United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RICHARD L. ROUDEBUSH MEDICAL
CENTER, Indianapolis, IN, Employer
__________________________________________

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

Docket No. 19-1795
Issued: March 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On August 27, 2019 appellant, through counsel, filed a timely appeal from a May 10, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

The Board notes that counsel did not appeal from OWCP’s merit decision dated March 12, 2019, which denied
appellant’s claim for a schedule award. Counsel identified only the nonmerit decision dated May 10, 2019 on the
application for review (Form AB-1). Therefore, the Board will not consider the March 12, 2019 merit decision on
appeal. See 20 C.F.R. § 501.3; see also L.J., Docket No. 19-0211 (issued July 10, 2019).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.4
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 March 16, 2018 appellant, then a 58-year-old housekeeping aide, filed a traumatic
injury claim (Form CA-1) alleging that on February 19, 2016 he sustained an injury when
hazardous material flew in his eyes while in the performance of duty. He indicated that “hazardous
material” flew in his eyes and sinus after pushing the button to crush trash he had dumped in the
compactor. Appellant last worked since October 28, 2016.5 OWCP accepted his claim for left eye
acute toxic conjunctivitis.
On June 18, 2018 appellant filed a claim for a schedule award (Form CA-7).
In an April 27, 2018 progress note, Dr. Amy M. Waddell, an ophthalmologist, noted that
appellant complained of acute vision loss in 2016. She recommended that appellant follow up
with a glaucoma clinic because of his high risk for blindness in the left eye due to severe-stage
glaucoma. The report also included an optic nerve head (ONH) and retinal nerve fiber layer
(RNFL) analysis test dated April 27, 2018, which showed severe optic nerve damage in the left
eye.
By letter dated June 25, 2018, OWCP requested that appellant provide 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).6 It afforded him 30 days to submit the
requested information.
By decision dated August 28, 2018, OWCP denied appellant’s claim for a schedule award,
finding that he had not submitted sufficient evidence to establish permanent impairment of a
scheduled member causally related to his accepted employment injury.
On September 17, 2018 appellant requested reconsideration and submitted a September 11,
2018 letter from Dr. Yara Catoira-Boyle, an ophthalmologist. Dr. Catoira-Boyle discussed the
3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the May 10, 2019 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.
5

The record reflects that appellant had resigned from federal employment, effective October 28, 2016.

6

A.M.A., Guides (6th ed. 2009).

2

history of the February 19, 2016 injury and the medical treatment that appellant had received.
Dr. Catoira-Boyle opined that appellant’s toxic conjunctivitis was stable and at the point of
maximum medical improvement (MMI). She reported that appellant’s current diagnosis was
severe open angle glaucoma of the left eye and explained that it was possibly secondary to a toxic
inflammatory trabeculitis. Dr. Catoira-Boyle indicated that appellant had a total visual impairment
of 24 percent permanent impairment.
OWCP also received eye clinic notes dated March 1 to August 9, 2016, which described
appellant’s complaints of blurred vision and other visual changes in his left eye. The progress
notes provided physical examination findings and visual acuity analysis of both eyes. Appellant
was diagnosed with toxic conjunctivitis and glaucoma.
On October 31, 2018 OWCP referred appellant’s claim, along with a statement of accepted
facts (SOAF) and the case record, to Dr. Eric Singham, an OWCP district medical adviser (DMA),
for review as to whether appellant sustained permanent impairment as a result of his accepted left
eye injury. In a November 5, 2018 report, Dr. Singham reviewed appellant’s medical records,
including Dr. Catoira-Boyle’s September 11, 2018 impairment rating report. He indicated that he
was not sure if appellant’s “toxic inflammatory trabeculitis” was the cause of appellant’s vision
loss. Dr. Singham opined that, based on appellant’s examination findings, he had long-standing
glaucoma, asymmetrically worse in the left eye. He referenced the A.M.A., Guides and calculated
that appellant had visual system impairment rating of 34.72 percent permanent impairment.
Dr. Singham noted that appellant had reached MMI on March 17, 2016.
In a February 2, 2019 addendum report, Dr. Singham clarified that the permanent
impairment rating he provided for appellant’s left eye was for his overall condition, not strictly
due to the accepted condition of acute toxic conjunctivitis. He also indicated that appellant had no
permanent impairment due solely to the accepted diagnosis of acute toxic conjunctivitis of the left
eye.
By decision dated March 12, 2019, OWCP again denied appellant’s schedule award claim
based on the November 5, 2018 and February 2, 2019 DMA reports of Dr. Singham.
On April 12, 2019 appellant requested reconsideration. In an April 1, 2019 letter, he
indicated that he was submitting documentation for OWCP to reconsider his case. Appellant noted
that he had previously submitted medical reports from the employing establishment’s hospital and
the eye clinic. He indicated that he was submitting documents to address OWCP’s determination
that appellant had a preexisting eye condition. Appellant related that he was providing documents
from the state Department of Transportation (DOT), which showed that he had a valid driver’s
license and medical certificate (with no restrictions) at the time of the injury. He pointed out that
since his medical certificate expired on September 25, 2016, his license had been downgraded to
a public passenger chauffer license because he had not passed a medical examination.
Appellant submitted a certification of appellant’s state driver’s record dated March 27,
2019 and his official driver’s record.

3

By decision dated May 10, 2019, OWCP denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a) finding that appellant’s reconsideration request neither raised
substantive legal questions nor included new and relevant evidence.
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.7
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.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.10 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.11
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).
In his April 12, 2019 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a new and relevant
legal argument not previously considered. In his statement, he asserted that he had provided
medical reports which demonstrated that he had received medical treatment for eye pressure,
7

5 U.S.C. § 8128(a); see 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).
8
20 C.F.R. § 10.606(b)(3); see 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).
9

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). Chapter 2.1602.4b.
10

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

11

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

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trauma, and circulation. Appellant also related that he was submitting documents from the state
DOT, which addressed the issue of whether he had a preexisting eye condition. His statement,
however, does not show a legal error by OWCP, nor does it provide a new and relevant legal
argument. Consequently, appellant 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).12
The underlying issue on reconsideration is the medical question of whether appellant
sustained a permanent impairment of a scheduled member causally related to his accepted
February 19, 2016 employment injury. That is a medical issue which must be addressed by
relevant medical evidence not previously considered.13 Along with his reconsideration request,
appellant submitted his state driver record and a certification of his driver record dated
March 27, 2019. While this evidence is new, it does not address the underlying medical issue of
whether he sustained a permanent impairment due to his accepted employment injury.14 As the
underlying issue in this case was a medical issue, it must be addressed by relevant new medical
evidence.15 Accordingly, appellant was not entitled to a review of the merits based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).
On appeal counsel asserted that OWCP failed to apply the proper standard of causation and
failed to give due deference to the findings of the attending physician. As explained above,
however, the Board lacks jurisdiction to review the merits of the claim. The only decision properly
before the Board on this appeal is the May 10, 2019 nonmerit decision for which appeal was
sought.16
As appellant’s request for reconsideration did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied his
request for reconsideration without reopening the case for review on the merits.17
CONCLUSION
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).

