United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Wilmington, DE, Employer
__________________________________________

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

Docket No. 11-506
Issued: October 5, 2011

Case Submitted on the Record

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

JURISDICTION
On December 24, 2010 appellant filed a timely appeal from the December 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a five percent permanent impairment of her left arm, for which she received a schedule award.
FACTUAL HISTORY
On August 28, 2007 appellant, then a 59-year-old information receptionist, filed an
occupational claim alleging that she sustained injury to her left elbow due to her repetitive job
duties. OWCP accepted that she sustained work-related medial epicondylitis of her left elbow.
1

20 C.F.R. § 8101 et seq.

On January 29, 2009 appellant underwent open debridement/repair of the flexor tendon of the
medial epicondyle of her left elbow. The procedure was authorized by OWCP. Appellant did
not return to work after her surgery and she retired from the employing establishment.
In an October 19, 2009 report, Dr. Robert A. Smith, a Board-certified orthopedic surgeon
who served as an OWCP referral physician, advised that electromyogram (EMG) testing from
September 13, 2007 slowed no evidence of any ulnar neuropathy at the left elbow. The only
finding was a mild left median neuropathy or carpal tunnel syndrome. Dr. Smith asserted that
EMG testing that showed evidence of ulnar neuropathy at the left elbow constituted a false
positive result. On physical examination, appellant reported tenderness along the scar on the
medial aspect of her left elbow.
On April 19, 2010 appellant filed a claim for permanent impairment. She previously
received a schedule award for a five percent permanent impairment of her left arm in connection
with another claim accepted for a left shoulder strain.2
In an April 23, 2010 letter, OWCP requested that appellant submit additional factual and
medical evidence in support of her claim. Appellant submitted a May 5, 2010 report in which
Dr. Peter F. Townsend, an attending Board-certified orthopedic surgeon, indicated that she had
reached maximum medical improvement.
In a May 24, 2010 decision, OWCP denied appellant’s claim on the grounds that she did
not submit probative medical evidence showing that she was entitled to additional schedule
award compensation.
Appellant, through counsel, requested reconsideration of OWCP’s May 24, 2010
decision. She submitted a September 27, 2010 report of Dr. Richard I. Zamarin, an attending
Board-certified orthopedic surgeon, who determined that she had an 11 percent permanent
impairment under the standards of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009). Dr. Zamarin stated that, with regard
to appellant’s left shoulder, Table 15-5 (Shoulder Regional Grid) on page 401, dictated that she
be placed under class 1, muscle tendon shoulder pain, which gave a one percent left upper
extremity impairment. Grade modifiers were derived for functional history (grade three due to a
QuickDASH score of 80), physical examination (grade zero) and clinical studies (grade one).
The diagnosis class (class 1) was subtracted from each modifier under the net adjustment
formula so 3-1 + 0-1 + 1-1 = 1. Dr. Zamarin indicated that going back to Table 15-5 on page
401 and moving one space to the right still gave a one percent upper extremity impairment. He
further stated:
“The impairment rating for the medial epicondyle was calculated by first going to
Table 15-4, [p]age 399, Elbow Regional Grid: Upper Extremity Impairments.
Under epicondylitis lateral and medial status post surgical release of
flexor/extensor origins, residual symptoms, is a Default Value of five percent
[u]pper [e]xtremity. Then using again the modifiers on [p]age 406, Table 15-7,
she has a [g]rade 3 [m]odifier with a QuickDASH score of 80. Then going to
[p]age 408, she has a [g]rade 3 [m]odifier due to her significant findings of
2

Appellant previously underwent left rotator cuff surgery which was not work related.

2

tenderness on physical exam[ination]. Then going to [p]age 410, Table 15-9,
Clinical Studies Adjustment: upper extremities, I placed her under a [g]rade 1
[m]odifier due to the clinical studies confirming diagnosis, mild pathology. The
net adjustment is calculated by subtracting the class from each modifier so 3-1 +
3-1 + 1-1 = 4. The maximum that you can go to the right would be two so a five
percent upper extremity impairment is then moved up to a seven percent upper
extremity impairment with regard to the medial epicondylitis.
“Then the upper extremity impairment calculated for the ulnar nerve entrapment
at the elbow was performed by using Table 15-23, on page 449, Entrapment/
Compression Neuropathy Impairment. The appropriate [g]rade [m]odifier for test
findings for the ulnar nerve was normal, which is a [g]rade zero [m]odifier. For
the history it was two because there were significant intermittent symptoms, and
for the physical findings it was [g]rade one because of her normal physical
exam[ination]. These three are added, which equals a three and then divided by
three, which gives it a one. [Appellant] therefore falls under [g]rade [m]odifier
one, which gives a two percent upper extremity impairment. Because of the
QuickDASH score of 80, it moves up to a three percent upper extremity
impairment.
“One then goes to the Combined Values Chart, on [p]age 604, to combine the
upper extremity impairments. A three percent impairment is combined with a one
percent impairment, which gives a four percent upper extremity impairment. A 4
percent upper extremity impairment is then combined with a 7 percent upper
extremity impairment, which gives an 11 percent upper extremity impairment.”
The relevant evidence of record, including the September 27, 2010 report of Dr. Zamarin,
was reviewed by Dr. Arnold T. Berman, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser. In a December 21, 2010 report, Dr. Berman determined that, based on
the standards of the sixth edition of the A.M.A., Guides, appellant had a five percent permanent
impairment of her left arm. He stated that, under Table 15-4 (Elbow Regional Grid) on page
399, appellant’s diagnosis category was a class 1 left medial epicondylitis, status post surgical
debridement and release with residual symptoms. The default value of this category was five
percent (grade C). Dr. Berman further stated:
“According to the [operation] note of January 29, 2009 which showed no ulnar
nerve compression or [electromyogram] and a second operation was not
recommended by Dr. Smith in his [second opinion] of October 19, 2009. There is
full range of motion of the left elbow and grip strength is normal.
“Grid Adjustment and [g]rade [m]odifiers: [p]age 406, functional history, Table
15-7 is grade modifier one (normal [range of motion], mild), page 410, Table 15-9
clinical studies adjustment upper extremities, grade modifier one, clinical studies
confirm diagnosis; [n]et [a]djustment is zero, page 411, [n]et [a]djustment
[f]ormula is applied.
“In summary, the [schedule award] reconsideration of the left upper extremity is
[g]rade C, [c]lass 1, Table 15-4, which is equal to a five percent left upper
3

extremity impairment. The date of [maximum medical improvement] is
October 19, 2009, the date of Dr. Smith’s evaluation.”
In a December 23, 2010 decision, OWCP determined that appellant had not met her
burden of proof to establish that she has more than a five percent permanent impairment of her
left arm, for which she received a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.6 It is well established that in determining the amount of a schedule award
for a member of the body that sustained an employment-related permanent impairment, preexisting
impairments of the body are to be included.7
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the elbow, reference is made to Table 15-5 (Elbow
Regional Grid) beginning on page 398. With respect to the shoulder, reference is made to Table
15-5 (Shoulder Regional Grid) beginning on page 401. After the Class of Diagnosis (CDX) is
determined from the Elbow or Shoulder Regional Grid (including identification of a default
grade value), the Net Adjustment Formula is applied using the grade modifier for Functional
History (GMFH), grade modifier for Physical Examination (GMPE) and grade modifier for
Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH-CDX) + (GMPE-CDX) +

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
7

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.b (June 1993). This portion of OWCP procedure provides that the impairment rating of a
given scheduled member should include “any preexisting permanent impairment of the same member or function.”

