United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fort Worth, TX, Employer
__________________________________________

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

Docket No. 11-1280
Issued: December 22, 2011

Case Submitted on the Record

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

JURISDICTION
On May 2, 2011 appellant filed a timely appeal from an April 18, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment in compensation
in the amount of $3,130.45 was created for the period February 15 to March 12, 2011 as he
returned to work on February 14, 2011; and (2) whether OWCP properly denied waiver of the
recovery of the overpayment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 24, 2010 appellant, then a 36-year-old correctional officer, injured his left
knee and left wrist while restraining an inmate. OWCP accepted the claim for left ganglion, left
wrist sprain and left knee derangement of the medial meniscus. It paid wage-loss benefits and
authorized a July 14, 2010 left knee arthroscopy with complete debridement and partial medial,
complete lateral meniscectomy with complete synovectomy and an October 28, 2010 excision of
the left dorsal ganglion. Appellant stopped work on March 17, 2010 and returned to work for
brief intermittent periods. OWCP placed him on its periodic rolls, where he received
compensation every 28 days through direct deposit.
In its April 12, 2010 acceptance letter, OWCP informed appellant that if he received a
compensation check which included payment for a period in which he worked, he was to
immediately return it in order to prevent an overpayment.
Appellant returned to full-time work on February 14, 2011. OWCP electronically paid
him $3,130.45 for the period February 15 to March 12, 2011.
On March 15, 2011 OWCP notified appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $3,130.45 for the period February 15
to March 12, 2011 because he received compensation for total disability after he returned to fulltime work on February 14, 2011. It further informed him of its preliminary determination that he
was not at fault for accepting the direct deposit of $3,246.39 as he did not have the requisite
knowledge that such payment was incorrect at the time of deposit. OWCP calculated that it paid
appellant compensation in the amount of $3,246.39 every 28 days or $115.94 a day and that he
was entitled to compensation for one day. Thus, it calculated that appellant was overpaid
$115.94 x 27 days or $3,130.45. OWCP requested that appellant submit the enclosed
overpayment recovery questionnaire and supporting financial information within 30 days. It
noted that waiver would be denied if he failed to furnish the information requested on the
enclosed overpayment recovery questionnaire or any other information needed to address a
request for waiver within the 30 days. No response was received from appellant within the
allotted 30 days.
By decision dated April 18, 2011, OWCP finalized its finding that appellant received
$3,130.45 in an overpayment of compensation for the period February 15 to March 12, 2011
based on his receipt of compensation for disability after his return to full-time work on
February 14, 2011. While appellant was not at fault in the creation of the overpayment, it found
he was not entitled to waiver of the overpayment because he failed to supply the requested
financial information necessary to make such a determination. Appellant was directed to repay
the overpayment in full.

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LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.2 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.3 OWCP’s procedure manual
identifies various situations when overpayments of compensation may occur, including when a
claimant receives compensation for total disability while working.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $3,130.45. The record supports that he continued to receive compensation from the date that
he returned to work on February 14 through March 12, 2011. When an employee returns to
work and ceases to have any loss of wages, he or she is no longer entitled to compensation for
wage loss.5 The record reflects that appellant received an automatic 28-day compensation
payment for the period February 14 through March 12, 2011 in the amount of $3,246.39, but was
only entitled to compensation for one day in the amount $115.94. The difference between the
compensation paid of $3,246.39 and the compensation due of $115.94 is $3,130.45. As
appellant was not entitled to compensation after his return to work on February 14, 2011, OWCP
properly found an overpayment of compensation occurred in the amount of $3,130.45.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within its discretion pursuant to statutory guidelines.6 The statutory guidelines are
found in section 8129(b) of FECA which states: Adjustment or recovery of an overpayment by
the United States may not be made when an incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of FECA or
would be against equity and good conscience.7

2

5 U.S.C. § 8102(a).

3

Id. at § 8129(a).

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
5

See Kenneth E. Rush, 51 ECAB 116 (1999).

6

See Robert Atchison, 41 ECAB 83, 87 (1989).

7

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

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Section 10.436 of the implementing regulations8 provide that recovery of an overpayment
would defeat the purpose of FECA if such recovery would cause hardship to a currently or
formerly entitled beneficiary because: the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified
amount as determined by OWCP from data furnished by the Bureau of Labor Statistics.9 An
individual is deemed to need substantially all of his or her income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.10
Section 10.437 provides that 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; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver.12
ANALYSIS -- ISSUE 2
OWCP found appellant to be without fault and eligible for consideration of waiver with
regards to its finding that he received an overpayment in the amount of $3,130.45. The
applicable regulations provide that the individual who receives an overpayment is responsible for
providing financial information. Failure to submit the requested financial information within 30
days of the request shall result in the denial of the waiver.13 Appellant did not provide any
financial information to show that recovery of the overpayment would defeat the purpose of

8

20 C.F.R. § 10.436.

9

An individual’s asset must exceed a resource based of $4,800.00 for an individual or $8,000.00 for an individual
with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1)(b) (December 23, 2004).
10

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

11

20 C.F.R. § 10.437.

12

Id. at § 10.438.

13

See Clinton E. Clinton, Jr., 49 ECAB 476 (1998). See also Robert Ringo, 53 ECAB 258 (2001).

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FECA.14 As he failed to submit the requested financial evidence, OWCP, pursuant to its
regulations, properly denied waiver of recovery of the overpayment amount of $3,130.45.15
On appeal, appellant contends that he was not afforded due process or notice prior to
OWCP’s April 18, 2011 decision. The Board notes that OWCP provided appellant with a
preliminary notice of the overpayment and advised him of his opportunity to submit evidence if
he disagreed with the fact or amount of overpayment. Further, appellant was provided with an
overpayment action request and overpayment questionnaire, to which he did not respond, prior to
the issuance of OWCP’s April 18, 2011 final decision. While appellant offered some arguments
on appeal with regard to waiver, the Board is precluded from considering those arguments for the
first time on appeal.16
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $3,130.45 for the period February 15 to March 12, 2011. The Board further finds that OWCP
properly denied waiver of such overpayment as appellant failed to submit the necessary financial
information to establish that he was entitled to wavier of the overpayment.

