United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-112
Issued: November 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 14, 2009 appellant filed a timely appeal from a July 13, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. 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 37 percent total impairment of the left arm,
for which he received schedule awards.1
On appeal, appellant’s attorney contends that he has 40 percent impairment of the left
arm based on the accepted carpal tunnel and shoulder conditions.

1

The July 13, 2009 decision found 20 percent impairment to the right arm but appellant did not appeal from that
determination.

FACTUAL HISTORY
This case has previously been before the Board.2 In a June 16, 2009 order, the Board set
aside a May 17, 2008 Office schedule award decision which found 27 percent impairment of the
left arm.3 The Board noted that appellant had claims before the Office accepted for a left
shoulder injury and bilateral carpal tunnel, such that all the medical evidence required for
determining the extent of impairment to the left arm was not of record. The Board remanded the
case to the Office to combine the case files and issue an appropriate decision on appellant’s
claim.
On March 22, 2006 the Office granted a schedule award for nine percent impairment of
the left arm based on appellant’s shoulder injury. The rating was based on loss of shoulder range
of motion and rotator cuff weakness.
In a May 10, 2006 report, Dr. Kevin F. Hanley, an attending Board-certified orthopedic
surgeon, evaluated appellant’s left shoulder. He diagnosed status post rotator cuff tear, left
shoulder. Examination of the left arm revealed absence of the distal clavicle due to surgery.
Under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Hanley rated 20 percent impairment to the left
shoulder. Under Table 16-27, page 506, he noted that the distal clavicle resection was 10 percent
impairment. Dr. Hanley also found 11 percent impairment for loss of range of motion: under
Figure 16-40, page 476, flexion of 120 degrees was 4 percent impairment and extension of 45
degrees was 0 percent impairment; under Table 16-43, page 477, 110 degrees abduction was 3
percent impairment and 30 degrees adduction was 1 percent impairment; under Figure 16-46,
page 479, external rotation of 75 degrees was 0 percent impairment and 40 degrees internal
rotation was 3 percent impairment. He combined the 10 percent diagnosed-based impairment
with the 11 percent for loss of shoulder motion to total 20 percent left arm impairment.
On December 8, 2007 Dr. Hanley evaluated impairment due to the accepted carpal tunnel
condition. Examination of the arms showed diminished sensitivity to light touch and two-point
discrimination in the median distribution. Light touch was also distorted. Full range of motion
was noted in the wrists with no weakness of the thenar muscles and no triggering of the fingers.
Dr. Hanley diagnosed bilateral carpal tunnel syndrome, surgically treated and trigger fingers
(middle and ring fingers) left hand, surgically treated and resolved. Under the fifth edition of the
A.M.A., Guides, he opined that appellant had 20 percent impairment to each arm based on
sensory loss. Under Table 16-10, page 482, Dr. Hanley stated that appellant had a Grade 3
sensory deficit or 50 percent. Under Table 16-15, page 492, he noted that the maximum
impairment for sensory loss of the median nerve was 39 percent. Dr. Hanley multiplied 39
2

On June 20, 2004 appellant, a 58-year-old packer, was injured when he tripped on a pallet. The Office accepted
left rotator cuff strain/tear, left forearm contusion, left SLAP lesion and approved a January 19, 2005 left shoulder
surgery in File No. xxxxxx800. On November 7, 2005 appellant claimed bilateral carpal tunnel syndrome in File
No. xxxxxx495. The Office accepted the claim for bilateral carpal tunnel syndrome and left trigger finger. On
September 19, 2006 appellant underwent left carpal tunnel release, left middle and ring finger A1 pulley releases
with limited fasciectomy left palm. On December 5, 2006 he underwent right carpal tunnel release.
3

Docket No. 08-2230 (issued June 16, 2009).

2

percent by 50 percent, to rate 20 percent impairment. He advised that appellant did not have any
motor weakness.
In a June 19, 2007 report, Dr. Mark T. Hellner, a Board-certified orthopedic surgeon and
Office referral physician, provided a rating for appellant’s left shoulder injury. He found total
impairment of 21 percent, allowing 5 percent impairment for resection surgery of the distal
clavicle, 12 percent for loss of range of shoulder motion and 6 percent for rotator cuff weakness.4
In a July 26, 2007 decision, the Office granted appellant a schedule award for an
additional 11 percent impairment to the left arm based on his shoulder condition. As appellant
previously received an award on March 22, 2006 for 9 percent impairment, the award
represented a total 20 percent impairment of the upper extremity.
On April 28, 2008 the Office medical adviser reviewed the medical evidence pertaining
to the accepted carpal tunnel syndrome. He noted the impairment rating provided by Dr. Hanley
and agreed with the determination that appellant had 20 percent left arm impairment based on
residual sensory loss affecting the median nerve. The medical adviser noted that appellant had
previously been rated 9 percent impairment based on his accepted shoulder condition and that the
20 percent carpal tunnel sensory rating could be combined to total 27 percent left upper
extremity impairment.
In a May 14, 2008 decision, the Office granted a schedule award for an additional seven
percent impairment of the left arm. As appellant had received schedule awards on March 22,
2006 and July 26, 2007 in the amount of 20 percent, the award represented total impairment to
the left arm of 27 percent under both claims.
On July 25, 2008 appellant’s attorney requested reconsideration of the schedule award
determination, contending that he had greater impairment based on his accepted shoulder
condition.
On October 4, 2008 the Office medical adviser reviewed the medical file pertaining to
appellant’s left shoulder condition; however, on October 17, 2008, the claims examiner
requested that the medical adviser review both injury files and address how the carpal tunnel and
shoulder conditions each contributed to impairment of the left arm. It was noted that appellant
had received schedule awards for 27 percent impairment.
On October 23, 2008 the Office medical adviser reviewed both claim files. He stated that
appellant had 21 percent left arm impairment for residual of his left shoulder condition and 20
percent left arm impairment for residual of the accepted carpal tunnel syndrome. The Office
medical adviser combined the 21 percent left shoulder impairment with the 20 percent left carpal
tunnel impairment and found that appellant had total left arm impairment of 37 percent with a
date of maximum improvement of December 8, 2007.

4

The A.M.A., Guides provide that decreased strength cannot be rated in the presence of decreased motion that
prevents effective application of maximal force in the region being evaluated.

