United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Westland, MI, Employer
__________________________________________

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

Docket No. 07-1653
Issued: December 7, 2007

Case Submitted on the Record

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

JURISDICTION
On June 6, 2007 appellant, through her attorney, filed a timely appeal from a
September 18, 2006 merit decision of the Office of Workers’ Compensation Programs and a
May 9, 2007 hearing representative’s decision modifying her loss of wage-earning capacity to
zero and terminating medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly modified its loss of wage-earning
capacity determination; (2) whether the Office properly terminated authorization for medical
treatment; and (3) whether appellant has established that she had any continuing employmentrelated disability after September 19, 2006.
FACTUAL HISTORY
On January 20, 2003 appellant, then a 24-year-old transitional letter carrier, sprained her
left ankle when she slipped on ice. She stopped work on January 20, 2003 and returned to work

on January 25, 2003 for four hours per day. The employing establishment terminated appellant’s
employment on October 14, 1993 at the conclusion of her temporary appointment.
On January 12, 1994 appellant underwent an excision of a thickened distal tibiofibular
ligament of the left ankle. The Office paid her compensation for total disability beginning that
date. Following vocational rehabilitation, on March 27, 1997, the Office reduced appellant’s
compensation based on its finding that she had the capacity to earn wages as a medical assistant.
By letter dated September 20, 2004, the Office requested that appellant submit current
medical evidence regarding her condition and its relationship to her employment. In response,
she indicated that she last saw her attending physician, Dr. Donald E. Wild, a Board-certified
orthopedic surgeon, in 1998.
On October 27, 2004 the Office notified appellant that she should submit a
comprehensive medical report from her attending physician based on a recent medical
examination addressing whether she had further residuals of her accepted employment injury. In
a report dated November 23, 2004, Dr. Wild noted that appellant had done “quite well” since her
1994 left ankle surgery. On examination, he found no swelling and full range of motion without
loss of strength. Dr. Wild indicated that the “anteriolateral aspect of the ankle where we
removed her Bassett’s lesion shows less than [the] usual amount of subcutaneous tissue which is
related to the procedure.” He interpreted an x-rays obtained on November 23, 2004 as showing
no abnormalities. Dr. Wild diagnosed status post surgery for a Bassett lesion of the left ankle.
He stated, “[Appellant] at this time demonstrates no long-term sequelae and I would not
recommend any restrictions at this point. I would not anticipate any subsequent surgeries. We
would not recommend any work restrictions at this point. I would recommend no further
treatment program. I would likewise not recommend any further follow-up evaluations.”
On March 14, 2006 the Office requested that Dr. Wild address whether appellant had any
residuals of her accepted employment injury. In an April 25, 2006 response, he stated:
“[Appellant] was last evaluated on November 23, 2004. At that time, she was 10
years post left ankle surgery. [Appellant] had no further evidence of ankle
problems. She described occasional symptoms and an awareness that her ankle
was [not] 100 percent normal but her symptoms were [not] enough to limit her
activities. [Appellant’s] examination was within normal limits.
“It has been 16 months since [appellant] was last seen and evaluated. However,
based on that evaluation, it is my opinion that she has recovered from her left
ankle problems.”
On August 14, 2006 the Office informed appellant that it proposed to terminate her
compensation and medical benefits on the grounds that she had no further condition or disability
due to her January 20, 1993 employment injury. The Office further noted that it was modifying
her loss of wage-earning capacity to zero based on its finding that her condition had materially
changed. By decision dated September 18, 2006, the Office finalized its termination of
compensation and medical benefits. The Office again noted that it was modifying her wageearning capacity decision to reflect that she had no loss of wage-earning capacity.

2

On October 10, 2006 appellant requested an oral hearing. In a report dated November 29,
2006, Dr. Tara Long Scott, a podiatrist, indicated that she initially evaluated appellant on
October 26, 2006 for complaints of left ankle pain. She noted that a magnetic resonance imaging
(MRI) scan study revealed normal findings other than “some thickening of the anterior
tibiofibular ligament, which had healed with evidence of thickening of the ligament associated
with a partial tear.1 [Appellant] also had some mild edema within the peroneus brevis tendon,
consistent with tendinosis; however, [she] is completely asymptomatic in that area.” On
examination, Dr. Scott found mild edema of the left anterior lateral ankle and “mild pain on
palpation of the anterior tibiofibular ligament.” She diagnosed a healed anterior tibiofibular
ligament tear of the left ankle and recommended physical therapy, an ankle brace and
appropriate footwear.
On December 6, 2006 Dr. Scott discussed her treatment of appellant for “chronic ankle
pain associated with a torn anterior tibiofibular ligament on the left ankle. The ligament was
surgically repaired 13 years ago; however, appellant continues to experience pain and swelling.
An MRI scan [study] performed on November 2, 2006 revealed that the repaired ligament is
bulbous and partially healed with scar tissue.” Dr. Scott found that, due to appellant’s chronic
ankle condition, she may have to “decrease her activity intermittently to manage her symptoms.”
She recommended against further surgical intervention.
Appellant submitted progress reports from Dr. Scott dated October 26, 2006 through
March 21, 2007. On October 26, 2006 Dr. Scott listed findings on examination and noted her
complaints of pain and swelling of the left ankle since 1993. She diagnosed a painful ankle. On
November 9 and 29, 2006 Dr. Scott diagnosed an ankle sprain and a painful ankle and
recommended possible physical therapy. On February 21 and March 21, 2007 she listed findings
on examination and diagnosed a ligament tear. Dr. Scott placed appellant in a walking cast on
February 21, 2007 and an ankle brace on March 21, 2007. She recommended possible
exploratory surgery and opined that appellant should return for treatment on an as needed basis.
At the hearing, held on February 22, 2007, appellant’s attorney argued that the Office had
to show that she was vocationally rehabilitated to modify its loss of wage-earning capacity
determination. He also contended that the opinion of Dr. Wild was too old to constitute reliable
medical evidence. By decision dated May 9, 2007, the Office hearing representative affirmed
the September 18, 2006 decision. She found that the Office properly modified appellant’s wageearning capacity to zero based on its finding that her accepted condition of left ankle strain had
resolved. The hearing representative noted that Dr. Wild’s opinion constituted the weight of the
medical evidence as he found that appellant had no residuals of her employment injury.
LEGAL PRECEDENT -- ISSSUE 1
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

1

An MRI scan study obtained on November 20, 2006 showed a chronic healed tear of the anterior tibiofibular
ligament and possible tendinosis of the peroneal brevis tendon.

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wages.2 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.4 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a left ankle sprain. Appellant worked limited
duty until her temporary appointment with the employing establishment ended on
October 14, 2003. On January 12, 1994 she underwent an excision of a thickened distal
tibiofibular ligament of the left ankle. The Office paid appellant compensation for temporary
total disability.
By decision dated March 27, 1997, the Office reduced appellant’s compensation effective
March 30, 1997 based on its finding that she had the capacity to perform the position of medical
assistant.6 On September 30, 2004 the Office requested that she submit current medical evidence
regarding her employment-related condition. Appellant indicated that she last sought medical
treatment from her attending physician, Dr. Wild, in 1998. On October 27, 2004 the Office
requested a comprehensive medical report from Dr. Wild.
On November 23, 2004 Dr. Wild examined appellant and found that she had no swelling,
loss of motion or loss of strength of the left ankle. Appellant had some loss of subcutaneous
tissue due to her 1994 left ankle surgery but had done “quite well” since the procedure. Dr. Wild
found that x-rays of the left ankle were normal. He diagnosed status post surgery for a Bassett
lesion of the left ankle. Dr. Wild found that appellant had no work restrictions or need for
further medical treatment. In an April 25, 2006 response, he clarified that, based on his
November 23, 2004 evaluation, appellant had no evidence of problems with her left ankle and
that her examination was normal. Dr. Wild indicated that appellant related that her ankle was not
the same as preinjury but did not “limit her activities.” He concluded that she had “recovered
from her left ankle problems.”
The Office can modify an established wage-earning capacity determination by showing a
material change in the nature and extent of the employee’s injury-related condition or that the
2

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

3

Sharon C. Clement, 55 ECAB 552 (2004).