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(GMCS-CDX).8 Under Table 15-23 on page 449 a scheme is provided for evaluating
impairment due to entrapment/compression neuropathy, including entrapment of the ulnar
nerve.9 Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating
choices, including choices of diagnoses from regional grids and calculations of modifier scores.10
Section 8123(a) of FECA provides 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.”11 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.12
ANALYSIS
Appellant received a schedule award for a five percent permanent impairment of her left
arm. OWCP determined that appellant was not entitled to additional schedule award based on a
December 21, 2010 report of Dr. Berman, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, who found that appellant did not have additional permanent impairment
under the standards of the sixth edition of the A.M.A., Guides. In a September 27, 2010 report,
Dr. Zamarin, an attending Board-certified orthopedic surgeon, found that appellant had an 11
percent permanent impairment of her left arm under the standards of the sixth edition of the
A.M.A., Guides. The Board finds that there is a conflict in medical opinion between Dr. Berman
and Dr. Zamarin regarding the extent of appellant’s left arm impairment.
In his December 21, 2010 report, Dr. Berman determined that appellant had five percent
impairment due to her left medial epicondylitis, status post surgical debridement and release with
residual symptoms. In contrast, Dr. Zamarin determined that appellant had seven percent
impairment by applying a similar diagnosis-based analysis of appellant’s left elbow condition.
However, Dr, Zamarin derived a greater impairment rating because he felt that appellant’s left
elbow condition collectively warranted higher grade modifier scores for functional history,
physical examination and clinical studies.
Dr. Zamarin also found that, based on the findings on examination and diagnostic testing,
appellant was entitled to three percent impairment for entrapment of her left ulnar nerve. In
contrast, Dr. Berman indicated that, based on his own interpretation of the findings on
examination and diagnostic testing, appellant was not entitled to such a rating. Dr. Zamarin
determined that appellant was entitled to a one percent impairment rating due to a diagnosis8

See A.M.A., Guides (6th ed. 2009) 405-11. Table 15-5 also provides that, if motion loss is present for a claimant
who has undergone a shoulder arthroplasty, impairment may alternatively be assessed using section 15.7 (range of
motion impairment). Such a range of motion impairment stands alone and is not combined with a diagnosis
impairment. Id. at 405, 475-78.
9

Id. at 449.

10

Id. at 23-28.

11

5 U.S.C. § 8123(a).

12

William C. Bush, 40 ECAB 1064, 1975 (1989).

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based assessment of her left shoulder condition. He indicated that this was a preexisting
impairment and therefore should be included in the assessment of appellant’s left arm
impairment.13 In contrast, Dr. Berman did not include an impairment rating for appellant’s left
shoulder because he did not feel that this constituted an employment-related impairment.
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence. On remand OWCP should refer appellant, along with
the case file and the statement of accepted facts, to an appropriate specialist for an impartial
medical evaluation and report including a rationalized opinion on this matter. After such further
development as OWCP deems necessary, OWCP should issue an appropriate decision regarding
appellant’s claim.
CONCLUSION
The Board finds that, due to a conflict in the medical opinion evidence, the case is not in
posture for decision regarding whether appellant has more than a five percent permanent
impairment of her left arm.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: October 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

13

See supra note 7.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 13-404
Issued: July 1, 2013

Case Submitted on the Record

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

JURISDICTION
On December 10, 2012 appellant filed a timely appeal of a July 17, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his claim for wage-loss
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he was disabled due to the April 30,
2011 employment injury, thereby entitling him to wage-loss compensation commencing
June 15, 2011.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 1, 2011 appellant, then a 34-year-old custodian, filed a traumatic injury claim
alleging that on April 30, 2011 he injured his right shoulder while loading a pallet onto a cart.2
OWCP accepted the claim for a contusion of the right shoulder region. On July 2, 2011
appellant filed a claim for wage-loss compensation for the period April 30 to June 17, 2011.
Appellant submitted disability notes in support of his claim for the period May 14 to
June 27, 2011. In a June 14, 2011 disability slip, Dr. Lawrence Bryson, a treating physician,
released appellant to return to work on June 17, 2011, but noted that he had been disabled from
work from May 14 to June 17, 2011. In a June 24, 2011 disability note, Dr. Lawrence Hall, a
treating physician, found that appellant was disabled from June 18 to 26, 2011 and released him
to return to full-duty work on June 27, 2011.
By letter dated July 19, 2011, OWCP notified appellant that he was entitled to
continuation of pay from May 1 to June 14, 2011. It also informed him that the evidence was
insufficient to support his claim for compensation beginning June 15, 2011. OWCP advised
appellant as to the medical evidence required to support his claim for disability commencing
June 15, 2011. No additional evidence was submitted.
By decision dated September 8, 2011, OWCP denied appellant’s claim for wage-loss
compensation as of June 15, 2011.
Subsequent to the denial of his claim, appellant submitted disability slips from Dr. Hall,
indicating that he was disabled from work from July 9 to November 22, 2011.
On September 20, 2011 appellant requested an oral hearing before an OWCP hearing
representative, which was held on May 10, 2012.
In a September 20, 2011 report, Dr. Laura N. Sciaroni, a treating Board-certified
orthopedic surgeon, reviewed a history of the employment injury and medical treatment and
provided findings on examination. She diagnosed a cervical sprain and right shoulder strain.
Dr. Sciaroni reviewed the work excuse from Dr. Hall which found appellant was totally disabled
from April 30 to September 22, 2011 and stated that it was an “unusually long interval to keep
the patient off work.”
On December 5, 2011 OWCP received a November 22, 2011 note from Dr. Hall stating
that appellant was disabled from November 22 to December 12, 2011. In a December 15, 2011
office note, Dr. Bryson, provided physical findings and released appellant to full-duty work with
no restrictions as of December 16, 2011.
In a June 25, 2012 report, Dr. Abraham Y.H. Law, a treating physician, noted that
appellant sustained a right shoulder contusion as the result of the April 30, 2011 employment
injury. He examined appellant on May 13, 2011 and placed him on temporary disability due to
2

Appellant was sent a letter of removal on August 18, 2011 which became effective within 30 days of the date of
the letter.