14

Appellant likewise has not alleged and the evidence does not demonstrate that he relinquished a valuable right
or changed his position for the worse due to the payment of the erroneous amount of compensation.
15

As OWCP is not seeking recovery from continuing compensation, the Board does not have jurisdiction to
review the manner of recovery of the overpayment. See Miguel A. Muniz, 54 ECAB 217 (2002).
16

The Board may not consider new evidence for the first time on appeal that was not before OWCP at the time it
issued its final decision. See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the April 18, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 22, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Columbia, SC,
Employer
__________________________________________

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

Docket No. 13-140
Issued: April 10, 2013

Case Submitted on the Record

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

JURISDICTION
On October 25, 2012 appellant, through his attorney, filed a timely appeal from a July 16,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
January 16, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on a prior appeal.2 As the Board noted, appellant filed a
traumatic injury claim, Form CA-7, alleging that he sustained a hernia on January 16, 2009 when
he was unloading a truck and felt a sharp pain in his stomach. OWCP denied the claim by
decisions dated March 4, 2009 and January 14, 2010, finding that the incident on January 16,
2009 had not been established as alleged. The Board modified the January 14, 2010 OWCP
decision, finding the evidence was sufficient to establish a January 16, 2009 employment
incident. The denial of the claim was affirmed as the medical evidence was not sufficient to
establish an injury causally related to the January 16, 2009 employment incident. The history of
the claim as provided in the Board’s prior decision is incorporated herein by reference.
By letter dated January 6, 2012, appellant, through his representative, requested
reconsideration. According to counsel, the Board’s prior decision did establish that appellant
sustained an injury on January 16, 2009, but the opinion of Dr. Jon Stanford, a Board-certified
surgeon, was equivocal.
Appellant submitted a January 4, 2012 report from Dr. Stanford, who stated in pertinent
part:
“There is a question in regard to the causality of the patient’s hernia and to a
reasonable medical certainty, if the January 16, 2009 work accident caused or
aggravated his ventral hernia. I have reviewed the copy of the [B]oard’s Decision
and Order regarding [appellant’s] request for disability; [i]t appears that by this
document it has been established that an injury did occur on January 16, [2009]. I
cannot conclude within a reasonable medical certainty that the heavy lifting event
on January 16, [2009] caused his hernia. I can say that with reasonable medical
certainty an injury as described and other reports as described occurring on
January 16, 2009 would have aggravated the ventral hernia, prompting medical
evaluation and treatment.”
By decision dated July 16, 2012, OWCP performed a merit review of the evidence.
According to OWCP, the Board’s prior decision had found appellant submitted sufficient
evidence to establish fact of injury. OWCP found the evidence on reconsideration was
insufficient to warrant modification of the denial of the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of

2

Docket No. 10-1358 (issued February 7, 2011).

3

5 U.S.C. § 8102(a).

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employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by rationalized medical
evidence.6
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
In its prior decision, the Board noted the above legal precedent and discussed the
evidence of record in relation to the issue presented. There appears to be some confusion, both
by OWCP and appellant, as to the determination regarding “fact of injury.” OWCP states that
the Board found that fact of injury was established, and appellant asserts that the Board found he
had sustained an injury on January 16, 2009. The Board found, and clearly explained the basis
for its finding, that an employment incident was established on January 16, 2009. Any reference
to the history given in medical reports was simply to confirm there were no inconsistencies in the
factual allegation as to the employment incident.
To establish fact of injury, as the legal precedent above explains, there are two
components: (1) the establishment of an employment incident as alleged, and (2) medical
evidence establishing an injury causally related to the employment incident. The Board found
that the first component was established in this case. As to the second component, the Board
found the medical evidence was not sufficient to establish an injury causally related to the
January 16, 2009 employment incident, as there was no rationalized medical evidence on the
issue.
On reconsideration, appellant submitted a January 4, 2012 report from Dr. Stanford, who
noted that the issue was whether the work incident caused or aggravated a ventral hernia.
Dr. Stanford then incorrectly states that the Board found an injury had occurred on
January 16, 2009. He opines that he cannot say with reasonably medical certainty that the work
4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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incident caused a hernia. Dr. Stanford then concludes that the “injury as described and other
reports as described occurring on January 16, 2009 would have aggravated the ventral hernia,
prompting medical evaluation and treatment.” He does not explain the “injury as described.” If
Dr. Sanford believes the January 16, 2009 incident aggravated a ventral hernia, he must discuss
the employment incident and explain the nature and extent of any aggravation. The January 4,
2012 report does not provide a rationalized medical opinion on causal relationship. Thus,
appellant has failed to meet his burden of proof to establish that the accepted incident caused the
medical condition of ventral hernia.
On appeal, appellant argues that Dr. Sanford’s report is sufficient to establish an
aggravation of a hernia condition as employment related. For the reasons stated above, the
Board finds the evidence is not sufficient to establish the second component -- that the injury was
causally related to the January 16, 2009 incident.
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 appellant has not established an injury in the performance of duty on
January 16, 2009.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 16, 2012 is modified to reflect that an employment incident
on January 16, 2009 has been established and affirmed as modified.
Issued: April 10, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE COMPTROLLER OF THE
CURRENCY, Downers Grove, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0408
Issued: October 7, 2021

Case Submitted on the Record

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

On October 29, 2020 appellant sought appeal from a purported May 1, 2020 decision of
the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 21-0408.
The Board, having duly considered this matter, notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3. This jurisdiction encompasses any final adverse
decision issued by OWCP within 180 days of the date appellant filed her appeal. 3
11

The Board notes that following the September 8, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

Although the case record as transmitted to the Board does contain a document from OWCP
dated May 1, 2020, it is an informational letter and, thus, does not constitute a final adverse
decision subject to review under 20 C.F.R. §§ 501.2(c) and 501.3(a). As there is no final adverse
decision over which the Board may properly exercise jurisdiction, the Board concludes that the
appeal docketed as No. 21-0408 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0408 is dismissed.
Issued: October 7, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austin, TX, Employer
__________________________________________

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

Docket No. 11-224
Issued: September 20, 2011

Case Submitted on the Record

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

JURISDICTION
On November 4, 2010 appellant filed a timely appeal from an October 20, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). 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 schedule award decision.
ISSUE
The issue is whether appellant has greater than 19 percent impairment to his right leg.
FACTUAL HISTORY
On May 1, 1990 appellant, then a 37-year-old management analyst, injured his right knee
while delivering mail. OWCP accepted the claim for sprain of the right knee, right lateral
collateral ligament, derangement of the right lateral meniscus, derangement of the medial
meniscus and sprain of the right cruciate ligament. Appellant did not stop work.
1

