United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
DISTRIBUTION DEPOT NORFOLK,
Fort Belvoir, VA, Employer
__________________________________________

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

Docket No. 10-1263
Issued: March 3, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 2, 2010 appellant filed a timely appeal from two merit decisions dated
November 24, 2009 of the Office of Workers’ Compensation Programs regarding his schedule
award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUE
The issue is whether appellant has more than four percent impairment of the right lower
extremity or more than three percent impairment to both the right and left upper extremities, for
which he received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated August 20, 1999, the
Board affirmed an Office decision denying appellant’s request for reimbursement of chiropractic

expenses.1 By decision dated June 4, 2007, the Board affirmed Office decisions dated April 6
and August 29, 2006 which found appellant had not established that he had any impairment of
his upper extremities or that he had greater than an eight percent impairment of his left leg.2 The
facts and the circumstances of the case as set out in the Board’s prior decisions are incorporated
herein by reference.3
On August 9, 2008 appellant requested a schedule award. In an August 5, 2008 report,
Dr. Antonio Quidgley-Nevares, a physiatrist, stated that appellant presented for a regularly
scheduled follow-up and requested an impairment rating. On examination, appellant had
decreased range of motion in the cervical spine in all planes secondary to pain and decreased
sensation in the bilateral upper extremities and the left lower extremity globally.
Dr. Quidgley-Nevares noted that appellant reached maximum medical improvement prior to
March 7, 2005. Under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), appellant had a diagnosisrelated estimate (DRE) category 2 lumbosacral spine impairment with five to eight percent
whole body impairment per Table 15.3 and a DRE category 2 cervical spine impairment with
five to eight percent whole body impairment the cervical spine per Table 15.5.
In a November 25, 2008 report, Dr. Felix M. Kirven, a Board-certified orthopedic
surgeon, noted decreased sensation in the L5 distribution of the right lower extremity and
decreased sensation in the C6-C7. There was no mention of any sensory impairment in the left
lower extremity. The motor examination showed normal strength in both lower extremities and
upper extremities.
On January 10, 2009 an Office medical adviser reviewed the medical evidence and found
it was insufficient to support greater impairment. He advised that the eight percent whole body
impairment could not be converted into left leg impairment and was not appropriate for
impairment rating purposes.
In a February 27, 2009 letter, the Office advised appellant of the information necessary to
support a schedule award.
In a March 10, 2008 form report, Dr. Kirven advised that appellant reached maximum
medical improvement on March 8, 2008. He indicated that the C6-C7 nerve roots were affected
such that appellant had 70 percent loss of the upper extremities due to sensory deficit and no
impairment of the upper extremities due to loss of strength. Progress reports from Dr. Kirven
noted decreased sensation in S1 dermatome bilaterally and decreased sensation in the C6-C7
dermatome.
On August 12, 2009 an Office medical adviser reviewed a statement of accepted facts
and noted that appellant received compensation for eight percent impairment of the left leg. The
1

Docket No. 97-2072 (issued August 20, 1999).

2

Docket No. 07-39 (issued June 4, 2007).

3

The Office accepted the claim for low back strain, herniated disc L5-S1, cervical strain and lumbar
radiculopathy.

2

reports indicated there was decreased sensation in the C6-C7 nerve root and decreased sensation
in the L5 distribution in the right lower extremity. The Office medical adviser stated that there
was no mention of any deficit in the left lower extremity and strength was normal in the upper
and lower extremities. Under the sixth edition of the A.M.A., Guides, he opined that decreased
sensation in the L5 distribution in the right lower extremity resulted in four percent right leg
impairment. The Office medical adviser noted under Table 16-12, page 535, that appellant was
placed in a Class 1 category with four percent being the default percentage for the sciatic nerve.
As to the C5-C6 impairment, Table 15-20, page 434 a Class 1 category resulted in a default
impairment of three percent for both the right upper extremity and the left upper extremity. The
Office medical adviser opined that the date of maximum medical improvement was January 8,
1997, one year from the date of injury.
In a November 24, 2009 decision, the Office granted a schedule award for four percent
permanent impairment to the right leg. The period of the award ran from July 12 to
September 30, 2005, for 11.52 weeks of compensation.4 In a separate November 24, 2009
decision, the Office awarded appellant three percent permanent impairment to the left arm and
three percent permanent impairment to the right arm. The award ran from October 1, 2005 to
February 9, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. The method used in making such a determination is a matter that rests within the
sound discretion of the Office.7 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.8 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule
awards.9

4

The Office adjusted the starting date of the schedule award to July 12, 2005 as appellant received disability
compensation through July 11, 2005.
5

5 U.S.C. §§ 8101-8193.

6

20 C.F.R. § 10.404.

7

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

8

Ronald R. Kraynak, 53 ECAB 130 (2001).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

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The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS).10 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).11
After obtaining all necessary medical evidence, the file should be routed to the Office
medical adviser for a rationalized opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides.12
ANALYSIS
The Office accepted that appellant’s January 8, 1996 slip and fall caused a low back
strain, herniated disc L5-S1, cervical strain and lumbar radiculopathy. On August 9, 2008
appellant requested a schedule award. In an August 5, 2008 report, Dr. Quidgley-Nevares found
that appellant had a DRE category 2 lumbosacral spine impairment with five to eight percent
whole body impairment per Table 15.3 and a DRE category 2 cervical spine impairment with
five to eight percent whole body impairment the cervical spine per Table 15.5. The Board notes
that neither the Act nor the regulations authorize a schedule award for the permanent impairment
of the spine, neck or back.13 Thus, the Office did not accept the rating by Dr. Quidgley-Nevares
because a claimant may not receive a schedule award for impairment to the spine or for
impairment of the whole person. Effective May 1, 2009, all ratings must be based on the sixth
edition of the A.M.A., Guides. The rating by Dr. Quidgley-Nevares also predated the Office’s
use of the sixth edition of the A.M.A., Guides. On March 10, 2008 Dr. Kirven noted decreased
sensation in S1 dermatome bilaterally and decreased sensation in the C6-C7 dermatome. He
opined that appellant had 70 percent loss of the upper extremities due to sensory deficit in the
C6-C7 nerve root. However, Dr. Kirven did not adequately explain how he made this rating
based on the A.M.A., Guides. For these reasons, these reports are of diminished probative value.
The Office medical adviser reviewed the medical record. He found that appellant had
four percent right lower extremity impairment according to Table 16-12 of the A.M.A., Guides.
The Office medical adviser made general reference to the information at hand but did not explain
adequately how his impairment ratings conform to the A.M.A., Guides. The sixth edition of the
A.M.A., Guides provides a diagnosis-based method of evaluation. It requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE) and clinical studies
(GMCS).14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The Office medical adviser identified only the table used and class rating without providing any
10

A.M.A., Guides 494-531.