12

20 C.F.R. § 10.606(b)(3)(i), (ii); T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583
(issued December 9, 2008).
13

L.W., Docket No. 19-1367 (issued December 19, 2019); A.M., Docket No. 18-1033 (issued January 8, 2019);
Bobbie F. Cowart, 55 ECAB 746 (2004).
14

See T.V., Docket No. 19-1504 (issued January 23, 2020).

15

S.A., Docket No. 18-1481 (issued April 2, 2019); Bobbie F. Cowart, 55 ECAB 746 (2004).

16

Appellant may request a schedule award at any time based on evidence of a new exposure or medical evidence
showing progression of an employment-related condition resulting in permanent impairment.
17
D.C., Docket No. 19-0873 (issued January 27, 2020); R.C., Docket No. 17-0595 (issued September 7, 2017);
M.E., 58 ECAB 694 (2007).

5

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 13, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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Appearances:
Shelley K. Coe, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0033
Issued: May 23, 2018

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 October 4, 2017 appellant, through counsel, filed a timely appeal from an April 19,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision, dated January 21, 2016, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of the claim.

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
This case has previously been before the Board.3 The facts and circumstances of the case
as presented in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On December 19, 2007 appellant, then a 42-year-old computer operator, filed an
occupational disease claim (Form CA-2) alleging that she sustained lumbar muscle strain and
spasms when she bent down on October 12, 2007 to pick up mail and felt a pull as she stood up.
She stopped work on December 4, 2007.
In a report dated February 14, 2008, Dr. Tek Mun Soo, an attending Board-certified
neurosurgeon, found limited lumbar flexion. He opined that a magnetic resonance imaging (MRI)
scan demonstrated degenerative disc disease at L4-5 and L5-S1 with endplate changes, and an L45 disc herniation. Dr. Soo obtained x-rays which demonstrated reduced disc spacing at L4-5 and
L5-S1. He diagnosed discogenic back pain due to a herniated L4-5 disc and degenerative disc
disease.
Appellant retired from federal employment effective July 14, 2009. Her claim for
disability retirement benefits was approved by the Office of Personnel Management (OPM).
Appellant continued medical treatment.
In a report dated April 29, 2010, Dr. John H. Traylor III, an attending physician Boardcertified in anesthesiology and pain medicine, referred appellant for a series of epidural steroid
injections. He provided periodic reports which noted chronic lumbar pain with right-sided
radiculopathy, ameliorated by epidural steroid injections.
By decision dated July 7, 2010, OWCP accepted the claim for sciatica, lumbar
radiculopathy, and displacement of a lumbar intervertebral disc. It paid appellant compensation
for intermittent wage loss for the periods December 3 and 4, 2007, March 14 to April 1, 2008, and
April 14 to 21, 2008.
On December 15, 2010 OWCP obtained a second opinion report as to the nature and extent
of appellant’s condition from Dr. Michael E. Kosinski, a Board-certified orthopedic surgeon.
Dr. Kosinski asserted that he could not ascertain whether she had residuals of the accepted sciatica
and lumbar conditions, but that her imaging studies were inconsistent with her symptoms of rightsided radiculopathy.
On February 18, 2011 OWCP obtained an updated second opinion report from
Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, who opined that the accepted
3

Docket No. 09-0336 (issued July 13, 2009).

2

conditions had resolved without residuals and that appellant could perform the light-duty position
she had begun on April 2, 2008.
In an April 7, 2011 report, Dr. Traylor found continued lumbar pain with right-sided
radiculopathy.
OWCP found a conflict of medical opinion between Dr. Obianwu, for the government, and
appellant’s treating physicians regarding the nature and extent of appellant’s injury-related
condition. To resolve the conflict, it selected Dr. Mitchell Z. Pollak, a Board-certified orthopedic
surgeon. Dr. Pollak provided an August 26, 2011 report in which he reviewed the medical record
and a statement of accepted facts (SOAF) and provided his clinical findings on examination. He
opined that the accepted sciatica, lumbar radiculopathy, and displaced lumbar intervertebral disc
had resolved without residuals. Dr. Pollak found appellant able to perform the light-duty position
she had begun on April 2, 2008.
By notice dated April 27, 2012, OWCP notified appellant that it proposed to terminate her
wage-loss compensation and medical benefits, based on Dr. Pollak’s opinion that the accepted
conditions had ceased without residuals. It afforded her 30 days to submit additional evidence or
argument.
Counsel responded by May 26, 2012 letter, in which she contended that appellant remained
disabled from work due to residuals of the accepted conditions. She argued that Dr. Pollak’s
opinion supported the presence of injury-related residuals, and that it was insufficiently
rationalized to represent the weight of the medical evidence in the claim. Counsel also asserted
that the SOAF provided to Dr. Pollak and Dr. Obianwu was erroneous as it characterized
appellant’s retirement as voluntary, whereas the employing establishment forced appellant from
her modified position. She also argued that there was not a true conflict of opinion between
Dr. Soo and Dr. Obianwu, as Dr. Soo’s professional experience as a hospital chief of neurosurgery
and a clinical professor outweighed that of Dr. Obianwu.
Appellant submitted periodic reports from Dr. Traylor dated from May 10, 2012 through
September 17, 2014. She underwent a series of lumbar epidural steroid injections through
March 13, 2015.
By decision dated April 1, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day, based on Dr. Pollak’s opinion as the special weight of the
medical evidence afforded an impartial medical specialist.
Appellant, through counsel, requested an oral hearing on the April 1, 2015 decision before
an OWCP hearing representative, held November 10, 2015. At the hearing, counsel contended
that the April 1, 2015 termination was based on stale medical evidence as Dr. Pollak examined
appellant more than three years previously on August 26, 2011. She also argued that there was no
conflict of medical opinion between Dr. Traylor and Dr. Obianwu. Appellant testified that the
employing establishment did not want her to continue working in the sedentary position, removed
her ergonomic chair so she would have to stand while working, and attempted to find her another
job. She explained that she instead decided to apply for disability retirement benefits through
OPM.

