United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
G.V. MONTGOMERY VETERANS MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 15-222
Issued: April 8, 2015

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 November 7, 2014 appellant filed a timely appeal from a May 13, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
On appeal appellant asserts that his physician recommended that he reduce his work
hours by three to five hours each day but that his claims for compensation for the reduced
schedule were denied.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 12, 2005 appellant, then a 53-year-old nursing assistant, filed an
occupational disease claim alleging that he injured his back due to lifting heavy patients over
many years. OWCP accepted the claim for lumbar sprain/strain, other affections of the right
shoulder region, right plantar fascial fibromatosis, and aggravation of displaced lumbar discs at
L3-4 and L4-5. On December 1, 2005 appellant underwent laminectomies and decompression at
L3-4 and L4-5. He received appropriate compensation and returned to modified duty on
May 1, 2006.
By decision dated May 30, 2007, OWCP found that appellant’s actual earnings of
$654.23 per week as a medical support assistant fairly and reasonably represented his wageearning capacity and reduced his compensation accordingly. In a July 3, 2008 decision, it
amended its May 30, 2007 decision because it was based on incorrect pay information provided
by the employing establishment. On July 18, 2008 appellant had additional back surgery at T1011 with placement of a dorsal column stimulator. He received appropriate compensation and
returned to modified duty on August 1, 2008. In decisions dated August 17 and November 18,
2009, and March 17, 2010, OWCP denied appellant’s claims for brief periods of compensation.
Appellant continued to work.
On April 29, 2010 appellant was granted a schedule award for 36 percent impairment of
the right leg. By decision dated September 24, 2012, OWCP noted that he had filed multiple
claims for intermittent compensation for the period May 24 through July 29, 2012 and denied
modification of the wage-earning capacity determination. Appellant requested reconsideration,
and in a January 11, 2013 decision, OWCP again denied modification of the wage-earning
capacity determination.
On April 29, 2014 appellant again requested reconsideration. He indicated that two years
previously he was told by his physician that he should reduce his work hours. In support of his
request, appellant submitted treatment notes and disability slips from Dr. Lori Hill Marshall,
Board-certified in anesthesiology and pain medicine, dated June 18, 2012 to February 3, 2014,
and a functional capacity evaluation dated June 7, 2013.
By decision dated May 13, 2014, OWCP denied appellant’s request on the grounds that it
was untimely and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.2 Section 10.511 of OWCP regulations provide that
if a formal loss of wage-earning capacity decision has been issued, the rating is left in place until
that determination is modified by OWCP. Modification is only warranted where the party
seeking modification establishes a material change in the nature and extent of the injury-related
2

Katherine T. Kreger, 55 ECAB 633 (2004).

2

condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous.3 The burden of proof is on the party attempting to show a
modification of the wage-earning capacity determination.4 In addition, Chapter 2.1501 of
OWCP procedures contain provisions regarding the modification of a formal loss of wageearning capacity.5
ANALYSIS
The Board finds this case is not in posture for decision. By decision dated May 30, 2007,
amended on July 3, 2008, OWCP found appellant’s actual earnings fairly and reasonably
represented his wage-earning capacity. Following OWCP’s July 3, 2008 decision, in decisions
dated August 17 and November 18, 2009 and March 17, 2010, OWCP denied his claims for brief
periods of compensation. In decisions dated September 24, 2012 and January 11, 2013, it denied
modification of the wage-earning capacity determination. Appellant requested reconsideration
on April 29, 2014. In support of his request, he submitted medical evidence. In a nonmerit
decision dated May 13, 2014, OWCP denied his request for reconsideration, finding that it was
untimely and failed to demonstrate clear evidence of error.
It is well established that a claimant may establish that a modification of a wage-earning
capacity is warranted if there is a material change in the nature and extent of an injury-related
condition, or a showing that the original determination was, in fact, erroneous.6 Although
appellant’s April 29, 2014 correspondence used the term “reconsideration,” he contended that his
medical condition had changed such that he could no longer work a full day. The Board finds
that his April 29, 2014 communication offer constitutes a request for modification of the July 3,
2008 wage-earning capacity determination.7 The Board has held that, when a wage-earning
capacity determination has been issued and appellant submits evidence with respect to one of the
criteria for modification, OWCP must evaluate the evidence to determine if modification of
wage-earning capacity is warranted.8 In this case, appellant asserted that his medical condition
had changed, and he submitted medical evidence to support this assertion. However, rather than
evaluating whether he established modification of the wage-earning capacity, OWCP in its
May 13, 2014 decision evaluated his request as an untimely request for reconsideration under the
clear evidence of error standard.
The Board finds that OWCP should have adjudicated appellant’s April 29, 2014 letter, in
which he asserted that his medical condition had changed, as a request for modification of the

3

20 C.F.R. § 10.511.

4

Stanley B. Plotkin, 51 ECAB 700 (2000).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
6

P.C., 58 ECAB 405 (2007).

7

See M.N., Docket No. 10-51 (issued July 8, 2010).

8

W.W., Docket No. 09-1934 (issued February 24, 2010).

3

wage-earning capacity determination.9 The Board will, therefore, remand the case to OWCP for
proper adjudication, to be followed by an appropriate merit decision to preserve his appeal rights.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the May 13, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: April 8, 2015
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

9

F.B., Docket No. 09-99 (issued July 21, 2010); see also M.D., Docket No. 12-1317 (issued December 21, 2012).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 13-178
Issued: April 1, 2013

Case Submitted on the Record

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

JURISDICTION
On October 31, 2012 appellant filed a timely appeal from a September 7, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his emotional
condition 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 this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty causally related to factors of his federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In a June 29, 2004 order, the Board
remanded the case for OWCP to request additional factual information from the employing