11

Id. at 521.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

5 U.S.C. § 8101(19); Timothy J. McGuire, 34 ECAB 189 (1982).

14

Supra note 10.

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explanation of the diagnosis category or evaluation of the grade modifiers. As noted, grade
modifiers should be considered for functional history, physical examination and clinical studies
and these grade modifiers can change the extent of a given impairment rating.15 Consequently,
the Board finds that the opinion of the Office medical adviser requires clarification.
The Office medical adviser further determined that appellant had a three percent
permanent impairment to each arm under Table 15-20 due to C5-C6 impairment. However, the
medical records reflect that the C6-C7 nerve root was affected with decreased sensation. The
Office medical adviser did not specify the medical evidence he relied upon in finding that
appellant had a permanent impairment to the upper extremities. Office procedures and Board
precedent require that the record contain a medical report with a detailed description of the
impairment.16 This description must be in sufficient detail so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its resulting restrictions
and limitations.17 There is no medical report clearly describing permanent upper extremity
impairments to either the left or right arms due to appellant’s employment injury.
The Office medical adviser did not adequately explain how he applied the sixth edition of
the A.M.A., Guides in rating impairment in this case. The sixth edition of the A.M.A., Guides
does not provide a separate mechanism for rating spinal nerve injuries as extremity impairment.
Recognizing that certain jurisdictions, such as under the Act, mandate ratings for extremities and
preclude ratings for the spine, the A.M.A., Guides has offered an approach to rating spinal nerve
impairments consistent with sixth edition methodology.18 The Office has adopted this approach
for rating impairment to the upper or lower extremities caused by a spinal injury.19 The Board
will remand the case for further development of the evidence to determine the extent of
appellant’s permanent impairment to the right leg and both arms. Following such development
as deemed necessary, the Office shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

15

Id. at 515-18.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(c)(1) (August 2002); Peter C . Belkind, 56 ECAB 580 (2005).
17

Vanessa Young, 55 ECAB 575 (2004).

18

Rating Spinal Nerve Extremity Impairment Using the sixth edition, the A.M.A., Guides Newsletter (A.M.A.,
Guides Chicago, IL), July/August 2009.
19

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) (Exhibit
1, 4).

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ORDER
IT IS HEREBY ORDERED THAT the two November 24, 2009 decisions of the Office
of Workers’ Compensation Programs are set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: March 3, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 12-1493
Issued: January 11, 2013

Case Submitted on the Record

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

JURISDICTION
On July 3, 2012 appellant, through his attorney, filed a timely appeal from a February 15,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
claim for wage-loss compensation and an April 2, 2012 nonmerit decision denying his request
for reconsideration. 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 met his burden of proof to establish entitlement to
wage-loss compensation for total disability for the period May 4 through June 4, 2011; and
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 2, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

(2) whether OWCP properly refused to reopen appellant’s case for further reconsideration of the
merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s attorney contends that OWCP’s April 2, 2012 decision was
contrary to fact and law.
FACTUAL HISTORY
OWCP accepted that appellant, then a 31-year-old medical supply technician, sustained a
left foot and ankle contusion, left ankle sprain and left leg abrasion in the performance of duty on
June 8, 2010.
In a May 4, 2011 report, Dr. Richard E. Grant, a Board-certified orthopedic surgeon,
reviewed appellant’s medical history and ordered a bone scan of the left ankle to determine
whether or not he had chronic inflammation in the region. He doubted that appellant had
regional pain syndrome, but suspected the majority of his issues were related to the cystic
degeneration and chondromalacia. Dr. Grant noted that issues relevant to appellant’s partially
torn deltoid ligament also needed to be addressed.
In a May 4, 2011 report, Dr. Grant diagnosed left ankle sprain with left ankle arthritis.
He indicated that appellant sprained his left ankle at work on June 8, 2010. Dr. Grant opined that
appellant was totally disabled for the period May 4 through June 4, 2011 and would be able to
resume light-duty work on August 4, 2011 with restrictions.
On May 27, 2011 appellant, through his attorney, filed a claim for wage-loss
compensation (Form CA-7) for the period May 4 through June 4, 2011.
In a June 6, 2011 letter, OWCP notified appellant of the deficiencies of his claim and
afforded 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a February 14, 2011 report by Dr. Patrick J. McIntyre, a Boardcertified anesthesiologist, who indicated that appellant demonstrated signs of complex regional
pain syndrome of the left lower extremity and was a candidate for a lumbar sympathetic block.
By decision dated August 18, 2011, OWCP denied the claim for compensation finding
that the medical evidence submitted was not sufficient to establish that appellant was disabled for
the period May 4 through June 4, 2011 causally related to the June 8, 2010 employment injury.
On August 25, 2011 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative and submitted a September 2, 2011 x-ray of the left ankle which
revealed small calcification adjacent the medial malleolus without cortical disruption.
An oral hearing was held via telephone before an OWCP hearing representative on
December 8, 2011. Appellant provided testimony and the hearing representative held the case
open for 30 days for the submission of additional evidence.

2

Subsequently, appellant submitted a June 8, 2011 bone scan report which revealed
increased tracer deposition along the medial aspect of the left ankle in all three phases and a
June 15, 2011 progress report from Dr. Grant.
In a January 6, 2012 report by Dr. Shana Miskovsky, a Board-certified orthopedic
surgeon, who diagnosed left ankle sprain, work-related injury in 2010 with history of chronic
regional pain syndrome and posterior tibial tendon damage related to his ankle sprain. She
indicated that appellant was having trouble doing his restricted duty.
By decision dated February 15, 2012, an OWCP hearing representative affirmed the
August 18, 2011 decision.
On February 27, 2012 appellant, through his attorney, requested reconsideration and
resubmitted a bone scan report dated June 8, 2011 and reports from Dr. Grant dated May 4 and
June 15, 2011.
By decision dated April 2, 2012, OWCP denied appellant’s request for reconsideration of
the merits finding that he did not submit pertinent new and relevant evidence and did not show
that OWCP erroneously applied or interpreted a point of law not previously considered by
OWCP.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

See William A. Archer, 55 ECAB 674 (2004).

