellant’s request for an oral argument, finding that the arguments on appeal could adequately be
addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No.
18-0563 (issued November 20, 2018).

properly denied appellant’s request for reconsideration of the merits of his claim pursuant to 5
U.S.C. § 8128(a).
FACTUAL HISTORY
On July 7, 2016 appellant, then a 56-year-old building equipment mechanic, filed an
occupational disease claim (Form CA-2) alleging that he developed plantar fasciitis as a result of
factors of his federal employment. He noted that he first became aware of his condition and
realized its relationship to his federal employment on May 7, 2016. Appellant continued to work
in a light-duty capacity.
By development letter dated July 12, 2016, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the medical and factual evidence
necessary to establish his claim and provided a questionnaire for him to complete and return.
OWCP afforded appellant 30 days to submit the requested information.
On July 22, 2016 OWCP received appellant’s response to its development letter. Appellant
described his employment duties as “heavy lifting, working off ladders, lifts, metal work, dock
levelers, case moves at stations, rooftop and split air conditioning units for filter routes, spring
cleaning of coils, compression replacements, etc.” He also indicated that his job required walking
on a nearly one million square foot floor. Appellant related that he had informed his supervisor
that his foot was giving him problems, but he was continually assigned work involving heavy
lifting, working off lifts, squatting, and mainly installing copper air lines in the ceiling.
In an August 2, 2016 letter, D.L., acting field maintenance manager at the employing
establishment, related that while working in a large facility appellant was required to walk while
carrying tools or equipment to different work environments. He explained that building
maintenance employees had many avenues to assist them in navigating the large facility, such as
golf carts, bicycles, and vehicles for operating outside. D.L. indicated that appellant had used
these vehicles to travel and assist him with his assigned duties. He further noted that appellant had
a work truck available at all times for transport to a work site, which appellant had utilized many
times. D.L. reported that due to the nature of building maintenance, employees’ daily job
assignments would include such activities as standing in the shop or work area for an extended
period of time. He further related that appellant’s manager was not aware of appellant’s discomfort
when performing these duties, and therefore, no changes in work assignment were made.
OWCP also received a position description for an equipment mechanic.
By decision dated August 15, 2016, OWCP denied appellant’s occupational disease claim.
It accepted his duties as a building mechanic, but denied his claim because the medical evidence
of record failed to establish a diagnosed condition causally related to the accepted factors of his
federal employment.
On October 17, 2016 appellant requested reconsideration. In statements dated October 8
and November 2, 2016, he reiterated his belief that walking at work in a large facility and doing
building repairs caused his foot conditions. Appellant also described the medical treatment he had
received.

2

OWCP received a July 28, 2016 work status note by Dr. Kyle Fanning, a Board-certified
family physician, who related that he had treated appellant on July 28, 2016 and indicated that
appellant could return to work.
Appellant was also treated by Dr. Gordon Bean, a podiatrist, who related in an October 7,
2016 report that appellant was examined for complaints of right heel pain. He reviewed appellant’s
history and conducted a physical examination. Upon examination, Dr. Bean reported significant
pain to palpation of appellant’s plantar medial tubercle of the heel, noting tenderness extending
along the medial slip of the plantar fascia. Neurological examination showed no evidence of
posterior tibial, superficial peroneal, or sural nerve pathology. Dr. Bean diagnosed plantar fascial
fibromatosis, right foot calcaneal spur, and right foot pain.
In disability and work excuse slips dated October 7, 2016, Dr. Bean indicated that appellant
could not work from October 7 to 17, 2016 due to plantar fasciitis.
By decision dated November 25, 2016, OWCP denied modification of the August 15, 2016
decision. It found that the medical evidence submitted was insufficient to establish a diagnosed
condition causally related to factors of his employment.
On December 13, 2016 appellant requested reconsideration. In statements dated
December 7, 2016 and May 12, 2017, he provided further details regarding the work duties that he
believed contributed to his right foot, knee, and hip pain.
In a November 30, 2016 report, Dr. Bean conducted a follow-up examination of right heel
pain. He related: “patient believes that his painful heel condition was the result of the physical
demands related to his work.” Dr. Bean indicated that appellant walked many miles each day at
work due to the nature of his responsibilities. He provided examination findings and diagnosed
plantar fascial fibromatosis, right foot calcaneal spur, and right foot pain. Dr. Bean opined: “the
physical demands required at work have resulted in an over use injury to his heel, evidenced by
the heel spur noted on his radiographs and the pain associated with palpation or ambulation of the
insertional area of the plantar fascia, plantar medial tubercle of the heel.” He completed a duty
status report (Form CA-17) and indicated that appellant could work with restrictions.
OWCP received a December 5, 2016 statement by W.B., a coworker and mail processing
equipment mechanic, who related that he witnessed appellant limping and/or favoring his right
foot at work between the first week of June and the last week of August. W.B. described other
examples when he witnessed appellant having difficulty performing his duties.
By decision dated August 13, 2017, OWCP denied modification of the November 26, 2016
decision. It found that the medical evidence established a diagnosis of plantar fasciitis, but denied
his claim because the medical evidence failed to establish that his foot condition resulted from his
accepted employment factors.
On September 15, 2017 appellant requested reconsideration.
OWCP received an April 17, 2017 report by Dr. Bean who related that appellant continued
to have right heel pain “stemming from a work[-]related overuse injury that started back in May of

