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

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

Docket No. 12-380
Issued: June 20, 2012

Case Submitted on the Record

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

JURISDICTION
On December 5, 2011 appellant filed a timely appeal from the June 14, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $25,748.77 overpayment of
compensation; (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment; and (3) whether it properly required repayment of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every four weeks.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on April 14, 2005 appellant, then a 56-year-old flat sorting machine
operator, sustained a cervical strain, lumbar strain and muscle spasm due to tripping over a mat
at work. She received OWCP compensation for periods of disability.
The record reflects that appellant’s annual salary exclusive of premium pay and overtime
on April 14, 2005 was $46,026.20. Dividing her annual salary by 52 weeks yields a weekly
amount of $885.12. Appellant’s total earnings for night differential pay in the year prior to her
April 14, 2005 work injury equaled $3,392.08 (or $65.23 a week) Her total earnings for holiday
pay in the year prior to her work injury equaled $508.62 (or $9.78 a week) and for Sunday
premium pay equaled $2,157.24 (or $41.49 a week). Appellant’s total weekly gross pay based
on her date-of-injury pay rate was $1,001.62.
After an audit of the case file, it was determined that OWCP paid appellant at an
incorrect pay rate for the period May 30, 2005 to August 28, 2010. During this period, OWCP
paid appellant $1,182.12 a week, rather than $1,001.62 a week. The error occurred because it
paid her night, holiday and Sunday premium pay at double the amount to which she was entitled.
For the period May 30, 2005 to August 28, 2010, appellant was paid $216,001.67 but should
have received $190,252.90.
In an October 21, 2010 notice, OWCP advised appellant of its preliminary determination
that she received a $25,748.77 overpayment of compensation for the period May 30, 2005 to
August 28, 2010. Appellant was paid compensation at an incorrect amount during this period.
OWCP provided calculations showing that the overpayment was created because she received
night, holiday and Sunday premium pay at double the amount to which she was entitled. It also
made a preliminary determination that appellant was not at fault in the creation of the
overpayment. OWCP advised her that she could submit evidence challenging the fact, amount or
finding of fault and request waiver of the overpayment. It informed appellant that she could
submit additional evidence in writing or at prerecoupment hearing. OWCP requested that she
complete and return an enclosed financial information questionnaire (Form OWCP-20) within 30
days even if she was not requesting waiver of the overpayment.
Appellant requested a prerecoupment hearing before an OWCP hearing representative.
Prior to the hearing, she submitted a Form OWCP-20 which she completed on
November 12, 2010. Appellant indicated that she had $4,723.00 in monthly income comprised
of $1,773.00 in social security benefits and $2,950.00 in FECA wage-loss compensation. She
listed $4,896.65 in monthly expenses, including $911.00 for mortgage/condominium fees,
$225.00 for food, $100.00 for clothing, $255.00 for utilities, $1,248.00 for miscellaneous
expenses and $2,157.65 for debt payments.2

2

Appellant listed assets of $4,614.72 comprised of cash and amounts in checking and savings accounts. She
listed the expenses that made up her miscellaneous expenses, including itemized expenses for housekeeping, cell
phone, gasoline, automobile repair, cleaning supplies, unreimbursed medical expenses, personal products, house
insurance, travel, entertainment, gifts and church fees. Appellant also provided a list of the entities to which she
made monthly debt payments and listed the monthly amounts paid to each entity.

2

At the April 14, 2011 hearing, appellant discussed the creation of the overpayment and
contended that she should not have to repay $25,748.77 because OWCP erred in creating the
overpayment. She discussed her financial situation noting that her social security benefits had
dropped significantly since she completed the Form OWCP-20 on November 12, 2010.
OWCP’s hearing representative provided appellant an opportunity to provide additional
documents to support her claimed monthly expenses.
Appellant submitted additional financial documents, including records of monthly
payments for expenses such as automobile maintenance, gasoline, cleaning supplies, personal
products, medicines, telephone service and automobile insurance. She also submitted documents
relating to monthly payments she made to pay off debts to various entities.
In a June 14, 2011 decision, OWCP’s hearing representative determined that appellant
received a $25,748.77 overpayment of compensation. She found that appellant was not at fault
in the creation of the overpayment but that it was not subject to waiver.3 With respect to the
denial of waiver of the overpayment, the hearing representative determined that, even though
appellant listed monthly expenses that were greater than her monthly income, she did not
adequately document her monthly expenses or establish that recovery of the overpayment would
cause hardship. In the absence of such evidence, appellant did not show that she needed
substantially all of her income to meet current ordinary and necessary living expenses. The
hearing representative discussed appellant’s financial documents and stated:
“I find that the claimant has inflated her monthly obligations without further
documentation to support her statement. For example she listed other debts as
$2,157.65 and other expenses $1,248.00.... While the claimant states that she is
financially unable to repay the full amount of the overpayment and she listed
several monthly expenses for consideration, the listed expenses were not
documented, based on those considered ordinary and necessary monthly living
expenses.”
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 Section 8129(a) of FECA provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”5
3

It was found that repayment of the overpayment would be made by deducting $200.00 from appellant’s
compensation payments every four weeks.
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

