United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Springfield, VA, Employer
__________________________________________

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

Docket No. 18-1041
Issued: October 25, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 24, 2018 appellant filed a timely appeal from a December 19, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a March 29, 2018 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an injury
causally related to the accepted November 2, 2017 employment incident; and (2) whether OWCP
properly denied his request for reconsideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 2, 2017 appellant, then a 27-year-old basic agent trainee, filed a traumatic
injury claim (Form CA-1) alleging that he experienced tunnel vision, near syncope, shortness of
breath, and numbness of the arms and chin while running during a training program. The
employing establishment did not controvert the claim.
By development letter dated November 8, 2017, OWCP requested that appellant submit
additional factual and medical information in support of his claim, including a report from his
attending physician addressing causal relationship between any diagnosed condition and the
identified work factor. It afforded appellant 30 days to submit the necessary evidence.
Appellant received treatment at an emergency department on November 2, 2017. A
physician assistant noted that he had a history of an upper respiratory illness over the prior week.
Appellant began experiencing weakness and dyspnea while running. At the end of three miles he
was “breathing very heavy, had tingling in both hands, and was near syncopal.” The physician
assistant diagnosed near syncope, an abnormal electrocardiogram (EKG), an acute upper
respiratory infection, and orthostasis. Dr. Coleen Rickabaugh, Board-certified in emergency
medicine, reviewed and cosigned the report. She advised against strenuous activity pending
evaluation by a cardiologist.
In a report dated November 8, 2017, Dr. Harish R. Chandra, a Board-certified internist,
obtained a history of appellant nearly fainting while engaged in physical training at work, noting
that his “work made him go to the [emergency department].” He had taken medication for a cold
and suspected dehydration. Dr. Chandra diagnosed syncope and collapse. He found that the
diagnosed conditions most likely resulted from dehydration due to his upper respiratory infection
and the cold medication that he had taken for these symptoms. Dr. Chandra indicated that his EKG
was slightly abnormal and recommended further testing, noting that appellant could not resume
work “unless he can get unrestricted return to work clearance.”
By decision dated December 19, 2017, OWCP denied appellant’s traumatic injury claim.
It found that the medical evidence of record was insufficient to show that he sustained a diagnosed
condition causally related to the accepted work incident.
Subsequent to its decision, OWCP again received the November 2, 2017 report from the
emergency department.
On March 21, 2018 appellant requested reconsideration. He asserted that he was
submitting a report from his attending physician with a diagnosis and a report from the medical
staff at the employing establishment.
By decision dated March 29, 2018, OWCP denied appellant’s request for reconsideration
as he had not raised an argument or submitted evidence sufficient to warrant reopening his case
for further review of the merits under section 8128(a).
On appeal appellant asserts that the emergency department physician diagnosed orthostasis
and found that it was aggravated by his employment. He notes that he has submitted paperwork

2

from a physician at the employing establishment correlating her findings. Appellant requests
payment of his medical expenses.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.5 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.6
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.7 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.8 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
the specific employment factor(s).9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted November 2, 2017 employment incident.

2

5 U.S.C. § 8101 et seq.

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

See Bonnie A. Contreras, 57 ECAB 364 (2006); Gary J. Watling, 52 ECAB 278 (2001).

6

See T.H., 59 ECAB 388 (2008); Deborah L. Beatty, 54 ECAB 340 (2003).

7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 2006.

8

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

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

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OWCP accepted that the November 2, 2017 employment incident occurred as alleged.
However, it denied the claim because appellant had not submitted sufficient medical evidence
supporting that he sustained a medical diagnosis in connection with the claimed November 2, 2017
employment injury.
In an emergency department report dated November 2, 2017, a physician assistant
discussed appellant’s history of dyspnea, weakness, shortness of breath, ringing in his hands, and
near syncope during a training run. She noted that for the week prior he had suffered from an
upper respiratory infection. The physician assistant diagnosed near syncope, an abnormal EKG,
an acute upper respiratory infection, and osteostasis. Dr. Rickabaugh cosigned the report. She did
not, however, address the cause of the diagnosed conditions. Medical evidence that does not offer
an opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.10
On November 8, 2017 Dr. Chandra indicated that appellant had near syncope while
performing physical training, noting that he had taken medication for a cold. He diagnosed
syncope and collapse most likely due to dehydration from his upper respiratory infection and use
of medication. Dr. Chandra also found that appellant had an abnormal EKG and recommended
additional testing. He did not attribute a specific diagnosed condition to the accepted November 2,
2017 work activity of running during a training program, and thus his opinion is insufficient to
meet appellant’s burden of proof.
Appellant has the burden of proof to submit rationalized medical evidence establishing that
he sustained an injury causally related to the accepted November 2, 2017 employment incident.11
He failed to submit such evidence and thus has not met his burden of proof.12
On appeal appellant requests payment of medical expenses. The Board notes that OWCP’s
implementing regulations allow for authorization of medical treatment in emergency
circumstances. While 20 C.F.R. § 10.300 explains that authorization of emergency medical
treatment is usually provided by issuance of a Form CA-16, section 10.304 allows for authorization
of emergency treatment, in the absence of a Form CA-16, in cases involving emergencies or
unusual circumstances.13 While there was no Form CA-16 issued in this case, Dr. Chandra noted
that “work made him go to the [emergency department].” Upon return of the case record, after
such development deemed necessary, OWCP shall adjudicate whether his treatment on
November 2, 2017 should be authorized due to an emergency or unusual circumstances.14

10

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

11

See D.T., docket No. 17-1734 (issued January 18, 2018).

12

See D.S., Docket No. 18-0061 (issued May 29, 2018).

13

20 C.F.R. § 10.304; N.B., Docket No. 15-0708 (issued July 15, 2015); K.J., Docket No. 13-271 (issued
May 23, 2013).
14

See S.D., Docket No. 16-1394 (issued January 26, 2017).

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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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.16
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.17 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.18 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s timely request for reconsideration
of the merits of his claim pursuant to section 8128(a). The underlying issue is whether he
submitted sufficient medical evidence to establish an injury causally related to the accepted
November 2, 2017 employment incident.
In support of his request for reconsideration, appellant did not contend that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument not
previously considered. He asserted that he was submitting a report from the medical staff at the
employing establishment, but such medical evidence is not contained in the case record. Appellant
resubmitted the November 2, 2017 emergency department report. Evidence which repeats or
duplicates evidence already of record has no evidentiary value and does not constitute a basis for
reopening a case.20

15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

17

Id. at § 10.607(a).

18

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

19

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

20

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

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The Board accordingly finds that appellant’s request for reconsideration did not meet any
of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.21
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted November 2, 2017 employment incident. The Board further finds
that OWCP properly denied his request for reconsideration of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29, 2018 and December 19, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 25, 2018
Washington, DC

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

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

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

21

See R.C., Docket No. 17-1314 (issued November 3, 2017) (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).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, JACKSON PARK
STATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 10-2186
Issued: July 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 24, 2010 appellant filed a timely appeal from an April 15, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) affirming the denial of her claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury to her right shoulder in the performance of duty, causally related to factors of her federal
employment.
On appeal, appellant contends that OWCP denied her claim based on misinformation.
She alleged that OWCP approved presurgery physical therapy, injection, magnetic resonance
imaging (MRI) scan and electromyogram as well as surgery on her right shoulder, which was the