2

decreased right shoulder range of motion and inflammation. Dr. Law noted that appellant
attempted to return to work in July 2011, but was unable to perform his job duties and was
placed on disability beginning July 9, 2011. He reported that a magnetic resonance imaging scan
was performed in September 2011 which showed rotator cuff damage which he opined was
probably caused by the employment injury. Dr. Law opined that appellant was totally disabled
due to his employment injury until December 12, 2011.
By decision dated July 17, 2012, OWCP’s hearing representative affirmed the
September 8, 2011 denial.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is

3

5 U.S.C. §§ 8101-8193.

4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
8

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

9

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

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claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
ANALYSIS
OWCP accepted that appellant sustained a right shoulder region contusion as a result of
the April 30, 2011 employment injury. Appellant received compensation of pay from May 1 to
June 14, 2011. OWCP found that the medical evidence of record was insufficient to support
wage-loss compensation commencing June 15, 2011. The issue is whether the medical evidence
submitted by appellant supports that his disability on and after June 15, 2011 was causally
related to the accepted April 30, 2011 employment injury. The Board finds that he has not met
his burden of proof.
In his June 25, 2012 report, Dr. Law provided findings on examination and made a
tentative diagnosis of rotator cuff damage which he stated was probably caused by appellant’s
employment injury. He noted that appellant had attempted to return to work in July 2011 and
stated that he was totally disabled for work until December 12, 2011. Dr. Law’s report is
deficient on several counts. It does not provide a firm medical diagnosis of rotator cuff damage
or an opinion as to how appellant’s shoulder condition caused disability.11 Dr. Law did not
discuss appellant’s employment duties or how his current physical condition rendered him
unable to perform those duties. His opinion that appellant’s injury probably caused rotator cuff
damage is speculative and lacks adequate rationale. The Board has held that medical reports
based on insufficient rationale or are speculative regarding causal relation are of diminished
probative value.12 Dr. Law’s report is not sufficient to establish appellant’s disability
commencing June 15, 2011.
Dr. Sciaroni’s September 20, 2011 report also fails to establish that appellant was
disabled for the period in question. She provided examination findings and diagnosed cervical
sprain and right shoulder strain. Dr. Sciaroni did not provide any opinion as to appellant’s
disability commencing June 15, 2011 other than noting that it seemed to be an unusually long
interval to be disabled from work. Her report is insufficient to establish his claim for wage-loss
compensation.13
The record also contains treatment notes and disability slips from Drs. Hall and Bryson
from June 15 to December 12, 2011 indicating generally that appellant was unable to work.
Neither Dr. Hall nor Dr. Bryson addressed the cause of appellant’s disability. Therefore, this
evidence is insufficient to support appellant’s claim for disability. Medical evidence which
offers no opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.14 Neither physician provided findings on examination in the
10

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

Willa M. Frazier, 55 ECAB 379 (2004); see also David L. Scott, 55 ECAB 330 (2004).

12

S.S., 59 ECAB 315 (2008); Cecelia M. Corley, 56 ECAB 662 (2005).

13

See Sandra D. Pruitt, 57 ECAB 126 (2005).

14

Willie M. Miller, 53 ECAB 697 (2002).

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disability certificates. Generally, findings on examination are needed to support a physician’s
opinion that an employee is disabled from work.15 As these disability slips contain no findings
on examination or opinion regarding the cause of disability, they are insufficient to support
appellant’s claim that his disability was employment related.
The Board found insufficient medical evidence supporting that appellant was disabled on
or after June 15, 2011. Appellant has not met his burden of proof to establish his disability on
and after June 15, 2011 was causally related to his accepted April 30, 2011 employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he was disabled due to the
April 30, 2011 employment injury commencing June 15, 2011.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2013
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
15

Laurie S. Swanson, 53 ECAB 517 (2002).

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Monroe, LA, Employer
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___________________________________________ )
R.S., Appellant

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

Docket No. 10-613
Issued: November 19, 2010

Case submitted on the record

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

JURISDICTION
On January 4, 2010 appellant filed a timely appeal from the December 4, 2009 merit
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 this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability beginning November 4, 2008 causally related to his January 5, 2004 employment
injury.
FACTUAL HISTORY
On March 25, 2004 appellant, then a 43-year-old part-time flexible postal carrier, filed an
occupational disease claim alleging that he sustained a heart attack in the performance of duty.
He alleged that he was aware of the condition on January 5, 2004. Appellant stopped work on
January 5, 2004 and missed work intermittently thereafter. On August 15, 2006 the Office
accepted the claim for a myocardial infarction of the anterolateral wall and subsequent episode of

care and it paid wage-loss compensation for intermittent claimed dates through
October 26, 2006. Appellant was released to restricted duty on October 3, 2006.
In a July 16, 2008 report, Dr. Emile A. Barrow, a Board-certified internist, noted that
appellant had an acute myocardial infarction in January 2004. He advised that appellant had
recurrent angina and multiple coronary stint replacements, continued shortness of breath and
fatigue and elevated blood pressure. Dr. Barrow stated that appellant was “very depressed as a
result of his heart attack and his inability to return to his previous level of physical activity.”
In an August 5, 2008 report, Dr. Ronald Hammett, a Board-certified internist, advised
that appellant was unable to work on August 4, 2008 due to chest pain. In a November 7, 2008
disability certificate, he advised that appellant was unable to work due to heart disease. On
November 10, 2008 Dr. Hammett noted that he was seeing appellant for coronary artery disease
and hypertension. He advised that appellant had problems with his coronary artery disease with
continued dyspnea on exertion and exertional chest pain. Dr. Hammett advised that appellant
was “unable to fulfill his duties as a mailman due to the problems related to his heart disease.”
He advised that appellant had “hypertension and underlying type A personality with
hyperlipidemia and an attention deficit disorder.” Dr. Hammett opined that appellant could not
return to work and that the “duration of this debilitation is unclear and indefinite for the time
being until his cardiac status has been clarified by his cardiologist.” He recommended follow up
with a specialist.
In a November 13, 2008 report, Dr. Michael W. Archie, a Board-certified internist,
advised that he saw appellant for developing fibromyalgia, recurrent chest pain, dyspnea on
exertion, chest pains, body aches, muscular pain and discomfort that affected his sleep cycle. He
noted that appellant continued to have a “great deal of stress that is job related and has been
instructed to discontinue work by one of his [physicians].” Dr. Archie diagnosed fibromyalgia
and opined that “given the stresses of his job at the [employing establishment] and his lack of
control of this type of environment, this predisposes him to added stress and depression and this
could exacerbate his underlying cardiac condition.”
In a November 26, 2008 report, Dr. Barrow, noted that appellant had a history of
coronary artery disease with an inferior myocardial infarction in January 2004. Appellant also
had hypertension, hyperlipidemia, esophageal reflux and attention deficit disorder. Dr. Barrow
explained that, at the time of his myocardial infarction in January 2004, appellant had coronary
stents placed in his right coronary artery. He noted that he saw appellant in February 2004 when
he presented with increasing exertional angina and was “recathed.” Dr. Barrow indicated that
appellant continued to complain of angina and shortness of breath. He noted that he last saw
appellant on July 16, 2008 for complaints of chest burning, left arm tingling and elevated blood
pressure.
In a letter dated December 8, 2008, appellant indicated that his condition and recurrences
were related to his job. He noted that he had provided supporting documentation from his
physicians. Appellant advised that his job caused him stress as he had to work “a route and a
half.”