4

Tamra McCauley, 51 ECAB 375, 377 (2000).

5

Id.

6

As the Office had issued a wage-earning capacity determination, the issue in this case is whether the wageearning capacity determination should be modified rather than termination of compensation.

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employee has been retrained or vocationally rehabilitated.7 As appellant’s attending physician,
Dr. Wild had a thorough knowledge of her condition. He explained that findings on x-ray and
physical examination were normal and that she had fully recovered from her employment injury.
While Dr. Wild based his opinion on an October 2004 examination, he reiterated in his
April 2006 report that appellant had “recovered from her left ankle problems.” His opinion,
which is thorough and rationalized, establishes that appellant’s condition has materially changed
such that she no longer has any residuals of her employment injury. The Office, therefore, met
its burden of proof to modify its loss of wage-earning capacity determination to zero as appellant
has no further employment-related disability.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.9
ANALYSIS -- ISSUE 2
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Wild, appellant’s attending physician, who explained that findings on
x-ray and physical examination were normal and that she had fully recovered from her
employment injury. He found that appellant had no residuals of her accepted left ankle condition
and required no further medical treatment. As appellant’s attending physician, Dr. Wild had a
thorough knowledge of her condition. His opinion, which is detailed and well rationalized,
establishes that appellant requires no further medical treatment due to her accepted employment
injury.
LEGAL PRECEDENT -- ISSUE 3
As the Office met its burden of proof to modify appellant’s loss of wage-earning capacity
to zero based on its finding that she had no further employment-related disability, she has the
burden of proof to show that she had a continuing loss of wage-earning capacity after that date
due to her accepted injury.10 To establish a causal relationship between the condition as well as
any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background, supporting
such a causal relationship.11 Causal relationship is a medical issue and the medical evidence
7

See Tamra McCauley, supra note 4.

8

Pamela K. Guesford, 53 ECAB 727 (2002).

9

Id.

10

See generally Thaddeus J. Spevack, 53 ECAB 474 (2002) (the burden of proof is on the party attempting to
show modification of the wage-earning capacity determination).
11

Richard O’Brien, 53 ECAB 234 (2001).

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required to establish a causal relationship is rationalized medical evidence.12 Rationalized
medical evidence is evidence which includes a physician’s rationalized medical opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13 Neither
the fact that a disease or condition manifests itself during a period of employment nor the belief
that the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.14
ANALYSIS -- ISSUE 3
In support of her claim that she had a continuing loss of wage-earning capacity due to her
employment injury, appellant submitted a report dated November 29, 2006 from Dr. Scott who
interpreted a November 20, 2006 MRI scan study as normal except for some thickening of the
anterior tibiofibular ligament and some tendinosis unsupported by clinical findings. On
examination, Dr. Scott listed findings of mild edema of the left anterior lateral ankle and “mild
pain on palpation of the anterior tibiofibular ligament.” She diagnosed a healed anterior
tibiofibular ligament tear of the left ankle and recommended physical therapy, an ankle brace and
supportive footwear. Dr. Scott, however, did not address the relevant issue of whether appellant
had any further disability due to her employment injury; consequently, her opinion is of little
probative value.
On December 6, 2006 Dr. Scott noted that she was treating appellant for ankle pain from
a surgically-repaired torn anterior tibiofibular ligament of the left ankle. She found that
appellant might have to reduce her activity “intermittently to manage her symptoms.” In
progress reports dated October 26, 2006 through March 21, 2007, Dr. Scott discussed appellant’s
complaints of a painful left ankle and listed findings on examination. She diagnosed either a left
ankle sprain or ligament tear and recommended treatment options. Dr. Scott did not address
whether appellant had disability from employment and thus her report is of diminished probative
value. Appellant, consequently has not submitted medical evidence sufficient to establish that
she had any further employment-related disability after September 19, 2006.
CONCLUSION
The Board finds that the Office properly modified its determination of appellant’s loss of
wage-earning capacity to zero effective September 19, 2006 and properly terminated
authorization for medical treatment based on its finding that appellant had no further residuals
due to her January 20, 1993 employment injury. The Board further finds that appellant has not
established that she had continuing employment-related disability after September 19, 2006.
12

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

Leslie C. Moore, 52 ECAB 132 (2000).

14

Ernest St. Pierre, 51 ECAB 623 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 9, 2007 and September 18, 2006 are affirmed.
Issued: December 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Woodland Hills, CA, Employer
__________________________________________

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

Docket No. 15-1836
Issued: November 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 21, 2015 appellant filed a timely appeal from a July 2, 2015 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 more than seven percent permanent impairment to his
left leg.
FACTUAL HISTORY
On January 28, 2013 appellant, then a 61-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained injuries in the performance of duty on
January 18, 2013. On the claim form he described the incident as falling after stepping out of his
1

5 U.S.C. § 8101 et seq.

truck, injuring his knees, neck, shoulder, and head. OWCP accepted the claim for a left knee
strain, left lateral collateral ligament sprain, and temporary aggravation of left knee
osteoarthritis. The record indicates that appellant received wage-loss compensation through
July 31, 2013.
According to the evidence of record, the current OWCP case file represents a master file
with five prior claims as subsidiary case files. A statement of accepted facts (SOAF) dated
February 6, 2014 indicates that none of the subsidiary claims were accepted for a left leg injury.
The prior claims involved the shoulders, the right knee, and the back.2 With respect to the back,
appellant had filed a July 17, 2012 claim for injury that was accepted for temporary aggravation
of displacement of lumbar intervertebral disc without myelopathy.
OWCP referred appellant for a second opinion examination by Dr. Richard Rogachefsky,
a Board-certified orthopedic surgeon, for an opinion as to a permanent impairment of the
shoulders or right leg. In a report dated March 5, 2014, Dr. Rogachefsky opined that appellant
had 21 percent right leg permanent impairment, 11 percent right arm permanent impairment and
6 percent left arm permanent impairment. The right leg permanent impairment was based on a
total right knee replacement. As to permanent impairment to the leg based on a spinal condition,
Dr. Rogachefsky found no impairment as there was no objective evidence of a sensory or motor
deficit.
On October 16, 2014 appellant submitted a letter dated October 13, 2014, asserting that
he had not received a schedule award for his back under the July 17, 2012 claim or for his left
leg under the current January 18, 2013 claim.3 OWCP referred appellant for a second opinion
examination by Dr. Mark Bernhard, an osteopath and a Board-certified physiatrist. Dr. Bernhard
was asked to provide an opinion as to a left leg permanent impairment based on the accepted left
knee and back conditions.
In a report dated November 20, 2014, Dr. Bernhard provided a history and results on
examination. He was asked to address the issue of the accepted left knee osteoarthritis.
Dr. Bernhard noted that there were multiple conditions with respect to the left knee including the
left knee lateral meniscus tear. He noted that in rating impairment per the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) when there is more than one diagnosis, according to Chapter 16, page 499, “the one that
provides the most clinically accurate impairment rating should be used; this will generally be the
more specific diagnosis. Typically, one diagnosis will adequately characterize the impairment
and its impact on ADLs.” Dr. Bernhard determined that appellant was at maximum medical
improvement (MMI) as of August 1, 2013 and that impairment should be calculated using the
knee regional grid for lower extremity impairment, Table 16-3, pages 509-511. He opined that
the proper diagnosis is tricompartmental osteoarthritis with mild cartilage thinning in the
2