3

On November 10, 2008 the Office requested that the Office medical adviser review
impairment due to left distal clavicle resection as discussed by Dr. Hellner. It noted that
Dr. Hellner found 10 percent impairment due to that procedure but excluded 5 percent of this as
being attributable to a preexisting condition. The Office advised that preexisting impairments
were to be included in assessing impairment.
In a November 15, 2008 report, the Office medical adviser reviewed both claim files. He
advised that appellant had 21 percent left arm impairment based on Dr. Hellner’s June 19, 2007
report. In that report, Dr. Hellner opined that appellant had 12 percent impairment for loss of
shoulder motion and 6 percent impairment for residual rotator cuff weakness. He stated that
appellant had 10 percent impairment for having undergone resection of his distal clavicle, but
opined that 50 percent of this was attributable to preexisting degenerative joint disease in his
acromioclavicular joint and thus only found 5 percent impairment. The medical adviser noted
that the January 19, 2005 operative report stated that appellant underwent a mini-open distal
clavicle resection where nine millimeters of the distal clavicle were resected. Based on the
operative report, he stated that appellant did not undergo a complete resection of his distal
clavicle, but rather a “mini” resection. Based on Table 16-27, page 506, the medical adviser
opined that appellant had only 5 percent impairment, not 10 percent impairment which the
A.M.A., Guides provides for a complete distal clavicle resection. He advised that, while
Dr. Hellner had only awarded five percent impairment for having undergone resection of the
distal clavicle, the rating was modified to reflect the partial resection. The medical adviser
advised that his impairment rating was unchanged. He noted that the 21 percent impairment for
the left shoulder condition combined with the 20 percent impairment for carpal tunnel syndrome
resulted in a total 37 percent impairment of the left arm.
In a January 6, 2009 decision, the Office modified its July 26, 2007 decision to reflect an
additional 10 percent left arm impairment based on the opinion of the Office medical adviser.
By decision dated January 7, 2009, it granted a schedule award for an additional 10 percent
permanent impairment to the left upper extremity. The award represented total impairment to
the left arm of 37 percent under both claims.
Following the Board’s June 16, 2009 order, the Office reissued its May 14, 2008
determination in a July 13, 2009 decision, finding 37 percent impairment of the left arm.
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
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).

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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
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides his opinion is of diminished probative value in
establishing the degree of permanent impairment and the Office may rely on the opinion of its
medical adviser to apply the A.M.A., Guides to the findings reported by the attending physician.9
ANALYSIS
The Office accepted that appellant sustained left rotator cuff strain/tear, left forearm
contusion, left SLAP lesion under File No. xxxxxx800. It also accepted that he sustained
bilateral carpal tunnel syndrome and left trigger finger under File No. xxxxxx495. Appellant
also underwent authorized surgeries.
The Board finds that appellant has no more than 37 percent total left upper extremity
impairment for which he received scheduled compensation. This is based on the reports of
Dr. Hanley. For appellant’s carpal tunnel condition, Dr. Hanley noted that, under the fifth
edition of the A.M.A., Guides, appellant had 20 percent left arm impairment due to residual
carpal tunnel syndrome. As noted, he found that appellant had a sensory loss of the median
nerve and explained the grading process by which he determined that this resulted in 20 percent
impairment under the A.M.A., Guides.10 The Board finds that Dr. Hanley’s calculations are
proper under the A.M.A., Guides. The Office medical adviser reviewed the medical evidence
concerning appellant’s residual carpal tunnel syndrome and accepted Dr. Hanley’s rating. The
evidence establishes that appellant has 20 percent left upper extremity impairment due to
residuals of carpal tunnel syndrome.
Dr. Hanley also rated 20 percent impairment to the left arm due to appellant’s shoulder
condition. As explained, he found that shoulder examination revealed the absence of the distal
clavicle due to surgery for which he found 10 percent impairment pursuant to the A.M.A.,
Guides.11 Dr. Hanley also found, as noted, range of motion impairments totaling 11 percent.12
He properly combined the 10 percent impairment for distal clavicle resection with the 11 percent
loss of shoulder motion to total 20 percent left arm impairment based on appellant’s shoulder
condition. The Board finds that Dr. Hanley’s ratings complies with the A.M.A., Guides and
represent the weight of the medical evidence. The Board also notes that combining 20 percent

8

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

9

Linda Beale, 57 ECAB 429, 434 (2006).

10

See “Factual History” infra; A.M.A., Guides 482, 492, Tables 16-10, 16-15 (5th ed. 2001).

11

Id. at 506, Table 16-27.

12

Id. at 476, 477, 479, Figures 16-40, 16-43, Figure 16-46.

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impairment for the carpal tunnel syndrome residuals with 20 percent impairment for appellant’s
left shoulder residuals under the Combined Values Chart totals 36 percent left arm impairment.13
The record also contains an impairment rating from Dr. Hellner who rated impairment of
the shoulder at 21 percent. Dr. Hellner based this on 12 percent impairment for loss of motion; 6
percent for loss of strength and 5 percent for distal clavicle surgery. Although accepted by the
Office medical adviser, this rating does not conform to the A.M.A., Guides. For strength deficit
based on manual muscle testing under Table 16-35, page 510, Dr. Hellner found appellant had
six percent impairment for rotator cuff weakness. Under the A.M.A., Guides, however, loss of
strength cannot be rated in the presence of loss of range of motion.14 Additionally at Table
16-35, the cross references under strength deficit state ratings are based on “complete range of
motion against gravity.” It is not clear how decreased strength may be rated in this situation
which also involves decreased range of motion. Dr. Hellner also allowed five percent
impairment for the “mini-Mumford” procedure under Table 16-27, page 506. Section 16.7b,
page 505 allows for loss of range of motion to be combined with arthroplasty impairment.
However, it is not readily apparent that the five percent rating allowed by Dr. Hellner for the
partial excision of distal clavicle conforms to Table 16-27, page 506. Table 16-27 does not
appear to allow for partial excision of distal clavicle as the level of arthroplasty is listed as total.
For these reasons, Dr. Hellner’s impairment rating for the shoulder does not comply with the
A.M.A., Guides and is of diminished probative value.15
On appeal appellant contends the Office should have added the different values for the
shoulder and carpal tunnel condition to total 40 percent impairment. However, because his
carpal tunnel condition and shoulder conditions involve different parts of the same extremity,
they are to be combined, not added together.16 As noted, this results in 36 percent impairment to
the left arm. Appellant did not submit evidence to support more than the 37 percent total left
arm impairment as awarded.
CONCLUSION
The Board finds that appellant has no more than 37 total percent permanent impairment
to the left upper extremity for which he received schedule awards.

13

See A.M.A., Guides 604 (Combined Values Chart).

14

Id. at 508.