2

On December 11, 2008 appellant filed a notice of recurrence alleging that on
November 4, 2008, he had a recurrence of his January 5, 2004 injury. He asserted that he had
coronary artery disease, hypertension and memory loss and now attention deficit disorder.
Appellant alleged that, on a daily basis, he was required to carry a route and a half in an
unreasonable time limit. He further alleged that he was engaged with several disputes with his
supervisors and his blood pressure went out of control and caused him to have a heart attack.
Appellant stopped work on November 7, 2008. The employing establishment noted that he was
accommodated with a modified-job assignment working eight hours a day within medically
defined limitations. Appellant also filed a Form CA-7, claim for compensation for the period
beginning November 23, 2008.
In letters dated January 6, 2009, the Office advised appellant of the type of medical
evidence needed to establish his claim for a recurrence of disability on November 23, 2008.
In a January 26, 2009 report, Dr. Hammett noted that he was treating appellant for
coronary artery disease, hypertension and a previous myocardial infarction. He also indicated
that appellant had a “type A personality.” Dr. Hammett explained that he was not the
cardiologist but that he was a pulmonary physician helping to manage appellant’s case. He
advised that appellant had exertional chest pain and his angina, which was aggravated by stress
at work. Dr. Hammett opined that, due to his angina and the stress of his job, appellant was
unable to return to work. He explained that appellant’s coronary artery disease, hypertension,
type A personality and his heart disease, were aggravated by the stress of his employment and he
was unable to return to work at any time in the future in his position as a mailman.
By decision dated February 13, 2009, the Office denied appellant’s claim for recurrence
of disability on November 4, 2008. It found that the evidence was insufficient to establish that
the claimed recurrent condition beginning on November 4, 2008 was causally related to his
January 5, 2004 injury. The Office noted that appellant’s physician’s provided a diagnosis of
coronary artery disease and hypertension; however, it had only accepted acute myocardial
infarction of anterolateral wall with a subsequent episode of care. It found that appellant had not
submitted sufficient factual and medical evidence to support his claim.
On November 10, 2009 appellant’s representative requested reconsideration and
submitted additional evidence, which included a copy of Dr. Hammett’s January 26, 2009 report.
Additional treatment notes from Dr. Hammett dating from December 18, 2008 to April 8, 2009
were also included.
The Office also received a June 3, 3008 report and emergency room notes from
Dr. Barrow, who diagnosed noncardiac chest pain, coronary disease with previous stents and
possible esophagitis. In a January 14, 2009 treatment note, Dr. Barrow noted that appellant was
seen for follow up of chest pain. He continued to treat appellant.
The Office also received an August 14, 2008 emergency room report from Dr. Gary
Loder, an emergency room physician and osteopath, who noted that appellant presented with
chief complaints of chest pain. Dr. Loder diagnosed chest pain, diarrhea and fever. He noted
that appellant was discharged and sent home in stable condition.

3

The Office received diagnostic tests which included an August 15, 2008, x-ray of the
chest, read by Dr. Lin Xiong, a Board-certified diagnostic radiologist, who found evidence of a
pulmonary embolism and an unremarkable aorta. Dr. Xiong also found chronic lung change
without acute disorder and a four-millimeter nodule at the left lung base.
In an August 19, 2008 report, Dr. Hammett advised that he was treating appellant for
hypertension and coronary artery disease. He indicated that appellant was hospitalized on three
different occasions for complications. Dr. Hammett opined that due to the stress of appellant’s
present job and his medical problems he was unable to return to work and completely disabled.
The Office also received copies of previously received reports.
By decision dated December 4, 2009, the Office denied modification of its prior decision.
LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations provide that a recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.1
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.2
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.3 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.4 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5

1

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

2

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

4

Duane B. Harris, 49 ECAB 170, 173 (1997).

5

Gary L. Fowler, 45 ECAB 365, 371 (1994).

4

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.6
ANALYSIS
The record indicates that appellant was performing a modified job offer within his
medical restrictions when he filed his claim for a recurrence of disability on November 4, 2008.
Appellant has not alleged that his claimed recurrence of disability was the result of a change in
the nature and extent of his limited-duty assignment. There is also no evidence that the
employing establishment withdrew his modified-job assignment prior to his recurrence.
Therefore, appellant must establish disability due to a change in the nature and extent of his
employment-related condition.7
Appellant’s claim was accepted for acute myocardial infarction of anterolateral wall,
subsequent episode of care. On January 6, 2009 the Office advised him of the type of medical
evidence needed to establish his claim for a recurrence of disability. However, appellant did not
submit any medical reports which contained a rationalized opinion from a physician who, on the
basis of a complete and accurate factual and medical history, concluded that he had a condition
which was causally related to the employment injury and supported that conclusion with sound
medical reasoning.8 The medical evidence must demonstrate that the claimed recurrence was
caused, precipitated, accelerated or aggravated by the accepted injury. In this regard, medical
evidence of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship. While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.9
The medical reports with respect to the period from November 4, 2008 include several
reports from Dr. Hammett. They included a November 7, 2008 disability certificate, in which
Dr. Hammett advised that appellant was unable to work due to heart disease and a November 10,
2008 report, in which Dr. Hammett noted that he was seeing appellant for coronary artery
disease and hypertension. Dr. Hammett also indicated that appellant had hypertension and
underlying type A personality with hyperlipidemia and an attention deficit disorder. The Board
initially notes that these are not accepted conditions.10 The Office accepted appellant’s claim for
6

Walter D. Morehead, 31 ECAB 188 (1986).

7

Terry R. Hedman, supra note 2.

8

See Helen K. Holt, 50 ECAB 279 (1999).

9

Ricky S. Storms, 52 ECAB 349 (2001).

10

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (the claimant bears the burden of proof
to establish that conditions not accepted by the Office are causally related to the accepted employment injury
through the submission of rationalized medical evidence).

5

myocardial infarction on January 5, 2004. While Dr. Hammett explained that appellant was
“unable to fulfill his duties as a mailman due to the problems related to his heart disease,” he did
not specifically explain how he concluded that these conditions were due to the work-related
myocardial infarction. Thus, these reports are insufficient to establish that appellant’s disability
is due to his January 5, 2004 myocardial infarction. On January 26, 2009 Dr. Hammett reiterated
that he was treating appellant for coronary artery disease, hypertension and a previous
myocardial infarction. He also indicated that appellant had a “type A personality.” Dr. Hammett
explained that appellant had exertional chest pain and angina, which was aggravated by work
stress and that, due to his angina and job stress, appellant could not return to work. He explained
that appellant’s coronary artery disease, hypertension, type A personality and his heart disease,
were aggravated by the stress of his employment and he was unable to return to work at any time
in the future in his position as a mailman. The Board notes that Dr. Hammett did not indicate
that appellant’s condition resulted from his previous injury, but rather, it appears he attributed it
to new employment factors and a new condition that was aggravated by the stress of his job.
Thus, this report is not sufficient to relate the disability to the accepted injury in this case.
In a November 13, 2008 report, Dr. Archie indicated that he saw appellant for developing
fibromyalgia, recurrent chest pain, dyspnea on exertion, chest pains, body aches, muscular pain
and discomfort that affected his sleep cycle. Again, the Board notes that these conditions were
not accepted by the Office. Dr. Archie attributed these conditions to job-related stress.
However, he did not explain how these conditions arose from his accepted myocardial infarction
and he did not offer a specific opinion that appellant was disabled due to his accepted myocardial
infarction.
In a November 26, 2008 report, Dr. Barrow, noted that appellant had a history of
coronary artery disease with an inferior myocardial infarction in January 2004. He diagnosed
hypertension, hyperlipidemia, esophageal reflux and attention deficit disorder. Dr. Barrow noted
that appellant continued to complain of angina and shortness of breath. He noted that he last saw
appellant on July 16, 2008 for complaints of chest burning, left arm tingling and elevated blood
pressure. These diagnoses are not accepted by the Office as being work related. Furthermore,
Dr. Barrow did not offer any opinion regarding a recurrence of disability on or after
November 4, 2008. Thus, this report is of limited probative value. Dr. Barrow’s January 14,
2009 treatment note is also insufficient to establish the claim as he did not address whether
appellant had a recurrence disability due to the accepted condition.
The record also contains medical evidence that either predated the claimed period of
recurrent disability or did not address the cause of the claimed recurrent disability. This includes
treatment notes and reports of diagnostic testing. As this evidence does not specifically address
whether appellant had a recurrence of disability, beginning on or about November 4, 2008,
causally related to the January 5, 2004 myocardial infarction, it is insufficient to establish the
claim.11

11

See Michael E. Smith, 50 ECAB 313 (1999).