OWCP accepted a right shoulder sprain (File No. xxxxxx941), a left acromioclavicular sprain, left rotator cuff
strain, and left shoulder disorder of bursae and tendon (File No. xxxxxx307), permanent aggravation of right knee
osteoarthritis (File No. xxxxxx207), left shoulder disorder of bursae and tendon, left shoulder and upper arm strain,
and left thoracic back strain (File No. xxxxxx548).
3

On June 18, 2014 OWCP issued schedule award decisions with respect to the arms and right leg in OWCP File
Nos. xxxxxx941, xxxxxx307, xxxxxx207, xxxxxx548.

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tibiofemoral compartment, patchy areas of near full-thickness to full-thickness cartilage loss, and
severe patellar trochlear cartilage thinning with large areas of cartilage denudation. Dr. Bernhard
found the diagnostic criteria key factor as a class 1 arthritis primary knee joint arthritis, resulting
in a mid-range seven percent lower extremity impairment. He then relied upon x-rays taken on
January 14, 2015 to find a clinical studies grade modifier of 1 per Table 16-8, but he noted that it
was inapplicable as the x-rays were used already in the diagnosis. Dr. Bernhard found that
functional history adjustment would most accurately be listed under Table 16-6, grade modifier
1, mild problem, with mild deficit, antalgic limp with asymmetric shortened stance corrected
with footwear and orthotics. He calculated lower instrument of 82 would result in a grade
modifier of 1, mild deficit, per Table 16-6. Per Table 16-7, Dr. Bernhard found that physical
examination adjustment would indicate minimal palpatory findings consistently documented
without observed abnormality most accurately resulting in a grade 1 modifier. He concluded that
functional history modifier is 1, plus physical examination modifier 1 minus diagnostic criteria 1
(1 minus 1 equals 0). Therefore, the net adjustment formula results in a 0 with the left lower
extremity impairment being seven percent for the left knee condition.
An OWCP medical adviser submitted a report dated March 19, 2015. He opined that
there was no impairment to the left leg based on the accepted back condition. In a report dated
May 18, 2015, the medical adviser indicated that he concurred with the opinion of Dr. Bernhard
that there was seven percent left leg impairment. He identified Table 16-3 for the diagnosis of
primary knee joint arthritis. As to the date of MMI, the medical adviser opined that this was
November 20, 2014, the date of examination by Dr. Bernhard.
By decision dated July 2, 2015, OWCP issued a schedule award for seven percent
permanent impairment of the left leg. The period of the award was 20.16 weeks from
November 20, 2014.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.801.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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With respect to a knee impairment, the A.M.A., Guides provide a regional grid at Table
16-3 for a diagnosis-based impairment.7 The Class of Diagnosis (CDX) is determined based on
specific diagnosis, and then the default value for the identified CDX is determined. The default
value (grade C) may be adjusted by using grade modifiers for Functional History (GMFH) Table
16-6, Physical Examination (GMPE) Table 16-7 and Clinical Studies (GMCS) Table 16-8. The
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
ANALYSIS
In the present case, OWCP issued a schedule award for seven percent permanent
impairment to the left leg. Appellant was referred to Dr. Bernhard for a second opinion
evaluation. In a report dated November 20, 2014, Dr. Bernhard opined that appellant had a
seven percent left leg impairment under Table 16-3.
Dr. Bernhard identified the diagnosis as primary knee joint arthritis. Under Table 16-3, a
class 1 impairment (mild problem) has a default (grade C) leg impairment of seven percent.9
The adjustment formula noted above is then applied to determine if the grade C impairment
should be adjusted. Dr. Bernhard explained that for functional history under Table 16-6 he
would assign grade modifier 1.10 For physical examination, a grade modifier 1 was also
applied.11 As to clinical studies, Dr. Bernhard indicated that this was used in the primary
placement in the regional grid, and would not be used in the adjustment calculation.12 Applying
the adjustment formula, (1-1) + (1-1) results in no adjustment from the grade C default
impairment.
The Board finds that Dr. Bernhard properly applied the A.M.A., Guides in determining
the degree of permanent impairment based on the left knee. In accord with OWCP procedures,
the medical evidence was reviewed by an OWCP medical adviser for an opinion as to the degree
of permanent impairment under the A.M.A., Guides.13 In a report dated March 19, 2015, the
medical adviser concurred that appellant’s left leg permanent impairment was seven percent.

7

The A.M.A., Guides note that the diagnosis-based impairment id. the primary method of evaluation for the leg.
A.M.A., Guides 497.
8

The net adjustment is up to +2 (grade E) or -2 (grade A).

9

A.M.A., Guides 511, Table 16-3.

10

Id. at 516, Table 16-6 provides that grade modifier 1 is for antalgic gait with asymmetric shortened stance,
corrected with modified footwear.
11

Id. at 517, under Table 16-7, grade modifier 1 for the knee is grade 1 Lachman’s test, and slight laxity of the
patellar mechanism.
12

Id. at 515-16, according to the A.M.A., Guides, when a factor is used to determine the diagnosis in the regional
grid, it is not used again in the impairment calculation. .
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

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The Board notes that in requesting an opinion as to the left leg permanent impairment, the
October 20, 2014 questions from OWCP posed to Dr. Bernhard also noted the accepted back
condition from the July 17, 2012 employment injury. In this regard, Dr. Bernhard found no
evidence of radiculopathy into the leg. There was no evidence of any additional impairment to
the left leg based on a lumbar condition. As to the back itself, it is well established that neither
FECA nor its regulations provide for a schedule award for impairment to the back or to the body
as a whole. Furthermore, the back is specifically excluded from the definition of “organ” under
FECA.14
The probative evidence of record therefore indicates that OWCP properly determined that
appellant has seven percent left leg permanent impairment. Both Dr. Bernhard and the OWCP
medical adviser found seven percent impairment based on the left knee impairment, and no
probative contrary evidence was submitted.
The Board notes that the number of weeks of compensation for a schedule award is
determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the
leg, the maximum number of weeks of compensation is 288 weeks. Since appellant’s impairment
is seven percent, he is entitled to seven percent of 288 weeks, or 20.16 weeks of compensation. It
is well established that the period covered by a schedule award commences on the date that the
employee reaches MMI from residuals of the employment injury.15 In this case, the OWCP
medical adviser properly concluded that the date of MMI was the date of examination by
Dr. Bernhard.
The award therefore properly runs for 20.16 weeks commencing on
November 20, 2014.
On appeal, appellant indicated that he hoped this appeal “includes all cases as I sent
appeals on all” and he refers to Dr. Rogachefsky. The appeal in this case is an appeal of the
July 2, 2015 schedule award decision. The Board’s jurisdiction is limited to final adverse
decisions of OWCP issued within 180 days of the filing of the appeal.16 There are no other
decisions over which the Board may exercise jurisdiction under the current OWCP master file or
any of its subsidiary files. Dr. Rogachefsky did not address a left leg permanent impairment and
the July 2, 2015 decision was not based on his report. Appellant also indicates that he does not
understand why he was found to have no permanent impairment to his back, because his back is
constantly painful. As noted above, under FECA there is no provision for a schedule award to
the back. Based on the probative evidence, OWCP properly found appellant had seven percent
left leg permanent impairment.
Appellant can request an increased schedule award at any time based on the submission
of new medical evidence showing an increased employment-related permanent impairment to a
scheduled member or function of the body.