3

Following the hearing, counsel submitted a December 9, 2015 memorandum in which she
contended that medical evidence after Dr. Pollak’s examination supported that appellant continued
to be symptomatic. Additionally, OWCP issued an impairment rating after the termination based
on evidence from 2014 and 2015 which demonstrated objective disability. Counsel also asserted
that the SOAF provided to Dr. Obianwu and Dr. Pollak erred in noting that appellant retired
voluntarily whereas the employing establishment changed appellant’s light-duty job to force her
into retirement.
By decision dated January 21, 2016, OWCP’s hearing representative affirmed OWCP’s
April 1, 2015 decision. The hearing representative found that OWCP properly accorded
Dr. Pollak’s well-reasoned report the special weight of the medical evidence. The hearing
representative further found that the SOAF provided to Dr. Obianwu and Dr. Pollak was complete
and accurate.
On January 20, 2017 counsel requested reconsideration. She asserted that OWCP
predicated the termination of appellant’s wage-loss compensation and medical benefits on stale
medical evidence, that there was no conflict of medical opinion between Dr. Traylor and
Dr. Obianwu, and that the employing establishment forced appellant into disability retirement.
Appellant submitted additional evidence.
Dr. Alexander Aljouni, Board-certified in anesthesiology and pain medicine, referred
appellant for physical therapy treatments on November 6, 2015. Appellant participated in physical
therapy on November 4 and 21, 2016. In reports dated February 5 and March 11, 2016,
Dr. Aljouni found continued lumbar radiculopathy.
Appellant also provided procedure notes for lumbar epidural injections administered on
January 4, June 10, and October 6, 2016.
In a report dated February 11, 2016, Dr. Soo noted that he had not treated appellant
between 2008 and 2012. He opined that there was a “reasonable probability that [appellant’s] back
and right posterior leg pain were a result of her work-related injury” as the L4-5 disc herniation
demonstrated by the initial MRI scan study in January 2008 was “suspicious for an acute injury,
consistent with the temporal history of her work injury. Any existing degeneration at L4-5 and
L5-S1 might have remained silent had the work incident not occurred.”
By decision dated April 19, 2017, OWCP denied reconsideration, finding that appellant
did not submit new and relevant evidence, or legal argument sufficient to warrant reopening the
merits of her claim. It found that counsel’s arguments were repetitive of her prior statements,
considered by OWCP in its April 1, 2015 and January 21, 2016 decisions. OWCP further found
that the reports of Dr. Aljouni and Dr. Soo were cumulative and repetitive of their prior opinions.
It also found that the pain management procedure notes were irrelevant as they did not address the
critical issue of whether the accepted lumbar conditions continued to disable appellant from work
or require additional treatment on and after April 1, 2015.

4

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant’s application for review must be
received within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.7
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.8 He or she needs only
to submit relevant, pertinent evidence not previously considered by OWCP.9 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether OWCP
properly applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim.
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant did not advance a relevant legal argument not
previously considered.
On reconsideration counsel argued that OWCP predicated the termination of appellant’s
compensation benefits on stale evidence, that there was no conflict in medical evidence when
appellant was referred to Dr. Pollak for an impartial medical evaluation, and that she had not retired
voluntarily. Counsel’s January 20, 2017 arguments on reconsideration are repetitive of those in
her May 26, 2012 letter contesting the proposed termination, and at the November 10, 2015 oral
hearing. The Board has held that submission of argument which repeats or duplicates that already
5 U.S.C. § 8128 (a). Under section 8128 of FECA, “[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.”
4

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Helen E. Tschantz, 39 ECAB 1382 (1988).

9

See Mark H. Dever, 53 ECAB 710 (2002).

10

Annette Louise, 54 ECAB 783 (2003).

5

in the case record does not constitute a basis for reopening a case.11 As appellant did not allege
that OWCP erroneously applied or interpreted a specific point of law or advance a legal argument
not previously considered by OWCP, she is not entitled to a review of the merits of her claim based
on the first and second requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered in support of her January 20, 2017 request for reconsideration.
Dr. Soo’s February 11, 2016 report reiterated the diagnoses and general support for causal
relationship presented in his earlier February 14, 2008 report which OWCP reviewed in prior merit
decisions. Similarly, Dr. Aljouni’s February 5 and March 11, 2016 reports which noted continuing
lumbar radiculopathy are repetitive of his earlier opinion from March 31, 2010 onward. Evidence
that repeats or duplicates evidence already in the case record has no evidentiary value and does
not constitute a basis for reopening a case under section 10.606(b)(3).12
Treatment notes relative to the lumbar injection procedure do not address the critical issue
of whether appellant had continuing residuals of the accepted lumbar conditions on and after
April 1, 2015. As such, these documents are irrelevant to the claim and do not comprise a basis
for reopening the case on its merits.13
As appellant’s application for review did not meet any of the three requirements
enumerated under 10.606(b)(3), the Board finds that OWCP properly denied the request for
reconsideration without reopening the case for a review on the merits.14
On appeal counsel asserts that there was an unresolved conflict of medical evidence at the
time of the termination, that the termination was based on stale medical evidence, that OWCP
failed to adjudicate all relevant issues in the claim, and impermissibly shifted the burden of proof
to appellant. The Board notes that these arguments pertain to the merits of the claim, which are
not before the Board on the present appeal.
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).

11

See I.B., Docket No. 12-1055 (issued November 21, 2012).

12

R.C., Docket No. 17-0595 (issued September 7, 2017); C.H., Docket No. 17-0074 (issued March 17, 2017);
James W. Scott, 55 ECAB 606 (2004).
13

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

14

R.C., supra note 12; M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

6

ORDER
IT IS HEREBY ORDERED THAT the April 19, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 23, 2018
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Denver, CO, Employer
__________________________________________

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Appearances:
Timothy Quinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1100
Issued: December 18, 2012