5 U.S.C. §§ 8101-8193.

OWCP also authorized surgery. On May 18, 1990 Dr. John Genung, a Board-certified
orthopedist, performed arthroscopy of the right knee, debridement and removal of bone staples.
He diagnosed posterior horn degenerative tear of the lateral meniscus of the right knee, medial
retinacular adhesions, chondromalacia and osteophytes, medial femoral condyle and two bond
staples in the proximal tibia. Dr. Genung noted that the medial meniscus had previously been
excised. In reports dated May 29, 1990 to December 3, 1991, he noted that appellant was
progressing well postoperatively and regained full unrestricted range of motion of the right knee.
Dr. Genung continued physical therapy and light-duty restrictions.
Appellant filed a claim for a schedule award. OWCP referred his file to OWCP’s
medical adviser who, in a January 28, 1992 report, opined that appellant had a 19 percent
impairment of the right leg in accordance with the third edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides).2
In a decision dated February 7, 1992, OWCP granted appellant a schedule award for 19
percent permanent impairment of the right leg. The period of the award was September 19, 1991
to October 6, 1992.
Appellant was treated by Dr. Helo Chen, an osteopath, from April 2 to July 7, 2009, for
right knee pain, swelling, popping and giving out when casing, carrying and delivering mail at
work. Dr. Chen noted that he was status post surgery, injections and physical therapy. An
April 24, 2009 right knee magnetic resonance imaging (MRI) scan revealed moderate
degenerative changes of the knee joint, bucket handle tear of the lateral meniscus, thinning and
foreshortening of the entire medial meniscus, due to severe degenerative fraying of the meniscus,
chronic partial tear of the medial collateral ligament with evidence of prior surgical repair, a
complete tear of the mid substance of anterior cruciate ligament and moderate joint effusion with
multiple loose bodies.
From June 11 to September 29, 2009, appellant was treated by Dr. James Key, a Boardcertified orthopedic surgeon, who diagnosed chronic right knee pain, lateral meniscus bucket
handle tear, medial collateral ligament tear, multiple loose bodies and tear of the mid substance
anterior cruciate ligament and recommended surgery. On October 23, 2009 Dr. Key performed
arthroscopy of the right knee, chondroplasty of the osteochondral fracture of the medial femoral
condyle on the lateral side, chondroplasty of the osteochondral fracture of the tibial plateau and
chondromalacia. He diagnosed status post two prior knee reconstructions in 1970 and 1990,
moderate arthritic right knee, torn right medial meniscal, torn lateral meniscus, chondral fracture
of the patella, chondral fracture of the trochlea, lax anterior cruciate ligament and loose bodies of
the knee.
On May 17, 20103 Dr. Chen performed an impairment evaluation under the sixth edition
of the A.M.A., Guides.4 Appellant reported right knee pain with prolonged walking, when
2

A.M.A., Guides (3rd ed. 1988).

3

The Board notes that Dr. Chen’s report is dated May 17, 2009; however, this appears to be a typographical error
and should be May 17, 2010. In this report Dr. Chen refers to arthroscopic surgery performed on October 23, 2009.
4

A.M.A., Guides (6th ed. 2008).

2

performing work duties and in activities of daily living. Examination revealed an antalgic gait,
multiple well-healed surgical incisions over the right knee, decreased range of motion of the
right knee in flexion and extension, joint crepitus, right quadriceps muscle atrophy, significant
hypertrophy of the medial and lateral femoral condyles, positive Lachman’s test for grade 2
instability in the right knee and decreased strength. Dr. Chen noted clinical studies including an
April 24, 2009 MRI scan of the right knee showing severe pathology, moderate degenerative
changes, tear of the lateral meniscus, thinning of the entire medial meniscus, severe degenerative
fraying of the meniscus, partial tear of the medial collateral ligament and a complete tear of the
mid substance of anterior cruciate ligament. She diagnosed derangement of the lateral meniscus
and medial meniscus, sprain of the cruciate ligament, primary osteoarthritis of the leg and sprain
of the right lateral collateral ligament.
Dr. Chen noted that appellant reached maximum medical improvement. As appellant
was diagnosed with a cruciate or collateral ligament injury, she referenced the Knee Regional
Grid -- Lower Extremity Impairment, Table 16-3, of the A.M.A., Guides. Dr. Chen opined that
the diagnosis was moderate, class 2. Table 16-3, page 510, of the A.M.A., Guides, cruciate or
collateral ligament injury with moderate problems was a class 2 rating with a range of 14 to 18
percent with a default value of 16 percent. For adjustment grids, she referenced Table 16-6 for
functional history and opined that a grade 2 modifier was warranted due to appellant’s symptoms
of pain and difficulty with normal activity, use of medication to control symptoms, the ability to
perform self-care activities with modification and trouble walking up and down stairs and for
prolonged periods. Dr. Chen stated that a physical examination modifier was not applicable as
physical examination was used to determine the class of diagnosis. She noted that, for clinical
studies, a grade 3 modifier was warranted as diagnostic testing documented severe pathology
including post-traumatic arthrosis. Dr. Chen applied the net adjustment formula to the grade
modifiers to arrive at a net adjustment of one. This moved the default grade C impairment to
grade D for which provides for 17 percent leg impairment.
On July 31, 2010 appellant claimed an additional schedule award.
In an August 26, 2010 report, an OWCP medical adviser reviewed Dr. Chen’s May 17,
2010 report and agreed with her conclusion that appellant had 17 percent impairment of the right
leg. The medical consultant noted a diagnosis of cruciate or collateral ligament laxity, under the
Knee Regional Grid -- Lower Extremity Impairment, Table 16-3, page 509-11, of the A.M.A.,
Guides. He noted that appellant’s diagnosis was class 2, a moderate problem. A class 2 rating
for cruciate or collateral ligament laxity using Table 16-3, page 510 had a default rating of 16
percent leg impairment. In assigning modifiers, OWCP’s medical adviser noted Dr. Chen’s
findings and advised that, for functional history, Table 16-6, page 516, appellant was grade 2.
For physical examination, Table 16-7, page 517, appellant was grade 2. For clinical studies,
Table 16-8, page 519, appellant was grade 3. The medical adviser applied the net adjustment
formula, which yielded a net adjustment of one and found that which moved the default grade C
to D, for which 17 percent lower extremity impairment is provided. As appellant previously
received a schedule award for 19 percent right leg impairment attributable to his knee condition,
the medical adviser opined that he had no additional impairment.

3

On October 20, 2010 OWCP denied appellant’s claim for an additional schedule award.
As appellant was previously granted 19 percent permanent impairment of the right lower
extremity, the medical evidence did not support additional award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE)
and Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX).11
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.13 Appellant’s accepted diagnosed conditions of sprain of the right knee, right lateral
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, 3-6 (6th ed. 2008).

10

Id. at 494-531.

11

Id. at 521.

12

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

Supra notes 10, 11.

4

collateral ligament, derangement of the right lateral meniscus, derangement of the medial
meniscus and sprain of the right cruciate ligament. On October 20, 2010 OWCP denied his
claim for an additional award. It noted that on January 28, 1992 appellant was granted a
schedule award for 19 percent permanent impairment of the right lower extremity and was not
entitled to a greater award.
By report dated May 17, 2010, Dr. Chen discussed the relevant tables in the sixth edition
of the A.M.A., Guides. As explained, she followed the assessment formula of the sixth edition
of the A.M.A., Guides and advised that, in accordance with Chapter 16, for a cruciate or
collateral ligament laxity, appellant had 17 percent impairment of the right lower extremity.
OWCP’s medical adviser reviewed Dr. Chen’s report and agreed with her conclusion that
appellant had 17 percent impairment of the right leg. He noted that in accordance with Chapter
16, for a cruciate or collateral ligament laxity, using Table 16-3, Knee Regional Grid, appellant
would fit a class 2 category, yielding a default grade C for 16 percent impairment.14 The medical
adviser then determined whether there were any applicable grade adjustments. These include
adjustments for GMFH, GMPE and GMCS. The grade modifiers are used in the net adjustment
formula to calculate a net adjustment.15 The final impairment grade is determined by adjusting
the grade up or down from the default value C by the calculated net adjustment. OWCP’s
medical adviser noted Dr. Chen’s findings and noted a functional history grade modifier of two,
a physical examination grade modifier of two and a clinical studies grade modifier of three.16
Applying the net adjustment formula resulted in a modifier of one, which resulted in a grade
adjustment from C to D.17 The corresponding lower extremity impairment for a class 2, grade D
cruciate or collateral ligament injury is 17 percent.18
The Board finds that Dr. Chen and OWCP’s medical adviser properly applied the
A.M.A., Guides to rate impairment to appellant’s right lower extremity. Each physician
explained how his impairment rating was determined and each physician found that he had 17
percent right leg impairment under the A.M.A., Guides. As appellant previously received a
schedule award for 19 percent impairment of the right leg due to his right knee condition, he is
not entitled to an additional schedule award pursuant to the A.M.A., Guides.