14

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

15

Albert Valverde, 36 ECAB 233, 237 (1984).

16

20 C.F.R. § 501.3(e).

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CONCLUSION
The Board finds that appellant does not have more than seven percent permanent
impairment to his left leg.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 2, 2015 is affirmed.
Issued: November 24, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 08-834
Issued: November 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 28, 2008 appellant filed a timely appeal of a November 19, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her claim for a recurrence
of total disability and a February 9, 2007 schedule award decision. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the recurrence claim and
schedule award.
ISSUES
The issues are: (1) whether appellant has more than 43 percent impairment to her left
lower extremity for which she received a schedule award; and (2) whether appellant has
established that she sustained a recurrence of total disability commencing July 28, 2007 causally
related to her accepted employment-related injuries.
FACTUAL HISTORY
This case has previously been before the Board. In an October 13, 2006 decision, the
Board set aside the Office’s December 20, 2005 decision that granted appellant a schedule award

for 43 percent impairment to her left leg.1 The award was based on the November 14, 2005
report of the Office medical adviser. The Board noted that Dr. George Rodriguez, a Boardcertified physiatrist, had opined that appellant had a 77 percent permanent impairment to the left
leg while the Office medical adviser’s review of Dr. Rodriguez findings resulted in a 43 percent
left leg impairment based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2 The Board found that the Office medical adviser
agreed with Dr. Rodriguez that appellant’s ankle extension was limited to the neutral position,
resulting in a seven percent left lower extremity impairment.3 The Board found that the Office
medical adviser properly excluded Dr. Rodriguez’s 20 percent impairment due to ankle arthritis
as he did not provide evidence of ankle arthritis and Table 17-2 of the A.M.A., Guides
specifically excluded the combination of range of motion impairment, for which appellant was
accorded a seven percent impairment due to loss of ankle extension, with impairment for
arthritis.4 The Board also determined that Dr. Rodriguez’s opinion that appellant had a one
percent impairment with respect to a sensory deficit resulting from the plantar nerve was not
supported by his examination findings. However, with respect to an impairment rating based on
a vascular impairment, the Board found that the Office medical adviser did not adequately
explain why he assigned a Class 2 impairment representing a 39 percent peripheral vascular
impairment as opposed to Dr. Rodriguez’s classification of a Class 3 impairment representing a
69 percent peripheral vascular impairment. The Board remanded the case to the Office to further
develop the medical evidence as to the extent of appellant’s left lower extremity impairment
under the A.M.A., Guides and to issue an appropriate merit decision on appellant’s schedule
award claim. The facts and the circumstances of the case as set forth in the Board’s prior
decision and order are incorporated herein by reference. The facts relevant to the present appeal
are set forth.
The Office requested that the Office medical adviser explain why a Class 2 lower
extremity impairment due to peripheral vascular disease was assigned. In a November 26, 2006
report, the Office medical adviser noted the descriptions of Class 2 and Class 3 lower extremity
He found that
impairments due to peripheral vascular disease under Table 17-38.5
Dr. Rodriguez’s report, which advised that appellant walked from the parking lot to her place of
employment, was consistent with a Class 2 category. The Office medical adviser further found
there was no evidence to support a Class 3 category or any evidence of amputation of any left
lower extremity digits.

1

Docket No. 06-520 (issued October 13, 2006). The Office accepted the claim for contusion to the elbow and
forearm, tenosynovitis of the left foot and ankle, contusion of the left knee, left sprain and strain of the ankle, and
aggravation of preexisting deep venous thrombosis (DVT) resulting in permanent restrictions and authorized all
appropriate objective testing, including a July 21, 2003 arthroscopic surgery to evaluate the cause of appellant’s
ankle swelling and pain. Appellant returned to her preinjury position on February 14, 2005.
2

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

3

Id. at 537, Table 17-11.

4

Id. at 526, Table 17-2.

5

Id. at 554, Table 17-38.

2

By decision dated February 9, 2007, the Office again found that appellant had a 43
percent permanent impairment to the left lower extremity based on the explanation provided by
the Office medical adviser.
On September 11, 2007 appellant filed a claim for a recurrence of total disability
beginning on July 28, 2007 due to her accepted employment injuries. She stopped work on
July 30, 2007. The employing establishment noted that it provided appellant limited-duty work
due to her accepted work injury. It provided a printer at her workstation to limit her walking and
assigned her work which could be performed while sitting and that entailed limited walking. In
support of her recurrence claim, appellant submitted emergency room records from Franklin
Hospital dated July 29 to August 27, 2007. Venous duplex doppler ultrasound results for the
upper right extremity dated August 7, 2007 and lower left extremity dated August 27, 2007 were
submitted. A July 29, 2007 emergency record stated that appellant was admitted for cellulitis
and abscess of the left leg, except foot. Appellant was previously evaluated on July 26, 2007 for
left leg pain and swelling and was diagnosed with cellulitis. The August 7 and 8, 2007
emergency room records diagnosed deep vein thrombus arm and “hypercoagulable.” The
August 7, 2007 venous duplex doppler study identified a thrombus in the right basilica vein from
the mid humerus to the level of the wrist with suggested progression. The August 26 and 27
emergency room records diagnosed a leg strain. The venous duplex doppler study of the left leg
found no visible thrombus; however, areas of venous wall thickening within the trifurcation with
attenuation and irregularity of the vein were noted.
In an October 5, 2007 letter, the Office informed appellant of the medical evidence
needed to support her claim for a recurrence of disability.
In a November 6, 2007 report, Dr. Edwin L. Merow, an osteopath, advised that appellant
had a recurrence on July 28, 2007, which consisted of cellulitis and an abscess of her left leg. He
noted that appellant was a customer service representative and opined that her duties at work,
which require standing and walking with little elevation of her left leg, attributed to a recurrence
of her work-related injury. Dr. Merow explained that, since the August 15, 2001 work accident,
appellant has experienced significant left leg and ankle pain. He advised that the severity was
chronic and that she had constant flare-ups of blood clots. Dr. Merow stated that appellant had
significant ambulatory dysfunction and that the pitting edema since her August 2001 work
accident and had never improved. He stated that appellant was hospitalized on August 27, 2007
with left leg strain because of the severity of the chronic abnormal swelling. Dr. Merow also
noted that she has been on chronic anticoagulation and developed post phlebitis syndrome of the
left leg. He stated appellant required bed rest and minimal activity and opined her condition
would not improve.
By decision dated November 19, 2007, the Office denied appellant’s recurrence of total
disability claim. It found that the medical evidence did not establish that she sustained a
recurrence of disability commencing on July 28, 2007 causally related to her accepted
employment-related injuries.