1

5 U.S.C. § 8101 et seq.

establishment.2 In a September 25, 2006 decision, the Board again remanded the case for OWCP
to request factual evidence from the employing establishment and to inform it of the
consequences for failing to submit evidence under 20 C.F.R. § 10.117(b).3
On
November 24, 2008 the Board found that appellant had established as compensable work factors
that his window was broken by a bullet or projectile on March 8, 1978, that a coworker
threatened to break his kneecaps and that the employing establishment erred in investigating him
for wrongdoing, issuing disciplinary action, failing to provide a fitness-for-duty physician with
accurate information and downgrading his 1978 performance appraisal.4 The Board remanded
the case for evaluation of the medical evidence. In a decision dated November 23, 2010, the
Board found that the medical evidence was sufficient to warrant further development and
remanded the case for OWCP to refer appellant for a second opinion examination.5 In an order
dated April 26, 2012, the Board set aside an August 29, 2011 decision determining that appellant
did not cooperate with OWCP’s attempt to develop the medical evidence.6 The facts and
circumstances as set forth in the prior decision are hereby incorporated by reference.
On May 31, 2012 OWCP referred appellant, together with the case record and a
statement of accepted facts, to Dr. Mark E. Reynolds, a Board-certified psychiatrist, for a second
opinion examination. In a report dated June 28, 2012, Dr. Reynolds reviewed the medical
reports of record, appellant’s psychiatric history and the statement of accepted facts. He
diagnosed chronic and severe post-traumatic stress disorder (PTSD) and a single episode of
severe major depressive disorder without psychotic features. In response to OWCP’s query
whether appellant’s divorce and his brother’s suicide affected his condition, Dr. Reynolds stated
that appellant’s 1978 and 1999 divorces “may have resulted in a further exacerbation of the
symptomatology; however, it is my opinion that the relation of these events to the severity of the
claimant’s symptoms is limited.” He attributed the diagnosed conditions to “a combination of
the six factors described as incidents which occurred in the performance of duty.” Dr. Reynolds
indicated that the primary factor causing the PTSD and major depressive disorder was “the attack
on the claimant’s home on March 8, 1978 in which a projectile bullet struck the window of the
claimant’s home in which his daughter was residing at that time.” He further attributed
appellant’s condition to a coworker threatening to break his kneecaps in December 1978, the
March 8 to June 28, 1978 investigation, the employing establishment’s failure to provide a
fitness-for-duty physician with complete information, receiving disciplinary action in April 1978
subsequently found unreasonable and the employing establishment downgrading his
performance rating “without proper substantiation.” Dr. Reynolds found that appellant was
disabled from at least 1999 onward and possibly earlier.
2

Order Remanding Case, Docket No. 04-961 (issued June 29, 2004). On March 26, 2001 appellant, then a 57year-old former special agent, filed an occupational disease claim alleging that he sustained post-traumatic stress
disorder as a result of his work duties. He attributed his condition to a shot fired into the window of his house at his
children during his investigation of a gambling suspect. Appellant also alleged that his 1978 performance appraisal
was downgraded without reason and that he was interrogated nonstop by agents from March 8 to June 28, 1978.
3

Docket No. 06-790 (issued September 25, 2006).

4

Docket No. 07-2261 (issued November 24, 2008).

5

Docket No. 10-461 (issued November 23, 2010); Order Denying Petition for Reconsideration, Docket No. 10461 (issued June 2, 2011).
6

Order Remanding Case, Docket No. 12-631 (issued April 26, 2012).

2

By decision dated September 7, 2012, OWCP denied appellant’s claim after finding that
the medical evidence was insufficient to show that he sustained an emotional condition as a
result of compensable work factors. It found that while Dr. Reynolds attributed his PTSD and
major depressive disorder to compensable work factors, he also found that appellant’s divorce
contributed to his condition. OWCP denied appellant’s claim as work factors were not the sole
factor causing his condition.
On appeal, appellant argues that the report of Dr. Reynolds supports that he sustained an
emotional condition causally related to compensable employment factors. He challenges
OWCP’s finding that his divorces contributed to his condition.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.7 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 The opinion of the
physician must be based on a complete factual and medical background of the claimant12 and

7

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

8

Gregorio E. Conde, 52 ECAB 410 (2001).

9

Dennis J. Balogh, 52 ECAB 232 (2001).

10

Id.

11

John W. Montoya, 54 ECAB 306 (2003).

12

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

3

must be one of reasonable medical certainty13 explaining the nature of the relationship between
the diagnosed condition and the specific employment factors identified by the claimant.14
In Beth P. Chaput,15 the Board set aside and remanded the case to OWCP stating, “It is
not necessary to provide a significant contribution of factors of employment to a condition for
the purpose of establishing causal relationship. If the medical evidence revealed that [a work
factor] contributed in any way to [the employee’s] condition, such condition would be
considered employment related for the purpose of compensation benefits under [FECA].”16
ANALYSIS
On prior appeal, the Board found that appellant had established as compensable work
factors that his window was broken by a bullet or projectile on March 8, 1978, a coworker
threatened to break his kneecaps and that the employing establishment erred in investigating him
for wrongdoing from March 8 to June 28, 1978, issuing disciplinary action, failing to provide a
fitness-for-duty physician with accurate information and downgrading his 1978 performance
appraisal. In decisions dated November 24, 2008 and November 23, 2010, it remanded the case
for development of the medical evidence.
OWCP referred appellant to Dr. Reynolds to determine whether he sustained an
emotional condition arising from the compensable work factors. The Board finds that the
June 28, 2012 report from Dr. Reynolds establishes that employment factors caused or
contributed to his PTSD and major depressive disorder.
Board precedent provides that it is not necessary to prove a significant contribution of
factors of employment to a condition for the purpose of establishing causal relationship. If the
medical evidence revealed that a work factor contributed in any way to appellant’s condition,
such condition would be considered employment related.17 Dr. Reynolds clearly opined that the
accepted employment factors caused the diagnosed emotional conditions. He found that
appellant sustained major depressive disorder and PTSD due to a bullet striking his window in
March 1978, a coworker telling him he was going to break his kneecaps in December 1978, the
employing establishment’s failure to give a fitness-for-duty physician full information,
unwarranted disciplinary action in April 1978 and a downgrade to his performance appraisal
without reason. Dr. Reynold’s opinion is well rationalized and based on a proper factual and
medical background. Consequently, it represents the weight of the evidence and establishes that
the diagnosed conditions of PTSD and major depressive disorder are work related.18

13

Supra note 11.

14

Judy C. Rogers, 54 ECAB 693 (2003).

15

37 ECAB 158 (1985).

16

Id; see also Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold Gustafson, 41 ECAB 131 (1989).

17

See R.L., Docket No. 11-115 (issued June 14, 2011).

18

See L.C., Docket No. 12-1949 (issued January 3, 2013).