15

See I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009) (an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of
diminished probative value in determining the extent of permanent impairment).
16

See A.M.A., Guides 10, section 1.4. See Cristeen Falls, 55 ECAB 420, 424 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the July 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: November 22, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, El Paso, TX,
Employer
__________________________________________

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

Docket No. 19-1678
Issued: April 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 6, 2019 appellant filed a timely appeal from a May 22, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following OWCP’s May 22, 2019 decision, appellant submitted additional evidence.
However, the Board’s Rules of Procedure provide: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that an injury
occurred on April 10, 2019 in the performance of duty, as alleged.
FACTUAL HISTORY
On April 10, 2019 appellant, then a 51-year-old supervisor, filed a traumatic injury claim
(Form CA-1) alleging that at 2:45 p.m. on that date he sustained a sprained ligament and bite to
his left hand, as well as scratches to his left forearm, left bicep, neck, and face while in the
performance of duty. He explained that a detainee swung a shackle, which hit his hand and that,
during a cell extraction, the detainee bit his left hand and scratched him. On the reverse side of
the claim form, appellant’s supervisor, R.T., checked a box marked “no” indicating that appellant
was not in the performance of duty when his injury occurred. R.T. then noted that appellant was
struck with a chain in his hand and bitten while attempting to control a noncompliant detainee
during the removal process. Appellant stopped work on the date of injury.
In a development letter dated April 15, 2019, OWCP informed appellant that he submitted
no evidence to establish that the claimed April 10, 2019 employment incident occurred as alleged.
It advised him of the type of factual and medical evidence necessary to establish his claim. OWCP
attached a questionnaire seeking a full description of the events and circumstances surrounding the
employment incident and other information for his completion. It afforded appellant 30 days to
provide the necessary information.
In an April 10, 2019 medical report, Dr. Enrique Villalobos-Silva, Board-certified in
emergency medicine, noted that appellant presented with pain in his right wrist and thumb and
abrasions to his left arm caused by a detained person at his place of employment. He provided
that as appellant attempted to control a detainee, the detainee hit him with his shackles and may or
may not have bitten his left arm and hand. Dr. Villalobos-Silva also noted swelling in appellant’s
right thumb. In a diagnostic report of even date, Dr. Lance Knecht, a Board-certified diagnostic
radiologist, performed an x-ray on appellant’s right hand. He noted the remodeling of the fifth
metacarpal from prior trauma and a healed fracture and provided that there were no acute findings.
Based on the x-ray of appellant’s right hand, Dr. Villalobos-Silva diagnosed hand and thumb
contusions, skin abrasion, and a possible human bite as a result of the April 10, 2019 assault. He
provided that appellant could return to work on April 14, 2019.
In an April 26, 2019 report of work status, an injury compensation specialist for the
employing establishment, noted that appellant returned to regular-duty work on April 14, 2019
with no restrictions.
By decision dated May 22, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the injury and/or events occurred as he
described. It noted that he did not provide specific details of the circumstances and what
employment-related activities caused his condition as he did not submit a signed Form CA-1 or
respond to OWCP’s development questionnaire.
OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.

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LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish 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 FECA,4 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury. 5 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. 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. 8 Second, the
employee must submit sufficient evidence to establish that the employment incident caused a
personal injury.9 An employee’s statements alleging that an injury occurred at a given time and in
a given manner are of great probative value and will stand unless refuted by strong or persuasive
evidence.10
Pursuant to OWCP’s procedures, no development of a claim is necessary when there is a
visible injury, even when time has been lost from work due to disability, following a serious injury
(motor vehicle accidents, stabbings, shootings, etc.).11 The procedures provide that no
development is necessary when the employing establishment does not dispute the facts of the case
and there are no questionable circumstances surrounding the case. No medical report is required
to establish a minor condition such as a laceration. 12 Sound judgment should be employed in these
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).
12

Id.

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cases to provide appropriate and immediate medical care for the injured worker since expeditious
treatment for these injuries is critical. 13
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that an incident
occurred in the performance of duty on April 10, 2019.
Appellant indicated on his claim form, that at 2:45 p.m. on April 10, 2019 he sustained a
sprained ligament and bite to his left hand, as well as scratches to his left forearm, left bicep, neck,
and face after a detainee swung a shackle at him and bit him during a cell extraction. While
appellant’s supervisor checked a box marked “no” indicating that appellant was not injured while
in the performance of duty, his explanation confirmed that the mechanism of injury was appellant
being struck in the hand by a chain and bitten by a noncompliant detainee during the removal
process. The employing establishment provided no information to refute appellant’s statement.
Moreover, Dr. Villalobos-Silva’s contemporaneous medical report provided a consistent history
of injury, noted clinical findings, and diagnosed hand and thumb contusions, skin abrasion, and a
possible human bite as a result of the April 10, 2019 assault.
Appellant submitted a singular account of the mechanism of injury that has not been refuted
by any evidence in the record. 14 His actions surrounding the incident corroborate his description,
as he sought medical treatment the same day after his alleged injury, presenting to the hospital
with pain in his right wrist, hand, and thumb, as well as a human bite on his left hand and scratches.
Dr. Villalobos-Silva’s April 10, 2019 medical report also noted that appellant was injured after
attempting to control a detainee and that the detainee struck his hand with shackles and bit his left
hand. Thus, the Board finds that appellant has met his burden of proof to establish the
April 10, 2019 employment incident occurred as alleged.
The Board further finds that the evidence of record is sufficient to determine that
appellant’s abrasions are causally related to the April 10, 2019 assault. OWCP’s procedures
provide that in cases where there is a serious injury from an employment incident, and the
employing establishment does not dispute the facts of the incident alleged, that the claim may be
accepted for conditions even without a medical report with other more serious conditions being
developed through obtaining medical evidence. 15 Appellant indicated on his claim form, that at
2:45 p.m. on April 10, 2019 he sustained a sprained ligament and bite to his left hand, as well as
scratches to his left forearm, left bicep, neck, and faceafter a detainee swung a shackle at him and
bit him during a cell extraction. The accepted employment incident was an assault in which he
was left injured and in need of emergency medical services. Upon obtaining emergency medical
treatment, and after diagnostic testing, it was confirmed that appellant sustained skin abrasions on
that date. The contemporaneous medical reports provide a consistent history of injury and
Dr. Villalobos-Silva, in his April 10, 2019 report, diagnosed skin abrasions directly related to the
13

See E.H., Docket No. 19-1282 (issued December 23, 2019); M.C., Docket No. 18-1278 (issued March 7, 2019);
R.T., Docket No. 08-0408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).
14

A.C., Docket No. 18-1567 (issued April 9, 2019).

15

See supra note 11.