1

5 U.S.C. § 8101 et seq.

incorrect shoulder. Appellant alleged that OWCP denied therapy for her right shoulder after the
surgery. She requested that her claim be reevaluated and approved.
FACTUAL HISTORY
On July 3, 2009 appellant, then a 42-year-old clerk, filed an occupational disease claim
alleging that, as a result of lifting and carrying tubs and packages and unloading and loading
trucks at work, she sustained right shoulder impingement.
In support of her claim, appellant submitted a medical report by Dr. Howard Robinson, a
Board-certified physiatrist, who interpreted an MRI scan of her right shoulder obtained on
November 5, 2008 as showing mild supraspinatus, infraspinatus and subcapularis tendinosis
without evidence of rotator cuff tear. Dr. Robinson also found a curved undersurface to the
acromion and mild acromioclavicular degenerative change.
In a May 4, 2009 note, Dr. Joseph Thometz, appellant’s treating Board-certified
orthopedic surgeon, noted that she sustained an injury to her right shoulder on May 12, 1999
when a bulk mail carrier (BMC) fell onto her shoulder. He reviewed her MRI scans and
complaint of persistent shoulder pain which had been symptomatic for 10 years. Dr. Thometz
planned an arthroscopic evaluation and treatment and subacromial decompression. In a June 11,
2009 operative report, he noted that appellant’s diagnosis was right shoulder impingement
syndrome and that he performed an arthroscopy and subacromial decompression. In a July 1,
2009 report, Dr Thometz noted that he first saw appellant on May 4, 2009. He noted that her
right shoulder was injured when a BMC fell onto her shoulder. Dr. Thometz stated that appellant
had persistent shoulder pain and was symptomatic for 10 years. He stated that she had full
conservative measures and on June 11, 2009 he proceeded with a right shoulder arthroscopy with
subacromial decompression.
By letter dated July 29, 2009, OWCP requested that appellant submit further information.
In an August 11, 2009 note, Stephanie Hartman, a manager for the employing
establishment, indicated that appellant was a rehabilitation clerk whose work consisted of
distributing mail to carriers’ cases and working on the window. She noted that appellant had a
prior injury and appellant should have notified management if she needed assistance.
Ms. Hartman further noted that appellant never worked alone. She contended that she did not
see how it was possible that an injury occurred as appellant alleged.
In a July 20, 2009 report, Dr. Thometz diagnosed status post subacromial decompression.
He noted that appellant was given a new prescription of therapy and opined that she was not
capable of work yet. In an August 17, 2009 note, Dr. Thometz recommended that she start
therapy as she was making slow progress on her own and stated that therapy would be most
beneficial to keep her from developing adhesions.
In a decision dated September 28, 2009, OWCP denied appellant’s claim as it found that
the medical evidence did not demonstrate that the claimed medical condition was related to the
established work-related event.
On October 2, 2009 appellant requested an oral hearing.
2

In an October 19, 2009 note, Dr. Thometz stated that appellant has been under his care
for a work-related injury that happened on May 12, 2009 when a BMC door fell onto her
shoulder.2 Based on appellant’s description of the injury, her need for treatment and ongoing
difficulties started after her injury. Dr. Thometz attributed her right shoulder impingement
syndrome to her injury. He noted that appellant developed a post-traumatic tendinitis that failed
to resolve with conservative measures. Appellant underwent surgery for this condition in
June 2009 and was currently undergoing a physical therapy program.
At the hearing held on January 27, 2010, appellant testified that in 1999 she injured her
left shoulder when a BMC struck it. She received minimal medical treatment for that condition.
Appellant noted that, the current claim involved her right shoulder supported that it prior to filing
for claim, she worked limited duty because she had carpal tunnel syndrome of both wrists. Her
duties involved working for three hours lifting mail tubs and taking them to carrier’s case and
pushing all-purpose containers. Appellant also worked an hour a day on the window, where she
lifted packages of up to 25 pounds. She contended that her disability from June 11 through
December 7, 2009 was due solely to her shoulder injury.
In a February 5, 2010 medical report, Dr. Thometz noted that appellant completed
physical therapy in December 2009 and she was doing reasonably well despite discomfort
through the anterior aspect of her right shoulder. He stated that, in the course of her work duties,
she was required to continuously push and pull tubs of mail and transport them to the letter
carriers. These activities contributed to appellant’s right shoulder condition and required
surgical intervention.
By decision dated April 15, 2010, the hearing representative affirmed the September 28,
2009 decision. While OWCP had previously accepted appellant’s claim for bilateral carpal
tunnel syndrome in File No. xxxxxx055, there was no record of an accepted right shoulder injury
sustained in 1999.
LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence,4
including that he is an “employee” within the meaning of FECA5 and that he filed his claim
within the applicable time limitation.6 The employee must also establish that he sustained an
injury in the performance of duty as alleged and that his disability for work, if any, was causally
2

The references by Dr. Thometz in this report to the BMC falling on appellant on May 12, 2009 appears to be an
error. In prior reports, he noted that this incident occurred on May 12, 1999. In his first report of May 4, 2009,
Dr. Thometz references the May 12, 1999 incident and noted that appellant had been symptomatic for 10 years.
3

5 U.S.C. §§ 8101-8193.

4

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

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

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related to the employment injury.7 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.8
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.9
Causal relationship is a medical issue10 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,11 must be one of reasonable medical certainty12
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.13
It is well established that, where employment factors cause an aggravation of an
underlying physical condition, the employee is entitled to compensation for the period of
disability related to the aggravation. Where the medical evidence supports an aggravation or
acceleration of any underlying condition precipitated by working conditions or injuries, such
disability is compensable.14
ANALYSIS
The Board finds that appellant failed to establish her claim of a right shoulder condition.
Appellant alleged that she sustained a right shoulder condition as a result of lifting and carrying
tubs and packages of mail as well as loading and unloading trucks at work.
The Board notes that the medical evidence of record provides an inconsistent history as to
how appellant sustained a right shoulder injury. Appellant received treatment for a right
7

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

8

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

9

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

10

Mary J. Briggs, 37 ECAB 578 (1986).

11

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

12

See Morris Scanlon, 11 ECAB 384, 385 (1960).

13

See William E. Enright, 31 ECAB 426, 430 (1980).

14

A.C., Docket No.08-1453 (issued November 18, 2008).

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shoulder injury from Dr. Thometz beginning May 4, 2009. Dr. Thometz stated that she was
injured on May 12, 1999 when a bulk mail carrier fell onto her shoulder. He noted that
appellant’s right shoulder remained symptomatic for 10 years. On June 11, 2009 Dr. Thometz
performed a right shoulder arthroscopy and subacromial decompression. In subsequent reports
dated July 1 and October 19, 2009, he reiterated that appellant injured her right shoulder in 1999
when a BMC fell onto her shoulder. At the hearing, however, appellant testified that the BMC
actually fell on her left shoulder. Dr. Thometz does not address whether repeated lifting and
carrying tubs and packages of mail or loading and unloading trucks at work caused or
contributed to her right shoulder condition. It is not until his report of February 5, 2010, 10
months after his first report, that he noted that appellant’s work activities contributed to her right
shoulder injury. Dr. Thometz did not explain the basis for change as to how appellant injured
her shoulder.
In a February 5, 2010 report, Dr. Thometz indicated that appellant was required to
continuously push and pull tubs of mail and to transport them to letter carriers. He opined
generally that this activity contributed to her shoulder condition and necessitated surgery;
however, the employing establishment advised that she worked in a “rehab assignment” which
consisted of distributing mail to carrier cases and working the window. If appellant had to lift
anything heavy, she was to seek assistance. She testified at the hearing that since 1999 she had
not worked regular duty but performed limited duty based on her accepted carpal tunnel
syndrome. Appellant noted that she had to pull tubs and put mail in carrier cases for three hours
a day. She worked at the window for one-hour a day and did not have to lift any package over
25 pounds. The record does not reflect that Dr. Thometz was aware of appellant’s work
limitations or that she was on limited duty. He did not address her limitations. It is well
established that medical opinions based on an incomplete or inaccurate history are of diminished
probative value.15
Finally, the Board notes that Dr. Robinson did not address the issue of whether
appellant’s employment activities caused her injury to her right shoulder.
Appellant argued on appeal that OWCP approved surgery on her right shoulder as well as
other presurgery treatments. However, there is no evidence in the record that OWCP approved
treatment for her right shoulder. The Board notes that appellant submitted new evidence and
additional argument on appeal. However, the Board lacks jurisdiction to review this evidence for
the first time on appeal.16
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.