6

As appellant has not submitted sufficient medical evidence to establish that he sustained a
recurrence of disability due to his accepted myocardial infarction, he has not met his burden of
proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability beginning November 4, 2008 causally related to the January 5, 2004 myocardial
infarction.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Farmingdale, NY, Employer
__________________________________________

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

Docket No. 14-1717
Issued: December 12, 2014

Case Submitted on the Record

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

JURISDICTION
On August 4, 2014 appellant filed a timely appeal from a February 18, 2014 merit
decision and a May 15, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its May 15, 2014 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish bilateral carpal
tunnel syndrome as a result of factors of her federal employment; and (2) whether OWCP
properly denied her request for further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 12, 2012 appellant, then a 49-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS) as a
result of using her computer at work for 40 hours per week over the past 23 years.
By letter dated August 9, 2012, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In a November 17, 2011 diagnostic report, Dr. Mir Yasser, Board-certified in internal
medicine, reported that a computerized tomography (CT) scan of the cervical spine was
unremarkable. Appellant was treated with fluoro-guided lumbar puncture.
In medical reports dated May 7 and June 11, 2012, Dr. Charles Ruotolo, a Board-certified
orthopedic surgeon, reported that appellant complained of right shoulder pain which radiated into
the neck and numbness in her right hand. Upon physical examination, he diagnosed right
shoulder partial thickness rotator cuff tear and impingement syndrome and right CTS.
In a June 5, 2012 medical report, Dr. Luis Alejo, Board-certified in physical medicine
and rehabilitation, reported that appellant had a normal CT cervical spine myelogram. He
diagnosed mild radiculopathy and significant bilateral CTS, worse on right.
In a June 19, 2012 medical report, Dr. Elizabeth Morrison, a Board-certified orthopedic
surgeon, reported that appellant complained of pain and numbness in the right hand as a result of
overuse from work. She noted no diagnosis pending additional examination.
By decision dated November 5, 2012, OWCP denied appellant’s claim finding that the
evidence failed to establish that the occupational exposure occurred as alleged.
On November 19, 2012 appellant requested reconsideration of OWCP’s decision. She
stated that the employment-related activities which contributed to her condition included
repetitive keyboarding, manual racking, pulling down routes, sweeping mail, writing
accountables, and pushing and pulling carts. Appellant further stated that she would repetitively
lift, grasp, and hold letters, flats, parcels, and bundles of mail. She reported that she performed
these repetitive activities for 8 hours per day, 40 hours per week. Appellant first noticed her
condition in May 2012 and it had continued to worsen. She noted that Dr. Morrison was the only
physician treating her for CTS and the other medical reports pertaining to a prior 1990 shoulder
injury were accidentally included in the file.
A July 10, 2012 electromyogram (EMG) and nerve conduction velocity (NCV) study was
received from Dr. Anthony Castellino, a treating chiropractor.
2

In a November 27, 2012 medical report, Dr. Morrison reported that she reviewed the
July 10, 2012 EMG/NCV study and diagnosed bilateral CTS, right worse than left.
By decision dated February 7, 2013, OWCP affirmed the November 5, 2012 decision, as
modified, finding that the evidence of record failed to establish that appellant’s diagnosed
bilateral CTS was causally related to the established work-related events.
On March 18, 2013 appellant requested reconsideration of OWCP’s decision. She did
not submit any evidence or argument with her appeal.
By decision dated March 22, 2013, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant
evidence.
On November 19, 2013 appellant again requested reconsideration.3 In support of her
request for reconsideration, she resubmitted Dr. Castellino’s July 10, 2012 EMG/NCV study.
Appellant also submitted a supplemental statement wherein she described her symptoms and
medical treatment.
By decision dated February 18, 2014, OWCP denied modification of the prior decision,
after merit review.
On March 19, 2014 appellant again requested reconsideration. She did not submit any
evidence in support of her request.
By decision dated May 15, 2014, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant
evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
3

On November 25, 2013 appellant also requested an appeal before the Board, Docket No. 14-303. On April 8,
2014 the Board issued an order dismissing appeal finding that the appeal was untimely filed.
4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

Michael E. Smith, 50 ECAB 313 (1999).

3

established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.8 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant engaged in repetitive activities in her employment duties
as a letter carrier, but denied her claim as the evidence failed to establish a causal relationship
between those activities and her bilateral CTS. The Board finds that the medical evidence of
record is insufficient to establish that she developed bilateral CTS causally related to factors of
her federal employment as a letter carrier.
In a June 19, 2012 medical report, Dr. Morrison reported that appellant complained of
pain and numbness in the right hand as a result of overuse from work. She noted no diagnosis
pending additional examination. In a November 27, 2012 medical report, Dr. Morrison reported
that she reviewed a July 10, 2012 EMG/NCV study and diagnosed bilateral CTS, right worse
than left.
The Board finds that the opinion of Dr. Morrison is not well rationalized. Dr. Morrison
failed to provide an opinion on the cause of appellant’s bilateral CTS or explain how her
6

Elaine Pendleton, supra note 4.

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

9

James Mack, 43 ECAB 321 (1991).

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condition was caused or aggravated by her federal employment duties. Moreover, she failed to
provide an adequately detailed medical history or description of appellant’s federal employment
duties as a letter carrier which may have caused her injury. Medical reports without any
rationale on causal relationship are of diminished probative value and do not meet an employee’s
burden of proof.10 The opinion of a physician supporting causal relationship must rest on a
complete factual and medical background supported by affirmative evidence, address the specific
factual and medical evidence of record, and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.11
Dr. Morrison’s reports do not meet that standard and are insufficient to meet appellant’s burden
of proof.
The remaining medical evidence is also insufficient to establish appellant’s occupational
disease claim. Dr. Yasser’s November 17, 2011 diagnostic report failed to establish a firm
medical diagnosis as the physician noted an unremarkable cervical CT scan. While the reports of
Dr. Alejo and Dr. Ruotolo provided a sufficient diagnosis of CTS, the physicians failed to state
any opinion on causal relationship. The Board has held that medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value.12
There is no indication that Dr. Castellino, appellant’s chiropractor, diagnosed subluxation based
on the results of an x-ray.13 As Dr. Castellino does not meet the statutory definition of a
physician, his July 10, 2012 EMG/NCV study lacks probative value and is insufficient to
establish appellant’s claim.14
On appeal, appellant argues that the medical reports submitted are sufficient to establish
her claim. Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While OWCP shares responsibility in the development of the evidence to see that justice
is done, it is appellant’s burden of proof to submit the evidence necessary to establish her
claim.15 The Board has reviewed the medical evidence and no physician has provided a
rationalized opinion that appellant’s bilateral CTS was caused or aggravated by her accepted
federal employment duties.16

10

Id.