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assault in which appellant had been involved. The Board finds that this evidence is sufficient to
establish that appellant sustained skin abrasions and those conditions are causally related to the
accepted April 10, 2019 employment incident.
Upon return of the case file OWCP shall make payment and/or reimbursement of medical
expenses and wage-loss compensation, if any, with regard to the accepted skin abrasions. It shall
also consider the medical evidence of record with regard to additional alleged conditions related
to the accepted employment injury. Following such further development as deemed necessary it
shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish skin abrasions while
in the performance of duty on April 10, 2019. The Board further finds that the case is not in posture
for decision as to additional claimed conditions due to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 21, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 21-0369
Issued: August 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 13, 2021 appellant filed a timely appeal from a December 2, 2020 merit
decision and a January 5, 2021 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. § 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a left hand
condition causally related to the accepted October 9, 2020 employment incident; and (2) whether
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 5, 2021 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.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 19, 2020 appellant, then a 43-year-old rural delivery specialist, filed a
traumatic injury claim (Form CA-1) alleging that on October 9, 2020 when operating a motor
vehicle, he was involved in a head-on collision, injuring his left hand while in the performance of
duty. He stopped work on October 9, 2020.
In support of his claim, appellant submitted an x-ray report dated October 9, 2020 from
Dr. Glenn Hammer, a Board-certified diagnostic radiology and neuroradiology specialist.
Dr. Hammer stated that appellant presented with low ulnar hand pain after a vehicle collision. He
found no fracture or dislocation.
Appellant also submitted an x-ray report dated October 19, 2020, from Dr. David Jensen,
a Board-certified diagnostic radiology specialist. Dr. Jensen stated that appellant was seen for left
hand pain stemming from a motor vehicle accident on October 9, 2020. He found no fractures or
abnormalities.
In a development letter dated October 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
On October 28, 2020 the employing establishment issued an authorization for examination
and/or treatment (Form CA-16), authorizing appellant to seek medical care for the alleged injury.
In an October 28, 2020 report, a nurse practitioner indicated that appellant’s findings were
negative for a hand injury, but that a brace had been given to him on October 19, 2020.
OWCP received a report dated November 9, 2020 from Dr. Lindsey Caldwell, a Boardcertified orthopedic surgeon. Dr. Caldwell related that appellant’s left wrist did not reveal a
fracture, but that his symptoms appeared to be secondary to a soft tissue contusion, with ulnar
nerve symptoms that could be nerve compression in the Guyon’s canal. He diagnosed left wrist
pain and advised that appellant could return to work with a five-pound lifting restriction.
By decision dated December 2, 2020, OWCP found that appellant had established that the
incident occurred as alleged, but denied the claim as the evidence did not establish a medical
diagnosis causally related to the accepted incident. It concluded, therefore, that the requirements
had not been met to establish an injury as defined by FECA.
In response, appellant resubmitted the November 9, 2020 report from Dr. Caldwell. In an
addendum to that, report dated November 20, 2020, Dr. Caldwell noted that OWCP had requested
a more specific diagnosis and a statement regarding causal relationship. He assessed injury of the
ulnar nerve at the hand/wrist, caused by appellant’s injury. Appellant also submitted a response
to OWCP’s development questionnaire.

2

On December 7, 2020 appellant requested reconsideration.
OWCP subsequently received a December 18, 2020 report from Dr. Mederic Hall, a
Board-certified physical medicine and rehabilitation specialist. He evaluated appellant’s left ulnar
nerve and found no abnormalities. Dr. Hall related a diagnosis of left wrist pain.
In subsequent reports dated December 21, 2020, Dr. Caldwell diagnosed left wrist pain and
provided work restrictions.
By decision dated January 5, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
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, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
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.
There are two components involved in establishing fact of injury. The first component to be
established is that, 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. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
3

Supra note 1.

4
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).

3

be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a left hand
condition causally related to the accepted October 9, 2020 employment incident.
In a report dated November 9, 2020, Dr. Caldwell diagnosed appellant with left hand pain.
The Board has held that pain is a symptom and not a compensable medical diagnosis.10
Dr. Caldwell also did not provide an opinion as to causal relationship. As noted, 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.11 This report, therefore, is insufficient to establish
appellant’s claim.
OWCP received radiology reports dated October 9, 2020 from Dr. Hammer and
October 19, 2020 from Dr. Jensen. The Board has held that diagnostic tests, standing alone, lack
probative value on the issue of causal relationship as they do not address the relationship between
the accepted employment factors and a diagnosed condition.12 For this reason, Dr. Hammer and
Dr. Jensen’s reports are insufficient to meet appellant’s burden of proof.
OWCP also received an October 28, 2020 report from a nurse practitioner. The Board has
held that medical reports signed solely by a nurse practitioner are of no probative value as such
providers are not considered physicians as defined under FECA.13 This report is, therefore,
insufficient to establish appellant’s claim.
As the medical evidence of record is insufficient to establish a diagnosed left hand
condition causally related to the accepted employment incident, the Board finds that appellant has
not met his burden of proof.

9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

11

Id.

12

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

13

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); M.C., Docket
No. 19-1074 (issued June 12, 2020); S.L., Docket No. 19-0607 (issued January 28, 2020) (nurse practitioners are not
considered physicians under FECA.

4

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 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.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.16 If it 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 Board finds that appellant has not alleged or demonstrated that OWCP erroneously
applied or interpreted a specific point of law. Moreover, appellant has not advanced a relevant
legal argument not previously considered. Consequently, he is not entitled to a review of the merits

14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); 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 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).
16
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 (iFECS). Id. at Chapter 2.1602.4b.
17

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

18
Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

5

of his claim based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).19
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted reports dated November 20 and
December 1, 2020 from Dr. Caldwell and December 18, 2020 from Dr. Hall. He also submitted
narrative and radiological reports previously of record. These reports were cumulative of the prior
evidence of record and did not relate a firm diagnosis of appellant’s left wrist condition, resulting
from the accepted motor vehicle incident. Evidence which repeats or duplicates evidence already
in the case record has no evidentiary value and does not constitute a basis for reopening a case. 20
Appellant has not submitted relevant and pertinent new evidence of a medically diagnosed
condition causally related to the accepted employment incident.21 As he did not provide relevant
and pertinent new evidence, he is not entitled to a merit review based on the third requirement
under 20 C.F.R. § 10.606(b)(3).22
The Board, accordingly, finds that OWCP properly determined that appellant was not
entitled to further reviews of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left hand
condition causally related to the accepted October 9, 2020 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).24

19

C.B., Docket No. 18-1108 (issued January 22, 2019).

20

V.L., Docket No. 19-0069 (issued February 10, 2020); A.K., Docket No. 19-1210 (issued November 20, 2019);
R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron, 57 ECAB 207 (2005).
21

A.K., id., P.C., Docket No. 18-1703 (issued March 22, 2019).

22

See T.W., Docket No. 18-0821 (issued January 13, 2020).

23

J.B., supra note 18; D.G., Docket No. 19-1348 (issued December 2, 2019).