3

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulation7 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.8
ANALYSIS -- ISSUE 1
The Office found a 43 percent left lower extremity impairment based on the
November 14, 2005 report of its Office medical adviser.9 The Board, in its October 13, 2006
decision, remanded the case as the Office medical adviser did not adequately explain how he
arrived at a Class 2 classification for an impairment rating based on a vascular impairment when
Dr. Rodriguez had assigned a Class 3 classification.
On remand, the Office medical adviser explained that a Class 2 classification, which
represented a 39 percent peripheral vascular impairment, was consistent with Dr. Rodriguez’s
description that appellant walked from the parking lot to her place of employment. Under
Table 17-38 page 554 of the A.M.A., Guides, a Class 2 description, which yields a 10 to 39
percent impairment due to peripheral vascular disease, states, intermittent claudication on
walking at least 100 yards at an average pace or persistent edema of moderate degree
incompletely controlled by elastic supports or vascular damage as evidenced by a sign such as a
healed painless stump of an amputated digit showing evidence of persistent vascular disease or
healed ulcer. A Class 3 description, which yields a 40 to 69 percent impairment due to
peripheral vascular disease, states: intermittent claudication or walking as few as 25 yards and
no more than 100 yards at an average pace or marked edema that is only partially controlled by
elastic supports or vascular damage as evidenced by a sign such as a healed amputation of two or
more digits of one extremity with evidence of persistent vascular disease or superficial
ulceration.
The Board finds the description by Dr. Rodriguez more accurately fits a Class 2
description. The Office medical adviser noted that there was no other evidence to support a
Class 3 category or any evidence of amputation of any left lower extremity digits. Accordingly,

6

5 U.S.C. § 8107(a)-(c).

7

20 C.F.R. § 10.404.

8

See Mark A. Holloway, 55 ECAB 321 (2004).

9

The Office’s procedures indicate that referral to an Office medical adviser is appropriate when a detailed
description of the impairment from the attending physician is obtained. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).

4

the Board finds that appellant has a 39 percent or a Class 2 lower extremity impairment due to
peripheral vascular disease.
Under the Combined Values Chart, the Board finds that the impairment findings
contained in the Board’s October 13, 2006 decision and the above analysis results in a 43 percent
permanent impairment to the left lower extremity.10 Accordingly, the Board finds that appellant
is entitled to a schedule award for her left lower extremity of 43 percent, for which she received
a schedule award. Thus, the Board will affirm the Office’s February 9, 2007 decision which
reflects that appellant is entitled to a 43 percent lower extremity impairment.
LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.11 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.12
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.13
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.14

10

Impairment due to limitation of ankle extension, 7 percent, combined with 39 percent impairment for peripheral
vascular disease yields 43 percent impairment. See A.M.A., Guides 605.
11

20 C.F.R. § 10.5(x).

12

Id.

13

Barry C. Peterson, 52 ECAB 120 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986).

14

James H. Botts, 50 ECAB 265 (1999).

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ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained contusions to the left elbow and left forearm,
tenosynovitis of the left foot and ankle, contusion of the left knee, left sprain and strain of the
ankle, and aggravation of preexisting DVT in the left lower extremity resulting in permanent
restrictions causally related to factors of her federal employment. Appellant returned to work in
her preinjury position on February 14, 2005 and the employing establishment modified her duties
to limit her walking and allow her to sit. She claimed a recurrence of total disability
commencing on July 28, 2007 causally related to her accepted employment injuries.
In support of her claim, appellant submitted records and objective testing from Franklin
Hospital dated July 29, August 7, 8, 26 and 27, 2008. While various diagnoses were provided,
none of the hospital records or objective testing provided any medical rationale addressing how
or why appellant’s diagnosed conditions were caused or aggravated by the accepted employment
injuries.15 Furthermore, the conditions of cellulitis and DVT of the arm and hypercoagulable
have not been accepted by the Office. The Board finds that such medical records and objective
testing are of diminished probative value as there is no explanation on the issue of causal relation
or disability for work.
In his November 6, 2007 report, Dr. Merow opined that appellant had a recurrence on
July 28, 2007 which consisted of cellulitis and an abscess of her left leg. While he opined that
appellant’s customer service representative duties of standing and walking with little elevation of
the left leg attributed to a recurrence of her work-related injury, he did not present adequate
medical rationale showing how her cellulitis and abscess of the left leg, conditions not accepted
by the Office, were causally related to the August 15, 2001 work injury and her accepted
conditions. Dr. Merow explained that, since the August 15, 2001 work accident, appellant had
experienced significant chronic left leg and ankle pain as well as flare-ups of the blood clots. He
also indicated that appellant has had significant ambulatory dysfunction and the pitting edema
since her August 2001 work accident, which has never improved. However, the August 27, 2007
venous duplex doppler of the left lower extremity reported no visible thrombosis. While
Dr. Merow states appellant was hospitalized on August 27, 2007 with left leg strain because of
the severity of the chronic abnormal swelling and has developed post phlebitis syndrome of the
left leg due to being on anticoagulation medicine, he does not explain how such chronic
abnormal swelling or post phlebitis syndrome were caused or contributed to by her accepted
conditions. Without any explanation or rationale for the conclusion reached, such report is
insufficient to establish causal relationship between appellant’s conditions beginning July 28,
2007 to the accepted August 15, 2001 work injury.
The Board finds that appellant has not submitted sufficiently rationalized medical
evidence establishing that she was totally disabled beginning July 28, 2007 due to her
employment-related conditions. Furthermore, there is no evidence showing that appellant
experienced a change in the nature and extent of the limited-duty requirements or was required to
perform duties which exceeded her medical restrictions.
15

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); J.M., 58 ECAB ___ (Docket No. 062094, issued January 30, 2007) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

6

Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements which would prohibit her from performing the limited-duty position she
assumed after she returned to work.
CONCLUSION
The Board finds that appellant has no greater than a 43 percent left lower extremity
impairment for which she received a schedule award. The Board further finds that appellant has
failed to establish that she sustained a recurrence of total disability beginning on July 28, 2007
causally related to her accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 19 and February 9, 2007 are affirmed.
Issued: November 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
U.S. POSTAL SERVICE, INSPECTION
SERVICE, Washington, DC, Employer
__________________________________________