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

13

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
14

T.G., Docket No. 13-76 (issued March 22, 2013).

15

Phillip L. Barnes, 55 ECAB 426 (2004).

16

G.S., Docket No. 10-2231 (issued July 1, 2011).

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LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.17 Section 10.608(b) of OWCP regulations
provide that, when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.18
ANALYSIS -- ISSUE 2
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In her March 19, 2014 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She also did not advance a new and
relevant legal argument. The underlying issue in this case is causal relationship between
appellant’s diagnosed carpal tunnel condition and factors of her federal employment. That is a
medical issue which must be addressed by relevant medical evidence.19 Appellant failed to
submit any new and relevant medical evidence in support of her request for reconsideration.20
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish bilateral CTS
causally related to factors of her federal employment as a letter carrier. OWCP properly denied
her request for reconsideration without a merit review.

17

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

18

K.H., 59 ECAB 495 (2008).

19

See Bobbie F. Cowart, 55 ECAB 746 (2004).

20

M.H., Docket No. 13-2051 (issued February 21, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated May 15 and February 18, 2014 are affirmed.
Issued: December 12, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


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

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

Docket No. 07-829
Issued: August 20, 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 February 2, 2007 appellant filed a timely appeal from a January 25, 2007 decision of
the Office of Workers’ Compensation Programs adjudicating his schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 19 percent permanent impairment of his
left lower extremity or any impairment of his right lower extremity or right upper extremity.
FACTUAL HISTORY
On February 18, 2005 appellant, then a 53-year-old letter carrier, filed a claim for a
traumatic injury alleging that on February 17, 2005 he was injured when he was struck by a
motor vehicle while walking his delivery route. The Office accepted his claim for a contusion
and fracture of the left ankle, a fracture of the right patella, a sprain and strain of the right rotator
cuff, a contusion of the right chest wall, a collapsed right lung and pneumonia. On

September 22, 2005 the Office expanded the claim to accept a cervical strain and aggravation of
a torn left medial meniscus. On March 30, 2006 appellant filed a claim for a schedule award.
On April 14, 2006 he underwent arthroscopic surgery, including a partial medial and lateral
meniscectomy, chondral shaving of the medial compartment and patella femoral joint and
ablation.
In a report dated October 13, 2006, Dr. Richard I. Zamarin, an attending Board-certified
orthopedic surgeon, determined that appellant had a 10 percent impairment of the left lower
extremity for a partial medial and lateral meniscectomy, based on Table 17-33 at page 546 (the
diagnosis based estimate rating method) of the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment1 and a 17 percent impairment of
the left lower extremity for gait derangement, based on Table 17-5 at page 529. He also
determined that appellant had a 7 percent impairment of the right lower extremity for a patellar
fracture, based on Table 17-33 at page 546 of the A.M.A., Guides. Dr. Zamarin determined that
appellant had a three percent impairment of the right upper extremity for moderate pain in his
right shoulder, based on Table 18-3 at page 575 and Figure 18-1 at page 574.
On December 28, 2006 Dr. Arnold T. Berman, an Office medical adviser,2 found that
appellant had a 19 percent combined impairment of the left lower extremity, including 10
percent for a partial medial and lateral meniscectomy and 7 percent for a patellar fracture, based
on Table 17-33 at page 546 of the A.M.A., Guides and 3 percent for pain, based on Figure 18-1
at page 574. He stated that no impairment could be granted for the left lower extremity based on
arthritis because the arthritis was very advanced and preexisted the employment injury and “I
would not conclude that the injury aggravated the preexisting arthritis.” Regarding the 17
percent for gait derangement for the left lower extremity found by Dr. Zamarin, Dr. Berman
stated that gait derangement could not be combined with a diagnosis based estimate according to
Table 17-2 at page 526 of the A.M.A., Guides, the Cross-Usage Chart. He stated that appellant
had subjective complaints regarding his right shoulder but there was no ratable impairment.
On January 25, 2007 the Office granted appellant a schedule award for 54.72 weeks3
from October 13, 2006 to October 31, 2007 based on a 19 percent impairment of his left lower
extremity.

1

A.M.A., Guides (5th ed. 2001). Dr. Zamarin noted that the 10 percent impairment for a meniscectomy could be
combined with the arthritis rating method under the A.M.A., Guides, but there were no x-rays available for review.
2

See Federal (FECA) Procedural Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (these procedures contemplate that, after obtaining all necessary medical
evidence, the file should be routed to an Office medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale for the
percentage of impairment specified, especially when there is more than one evaluation of the impairment present).
3

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or
loss, of use of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by 19 percent equals 54.72 weeks
of compensation.

2

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 regulation as the
appropriate standard for evaluating schedule losses.6
Section 8123(a) of the Act provides that “if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
[of Labor] shall appoint a third physician who shall make an examination.”7
ANALYSIS
The Board finds that there is a conflict in the medical opinion evidence between
Dr. Zamarin and Dr. Berman, necessitating referral to an impartial medical specialist. Further
development of the medical evidence is necessary to determine whether appellant has more than
a 19 percent impairment of his left lower extremity or any impairment of his right lower
extremity and right upper extremity.8
Dr. Zamarin determined that appellant had a 10 percent impairment of the left lower
extremity for a partial medial and lateral meniscectomy, based on Table 17-33 at page 546 of the
A.M.A., Guides and a 17 percent impairment of the left lower extremity for gait derangement,
based on Table 17-5 at page 529. Dr. Berman agreed that appellant had a 10 percent impairment
of the left lower extremity due to his partial medial and lateral meniscectomy. He also found a 7
percent impairment of the left lower extremity for a patellar fracture. However, the record shows
that the patellar fracture was to the right lower extremity, not the left. Dr. Berman correctly
noted that the gait derangement rating method cannot be combined with the diagnosed based
estimate rating method according to the Cross-Usage Chart, Table 17-2 at page 526.
Dr. Zamarin indicated that appellant could have impairment due to arthritis but no x-rays were in
the record with which to measure cartilage level. Dr. Berman disagreed with Dr. Zamarin
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan),
45 ECAB 207 (1993).
8

As noted, appellant’s accepted conditions include a fracture of the left ankle and aggravation of a torn left
medial meniscus, a fracture of the right patella, a sprain and strain of the right rotator cuff, a contusion of the right
chest wall, a cervical strain, a collapsed right lung and pneumonia. He underwent a partial medial and lateral
meniscectomy.