14

A.M.A., Guides 509-11, Table 16-3.

15

Id. at 521.

16

Id. at 516-19.

17

Using the formula at page 521 of the A.M.A., Guides, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX)
results in the following: (2-2) + (2-2) + (3-1) = 1. The Board notes that Dr. Chen advised that a grade modifier for
physical examination was not applicable as physical examination was used to determine class. See A.M.A., Guides
521 (if a particular criterion was used to determine impairment class, it may not be used again to determine the
grade). As noted, OWCP’s medical adviser assigned a grade modifier of two for physical examination. The Board
finds that any error is harmless as application of the net adjustment formula using Dr. Chen’s grade modifiers, which
exclude a modifier for physical examination, also results in a grade adjustment of one (2-2) + (3-1) = 1.
18

Id. at 511, Table 16-3.

5

On appeal, appellant asserts that he underwent three surgeries due to the prolonged
standing and walking he performed as a letter carrier and was entitled to a greater award than 17
percent impairment. He disagreed with OWCP’s finding that his impairment had declined as he
aged. The Board notes that OWCP has adopted the standards of the sixth edition of the A.M.A.,
Guides, effective May 1, 2009, for evaluating permanent impairment.19 As noted, both OWCP’s
medical adviser and Dr. Chen explained appellant’s rating under the sixth edition of the A.M.A.,
Guides. The evidence does not establish any greater impairment than that for which appellant
previously received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 19 percent right lower extremity
impairment for which he has received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 20, 2011
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
19

Supra note 8.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
INSTALLATION MANAGEMENT AGENCY,
Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 09-2015
Issued: September 20, 2010

Case Submitted on the Record

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

JURISDICTION
On August 5, 2009 appellant filed a timely appeal from an April 17, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has established more than two percent impairment of his
right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On August 24, 2001 appellant, then a 58-year-old plumber, filed a traumatic injury claim
for compensation alleging that he injured his right knee while crawling at work. The Office
accepted the claim for right knee bursitis, tendinitis and joint effusion. It paid for all appropriate
periods of compensation, including an October 27, 2004 arthroscopic partial medial
meniscectomy of the right knee.

On July 19, 2005 appellant filed a claim for a schedule award. In an April 7, 2005 report,
Dr. Nicholas Diamond, an osteopath, opined that appellant had a 30 percent right lower
extremity impairment based on the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).1
In a September 25, 2006 report, an Office medical adviser reviewed the medical evidence
of record and opined that appellant had 14 percent total impairment of the right lower extremity.
He stated that Dr. Diamond’s impairment for motor strength deficit of the right quadriceps and
gastroc should be reduced from 12 percent impairment each to 6 percent impairment each as
Dr. Diamond had graded muscle strength at 4+/5 and not 4/5. The Office medical adviser
additionally stated that there was two percent impairment for the partial medial meniscectomy.
The Office determined there was a conflict in medical opinion between Dr. Diamond and
the Office medical adviser and referred appellant to Dr. Thomas Osteen, a Board-certified
orthopedic surgeon, for an impartial medical examination. The Office advised Dr. Osteen that
the purpose for the examination was to determine whether appellant sustained permanent
impairment, as a result of the work injury, pursuant to the A.M.A., Guides.
In a March 20, 2007 report, Dr. Osteen reviewed appellant’s history and described his
findings on examination. He noted that the right knee showed full range of motion with normal
alignment and no laxity to valgus stress, medial joint line was tender, minimal effusion, no
redness or induration, and normal strength to flexion and extension. Dr. Osteen assessed right
knee pain. He stated that appellant would use medication and follow-up in three months. He
stated that, if appellant’s symptoms were not controlled, injection therapy would be used.
Dr. Osteen further noted that surgical versus conservative approach to treatment was discussed.
In a June 14, 2007 report, the Office medical adviser recommended that a supplemental
report from Dr. Osteen be obtained. He recommended that Dr. Osteen be asked what he
discussed with appellant regarding ongoing treatment for the right knee and whether appellant
was at maximum medical improvement. The Office medical adviser further noted that
Dr. Osteen did not perform an impairment rating. He stated that, while Dr. Osteen advised
appellant had normal range of motion, no goniometric measurements were provided so a
determination whether appellant had a ratable deficit could be made. The Office medical adviser
indicated that Dr. Osteen should be asked to provide the measured values for appellant’s right
range of motion. He further noted that, while Dr. Osteen found normal strength to flexion and
extension, he should grade the knee strength under Table 17-7 on page 531 of the A.M.A.,
Guides.
The Office requested that Dr. Osteen clarify his March 20, 2007 report in conjunction
with the Office medical adviser’s comments. In a June 19, 2007 report, Dr. Osteen indicated that
appellant was treated with a cortisone injection. Appellant was to follow-up in three to six
weeks. In a July 2, 2007 report, Dr. Osteen responded to the Office’s June 28, 2007 request for
clarification. He provided an assessment of Grade 2 medial compartment osteoarthritis right
knee. Dr. Osteen indicated that appellant’s range of motion was from full extension to 140
degrees of flexion and strength was normal or 5/5 to flexion and extension. He indicated that
1