Case Submitted on the Record

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

JURISDICTION
On April 23, 2012 appellant, through his attorney, filed a timely appeal of a
November 16, 2011 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.
ISSUE
The issue is whether appellant sustained a consequential right knee injury as a result of
his accepted left knee condition.
On appeal, counsel argued that the impartial medical examiner was disqualified by his
bias due to constant use as a second opinion physician by OWCP. He further argued that the
statement of accepted facts was flawed due to the inclusion of the second opinion physician’s
report and that the medical examiner’s opinion was conditional and based on a misunderstanding
of appellant’s medical history.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On July 19, 1991 appellant, then a
32-year-old clerk, working light-duty due to a nonemployment-related right knee condition, filed
a traumatic injury claim alleging on that date he turned a corner while carrying a parcel and his
left knee popped. OWCP accepted his claim for torn meniscus in the left knee and left knee
strain noting a preexisting right knee condition. Appellant received a schedule award for five
percent impairment of his left leg in 1995. OWCP terminated his compensation benefits by
decision dated September 25, 1995 on the grounds that he refused suitable work. Appellant
appealed this decision to the Board. By decision dated August 12, 1999, the Board reversed the
September 25, 1995 decision.2
On March 21, 2001 appellant filed a recurrence of disability claim alleging that both knee
conditions had worsened and that he was considering a disability retirement. OWCP accepted
that he had sustained a recurrence of disability on January 25, 2001. It granted appellant a
schedule award for 26 percent impairment of his left leg on July 9, 2002 less than 5 percent
previously issued.
Appellant underwent a right knee total arthroplasty on May 5, 2004. In a decision dated
December 17, 2004, the Branch of Hearings and Review remanded the case to OWCP to pay
compensation benefits beginning January 25, 2001. It was also directed to adjudicate the claim
for a consequential emotional condition and a consequential aggravation of the preexisting right
knee condition.
Appellant’s physicians from the Department of Veterans Affairs supported a causal
relationship between his right knee replacement and accepted left knee condition. The second
opinion physicians selected by OWCP found that there was no causal relationship between
appellant’s right knee replacement and his accepted left knee injury. Due to the opposing
opinions, OWCP found a conflict of medical opinion requiring referral to an impartial medical
examiner. In a decision dated August 27, 2009, it found that the weight of the medical evidence
represented by an impartial medical examiner’s report established that appellant did not have a
consequential right knee injury. Appellant requested review by the Board. By decision dated
December 6, 2010,3 the Board found that the impartial medical specialist was improperly
selected and there remained an unresolved conflict of medical opinion. The Board remanded the
case for resolution of the conflict. The facts and circumstances of the case as set forth in the
Board’s prior decisions are incorporated herein by reference.
On February 16, 2011 OWCP listed the physicians already involved in the case. It
referred appellant for an impartial medical examination by Dr. John Douthit, a Board-certified
orthopedic surgeon, on February 24, 2011. OWCP provided a ME023 Appointment Schedule
Notification dated February 24, 2011 advising that Dr. Douthit was selected through the Medical
Management Application process.

2

Docket No. 97-2141 (issued August 12, 1999).

3

Docket No. 10-445 (issued December 6, 2010).

2

OWCP used the statement of accepted facts dated February 9, 2007. It listed appellant’s
July 19, 1991 employment injury to the left knee and November 11, 1991 left knee surgery. The
statement of accepted facts also included the surgical history of appellant’s right knee as well as
the job requirements of his date-of-injury position. In an addendum to the statement of accepted
facts dated January 7, 2009, OWCP noted that appellant was not working and underwent second
opinion evaluations in 2007.
In a letter dated February 27, 2011, counsel requested documentation regarding the
selection of Dr. Douthit. OWCP responded on March 30, 2011 and noted the physicians
bypassed in the selection of Dr. Douthit and the reasons for their bypass. On March 23, 2011
appellant stated that he missed the appointment with Dr. Douthit and that he rescheduled the
appointment for March 28, 2011.
In a report dated March 21, 2011, Dr. Douthit noted a history of appellant’s right knee
injury in 1978 while he was in the Navy. Appellant reported that his right knee problems
intensified after a left knee injury in July 1991. He had previously depended on his left knee for
stability but after the 1991 injury, he put more stress on the right knee causing grinding and pain.
Dr. Douthit performed a physical examination and found good alignment of the right knee and
five degrees of varus of the left knee. He found no joint effusion or swelling in either knee with
good stability. Appellant also had a slight loss of extension of the left knee.
Dr. Douthit reviewed the medical records and noted appellant’s history of eight right
knee surgeries due to reconstruction of the anterior cruciate ligament and loose bodies, cartilage
tears and persisting pain. Appellant sought treatment for right knee pain in January and March
1991 with reports of bone on bone degeneration. Dr. Douthit further noted that appellant injured
his left knee in July 1991. He found that appellant was having significant pain and mechanical
symptoms of his right knee four months before the left knee injury. Dr. Douthit stated:
“In my interpretation of the status of the right knee in 1991 was that it was nearly
at end stage [osteoarthritis] of the medial joint with severe cartilage loss being
reported by the arthroscopic surgery in 1988, x-rays of the time showing medial
joint narrowing and an orthopedic examiner reporting bone on bone sensation in
examining the knee with varus stress. This indicates to me a fairly rapid and
progressive deterioration and already a steep time line. By the mid-1990’s the
doctors were optioning salvage reconstruction of the knee with a high tibial
osteotomy, being reluctant to do a [total knee replacement] because of his age.
There was already a rapid acceleration of the deterioration of his knee and I do
not see that this increased after the injury in 1991 regarding of how one may
argue the possible change in gait and kinematics that may or may not have been
changed of the injury of his left knee in July1991.”
Dr. Douthit concluded that the problems of appellant’s right knee did not increase
or accelerate after July 1991 as appellant’s right knee problems were far advanced and
were not directly related to the injury to the left knee. He noted in a postscript that
appellant reported an additional surgery on August 1, 1992. Dr. Douthit was unable to
locate a report of this surgery and stated, “this is an important document and would very
likely give a snapshot of the condition of the right knee visually by an orthopedic surgeon

3

at the time he was claiming aggravation.” He stated that he would review this note if
located and provide a supplemental report.
By decision dated April 6, 2011, OWCP denied appellant’s claim for a
consequential right knee injury relying on Dr. Douthit’s March 21, 2011 report.
On April 25, 2011 appellant requested an oral hearing, before an OWCP hearing
representative. Counsel argued that Dr. Douthit should be disqualified as he had
performed second opinion evaluations over 300 times resulting in bias. He further
contended that the statement of accepted facts was flawed as it discussed administrative
actions, like the second opinion evaluations. Counsel also stated that Dr. Douthit’s
opinion was based on an improper factual background.
OWCP responded to a Freedom of Information Act request on May 9, 2011. It
noted that Dr. Douthit had performed 305 second opinion examinations from
December 2003 through March 2011.
In a letter dated August 18, 2011, counsel stated that appellant was unable to
locate the records for his August 1, 1992 right knee surgery.
On August 24, 2011 appellant testified that after this left knee injury he began
putting more weight on his right leg and it became worse, with swelling. He attributed
the increased right knee symptoms to working on a concrete floor at the employing
establishment. Appellant stopped work in 2001 on a disability retirement.
Following the oral hearing, appellant submitted a November 9, 1992 bone scan
which demonstrated active metabolical bone process involving the right knee which was
possibly related to accelerated degenerative changes. A report dated February 5, 1993
stated that due to bilateral knee problems, he should not walk on concrete.
By decision dated November 16, 2011, OWCP’s hearing representative found that
Dr. Douthit was properly selected to serve as the impartial medical examiner. The fact
that Dr. Douthit had served as a second opinion physician in other OWCP cases did not
render him incapable of serving as an impartial medical examiner. The hearing
representative found no errors with the statement of accepted facts. He found that
Dr. Douthit’s report constituted the special weight of the medical evidence and
established that appellant did not sustain a consequential injury.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.
As is noted by Larson in his treatise on workers’ compensation, once the work-connected
character of any injury has been established, the subsequent progression of that condition
remains compensable so long as the worsening is not shown to have been produced by an
independent nonindustrial cause and so long as it is clear that the real operative factor is the
4