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Appearances:
John C. Lewis, III, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0915
Issued: August 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 31, 2016 appellant, through counsel, filed a timely appeal from an October 7,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed between August 21, 2014, the date of the most recent merit decision, and
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 appellant’s claim.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its October 7, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On August 29, 2013 appellant, then a 42-year-old inspector, filed a traumatic injury claim
(Form CA-1) alleging that he injured his right shoulder on August 19, 2013 due to a fall while
running as a part of the employing establishment’s approved physical training program. The
employing establishment challenged the claim noting that the claimed injury did not occur in the
performance of duty because appellant was not on duty or participating in an approved physical
training program at the time of the August 19, 2013 incident. An employing establishment
official indicated that appellant initially reported that the injury was not work related and did not
report the injury as work related until 10 days after the fact.
In a statement dated August 30, 2013, a supervisor indicated that appellant called him on
August 19, 2013 and let him know that he was at a park with his son when he fell on his right
shoulder and that he would be out of work for a few days. He noted that appellant advised him
on August 20, 2013 that he would be out of work for a few weeks on sick leave. The supervisor
asserted that appellant did not mention in either conversation that he was injured in the
performance of duty. In a statement dated September 4, 2013, another supervisor indicated that
on August 20, 2013 appellant responded “no” when asked if his August 19, 2013 injury was an
“on-the-job injury.”
By decision dated October 17, 2013, OWCP denied appellant’s claim because he did not
establish that he sustained an injury in the performance of duty on August 19, 2013. It indicated,
“Your agency has provided a statement claiming you were not in [the] performance of duty at the
time of your injury and you have not provided any other evidence that the off-duty physical
activities you were engaged in at the time of your injury were being performed under the
auspices of any agency[-]sponsored fitness program.”
Appellant requested a telephone hearing with an OWCP hearing representative. During
the hearing held on May 14, 2014, he testified that before he left work on August 19, 2013 he
entered on the employing establishment’s electronic eDiary that he would be working out by
running that day. Appellant explained that his son’s team was training for cross country and
holding informal workouts in the park and that he planned on running there with his son. He
indicated that while wrapping up his run he fell and landed on his right shoulder. Appellant
testified that he was allowed up to three hours per week to exercise under the employing
establishment’s physical fitness program and that these were paid hours. He asserted that he did
call his supervisor and report he was injured while running, but the supervisor did not ask him if
the injury was work related.
After the hearing, appellant submitted a copy of the eDiary for August 19, 2013, the
initial hospital treatment record dated August 19, 2013, administrative documents relating to the
physical fitness program, and other medical evidence. In the August 19, 2013 report from the

2

Johnson Memorial Medical Center, an emergency room nurse noted, “[Patient] was running
relays and fell landing on [right] shoulder.” The eDiary entry for August 19, 2013 indicated that
appellant would be participating in physical fitness activity that day.
The employing establishment continued to challenge appellant’s claim and provided a
June 13, 2014 statement from a supervisor reiterating that she asked appellant if his injury was
an “on-the-job injury” and he stated “no.” The supervisor further advised appellant did not tell
her that it occurred while he was running. In a June 16, 2014 statement, another employee noted
that appellant initially told him he fell while at the park with his son and that he did not report he
was running or participating in the employing establishment’s physical fitness program.
In a decision dated August 21, 2014, the OWCP hearing representative affirmed OWCP’s
October 17, 2013 decision. She noted that the evidence in the case record supported that
appellant was enrolled in the employing establishment’s physical fitness program, but that the
evidence did not clearly show that he was participating in this approved physical fitness program
at the time of his claimed August 19, 2013 injury.
In a letter dated August 19, 2015 and received on August 24, 2015, counsel requested
reconsideration of OWCP’s August 21, 2014 decision. He argued that appellant sustained an
injury in the performance of duty on August 19, 2013 because his right shoulder injury occurred
while he was participating in a physical fitness program approved by the employing
establishment. Counsel noted that appellant had testified that he was participating in the
employing establishment’s approved physical fitness program when he was running with his
son’s middle school cross country team at the time of the August 19, 2013 injury. He indicated
that this was supported by the initial August 19, 2013 report from the Johnson Memorial Medical
Center which noted, “Patient was running relays and fell landing on right shoulder.” Counsel
asserted that an eDiary entry for August 19, 2013 indicated that appellant would be participating
in the activity type of physical fitness, and that the physical-fitness type that was checked off was
jogging.
Appellant submitted copies of the initial August 19, 2013 report from the Johnson
Memorial Medical Center and of the eDiary entry for August 19, 2013 which was already of
record. Appellant also submitted an undated statement in which his son indicated that on
August 19, 2013 both he and appellant participated in a run attended by adults and their middle
school aged children. Appellant’s son noted that, as the run was wrapping up, he observed
appellant trip, fall and injure his shoulder.
In an October 7, 2015 decision, OWCP denied appellant’s request for further review of
the merits of his claim because his request was untimely filed and failed to demonstrate clear
evidence of error. It noted that appellant’s request for reconsideration of its August 21, 2014
decision was untimely as it was not received until August 24, 2015, i.e., more than one year after
the issuance of the August 21, 2014 decision. OWCP determined that the argument and
evidence submitted by appellant did not show clear evidence of error in its August 21, 2014
decision which found that he had not established an injury in the performance of duty on
August 19, 2013.

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his own motion or on application.
The Secretary, in accordance with the facts found on review, may end, decrease or increase the
compensation awarded; or award compensation previously refused or discontinued.4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.5 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and
explicit and must be manifest on its face that OWCP committed an error.6
To show 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.7 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.8 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.9 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.10 The Board makes an independent determination as to whether a claimant has
demonstrated clear evidence of error on the part of OWCP.11
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence including that he or she sustained an injury in the performance of duty.12 With regard
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, 50 ECAB 210 (1998).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447, 450 (2008).

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to recreational activities, the Board has held that such activities arise in the course of
employment when: (1) they occur on the premises during a lunch or recreational period as a
regular incident of the employment; or (2) the employer, by expressly or impliedly requiring
participation, or by making the activity part of the service of the employee, brings the activity
within the orbit of employment; or (3) the employer derives substantial direct benefit from the
activity beyond the intangible value of improvement in employee health and morale that is
common to all kinds of recreation and social life.13 OWCP’s procedures address “Employing
Agency Physical Fitness Programs” and provides that “employees enrolled in a physical fitness
program are in the performance of duty for FECA purposes while doing authorized physical
fitness program exercise, including off-duty exercises.”14
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.15 As appellant’s request for
reconsideration was not received by OWCP until August 24, 2015, more than one year after
issuance of its August 21, 2014 merit decision, it was untimely filed. Consequently, he must
demonstrate clear evidence of error by OWCP in its August 21, 2014 decision.
Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its August 21, 2014 decision. In the untimely reconsideration request, counsel argued that
appellant sustained an injury in the performance of duty on August 19, 2013 because his right
shoulder injury occurred while he was participating in a physical fitness program approved by
the employing establishment. He indicated that this was supported by the initial August 19, 2013
report from the Johnson Memorial Medical Center in which it was noted, “Patient was running
relays and fell landing on right shoulder.” Counsel asserted that an eDiary entry for August 19,
2013 indicated that appellant would be participating in the activity type of physical fitness, and
that the physical fitness-type was jogging.16 The Board notes that OWCP has already considered
the same evidence and argument and concluded that they did not establish that appellant
sustained an injury in the performance of duty on August 19, 2013. In denying appellant’s
claim, OWCP had noted various inconsistencies in reporting the claimed August 19, 2013 injury
and found that the evidence did not show that appellant was participating in an approved
physical fitness program at the time of the injury on August 19, 2013. The evidence and
argument submitted by appellant on reconsideration does not address such inconsistencies or

13

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.18 (March 1994).

15

See supra note 4. On appeal, counsel argued that appellant actually filed a timely reconsideration request.
However, he did not explain how the evidence of record supported this argument.
16

Appellant submitted copies of these documents which were already of record.

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otherwise manifest on its face that OWCP committed error when finding that he was not in the
performance of duty on August 19, 2013.17
The Board notes that clear evidence of error is intended to represent a difficult standard
and the evidence and argument submitted by appellant, most of which had been previously
considered, does not reach this standard.18 For these reasons, the evidence submitted by
appellant does not raise a substantial question concerning the correctness of OWCP’s August 21,
2014 decision and OWCP properly determined that appellant did not show clear evidence of
error in that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error.

17

See supra note 5. Appellant also submitted an undated statement in which his son indicated that on August 19,
2013 both he and appellant participated in a run attended by adults and their middle school aged children. However,
it has not been disputed that appellant engaged in physical activity on August 19, 2013. Rather, OWCP found that
appellant has not established participation in an approved physical fitness program on that date.
18

See supra notes 6 through 8.