3

regarding impairment due to arthritis, stating that no impairment could be granted for the left
lower extremity because, in his opinion, the employment injury did not aggravate appellant’s
preexisting arthritis.9 Regarding impairment due to pain, both Dr. Berman and Dr. Zamarin
found that appellant had a three percent impairment due to pain, based on Chapter 18. However,
the physicians did not support, with medical rationale, the calculation of a three percent left
lower extremity impairment based on Chapter 18 of the A.M.A., Guides. Section 18.3b of
Chapter 18 at page 571 of the fifth edition of the A.M.A., Guides provides that “Examiners
should not use this chapter to rate pain-related impairment for any condition that can be
adequately rated on the basis of the body and organ impairment rating systems given in other
chapters of the [A.M.A.,] Guides.” Dr. Zamarin and Dr. Berman did not explain why appellant’s
pain-related impairment could not be adequately addressed by applying Chapter 17 of the
A.M.A., Guides which addresses lower extremity impairment, specifically section 17.2l,
“Peripheral Nerve Injuries” which states that, “Partial sensory and motor deficits should be rated
as in the upper extremity (Tables 16-10 and 16-11).” Table 16-10 explains the correct method
for calculating impairment due to sensory deficits or pain resulting from peripheral nerve
disorders. Dr. Zamarin and Dr. Berman did not explain why application of Chapter 17 was not
adequate to calculate appellant’s impairment due to left lower extremity pain, justifying
application of Chapter 18 of the A.M.A., Guides.
Regarding appellant’s right lower extremity, Dr. Zamarin determined that appellant had a
seven percent impairment of the right lower extremity for a patellar fracture, based on Table 1733 at page 546 of the A.M.A., Guides. As noted, Dr. Berman found a seven percent impairment
for a patellar fracture but erroneously indicated that the fracture was to the left lower extremity.
Regarding impairment to appellant’s right upper extremity, Dr. Berman found that he had
a three percent impairment for pain in his right shoulder, based on Table 18-3 at page 575 and
Figure 18-1 at page 574 of the A.M.A., Guides.10 However, Dr. Berman found no ratable
impairment of appellant’s right upper extremity.
On remand the Office should refer appellant to an appropriate Board-certified medical
specialist for a determination of any impairment of his left and right lower extremities and right
upper extremity based on correct application of the A.M.A., Guides. The physician should
provide medical rationale explaining why a particular rating method was selected. If more than
one impairment rating method can be used in evaluating appellant’s impairment, the method that
provides the higher rating should be adopted.11

9

The Board notes that the arthritis rating method and diagnosis-based estimate rating method can be combined
according to the Cross-Usage Chart, Table 17-2 at page 526 of the A.M.A., Guides.
10

Dr. Zamarin did not explain why Chapter 16 of the A.M.A., Guides, regarding upper extremity impairment was
not adequate to rate appellant’s impairment due to pain, rather than Chapter 18.
11

A.M.A., Guides 527.

4

CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should refer appellant to an appropriate Board-certified medical specialist for an impairment
rating of his left and right lower extremities and right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2007 is set aside and the case is remanded for further
development consistent with this decision.
Issued: August 20, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL OFFICE, POST OFFICE,
Canton, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0789
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 1 appellant filed a timely appeal from an October 7, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated August 19, 2020, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.3
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. § 501.3(e)(f).
One hundred and eighty days from October 7, 2020, the date of OWCP’s last decision, was April 5, 2021. Since using
April 12, 2021, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. See 20 C.F.R. § 501.3(f)(1). As appellant’s
appeal request was postmarked April 1, 2021, the appeal is, therefore, timely.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the October 7, 2020 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 24, 2020 appellant, then a 56-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 23, 2020 she injured her right arm and shoulder when
trying to catch a heavy package that slipped out of her hand while in the performance of duty. She
stopped work on the date of injury.4
In support of her claim, appellant submitted hospital records, including a January 24, 2020
discharge summary and emergency department reports from Dr. Richard Miles, Board-certified in
emergency medicine, who diagnosed right rotator cuff strain.
By decision dated March 6, 2020, OWCP accepted the claim for sprain of right rotator cuff
capsule (right rotator cuff syndrome) and sprain of right acromioclavicular (AC) joint (right AC
joint arthrosis). It paid appellant wage-loss compensation on the supplemental rolls from March 9
through April 28, 2020.5
In a March 27, 2020 initial report, Theresa Koerber, a field nurse OWCP assigned to
appellant’s claim, noted diagnoses of right rotator cuff syndrome and sprain of right
acromioclavicular (AC) joint (right AC joint arthrosis).
In March 27 and April 3, 2020 letters and an April 6, 2020 work capacity evaluation for
musculoskeletal conditions (Form OWCP-5c), Dr. William B. Geissler, a Board-certified
orthopedic surgeon, advised that appellant could return to light-duty work with restrictions of no
reaching overhead, pushing, pulling, or lifting over five pounds. He indicated that appellant
received an injection to the right shoulder and was undergoing physical therapy treatment for her
diagnosed rotator cuff syndrome. Dr. Geissler also provided restrictions limiting his work
schedule to 6:00 a.m. to 6:00 p.m.
On May 15, 2020 the employing establishment offered appellant a limited-full-time
position as a modified rural carrier, effective May 23, 2020. The duties included: surface visibility
scanning for two to four hours per day and quality checks on mail transport equipment for four to
seven hours per day. The tour of duty was from 9:30 p.m. to 6:00 a.m. The physical requirements
included: no pulling or pushing over five pounds and no reaching overhead.
In a May 22, 2020 statement, appellant noted that she had concerns about her medical
limitations and requested reasonable accommodation from the employing establishment. She
4

On January 24, 2020 the employing establishment executed an authorization for examination and/or treatment
(Form CA-16).
5
On July 31, 2020 appellant filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx968
alleging that she reinjured her right shoulder when she fainted on June 26, 2020 while in the performance of duty.
OWCP denied that claim, finding that the evidence of record was insufficient to establish the factual component of
fact of injury. This claim is not presently before the Board. The Board notes that OWCP has not administratively
combined these claims.

2

indicated that, pursuant to her doctors’ recommendations, she was unable to report to work until
her next appointment on May 27, 2020.
The employing establishment, in a May 26, 2020 letter, notified OWCP that appellant
expressed concerns over her medical limitations and refused the offer of modified assignment.
In a May 26, 2020 note, Dr. Joe W. Terry, Board-certified in family practice, noted that
appellant was on medication at night that made her drowsy and unable to drive or stay alert. He
indicated that she could only work and drive between the hours of 6:00 a.m. and 6:00 p.m.
In a May 27, 2020 medical report, Dr. Geissler indicated that appellant had been
undergoing physical therapy treatment. He conducted a physical examination and diagnosed right
rotator cuff syndrome and AC joint arthrosis. Dr. Geissler advised that appellant could return to
light-duty work with restrictions of no reaching overhead, pushing, lifting, or pulling more than
10 pounds. He also indicated that her primary doctor restricted her from working at night.
The employing establishment requested, in letters dated May 27 and 28, 2020, that OWCP
determine whether the offered position was suitable. It noted that appellant provided medical
documentation to negate the work hours identified on the offer of modified assignment and added
restriction of lifting to the physical requirement.
OWCP paid appellant wage-loss compensation on the supplemental rolls from April 29
through May 8, 2020.
Appellant filed a claim for compensation (Form CA-7) for disability from work for the
period May 13 through June 3, 2020.
In a letter dated June 11, 2020, OWCP acknowledged receipt of appellant’s Form CA-7
and advised her that it had processed a wage-loss compensation payment for the period May 13
through 22, 2020. It also noted that the employing establishment had offered appellant a modified
temporary light-duty assignment on May 15, 2020, effective May 23, 2020, which she declined.
OWCP informed her that the duties and physical requirements of the employing establishment’s
temporary light-duty assignment were within Dr. Geissler’s April 3, 6, and May 27, 2020 work
restrictions. It also informed appellant of the provisions of 20 C.F.R. § 10.500(a) and further
advised that her entitlement to wage-loss compensation may be denied under this provision if she
did not accept the offered assignment or provide a written explanation with justification for her
refusal within 30 days. OWCP specifically requested appellant to submit evidence to support that
the assignment was no longer available or no longer accommodated her medical restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 4 through
17, 2020.
In a June 18, 2020 statement, appellant noted that she was distraught by her report time on
her modified job offer because the medication she took at night caused drowsiness and dizziness.
She contended that she signed the modified offer on May 21, 2020 and returned it to the address
given. Appellant also contended that the employing establishment notified her that, per
Dr. Geissler’s recommendation, she was not to report to work until May 28, 2020.