7

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

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receiving at the time of injury, has no disability as that term is used under FECA.8 The Board
will not require OWCP to pay compensation for disability in the absence of any medical
evidence directly addressing the particular period of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.9
ANALYSIS -- ISSUE 1
The Board finds appellant is not entitled to wage-loss compensation for total disability
for the period May 4 through June 4, 2011.
In his reports, Dr. Grant diagnosed left ankle sprain with left ankle arthritis. He indicated
that appellant sprain his left ankle at work on June 8, 2010 and opined that appellant was totally
disabled for the period May 4 through June 4, 2011. Although Dr. Grant opined that appellant
was totally disabled, he failed to provide a rationalized medical explanation as to how the
residuals of the June 8, 2010 employment injury prevented him from continuing in his federal
employment.
Appellant also submitted a February 14, 2011 report by Dr. McIntyre and a January 6,
2012 report by Dr. Miskovsky. The reports of Drs. McIntyre and Miskovsky are of diminished
probative value as they fail to offer any probative medical opinion on whether appellant was
disabled on the dates at issue due to his accepted conditions.10
The June 8, 2011 bone scan report and September 2, 2011 x-ray are diagnostic in nature
and therefore do not address causal relationship.
As appellant has not submitted sufficient rationalized medical explanation as to how the
residuals of the employment injury prevented him from continuing in his employment, he has not
met his burden of proof to establish entitlement to wage-loss compensation for the period
claimed.
On appeal appellant’s attorney contends that OWCP’s April 2, 2012 decision was
contrary to fact and law. For the reasons stated above, the Board finds the attorney’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.

8

See Merle J. Marceau, 53 ECAB 197 (2001).

9

See Fereidoon Kharabi, supra note 7.

10

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., Docket No. 09-337 (issued August 4, 2009).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.11 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).12
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.13 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.14 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.15 The Board has held that the submission of
evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.16
ANALYSIS -- ISSUE 2
In support of his February 27, 2012 reconsideration request, appellant resubmitted a bone
scan report dated June 8, 2011 and reports from Dr. Grant dated May 4 and June 15, 2011. As
these submissions repeat evidence or are duplicative of evidence already in the case record and
reviewed by OWCP, the Board finds that they do not constitute relevant and pertinent new
evidence. Therefore, appellant has not established a basis for reopening his case.17
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by the OWCP. Because he only submitted repetitive and duplicative evidence with
his request for reconsideration, the Board finds that he did not meet any of the necessary
requirements and is not entitled to further merit review.18
11

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
12

See Annette Louise, 54 ECAB 783, 789-90 (2003).

13

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

14

20 C.F.R. § 10.607(a).

15

Id. at § 10.608(b).

16

See Eugene F. Butler, 36 ECAB 393 (1984).

17

See D.K., 59 ECAB 141 (2007).

18

See L.H., 59 ECAB 253 (2007).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
wage-loss compensation for total disability for the period May 4 through June 4, 2011. The
Board further finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 2 and February 15, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Plantation, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0657
Issued: April 3, 2017

Case Submitted on the Record

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

JURISDICTION
On January 30, 2015 appellant, through his representative, filed a timely appeal from a
January 2, 2015 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 over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

Following the issuance of the January 2, 2015 OWCP decision, appellant submitted new evidence. The Board is
precluded from reviewing evidence which was not before OWCP at the time it issued its final decision. See 20
C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant established more than 32 percent permanent impairment to
the right upper extremity, for which he previously received a schedule award.
On appeal, appellant’s representative contends that OWCP incorrectly calculated the
schedule award.
FACTUAL HISTORY
OWCP accepted that appellant, a 47-year-old special agent, sustained a thoracic herniated
nucleus pulposus (HNP) at T6-7, a right shoulder rotator cuff tear, and a right wrist triangular
fibrocartilage complex (TFCC) tear as a result of climbing over an iron fence while executing a
federal arrest warrant on January 6, 2010.4 It authorized right shoulder surgery, which he
underwent on March 29, 2011.
In a November 7, 2011 letter, OWCP advised appellant that he might be eligible for
schedule award compensation and requested additional evidence in support of an award,
including a medical report containing a detailed description of his permanent impairment based
on the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides).5
On December 27, 2011 appellant, through his representative, filed a claim for a schedule
award (Form CA-7).6
In a December 1, 2011 report, Dr. Samy Bishai, an orthopedic surgeon, determined that
appellant had reached maximum medical improvement on October 25, 2011 the date of his last
examination. Regarding appellant’s shoulder injury, he found that appellant suffered reduction
in his range of motion (ROM) in all movements of the right shoulder joint. According to his
physical examination, appellant had flexion of 110 degrees, backward extension of 30 degrees,
abduction of 110 degrees, adduction of 20 degrees, external rotation of 60 degrees, and internal
rotation of 30 degrees. Dr. Bishai concluded that appellant had 12 percent permanent
impairment of the right upper extremity, under Table 15-34,7 on page 475, of the sixth edition of
the A.M.A., Guides. Regarding appellant’s right wrist injury, he assigned appellant to class 1

4

OWCP previously accepted claims under File No. xxxxxx787 (where appellant sustained cervical and thoracic
strains while lifting and moving boxes on April 23, 2004) and File No. xxxxxx097 (where appellant sustained a
chest contusion, right shoulder tendinitis, and cervical and thoracic strains as a result of falling from a forklift while
working undercover).
5

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

6

Appellant, through his representative, filed claims for wage-loss compensation (Form CA-7) for the periods
July 1 to 23, 2013 and February 23 to March 8, 2014. By decisions dated August 22, 2013 and April 25, 2014,
OWCP denied the claims as the medical evidence was insufficient to establish that he was disabled during the
periods claimed.
7

Table 15-34, page 475, of the sixth edition of the A.M.A., Guides is entitled Shoulder Range of Motion.