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OWCP denied appellant’s claim after finding that Dr. Reynold’s attributed his emotional
condition both to his divorces and to the compensable work factors. As discussed, however, if
work factors contribute in any way to an employee’s condition, it is considered employment
related.19
The evidence establishes that the diagnosed conditions of major depressive disorder and
PTSD are work related and covered under FECA; however, the record does not contain a clear
medical opinion regarding any periods of disability related to these accepted conditions. The
case will be remanded to OWCP for further development of this matter. After such development
as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant sustained an emotional condition in the performance of
duty causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2012 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 1, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

See R.L., Docket No. 11-115 (issued June 14, 2011); see also Henry Klaus, 9 ECAB 333, 334 (1957).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Edmonton, Alberta, Canada, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-69
Issued: December 19, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

By letter received on October 10, 2011, appellant filed an application for review of the
Office of Workers’ Compensation Programs’ (OWCP) May 19, 2011 nonmerit decision denying
his request for an oral hearing and the September 29, 2011 nonmerit decision denying his request
for reconsideration. The appeal was docketed as No. 12-69. After considering the evidence of
record, the Board finds this case is not in posture for a decision.
The present appeal involves appellant’s November 18, 2010 occupational disease claim
(No. xxxxxx576), in which he alleged that he developed severe sinus headaches, breathing
difficulties and nausea due to employment-related exposure to jet and diesel fumes, dust and
toxins. Under the same file number, appellant also submitted CA-2 forms dated November 20
and December 23, 2010 and January 15, 2011 alleging that he developed chronic sinusitis and
allegoric bilateral rhinitis due to employment-related exposure to toxic fumes. In each claim
form, he asked OWCP to refer to his prior claims in File Nos. xxxxxx846, xxxxxx995 and
xxxxxx576 for similar conditions due to the same occupational exposure. Appellant submitted
medical evidence in support of his claim and continued to refer OWCP to his prior case files for
additional medical evidence.

In a decision dated March 1, 2011, OWCP denied appellant’s claim on the grounds that
he had not established a causal relationship between his claimed sinus condition and factors of
employment. On May 18, 2011 it denied his request for an oral hearing as untimely. By
decision dated September 29, 2011, OWCP denied appellant’s request for reconsideration,
finding that the evidence presented did not warrant merit review.
The record indicates that appellant has filed similar occupational disease claims based on
employment-related exposure to toxic fumes, including: a December 21, 2008 claim (No.
xxxxxx995), which was accepted for acute episodic allergic bilateral conjunctivitis/rhinitis; a
November 27, 2007 claim (No. xxxxxx846), which appellant states was accepted by OWCP; a
pending May 18, 2011 occupational disease claim (No. xxxxxx270), in which he alleged that he
developed occupational asthma and allergic rhinitis due to employment-related exposure to jet
and diesel fumes, dust and toxins. The record in the instant case, however, does not contain any
evidence relating to the development of the prior claims.
In its September 29, 2011 decision, OWCP denied appellant’s reconsideration request,
without addressing his contention that the record in previously filed cases would establish a
causal relationship between his claimed medical condition and established work-related exposure
to toxic fumes. As the allegations contained in File Nos. xxxxxx995, xxxxxx846 and xxxxxx270
are substantially the same as those contained in the instant case (File No. xxxxxx576), the
medical evidence contained in those files will necessarily bear directly on appellant’s claim for
compensation in File No. xxxxxx576. Because it is essential for the Board to review the medical
evidence contained in file numbers xxxxxx995, xxxxxxx846 and xxxxxxx270 in order to render
a full and fair adjudication of the present appeal, this case will be remanded for OWCP to
consolidate case file numbers xxxxxx995, xxxxxx846, xxxxxx270 and xxxxxx576. Following
reconstruction of the record, OWCP shall reconsider appellant’s request for merit review based
on new evidence available in the consolidated case record and shall issue an appropriate
decision.1

1

In File No. xxxxxx270, appellant appealed a July 29, 2011 merit decision denying his occupational disease
claim.

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 29, 2011 decision be set aside and the case remanded for further development
consistent with this order.2
Issued: December 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

In light of the Board’s ruling, it is unnecessary to address OWCP’s May 19, 2011 decision denying appellant’s
hearing request. The Board notes that appellant requested oral argument before the Board. Pursuant to 20 C.F.R.
§ 501.5(a), oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light of the Board’s
ruling, oral argument is not appropriate in this case. Therefore, appellant’s request for oral argument is denied.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Diego, CA, Employer
__________________________________________

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

Docket No. 18-1575
Issued: April 3, 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 August 15, 2018 appellant filed a timely appeal from an April 20, 2018 nonmerit
decision of the Office of Workers’ Compensation (OWCP). As more than 180 days elapsed from
the last merit decision, dated August 30, 2017, to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 20, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 13, 2017 appellant, then a 36-year-old special agent, filed a traumatic injury claim
(Form CA-1) alleging that on May 18, 2017 he heard and felt a pop in his lower back while he was
performing squats in the weight room, while in the performance of duty. He did not stop working.
In a report dated May 19, 2017, Walter McDaniel, a registered nurse (RN) and Cheryl
O’Donoghue, a nurse practitioner (NP-BC), noted appellant’s examination findings and diagnosed
thoracolumbar strain. In reports dated May 22 and June 29, 2017, F. Fuller, an RN and
Ms. O’Donoghue diagnosed back strain. On May 23, 2017 Mr. McDaniel and Mike Carter, a
registered practical nurse, diagnosed low back strain and referred appellant to an orthopedist.
In a report dated May 30, 2017, Dr. Ralph W. Morales, Board-certified in orthopedic
surgery, related that he had examined appellant and administered a magnetic resonance imaging
(MRI) scan. He diagnosed lumbar canal stenosis and low back strain.
On July 7, 2017 Diana L. Clark, an RN, and Ms. O’Donoghue noted appellant’s
examination findings and related that he had a “compromised musculoskeletal system.”
By development letter dated July 24, 2017, OWCP informed appellant that the evidence of
record was insufficient to establish his traumatic injury claim. It advised him of the type of medical
and factual evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
In report dated July 6, 2017, Dr. Michael Dunn, Board-certified in hand surgery and
orthopedic surgery, noted appellant’s physical examination findings and diagnosed lumbar disc
disease in addition to the lumbar canal stenosis and low back strain.
By decision dated August 30, 2017, OWCP denied appellant’s claim because the medical
evidence submitted did not demonstrate that the claimed medical condition was related to the
accepted employment incident.
On April 17, 2018 appellant requested reconsideration of OWCP’s August 30, 2017
decision. In support of his request for reconsideration, he submitted an expense report and per
diem expense report.
By decision dated April 20, 2018, OWCP denied appellant’s request for reconsideration on
the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence submitted in
support of his reconsideration request was irrelevant or immaterial with regard to the issue of
whether his back condition was causally related to his accepted employment incident of
May 18, 2017.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.3
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence which: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.4 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.5 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.6
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record7 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
With his timely request for reconsideration, appellant neither showed that OWCP
erroneously applied or interpreted a specific point of law, nor advanced a relevant legal argument
not previously considered by OWCP. Consequently he is not entitled to review of the merits of
his claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
An appellant may be entitled to a merit review by submitting relevant and pertinent new
evidence, but the Board finds that appellant has not submitted any such evidence in this case.9
Appellant only submitted an expense report and a per diem allowance report with his request for
reconsideration. The submission of this factual evidence does not require reopening of his claim
3

K.B., Docket No. 18-1392 (issued January 15, 2019); 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No. 081569 (issued December 9, 2008).
5

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

6

K.B., supra note 3; Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

7

C.B., Docket No. 18-1108 (issued January 22, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome
Ginsberg, 32 ECAB 31, 33 (1980).
8

C.B., id.; Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

9
B.T., Docket No. 18-1397 (issued January 15, 2019); 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 181041 (issued October 25, 2018); C.N., supra note 4.