24

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No.
19-1904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracey P. Spillane, 54
ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2020 and January 5, 2021
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 15-0701
Issued: December 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On February 6, 2015 appellant filed a timely application for review from an October 22,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $2,816.00 from May 4 through June 28, 2014;
(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment
and therefore not entitled to waiver of the recovery; and (3) whether it properly required
repayment of the overpayment by deducting $50.00 every 28 days from her continuing
compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 16, 1996 appellant, then a 48-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging pain in her arms and hands. OWCP accepted her claim for
bilateral carpal tunnel syndrome on December 27, 1996. Appellant received periodic rolls
payments as of June 16, 2002.
On June 9, 2003 appellant chose to receive electronic direct deposit of her compensation
benefits.
After several attempts to reduce appellant’s wage-earning capacity, on March 17, 2011,
she was returned to the periodic rolls at a gross payment of $3,335.00 every 28 days.
On February 26, 2014 OWCP again proposed to reduce appellant’s compensation based
on her ability to earn wages as a customer service representative. It noted that the wage-earning
capacity of this position was $392.00 per week and that, because this rate of pay was lower than
the current pay of the job held when she was injured, it proposed to reduce her wage-loss
benefits to $1,751.00 every four weeks.
By decision dated April 16, 2014, OWCP finalized the reduction of appellant’s
compensation as she had the ability to earn wages of a customer service representative.
On May 5, 2014 appellant requested a review of the written record before the Branch of
Hearings and Review. By decision dated June 12, 2014, OWCP denied her request as untimely.
In an “ACPS” report dated July 1, 2014, OWCP noted that compensation had not been
reduced as appropriate following the decision of April 16, 2014.
By letter dated August 8, 2014, OWCP informed appellant of a preliminary finding of
overpayment in the amount of $2,816.00 because compensation for temporary total disability had
inadvertently been paid at the previous higher rate from May 4 through June 28, 2014 after she
had received a decision regarding a reduction of her compensation based on her wage-earning
capacity.
By decision dated October 22, 2014, OWCP finalized its finding of overpayment in the
amount of $2,816.00. It directed withholding $50.00 of continuing compensation payments
effective October 19, 2014.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA2 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 his or her duty.3 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
2

Id.

3

Id. at § 8102(a).

2

or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.4 OWCP’s procedure manual
identifies various situations when overpayments of compensation may occur, including when
adjustments are made to the rate of pay.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,816.00. The record reflects that OWCP issued a decision on April 16, 2014 finalizing a
proposed reduction of her compensation on the basis that she had the ability to earn wages of a
customer service representative. The wage-earning capacity of this position was $293.00 per
week and because this rate of pay was lower than the current pay of the job held when appellant
was injured, OWCP proposed to reduce her wage-loss benefits to $1,751.00 every four weeks.
However for the period May 4 through June 28, 2014, appellant was paid at her prior pay rate.
She is not contesting the amount of overpayment. The Board finds that OWCP properly
determined that appellant received an overpayment in the amount of $2,816.00 for the period
May 4 through June 28, 2014.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of this subchapter or would be against
equity and good conscience.6 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.7
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid
individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.8
With respect to whether an individual is without fault, section 10.433(b) of OWCP
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the

4

Id. at § 8129(a).

5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(e) (May 2004).
6

5 U.S.C. § 8129(b).

7

Gregg B. Manston, 45 ECAB 344, 354 (1994).

8

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116, 118 (1999).

3

overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
OWCP applied the third standard in this case, finding that appellant accepted
compensation payments that she knew or should have known were incorrect. Appellant accepted
wage-loss compensation for the period May 4 through June 28, 2014, at her original pay rate
despite a decision dated April 16, 2014 reducing her benefits based upon her wage-earning
capacity. The Board finds, however, that OWCP failed to establish that, at the time she accepted
the first payment of compensation, she knew or should have known that the payments were
incorrect.
In cases where a claimant receives compensation through direct deposit, the Board has
held that OWCP must establish that at the time a claimant received the direct deposit in question
that he or she knew or should have known that the payment was incorrect.10 The Board has held
that an employee who receives payments from OWCP in the form of a direct deposit may not be
at fault for the first incorrect deposit into his or her account, since the acceptance of the
overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.11
Because the fault is defined by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that the claimant lacks the
requisite knowledge at the time of the first incorrect payment.12 Whether or not OWCP
determines that an individual is at fault with respect to the creation of an overpayment depends
on the circumstances surrounding the overpayment.13 It is not appropriate, however, to make a
finding that a claimant has accepted an overpayment by direct deposit until such time as a
reasonable person would have been aware that this overpayment had occurred. This awareness
could be established either through documentations such as a bank statement or notification from
OWCP or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.14
The Board finds that appellant was not at fault in the creation of the overpayment for the
first direct deposit payment she received on May 31, 2014. While appellant received the
decision dated April 16, 2014 reducing her compensation, and received compensation during the
period May 4 through June 28, 2014, her check was deposited electronically into her account and
this was the first incorrect payment made to her. There is no documentation or other evidence to
demonstrate that she had clear knowledge at the time she received a direct deposit from OWCP
that the payment was incorrect or that a reasonable period of time passed during which she could
9

Id. at § 10.433(b).

10

See C.K., Docket No. 12-746 (issued May 1, 2012).

11

See Tammy Craven, 57 ECAB 689, 692 (2006).

12

J.S., Docket No. 12-1707 (issued June 10, 2013).

13

Id., see also K.D., Docket No. 13-451 (issued April 12, 2013).

14

See K.H., Docket No. 13-451 (issued April 12, 2013).

4

have reviewed bank statements or been informed of the incorrect payment. Accordingly, OWCP
improperly determined that appellant was at fault in the creation of the overpayment for the
direct deposit on May 31, 2014.
Although OWCP may have been negligent in making incorrect payments, this does not
excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.15 In cases involving a series of incorrect payments, where the requisite knowledge is
established by documentation from OWCP or simply with the passage of time and opportunity
for discovery, the claimant will be at fault for accepting the payments subsequently deposited.16
Thus, by the time of the second payment dated June 28, 2014, appellant should have known that
she was no longer entitled to the same amount of FECA wage-loss compensation as she had
received prior to the April 16, 2014 decision, which reduced her compensation benefits.17
The Board finds that this case is not in posture for decision regarding the issue of waiver
of the recovery of the overpayment for the direct deposit on May 31, 2014. The Board will set
aside the October 22, 2014 decision regarding the issue of fault as to this direct deposit and will
remand the case to OWCP to determine whether appellant is entitled to waiver of recovery for
the direct deposit of compensation covering the period May 4 through 31, 2014. After such
further development as necessary, OWCP shall issue an appropriate decision.18
CONCLUSION
The Board finds that OWCP has established fact and amount of overpayment for the
period May 4 through June 28, 2014. The Board further finds that appellant was without fault
for the period May 4, through 31, 2014. The case will be remanded for findings of fact regarding
waiver of the recovery of the overpayment for the period May 4 through 31, 2014.

15

See William E. McCarty, 54 ECAB 525 (2003).

16

M.M., Docket No. 15-265 (issued May 27, 2015).

17

Id.

18

In view of the Board’s decision on fault, it is premature to address the issue of recovery of the overpayment
from continuing compensation payments.