3

On June 19, 2020 appellant accepted the offer of modified assignment as a limited-duty
rural carrier.
In a June 26, 2020 letter, the employing establishment notified OWCP that appellant
returned to work on June 25, 2020, but on June 26, 2020 she took a muscle relaxer due to her arm
hurting and subsequently fainted while at work. It indicated that she was sent to a hospital. In a
letter of even date, Lauren W. Buffington, a nurse practitioner, verified that appellant was seen in
the emergency room that day and indicated that she could return to work with restrictions.
In a June 29, 2020 letter, Dr. Terry again noted that appellant was on medication at night
that made her drowsy and unable to drive or stay alert. He indicated that she could only work and
drive between the hours of 6:00 a.m. and 6:00 p.m. In a work status note of even date, Dr. Terry
indicated that appellant could return to full-duty work on July 7, 2020 without restrictions.
Appellant filed a Form CA-7 for disability from work for the period June 21 through
July 14, 2020.
In a July 22, 2020 development letter, OWCP acknowledged receipt of appellant’s claim
for wage-loss compensation beginning June 21, 2020 and advised that additional evidence was
needed to establish disability from work during the claimed periods. It advised that the evidence
indicated that a temporary light-duty assignment was available within appellant’s medical
restrictions with the employing establishment for the period of claimed lost time and requested
evidence to support why she did not work the temporary light-duty assignment. OWCP afforded
appellant 30 days to submit the requested medical evidence.
In a May 27, 2020 progress report, Ms. Koerber indicated that the employing establishment
notified her that job duties within compliance of the recommended restrictions f rom Dr. Geissler
were not available for appellant at this time.
In a June 26, 2020 progress report, Ms. Koerber noted that appellant had been released to
return to limited-duty work on June 26, 2020.
In a July 20, 2020 medical report, Dr. Geissler noted appellant’s complaint that her work
duties require her to lean over pick up about 100 boxes out of bins, which aggravated and increased
her right shoulder pain. Appellant also reported that her tasks made her dizzy. Dr. Geissler noted
that in late June appellant took pain medication before passing out at work. He indicated that she
had not been back at work since her fall.
In an August 10, 2020 memorandum of telephone call (Form CA-110), OWCP notified
Ms. Koerber that appellant sustained a recurrence of disability on June 26, 2020, when she passed
out at work and reinjured her right shoulder due to the medicine she was taking.
In an August 19, 2020 Form CA-110, OWCP notified Ms. Koerber that appellant filed a
new injury claim for right shoulder injury that allegedly occurred on June 26, 2020 when she
fainted at work.
By decision dated August 19, 2020, OWCP denied appellant’s wage-loss compensation
claim for disability from work, commencing May 23, 2020, pursuant to 20 C.F.R. § 10.500(a)
based on her refusal to accept the employing establishment’s May 15, 2020 offer for a temporary
4

light-duty assignment. It explained that the evidence established that she had medical restrictions
in place, a light-duty work assignment within those restrictions was available to her, and she was
previously notified in writing that such light-duty work was available.
On September 22, 2020 appellant requested reconsideration. Along with her request, she
resubmitted copies of the January 24, 2020 hospital record, the March 27, 2020 progress report
from Ms. Koerber, and the July 20, 2020 medical report from Dr. Geissler, as well as the signed
offer of modified assignment.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber. Ms. Koerber noted that appellant continued to experience right shoulder
symptoms after the June 26, 2020 fall, when she reinjured her right shoulder. She indicated that
Dr. Geissler had recommended that appellant remain off work.
By decision dated October 7, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 6
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.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 10

6

Supra note 1 at § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468
(issued February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
7

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also K.L., Docket No. 17-1479 (issued December 20, 2017); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (September 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

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

10

Id. at § 10.608(b); M.S., Docket No. 19-0291 (issued June 21, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s reconsideration request did not show that OWCP erroneously applied or
interpreted a specific point of law, nor did it advance a relevant legal argument not previously
considered by OWCP. Consequently, she was not entitled to a review of the merits based o n the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 11
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. In support of her reconsideration request, appellant
submitted duplicative records, including a January 24, 2020 hospital record, March 27, 2020
progress report from the field nurse, and a July 20, 2020 medical report from Dr. Geissler, as well
as her signed offer of modified assignment. The Board has held that evidence or argument that
repeats or duplicates evidence previously of record has no evidentiary value and does not constitute
a basis for reopening a case. 12 Thus, this evidence is insufficient to warrant a merit review.
Appellant also submitted progress reports dated July 26, August 25, and September 27,
2020 from Ms. Koerber, the field nurse. The underlying issue on reconsideration was whether she
had met her burden of proof to establish disability from work during the period claimed causally
related to her accepted work-related medical conditions. This is a medical question that requires
rationalized medical opinion evidence to resolve the issue.13 Certain healthcare providers such as
physical therapists, nurses, physician assistants, and social workers are not considered physicians
as defined under FECA. 14 Consequently, their medical findings and/or opinions will not suffice
for purposes of establishing entitlement to FECA benefits. 15 As Ms. Koerber’s reports do not
constitute competent medical evidence, they are, therefore, irrelevant to the underlying merit issue.
The Board has held that the submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case. 16 Therefore, appellant is not entitled to

11

See S.G., Docket No. 21-0067 (issued August 23, 2021); K.F., Docket No. 19-1846 (issued November 3, 2020).

12

C.L., Docket No. 20-0410 (issued October 29, 2020); M.G., Docket No. 18-0654 (issued October 17, 2018); D.K.,
59 ECAB 141 (2007); Kenneth R. Mroczkowki, 40 ECAB 855 (1989); Eugene F. Butler, 36 ECAB 393 (1984).
13

Y.L., Docket No. 20-1025 (issued November 25, 2020); M.P., Docket No. 19-1872 (issued April 15, 2020).

14

Section 8101(2) of FECA provides that the term 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); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); 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).
15

Id.

16

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

6

further review of the merits of her claim based on the third above -noted requirement under
20 C.F.R. § 10.606(b)(3).17
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).19
ORDER
IT IS HEREBY ORDERED THAT the October 7, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 7.

18
See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening
the case for a review on the merits).
19
The Board notes that the employing establishment executed 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);
J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

7