15

M.W., 57 ECAB 710 (2006); Douglas M. McQuaid, 52 ECAB 382 (2001); P.B., Docket No. 10-1127 (issued
March 28, 2011).
16

5 U.S.C. § 501.2(c)(1).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury to her right shoulder in the performance of duty, causally related to factors of
her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2010 is affirmed.
Issued: July 22, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-808
Issued: February 24, 2010

Case Submitted on the Record

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

JURISDICTION
On February 3, 2009 appellant, through counsel, filed a timely appeal from a
September 30, 2008 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed a March 19, 2008 decision granting her schedule awards. 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 six percent permanent impairment of the
left upper extremity and three percent impairment of the right lower extremity, for which she
received schedule awards.
On appeal, appellant contends that there is a conflict in the medical opinion evidence.
FACTUAL HISTORY
On March 20, 2002 appellant, then a 34-year-old investigative specialist, sustained back,
neck and leg injuries as a result of her car hydroplaning and hitting a cement barrier. The Office

accepted her claim for right ankle sprain, herniated cervical disc, fracture of the tarsal and
metatarsal bones, laminotomy, foraminotomy and right-sided C6-7 disc excision. She
subsequently claimed a schedule award.
In an October 9, 2007 report, Dr. David Weiss, an examining osteopath, provided
findings on examination of appellant. She complained of cervical spine and right lower
extremity pain, right ankle instability and weakness and difficulty in sitting or standing for
prolonged periods. Dr. Weiss found tenderness and paravertebral muscle spasm over the
posterior cervical spine midline. Range of motion for the cervical spine included 40/45 degrees
flexion, 35/45 degrees backward extension, 70/80 degrees left rotation, 65/80 degrees right
rotation, 30/25 degrees right lateral flexion and 30/45 degrees left lateral flexion. Dr. Weiss
reported appellant’s right ankle motion was 0-55/55 degrees plantar flexion, 0-35/35 degrees
eversion, 0-15/15 degrees dorsiflexion and 0-35/35 degrees inversion. He noted a negative Talar
tilt and reported her “[a]nterior drawer sign produces some joint laxity. On examination, the
right ankle and foot revealed exquisite tenderness over the posterior medial and lateral aspects of
the calcaneus and over the common peroneal tendon. Range of motion for plantar and
dorsiflexion of 4/5, a grade of 3+/5 for eversion and inversion and a grade of 4/5 for the
gastrocnemius. Dr. Weiss diagnosed C4-5, C5-6 and C6-7 herniated nucleus pulposus, chronic
post-traumatic cervical sprain and stain, right C6 and C8 cervical radiculiitis, left C6 radiculiitis,
chronic right foot posterior calcaneus contusion and chronic right ankle sprain and strain with
common peroneal tendinitis.
In rating impairment, Dr. Weiss found a six percent left upper extremity impairment
based on a Grade 2 left C6 sensory nerve root using Tables 15-15 and 15-17, page 424. As to the
right lower extremity, he rated loss of strength under Table 17-8, page 532. Appellant had a 17
percent motor strength impairment for a Grade 4 plantar flexion; a 12 percent motor strength
impairment for a Grade 4 dorsiflexion; a 12 percent motor strength impairment for a Grade 3
inversion; a 12 percent motor strength impairment for a Grade 3 eversion. He also found 3
percent for pain pursuant to Figure 18-1 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Combining these impairments resulted
in a total 47 percent right lower extremity impairment. Dr. Weiss indicated that appellant
reached maximum medical improvement on October 9, 2007.
On March 10, 2008 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
Office medical adviser, agreed with the six percent impairment rating provided by Dr. Weiss for
the left arm. He concurred with the recommendation of a Grade 2 or 80 percent cervical nerve
root deficit under Table 15-15, page 424. Under Table 15-17, page 424, the maximum
impairment for the C6 sensory nerve is eight percent. He multiplied 8 percent by 80 percent to
total 6 percent left upper extremity sensory impairment. As to appellant’s right lower extremity
impairment, Dr. Berman found that appellant had a three percent impairment for pain under
Table 18-1 at page 574. He found that Dr. Weiss did not adequately explain his rating as
examination revealed no atrophy, full right ankle range of motion and the other objective
evidence was negative.

2

By decision dated March 19, 2008, the Office granted appellant schedule awards for six
percent impairment of the left arm and a three percent impairment of the right leg.1
Appellant’s counsel requested an oral hearing before an Office hearing representative,
which was held on July 16, 2008.2
By decision dated September 30, 2008, the hearing representative affirmed the March 19,
2008 decision.3
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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 should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.6
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.7
ANALYSIS
The Office accepted appellant’s claim for right ankle sprain, herniated cervical disc,
fracture of the tarsal and metatarsal bones, laminotomy, foraminotomy and right sided C6-7 disc
excision. Appellant claimed schedule awards for permanent impairment and submitted an
October 9, 2007 report from Dr. Weiss.
Both Dr. Weiss and Dr. Berman, the Office medical adviser, concluded that appellant had
six percent impairment of the left arm. Under Table 15-17, the maximum sensory impairment

1

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of a lower extremity and 312 weeks for compensation for 100 percent loss or loss of use of an arm. 5 U.S.C.
§ 8107(c)(2). Multiplying 288 weeks by 3 percent equals 8.64 weeks of compensation and multiplying 312 weeks
by 6 equals 18.72 for a total 27.36 weeks.
2

Appellant submitted a report from Dr. Weiss which noted an original date October 9, 2007 and a revised date of
July 31, 2008. The report was identical to the October 9, 2007 report except that it included a three percent
impairment rating for the right upper extremity due to pain.
3

The hearing representative remanded for a determination as to whether appellant was entitled to a schedule
award for her right upper extremity based upon an October 7, 2007 report by Dr. Weiss.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
See S.K., 60 ECAB ___ (Docket No. 08-848, issued January 26, 2009).

3

for the C6 nerve root is eight percent.8 The impairment is then graded based on Table 15-15,
according to the severity of the impairment.9 The medical adviser agreed with Dr. Weiss, who
classified the deficit at 80 percent or a Grade 2 under Table 15-15.10 Multiplying 80 percent by 8
percent results in an upper extremity impairment of 6 percent. There is no probative medical
evidence establishing greater impairment to the left upper extremity.
Regarding the right lower extremity, Dr. Weiss discussed the employee’s complaints of
right ankle/lower extremity pain, right ankle/lower extremity instability and weakness and
difficulty sitting or standing for prolonged times. He found a total 47 percent right lower
extremity impairment due to motor strength deficits of the right ankle and pain.11 He applied
Table 17-8 to rate muscle weakness. Dr. Weiss determined that appellant had 17 percent motor
strength impairment for a Grade 4 right ankle plantar flexion; 12 percent motor strength
impairment for a Grade 4 right ankle dorsiflexion; 12 percent motor strength impairment for a
Grade 3 right ankle inversion; and 12 percent motor strength impairment for a Grade 3 right
ankle eversion. Applying the Combined Values Chart, this totals 44 percent impairment for right
ankle muscle weakness. To this, he allowed three percent for pain under Chapter 18. However,
the A.M.A., Guides cautions examiners not to use Chapter 18 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.12 The A.M.A., Guides provide: “The impairment ratings in the
body organ system chapters make allowance for expected accompanying pain.”13 Dr. Weiss did
not adequately explain why pain or sensory loss could not be rated using the chapter on lower
extremity impairment, Chapter 17. Furthermore, Table 17-2, the cross-usage chart, does not
provide that a rating for pain may be combined with a muscle strength impairment rating.
Absent any explanation of how his evaluation of the employee conformed to the Guides,
Dr. Weiss’ rating of 47 percent is of reduced probative value.14 For these reasons, the Board
finds that the impairment rating of Dr. Weiss is not sufficient to determine the extent of
appellant’s right lower extremity impairment.
Dr. Berman, an Office medical adviser, reviewed the case record and determined that
there was no evidence that the employee experienced any right ankle muscle weakness, atrophy
or loss of range of motion. He found the rating by Dr. Weiss insufficient to support that the
employee had any impairment due to loss of strength. The Office medical adviser found that
8

A.M.A., Guides 424, Table 15-17.

9

Id. at 424, Table 15-15.

10

A Grade 2 impairment is decreased superficial cutaneous pain and tactile sensibility (decreased protective
sensibility), with abnormal sensations or moderate pain, that may prevent some activities. The impairment is 61 to
80 percent of the maximum impairment for the identified nerve
11

A.M.A., Guides 532, 574, Tables 17-8 and 18-1.