2

and grade E for his TFCC tear. Utilizing Table 15-3,8 on page 396, of the A.M.A., Guides,
Dr. Bishai concluded that appellant had 10 percent permanent impairment of the right upper
extremity. He also provided three percent impairment rating for ulnar nerve entrapment.
Dr. Bishai found that appellant had a combined total of 25 percent permanent impairment of the
right upper extremity (12 percent + 10 percent + 3 percent).
By decision dated February 7, 2012, OWCP granted appellant a schedule award for 15
percent permanent impairment to the right upper extremity for 46.8 weeks for the period
December 13, 2011 through November 4, 2012. In a decision dated May 7, 2012, an OWCP
hearing representative vacated the prior decision and remanded the case for further development.
In a May 16, 2012 report, Dr. James Dyer, an OWCP medical adviser, opined that
Dr. Bishai properly used the ROM method of rating appellant’s right shoulder impairment and
concurred with the 12 percent permanent impairment rating. He further found that Dr. Bishai
correctly used the diagnosis-based impairment (DBI) method of rating appellant’s right wrist
impairment and concurred with the 10 percent permanent impairment rating. Dr. Dyer found
that the ulnar nerve neuropathy for either elbow was not an accepted condition and therefore
could not be included in the schedule award computation. Utilizing Appendix A,9 on page 604,
of the A.M.A., Guides, he concluded that appellant had a combined 21 percent permanent
impairment of the right upper extremity.
By decision dated October 16, 2012, OWCP granted appellant a schedule award for an
additional six percent permanent impairment of the right upper extremity. It found that he was
entitled to a total of 21 percent permanent impairment of the right upper extremity. As appellant
had previously received a schedule award for 15 percent permanent impairment, he was entitled
to an additional 6 percent (21 percent – 15 percent) permanent impairment.
On January 23, 2014 appellant, through his representative, filed a claim for an additional
schedule award (Form CA-7) and submitted physical therapy notes dated January 24 through
February 21, 2014. He also submitted a February 12, 2014 report from Dr. Ramon Berenguer,
an internal and family medicine specialist, who diagnosed carpal tunnel syndrome of the right
hand, cervical and lumbar disc syndrome, right rotator cuff tear, chronic lumbar strain, and
radiculopathy of the lower extremities.
In a report dated July 30, 2013, Dr. Bishai indicated that appellant’s condition had
worsened. On September 26, 2013 he opined that appellant had 34 percent permanent
impairment to the right upper extremity. Dr. Bishai rated appellant’s right shoulder condition
using “the stand alone [ROM] [. . .] because the limitation in the [ROM] [was] the most
significant disability” appellant had and caused him a great deal of difficulty in activities of daily
living. He concluded that appellant had 24 percent permanent impairment of the right upper
extremity, under Table 15-34, on page 475, of the A.M.A., Guides. Dr. Bishai also reiterated his
opinion that appellant had 10 percent impairment rating for his right wrist condition under Table
15-3, on page 396, of the A.M.A., Guides. He indicated that a TFCC tear was a class 1
8

Table 15-3, pages 395-97, of the sixth edition of the A.M.A., Guides is entitled Wrist Regional Grid.

9

Appendix A, pages 604-06, of the sixth edition of the A.M.A., Guides is entitled Combined Values Chart.

3

diagnosis. Dr. Bishai assigned a grade modifier 2 for Functional History (GMFE), a grade
modifier 2 for Physical Examination (GMPE), and found that a grade modifier for Clinical
Studies (GMCS) was not applicable. Using the net adjustment formula of (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), he found that (2-1) + (2-1) + (n/a) resulted in a net grade
modifier 2, resulting in an impairment class 1, grade E, equaling 10 percent permanent
impairment of the right upper extremity. Dr. Bishai determined that appellant had a combined
34 percent permanent impairment of the right upper extremity (24 percent + 10 percent).
On January 27, 2014 Dr. Howard Hogshead, a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the evidence of record. He concurred with Dr. Bishai’s 24
percent impairment rating for the right shoulder injury and the 10 percent impairment rating for
the right wrist injury, but found that the total impairment rating of 34 percent was incorrectly
calculated. Dr. Hogshead explained that Dr. Bishai improperly added the two percentages
together instead of properly relying on the Combined Values Chart of Appendix A, on page 604,
of the A.M.A., Guides. He concluded that using the chart correctly resulted in a combined 32
percent permanent impairment of the right upper extremity. On February 19, 2014 Dr. Hogshead
indicated that appellant was therefore entitled to an additional schedule award for 11 percent of
the right upper extremity.
By decision dated March 11, 2014, OWCP granted appellant a schedule award for an
additional 11 percent permanent impairment of the right upper extremity. It found that he was
entitled to a total of 32 percent permanent impairment of the right upper extremity and had
previously received schedule awards for 15 percent permanent impairment and 6 percent
permanent impairment, which entitled him to an additional 11 percent (32 percent – 15 percent –
6 percent) permanent impairment.
On April 3, 2014 appellant, through his representative, requested an oral hearing before
an OWCP hearing representative and submitted an April 16, 2014 report from Dr. Berenguer
who reiterated his diagnoses.
A telephone hearing was held before an OWCP hearing representative on
October 16, 2014. Subsequently, appellant’s representative submitted a brief arguing that
OWCP incorrectly calculated appellant’s schedule award compensation.
By decision dated January 2, 2015, the hearing representative affirmed the March 11,
2014 schedule award decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss

10

See 20 C.F.R. §§ 1.1-1.4.

4

of use of specified members, functions, and organs of the body.11 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
ANALYSIS
The issue on appeal is whether appellant established that he sustained more than 32
percent permanent impairment to the right upper extremity, for which he previously received a
schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.15
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
11

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

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

13

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

Isidoro Rivera, 12 ECAB 348 (1961).

15

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

16

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

5

attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.17
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the January 2, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

17

Supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the January 2, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 3, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
S.J., Appellant
)
)
and
)
)
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS-ALL OTHER, Los Angeles, CA,
)
Employer
)
_________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 12-511
Issued: September 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 10, 2012 appellant filed a timely appeal from the November 18, 2011 Office
of Workers’ Compensation Programs’ (OWCP) decision which denied modification of an
August 5, 2011 decision, which found that appellant did not sustain an injury in the performance
of duty. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
traumatic injury in the performance of duty on June 10, 2011.
FACTUAL HISTORY
On June 16, 2011 appellant, then a 45-year-old correctional system officer, filed a
traumatic injury claim alleging that on June 10, 2011 she felt a sharp pain shooting from her
1