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further action consistent with this decision of the Board.
Issued: December 9, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, MURRAY HILL
STATION, New York, NY, Employer
__________________________________________

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

Docket No. 06-2026
Issued: March 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 31, 2006 appellant filed a timely appeal from a March 28, 2006 merit decision
of an Office of Workers’ Compensation Programs’ hearing representative which found a 15
percent impairment of the right upper extremity and a 20 percent impairment of the left upper
extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the schedule award appeal. On appeal, counsel argues that the report of the impartial
specialist, Dr. Sanford R. Wert, a Board-certified orthopedic surgeon, requires clarification.
ISSUE
The issue is whether appellant had more than a 15 percent impairment of the right upper
extremity and a 20 percent impairment of the left upper extremity, for which she received a
schedule award.
FACTUAL HISTORY
On February 14, 1995 appellant, then a 50-year-old carrier, filed an occupational disease
claim alleging that she sustained bilateral carpal tunnel syndrome causally related to her federal

employment. On April 7, 1995 the Office accepted her claim for bilateral carpal tunnel
syndrome. The Office authorized left wrist carpal tunnel release surgery on September 20, 1995
and right wrist carpal tunnel release surgery on March 5, 1996. The surgeries were performed on
November 14, 1995 and June 18, 1996. Appellant returned to limited-duty work on January 2,
1996, stopped work on June 18, 1996 and returned to limited-duty work on July 21, 1996.1
Appellant filed a claim for a schedule award on July 9, 2000 and submitted an April 23,
2000 report from Dr. David Weiss, an osteopath, who reviewed her medical history and her
complaint of bilateral pain and stiffness in the hands as well as “pins and needles sensation.”
She noted that she had difficulty making a fist bilaterally. Physical findings of the left hand and
wrist included “suggestive thenar atrophy,” positive Tinel’s, Phalen’s and carpal compression
testing. A physical examination of the right hand and wrist revealed thenar atrophy, positive
Tinel’s sign, Phalen’s and carpal compression testing. Grip strength testing with a Jamar hand
dynamometer demonstrated 18 kilograms on the right and 14 on the left. Sensory examination of
the ulnar and median nerve failed “to reveal any perceived dermatomal abnormalities.”
Dr. Weiss diagnosed cumulative and repetitive trauma disorder and bilateral carpal tunnel
syndrome, status post release. He advised that, under the fourth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2
at Table 16, page 57, appellant had a 20 percent impairment for median nerve entrapment at the
right wrist and a 30 percent impairment for median nerve entrapment at the left wrist.
By memorandum dated August 22, 2000, the Office requested that the Office medical
adviser make a determination of appellant’s impairment under the A.M.A., Guides. On
October 10, 2000 the Office medical adviser concluded that appellant had a 10 percent
permanent impairment of the right upper extremity and a 10 percent permanent impairment of
the left upper extremity. In a report dated October 30, 2000, the Office medical adviser stated
that he used Table 16 on page 57 to calculate a 10 percent impairment for mild right carpal
tunnel syndrome and a 20 percent impairment for moderate left carpal tunnel syndrome.
By letter dated December 6, 2000, the Office referred appellant to Dr. Wert to resolve the
conflict between appellant’s treating physician, Dr. Weiss, and the Office medical adviser with
regard to the extent of appellant’s impairment. In a medical report dated January 3, 2001,
Dr. Wert related appellant’s history, current complaints and findings on physical examination. A
physical examination of the right wrist revealed 70 degrees of volar flexion, 65 degrees of
dorsiflexion, 10 degrees of radial deviation and 10 degrees of ulnar deviation. The left wrist
physical findings included 70 degrees of volar flexion, 65 degrees of dorsiflexion, 10 degrees of
radial deviation and 10 degrees of ulnar deviation. Dr. Wert reported positive Tinel’s and
Phalen’s signs and pain with wrist movement. He then provided his opinion on permanent
impairment:
“Based upon today’s examination, in conjunction with the claimant’s story, the
claimant’s occupation propitiated the condition in her hands resulting in bilateral
carpal tunnel syndrome. The claimant underwent surgery for right and left carpal
1

Appellant retired from the employing establishment.

2

A.M.A., Guides (4th ed.)

2

tunnel release in 1995 and 1996 respectively. Based upon the A.M.A., [Guides],
the claimant is afforded an impairment rating as follows:
With respect to the right wrist, the claimant is afforded a 15 percent loss of
use.
With respect the left wrist, the claimant is afforded a 20 percent loss of
use.”
On March 19, 2001 the Office referred Dr. Wert’s January 3, 2001 schedule award
evaluation to another Office medical adviser for review. In a report dated April 5, 2001, an
Office medical adviser reviewed the medical reports and concluded that appellant had a 10
percent impairment of the right upper extremity and a 10 percent impairment of the left upper
extremity based on Table 16, page 57.
On May 9, 2001 the Office issued a schedule award for a 10 percent impairment of each
upper extremity. The period of the award ran from April 19 to June 29, 2001.
Appellant requested an oral hearing which was held on October 25, 2001.
In a decision dated February 4, 2002, an Office hearing representative found that there
was an unresolved conflict in the medical opinion evidence and set aside the May 9, 2001
decision. He instructed the Office on remand to obtain clarification from Dr. Wert regarding his
evaluation including using the fifth edition of the A.M.A., Guides.
In a supplemental report dated April 4, 2002, Dr. Wert calculated appellant’s impairment
as follows:
“Page 467, deficits by wrist motion impairment, three percent for impairment in
extension, and four percent for impairment in flexion, totaling seven percent in
the left wrist (Figure 16[-]28). Page 495, Category 2, the claimant was afforded
another five percent with respect to the left wrist due to due to (sic) positive
findings, and another eight percent due to sensory deficit and pain Grade 4,
according to [T]able 16-10, page 482. The total loss of use is 20 percent.
“Page 467, deficits by wrist motion impairment, three percent for impairment in
extension, and four percent for impairment in flexion, totaling seven percent in
the left3 wrist (Figure 16[-]28). Page 495, Category 2, the claimant was afforded
another five percent with respect to the right wrist due to) positive findings,
another three percent due to pain and the need to wear night braces according to
[T]able 16-10, page 482. The total loss of use is 15 percent.”
On April 22, 2002 the Office issued a schedule award for a 15 percent impairment of the
right upper extremity and a 20 percent impairment of the left upper extremity. The period of the
award was June 30, 2001 to May 23, 2002.
3

This appears to be a typographical error as the physician is referencing the right wrist in this paragraph.

3

In a letter dated April 26, 2002, appellant requested an oral hearing which was held on
February 8, 2006.
In a decision dated March 28, 2006, an Office hearing representative affirmed the
April 22, 2002 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulation5 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.6 Effective February 1, 2001, the fifth edition
of the A.M.A., Guides is used to calculate schedule awards.7
Section 8123(a) of the Act provide, in pertinent part, “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.9 However, in a situation where the Office secures an
opinion from an impartial medical examiner for the purpose of resolving a conflict in the medical
evidence and the opinion from such examiner requires clarification or elaboration, the Office has
the responsibility to secure a supplemental report from the examiner for the purpose of correcting
the defect in the original opinion.10
ANALYSIS
The Office accepted appellant’s claim for an aggravation of bilateral carpal tunnel
syndrome. Appellant underwent a right carpal tunnel release on June 18, 1996 and a left carpal
tunnel release on November 14, 1995. She requested a schedule award on July 9, 2000. The
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003);
see Jesse Mendoza, 54 ECAB 802 (2003).
8

5 U.S.C. § 8123(a); Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

9

John E. Cannon, 55 ECAB 585 (2004).