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

2

there were Grade 2 medical compartment degenerative changes on weight bearing x-rays with
less than 50 percent of joint space loss (4.5 millimeters versus 5.5 millimeter lateral). Dr. Osteen
opined that appellant had seven percent permanent impairment for the one millimeter loss of
medial joint space. He stated that there was no impairment for range of motion or strength.
In a July 23, 2007 report, the Office medical adviser opined that appellant reached
maximum medical improvement on March 20, 2007. He noted that Dr. Osteen found no ratable
knee deficits on examination and there was no loss of range of motion or strength. While
Dr. Osteen had assigned seven percent leg impairment for a one millimeter loss of joint space, he
advised this was an incorrect way to rate arthritic changes in the knee. He indicated that, under
Table 17-31, page 544 of the A.M.A., Guides, a rating for arthritis was not allowed until the
amount of joint space left in the knee was three millimeters or less. As Dr. Osteen indicated
appellant had 4.5 millimeter of joint space left in the lateral compartment of the right knee, no
rating could be made for arthritic change in the knee. He opined, however, under Table 17-33,
page 546 of the A.M.A., Guides, appellant was eligible for two percent right leg impairment
secondary to his partial medial meniscectomy. Dr. Osteen further noted that, while the medical
record indicated appellant had ongoing pain in his knee, the pain was secondary to having a
medical meniscus tear and undergoing medial meniscectomy. Thus, he opined the pain was
appropriately addressed by the impairment rating for medial meniscectomy.
By decision dated November 15, 2007, the Office granted appellant a schedule award for
two percent right lower extremity impairment. The award covered the period March 20, 2007 to
April 29, 2007 for a total of 5.76 weeks of compensation.
On November 26, 2007 appellant’s attorney requested a hearing. By decision dated
February 5, 2008, an Office hearing representative set aside the November 15, 2007 decision and
remanded the case for further development. The hearing representative noted that while, an
Office medical adviser may review the opinion of an impartial medical specialist in a schedule
award case, the resolution of the conflict is the specialist’s responsibility. The hearing
representative found that since Dr. Osteen’s impairment rating for arthritis did not properly
conform to the A.M.A., Guides, it was insufficient to resolve the conflict in medical opinion and
further clarification was needed prior to issuance of a final decision.
Pursuant to the hearing representative’s instructions on remand, the Office requested, in a
February 15, 2008 letter, that Dr. Osteen review the Office medical adviser’s July 23, 2007
report and clarify whether appellant had ratable impairment under the A.M.A., Guides. In a
March 27, 2008 report, Dr. Osteen stated that a further review of the A.M.A., Guides revealed
that a one millimeter of joint space narrowing was not ratable. He opined that an impairment
rating of two percent of the right leg for the partial arthroscopic meniscectomy was the correct
rating.
In an April 4, 2008 decision, the Office denied any additional schedule award beyond the
two percent permanent impairment to the right lower extremity already paid.
On April 7, 2008 appellant’s attorney requested a hearing, which was held telephonically
on August 28, 2008. At the hearing, appellant’s attorney questioned whether Dr. Osteen was
properly selected to serve as an impartial physician.

3

In an April 17, 2009 decision, an Office hearing representative affirmed the April 4, 2008
decision. The hearing representative found there was no impropriety in the Office’s selection of
Dr. Osteen, that Dr. Osteen’s report could be afforded the special weight granted to an impartial
medical specialist even though he assumed care of appellant following the impartial
examination, and Dr. Osteen’s report was sufficiently rationalized to support appellant’s
entitlement to two percent permanent impairment of the right lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
Section 8123(a) of the Act provides in pertinent part: If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.5 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.6 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
Office procedures provide that selection of impartial medical specialists is made by a
rotational system using the Physician’s Directory System (PDS), whenever possible, to ensure
consistent rotation among physicians.8 Physicians who may not be used as referees include those

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.404.

4

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

5

5 U.S.C. § 8123(a).

6

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

7

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4, 7 (March 1994,
May 2003); FECA Bulletin No. 00-01 (issued November 5, 1999).

4

previously connected with the claim or the claimant, or physicians in partnership with those
already so connected.9
The physician selected as the impartial specialist must be one wholly free to make an
independent evaluation and judgment. To achieve this end, the Office has developed procedures
for the selection of the impartial medical specialist designed to provide adequate safeguards
against the appearance that the selected physician’s opinion was biased or prejudiced.10 These
procedures contemplate selection on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a physician and the Office.11 Moreover, the reasons for the
selection made must be documented in the case record.12
In a situation where the Office secures an opinion from an impartial medical examiner
for the purpose of resolving a conflict in the medical evidence and the opinion from such
examiner requires clarification or elaboration, the Office has the responsibility to secure a
supplemental report from the examiner for the purpose of correcting the defect in the original
opinion.13
ANALYSIS
Appellant received a schedule award for two percent impairment of his right lower
extremity. The Office found a conflict in medical opinion arose between Dr. Diamond and the
Office medical adviser regarding the extent of impairment to appellant’s right lower extremity.
Dr. Diamond opined that appellant had 30 percent impairment of the right lower extremity while
the Office medical adviser took issue with some of Dr. Diamond’s impairment values and further
opined that there was two percent impairment for arthroscopic partial meniscectomy. The Board
finds that the Office properly concluded that there was a conflict of medical opinion evidence
requiring an impartial medical evaluation.
The Office selected Dr. Osteen, a Board-certified orthopedic surgeon, to serve as the
impartial medical examiner. On appeal, appellant’s attorney objected to Dr. Osteen’s selection
on the grounds there is insufficient evidence of record to establish that he was selected on a
proper rotational basis using the PDS. Counsel argued that the file does not reveal whether
Dr. Osteen was selected from the PDS and there is no image of his selection from the PDS.
While the record contains a brief notation on its “RME REFERRAL FORM” that Dr. Osteen was
selected from the PDS, this evidence does not reflect whether Dr. Osteen was the first physician
so contacted on that date, that he was next on any list maintained by the Office or provide any
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4.b(3)(b)
(March 1994, October 1995, May 2003), citing Raymond E. Heathcock, 32 ECAB 2004 (1981).
10

See Raymond J. Brown, 52 ECAB 192 (2001).

11

Id. See also Miguel A. Muniz, 54 ECAB 217 (2002).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4(b)
(May 2003). A claimant may ask to participate in the selection of the impartial medical specialist under certain
conditions; however, no request was made in this case.
13

See Phillip H. Conte, 56 ECAB 213 (2004).

5

reference to the rotational procedures for selecting the impartial medical specialist. This
evidence is not adequate to establish that Dr. Osteen was properly selected in compliance with
the rotational system using the PDS.14 Therefore, the Board finds that the Office abused its
discretion in this regard.
As Dr. Osteen was not properly selected as the impartial medical specialist, the Office’s
schedule award decision will be set aside due to an unresolved conflict in medical opinion
regarding the extent of appellant’s permanent impairment. On remand, the Office should refer
appellant, together with an updated statement of accepted facts, to an impartial medical
specialist.
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: September 20, 2010
Washington, DC

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

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

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

14

A.R., 61 ECAB ___ (Docket No. 09-1566, issued June 2, 2010).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New York, NY,
Employer
__________________________________________

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

Docket No. 14-1146
Issued: November 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from a January 31, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on November 12, 2011 in the
performance of duty.
FACTUAL HISTORY
On November 14, 2011 appellant, then a 52-year-old mail handler, filed a traumatic
injury claim alleging that on November 12, 2011 she injured her lower back when she was
1