5 U.S.C. § 8101 et seq.

tailbone to the base of her neck while lifting boxes in the performance of duty. She did not
initially stop work. The employing establishment supervisor indicated that he was not notified
until June 16, 2011.
In a June 16, 2011 treatment note, Dr. Rory S. Brinkerhoff, a chiropractor, advised that
he examined appellant for low back and neck pain. He indicated that she was unable to perform
her normal duties due to pain and restricted motion and placed her off duty from June 16
through 30, 2011.
In a June 22, 2011 statement, Steve Gagliardi, the case management coordinator,
explained that on June 15, 2011 Art Moore, a supervisory correctional systems specialist,
advised him that appellant called in sick on Monday, June 13, 2011. Furthermore, he indicated
that on June 14, 2011 she advised him that she was stuck in traffic and would not make it to the
employing establishment. Mr. Gagliardi noted that Mr. Moore advised appellant that she did not
have enough leave. Shortly thereafter, the present claim was filed. Furthermore, appellant did
not inform her supervisor that she was injured until after she was informed that she had
exhausted her annual and sick leave.
OWCP also received an injury assessment and follow-up sheet, which was illegible.
By letter dated June 27, 2011, OWCP advised appellant that additional factual and
medical evidence was needed. It explained that the physician’s opinion was crucial to
appellant’s claim and allotted her 30 days to submit the requested information.
In a July 13, 2011 statement, appellant indicated that her injury occurred on
June 10, 2011. She noted that she did not immediately notify her supervisor because she did not
think her injury was severe. However, over the weekend, appellant experienced back and neck
pain and she did not work on Monday and Tuesday due to the pain. She advised that, on
Wednesday, June 15, 2011, she reported the injury to the duty shift physician and the acting
supervisor. Appellant explained that she saw her chiropractor on June 16, 2011 and he found
that she was incapacitated for work.
In a July 13, 2011 statement, Officer R. Butler confirmed that he was working with
appellant on June 10, 2011 and they were moving, lifting and stacking boxes. He noted that she
indicated that she “hurt” her back and had to sit down. Mr. Butler advised that appellant was
unable to continue lifting boxes.
In duty status reports dated July 12 and 22, 2011, Dr. Stacie Cruz, Board-certified in
family medicine, diagnosed prophylactic vaccine for tetanus, diphtheria, acellular pertussis and
strain of the back. She placed appellant off work from July 12 to 26, 2012. Dr. Cruz indicated
that appellant could return to work on July 27, 2012. He saw appellant on July 22, 2011 and
diagnosed strain of the shoulder, trapezius muscle and strain of the back. Dr. Cruz placed
appellant off work from July 27 through August 1, 2011.
In a July 6, 2011 report, Dr. Michael Collins, an osteopath, noted appellant’s history of
injury. He advised that on June 10, 2011 appellant was processing files and lifting heavy boxes
when she developed pain in her tailbone radiating to her neck. Dr. Collins noted that this
happened on a Friday and she “did not seek immediate medical attention because she didn’t
2

think it was serious so she self-treated with ice packs.” He indicated that appellant reported the
event to her employer and was seen on June 15, 2011 by the jobsite physician, who diagnosed
strains and recommended that she see her physician. Dr. Collins related that she saw a
chiropractor, whom she believed worsened her condition. He related that appellant advised that
prior to June 10, 2011 she “did have chronic back pain rated 2/10 for which she would take
Aleve” as needed. Dr. Collins noted that she had an established history of low back pain for the
past three years for which she had sought treatment. He indicated that diagnostic tests such as
x-rays and a magnetic resonance imaging (MRI) scan showed lumbar disc degeneration.
Dr. Collins explained that appellant indicated that the activities she was performing on the date
of injury did not include any specific lifting injury and she related that “she was lifting boxes no
different than usual and in no different way than usual.” He also noted that she reported that
there was no improvement in her pain, despite being off work since June 16, 2011. Dr. Collins
found mild disc degeneration without evidence of disc protrusion at L1-2 and an unremarkable
disc at L2-3, L3-4 and L5-S1. Regarding L4-5, he determined that appellant had disc
degeneration with disc space narrowing and diffuse disc protrusion with mild effacement of the
dural sac and mild narrowing of the neural foramina. Dr. Collins diagnosed spondyloarthropathy
and backache. He advised that, with regard to causation, he could not establish occupational
causation to appellant’s complaints. Dr. Collins opined that the “probability of [appellant’s]
current condition occurring independent of occupational factors is high. In other words
[appellant’s] condition is affected more by preexisting conditions rather than any specific
occupational injury. I therefore opine that her back and neck pain are nonoccupational in nature,
and should therefore be treated in a nonindustrial basis.”
By decision dated August 5, 2011, OWCP denied appellant’s claim on the grounds that
she did not establish an injury as alleged. It found that there was no medical evidence supporting
that the accepted employment incident caused a diagnosed condition. OWCP further found that
Dr. Collins opined that the condition was preexisting rather than work related.
Appellant requested reconsideration on August 22, 2011 and submitted additional
evidence. She advised OWCP that Dr. Collins was not her primary physician. Appellant
indicated that his opinion was based on her medical history; however, previously, it had not
interfered with her work duties until June 10, 2011 when she strained her back. She reiterated
that her injury was work related. Appellant also requested continuation of pay for 38 days and
noted that she returned to work on August 9, 2011.
In an August 11, 2011 report, Dr. Cruz opined that she treated appellant for muscle pain
in the upper back on July 12, 2011. She noted that appellant lifted and turned while carrying a
box and that she experienced back pain while carrying a box that weighed about 30 to 40 pounds.
In an August 17, 2011 report, Dr. Brinkerhoff advised that appellant was seen and treated
in his office on August 17, 2011 for low back and neck pain. He explained that, while at work
on June 10, 2011, she began experiencing pain while carrying approximately 47 boxes that
weighed between 30 to 40 pounds. Dr. Brinkerhoff opined that appellant’s subjective complaints
and objective findings of palpatory tenderness, muscle spasms and restricted range of motion
were consistent with the injury described.

3

By decision dated November 18, 2011, OWCP denied modification of its August 5, 2011
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.7
ANALYSIS
Appellant alleged that on June 10, 2011 she felt a sharp pain shooting from her tailbone
to the base of her neck while lifting boxes in the performance of duty. The Board finds that the
first component of fact of injury, the claimed incident, lifting boxes at work, occurred as alleged.
However, the medical evidence is insufficient to establish the second component of fact
of injury, that the employment incident caused an injury. The medical reports of record do not
establish that lifting boxes at work caused a personal injury to appellant’s back, shoulder or neck.
2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