10

Nancy Keenan, 56 ECAB ___ (Docket No. 05-949, issued August 18, 2005).

4

Board finds that this case is not in posture for a decision. Further development of the medical
evidence is required.
Chapter 16 of the A.M.A., Guides provides the framework for assessing upper extremity
impairments.11 With regard to carpal tunnel syndrome, the A.M.A., Guides provides:
“If after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present -1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual [carpal tunnel
syndrome] is rated according to the sensory and/or motor deficits as
described [in Tables 16-10a and 16-11a].
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal [electromyogram] testing of the thenar
muscles: a residual [carpal tunnel syndrome] is still present and an
impairment rating not to exceed [five percent] of the upper extremity may
be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”12
In order to resolve the conflict between the opinion of appellant’s physician Dr. Weiss
and the Office medical adviser with regard to the degree of permanent impairment of the upper
extremities, the Office properly referred appellant to Dr. Wert for an impartial medical
examination. Pursuant to instructions from an Office hearing representative, the Office
requested a supplemental report from Dr. Wert using the fifth edition of the A.M.A., Guides.
Dr. Wert’s April 4, 2002 supplemental report, however, does not resolve the issue. He does not
discuss why appellant falls into category 2 of the standards for determining impairment for
carpal tunnel syndrome. Dr. Wert failed to specify the applicable tables and figures of the
A.M.A., Guides upon which he relied in calculating his impairment rating for lack of flexion and
extension beyond noting the page number. With respect to the use of Table 16-10, page 482,
Dr. Wert assigned appellant an eight percent impairment for the left wrist and a three percent
impairment for the right wrist. However, Dr. Wert did not explain how he used Table 16-10 in
reaching this impairment rating, i.e., with regard to the grading classification for the description
of sensory deficit or pain. It is also unclear whether and if he followed the procedure under
Table 16-10b as he does not identify the peripheral nerve involved or reference the applicable
table he used to calculate the impairment rating. Based on this report, the Board is unable to
render an informed judgment as to whether Dr. Wert’s impairment is in conformance with the
protocols of the A.M.A., Guides.
11

A.M.A., Guides 433-521.

12

Id. at 495

5

As the opinion of Dr. Wert is in need of clarification and elaboration, his report may not
be afforded the special weight of an impartial medical specialist. After such further development
as the Office deems necessary, a de novo decision should be issued with regard to appellant’s
impairment of the upper extremities.
CONCLUSION
The Board finds that this case is not in posture for decision due to an unresolved conflict
in the medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 26, 2006 opinion is set aside and the case remanded to the Office for further proceedings
consistent with this decision of the Board.
Issued: March 23, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 07-532
Issued: June 6, 2007

Case Submitted on the Record

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

JURISDICTION
On November 30, 2006 appellant filed an appeal of a February 7, 2006 decision of the
Office of Workers’ Compensation Programs denying his traumatic injury 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 established that he sustained a right foot injury in the
performance of duty.
FACTUAL HISTORY
On May 5, 2005 appellant, then a 58-year-old program support clerk, filed a traumatic
injury claim (Form CA-1) asserting that on April 19, 2005 he injured his right foot when it

became caught in a revolving door at work. He submitted a May 12, 2005 letter from
Dr. Mark H. Moss, an attending podiatrist, diagnosing a Morton’s neuroma of the right foot.1
In an October 13, 2005 letter, the Office advised appellant of the additional medical and
factual evidence needed to establish his claim. The Office emphasized the need to submit a
report from his physician explaining how and why the April 19, 2005 incident would cause a
right foot injury. Appellant was afforded 30 days in which to submit such evidence.
In an October 25, 2005 letter, Claudeth Jordan, one of appellant’s coworkers, stated that
on April 19, 2005 she saw appellant stop abruptly while exiting a revolving door and heard him
say that his right foot was twisted. “[H]e also had a slight limp after coming through the door.”
In a November 1, 2005 report, Dr. David Spinks, an attending Board-certified internist,
noted that appellant injured his right foot at work on April 19, 2005. He diagnosed plantar
fasciitis and a neuroma of the right foot.
By decision dated November 16, 2005, the Office denied the claim on the grounds that
fact of injury was not established. The Office found that appellant submitted insufficient
evidence that the April 19, 2005 incident occurred as alleged.
In a December 16, 2005 letter, appellant requested a review of the written record by a
representative of the Office’s Branch of Hearings and Review. He asserted that the employing
establishment and the Office had not dealt fairly with him. Appellant submitted a January 9,
2006 letter reiterating these contentions.
By decision dated and finalized February 7, 2006, the Office hearing representative
modified the November 16, 2005 decision to accept that the April 19, 2005 incident occurred at
the time, place and in the manner alleged. The hearing representative further found that
appellant submitted insufficient rationalized medical evidence to establish that the April 19, 2005
incident caused the diagnosed Morton’s neuroma.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential

1

Appellant submitted April 20 and 27, 2005 medical forms with illegible signatures. It is well established that
medical evidence lacking proper identification is of no probative medical value. Merton J. Sills, 39 ECAB
572 (1988).
2

5 U.S.C. §§ 8101-8193.

3

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

2

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.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
ANALYSIS
The Office accepted that on April 19, 2005 appellant caught his right foot in a revolving
door at work. The Office denied appellant’s claim on the grounds that the medical evidence
submitted did not establish that the April 19, 2005 incident caused a right foot injury.
Dr. Moss, an attending podiatrist, diagnosed a Morton’s neuroma of the right foot.
Dr. Spinks, an attending Board-certified internist, noted that appellant sustained an occupational
right foot injury on April 19, 2005 and diagnosed plantar fasciitis and a neuroma of the right
foot. Neither physician explained how and why the accepted April 19, 2005 incident would
cause a Morton’s neuroma, plantar fasciitis or any other medical condition. Without such
rationale, the opinions of Dr. Moss and Dr. Spinks are of insufficient probative value to establish
causal relationship in this case.7 Thus, appellant has not submitted medical evidence establishing
that the accepted April 19, 2005 incident caused any injury or condition. Therefore, he has failed
to meet his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained a right foot injury in
the performance of duty as alleged.