progression of the compensable injury, associated with an exertion that in itself would not be
unreasonable under the circumstances.4
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he must present rationalized medical opinion evidence, based on a complete
factual and medical background, showing causal relationship. Rationalized medical evidence is
evidence which relates a work incident or factors of employment to a claimant’s condition, with
stated reasons of a physician. The opinion must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship of the diagnosed
condition and the specific employment factors or employment injury.5
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.6
ANALYSIS
Appellant alleged that he developed an aggravation of his preexisting right knee
condition as a consequence of his accepted left knee injury and surgery. Due to a conflict of
medical opinion, he was referred for an appropriate impartial medical examination.
Counsel argued that Dr. Douthit was not properly selected as a medical examiner because
he had frequently served as a second opinion physician. OWCP procedures provide, “The mere
fact that a physician has conducted a second opinion examination in connection with FECA
program does not eliminate that physician from serving as an impartial referee physician in
another case.”7 Counsel argued that as Dr. Douthit had completed 305 second opinion
examinations in seven years he should be a physician who regularly reviews cases for OWCP
and placed under written agreement.8 Appellant has not provided demonstration of bias on the
part of Dr. Douthit. The Board finds that the record does not support bias in this case.
On appeal and before OWCP’s hearing representative, counsel argued that the statement
of accepted facts was flawed as it contained mention of two second opinion examinations.
OWCP provided Dr. Douthit with a statement of accepted facts dated February 9, 2007 and an
addendum dated January 7, 2009. These documents comply with OWCP procedures as the facts
included are appellant’s employment injury and November 11, 1991 left knee surgery. The
statement of accepted facts also included the surgical history of appellant’s right knee as well as
4

Clement Jay After Buffalo, 45 ECAB 707, 715 (1994).

5

Charles W. Downey, 54 ECAB 421 (2003).

6

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4b (July 2011).
8

Id. at Chapter 3.900.2d (October 1990).

5

the job requirements of his date-of-injury position.9 OWCP included an addendum to the
statement of accepted facts dated January 7, 2009 which noted that he was not working and
underwent second opinion evaluations in 2007. Counsel objected to the listing of these
examinations as administrative actions.10 The Board does not agree with this classification of the
second opinion examinations as there is no discussion of appeals, remands or other
administrative actions of OWCP but instead the medical history of the claim which may properly
be included.11
In his March 21, 2011 report, Dr. Douthit provided an accurate history of injury,
including appellant’s preexisting right knee condition and surgeries. He noted appellant’s
assertion that after the left knee injury he put more stress on the right knee causing grinding and
pain which hastened his need for a total knee replacement on the right. Dr. Douthit examined
appellant and found five degrees of varus of the left knee as well as slight loss of extension of the
left knee. In reviewing the medical records, he noted that appellant sought treatment for right
knee pain in January and March 1991 with reports of bone on bone degeneration. Dr. Douthit
found that appellant was having significant pain and mechanical symptoms of his right knee four
months before the left knee injury. He concluded that appellant already had severe cartilage loss
of the right knee prior to the left knee injury and that this condition was not changed or
accelerated after the left knee injury.
As noted above, the Board finds that Dr. Douthit’s report is based on a proper factual
background. Dr. Douthit provided a detailed review of the medical history and appellant’s
preexisting right knee condition. He opined based on the medical records appellant required a
right knee replacement before he injured his left knee in the performance of duty. Dr. Douthit
further opined that the left knee injury did not accelerate or impact appellant’s right knee
condition. He found that appellant’s accepted employment injury did not result in a
consequential aggravation or acceleration of his preexisting right knee condition. Dr. Douthit
provided detailed review and findings upon which he based his conclusion. The Board finds that
this report is sufficiently rationalized to carry the weight of the medical opinion evidence and
resolve the conflict regarding appellant’s alleged consequential right knee injury.
Counsel’s final argument on appeal and before OWCP’s hearing representative is that
Dr. Douthit’s opinion was conditional as he mentioned record evidence of additional right knee
surgery on August 1, 1992. Dr. Douthit stated that if the surgery had occurred the operative
report would provide him with further information regarding the condition of appellant’s right
knee. He offered to review this note if located and provide a supplemental report. Appellant
was not able to locate records of a surgery on this date. The Board finds that Dr. Douthit did not
state that his report was incomplete without this evidence, but merely stated that he would be
available to review the documents if found. As stated above, Dr. Douthit provided a detailed
review of the medical records, a physical examination and offered a clear opinion with reasoning
9

Federal (FECA) Procedure Manual, Part -- 2, Claims, Statement of Accepted Facts, Chapter 2.809.5-7
(September 2009).
10

Id. at Chapter 2.809.7h.

11

Id. at Chapter 2.809.7c.

6

that appellant’s right knee condition was not aggravated or accelerated by his left knee injury.
Due to this report, the Board finds that appellant has not met his burden of proof in establishing a
consequential right knee injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that he
sustained a consequential right knee injury as a result of his accepted left knee condition.
ORDER
IT IS HEREBY ORDERED THAT November 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Weslaco, TX, Employer
__________________________________________

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

Docket No. 13-252
Issued: March 27, 2013

Case Submitted on the Record

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

JURISDICTION
On November 16, 2012 appellant filed a timely appeal from a September 18, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the decision.
ISSUE
The issue is whether appellant filed a timely claim for compensation under FECA.
On appeal, appellant asserts that he was not aware prior to his retirement that there was a
time frame for filing compensation.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 25, 2012 appellant, then a 59-year-old retired customs inspector, filed an
occupational disease claim alleging that exposure to noise from weapons, vehicles and airplanes
while at work caused a hearing loss. He stated that he first became aware of the condition on
March 15, 1998 and its relationship to employment on June 27, 2002 and that his hearing
examination was lost when he first submitted a claim. The employing establishment indicated
that appellant retired on January 5, 2008. Appellant attached a statement in which he indicated
that he began work as a customs inspector trainee in 1980 and described his employment and
training, including firearms training.
In a June 22, 2012 letter, OWCP informed appellant of the type evidence needed to
support his claim and asked that the employing establishment forward medical treatment notes to
OWCP, if treated at the employing establishment.
On July 14, 2012 appellant stated that he was not aware that there was a time frame for
filing his claim and that throughout his career he had been checked for hearing problems. He
maintained that the copies of the examinations had been lost in one of his attempts to file for a
hearing loss through his employer. Appellant again described his employment-related noise
exposure.
By decision dated September 18, 2012, OWCP denied the claim on the grounds that it
was not timely filed.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.2 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 of this title was
given within 30 days.”3
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
2

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

3

5 U.S.C. § 8122(a).

2

name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the
address of the individual giving the notice.4 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.5
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware, or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability and the
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.6 For actual knowledge of a supervisor to be
regarded as timely filing, an employee must show not only that the immediate superior knew that
he or she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he or she has a condition which has been adversely affected by
factors of his or her federal employment, such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.8 Where the employee
continues in the same employment after he reasonably should have been aware that he has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.9 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.10
In interpreting section 8122(a)(1) of FECA, OWCP procedures provide that if the
employing establishment gives regular physical examinations which might have detected signs
of illness, such as hearing tests, it should be asked whether the results of such tests were positive
for illness and whether the employee was notified of the results.11
4

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

5

Laura L. Harrison, 52 ECAB 515 (2001).