6

ORDER
IT IS HEREBY ORDERED THAT the October 7, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 2, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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

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

Docket No. 07-1071
Issued: July 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2007 appellant timely appealed the December 7, 2006 merit decision of the
Office of Workers’ Compensation Programs which denied his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
schedule award.
ISSUE
The issue is whether appellant’s left lower extremity impairment is causally related to his
accepted employment injury of August 23, 1998.

FACTUAL HISTORY
Appellant, a 59-year-old former clerk, was injured at work on August 23, 1998 in an
incident involving an approaching forklift. The Office accepted that he sustained a fracture of
the left great toe.1 On January 23, 2004 appellant filed a claim for a schedule award.
In a report dated February 2, 2004, Dr. H. Bruce Hamilton, a Board-certified
neurosurgeon, indicated that appellant had a 20 percent impairment, which was based on a
combination of medical problems, including cervical and lumbar conditions, carpal tunnel
syndrome, peroneal palsy and posterior tibial palsy. The record also includes an August 19,
2002 report from Dr. Richard E. Scott Jr., a Board-certified physiatrist, who diagnosed
cervicalgia, low back pain, bilateral carpal tunnel syndrome, high blood pressure and left
peroneal palsy. Dr. Scott found 20 percent whole person impairment involving the cervical and
lumbar spine and the upper and lower extremities. Only 6 percent of the overall 20 percent
impairment was attributable to lower extremity muscle weakness, which included loss of
strength in dorsiflexion (5 percent whole person) and extension of the great toe (1 percent whole
person). On January 25, 2005 the district medical adviser reviewed the case record and found
that appellant had 14 percent impairment of the left lower extremity due to muscle weakness
involving left ankle dorsiflexion and left great toe extension. He commented that peroneal
neuropathy was not an accepted condition. In a decision dated January 28, 2005, the Office
denied appellant’s claim for a schedule award.
Appellant requested an oral hearing, which was held on June 1, 2006. At the hearing,
appellant submitted a May 31, 2006 report from Dr. Hamilton, who reiterated his earlier finding
of 20 percent impairment due to a combination of conditions involving the cervical and lumbar
spine, peroneal and tibial palsy and carpal tunnel syndrome. The hearing representative affirmed
the previous denial of the schedule award by decision dated August 17, 2006.
On September 7, 2006 appellant requested reconsideration through his congressional
representative’s office. The Office also received a May 24, 2005 report from Dr. Hamilton who
again reiterated his prior finding of 20 percent impairment. Based on the newly submitted
evidence, the Office reviewed the merits of the schedule award claim, but denied modification in
a decision dated December 7, 2006.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
1

Appellant has attempted on numerous occasions to have his August 23, 1998 traumatic injury claim expanded to
include various other conditions, including carpal tunnel syndrome, mental stress, hearing loss, sexual dysfunction,
cervical and lumbar disc disease and radiculopathy, bilateral leg condition with peripheral neuropathy and left foot
drop with peripheral neuropathy. Currently, the claim is accepted only for left great toe fracture occurring on
August 23, 1998. Appellant has filed six prior appeals with the Board, resulting in three separate decisions. Docket
Nos. 99-1892, 99-2382, 00-120 (July 16, 2001); Docket No. 02-1976 (January 23, 2003); Docket Nos. 01-1372,
01-1607 (February 6, 2003). A detailed procedural history of the claim is set forth in the Board’s prior decisions
which are incorporated herein.

2

and organs of the body.2 The Act, 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 American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4
ANALYSIS
The Office medical adviser calculated a 14 percent left lower extremity impairment due
to muscle weakness involving the left ankle and left great toe. This impairment, however, was
attributed to left peroneal palsy; a condition which had not been accepted by the Office as arising
from the August 23, 1998 employment injury. Appellant must demonstrate more than just the
mere existence of a permanent impairment. The impairment must be causally related to the
August 23, 1998 employment injury.5 The ratings provided by Dr. Hamilton and Dr. Scott do
not demonstrate a left lower extremity permanent impairment attributable to the August 23, 1998
employment injury, which was accepted for a fractured left great toe. The Board finds that the
Office properly denied appellant’s claim for a schedule award.6
CONCLUSION
Appellant has not demonstrated that he has a left lower extremity permanent impairment
attributable to his accepted employment injury.

2

For a total loss of use, of a leg, an employee shall receive 288 weeks’ compensation.
§ 8107(c)(2) (2000).
3

20 C.F.R. § 10.404 (2006).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

Edward W. Spohr, 54 ECAB 806, 810 (2003).

6

5 U.S.C.

On appeal, appellant requested that his claim be expanded. However, the Board’s jurisdiction is limited to
review of the December 7, 2006 decision. The Board cannot expand appellant’s claim.

3

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 3, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


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

)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0444
Issued: November 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 2, 2021 appellant, through counsel, filed a timely appeal from an August 6,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from the last merit decision dated June 17, 2019 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 24, 2019 appellant, then a 44-year-old forklift operator, filed an occupational
disease claim (Form CA-2) alleging that she developed neck and back pain; and bilateral arm,
shoulder, hand, leg, and foot numbness, tingling and spasms due to her repetitive work duties
including moving, unloading, and emptying equipment, and transporting mail.3 She noted that she
first became aware that her conditions were related to her employment duties on March 5, 2019.
Appellant stopped work on March 6, 2019.
A January 15, 2019 magnetic resonance imaging (MRI) scan of appellant’s left shoulder
revealed moderate acromioclavicular joint osteoarthritis, similar to prior, and small low-grade
partial thickness articular surface subscapularis tendon tear. A lumbar MRI scan of even date
revealed L3-4, L4-5, and L5-S1 mild degenerative changes without significant stenosis.
In a February 13, 2019 report, Dr. Robert C. Nucci, a Board-certified orthopedic surgeon,
noted that appellant was seen for cervical, lumbar and left shoulder and arm pain. Appellant stated
that she had a history of three work injuries, but that all of her cases were closed on
March 18, 2015. Physical examination findings included positive left shoulder impingement.
Dr. Nucci diagnosed cervicalgia, cervical ligaments sprain, other specified cervical and lumbar
dorsopathies, left shoulder pain, left shoulder impingement syndrome, low back pain, sciatica
lumbar ligaments sprain, and lumbosacral intervertebral disc displacement. In duty status report
(Form CA-17) of even date, he diagnosed cervical, lumbar, and shoulder strains and related that
appellant could resume work with restrictions.
A February 21, 2019 cervical MRI scan revealed C3-4 and C4-5 disc herniations, C5-6
disc bulge, and C6-7 anterior disc bulge.
In a March 6, 2019 report, Dr. Dario A. Grisales, a physician specializing in anesthesiology
and pain medicine, reported that appellant was seen for complaints of neck, shoulder, and low back
pain, which she had experienced for over 10 years. Physical examination findings were detailed.
Dr. Grisales diagnosed chronic pain syndrome; low back pain; lumbosacral spondylosis, without
myelopathy or radiculopathy; sacral and sacrococcygeal region spondylosis without myelopathy
or radiculopathy; sacroiliitis; lumbosacral intervertebral disc disorders, with radiculopathy; lumbar
region intervertebral disc disorders, with radiculopathy; cervicalgia; C4-5 cervical disc disorder
with radiculopathy; left shoulder pain; left upper arm and shoulder muscles, fascia, and tendons
strain; left shoulder bursitis; and left shoulder muscle contracture.
In a development letter dated May 13, 2019, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised her of the type of factual and medical
3

Appellant noted that she had previously sustained permanent injuries to her neck, back, left shoulder, and right
leg in OWCP File Nos. xxxxxx098, xxxxxx723 and xxxxxx258.