12

A.M.A., Guides 571; see D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008); Mark A. Holloway,
55 ECAB 321 (2004).
13

Id. at 20.

14

R.H. (B.H.), 59 ECAB ___ (Docket No. 07-2286, issued September 19, 2008); Laura Heyen, 57 ECAB
435 (2006).

4

pain could be possible with the employee’s injury and allowed three percent impairment under
Chapter 18 of the A.M.A., Guides. Dr. Berman, however, provided no explanation as to why
Chapter 17 of the A.M.A., Guides, the chapter for evaluating impairment of the lower
extremities, could not be used in making an impairment determination of appellant’s right lower
extremity. The Board finds that the impairment rating of Dr. Berman is not sufficient to
determine the extent of appellant’s right lower extremity impairment
The case will be remanded to the Office for further development of the medical evidence
on the issue of appellant’s right lower extremity impairment. After such further development as
the Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that appellant did not establish that she has more than a six percent
impairment of the left upper extremity, for which she received a schedule award. The Board
finds that the case is not in posture for a decision on the issue of her right lower extremity
impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision dated September 30, 2008 is affirmed
in part and set aside, in part. The case is remanded for further proceedings consistent with this
decision of the Board.
Issued: February 24, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Bloomfield, MI, Employer
__________________________________________

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

Docket No. 11-1143
Issued: December 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On April 13, 2011 appellant, through his representative, filed a timely appeal from the
March 10, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), which
found that he did not sustain an injury on October 17, 2006, as alleged. 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 the case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 17, 2006, as alleged.
On appeal, appellant’s attorney contends that OWCP’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the third appeal before the Board. On October 17, 2006 appellant, then a 48-yearold letter carrier, alleged that he slipped and fell down a handicap ramp while in the performance
of duty, sustaining a torn meniscus of the left knee. In decisions dated May 2, 2009 and April 7,
2010, the Board affirmed OWCP’s prior decisions denying his claim.2 The Board found that
appellant failed to submit medical evidence sufficient to establish that he sustained a workrelated injury on October 17, 2006.
By letter dated December 21, 2010, appellant requested reconsideration. In support of
the request, he submitted a September 13, 2010 medical report by Dr. Martin Fritzhand, a Boardcertified urologist, who reviewed appellant’s history and noted that appellant told him that he
slipped and fell on October 16, 2006. Dr. Fritzhand noted that appellant had a magnetic
resonance imaging (MRI) scan that showed a torn lateral meniscus and chondromalacia and that
an arthroscope was carried out on May 1, 2007. He noted that appellant contended that he
cannot carry weight due to issues with his left knee and that he had trouble walking.
Dr. Fritzhand opined that there was a direct causal relationship from the history of his injury of
October 16, 2006 and the results of the follow-up MRI scan some weeks later which documented
a torn lateral meniscus and which necessitated surgery. He opined that appellant submitted
sufficient evidence to establish that he actually experienced the employment incident at the time
alleged and stated that to deny a causal relationship would be to doubt the sincerity and veracity
of appellant.
By decision dated March 10, 2011, OWCP denied modification of its April 7, 2010
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA3 has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA5 and that he
filed his claim within the applicable time limitation.6 The employee must also establish that he
sustained an injury in the performance of duty as alleged and that his disability for work, if any,
was causally related to the employment injury.7

2

Docket No. 09-2002 (issued April 7, 2010); Docket No. 08-2282 (issued May 22, 2009).

3

5 U.S.C. §§ 8101-8193.

4

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

5

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

7

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

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.10 Neither the fact that the condition became apparent during a period of
employment nor appellant’s belief that the employment caused or aggravated his condition is
sufficient to establish causal relationship.11
ANALYSIS
The Board previously found that appellant had not provided sufficient medical evidence
to establish that his left knee condition was a result of the October 17, 2006 employment
incident. The only new medical evidence submitted with appellant’s most recent request for
reconsideration was the October 16, 2006 report of Dr. Fritzhand who opined that there was a
direct causal relationship between appellant’s history of injury on October 16, 2006 and the
documented torn lateral meniscus which necessitated surgery. However, the Board finds that the
report of Dr. Fritzhand is not sufficiently rationalized. Dr. Fritzhand first examined appellant
four years after appellant’s work-related incident. He based his conclusions largely on
appellant’s history. Dr. Fritzhand did not offer any independent medical evaluation as to how
the employment incident would have caused appellant’s injuries.12 A physician’s opinion on the
causal relationship between a claimant’s disability and an employment injury is not dispositive
simply because it is rendered by a physician.13 The Board has held that medical reports lacking a
rationale on causal relationship are of diminished probative value.14 The Board finds that
Dr. Fritzhand’s report is insufficient to establish a causal relationship between appellant’s
diagnosed condition and his employment incident as Dr. Fritzhand did not provide sufficient
explanation or rationale to fortify his conclusions. Accordingly, appellant did not submit
sufficient evidence to modify the prior decisions denying his claim.

8

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

9

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

10

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

11

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

12

See E.R., Docket No. 09-1722 (issued March 3, 2010).

13

Jean Culliton, 47 ECAB 728, 735 (1996).

14

I.C., Docket No. 09-481 (issued September 14, 2009).

3

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 did not establish that he sustained an injury in the
performance of duty on October 17, 2006, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 10, 2011 is affirmed.
Issued: December 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.J., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, New York, NY,
Employer
__________________________________________

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

Docket No. 19-1170
Issued: January 10, 2020

Case Submitted on the Record

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

JURISDICTION
On April 29, 2019 appellant filed a timely appeal from a March 25, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount for $17,882.11 for the period March 1, 2009 to February 9, 2013 because he concurrently
received FECA benefits and age-related retirement benefits from the Social Security
1
2

5 U.S.C. § 8101 et seq.

The Board notes that 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.

Administration (SSA), for which he was without fault in its creation; (2) whether OWCP properly
denied waiver of recovery of the overpayment; and (3) whether OWCP properly directed recovery
of the overpayment by deducting $470.17 every 28 days from appellant’s continuing compensation
benefits.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference. The relevant facts
are as follows.
On October 3, 1994 appellant, then a 47-year-old laborer, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his right knee when he slipped on an orange and
banged his knee against the gun port of the monument he was cleaning while in the performance
of duty. He stopped work on the date of injury. OWCP accepted the claim for right knee contusion
and right posterior horn meniscal tear.
In a letter dated September 5, 1995, OWCP notified appellant that he was placed on the
periodic compensation rolls effective July 13, 1995. On May 2, 1996 appellant returned to
limited-duty part-time work, but stopped work again effective August 30, 1996 due to his inability
to perform the position. OWCP again commenced payment of appellant’s wage-loss
compensation benefits on the periodic compensation rolls.
In a form dated May 8, 2012, SSA reported the amount of age-related retirement benefits
appellant received including the amount earned through the Federal Employees’ Retirement
System (FERS) and the amount that he would have received without FERS. The form indicated
that beginning in March 2009 appellant’s SSA rate with FERS was $561.50 and without FERS
was $189.40, beginning in December 2011 his SSA rate with FERS was $581.70 and without
FERS was $196.20.
By letter dated February 4, 2013, OWCP notified appellant that it adjusted his FECA
compensation benefits to offset the portion of his SSA retirement benefits attributable to federal
service as his concurrent receipt of FECA compensation benefits with retirement benefits under
FERS was a prohibited dual benefit. It noted that SSA confirmed that his current monthly SSA
retirement benefit amount with FERS was $581.70, but without FERS was $196.20. OWCP
indicated that beginning March 9, 2013 and continuing, he would receive net compensation of
$1,683.15.
On February 1, 2019 OWCP calculated the overpayment by determining the difference
between appellant’s SSA amount with and without FERS for each period and then multiplying that
amount by the number of days in each period. The FERS offset calculation worksheet indicated
that OWCP found a 28-day FERS offset amount of $3,373.43 for the 275 days from March 1 to
November 30, 2009, $4,477.47 for the 365 days from December 1, 2009 to November 30, 2010,
$4,477.47 for the 365 days from December 1, 2010 to November 30, 2011, $4,651.42 for the 366
3
Docket No. 98-0903 (issued July 27, 1998); Docket No. 00-0729 (issued February 26, 2001); Docket No. 11-1016
(issued December 12, 2011); Docket No. 14-0889 (issued June 26, 2014); Docket No. 15-1543 (issued
December 7, 2015).