5 U.S.C. § 8101 et seq.

unable to pull out the bottom of a broken postal container. She stopped work on
November 13, 2011 and was placed on continuation of pay until December 27, 2011.
On November 16, 2011 the employing establishment controverted the claim. It
contended that appellant had not established fact of injury, that she did not report the claim for
two days, and that a supervisor indicated that she was not working at the time of the alleged
incident.2
A November 29, 2011 magnetic resonance imaging (MRI) scan study showed a left
neural foraminal disc herniation with “moderate left neural foraminal narrowing” and mild
narrowing on the right.
On December 2, 2011 Dr. Mahesh D. Chhabria, a Board-certified neurologist, diagnosed
lumbosacral strain and found appellant should remain off work for three weeks. On
December 28, 2011 he opined appellant was disabled from work for the next three weeks.3
OWCP accepted the claim as a minor injury but on January 11, 2012 reopened the claim
because appellant had not returned to work.
By letter dated January 11, 2012, OWCP requested that appellant submit additional
factual and medical evidence, including a detailed report from her attending physician addressing
the causal relationship between any diagnosed condition and the identified work incident.
By letter dated January 29, 2012, appellant related that on November 12, 2011 she
strained her back when she tried to pull the gate out of a postal container. She stated, “The post
con has a latch door at the very bottom that allows you to pull out and up to lock it. I proceeded
to pull the gate out and it was unknowingly stuck causing me to strain my lower back….”
Appellant related that she told her supervisor of the incident without delay. The next morning
she was unable to get out of bed.
In a note dated February 16, 2012, Dr. Chhabria indicated that on November 12, 2011
appellant sustained a low back injury at work. He found that she could resume limited-duty
employment on February 27, 2012.
By decision dated February 27, 2012, OWCP denied appellant’s claim after finding that
she did not establish fact of injury.
In a form report dated March 19, 2012, Dr. Chhabria diagnosed lumbosacral strain
secondary to a herniated nucleus pulposus and right L5 radiculopathy. He provided the history
of injury as low back pain that began at work after appellant bent down to “open a tight drawer.”
Dr. Chhabria checked “yes” that the condition was causally related to employment, and provided
as a reason that appellant “used a defective piece of equipment causing injury to lower back.”
2

On April 4, 2013 OWCP requested that the employing establishment clarify why it stated that appellant was not
at work at the time of the November 12, 2011 incident; however, it did not respond to the request.
3

In a disability certificate dated January 10, 2012, Dr. Chhabria found that appellant was disabled from work for
three more weeks.

2

He advised that she was totally disabled from December 2, 2011 to March 20, 2012.
Dr. Chhabria noted in 2012 she had history of remote lower back injury which was different
from the 1993 work injury to low back.
On April 4, 2012 appellant requested reconsideration.
In a decision dated May 29, 2012, OWCP modified the February 27, 2012 decision to
reflect that appellant had submitted medical evidence containing a diagnosis but found that she
had not established that the condition arose from the November 12, 2011 work incident.
On March 18, 2013 appellant requested reconsideration.4
In a report dated March 1, 2013, Dr. Chhabria found that appellant’s low back pain had
improved. He stated, “On reviewing [appellant’s] symptoms and MRI scan findings as well as
the description of her low back injury, with a reasonable degree of medical certainty, [her] low
back pain occurred as a result of the bending injury at work in November of 2011. There is a
direct causal relationship between the type of injury and her symptoms.” Dr. Chhabria
diagnosed lumbosacral strain and a lumbar herniated nucleus pulposus.5
By decision dated May 14, 2013, OWCP denied modification of its May 29, 2012
decision.
In a narrative report dated February 16, 2012, received by OWCP on November 14, 2013,
Dr. Chhabria diagnosed “lumbosacral strain secondary to [a] disc protrusion with right L5 Adler
symptoms which had resolved.” He noted that appellant’s symptoms began at work when she
“bent down and had difficulty opening a drawer and subsequently when she came up she was
experiencing low back pain. MRI [scan] of the lumbar spine showed a small disc protrusion at
L4-5.” Dr. Chhabria found that she could return to work with restrictions.
On May 16, 2012, Dr. Chhabria related that appellant had returned to work five days
earlier. He diagnosed lumbosacral strain and a lumbar herniated nucleus pulposus with
significant improvement.
In a form report dated July 26, 2013, Dr. Chhabria diagnosed lumbosacral strain with
right radiculopathy. He provided the history as a low back injury after bending at work and
checked “yes” that the condition was caused or aggravated by employment. Dr. Chhabria
advised that appellant was totally disabled from December 2, 2011 to March 20, 2012. He noted
that she had reinjured her back on August 16, 2012.
On October 17, 2013 appellant requested reconsideration.

4

In a letter dated February 18, 2013, appellant’s niece related that her aunt was unable to get out of bed following
a November 12, 2011 injury. She had to help appellant perform activities of daily living for around four months.
5

The record contains the first page of an August 16, 2012 medical report.

3

In a decision dated January 31, 2014, OWCP denied modification of its May 14, 2013
decision. It found that appellant had not submitted sufficiently rationalized medical evidence to
show that she sustained a work injury on November 12, 2011.
On appeal appellant contends that she submitted sufficient evidence to establish her
claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally 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 determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.9 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.10 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.11
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.12 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.13

6

5 U.S.C. § 8101 et seq.

7

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

8

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

9

See David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

10

See Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

Id.

12

See Jimmy A. Hammons, 51 ECAB 219 (1999).

13

20 C.F.R. § 10.121.

4

ANALYSIS
Appellant alleged that she sustained an injury to her low back on November 12, 2011
when she tried to pull the gate out of a defective postal container. OWCP accepted that the
incident occurred at the time, place, and in the manner alleged. The issue, consequently, is
whether the medical evidence establishes that she sustained an injury as a result of this incident.
In reports dated December 2 and 28, 2011, Dr. Chhabria found that appellant was
disabled from employment. On February 16, 2012 he diagnosed lumbosacral strain due to a disc
protrusion and noted that her symptoms started after she tried to open a drawer at work. In a
March 19, 2012 form report, Dr. Chhabria noted that appellant sustained low back pain after
trying to open a tight drawer at work. He diagnosed lumbosacral strain secondary to a herniated
nucleus pulposus and right L5 radiculopathy. Dr. Chhabria checked “yes” that the condition was
causally related to employment. He provided rationale for his causation finding by explaining
that appellant “used a defective piece of equipment causing injury to lower back.” On March 1,
2013 Dr. Chhabria diagnosed lumbosacral strain and a lumbar herniated nucleus pulposus. He
related that based on appellant’s symptoms, her description of injury and the result of diagnostic
studies, “[her] low back pain occurred as a result of the bending injury at work in
November 2011. There is a direct causal relationship between the type of injury and her
symptoms.” In a July 26, 2013 form report, Dr. Chhabria diagnosed lumbosacral strain with
right radiculopathy. He provided the history as a low back injury after bending at work and
checked “yes” that the condition was caused or aggravated by employment.
The Board has reviewed Dr. Chhabria’s reports and notes that he provided a clear opinion
that the November 12, 2011 work incident caused the diagnosed conditions of lumbosacral strain
due to a herniated disc and radiculopathy. He recognizes the preexisting low back condition, but
supports his diagnosis with the objective findings of the current MRI scan and physical
examination. Dr. Chhabria evinced knowledge of the factual basis November 12, 2011 work
incident. His opinion is supportive, unequivocal, bolstered by objective findings, and based on a
firm diagnosis and an accurate work history. Additionally, Dr. Chhabria’s reports are not
contradicted by any medical evidence of record.14 His opinion lacks only an explanation of how
the diagnosed condition was caused by trying to pull a gate out of a broken postal container.
Consequently, while the medical evidence from Dr. Chhabria is insufficiently rationalized to
meet her burden of proof to establish that she sustained a back injury on November 12, 2011, it
raises sufficient inference of causal relationship to require further development by OWCP.15
Accordingly, the Board will remand the case to OWCP. On remand, it should further develop
the medical record to determine whether appellant sustained an injury to her lower back on
November 12, 2011 causally related to factors of her federal employment. Following this and
such further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
14

See E.J., Docket No. 09-1481 (issued February 19, 2010).