3

2016.” Dr. Bean reported continued pain to palpation of appellant’s plantar heel area and
diagnosed plantar fascial fibromatosis and right foot pain.
By decision dated December 14, 2017, OWCP denied modification of the August 13, 2017
decision. It found that Dr. Bean’s statement on causal relationship did not include the specific job
duties which caused or contributed to appellant’s foot condition.
On January 3, 2018 appellant requested reconsideration. No other evidence was received.
By decision dated January 9, 2018, OWCP denied reconsideration of the merits of
appellant’s claim. It found that appellant had not met the requirement of 5 U.S.C. § 8128(a) to
warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
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 from work for which compensation is claimed is causally related
to that employment injury.5
In an occupational disease claim, a claimant’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
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.8

3

Supra note 1.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish plantar fasciitis
causally related to the accepted factors of his federal employment.
Appellant alleged that he developed plantar fasciitis as a result of his employment duties
as a building mechanic. OWCP accepted that his employment duties required extensive walking
at the employing establishment premises while carrying equipment. The record also included a
medical diagnosis of right plantar fasciitis. However, OWCP denied appellant’s claim because it
determined that appellant had not submitted a rationalized medical report sufficient to establish
causal relationship between his diagnosed foot condition and factors of his federal employment.
Appellant was treated by Dr. Bean for complaints of right heel pain. In an initial October 7,
2016 report, Dr. Bean reported significant pain to palpation of appellant’s plantar medial heel and
tenderness extending along the medial slip of the plantar fascia. He diagnosed plantar fascial
fibromatosis, right foot calcaneal spur, and right foot pain. In a November 30, 2016 report,
Dr. Bean indicated that appellant walked many miles each day at work due to the nature of his
responsibilities. He opined: “the physical demands required at work have resulted in an over use
injury to his heel, evidenced by the heel spur noted on his radiographs and the pain associated with
palpation or ambulation of the insertional area of the plantar fascia, plantar medial tubercle of the
heel.” Dr. Bean reiterated in an April 17, 2017 report that appellant’s right heel pain stemmed
“from a work[-]related overuse injury.”
Although Dr. Bean provided an opinion on causal relationship, the Board finds that he did
not provide adequate medical rationale to establish causal relationship. His statement on causation
failed to provide sufficient explanation as to the mechanism of injury pertaining to this
occupational disease claim, as alleged by appellant.9 Specifically, the Board notes that Dr. Bean
did not discuss what building mechanic duties would cause or aggravate his plantar fasciitis
condition.10 Without explaining how physiologically the movements involved in any specific
employment duties caused or contributed to appellant’s diagnosed condition, Dr. Bean’s opinion
on causal relationship is of limited probative value and fails to meet appellant’s burden of proof.11
In a July 28, 2016 work status note, Dr. Fanning related that he had treated appellant on
July 28, 2016 and that appellant could return to work. He did not, however, offer an opinion or
explanation on the cause of appellant’s diagnosed right foot condition. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.12 This report, therefore, is also
insufficient to establish appellant’s claim.

9

M.M., Docket No. 15-0607 (issued May 15, 2015).

10

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

11

J.I., Docket No. 18-0286 (issued September 17, 2018); M.M., supra note 9.

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation. Such a relationship must be
shown by rationalized medical evidence of causal relationship based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.13 Because appellant has failed to provide sufficient medical evidence to establish that
his plantar fasciitis was causally related to the accepted factors of his federal employment, he has
not met his burden of proof to establish his occupational disease 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.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.15
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.16 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.17 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.18
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).
The issue presented on appeal was whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
13

L.J., Docket No. 17-1554 (issued February 5, 2018); Patricia J. Bolleter, 40 ECAB 373 (1988).

14

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

15
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

20 C.F.R. § 10.607(a).

17

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

18

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

6

In his application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, and he did not advance a new and relevant legal argument not
previously considered. Consequently, he is not entitled to review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).19 Following
OWCP’s most recent August 13, 2017 decision, appellant requested reconsideration on
January 3, 2018. OWCP did not receive additional evidence with his reconsideration request.
Accordingly, the Board finds that appellant has not submitted relevant and pertinent new evidence
not previously considered by OWCP. The Board finds, therefore, that appellant is not entitled to
review of the merits of his claim based on the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3).20
As appellant’s application for review did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied his
request for reconsideration without reopening the case for a review on the merits.21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish plantar fasciitis
causally related to the accepted factors of his federal employment. 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).

19

T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued December 9, 2008).

20

P.L., Docket No. 18-1145 (issued January 4, 2019).

21

R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2018 and December 14, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 21, 2019
Washington, DC

Christopher J. Godfrey, 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

8