2

days from December 1, 2011 to November 30, 2012, and $902.32 for the 71 days from
December 1, 2012 to February 9, 2013. In total, OWCP found an overpayment in the amount of
$17,882.11.
In a preliminary determination dated February 1, 2019, OWCP notified appellant that he
had received an overpayment of compensation in the amount of $17,882.11 because it had failed
to reduce his FECA compensation benefits for the period March 1, 2009 to February 9, 2013 by
the portion of his SSA benefits that were attributable to his federal service. It calculated the
overpayment by determining the difference between his SSA amount with and without FERS for
each period. OWCP then multiplied the daily offset amount by the number of days in each period
to find a total overpayment of $17,882.11. It further made a preliminary determination that
appellant was without fault in the creation of the overpayment. OWCP requested that he complete
the enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting
financial documentation. Additionally, it notified appellant that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing.
Appellant submitted an overpayment action request form dated February 12, 2019
indicating that he disagreed with both fact and amount of overpayment and requested waiver of
recovery of the overpayment. He asserted that the information provided by SSA was erroneous as
only a fraction of the amount was attributable to his federal service and the current claim.4
Appellant further submitted an overpayment recovery questionnaire (Form OWCP-20) which
listed monthly income of $1,450.50 in SSA benefits for his spouse, $483.00 in SSA benefits for
himself, $108.00 and $1,710.61 for civil service benefits, for a total monthly income of $3,751.61.
He also listed total monthly expenses of $3,354.00, which included $1,400.60 for rent or mortgage,
$420.00 for food, $215.00 for cable TV, $275.00 for utilities, $373.50 for car insurance, and
$671.47 in other debts. Appellant noted that he had assets of $450.00 in a checking account. He
also submitted financial documentation in support of his request for waiver of recovery of the
overpayment.
By decision dated March 25, 2019, OWCP finalized its determination that appellant
received an overpayment of compensation in the amount of $17,882.11 for the period March 1,
2009 to February 9, 2013, finding that it had failed to offset appellant’s FECA compensation
payments for the portion of his SSA retirement benefits that were attributable to his federal service.
It further found that he was without fault in the creation of the overpayment, but denied waiver of
recovery of the overpayment because his income exceeded his expenses by more than $50.00.
OWCP also related that appellant had not reported a monthly pension benefit in the amount of
$580.95 and therefore it required recovery of the overpayment by deducting $470.17 every 28 days
from his continuing FECA compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the

4
Appellant also alleged that OWCP had not timely provided him travel reimbursement forms and COLA increases.
These matters are not relevant to the issues on appeal. These issues are not presently before the Board in this appeal.

3

performance of duty.5 However, section 8116 also limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.6
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of
the employee.7 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $17,882.11 for the period March 1, 2009 to February 9, 2013,
for which he was without fault.
The overpayment was based on the evidence received from SSA regarding age-related
retirement benefits paid to appellant. The record indicates that while appellant was receiving
compensation for total disability under FECA he concurrently received SSA age-related retirement
benefits that were attributable to federal services during the period March 1, 2009 to
February 9, 2013. A claimant cannot receive both FECA compensation for wage-loss and SSA
age-related retirement benefits attributable to federal service for the same period.9
OWCP calculated the amount of overpayment by determining the difference between the
SSA amount with and without FERS for each period and multiplying the daily offset amount by
the number of days in each period, to find a total overpayment of $17,882.11. The record includes
a worksheet explaining the overpayment calculation. Appellant contested the fact and amount of
the overpayment, arguing that SSA provided incorrect information as his overpayment should only
be based the portion of his SSA benefits attributed to the federal service under the current claim
and not based on his entire period of federal service. Appellant, however, failed to submit evidence
substantiating that the information provided by SSA was incorrect. OWCP’s procedures do not
provide for an apportionment of SSA benefits due to calculation of federal service for the claim
on which an overpayment is based. As noted above, OWCP’s implementing regulations and
FECA Bulletin No. 97-09 refer to SSA benefits earned while in federal employment.10 The Board
has reviewed OWCP’s calculation of benefits received by appellant for the period March 1, 2009

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see D.S., Docket No. 18-1447 (issued July 22, 2019); S.O., Docket No. 18-0254 (issued
August 2, 2018); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (February 3, 1997).

9

See supra notes 5 and 6.

10

Id.

4

to February 9, 2013 and finds that an overpayment of compensation in the amount of $17,882.11
was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.13
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP.14 An individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.15
Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse.16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $17,882.11
overpayment of compensation.17
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
11

See D.S., supra note 7; S.O., supra note 7; G.T., Docket No. 15-1314 (issued September 9, 2016).

12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.F., Docket No. 19-0054 (issued June 12,
2019); A.S., Docket No. 17-0606 (issued December 21, 2017).
13

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83 (1989).

14

20 C.F.R. § 10.436. See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4.a.(2) (September 2018); L.C., Docket No. 19-0320 (issued July 26, 2019); B.F.,
Docket No. 13-0785 (issued September 20, 2013).
15

M.A., Docket No. 18-1666 (issued April 26, 2019); id. at Chapter 6.400.4.a(3).

16

Id. at § 10.437(a), (b).

17

See A.C., supra note 13.

5

conscience.18 In order to establish that repayment of the overpayment would defeat the purpose
of FECA, appellant must show that he requires substantially all of his income to meet current
ordinary and necessary living expenses and that his assets do not exceed the established limit as
determined by OWCP procedures.19
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. Based on appellant’s February 12,
2019 overpayment recovery questionnaire and the record, appellant’s monthly income exceeded
his ordinary and necessary living expenses by more than $50.00, he did not need substantially all
of his income for ordinary and necessary living expenses.20
Additionally, the evidence does not demonstrate that recovery of the overpayment would
be against equity and good conscience. Appellant did not submit evidence to substantiate that he
would experience severe financial hardship in attempting to repay the debt, or that in reliance on
such payment he gave up a valuable right or changed his position for the worst. Therefore OWCP
properly found that recovery of the overpayment would not defeat the purpose of FECA or be
against equity and good conscience.
Accordingly, the Board finds that OWCP properly denied waiver of recovery of the
overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship.21
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment of
compensation by deducting $470.17 every 28 days from appellant’s continuing compensation
payments.
In setting the recovery rate at $470.17, OWCP found that appellant had listed income which
exceeded expenses in the amount of $396.54; however; appellant’s bank statements reflected that
he received a monthly pension of $580.95 which appellant had not reported as income. The
March 25, 2019 decision explained how it considered the factors set forth at 20 C.F.R. § 10.441(a)
in setting the amount of repayment from continuing compensation benefits to minimize hardship,
18

20 C.F.R. § 10.436. See also G.L., Docket No. 19-0297 (issued October 23, 2019).

19

Supra note 14.

20

G.L., supra note 18.

21

M.A., Docket No. 18-1666 (issued April 26, 2019).

6

while liquidating the debt, as appellant had financial resources sufficient for more than ordinary
needs.22 The Board therefore finds that OWCP properly required recovery of the overpayment
from appellant’s continuing compensation payments at the rate of $470.17 every 28 days.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $17,882.11 during the period March 1, 2009 to February 9, 2013
as he concurrently received FECA benefits and SSA age-related retirement benefits, for which he
was without fault. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment and properly required recovery of the overpayment by deducting $470.17 every 28
days from his continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 10, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

22

See D.S., Docket No. 18-1447 (issued July 22, 2019).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Savannah, GA, Employer
__________________________________________

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

Docket No. 11-1689
Issued: May 22, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 15, 2011 appellant filed a timely appeal from the March 1, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) denying a hearing and a March 23, 2011
decision which denied his reconsideration request on the grounds that it was untimely filed and
failed to establish clear evidence of error. Because more than one year elapsed between the most
recent merit decision dated October 13, 1981 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUES
The issues are: (1) whether OWCP abused its discretion in denying appellant’s request
for hearing; and (2) whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.