2

evidence required to establish her claim. Appellant was afforded 30 days to submit the necessary
evidence.
In response, appellant submitted an April 14, 2015 report and Form CA-17 duty status
reports dated March 7 and September 12, 2018, from Dr. Richard M. Blecha, a Board-certified
orthopedic surgeon. In the April 14, 2015 report, Dr. Blecha noted a February 9, 2009 injury date
and that appellant had accepted conditions of cervical and lumbar sprain. He also noted that she
had returned to modified work for five hours per day for the first time in four years. Dr. Blecha,
in the March 7, 2018 Form CA-17, diagnosed cervical/lumbar degenerative disc disease and
advised that appellant could return to modified work on March 7, 2018. In the September 12, 2018
Form CA-17, he diagnosed cervical and left shoulder strain and released appellant to return to
modified work on September 16, 2018.
Dr. Nucci, in progress notes dated May 2, 2019, noted appellant’s history of injury and
medical treatment.
In a May 7, 2019 report, Dr. Grisales diagnosed low back pain; lumbosacral, sacral, and
sacroccygeal spondylosis, without myelopathy or radiculopathy; sacroiliitis; and lumbosacral and
lumbar intervertebral disc disorders, with radiculopathy.
Dr. Nucci, in a May 7, 2019 report, provided examination findings, reviewed diagnostic
test, and noted that appellant was seen for complaints of low back, neck, and left shoulder pain.
Diagnoses included cervicalgia, cervical ligaments sprain, other specified cervical and lumbar
dorsopathies, left shoulder pain, left shoulder impingement syndrome, low back pain, sciatica
lumbar ligaments sprain, and lumbosacral intervertebral disc displacement.
By decision dated June 17, 2019, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that the diagnosed medical condition s were
causally related to the identified employment factors.
On June 17, 2020 appellant, through counsel, requested reconsideration. Counsel outlined
appellant’s history of injury, explaining that appellant had sustained employment injuries in 2009
and 2011 and thereafter remained out of work until her compensation benefits were terminated on
March 24, 2015. He noted that appellant returned to modified work; however, in 2017 she was
placed in a forklift operator position, which caused further injury. Counsel also alleged that OWCP
had erroneously found that the medical evidence of record did not provide a diagnosis.
In support of her request for reconsideration appellant also submitted an affidavit dated
June 17, 2020. In this affidavit she related her employment history prior to March 9, 2017.
Appellant described her duties as a forklift operator after March 9, 2017 and the alleged strain that
was placed on her neck, shoulders, arms and back due to jerking motions of the forklift.
In reports dated March 11 and April 29, 2020, Dr. Grisales diagnosed chronic pain
syndrome; low back pain; lumbosacral spondylosis, without myelopathy or radiculopathy; sacral
and sacrococcygeal region spondylosis, without myelopathy or radiculopathy; sacroiliitis;
lumbosacral intervertebral disc disorders with radiculopathy ; lumbar region intervertebral disc
disorders with radiculopathy; cervicalgia C4-5 cervical disc disorder with radiculopathy; left
shoulder pain; left upper arm and shoulder muscles, fascia, and tendons strain ; left shoulder
3

bursitis; overweight; and left shoulder muscle contracture. He reported an onset history of back
pain and cervicalgia on March 6, 2019. Appellant was seen for pain complaints in person at the
clinic on March 11, 2020 and via a telephone conference on zoom on April 29, 2020. Physical
examination findings and treatment recommendations were unchanged from prior reports.
By decision dated August 6, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
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. 4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.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 it 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 OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

4

5 U.S.C. § 8128(a); see J.R., Docket No. 20-0887 (issued May 26, 2021); L.D., Docket No. 18-1468 (issued
February 11, 2019); 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).
5

20 C.F.R. § 10.606(b)(3); see J.R., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N.,
Docket No. 08-1569 (issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4(b).
7

Id. at § 10.608(a); see also J.R., supra note 4; M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); J.R., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

4

In the June 17, 2020 request for reconsideration, counsel argued that OWCP erred in
denying her claim on the basis that no medical condition had been diagnosed. Contrary to
counsel’s assertion, OWCP found that a medical condition had been diagnosed, but denied the
claim as the record contains no medical opinion on causal relationship. The argument presented
by counsel is therefore irrelevant to the underlying issue of whether appellant established that the
diagnosed conditions were causally related to the accepted employment factors. 9 Appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, or advance a new
and relevant legal argument not previously considered by OWCP. Consequently, she was not
entitled to a review of the merits based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3). 10
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request under 20 C.F.R. § 10.606(b)(3). OWCP denied her claim
because the medical evidence of record did not contain a rationalized opinion finding that her
diagnosed conditions were causally related to the accepted employment factors. In support of her
reconsideration request, appellant submitted new reports dated March 11 and April 29, 2020 from
Dr. Grisales who diagnosed chronic pain syndrome; low back pain; lumbosacral spondylosis,
without myelopathy or radiculopathy; sacral and sacrococcygeal region spondylosis, without
myelopathy or radiculopathy; sacroiliitis; lumbosacral intervertebral disc disorders with
radiculopathy; lumbar region intervertebral disc disorders with radiculopathy; cervicalgia, C4-5
cervical disc disorder with radiculopathy; left shoulder pain; left upper arm and shoulder muscles,
fascia, and tendons strain; left shoulder bursitis; overweight; and left shoulder muscle contracture.
Dr. Grisales did not, however, provide a medical opinion as to whether appellant’s diagnosed
conditions were causally related to the accepted employment factors. The underlying issue in this
case is causal relationship. 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. 11
These additional medical reports, while new, were therefore not relevant and pertinent to the
underlying issue.
In support of appellant’s request for reconsideration appellant submitted an affidavit in
which she described why she believed her current conditions were causally related to factors of
her employment as a forklift operator. As previously noted, the underlying issue on appeal was
whether appellant’s diagnosed medical conditions were causally related to factors of her federal
employment. This is a medical issue which must be determined by rationalized medical
evidence.12 The lay opinion of appellant expressed regarding causal relationship does not
constitute rationalized medical evidence. 13 As appellant did not provide relevant and pertinent

9

D.C., Docket No. 19-0354 (issued May 27, 2020)

10

Supra note 4.

11

R.G., Docket No. 19-1889 (issued April 14, 2021); Y.L., Docket No. 20-1025 (issued November 25, 2020); E.W.,
Docket No. 19-1393 (issued January 29, 2020); R.R., Docket No. 18-1562 (issued February 22, 2019).
12

E.D., Docket No. 18-0138 (issued May 14, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

E.H., Docket No. 19-0365 (issued March 17, 2021).

5

evidence, she is not entitled to a merit review based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 14
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15
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 August 6, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.16
Issued: November 5, 2021
Washington, DC

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

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

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

14

Supra note 4.

15

R.G., supra note 11; D.G., Docket No. 19-1348 (issued December 2, 2019).

16

Upon return of the case record, OWCP should consider combining the current file with the master File No.
xxxxxx098.

6