15

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 25, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Philadelphia, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1311
Issued: April 19, 2019

Case Submitted on the Record

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

JURISDICTION
On June 20, 2018 appellant, through counsel, filed a timely appeal from a February 5, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days have elapsed from the last merit decision, dated October 19, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 2, 2016 appellant, then a 49-year-old city carrier, filed a traumatic injury claim,
(Form CA-1) alleging that on that date she slipped on a step lip and fell on her right knee while in
the performance of duty. She indicated that she suffered a right knee contusion and bruise.
Appellant stopped work on that date. On May16, 2016 OWCP accepted the claim for right knee
contusion. Appellant received wage-loss compensation on the supplemental rolls from April 19
to May 26, 2016. On March 15, 2016 she accepted a limited-duty job offer as a full-time regular
city carrier.
In a June 8, 2016 report, Dr. Thomas L. Teater, a Board-certified orthopedic surgeon,
released appellant to return to full-duty work without restrictions effective June 9, 2016.
In a July 20, 2016 report, Dr. Teater requested that the acceptance of appellant’s claim be
expanded to include additional conditions of traumatic chondromalacia of the right knee and loose
body. He opined that these conditions were a direct result of her March 2, 2016 employment
injury.
In an August 3, 2016 report, Dr. Teater noted that appellant returned for follow-up related
to her right knee injury of March 2, 2016. He related that appellant had recurrent pain and swelling
and indicated that she had undergone previous injections, but that any benefit that was gained in
the leg had dissipated. Dr. Teater diagnosed right knee contusion with joint effusion, and traumatic
chondromalacia right knee, loose body. He advised that, due to her persistent symptoms despite
conservative care, authorization for arthroscopy with chondroplasty would be requested.
Dr. Teater saw appellant on August 12, 2015 and repeated his diagnoses and advised that appellant
“may not return to work” in any capacity, but could return to work without restrictions as of
September 6, 2016.
On August 19, 2016 appellant filed a notice of recurrence (Form CA-2a). She indicated
that she sustained a recurrence of the March 2, 2016 employment injury on July 30, 2016 and
stopped work on August 13, 2016. Appellant explained that for a brief period she had received
relief to her knee from an epidural injection. However, she explained that her knee steadily began
pinching and locking and became very painful to climb up and down stairs. Appellant noted that
she was “not sure this is recurring, as pain was relieved from injection, but short term.” She also
indicated that she was awaiting authorization for a knee arthroscopy.
On August 24, 2016 OWCP received a request for authorization of right knee arthroscopy.
In a development letter dated August 25, 2016, OWCP advised appellant that additional
medical evidence was necessary to establish her recurrence claim. It explained that a recurrence
of disability was defined as a work stoppage caused by a spontaneous change in a medical
condition which had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. OWCP explained that a recurrence

2

could also be caused by a withdrawal of a light-duty assignment made specifically to accommodate
appellant’s condition due to the work-related injury. It also explained that if the evidence
established that the disability was due to a new work-related injury or illness, a new claim may
need to be filed/created. OWCP afforded appellant 30 days to submit the necessary requested
evidence.
Appellant provided an August 28, 2016 response to the development letter. She indicated
that she had been released to full duty on July 5, 2016 after a steroid injection improved her
symptoms. Appellant explained that her duties as a letter carrier required that she continuously
walk and climb steps for six or more hours a day, but she denied that an incident triggered a
recurrence. She explained that she believed the steroid injection wore off and her knee worsened.
Appellant noted that her magnetic resonance imaging (MRI) scan revealed loose fragments, which
she believed were the cause of her pain. She explained that her knee was locking and pinching
and her physician recommended an arthroscopic procedure.
Dr. Teater provided a series of reports from April 1 to October 7, 2016. In the April 1,
2016 report, he advised that appellant returned for follow-up of her work-related right knee injury
of March 2, 2016. Dr. Teater noted that she continued to have pain and swelling. He diagnosed:
right knee contusion with joint effusion; traumatic chondromalacia, right knee; and loose body.
Dr. Teater explained that the MRI scan of the right knee from March 28, 2016 demonstrated a
small intra-articular loose body at the anterior joint line, meniscal degeneration with no definitive
tear, a question of mild popliteus tendinosis, moderate effusion, and chondromalacia patella. He
opined that the diagnosis of traumatic chondromalacia was causally related to appellant’s claim.
Dr. Teater opined, “[i]n my medical opinion, this is a direct result of her work-related injury on
[March 2, 2016].”
Dr. Teater saw appellant on May 11, 2016 and repeated his findings and diagnoses. In a
September 7, 2016 report, he repeated his prior opinion. Dr. Teater noted that appellant needed
surgical intervention. He completed a duty status report on September 7, 2016 and advised that
appellant could not work. In a separate work excuse dated September 7, 2016, Dr. Teater indicated
that appellant could not work, but he also noted that appellant could return to work without
restriction on October 10, 2016. In a September 21, 2016 report, he advised that he was providing
a response to the August 25, 2016 development letter. Dr. Teater explained that appellant’s current
diagnosis would be post-traumatic chondral injury (chondromalacia). He opined that appellant’s
“pain is caused by prolonged standing and especially walking. Her current conditions and
disability are caused from her original fall on March 2, 2016.” Dr. Teater explained that she had
failed conservative treatment and recommended a right knee arthroscopy with chondroplasty and
removal of loose body.
By decision dated October 19, 2016, OWCP denied appellant’s recurrence claim finding
that she had not established that she was disabled due to a material change/worsening of her
accepted work-related condition. It explained that Dr. Teater had diagnosed additional right knee
conditions, which indicated that appellant sustained a new injury after returning to work. OWCP
also explained that appellant described extensive standing, walking, and climbing stairs that would
certainly have aggravated or exacerbated a degenerative condition. It explained that the medical
necessity of the requested surgery was not consistent with a resolved knee contusion. OWCP
found that the evidence submitted established that the disability was due to a new work-related