6

5 U.S.C. § 8119(b); Delmont L. Thompson, 51 ECAB 155 (1999).

7

Id. at § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

8

Larry E. Young, supra note 4.

9

Id.

10

Debra Young Bruce, 52 ECAB 315 (2001).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6(c) (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).

3

ANALYSIS
In this case, OWCP found that appellant had not filed a timely claim for compensation
under FECA. When appellant filed his claim for an employment-related hearing loss on
April 25, 2012, he indicated that he was first aware of the condition on March 15, 1998 and its
relationship to his employment on June 27, 2002. He therefore indicated that on June 27, 2002
he was aware or reasonably should have been aware of a possible relationship between his
hearing loss and factors of his federal employment. The Board finds that the date appellant
placed on his claim for compensation, June 27, 2002, is probative evidence as the date he first
became aware that his condition was related to his federal employment.
As noted above, however, if an employee continues to be exposed to injurious working
conditions, the time limitation begins to run on the date of the last exposure.12 Therefore, the
time for filing appellant’s claim did not begin to run until January 5, 2008, the date he retired.
Accordingly, the three-year statute of limitations would have expired no later than January 5,
2011, and his April 25, 2012 claim is thus barred by this exception to the statute of limitations.13
The record also does not support that appellant’s “immediate superior had actual
knowledge of the injury or death within 30 days.”14 There is no evidence of record that
establishes that his supervisor had actual knowledge of any injury within 30 days or that written
notice of the injury was given with 30 days.
Even if the employing establishment knew that appellant suffered from a hearing loss
during his period of employment, appellant also has to show that his supervisors knew or
reasonably should have known that this condition was caused by his employment.15 In this case,
there is no probative evidence to establish that his superior had constructive knowledge sufficient
to be reasonably put on notice that his hearing loss was work related within 30 days of January 5,
2008, the day he retired. Accordingly, appellant’s claim, which is outside the three-year time
limitation period, is untimely.16
The Board also notes that appellant stated that he had submitted old medical evidence to
the employing establishment and it was lost. Appellant, however, submitted no current medical
evidence to show that he had a hearing loss.
Appellant asserts on appeal that he was not aware there were time limitations for filing a
claim. The Board has held that an employee’s unawareness of possible entitlement, lack of
access to information or ignorance of the law or one’s rights and obligations under it do not

12

Larry E. Young, supra note 4.

13

Supra note 4.

14

5 U.S.C. § 8122(a)(1); see also Duet Brinson, supra note 7.

15

See David R. Morey, 55 ECAB 642 (2004).

16

See Richard Narvaez, 55 ECAB 661 (2004).

4

constitute exceptional circumstances that excuse a failure to file a timely claim.17 Appellant was
not under 21 years old and provided no evidence to show that he was incompetent or was
prevented from giving notice by exceptional circumstances. Thus, he did not timely file a claim
for compensation.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable time limitation
provisions of FECA.
ORDER
IT IS HEREBY ORDERED THAT the September 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

B.J., 59 ECAB 660 (2008).

18

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

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

Docket No. 11-1959
Issued: March 26, 2012

Case Submitted on the Record

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

JURISDICTION
On August 26, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated August 16, 2011. 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 right ankle, back, neck and bilateral shoulder
conditions in the performance of duty.
FACTUAL HISTORY
Appellant, a 31-year-old letter carrier, filed a Form CA-2 claim for benefits on June 3,
2011, alleging that she developed bilateral shoulder and lower back conditions causally related to
employment factors. In a June 3, 2011 statement, she asserted that she slipped and fell backwards
1

5 U.S.C. § 8101 et seq.

while delivering mail on December 28, 2010, which resulted in injuries to her shoulders, head,
neck and right ankle.
In a report dated May 24, 2011, Dr. Jacob Salomon, a specialist in general surgery, stated
that appellant had sustained a traumatic injury on December 28, 2010, for which she had filed a
separate, unrelated claim. He stated that this claim had apparently been accepted for a right ankle
condition, although she also sustained injuries to her neck, back and both shoulders. Dr. Salomon
advised that due to persistent pain and symptoms he had obtained several diagnostic studies for
appellant which showed bilateral tendinitis in both shoulders, lumbar disc disease and
radiculopathy; he also stated that she had a cervical muscle sprain. He stated that the shoulder,
neck and back injuries were chronic in nature and related to her work as a mail carrier, which
caused inflammation of the shoulders due to her carrying and lifting heavy mailbags. Since these
were chronic conditions Dr. Salomon considered them to be occupational conditions which were
aggravated by the December 28, 2010 work incident. He stated that he would be submitting the
results of x-ray tests, electromyelogram (EMG) tests and magnetic resonance imaging (MRI) scans
which document her lumbar disc disease and lumbar, which was related to lifting and walking
attendant to her job duties.
On June 28, 2011 OWCP advised appellant that it required factual and medical evidence
to determine whether she was eligible for compensation benefits. It asked her to submit a
comprehensive report from her treating physician describing her symptoms and the medical
reasons for her condition, an opinion as to whether her claimed condition was causally related to
her federal employment. OWCP requested that appellant submit this evidence within 30 days.
In a July 13, 2011 report, Dr. Salomon reiterated that he had been treating appellant for
multiple symptoms, including the right ankle, both shoulders, back and neck, which he opined
were related to the December 28, 2010 work incident. He advised that she had low back pain
with numbness in both legs, which was confirmed by an EMG study showing radiculopathy for
her back and radiculopathy of her lumbar disc disease. Dr. Salomon asserted that appellant’s
neck disease was confirmed with an MRI scan showing straightening of the cervical spine with
cervical spasm. He opined that these conditions were aggravated by her fall at work on
December 28, 2010.
Appellant underwent an MRI scan on March 19, 2011, which indicated that she had
normal lordosis with no disc bulges and no significant abnormalities.
By decision dated August 16, 2011, OWCP denied the claim, finding that appellant failed
to submit medical evidence sufficient to establish that her claimed conditions were related to
factors of employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
2

Id.