FACTUAL HISTORY
This case has previously been before the Board. Appellant, then a 26-year old clerk, filed
a claim for benefits on June 5, 1979, alleging that he sustained a contusion when he slipped and
hit his head on a mail tray. The claim was accepted for a scalp contusion. By decision dated
January 31, 1980, OWCP found that appellant did not have disability causally related to the
June 5, 1979 injury. By decision dated August 7, 1980, an OWCP hearing representative
affirmed the January 31, 1980 decision. By nonmerit decision dated June 9, 1981, OWCP
denied reconsideration of the January 31, 1980 decision. In an October 13, 1981 decision,1 the
Board affirmed the January 31, 1980 and June 9, 1981 OWCP decisions. The facts of this case as
set forth in the Board’s October 13, 1981 decision are incorporated herein by reference.
By letter dated October 20, 2010, appellant requested a hearing. He contended that
reports he submitted from Dr. Thomas M. Stanley, Board-certified in internal medicine and
neurology, established that he had an arm condition causally related to his employment.
By decision dated November 29, 2010, OWCP denied appellant’s request for an oral
hearing. It noted that section 8124 of FECA2 provided for hearings and reviews of the written
record only after a final decision has been issued by the district OWCP; in the instant case, a
final decision was rendered by OWCP on January 31, 1980 and by the Board on August 7, 1981.
Therefore, appellant was not entitled to a hearing.
By letter dated December 20, 2010, appellant requested reconsideration. He argued that
OWCP erred in its January 31, 1980 decision and denied him due process by failing to schedule
a medical evaluation after receiving reports from Dr. Stanley which established a prima facie
case for causation. Appellant also stated that OWCP erred by failing to award compensation for
a Form CA-2a he filed on November 11, 1980.
By letters dated January 14 and 24, 2010, appellant requested an oral hearing.
In a February 27, 1996 report, received by OWCP on January 27, 2011, Dr. Stanley
stated that he had treated appellant since 1979 for complaints of pain in the dorsal hands, over
the dorsal surface of the extensor arm and also to the supraclavicular area. He stated that
appellant had a history of repetitive movements as a postal worker and had complained of pain
while working at his clerk position. Dr. Stanley opined that appellant’s arm pain and cramping
might be secondary to tendinitis brought about by repetitive injury. He noted that appellant had
requested being placed on light duty in May 1979, after which time he returned to keyboard
duties. Dr. Stanley diagnosed right forearm and hand pain, tendinitis, probably related to
repetitive work.
By decision dated March 1, 2011, OWCP denied appellant’s request for an oral hearing.
It noted that section 8124 of FECA3 provided for hearings and reviews of the written record only
1

Docket No. 81-1654 (issued October 13, 1981).

2

5 U.S.C. § 8124.

3

Id.

2

after a final decision has been issued by the district OWCP; in the instant case, a final decision
was rendered by OWCP on January 31, 1980 and by the Board on October 13, 1981.
By decision dated March 23, 2011, OWCP denied appellant’s request for reconsideration
without a merit review, finding the request was untimely and that appellant had not established
clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
Section 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an
OWCP representative when a request is made within 30 days after issuance of and OWCP’s final
decision.4 A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark of the request.5 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.6 In such a
case, it will determine whether a discretionary hearing should be granted or, if not, will so advise
the claimant with reasons.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for hearing as the last merit decision issued in this case was the Board’s decision dated August 7,
1981 and no right to hearing before the Branch of Hearings and Review accompanies a decision
of the Board.8 Also as appellant’s January 14, 2011 request for a hearing was postmarked more
than 30 days after OWCP’s January 31, 1980 decision denying compensation, he is not entitled
to a hearing as a matter of right. OWCP properly exercised its discretion and advised that
appellant could address the issue in this case by submitting to OWCP new and relevant evidence
with a request for reconsideration. The Board finds that OWCP properly exercised its discretion
in denying appellant’s request for a hearing. The Board therefore affirms the March 1, 2011
decision denying appellant an oral hearing by an OWCP hearing representative.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA9 does not entitle an employee to a review of an OWCP decision
as a matter of right.10 This section, vests OWCP with discretionary authority to determine
whether it will review an award for or against compensation.
4

Id. at § 8124(b)(1).

5

20 C.F.R. § 10.131(a)(b).

6

William E. Seare, 47 ECAB 663 (1996).

7

Id.

8

20 C.F.R. § 10.616 (a).

9

5 U.S.C. § 8128(a).

10

Thankamma Mathews, 44 ECAB 765 (1993).

3

Effective June 1, 1987, regulations were promulgated, including a change in the time
period within which a claimant may be entitled to reconsideration. The regulations provided
that, in addition to the requirements of section 10.138(b)(1),11 OWCP would not review ... a
decision denying or terminating a benefit unless the application is filed within one year of the
date of that decision.12 OWCP, in FECA Bulletin No. 87-40 and its procedures, has specified the
type of notice to be provided a claimant where a decision issued before June 1, 1987 is followed
by a nonmerit decision issued after that date. FECA Bulletin No. 87-40, in relevant part, states:
“It has been determined that where an application for review is denied based on
the grounds that the claimant has not met the requirements of section
10.138(b)(1)(i)-(iii) and the decision being disputed was issued prior to June 1,
1987, the claimant should be notified of the one-year time limitation for
requesting further review. It is not necessary to deny the application and wait for
the claimant to submit sufficient evidence for a merit review before implementing
the new one-year time limitation.13
1. The attachment to this bulletin reflects the text to be used where the
decision in dispute was issued prior to June 1, 1987, and the claimant’s
application for review is being denied based on insufficiency of evidence
(i.e., the claimant has not met the requirements of section 10.138(b)(1)(i)(iii)). This text advises the claimant of his or her rights to appeal the
denial of application to the [Board] and of the new one-year time limit for
obtaining merit review. This is the only situation which this notice is to be
used.
2. A copy of the notice of the one-year time limitation must be placed in
the case file along with the decision denying application. If a copy of the
notice is not in the case file, the time limitation cannot be applied to a
subsequent request for reconsideration.”14
OWCP procedures provided that no time limit applied to requests for reconsideration of
decisions issued before June 1, 1987 because there was no regulatory time limit for requesting
reconsideration prior to that date. A request for reconsideration may not be denied as untimely
unless the claimant was advised of the one-year filing requirement in a later decision denying an
application for reconsideration or denying modification of the contested decision. In those cases,
the one-year time limit begins on the date of the decision that includes notice of the time
limitations.15 The procedures further provide that, if the original denial was issued before June 1,
11

20 C.F.R. § 10.138(b)(1) (1998).

12

Id. at § 10.138(b)(2) (1998).

13

Effective January 4, 1999, OWCP regulations were revised. Section 10.606(b)(2) of the 1999 regulations
contain essentially the same requirements for a reconsideration application as those found in former section
10.138(b)(1).
14

FECA Bulletin No. 87-40 (issued June 26, 1987).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(2) (January 2002).

4

1987, the cover letter or appeal rights attached to the decision should include a notice of the oneyear time limitation for requesting reconsideration. Thereafter, the claimant would have one
year from the decision denying the application to again request reconsideration of the contested
decision.16
ANALYSIS
OWCP improperly determined in this case that appellant failed to file a timely
application for review. The last merit decision in this case was October 13, 1981, the date the
Board affirmed a January 31, 1980 OWCP merit decision. Appellant requested reconsideration
on December 20, 2010.
By decision dated January 31, 1980, OWCP, in a merit decision, found that appellant did
not have disability causally related to the June 5, 1979 injury, accepted for a scalp contusion.
The appeal rights accompanying that decision advised him that he could request reconsideration
at any time or file an appeal with the Board within 90 days. No time limit applied to requests for
reconsideration of decisions issued before June 1, 1987.17 A request for reconsideration may not
be denied as untimely unless the claimant was notified of the one-year filing requirement in a
later decision denying an application for reconsideration or denying modification of the
contested decision. The case record does not establish that appellant was ever notified of the
regulatory change. OWCP has specified the type of notice to be provided where a decision
issued before June 1, 1987 is followed by a nonmerit decision issued after that date and, in those
cases, the one-year time limit begins on the date of the decision that includes notice of the time
limitations. The Board therefore finds that the one-year time limitation for requesting
reconsideration of a claim does not apply in this case. Appellant’s request cannot be found
untimely pursuant to section 10.607 of OWCP’s regulations.18 The case will be remanded for
OWCP to further review appellant’s December 20, 2010 reconsideration request in accordance
with its regulations and procedures.