3

for review of the merits of the claim because this evidence is irrelevant to the underlying issue of
causal relationship. As noted, the underlying issue of the present case is medical in nature, i.e.
whether appellant submitted medical evidence sufficient to establish causal relationship between
a diagnosed medical condition and the accepted May 18, 2017 employment incident. The Board
has held that the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.10 Thus, appellant is also not entitled to
a review of the merits of his claim based on the third above-noted requirement under 20 C.F.R.
§ 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 3, 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

10

B.T., id.; Edward Matthew Diekemper, supra note 8.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND
ANNEX, Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-1572
Issued: May 23, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant, through her attorney, filed a timely appeal from the May 6,
2010 decision of the Office of Workers’ Compensation Programs affirming the termination of
wage-loss compensation and certain medical benefits. Pursuant to the Federal Employees’
Compensation Act1 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 the Office met its burden of proof to terminate appellant’s
compensation benefits and certain medical benefits effective May 6, 2010.
On appeal, appellant’s attorney contends that the Office’s decision is contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 24, 1997 appellant, then a 39-year-old casual clerk, filed a traumatic injury claim
alleging that on that date she sustained an injury to her right leg when a colleague rolled a bulk
mail carrier into her by mistake. The Office accepted a right leg contusion/laceration, tear of the
Achilles tendon, tendinitis and right leg cellulitis. It paid medical and wage-loss compensation
benefits. Appellant underwent approved surgery to repair her right Achilles tendon on
October 23, 2000. She did not return to work.
In a report dated November 8, 2008, Dr. Franklin B. Price, a treating physician, stated
that, as a result of the June 24, 1997 employment injury, appellant had diminished range of
motion and pain upon motion with paravertebral lumbar muscle spasm and pain upon
dorsiflexion and plantar flexion of the right foot. He opined that she was unable to work.
On January 20, 2009 the Office referred appellant to Dr. Robert M. Furnich, for a second
opinion. In a February 5, 2009 report, Dr. Furnich found that she did have any residuals of the
work-related injury. He found no signs of active or single episode of prior cellulitis or of active
tendinitis. Dr. Furnich noted that the partial Achilles tendon had been repaired and there was no
functional residual with regard to the Achilles tendon. The sole physical finding, which was
more subjective than objective, was sensitivity to the posterior incision. Dr. Furnich opined that
appellant was totally disabled due to unrelated medical conditions and needed a functional
capacity evaluation to determine her restrictions in all capacities.
In a March 3, 2009 report, Dr. Price noted that examination of the right ankle area
revealed that the right Achilles tendon area remained quite swollen and tender compared to the
left. Appellant had considerable pain upon palpitation of this area that was severe enough that
she walked with a cane. Dr. Price found that she was still disabled from the June 24, 1997
employment injury.
By letter dated May 8, 2009, the Office referred appellant to Dr. Timothy Nice, a
Board-certified orthopedic surgeon, to resolve the conflict in medical opinion between Dr. Price
and Dr. Furnich with regard to her continuing disability, residuals and capacity for work. In a
May 28, 2009 report, Dr. Nice noted appellant’s subjective complaints of having pain in her right
tendon but stated that there was nothing on physical examination that established a dysfunctional
tendon. He noted that, even if she did have a dysfunctional tendon, it would not necessarily
cause pain but would cause a dysfunction in terms of her walking, running or climbing steps and
stairs. There was nothing in appellant’s file to indicate that she had any nerve injury with the
abrasion/laceration she sustained. Dr. Nice noted that she came in wearing a regular shoe and
not a protective device over the tendon or sock to protect the clothes from rubbing the skin on the
back of her leg. Therefore, he was “suspect about how sensitive this area really is.” From the
standpoint of the accepted right leg abrasion/contusion and cellulitis, these pathologies had each
healed and resolved. Dr. Nice opined that, based on appellant’s allowed and accepted
conditions, there was no long-term residuals that would prevent her from returning to the type of
work she previously performed. He recommended a magnetic resonance imaging (MRI) scan of
the Achilles tendon of the right leg and a visit to a qualified orthopedic surgeon to discuss further
conservative modalities that might help her. Dr. Nice noted that another issue was whether
appellant had any nerve pathology in that wound area and that could cause increased sensitivity
2

in her wound. He stated that this “should all be sorted out but that these conditions all set aside I
think she certainly could return to a sedentary type of work working six to eight hours a day
where she could alternatively sit, stand, walk, have breaks and limit her lifting to 20 to 40 pounds
with intermittent bending and stooping with no squatting, kneeling or climbing.” Dr. Nice noted
that appellant had other medical conditions related to her general health that had nothing to do
with the accepted injury including obesity, diabetes, chronic liver issues and arthritis in both
knees.
In a July 30, 2009 report, Dr. Nice noted that, aside from a small scar, appellant had no
significant residuals of the right leg abrasion, contusion, wound and her tendinitis symptoms had
subsided. Appellant had a subsequent injury to her knee when she was pushed by another
worker at Stouffer’s in October 1997 and was treated by surgery in 1998 for a torn medical
meniscus. She sustained another injury to her right knee when she was in an automobile
accident and again underwent knee surgery in 2003. Dr. Nice found full plantar flexion and
dorsiflexion of appellant’s ankle and aside from hypersensitivity of the skin. There was no
significant residual of the accepted tendinitis, abrasion or the contusion. Dr. Nice stated that the
abrasion and contusion symptoms subsided within a two- to three-month period. He noted that
appellant’s operation on October 23, 2000 was not a formal repair but a debridement and, aside
from hypersensitivity of the skin in the area where she had the original wound, there was no
significant residual of the accepted conditions in terms of functional disability. Dr. Nice also
discussed her medical history and stated that her back condition was unrelated to her
employment injury. Based on her work-related conditions, appellant could perform her date-ofinjury job; but the fact that she was unable to work was not based on the employment injury she
sustained in 1997. Dr. Nice concluded that her ongoing right knee and back complaints were
unrelated to her employment injury but due to low back pain and a small herniated disc at L5.
On September 2, 2009 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation.
It also proposed terminating medical benefits for her leg
abrasion/contusion, single episode of right leg cellulitis and Achilles tendinitis. The Office kept
appellant’s claim open for medical treatment for hypersensitivity of the wound area around the
incision for the Achilles tendon surgery. Appellant did not submit new evidence responding to
the proposed termination.
By decision dated October 6, 2009, the Office finalized the termination of appellant’s
monetary and medical benefits.
On October 6, 2009 appellant requested a telephonic hearing.
In a July 9, 2009 note, Dr. Price stated that appellant was still having stabbing pains in
her right Achilles tendon which was injured in 1997 with dysfunction. In a November 7, 2009
note, he stated that she still had stabbing pain in her right Achilles tendon. Upon examination,
appellant’s right ankle revealed that the Achilles tendon area remained quite swollen and tender
compared to the left. She had pain upon dorsiflexion and plantar flexion of the ankle and foot.
Although there was no active cellulitis or infection present, the right Achilles tendon area was
much more swollen than the left with pain upon palpitation. Dr. Price advised that appellant
remained disabled from the June 24, 1997 employment injury. He also noted that she had seen
him once a month for the past three years for her injury and it was necessary for her claim to be
3