2

time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized 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.5
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates her claimed right ankle, back, neck and bilateral
shoulder conditions to factors of her employment. For this reason, she has not discharged her
burden of proof to establish her claim that this condition was sustained in the performance of
duty.
Appellant submitted reports from Dr. Salomon, who related findings of chronic neck,
back and bilateral shoulder pain on examination. Dr. Salomon stated that she underwent
diagnostic studies which showed bilateral tendinitis in both shoulders, lumbar disc disease and
3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

radiculopathy. He opined that these conditions were chronic in nature and causally related to
appellant’s duties as a mail carrier.7 Neither of Dr. Salomon reports, however, provided a
probative, rationalized medical opinion that the claimed conditions or disability were causally
related to employment factors. His opinion is of limited probative value as it does not contain
any medical rationale how or why appellant’s claimed conditions were currently affected by or
related to factors of employment.8 The weight of medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of physician’s
knowledge of the facts of the case, the medical history provided, the care of analysis manifested
and the medical rationale expressed in support of stated conclusions.9 Dr. Salomon did not
sufficiently describe appellant’s job duties or explain the medical process through which such
duties would have been competent to cause the claimed condition.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed sustained right ankle, back, neck and bilateral shoulder conditions
were causally related to her employment.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing that
her claimed right ankle, back, neck and bilateral shoulder conditions were sustained in the
performance of duty.

7

Dr. Salomon indicated several times that appellant’s right ankle, back, neck and bilateral shoulder conditions
were aggravated by the December 28, 2010 fall at work. This incident is not relevant to the instant issue of whether
these conditions were causally related to employment factors. Appellant has apparently filed a separate traumatic
injury claim pertaining to this incident which is being separately adjudicated by OWCP.
8

William C. Thomas, 45 ECAB 591 (1994).

9

See Anna C. Leanza, 48 ECAB 115 (1996).

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the August 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1448
Issued: August 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 24, 2019 appellant filed a timely appeal from a May 30, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 30, 2019 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 25 percent
permanent impairment of the right lower extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On August 22, 2005 appellant, then a 51-year-old tax examiner technician, filed a notice
of traumatic injury (Form CA-1) alleging that on August 18, 2005 he was injured when a chair
moved from under him while he was in the performance of duty. OWCP accepted the claim for
cervical sprain, cervicalgia, cervicobrachial syndrome, right knee sprain, lumbago, lumbar sprain,
and aggravation of knee osteoarthritis of the right and left knees. Appellant underwent a right total
knee replacement on August 17, 2011.
On August 16, 2013 appellant filed a schedule award claim (Form CA-7). OWCP denied
the claim by decision dated March 4, 2014.
On March 7, 2014 appellant requested a review of the written record with OWCP’s Branch
of Hearings and Review. In a September 17, 2014 decision, an OWCP hearing representative
affirmed the March 4, 2014 decision, finding that, as the medical evidence of record established
that appellant had not reached maximum medical improvement, he had not established permanent
impairment of the right lower extremity.
On January 29, 2015 appellant filed separate schedule award claim (Form CA-7). OWCP
denied that claim by decision dated April 10, 2015.
On August 14, 2015 OWCP referred appellant to Dr. Hormozan Aprin, a Board-certified
orthopedic surgeon, for an impairment evaluation of his right lower extremity. In a September 10,
2015 report, Dr. Aprin found that appellant had 25 percent permanent impairment of the right
lower extremity. On September 22, 2015 Dr. Henry J. Magliato, a Board-certified orthopedic
surgeon serving as district medical adviser (DMA) concurred with this assessment. By decision
dated October 19, 2015, OWCP granted appellant a schedule award for 25 percent permanent
impairment of the right lower extremity.
On October 23, 2015, appellant requested a review of the written record by an OWCP
hearing representative. By decision dated March 15, 2016, an OWCP hearing representative
affirmed the October 19, 2015 schedule award decision. Appellant requested reconsideration on
June 23, 2016. In a merit decision dated February 17, 2017, OWCP found that appellant was not
entitled to an additional schedule award for his right lower extremity. On February 28, 2017
3
Docket No. 08-0401 (issued January 8, 2009); Docket No. 09-1275 (issued January 6, 2010); Docket No. 12-0588
(issued August 23, 2012); Docket No. 17-0788 (issued March 14, 2018).

2

appellant filed a timely appeal with the Board. By decision dated March 14, 2018, the Board
affirmed the February 17, 2017 decision, finding that appellant had not met his burden of proof to
establish more than 25 percent permanent impairment of the right lower extremity, for which he
previously received a schedule award.4
Medical evidence received subsequent to OWCP’s February 17, 2017 decision included
treatment notes from Dr. Bradley D. Gerber, an attending Board-certified orthopedic surgeon,
dated April 13, 2017 to May 24, 2018, in which he noted seeing appellant in follow up after a right
total knee replacement. In his report dated April 13, 2017, Dr. Gerber provided examination
findings and advised that appellant had a Class 3 right lower extremity impairment due to a fair
right total knee replacement and, after applying adjustments for physical examination, functional
history, and clinical studies, he had a grade A impairment of 31 percent. He continued to provide
this same assessment in his subsequent progress reports.
On June 12, 2018 appellant filed a claim for an increased schedule award (Form CA-7).
He referenced the Board’s March 14, 2018 decision and submitted an April 17, 2018 report from
Dr. Michael DiGiovanna, an osteopathic physician specializing in family medicine.
In the April 17, 2018 report, Dr. DiGiovanna indicated that the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides),5 was used in his evaluation. He advised that appellant was being managed for worsening
of his severe post-traumatic osteoarthritis of the right knee, that he also had primary osteoarthritis
of the left knee, that he had extreme difﬁculty with ambulation, that he could not climb, kneel,
bend, stoop, or squat, that walking and standing were very difﬁcult, and that sitting for long periods
could make the pain worse once ambulation was necessary. Dr. DiGiovanna opined that
appellant’s condition was expected to worsen over time, and that he had 80 percent permanent
impairment of the right lower extremity. He also provided an April 14, 2018 State of New York
Workers’ Compensation Board Doctor’s Report of (MMI)/Permanent Impairment (NY
Impairment form) in which he noted that maximum medical improvement had been reached on
April 1, 2013 and repeated that appellant had 80 percent permanent impairment of the right lower
extremity.
Appellant also resubmitted an upper extremity permanent impairment worksheet signed by
Dr. Gerber on July 29, 2016 that had been reviewed by the Board in its March 14, 2018 decision.
On July 10, 2018 OWCP asked Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as a DMA to review the medical record, including Dr. DiGiovanna’s report, and provide
an opinion regarding appellant’s right lower extremity permanent impairment.
In a July 13, 2018 report, Dr. Katz noted his review of the record, including
Dr. DiGiovanna’s April 14, 2017 report. The DMA opined that, based on his review of the records,
using Table 16-3 of the A.M.A., Guides, for a total knee replacement with good result, appellant’s
class of diagnosis (CDX) was a Class 2 right lower extremity impairment with a default value of
4

Supra note 3.