The medical evidence contains no reasoned explanation of how the specific employment incident
on June 10, 2011 caused or aggravated an injury.8
Appellant submitted several reports from Dr. Cruz, however, this evidence is insufficient
to establish appellant’s claim as she does not specifically address whether any factors of
appellant’s employment caused a diagnosed condition. Dr. Cruz merely noted in her August 11,
2011 report that she treated appellant for muscle pain on July 12, 2011. She advised that
appellant experienced back pain after carrying a box weighing about 30 to 40 pounds. However,
pain is considered a symptom, not a diagnosis and does not constitute a basis for payment of
compensation in the absence of objective findings of disability.9 The fact that work activities
produced pain or discomfort revelatory of an underlying condition does not raise an inference of
causal relation.10 This is especially important in light of the fact that appellant had a chronic
back condition and Dr. Cruz did not otherwise explain how appellant’s work activities on
June 10, 2011 caused or aggravated a diagnosed medical condition. Thus, these reports are of
limited probative value.
Appellant submitted reports dated June 16 and August 17, 2011 from Dr. Brinkerhoff, a
chiropractor, who advised that appellant was seen and treated for low back and neck pain.
Section 8101(2) of FECA provides that the term physician includes chiropractors only to the
extent that their reimbursable services are limited to treatment consisting of manual manipulation
of the spine to correct a subluxation as demonstrated by x-ray to exist.11 Dr. Brinkerhoff did not
diagnose a subluxation based on x-rays.12 In the absence of a diagnosis of subluxation based on
x-rays, he is not a physician under FECA. Thus, the reports from Dr. Brinkerhoff have no
probative value.13
The Board also notes that Dr. Collins was of the opinion that appellant’s condition was
not work related. Dr. Collins opined in his July 6, 2011 report that the “probability of
[appellant’s] current condition occurring independent of occupational factors is high. In
other words [appellant’s] condition is affected more by preexisting conditions rather than any
specific occupational injury. I therefore opine that her back and neck pain are
nonoccupational in nature, and should therefore be treated in a nonindustrial basis.” He
found no basis on which to attribute appellant’s condition to work activities on
June 10, 2011.
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

See John L. Clark, 32 ECAB 1618 (1981); Huie Lee Goad, 1 ECAB 180 (1948).

10

Jimmie H. Duckett, 52 ECAB 332 (2001).

11

5 U.S.C. § 8101(2).

12

OWCP’s implementing federal regulations define subluxation to mean an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See 20 C.F.R.
§ 10.5(bb).
13

Michelle Salazar, 54 ECAB 523 (2003).

5

Other reports submitted by appellant do not specifically address how any particular
diagnosed condition is causally related to appellant’s work activities on June 10, 2011.
Because the medical reports submitted by appellant do not address how the June 10, 2011
incident caused or aggravated a neck, back or shoulder condition, these reports are of limited
probative value14 and are insufficient to establish that the June 10, 2011 employment incident
caused or aggravated a specific injury.
On appeal, appellant disagreed with OWCP’s findings and advised that her condition was
work related. However, as noted above, the medical evidence does not establish that her
condition is work related.
Appellant may submit evidence or argument with a written request for reconsideration
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 in establishing that she
sustained an injury in the performance of duty.

14

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

6

ORDER
IT IS HEREBY ORDERED THAT the November 18 and August 5, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 6, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0367
Issued: September 23, 2019

Case Submitted on the Record

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

JURISDICTION
On December 12, 2017 appellant, through counsel, filed a timely appeal from a
November 27, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated
September 7, 2016, to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the November 27, 2017 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 25, 2012 appellant, then a 46-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 23, 2012 she tripped and fell while in the performance of duty,
injuring her neck, right wrist/hand, back, and left leg. She stopped work on July 24, 2012. In
December 2012, OWCP initially accepted the claim for sprain of the right wrist and hand.4 It
subsequently expanded the acceptance of appellant’s claim to include cervical, thoracic, and
lumbar sprains; and a herniated disc at C4-5.
By decision dated September 30, 2015, OWCP terminated appellant’s medical benefits
with respect to her previously accepted right wrist, thoracic, and lumbar sprains. Appellant
remained eligible for conservative medical treatment with respect to her accepted cervical
condition, as well as continuing compensation benefits related to her July 23, 2012 employment
injury. OWCP based its determination on the February 24, 2014 opinion of Dr. Victoria M. Langa,
a Board-certified orthopedic surgeon and impartial medical examiner.5
Appellant, through counsel, timely requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on July 5, 2016. During the hearing
counsel argued that appellant’s lumbar condition had not resolved, and the claim should have been
expanded to include L4-5 radiculitis.6 By decision dated September 7, 2016, OWCP’s hearing
representative affirmed the September 30, 2015 decision finding that the impartial medical
examiner’s opinion represented the special weight of the medical evidence.
On August 30, 2017 appellant, through counsel, requested reconsideration of OWCP’s
September 7, 2016 decision. In support of the request appellant submitted an August 21, 2017
report from her treating physician, Dr. Donich, regarding her ongoing cervical complaints and the
need for surgery at C6-7.
By decision dated November 21, 2017, OWCP expanded acceptance of the claim to include
aggravation of cervical spinal stenosis. It also retroactively authorized a February 5, 2017 cervical
spine surgical procedure.7

4
OWCP paid wage-loss compensation for temporary total disability beginning September 8, 2012, and placed
appellant on the periodic compensation rolls effective January 13, 2013.
5

OWCP declared a conflict in medical opinion between appellant’s physician, Dr. Dane J. Donich, a Boardcertified neurosurgeon, and Dr. Manhal A. Ghanma, a Board-certified orthopedic surgeon and second opinion
examiner.
6

The impartial medical examiner’s diagnoses included status post thoracolumbar sprain/strain and underlying agerelated degenerative disc/joint disease.
7

OWCP based its determination on the November 15, 2017 opinion of Dr. Timothy J. Nice, a Board-certified
orthopedic surgeon and impartial medical examiner, who agreed with appellant’s physician, Dr. Donich, regarding
the need for cervical surgery.

2

By decision dated November 27, 2017, OWCP denied appellant’s August 30, 2017 request
for reconsideration finding that Dr. Donich’s August 21, 2017 opinion regarding appellant’s
cervical spine was not relevant to the September 30, 2015 and September 7, 2016 decisions, which
terminated benefits with respect to appellant’s right wrist sprain, thoracic sprain, and lumbar
sprain. Consequently, OWCP found that the evidence presented was insufficient to warrant merit
review of the September 7, 2016 decision.
LEGAL PRECEDENT
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.8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.10 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.11 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.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The August 30, 2017 request for reconsideration did not show that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Accordingly, appellant has not established a basis for further merit review
under the first and second above-noted requirements of 20 C.F.R. § 10.606(b)(3).