16

Id. at Chapter 2.1602.6(b) (January 2004). This notice advises the claimant of his or her right to an appeal
before the Board and further provides:
“NOTICE:
Section 10.607(a) of Title 20 of the Code of Federal Regulations, which concerns the
reconsideration of a decision by OWCP, provides that OWCP will not review a decision denying
or terminating a benefit unless the claimant’s request for review is filed within one year of that
decision. This provision of the regulations became effective June 1, 1987. Therefore, even
though the decision in your case was issued prior to June 1, 1987 and included the right to
reconsideration, without specifying a time limit, a request for reconsideration of that decision will
be denied if it is not made within one year from the date of this notice.”
17

See 20 C.F.R. § 10.136 (1986).

18

See Charles E. Puff, 48 ECAB 429 (1997).

5

CONCLUSION
The Board finds that OWCP erred in finding appellant’s December 20, 2010
reconsideration request untimely.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed. The March 23, 2011 decision is set aside and the
case is remanded to OWCP for further proceedings consistent with this decision of the Board.
Issued: May 22, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 09-162
Issued: August 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 22, 2008 appellant filed a timely appeal of schedule award decisions dated
December 19, 2007 and May 15, 2008, by the Office of Workers’ Compensation Programs and
an August 25, 2008 nonmerit decision, denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained permanent impairment of his upper
extremities resulting from his accepted employment injuries; and (2) whether the Office properly
denied appellant’s request for a merit review of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 5, 2006 appellant, then a 43-year-old mail handler, filed an occupational disease
claim alleging that on May 15, 2006 he first became aware of his back pain and that it was
caused by his federal employment while lifting tubs out of an all-purpose container, his left arm
became numb. Treatment notes dated May 17 to June 14, 2006 of Dr. Benjamin P. Lyon, a

Board-certified internist, diagnosed cervical radiculopathy. By letter dated July 10, 2006, the
Office accepted appellant’s claim for displacement of cervical intervertebral discs at C3-4, C5-6
and C6-7 and cervical radiculopathy. On July 19, 2007 appellant filed a claim for a schedule
award.
By letter dated July 30, 2007, the Office requested that appellant submit a medical report
from an attending physician, addressing whether he sustained any permanent impairment to his
upper extremities due to his accepted employment injuries based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
By letter dated September 4, 2007, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Richard T. Sheridan, a Board-certified orthopedic surgeon, for a second opinion medical
examination.1
In a September 24, 2007 report, Dr. Sheridan noted appellant’s complaints of pain in his
neck, both axilla, right greater than left and throughout his left upper extremity. Appellant also
complained about popping and grinding in his neck. Dr. Sheridan reviewed a history of his
medical and educational background. On physical examination of the cervical spine, he reported
preservation of cervical lordosis and no evidence of facial asymmetry, torticollis or webbing of
the neck. There were no points of tenderness over the skull, cervical spinous processes,
interspinous ligaments or in the paracervical soft tissues. Appellant had full range of motion
with 55 degrees of flexion, 50 degrees of extension, 60 degrees of lateral rotation to either side
and 30 degrees of lateral flexion to either side. His Spurling, lateral root traction and foraminal
encroachment tests were negative for both sides. Appellant had a sebaceous cyst the size of a
quarter in the left sternocleidomastoid. There was no evidence of axillary lymphadenopathy or
hidradenitis suppurativa in either axilla. On physical examination of the upper extremities,
Dr. Sheridan reported full range of motion in the shoulders, elbows, wrists, finger and thumb
joints. Appellant’s arms measured 11 inches in circumference and his forearms measured
10 inches in circumference. He had a well-healed two-inch scar over the proximal phalanx of
the left thumb dorsally. There was a 15-degree varus deformity of the interphalangeal joints of
the thumbs. Reflexes were 2+ at the biceps, triceps and brachioradialis. Sensation was normal
for light touch and pinwheel pinprick testing. Grip strength with the Jamar dynamometer was
46, 48 and 40 on the right and 25, 28 and 26 on the left. Manipulation, pinch and fine
coordination were symmetric.
Dr. Sheridan opined that appellant reached maximum medical improvement on
September 24, 2007. He determined that appellant did not sustain any permanent impairment to
either upper extremity due to loss of range of motion or from sensory deficit, pain, discomfort or
decreased strength (A.M.A., Guides 376, 424, Tables 15-15, 15-16 and 15-18).
On September 28, 2007 an Office medical adviser reviewed appellant’s medical records
including, Dr. Sheridan’s September 24, 2007 findings, noting that he reached maximum medical

1

A September 12, 2007 report of Edwin B. Robbins, a physician’s assistant, stated that appellant sustained
degenerative disc disease of the lumbar spine, cervical and lumbar radiculitis and myofascial pain syndrome.

2

improvement as of Dr. Sheridan’s examination. The medical adviser opined that appellant had
no impairment of the right and left upper extremities based on the A.M.A., Guides.
By decision dated October 4, 2007, the Office denied appellant’s claim for a schedule
award. It found that the medical evidence established that he did not sustain any permanent
impairment to his upper extremities.
On November 2, 2007 appellant requested reconsideration. In a medical report,
Dr. Phillip A. Tibbs, a Board-certified neurosurgeon, stated that appellant was evaluated on
August 22, October 25 and November 22, 2006. He advised that appellant reached maximum
medical improvement on May 15, 2006. Dr. Tibbs determined that appellant sustained a
5 percent impairment due to sensory deficit and a 10 percent impairment due to decreased
strength of the left upper extremity.
Reports dated October 16 and November 20, 2007, noted that appellant received cervical
epidural steroid injections for his cervical radiculitis.
By decision dated December 19, 2007, the Office denied modification of the October 4,
2007 decision. It found that Dr. Sheridan’s opinion constituted the weight of the medical
evidence in finding that appellant did not sustain any upper extremity impairment.
A January 7, 2008 report stated that appellant received a cervical epidural steroid
injection.
By letter dated March 14, 2008, appellant requested reconsideration of the Office’s
December 19, 2007 decision. In a March 12, 2008 report, Dr. Tibbs stated that a magnetic
resonance imaging (MRI) scan showed no specific progression of degenerative disc disease or
acute herniation in the cervical spine, although there was some foraminal stenosis at several
levels. On physical examination, he reported symmetrical reflexes and good strength. Dr. Tibbs
continued a conservative course of therapy.
On April 29, 2008 a second Office medical adviser reviewed appellant’s medical record,
noting that he had not yet reached maximum medical improvement. The medical adviser stated
that appellant experienced neck pain radiating to his left arm with numbness. MRI scans showed
disc osteophyte complex lateralizing to the left at C3-4. The medical adviser further stated that
Dr. Tibbs’ March 12, 2008 report recommended continued conservative treatment including,
epidural steroid injections, which had so far provided temporary relief to appellant. The medical
adviser stated that additional evidence was required to properly rate appellant’s impairment
based on the A.M.A., Guides.
In a May 15, 2008 decision, the Office denied modification of the December 19, 2007
decision. It found that the Office medical adviser’s April 29, 2008 opinion established that
appellant did not sustain any permanent impairment of either upper extremity based on the
A.M.A., Guides.
Appellant submitted duplicate copies of reports regarding his cervical epidural steroid
injections and from Dr. Witt and Mr. Robbins and Dr. Lyon.