5

A.M.A., Guides (6th ed. 2009).

3

25 percent. He assigned a grade modifier for functional history (GMFH) of 3 and a grade modifier
for physical examination (GMPE) of 2. The DMA noted that a grade modifier for clinical studies
(GMCS) would not be assigned. He concluded that the net adjustment formula yielded a net
adjustment of +1 from the default value, which under Table 16-3 yielded 25 percent permanent
impairment. The DMA indicated that he relied on August 22, 2017 examination findings of
Dr. Gerber, who noted flexion of 110 degrees, full extension, no laxity, and satisfactory position
of implants which, Dr. Katz indicated, did not support a Class 3 impairment. He determined that
MMI was reached on August 22, 2017, the date of the examination on which his impairment was
based. Dr. Katz opined that Dr. DiGiovanna’s report could not be accepted as probative because
he did not provide specific examination findings upon which he used to find a Class 3 impairment,
and that Dr. Giovanna’s permanent impairment rating was not an available choice under Table 163, noting that the default value for a total knee replacement was 37 percent. The DMA concluded
that, since appellant had previously received a schedule award for 25 percent permanent
impairment of the right lower extremity, he was not entitled to an increased award.
By letter dated July 17, 2018, OWCP asked Dr. DiGiovanna to provide an impairment
evaluation in accordance with the sixth edition of the A.M.A., Guides. It enclosed a copy of the
DMA’s July 13, 2018 report for review and comment.
In a treatment note dated August 16, 2018, Dr. Eric Keefer, a Board-certified orthopedic
surgeon and associate of Dr. Gerber, advised that he would defer a long-term classification of
appellant’s injuries to Dr. Gerber. On September 27, 2018 Dr. Gerber reiterated his findings and
conclusions.
On October 31, 2018 OWCP informed Dr. Gerber that his impairment evaluation of
appellant’s right lower extremity was insufficient and asked that he provide an impairment
evaluation in accordance with the sixth edition of the A.M.A., Guides. It enclosed a copy of the
DMA’s July 13, 2018 report for review and comment.
By letter dated November 8, 2018, OWCP again asked Dr. DiGiovanna to provide an
impairment evaluation in accordance with the sixth edition of the A.M.A., Guides. It noted that
he had not responded to its July 17, 2018 letter, which it enclosed, and again enclosed a copy of
the DMA’s July 13, 2018 report for review and comment.
In correspondence dated December 14, 2018, OWCP informed appellant of the medical
evidence needed to support his claim for increased right lower extremity impairment.
By decision dated January 30, 2019, OWCP denied appellant’s claim for an increased
schedule award.
On February 9, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In a treatment note dated February 14, 2019, Dr. Gerber described physical examination
findings and noted that appellant’s right knee was doing well, status post the 2011 total knee
replacement.

4

By decision dated May 30, 2019, an OWCP hearing representative affirmed the January 30,
2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter that rests in the discretion
of OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009.8 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).10 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by GMFH, GMPE and GMCS.11 The adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).12
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 Knee Regional Grid beginning on page 509.13 After the CDX is determined
from Table 16-3 (including identification of a default grade value, the adjustment formula is
applied using the GMFH, GMPE, and GMCS. Evaluators are directed to provide reasons for their
6

Supra note 1.

7

20 C.F.R. § 10.404.

8

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5 (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010).
9

A.C., Docket No. 19-1333 (issued January 8, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
10
A.M.A., Guides, supra note 5 at 3, Section 1.3, The International Classification of Functioning, Disability, and
Health (ICF): A Contemporary Model of Disablement.
11

Id. at 494-531.

12

Id. at 515-22.

13

Id. at 509-11.

5

impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.14
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides, with the DMA providing rationale for the percentage of impairment
specified.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 25
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously considered in its March 14, 2018 decision.16 Findings made in prior Board
decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.17
The Board finds that OWCP properly relied on the July 13, 2018 opinion of the DMA,
Dr. Katz, who reviewed the medical record including Dr. DiGiovanna’s April 17, 2018 reports,
and noted that appellant had undergone a right total knee replacement on August 17, 2011. The
DMA opined that, based on his review of the records, and utilizing the physical examination
findings from an August 22, 2017 report from Dr. Gerber who noted flexion of 110 degrees, full
extension, no laxity, and satisfactory position of implants, under Table 16-3 of the A.M.A., Guides,
for a total knee replacement with good result, appellant had a Class 2 right lower extremity
impairment. He noted that a Class 2 impairment had a default value of 25 percent, assigned GMFH
modifier of 3, GMPE of 2, and noted that GMCS was not applicable as it was utilized for class
placement.18 The DMA found a net adjustment of +1 from the default value, which, under Table
16-3 which yielded 25 percent permanent impairment. He properly opined that Dr. DiGiovanna’s
report could not be accepted as probative because he did not provide specific examination findings
which he used to find a Class 3 impairment, and that Dr. Giovanna’s impairment rating was not an
available choice under Table 16-3.19 The DMA determined that MMI was reached on August 22,
2017, the date of the examination on which his impairment was based. He concluded that, since

14

G.W., Docket No. 19-0430 (issued February 7, 2020)

15

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.808.6(f); see D.J., Docket No. 19-0352 (issued
July 24, 2020).
16

Supra note 3.

17

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

18

T.S., Docket No. 15-1022 (issued August 17, 2016).

19
Table 16-3 indicates that the maximum value for a Class 2 impairment due to total knee replacement is 25 percent,
and the maximum value for a Class 3 impairment is 43 percent. A.M.A., Guides, supra note 5 at 511.

6

appellant had previously received a schedule award for 25 percent permanent impairment of the
right lower extremity, he was not entitled to an increased award.
As to Dr. Gerber’s summary opinion that appellant had 31 percent right lower extremity
permanent impairment due to his total knee replacement, he initially set forth this opinion in
treatment notes dated November 10, 2016 and January 12, 2017, which were reviewed by the
Board in its March 14, 2018 decision.20 He did not specifically reference the A.M.A., Guides in
any of his reports. Moreover, in a February 14, 2019 treatment note, Dr. Gerber noted that
appellant’s right knee was doing well, status post the 2011 total knee replacement.
Furthermore, neither Dr. DiGiovanna nor Dr. Gerber responded to OWCP’s requests for
impairment analysis in accordance with the sixth edition of the A.M.A., Guides.
The Board has long held that an opinion which is not based upon the standards adopted by
OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment.21 The record in
this case does not contain a probative opinion supporting a right lower extremity impairment rating
greater than the 25 percent previously awarded.
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 employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 25
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.

20

Supra note 3.

21

I.F., Docket No. 08-2321 (issued May 21, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8