8

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
9
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
10

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

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

12

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

3

The underlying issue on reconsideration was whether OWCP properly terminated benefits
with respect to appellant’s accepted right wrist, thoracic, and lumbar sprains. Counsel did not
submit evidence or argument with respect to the termination of benefits regarding the above-noted
conditions. Although Dr. Donich’s August 21, 2017 report was not part of the record when OWCP
last addressed the termination issue on September 7, 2016, this evidence is not “relevant and
pertinent” to the issue on reconsideration. His opinion concerned the need for additional cervical
surgery, and did not specifically address appellant’s right wrist, thoracic, and lumbar sprains. As
such, Dr. Donich’s August 21, 2017 report is insufficient to warrant further merit review based on
the third requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal counsel argues that there was an unresolved conflict in medical evidence, and
therefore, OWCP had not met its burden of proof to terminate benefits. As previously noted, the
Board does not have jurisdiction over the September 7, 2016 merit decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1098
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 14, 2021 appellant filed a timely appeal from a January 21, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days elapsed
from OWCP’s last merit decision dated October 9, 2019, to the filing of this appeal, pursuant to

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, appellant asserted that oral argument should be granted because OWCP’s
decisions were based on inaccurate and incorrect information and the decisions failed to provide reasons why her
arguments and evidence submitted were insufficient to modify OWCP’s denial of her claim. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied , and this decision is
based on the case record as submitted to the Board.

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On June 9, 2005 appellant, then a 50-year-old management analyst, filed an occupational
disease claim (Form CA-2) indicating that years of repetitive typing, writing, and use of the adding
machine and computer caused or aggravated cervical spine arthritis and bilateral carpal tunnel
syndrome (CTS) while in the performance of duty. She first became aware of her claimed
conditions and its relationship to her federal employment on March 30, 2005. OWCP accepted
the claim for bilateral CTS, bilateral lesion of the ulnar nerve, and non-disabling mild dysthymic
disorder. Appellant underwent OWCP-approved left carpal tunnel and cubital tunnel release on
January 11, 2007 and right carpal tunnel and cubital tunnel release on June 7, 2007. She returned
to full-duty work with use of voice-activated software on February 14, 2008. OWCP paid
appellant intermittent wage-loss compensation on the supplemental rolls commencing
March 30, 2005.4
On June 22, 2010 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of the need for medical treatment due to a change or worsening of her accepted workrelated conditions. She noted that she received several accommodations, but she had been doing
“an overwhelming amount of keyboarding and using [her] hands to lift, turn pages, write, etc. at
work,” which aggravated her approved bilateral carpal and cubital tunnel syndrome conditions,
and caused stress and depression. Appellant indicated that the shooting finger and arm pain caused
her to take more daily pain medications, including prescription pain medications. She also
indicated that her doctors advised her to retire as she was totally disabled from performing her job.
In a July 12, 2010 letter, OWCP advised that, since appellant did not claim any lost time from

2

5 U.S.C. § 8101 et seq.

3

Docket No. 15-548 (issued May 13, 2015).

4

By decision dated October 22, 2008 and corrected on November 14, 2008, OWCP issued a schedule award for 25
percent permanent impairment of the right upper extremity and 26 percent permanent impairment of the left upper
extremity for which appellant received a requested lump-sum award on January 13, 2009. Appellant requested
increased schedule awards, which OWCP denied in decisions dated October 30, 2009 and February 17, 2010.

2

work, she had not experienced a true recurrence. It noted her claim remained open for medical
treatment of her accepted conditions. 5
On December 2, 2010 appellant submitted a Form CA-2a claiming a recurrence of
disability and the need for medical treatment, wherein she listed the date of recurrence as June 22,
2010 and related that she had stopped work on July 27, 2010. By decision dated January 12, 2012,
OWCP denied the alleged recurrence of June 22, 2010. The weight of the medical evidence was
accorded to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon and OWCP second opinion
physician. The claim remained open for medical treatment of the accepted co nditions.
On January 30, 2012 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated May 23, 2012, an OWCP hearing
representative vacated the January 12, 2012 decision and remanded the case for further
development, including the issuance of an updated statement of accepted facts (SOAF) and referral
to a Board-certified psychiatrist for examination and evaluation.
Following further development, appellant underwent a second opinion psychiatric
examination on December 19, 2012 by Dr. Dennis M. Young, a Board-certified psychiatrist, who
provided reports dated December 22, 2012 and February 7, 2013. Dr. Young opined that
appellant’s depression was not the result of pain associated with the work injury.
By decision dated March 28, 2013, OWCP denied appellant’s recurrence claim as she had
not established that she was disabled due to a material change/worsening of her accepted workrelated conditions. It also found that her diagnosed depression was not causally related to the
original occupational conditions, but rather was self-generated as a result of her perception that
she was an undervalued and marginalized employee.
On March 14, 2014 appellant, through counsel, requested reconsideration based on new
evidence from Dr. John R. Lion, a Board-certified psychiatrist. OWCP subsequently declared a
conflict in medical opinion between Dr. Young and Dr. Lion, who opined, in his February 3, 2014
report, that appellant’s depression was the result of her work injury.
OWCP referred appellant to Dr. Bruce M. Smoller, a Board-certified psychiatrist, for an
impartial medical examination and evaluation as to whether her employment-related conditions
contributed to or caused a psychiatric condition. In a July 27, 2014 report, Dr. Smoller, serving as
the impartial medical examiner (IME), reviewed a SOAF, examined appellant’s medical record
and appellant, and noted the history of injury. He recounted interview findings and provided an
impression of mild dysthymia on a fair to good level of functioning. Dr. Smoller opined that
appellant’s dysthymia did not need further medical treatment, that she had reached maximum
medical improvement, and that no further therapy treatment was required. He reiterated his
opinion that she was not disabled from work due to the psychiatric condition.

5

On July 31, 2010 appellant voluntarily retired.