3

injury or illness, and that a new claim needed to be filed. It informed appellant that this was the
case even if the new incident or exposure involved the same part of the body as previously affected.
On May 5, 2017 counsel requested reconsideration and submitted additional evidence.
Appellant resubmitted Dr. Teater’s May 11, 2016 report. OWCP also received reports
from Dr. Teater for the period November 2, 2016 to June 27, 2017. Dr. Teater provided findings
of physical examinations and recommendations for work restrictions. He repeated his opinion that
the diagnoses of right knee contusion with joint effusion, traumatic chondromalacia right knee,
with loose body, were a direct result of the work-related injury. In his December 14, 2016 and
February 3, 2017 reports, Dr. Teater explained that appellant made an attempt to return to her
regular job, without success. He noted that “[u]nfortunately, this attempt, which was by her own
request, has resulted in a denial of her claim as they felt she was ‘cured’ while making this attempt.
[Appellant] was not asymptomatic at that time.” Dr. Teater indicated that appellant should
undergo arthroscopy. He also completed a duty status report (Form CA-17) on February 3, 2017
and recommended that appellant could return to full duty as of May 1, 2017.
In an April 19, 2017 report, Dr. Teater explained that on March 2, 2016 appellant sustained
a work-related right knee injury while carrying mail. He noted that appellant tripped going up
stairs, falling directly onto the front of her right knee, striking the patella against the distal femur.
Dr. Teater indicated that appellant had an acute onset of pain and swelling. However, he explained
that despite conservative care, the swelling and pain persisted, along with intermittent “clicking.”
Dr. Teater examined the knee and diagnosed right knee contusion with post-traumatic patellafemoral articular injury (chondromalacia) and loose body. He explained that appellant failed
conservative treatment and continued to be symptomatic with pain, swelling and limited motion.
Dr. Teater opined that her work-related diagnosis should include the right knee contusion and
patella-femoral articular injury (chondromalacia) and an intra-articular loose body. He opined that
“[b]ased upon a reasonable degree of medical certainty, it is my medical opinion that the workrelated injury on March 2, 2016 is a direct and proximate cause of the above-noted diagnosis.”
By decision dated February 5, 2018, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was cumulative and substantially similar to evidence or
documentation already contained in the case file and previously considered. It explained that the
medical reports did not provide a rationalized medical opinion explaining why appellant stopped
work on July 30, 3016, due to a material worsening and/or spontaneous change in her medical
condition stemming from the March 2, 2016 work injury.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
3
5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

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.4 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration, without
reopening the case for a review on the merits.5
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.6 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.7 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.8
ANALYSIS
The Board finds that this case is not in posture for decision.
The last merit decision in this case was OWCP’s October 19, 2016 decision, which denied
appellant’s recurrence claim as she had not established that she was disabled as of August 13, 2016
due to a material worsening of her accepted employment-related condition.
Following the October 19, 2016 decision, appellant requested reconsideration on May 5,
2017 and submitted additional medical reports from Dr. Teater.
By decision dated February 5, 2018, OWCP found that the evidence of record was
insufficient to warrant merit review of the decision dated October 19, 2016 as the evidence
submitted with the request for reconsideration was irrelevant or immaterial and had no bearing on
the issue of recurrence of disability. This decision was issued 276 days after appellant’s request
for reconsideration. In order to preserve her right to timely request reconsideration, OWCP has a
timeliness goal for issuing reconsideration decisions within 90 days from the receipt of the
request.9 Its procedures provide that when a reconsideration decision is delayed beyond 90 days,
and the delay jeopardizes the claimant’s right to review of the merits of the case by the Board,
OWCP should conduct a merit review.10 As OWCP’s February 5, 2018 decision was issued more
than 90 days after it received appellant’s request for reconsideration, the question becomes whether

4

20 C.F.R. § 10.606(b)(3).

5

Id.

6

Id. at § 10.607(a).

7

Id. at § 10.608(a); H.H., Docket No. 18-1660 (issued March 14, 2019); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); D.N., Docket No. 18-1630 (issued March 7, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (October 2011).

10

Id. at Chapter 2.1602.7

5

the delay has jeopardized her right to a review of the merits of the case by the Board. OWCP has
determined that there is no obligation to conduct a merit review on insufficient evidence if the
maximum 180-day time limit for requesting review by the Board would have expired within the
90-day period following its receipt of the claimant’s reconsideration request.11 The Board has
considered whether the 180-day time limit for requesting review by the Board expired within the
90-day period following OWCP’s receipt of appellant’s reconsideration request.12 The Board finds
that, because appellant filed her request for reconsideration on May 5, 2017, 198 days had passed
from the last merit decision and therefore an appeal to the Board would have been untimely filed.
Under the facts of the present case, the Board finds that OWCP’s delay of 276 days in
issuing the February 5, 2018 nonmerit decision has impacted appellant’s ability to file a timely
request for reconsideration of the merits of her case under 5 U.S.C. § 8128(a).13 Had OWCP issued
the decision within its 90-day timeliness goal, she would have had an additional 77 days to seek
review under the criteria set forth for a timely request for reconsideration with OWCP. Here, the
delay has precluded such further review and any further request for reconsideration would, per se,
be untimely as it would be filed more than one year following the October 19, 2016 merit decision.
The standard of review for an untimely request for reconsideration requires appellant to
demonstrate clear evidence of error. To demonstrate clear evidence of error she must submit
evidence relevant to the issue decided by OWCP which is positive, precise, and explicit and it
must manifest on its face that OWCP committed an error.14 To demonstrate clear evidence of
error, the evidence submitted must not only be of sufficient probative value to create a conflicting
medical opinion or establish a clear procedural error, but must be of sufficient probative value to
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.15 The Board has repeatedly held that clear evidence of error is
intended to represent a difficult standard.16
The Board therefore finds that, under the facts of this case, and as the Board explained in
E.I., the significant delay in issuance of a reconsideration decision by OWCP has impacted
appellant’s ability to submit additional evidence or argument and bring a timely request for
reconsideration before OWCP. To preserve appellant’s right to file a timely request for
reconsideration, and to afford her the ability to present further evidence or argument to establish
her claim, this case will be remanded to OWCP for a merit review of the evidence of record
followed by an appropriate decision.
17

11

Id.; see also C.L., Docket No. 10-1483 (issued May 12, 2011).

12

See G.B., Docket No. 16-1485 (issued January 6, 2017).

13

E.I., Docket No. 18-0634 (issued January 23, 2019).

14
20 C.F.R. § 10.607(b); P.L., Docket No. 18-0813 (issued November 20, 2018); Fidel E. Perez, 48 ECAB 663,
665 (1997).
15

V.L., Docket No. 17-1493 (issued September 12, 2018); Annie L. Billingsley, 50 ECAB 210 (1998).

16

P.L., supra note 14; W.R., Docket No. 09-2336 (issued June 22, 2010).

17

Supra note 13.

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded to OWCP for further
action consistent with this decision.
Issued: April 19, 2019
Washington, DC

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

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

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

7