reopened. In a December 5, 2009 note, Dr. Price listed his impression as poor surgical repair of
the right Achilles tendon. On December 19, 2009 he again noted appellant’s complaint of severe
pain in her right Achilles tendon and opined that she might need repeat surgery. Appellant
continued to walk with a limp and stumbling antalgic gait. In a February 2, 2010 report,
Dr. Price listed his impression as tear of the right Achilles tendon with inadequate surgical repair
resulting in chronic pain and residual swelling.
In an October 14, 2009 report, Dr. Daniel Leizman, a Board-certified physiatrist, noted
that appellant presented that date for follow up of injuries sustained to her right knee and right
ankle in a work-related injury claim sustained on June 24, 1997. He assessed her with right
infected abrasion or friction burn of the hip, thigh, leg and ankle, right contusion of knee and
lower leg, right cellulitis or abscess of unspecified site, right open wound of knee, leg and ankle
with tendon involvement and right knee Achilles bursitis. In a November 4, 2009 report,
Dr. Leizman noted a right infected abrasion or friction burn of the hip, thigh, leg and ankle and
recommended continued follow up with her primary care physician.
At the hearing held on February 18, 2010, appellant testified that she did not have
problems with her right leg before her work injury. Following surgery did not feel better and
was never pain-free. Appellant was given a boot to wear and physical therapy. She testified that
she needed a cane to walk.
In a January 19, 2010 report, Dr. Patrick J. Getty, a Board-certified orthopedic surgeon,
diagnosed posterior left ankle pain, status post report Achilles’ tendon repair. In a February 4,
2010 report, he diagnosed right ankle pain and right ankle subcutaneous inflammation. Dr. Getty
recommended a combination of both a boot to rest soft tissues and as a course of physical
therapy for rehabilitation.
In a January 27, 2010 report, Dr. Peter Young, a Board-certified radiologist, interpreted
an MRI scan of appellant’s ankle as showing mild subcutaneous edema involving the medial and
lateral ankle which is nonspecific. He also found no evidence of acute fracture or dislocation;
however, he noted a thickening of the Achilles tendon consistent with tendinopathy and no
partial or full-thickness tear.
In an April 12, 2010 report, Dr. Shana Miskovsky, a Board-certified orthopedic surgeon,
stated that as the structure of appellant’s foot and ankle was intact and that there was no tendon
tear and no significant arthritic changes. Appellant’s pain, which did not improve with rest or
being off her foot, was more consistent with a neurologic type of problem, including a crush-type
injury to the nerve that could result in chronic regional pain syndrome. Dr. Miskovsky noted that
appellant was trying to avoid taking medication. She encouraged appellant to work with the
anesthesia pain service. The only other option would be amputation of appellant’s leg if the pain
became severe and recalcitrant to therapy. Dr. Miskovsky noted that appellant had diffused
tenderness to the lightest touch globally throughout the right lower extremity which was more
consistent with a nerve crush sequela. She found that the Achilles tendon had healed and was
repaired properly.
By decision dated May 6, 2010, the Office hearing representative affirmed the
October 6, 2009.
4

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 It may not terminate compensation without establishing
that the disability ceased or that it is no longer related to the employment.3 Its burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.4 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, the Office must establish that a claimant no longer has residuals of an
employment-related condition that requires further medical treatment.5
Section 8123(a) of the Act provides in pertinent part: If there is a 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.6 In situation 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 sufficient well rationalized and based upon a proper factual background, must
be given special weight.7
ANALYSIS
The Office accepted that appellant sustained a right leg contusion/laceration, tear of the
Achilles tendon, tendinitis and right leg cellulitis as a result of the June 24, 1997 work injury.
Appellant received wage-loss compensation for disability and medical benefits for ongoing
treatment. She underwent surgery on October 23, 2000 to repair her right Achilles tendon.
Appellant has not worked since the date of her surgery. Her treating physician, Dr. Price, found
that she was totally disabled due to residuals of her employment-related injury. The second
opinion physician, Dr. Furnich, found that appellant’s residuals from her work-related injury
resolved without further disability. Due to a conflict in medical opinion between her treating
physician and the second opinion physician, the Office referred her to Dr. Nice for an impartial
medical examination.
Dr. Nice conducted an extensive review of the medical evidence and a physical
examination. Based on appellant’s accepted work-related conditions, she could perform her
date-of-injury job. Dr. Nice opined that her right leg abrasion/laceration and cellulitis had healed
without residuals. Appellant had two subsequent injuries to her knee that were not related to her
federal employment. Dr. Nice explained that her other medical conditions related to her general
2

I.J., 59 ECAB 408 (2008); Fermin G. Olacoaga, 13 ECAB 102, 104 (1961).

3

J.M., 58 ECAB 478 (2007); Anna M. Blaine, 26 ECAB 351 (1975).