3

By decision dated August 22, 2014, OWCP accepted the additional condition of nondisabling mild dysthymic disorder. Further treatment for the newly accepted condition was not
authorized based on Dr. Smoller’s July 27, 2014 impartial medical report.
Also, by decision dated August 22, 2014, OWCP affirmed the March 28, 2013 decision in
part to reflect that appellant had not established her recurrence claim due to a material change or
worsening of her accepted work-related conditions.
Appellant appealed to the Board on January 15, 2015. By decision dated May 13, 2015,
the Board affirmed OWCP’s August 22, 2014 decision. The Board found that Dr. Smoller’s
opinion was entitled to the weight of the medical evidence as an IME as he provided a rationalized
medical opinion, which established that while there was psychological component to appellant’s
work-related condition it did not disable her from working on July 27, 2010. The Board further
found that there was no probative medical opinion evidence, which established that appellant had
a material change in her medical condition such that she was totally disabled as a result of her
accepted work-related conditions beginning July 27, 2010.6
Appellant subsequently filed a series of requests for reconsideration. In decisions dated
April 10, 2017, August 10, 2018, and October 9, 2019, OWCP denied modification of the merits
of the claim. The decisions detailed appellant’s legal and factual arguments and found no error or
evidence to support the allegations raised. The decisions further found that the medical evidence
of record remained unsupported by rationalized medical evidence to demonstrate that the accepted
conditions prevented appellant from working on or after July 27, 2010 causally related to the
accepted March 30, 2005 employment injury.
On September 9, 2020 appellant requested reconsideration. In an accompanying letter also
dated September 2, 2020, she requested reconsideration and a “face to face hearing.” Appellant
contended that OWCP’s merit reviews were based on inaccurate and incorrect information and
that OWCP had failed to review the evidence and arguments she provided in all her reconsideration
requests. She argued that Dr. Young’s opinion was relevant and supported her disability claim,
the opinion of Dr. Lion, her physician, supported Dr. Young’s opinion, and Dr. Smoller’s report
was vague and speculative. Appellant also wanted to know why OWCP did not find certain facts,
circumstances and evidence relevant to the fact that she had to retire on disability. She alleged
that her supervisor and the employing establishment ignored her initial accommodation requests
only to grant the same request over a year later. The delay of such accommodation by appellant’s
supervisor and the employing establishment violated the law and the ineffective accommodations
caused appellant excruciating physical pain and mental anxiety, continued use of addicting drugs,
and having to perform repetitive motion that caused her recurrence. The only evidence submitted
in support of her reconsideration request was a petition for writ of certiorari in the Supreme Court
of the United States.
In November 18 and December 8, 2020 letters, OWCP informed appellant that, as her
September 2, 2020 letter indicated that she was requesting both a reconsideration and “face to face
hearing,” she could only request one method of appeal. Appellant was informed of her appeal
6

Supra note 3.

4

rights and provided 10 days to respond to the request. On December 11, 2020 she advised that she
was requesting reconsideration.
By decision dated January 21, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
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. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 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. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 22, 2014 merit decision. The Board
considered that evidence in its May 13, 2015 decision. Findings made in prior Board decisions

7

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

are res judicata absent further review by OWCP under section 8128 of FECA. 12 The Board,
therefore, will not review the evidence or arguments addressed in its prior appeal.
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did
not advance a relevant legal argument not previously considered by OWCP. Appellant’s
September 2, 2020 letter contained variations of legal and factual arguments previously
considered, which revolved around the conflict in medical evidence with Dr. Young and the fact
Dr. Smoller’s opinion was accorded the special weight provided an IME. The Board previously
reviewed the record, detailed the medical evidence as to how the conflict in medical arose and
discussed why the reports from appellant’s physicians were not sufficient to establish her
recurrence claim. The Board also specifically found that OWCP properly afforded the special
weight of the medical opinion evidence to Dr. Smoller who found that appellant had a nondisabling
dysthymic disorder. As noted above, the findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA. 13 In its previous decisions OWCP
also addressed appellant’s contentions with regard to the employing establishment’s
accommodations, testimony, and alleged violations under other statues and found no evidence of
error as it related to the subject recurrence claim. Thus, appellant has not raised any new or
relevant legal and factual arguments not previously considered. Consequently, she is not entitled
to further review of the merits of her claim based on either the first or second above -noted
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case. 14 Appellant submitted a petition for writ of certiorari in the Supreme Court of
the United States. This evidence does not address the subject recurrence claim and, thus, does not
constitute a basis for reopening the claim. 15 No other evidence was submitted. As appellant failed
to provide relevant and pertinent new evidence, she is not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

12

K.K., Docket No. 20-1394 (issued July 26, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

13

Id.

14

L.M., Docket No. 20-0315 (issued October 8, 2021); A.J., Docket No. 20-0926 (issued January 26, 2021);
Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).
15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marysville, WA, Employer
__________________________________________
Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1901
Issued: January 8, 2014

Case Submitted on the Record

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

On August 12, 2013 appellant, through his attorney, filed a timely appeal from the
July 30, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration on the grounds that it was untimely filed and failed to
establish clear evidence of error. The Board docketed the appeal as No. 13-1901.
The Board has reviewed the case record on appeal and finds that the case must be
remanded to OWCP for application of the appropriate standard of review because appellant’s
request for consideration was timely submitted.
By decision dated June 29, 2012, OWCP denied appellant’s occupational disease claim
finding that appellant had not established that his diagnosed medical condition was caused or
aggravated by his employment activities. On July 1, 2013 OWCP received appellant’s attorney
request for reconsideration of the June 29, 2012 decision. By decision dated July 30, 2013,
OWCP denied appellant’s request for reconsideration on the grounds that it was untimely filed
and failed to establish clear evidence of error.
The Board has considered the matter and finds that the request for reconsideration
received on July 1, 2013 constituted a timely request for reconsideration. Section 10.607(a) of
the implementing regulations provide that an application for reconsideration must be received
within one year of the date of OWCP’s decision for which review is sought.1 The Board has
1

20 C.F.R. § 10.607(a).

held that, in computing a time period, the date of the event from which the designated period of
time begins to run shall not be included, while the last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday.2 The last merit decision in this
case was dated June 29, 2012 and appellant’s request for reconsideration was received by OWCP
on Monday, July 1, 2013. Appellant had one year from the June 29, 2012 decision to request
reconsideration. The Board notes, however, that June 29, 2013 fell on a Saturday. It is well
established that when a time limitation expires on a nonbusiness day, the limitation is extended
to include the next business day.3 Therefore, because the time limitation for filing a request for
reconsideration fell on a Saturday, the time period for filing a request for reconsideration did not
expire until the next business day, which was Monday, July 1, 2013.
Appellant’s request for reconsideration was received by the close of business on July 1,
2013, rendering it timely filed. The case will be remanded to OWCP for consideration of
appellant’s request under the standard for reviewing timely requests for reconsideration.4
IT IS HEREBY ORDERED THAT the July 30, 2013 decision of the Office of Workers
Compensation Programs is set aside. The case is remanded to OWCP for application of the
proper standard for reviewing a timely request for reconsideration.
Issued: January 8, 2014
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

2

John B. Montoya, 43 ECAB 1148, 1151 (1992); see Donna A. Christley, 41 ECAB 90, 91 (1989).

3

See J.L., Case No. 13-1060 (issued September 20, 2013); Debra McDavid, 57 ECAB 149, 150 (2005); Angel M.
Lebron, Jr., 51 ECAB 488, 490 (2000); Gary J. Martinez, 41 ECAB 427, 427-28 (1990); FECA Program
Memorandum No. 250 (issued January 29, 1979).
4

This standard is found at 20 C.F.R. § 10.606(b)(3).

2