3

In a June 11, 2008 report, Dr. Tibbs noted appellant’s continuing employment-related
cervical conditions and pain and numbness in his arms. On physical examination, he reported
essentially normal findings with the exception of decreased range of motion in the lower back.
Dr. Tibbs discussed performing a myelogram and surgery if the myelogram confirmed foraminal
stenosis or root entrapment. He opined that appellant had not reached maximum medical
improvement. In a June 12, 2008 physician outpatient order, Dr. Tibbs scheduled a cervical
examination on July 9, 2008. In a July 9, 2008 report, he provided findings on physical
examination. Dr. Tibbs reported minimal weakness in the left upper extremity and both biceps,
triceps and anterior intrinsics which seemed to be overlaid by pain. Reflexes were symmetrical
at 1/4. Sensation was decreased in the left C7 distribution and there was abnormal formation of
both thumbs on the left more than the right. Dr. Tibbs stated that a cervical myelogram and
computerized tomography (CT) scan showed some foraminal stenosis to the left at C5-6.
On August 11, 2008 appellant requested reconsideration of the Office’s May 15, 2008
decision.
By decision dated August 25, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was cumulative and immaterial in
nature and, thus, insufficient to warrant a merit review of its prior decisions.2
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for displacement of cervical intervertebral discs at
C3-4, C5-6 and C6-7 and cervical radiculopathy. Appellant contends that he is entitled to a
schedule award for permanent impairment to his upper extremities. The Board, however, finds
2

On appeal, appellant has submitted additional evidence. The Board may not consider evidence for the first time
on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R.
§ 10.501.2(c). Appellant can submit this evidence to the Office and request reconsideration. 5 U.S.C. § 8128;
20 C.F.R. § 10.606.
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

See supra note 4.

4

that he has not established that he has sustained any permanent impairment to his upper
extremities due to his accepted cervical conditions.
Dr. Tibbs opined that appellant sustained a 5 percent impairment of the left upper
extremity due to sensory deficit, as well as a 10 percent impairment due to decreased strength.
However, he did not address how his injury was based on the A.M.A., Guides. As Dr. Tibbs did
not provide an impairment rating based on the A.M.A., Guides, his impairment estimate is of
diminished probative value and insufficient to establish that appellant sustained any permanent
impairment of the upper extremities.
Dr. Sheridan, an Office referral physician, found no objective basis for an impairment
rating for the right or left upper extremity under the A.M.A., Guides. On physical examination
of the cervical spine, he reported essentially normal findings which included preservation of
cervical lordosis and no evidence of facial asymmetry, torticollis or webbing of the neck.
Dr. Sheridan found no points of tenderness over the skull, cervical spinous processes,
interspinous ligaments or in the paracervical soft tissues. He reported full range of motion with
55 degrees of flexion, 50 degrees of extension, 60 degrees of lateral rotation to either side and
30 degrees of lateral flexion to either side. Dr. Sheridan further reported negative Spurling,
lateral root traction and foraminal encroachment tests for both sides. He found a sebaceous cyst
the size of a quarter in the left sternocleidomastoid. Dr. Sheridan did not find any evidence of
axillary lymphadenopathy or hidradenitis suppurativa in either axilla. He reported essentially
normal findings on physical examination of the upper extremities which included full range of
motion in the shoulders, elbows, wrists, finger and thumb joints. Dr. Sheridan stated that
appellant’s arms measured 11 inches in circumference and his forearms measured 10 inches in
circumference. He reported a well-healed two-inch scar over the proximal phalanx of the left
thumb dorsally and a 15-degree varus deformity of the interphalangeal joints of the thumbs.
Dr. Sheridan stated that reflexes were 2+ at the biceps, triceps and brachioradialis. He also
stated that sensation for light touch and pinwheel pinprick testing was normal. Dr. Sheridan
reported that grip strength was 46, 48 and 40 on the right and 25, 28 and 26 on the left. Lastly,
he reported symmetric manipulation, pinch and fine coordination.
Dr. Sheridan opined that appellant reached maximum medical improvement on
September 24, 2007. He concluded that appellant did not sustain any permanent impairment to
either upper extremity due to loss of function from sensory deficit, pain, discomfort or decreased
strength (A.M.A., Guides 376, 424, Tables 15-15, 15-16 and 15-18). Dr. Sheridan properly
applied the A.M.A., Guides and provided rationale for finding that appellant did not sustain any
impairment of the upper extremities. His opinion is supported by an Office medical adviser’s
September 28, 2007 report. An Office medical adviser reviewed Dr. Sheridan’s findings and
opined that there was no objective basis for an impairment rating for appellant’s upper
extremities under the A.M.A., Guides. The medical adviser determined that he sustained a zero
percent impairment each of the right and left upper extremities.
In an April 29, 2008 report, a second Office medical adviser reviewed appellant’s case
record. He stated that he had not yet attained maximum medical improvement based on his
continuing neck pain radiating to his left arm with numbness, MRI scans which showed disc
osteophyte complex lateralizing to the left at C3-4 and Dr. Tibbs’ continued conservative
treatment plan. The second Office medical adviser recommended obtaining additional medical

5

evidence. However, he did not provide any explanation of the findings by Dr. Sheridan who
opined that maximum medical improvement had been reached.
Dr. Sheridan and the first Office medical adviser provided sufficient medical rationale in
determining that appellant does not have any impairment of his upper extremities. The Board
finds that the opinions of Dr. Sheridan and the first Office medical adviser represent the weight
of the medical evidence of record. Appellant is not entitled to a schedule award for his upper
extremities.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,7
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.8 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.9 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
On August 11, 2008 appellant disagreed with the Office’s May 15, 2008 decision, finding
that he was not entitled to a schedule award for his upper extremities. The relevant issue in the
case is whether he has established any permanent impairment of the upper extremities, causally
related to the accepted employment injuries.
Appellant submitted duplicate copies of the cervical and lumbar epidural steroid injection
reports covering the period July 10, 2007 to January 7, 2008, Dr. Witt’s July 10, 2007 report,
Dr. Lyon’s May 17 to June 14, 2006 treatment notes and Mr. Robbins’ September 12, 2007
report. This evidence was previously of record and addressed by the Office in its prior decisions
and, thus, does not constitute a basis for reopening appellant’s claim for merit review.10
Dr. Tibbs’ June 11, 2008 report noted appellant’s continuing cervical symptoms and
provided his essentially normal findings on physical examination. He opined that appellant had
not reached maximum medical improvement and ordered a myelogram to confirm the diagnosis
of foraminal stenosis or root entrapment. Dr. Tibbs’ June 12, 2008 physician outpatient order
stated that appellant was scheduled for a cervical examination on July 9, 2008. His July 9, 2008
7

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(1)-(2).

9

Id. at § 10.607(a).

10

James W. Scott, 55 ECAB 606, 608 n.4 (2004); Freddie Mosley, 54 ECAB 255 (2002).

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report provided appellant’s physical examination findings which included minimal weakness in
the left upper extremity and both biceps, triceps and anterior intrinsics, which seemed to be
overlaid by pain. Dr. Tibbs reported symmetrical reflexes at 1/4, decreased sensation in the left
C7 distribution and abnormal formation of both thumbs on the left more than the right. He stated
that a cervical myelogram and CT scan demonstrated some foraminal stenosis to the left at C5-6.
The August 14, 2007 report stated that appellant received a lumbar epidural steroid injection.
The Board has held that the submission of evidence which does not address the particular issue
involved in the case does not constitute a basis for reopening the claim.11 The evidence
submitted did not address the relevant issue of whether appellant sustained permanent
impairment of the upper extremities based on the A.M.A., Guides, causally related to the
accepted employment conditions. The Board finds that this evidence does not constitute a basis
for reopening appellant’s claim for merit review; therefore, the Office properly denied
appellant’s reconsideration request.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As appellant did not meet any of the necessary regulatory requirements, the Board finds
that he is not entitled to further merit review.12
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for his upper
extremities resulting from his accepted employment injuries. The Board also finds that the
Office properly denied his request for a merit review of his claim pursuant to 5 U.S.C. § 8128(a).

11

D. Wayne Avila, 57 ECAB 642 (2006).

12

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the August 25 and May 15, 2008 and December 19,
2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 11, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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