4

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

6

5 U.S.C. § 8123(a).

7

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

5

health, her obesity, diabetes, chronic liver issues and arthritis to both knees and were unrelated to
her work injury. Although appellant had subjective complaints of pain in her right tendon there
was nothing on physical examination that established a dysfunctional tendon. Dr. Nice further
noted that even if she did have a dysfunctional tendon it would not necessarily cause pain. He
concluded that appellant was no longer disabled due to the accepted employment conditions.
Dr. Nice noted that the only remaining injury that required further medical treatment was
hypersensitivity of her skin in the area of the original wound. The Office properly gave special
weight to the well-rationalized opinion of Dr. Nice, the impartial medical examiner and
terminated appellant’s compensation for wage-loss and medical benefits for the other remaining
medical conditions.
The Board does not find that the evidence submitted before the Office hearing
representative was sufficient to overcome the special weight of the medical opinion evidence
given to the impartial medical examiner. The subsequent opinions of Dr. Price basically reiterate
his opinion that appellant continued to have residuals and be disabled from the employment
injury. The Board has long held that reports from a physician who was on one side of a medical
conflict that an impartial specialist resolved are generally insufficient to overcome the weight
accorded to the report of the impartial medical examiner or to create a new conflict.8
The Board also finds that the opinions of the remaining physicians are insufficient to
overcome the weight of the impartial medical examiner. Dr. Leizman noted appellant’s
employment injury and assessed various injuries to her right leg. However, he never explained
how these injuries were still related to the employment injury that occurred over 12 years prior to
his report. Dr. Young interpreted appellant’s MRI scan but rendered no opinion as to whether
her subsequent conditions were disabling or required further medical treatment. Dr. Getty also
reviewed the MRI scan but also did not provide an opinion as to how her current right ankle
condition was causally related to the distant employment injury. Furthermore, he appears
unaware that appellant had any subsequent injuries. Dr. Miskovsky does not attribute appellant’s
current conditions to her employment injury. The Board also notes that Dr. Miskovsky clearly
indicates that appellant’s Achilles tendon has healed as it was properly repaired. Accordingly,
the Board finds that the Office properly terminated appellant’s compensation benefits and all
medical benefits except for treatment of hypersensitivity of the scar tissue.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and certain medical benefits effective October 6, 2009.

8

I.J., 59 ECAB 408 (2008).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 6, 2010 is affirmed.
Issued: May 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Lansing, MI,
Employer
__________________________________________

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

Docket No. 16-1042
Issued: June 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On Apri1 20, 2016 appellant filed a timely appeal from a March 15, 2016 nonmerit
decision and a February 10, 2016 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 the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a ratable
permanent impairment of the lower extremities; and (2) whether OWCP properly denied further
merit review of his schedule award claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 12, 2014 appellant, then 56-year-old parcel post distribution machine clerk, filed
an occupational disease claim (Form CA-2) for a bilateral lower extremity condition that
allegedly arose in the performance of duty. He first became aware of the condition on
May 10, 2010 and related it to factors of his federal employment on May 16, 2014. Appellant
attributed his condition to standing, pushing, pulling equipment, and lifting, which put too much
stress on his legs and feet. On December 8, 2014 OWCP initially denied the claim as the
evidence was insufficient to establish a medical condition causally related to factors of his
federal employment. Appellant retired effective December 15, 2014.
By decision dated April 29, 2015, OWCP accepted his occupational disease claim for
aggravation of preexisting bilateral venous (peripheral) insufficiency. On May 3, 2015 appellant
filed a claim for a schedule award (Form CA-7).
By letter dated May 18, 2015, OWCP requested that appellant submit an impairment
rating in accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). It provided him 30 days to submit the
requested medical evidence.
In a June 3, 2015 report, Dr. Bradley Ropp, a Board-certified internist, indicated that
appellant’s severe venous insufficiency with chronic edema would continue to worsen over time,
and represented a permanent deficit. He did not believe the condition was fixed or had reached a
stable state, nor did he anticipate any improvement. Dr. Ropp indicated that appellant’s was one
of the worse cases of venous insufficiency edema he had seen in some time, and further
commented that it had been recalcitrant to treatment.
By decision dated July 10, 2015, OWCP denied appellant’s claim for a schedule award.
It noted that Dr. Ropp’s recent report did not include a permanent impairment rating of the lower
extremities in accordance with the A.M.A., Guides (6th ed. 2009).
On November 9, 2015 appellant requested reconsideration and submitted a duplicate
copy of the June 3, 2015 report of Dr. Ropp.
In a November 2, 2015 report, Dr. Ropp indicated that appellant’s venous insufficiency
had reached maximum medical improvement (MMI). He stated that it was a permanent problem
in both of appellant’s lower extremities with chronic bilateral lower extremity edema up to the
thighs. Dr. Ropp described appellant’s treatment and indicated that it could not be cured or
improved. The only treatment for the problem at this time was use of compression stockings and
elevation of the legs.
In a February 10, 2016 decision, OWCP denied modification of its July 10, 2015
decision. It found that while the medical evidence from Dr. Ropp indicated that appellant was at
MMI, he did not provide an impairment rating of the bilateral lower extremities under the
A.MA., Guides (6th ed. 2009).
On March 10, 2016 appellant requested reconsideration.

2

In a February 29, 2016 report, Dr. Ropp discussed the nature and extent of appellant’s
accepted medical condition.2 This included appellant’s treatment and set forth detailed
restrictions. Dr. Ropp indicated that appellant’s venous insufficiency had progressively
worsened and that he did not expect him to recover or have remission from this condition.
By decision dated March 15, 2016, OWCP denied appellant’s request for reconsideration.
The senior claims examiner found that Dr. Ropp’s February 29, 2016 report was substantially
similar to his previous reports dated June 3 and November 2, 2015, and thus, cumulative
evidence. OWCP further found that the February 29, 2016 report was similarly devoid of an
impairment rating under the A.M.A., Guides (6th ed. 2009).
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.3 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.4 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for an aggravation of preexisting bilateral venous
(peripheral) insufficiency. On May 3, 2015 appellant filed a claim for a schedule award and later
submitted Dr. Ropp’s June 3, 2015 report. In a July 10, 2015 decision, OWCP denied
appellant’s claim for a schedule award. Appellant timely requested reconsideration and
submitted another report from Dr. Ropp dated November 2, 2015. By decision dated
February 10, 2016, OWCP denied modification of its prior decision finding that both the June 3
and November 2, 2015 reports failed to provide a bilateral lower extremity permanent
impairment rating in accordance with the A.M.A., Guides (6th ed. 2009).
Appellant bears the burden of proof to demonstrate his entitlement to benefits under
FECA. In May 2015, OWCP advised him of the necessity of submitting an impairment rating
6

2

The report was directed to the Civil Service Retirement System and intended to support appellant’s disability
retirement.
3

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2).
4

20 C.F.R. § 10.404.

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
6

20 C.F.R. § 10.115(f).

3

in accordance with the A.M.A., Guides (6th ed. 2009). Although Dr. Ropp found that appellant
had reached maximum medical improvement and was permanently disabled, neither the June 3
nor November 2, 2015 reports included a bilateral lower extremity permanent impairment rating
under the A.M.A., Guides (6th ed. 2009). Additionally, he did not identify any specific findings
in determining the existence and extent of impairment. Before a case can be referred to the
DMA, the attending physician should describe the impairment in sufficient detail to permit clear
visualization of the impairment and the restrictions and limitations which have resulted.7
The current record does not support appellant’s claim for a schedule award with respect
to his employment injury. Accordingly, appellant has failed to meet his burden of proof.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.8 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.9 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.10 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.11 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.12

7

Supra note 5 at Chapter 3.700.3a(2) (January 2010).