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 7, 2006 is affirmed.
Issued: June 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________

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

Docket No. 13-1659
Issued: February 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2013 appellant filed a timely appeal from a January 17, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as untimely and insufficient to establish clear evidence of error. As more than
180 days has elapsed between the last merit decision dated November 10, 2011 and the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 6, 2004 appellant, then a 49-year-old manual clerk, filed an occupational
disease claim alleging that she sustained right shoulder, hand and neck pain casually related to
factors of her federal employment. She also attributed her condition to a prior injury to her left
hand and shoulder. Appellant stopped work on February 27, 2004. OWCP accepted the claim
for bilateral impingement syndrome of the shoulders, bilateral brachial neuritis, neck sprain and
a recurrent dislocation of the left shoulder. Appellant underwent surgeries on her shoulders and
the cervical spine. On June 2008 she stopped work and did not return. By decision dated
February 15, 2005, OWCP found that appellant’s actual earnings as a modified mail clerk
effective April 9, 2004 fairly and reasonable represented her loss of wage-earning capacity.
Appellant subsequently stopped work for left shoulder surgery.
By decision dated August 28, 2009, OWCP terminated appellant’s wage-loss
compensation effective September 27, 2009 after finding that she refused a June 26, 2009 offer
of suitable work under 5 U.S.C. § 8106(c). It found that the opinion of Dr. James Hood, a
Board-certified orthopedic surgeon, constituted the weight of the evidence and established that
she had the capacity to work in the offered position. In decisions dated November 3, 2009,
October 14, 2010 and November 10, 2011, OWCP denied modification of its suitable work
termination.2
By letter dated November 10, 2012, received by OWCP on January 2, 2013, appellant
requested reconsideration of the November 10, 2011 decision. She contended that at the time of
the job offer she was on prescription medications which had side effects that rendered the offered
position unsuitable. Appellant further maintained that Dr. Hood failed to consider the effect of
her medication when finding the job offer suitable. She submitted a list of prescription
medications filled in 2009.
Appellant additionally submitted medical evidence, including the results of
September 26, 2012 bilateral shoulder arthrograms. In a report dated December 17, 2012,
Dr. James Key, an osteopath, discussed appellant’s complaints of neck and shoulder pain
bilaterally. He diagnosed cervical disc degeneration, neck sprain, a bilateral rotator cuff
condition, bilateral shoulder dislocation and bilateral brachial neuritis. Dr. Key recommended
diagnostic studies and continued physical therapy.
On October 12, November 9 and December 4, 2012 and January 4, 2013 appellant was
evaluated for pain in her neck, shoulders, arms and hands. The provider recommended that she
continue with pain patches.3 In reports dated November 14 and December 10, 2012 and
January 3, 2013, a behavioral medical consultant provided pain management and coping skills.
On December 8, 2012 appellant underwent a cervical nerve block.

2

In its October 14, 2010 and November 10, 2011 decisions, OWCP noted that it had accepted a September 10,
1998 occupational disease claim, assigned file number xxxxxx614, for left shoulder tendinitis, left carpal tunnel
syndrome and left de Quervain’s tenosynovitis.
3

The provider is not a physician.

2

On December 23, 2012 appellant informed OWCP that she had requested reconsideration
by letter dated November 10, 2012. She resubmitted the November 10, 2012 reconsideration
request.
By decision dated January 17, 2013, OWCP denied appellant’s request for
reconsideration after finding that it was not timely filed and did not demonstrate clear evidence
of error.
On appeal appellant argues that she timely requested reconsideration and cited as support
an undated OWCP document number. She contends that a review of the evidence shows that
OWCP erred in adjudicating her claim.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.4 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.5
The term ‘clear evidence of error’ is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.6 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise and explicit and must manifest on its face that it committed an error.7
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.8 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.9 As appellant’s November 10,
4

5 U.S.C. § 8101 et seq.

5

20 C.F.R. § 10.607.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011).

7

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
8

20 C.F.R. § 10.607(a).

9

Robert F. Stone, supra note 7.

3

2012 request for reconsideration was received on January 2, 2013, more than one year after the
last merit decision of record dated November 10, 2011, it was untimely.10 Consequently, she
must demonstrate clear evidence of error by OWCP in denying her claim for compensation.11
The Board finds that appellant has not submitted evidence or advanced arguments
sufficient to raise a substantial question as to the correctness of OWCP’s November 10, 2011
decision or prima facie shift the weight of the evidence in her favor. OWCP terminated her
wage-loss compensation on September 27, 2009 based on its finding that she refused an offer of
suitable work. In her request for reconsideration, appellant alleged that the offered position was
not suitable because of the prescription medications that she was taking at the time of the job
offer. She enclosed a list of prescription medications from 2009. The issue of whether appellant
had the physical capacity to accept the offered position is, however, a medical question. As the
issue is medical in nature, it can only be resolved through the submission of medical evidence.12
Appellant’s lay opinion regarding the adverse effects of prescribed medication rendering the
selected position unsuitable is not relevant as the Board has held that lay individuals are not
competent to render a medical opinion.13 Consequently, her contention is insufficient to
establish clear evidence of error by OWCP.
Appellant additionally alleged that Dr. Hood failed to take into consideration that she was
taking medication in his finding the offered position suitable. In his February 3 and 17, 2009
reports, however, Dr. Hood discussed her current treatment, including prescribed medications, in
finding that she could work with restrictions.
Appellant submitted the results of bilateral shoulder arthrograms obtained September 26,
2012, reports dated November 14 and December 10, 2012 from a behavioral medical consultant,
and therapy reports dated October 2012 through January 2013. This evidence does not contain a
physician’s report addressing the relevant issue of whether she had the physical capacity to
accept the offered position and therefore is insufficient to show clear evidence of error.14
In a report dated December 17, 2012, Dr. Key diagnosed cervical disc degeneration, neck
sprain, a bilateral rotator cuff condition, bilateral shoulder dislocations and bilateral brachial
neuritis. He did not, however, address the question of appellant’s work capacities at the time of

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).
For decisions issued on or after August 29, 2011, the one-year period begins on the date of the original decision, and
the application for reconsideration must be received by OWCP within one year of the date of OWCP’s decision for
which review is sought.
11

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

12

See George C. Vernon, 54 ECAB 319 (2003).

13

See M.B., Docket No. 12-1000 (issued October 4, 2012); Gloria J. McPherson, 51 ECAB 441 (2000).

14

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

4

the June 26, 2009 job offer. As discussed, in order to establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP.15
On appeal appellant alleged that she timely requested reconsideration and referred to an
undated OWCP document. As noted, the one-year period for requesting reconsideration begins
on the date of the original OWCP decision and is determined by the date that the request is
received by OWCP.16 The last merit decision was issued November 10, 2011. OWCP did not
receive appellant’s reconsideration request until January 2, 2013. Therefore, her request was
untimely and OWCP properly considered the request under the clear evidence of error standard.
Appellant also contends that a review of the evidence shows that OWCP erred in
adjudicating her claim. To establish clear evidence of error, it is not sufficient merely to show
that the evidence could be construed so as to produce a contrary conclusion. The term clear
evidence of error is intended to represent a difficult standard.17 None of the evidence submitted
manifests on its face that OWCP committed an error in denying appellant’s claim. Appellant has
not provided evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of
error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not demonstrate clear evidence of error.

15

Id.

16

See supra note 11.

17

See Dean D. Beets, 43 ECAB 1153 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the January 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2014
Washington, DC

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

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

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

6