8

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.607.

10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP
within one year of OWCP’s decision for which review is sought. Supra note 5 at Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the
“received date” in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
11

20 C.F.R. § 10.606(b)(3).

12

Id. at § 10.608(a), (b).

4

ANALYSIS -- ISSUE 2
On February 10, 2016 OWCP issued a decision denying appellant’s claim for schedule
award compensation. The decision noted that although Dr. Ropp indicated that appellant had
reached maximum medical improvement, the physician had not provided an impairment rating of
the lower extremities in accordance with the A.MA., Guides (6th ed. 2009). Appellant timely
requested reconsideration, which OWCP denied on March 15, 2016.
In his March 10, 2016 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He also did not advance a new and
relevant legal argument not previously considered. Appellant submitted the appeal request form
that accompanied OWCP’s February 11, 2016 merit decision. He did not otherwise elaborate
regarding the particular basis for requesting reconsideration. Thus, appellant is not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(3).13
Appellant’s latest request for reconsideration was accompanied by a new report from
Dr. Ropp dated February 29, 2016. The underlying issue is whether appellant submitted
sufficient medical evidence to establish a ratable permanent impairment of the lower extremities
due to his accepted employment injury, thereby warranting a schedule award. A claimant may
be entitled to a merit review by submitting relevant and pertinent new evidence, but appellant did
not submit any such evidence in this case.14 Although Dr. Ropp’s February 29, 2016 report
included a detailed discussion of appellant’s accepted medical condition and set forth
restrictions, the report did not contain a permanent impairment rating of the lower extremities.
Also, Dr. Ropp did not provide any recent physical examination findings or otherwise describe
appellant’s condition in sufficient detail to permit clear visualization of the impairment.15 As
such, Dr. Ropp’s February 29, 2016 report is substantially similar to his prior reports. Providing
additional evidence that repeats or duplicates information already in the record does not
constitute a basis for reopening a claim.16 Because appellant did not provide OWCP with any
“relevant and pertinent new evidence,” he is not entitled to a review of the merits based on the
third requirement under section 10.606(b)(3).17 Accordingly, OWCP properly declined to reopen
appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a ratable
permanent impairment of the lower extremities. OWCP also properly denied appellant’s request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(3)(i) and (ii).

14

See B.D., Docket No. 16-1177 (issued October 27, 2016).

15

See supra note 7.

16

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

17

20 C.F.R. § 10.606(b)(3)(iii).

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ORDER
IT IS HEREBY ORDERED THAT the March 15 and February 10, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 20, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 15-0474
Issued: September 20, 2016

Case Submitted on the Record

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

JURISDICTION
On December 29, 2014 appellant filed a timely appeal from a July 14, 2014 merit
decision and an October 21, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury in the performance of duty; and (2) whether OWCP properly denied appellant’s October 9,
2014 request for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 30, 2014 appellant, then a 63-year-old letter carrier, filed a traumatic injury
claim alleging that on May 19, 2014 he sprained his right knee when he saw three kids stealing a
1

5 U.S.C. § 8101 et seq.

parcel from a mailbox on his route and followed them to retrieve the parcel. He stopped work on
May 22, 2014. The employing establishment contended that the alleged injury did not occur in
the performance of duty because appellant chased down customers in order to stop the theft of a
parcel, which was not within the scope of his duties as a letter carrier.2
In a handwritten statement, appellant explained that when he picked up the CA-1 form he
was told by his supervisor, Brian Cronin, that he was wasting his time submitting a claim
because it would be denied and he would be written up for what occurred.
In duty status reports dated May 22 and June 5, 2014, a physician with an ineligible
signature noted that appellant worked as a letter carrier and that on May 19, 2014 he hopped out
of his truck to retrieve a parcel that was stolen out of a mailbox on his route. He described
clinical findings of inflammation and pain and diagnosed quadriceps tendinosis. The physician
advised that appellant could return to work on June 16, 2014 with restrictions.
By letter dated June 9, 2014, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional evidence to demonstrate that he
experienced the alleged incident in the performance of duty and that he sustained a diagnosed
condition as a result of the employment incident. It also requested that the employing
establishment submit medical evidence if appellant was treated at its medical facility.
In a June 11, 2014 Continuation of Pay (COP) note, a nurse reported that appellant
sustained a right knee sprain and had not returned to work since the injury. Appellant related
that the injury was improving and he anticipated returning to work on June 16, 2014.
In a June 18, 2014 narrative statement, appellant reported that on May 19, 2014 he was
finishing up his route when he observed two kids in the street acting strange when he drove by.
He continued to watch them in his rear view mirror when he saw one kid take a package out of a
mailbox. Appellant reported that the first kid met up with a second kid and they both turned
down Tavernier Drive. He then turned the vehicle around and followed them around the corner
onto Tavernier Drive. When appellant pulled up to the kids, he jumped out of his vehicle and
landed on his right knee. He felt pain in his right knee when he took four or five steps.
Appellant stated that the area where he stepped out of his vehicle dipped down approximately
five or six inches further than the sidewalk because of water drainage, causing injury to his
knees. He reported the incident to his supervisor when he returned to the office about 20 minutes
later, but did not inform his supervisor about his injured knee because it was not hurting much at
the time. Around 2 a.m. appellant woke up in severe pain and was unable to touch or bend his
knee at all. He informed his supervisor what happened and that he was not able to go to work to
complete the paperwork in order to receive medical treatment. Appellant reported that when his
supervisor brought him the form he was informed not to bother filing a claim because it would
be denied and to use his own insurance. He stated that an emergency room (ER) doctor informed

2

The record reveals that appellant previously filed four traumatic injury claims: for a November 24, 2001 injury
(File No. xxxxxx103), a July 14, 2005 injury (File No. xxxxxx128), a March 4, 2011 injury (File No. xxxxxx329),
and a September 18, 2012 injury (File No. xxxxxx928). He also filed a previous occupational disease claim (File
No. xxxxx392).

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him to stay in bed and to keep his leg elevated with heat and ice for seven days or until he could
see an orthopedic doctor. Appellant noted that he had a meniscus repair about 10 years ago.
Appellant submitted a May 20, 2014 prescription form which advised appellant to rest
and elevate his leg for one week and a map of the area where the incident took place.
In a decision dated July 14, 2014, OWCP denied appellant’s claim based on performance
of duty. It determined that the evidence failed to demonstrate that the alleged May 19, 2014
injury occurred during the course of his employment or within the scope of his compensable
work factors. Specifically, OWCP found that chasing down a customer to stop the theft of a
parcel was not within the scope of his duties.
On October 9, 2014 OWCP received appellant’s request for reconsideration. Appellant
submitted a signed authorization form designating his union steward to represent him.
Appellant also submitted a June 12, 2014 duty status report from a physician assistant
with an eligible signature. He indicated that on May 19, 2014 appellant sustained a quadriceps
tendinitis when he stepped out of his vehicle onto his right leg after noticing a boy had stolen a
parcel from a mailbox. The physician assistant advised appellant not to return to work.
By decision dated October 21, 2014, OWCP denied appellant’s reconsideration request
finding that the evidence was insufficient to warrant further merit review under 5 U.S.C.
§ 8128(a). It determined that the evidence submitted was irrelevant or immaterial to the issue of
whether his alleged injury occurred in the performance of duty.
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 and in the course of
employment.4
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.5 In deciding whether an injury is covered by FECA, the test is whether, under
all the circumstances, a causal relationship exists between the employment itself or the
conditions under which it is required to be performed and the resultant injury.6
3

5 U.S.C. § 8102(a).

4

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

5

See R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

6

See Mark Love, 52 ECAB 490 (2001).

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In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.7 The
Board has noted that the standard to be used in determining that an employee has deviated from
his or her employment requires a showing that the deviation was aimed at reaching some specific
personal objective.8
ANALYSIS
Appellant alleged that on May 19, 2014 he sprained his right knee when he slipped and
fell when leaving his truck after he pursued three kids that he witnessed steal a parcel from a
mail box on his route. OWCP determined that his injury did not arise in the performance of
duty. The Board finds that this case is not in posture for decision regarding whether appellant
was in the performance of duty on May 19, 2014 when he sustained an alleged injury.
In its July 14, 2014 denial decision, OWCP determined that there was insufficient
evidence to establish that his alleged injury arose during the course of employment and within
the scope of compensable work factors. It noted that the employing establishment challenged
appellant’s claim because chasing down a customer to stop the theft of a parcel was not within
the scope of his duties. Thus, the Board must determine whether appellant’s actions at the time
of his alleged injury were reasonably incidental to his work assignment or represented such a
departure from the work assignment that he was engaged in personal activities unrelated to his
employment.9
In P.B.,10 a letter carrier who sustained injuries to his eye, skin, left shoulder, neck and
back when he slipped on gasoline and fell down after jumping out of his work truck in order to
chase an assailant who had thrown gasoline on him was found to not be in the performance of
duty. The Board determined that appellant stopped work and deviated from his mail route in
order to attend to a personal matter of chasing and attempting to catch his assailant. The Board
noted that the employee’s activity was that of a specific personal objective as the employee
admitted that he had personal animosity towards the assailant when he was previously threatened
with physical harm by the assailant. In that case, the Board specifically pointed out that “the
employing establishment’s 2005 standard training program guide provided safety instructions to
its employees which included not endangering oneself in the event of a threat assault or angering
or harassing an assailant.” Thus, the Board concluded that while appellant was in the
performance of duty when the assailant threw gasoline on him while he was delivering mail on
his route, he deviated from the course of employment when he got into his truck to chase after
7

Phyllis A. Sjoberg, 57 ECAB 409 (2006).

8

Rebecca LeMaster, 50 ECAB 254 (1999).

9

Supra note 7.

10

Docket No. 13-1092 (issued June 19, 2014).

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the assailant, in direct violation of the employing establishment’s guidelines, and later slipped
and fell when leaving his truck.
Unlike the facts of P.B., however, the record in this case does not contain any
information regarding the employing establishment’s procedures or protocols regarding what
mail carriers are instructed to do when they witness mail being stolen on their mail route. The
record also does not contain evidence of any personal animosity appellant may have had towards
the juveniles involved in this case. Accordingly, the Board is unable to determine whether
appellant’s actions in this case, when he slipped and fell from his truck while pursuing the
individuals who stole mail on his delivery route, constituted a deviation from his work duties in
order to accomplish a personal objective or whether appellant’s activity was reasonably
incidental to his employment or done in fulfillment of the employing establishment’s business.11
In N.B.,12 the employee alleged that on November 19, 2012 she sustained injuries to her
head, neck, and shoulder when an unfastened metal door of a toilet paper dispenser hit her head
when she entered the restroom at a McDonald’s restaurant located on her mail route. The Board
stated that the issue to be determined was whether the employee’s restroom stop constituted a
substantial deviation from her employment that would place her outside of the performance of
duty. It remanded the case because the record did not contain “the policy of the employing
establishment with regard to breaks for letter carriers as off-premises employees.” The Board
stated that OWCP should request clarification from the employing establishment as to the break
policy for off-premises employees.
Similarly, the Board finds that the record in this case is also devoid of the employing
establishment’s policies or procedures and instruction on how letter carriers should respond if
they witness the theft of mail from a mailbox. It appears that OWCP solely relied on appellant’s
supervisor’s statement that stopping the theft of a parcel was not within the scope of appellant’s
duties as a letter carrier. It is well established, however, that proceedings under FECA are not
adversarial in nature and, while the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence.13 In this case,
the Board finds that there is no information in the record regarding the policy of the employing
establishment with regard to theft of mail packages and how letter carriers are to respond if they
witness this activity. Furthermore, the record is also unclear as to whether the location of
appellant’s slip and fall injury was still on his mail delivery route or whether he deviated from
his mail route in pursuit of the individuals who stole a package from a mailbox. Therefore, the
case should be remanded for further development of the evidence regarding whether appellant
was in the performance of duty on May 19, 2014 when he sustained an injury.

11

Lonnie B. Anderson, Docket No. 94-1842 (issued July 5, 1996).

12

Docket No. 14-1092 (issued February 26, 2015).

13

Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1983).

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After such further development as it deems necessary, OWCP should issue an appropriate
decision on this matter.14
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Due to the disposition of this case, the remaining issue regarding the denial of appellant’s October 9, 2014
reconsideration request and appellant’s arguments are moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, COLEMAN FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1341
Issued: March 24, 2022

Case Submitted on the Record

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

On September 8, 2021 appellant, through counsel, filed an appeal from a March 11, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1341.
The Board has duly considered the matter and notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 For final
adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review authority

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. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180 th day following the March 11, 2021 decision was September 7, 2021. As appellant
did not file an appeal with the Board until September 8, 2021, more than 180 days after the
March 11, 2021 OWCP decision, the Board finds that the appeal docketed as No. 21 -1341 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 21-1341, must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1341 is dismissed.
Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

Id. at § 501.3(e).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” Id.
at § 501.6(d).
4

2