3

Section 8116(a) of FECA provides that while an employee is receiving compensation or
if she has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.6
Section 8105(a) of FECA provides: “If the disability is total, the United States shall pay
the employee during the disability monthly monetary compensation equal to 66 2/3 percent of
her monthly pay, which is known as her basic compensation for total disability.”7 Section
8101(4) of FECA defines “monthly pay” for purposes of computing compensation benefits as
follows: “[T]he monthly pay at the time of injury or the monthly pay at the time disability
begins or the monthly pay at the time compensable disability recurs, if the recurrence begins
more than six months after the injured employee resumes regular full-time employment with the
United States, whichever is greater....”8
ANALYSIS -- ISSUE 1
The Board finds that appellant received a $25,748.77 overpayment of compensation. The
record contains evidence showing that between May 30, 2005 and August 28, 2010 she received
compensation based on an improper pay rate. During this period, OWCP paid appellant
$1,182.12 a week, rather than the correct amount of $1,001.62 a week. The error occurred
because OWCP paid her night, holiday and Sunday premium pay at double the amount to which
she was entitled. For the period May 30, 2005 to August 28, 2010, appellant was paid
$216,001.67 but should have received $190,252.90. Therefore, the record contains evidence
which shows that she received $25,748.77 in duplicate payments. OWCP properly determined
that appellant received a $25,748.77 overpayment of compensation.9
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.10 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.”11 If OWCP finds a claimant to
6

Id. at § 8116(a).

7

Id. at § 8105(a). Section 8110(b) of FECA provides that total disability compensation will equal three fourths of
an employee’s monthly pay when the employee has one or more dependents. Id. at § 8110(b).
8

Id. at § 8101(4).

9

The record reflects that it was proper to calculate appellant’s pay rate based on her date-of-injury pay as she was
not entitled to a recurrent pay rate. See supra notes 7 and 8.
10

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

11

5 U.S.C. § 8129(b).

4

be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.12 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.13 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.14
In determining a claimant’s entitlement to compensation benefits, OWCP is required by
statute and regulations to make findings of fact.15 Its procedures further specify that a final
decision of OWCP must include findings of fact and provide clear reasoning which allows the
claimant to “understand the precise defect of the claim and the kind of evidence which would
tend to overcome it.”16 These requirements are supported by Board precedent.17
ANALYSIS -- ISSUE 2
OWCP denied appellant’s request for waiver of recovery of the $25,748.77 overpayment
indicating that she did not show that such waiver was warranted under FECA. The Board finds,
however, that OWCP did not provide adequate facts and findings in connection with this
determination.

12

20 C.F.R. § 10.436. An individual is deemed to need substantially all of his monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (October 2004).
13

Id. at § 10.437(a), (b).

14

Id. at § 10.437(b)(1).

15

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

17

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

5

In her June 14, 2011 decision, OWCP’s hearing representative determined that, even
though appellant listed monthly expenses that were greater than her monthly income, she had not
adequately documented her monthly expenses and therefore had not shown that recovery of the
overpayment would cause hardship. She generally indicated that appellant inflated her monthly
expenses, but she did not provide any specific discussion of which expenses she felt were
inflated or why she felt that they were excessive. The hearing representative questioned
appellant’s miscellaneous monthly expenses and monthly debt payments, but she did not provide
adequate findings of which expenses were not supported. Appellant listed the individual
expenses that made up her miscellaneous expenses and provided a list of the entities to which she
made monthly debt payments and the amounts she paid. She also submitted financial documents
which related to a number of these miscellaneous expenses and debt payments. The hearing
representative did not discuss which of the itemized expenses or the financial documents
submitted by appellant were inadequate. She suggested that some of the listed monthly expenses
did not constitute ordinary and necessary living expenses, but she did not identify any specific
expenses which she felt were not ordinary and necessary.18
The case will be remanded to OWCP for further clarification, including the provision of
additional detailed findings, regarding the issue of waiver of recovery of the $25,748.77
overpayment. After such development as it deems necessary, OWCP should issue an appropriate
decision regarding this matter.19
CONCLUSION
The Board finds that appellant received a $25,748.77 overpayment of compensation. The
Board further finds that the case is not in posture for decision regarding the issue of waiver of
recovery of the overpayment.

18

Moreover, OWCP’s hearing representative did not make a clear finding about appellant’s monthly income. At
the April 2011 hearing, appellant noted that the amount of her social security benefits had dropped significantly
since she completed the Form OWCP-20 on November 12, 2010. The hearing representative did not address this
circumstance in her June 14, 2011 decision.
19

Given the Board’s finding regarding the issue of waiver of recovery of the overpayment, it is premature to
consider the issue of the method of repayment of the overpayment.

6

ORDER
IT IS HEREBY ORDERED THAT the June 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed with respect to the fact and amount of the
overpayment. The June 14, 2011 decision is set aside with respect to the issue of waiver of
recovery of the overpayment. The case is remanded to OWCP for further proceedings consistent
with this decision of the Board.
Issued: June 20, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Diego, CA, Employer
__________________________________________

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

Docket No. 06-2023
Issued: May 10, 2007

Case Submitted on the Record

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

JURISDICTION
On August 31, 2006 appellant filed a timely appeal of the April 12, 2006 decision of the
Office of Workers’ Compensation Programs which denied further merit review on the basis that
her request for reconsideration was untimely filed and failed to demonstrate clear evidence of
error. Because more than one year has elapsed between the most recent merit decision dated
March 14, 2004 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly found that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
On May 8, 1996 appellant, then a 49-year-old chief of library services, filed a traumatic
injury claim alleging that on April 18, 1996 she was in an automobile accident and sustained

whiplash. By letter dated July 11, 1997, the Office accepted her claim for sprain of the neck. On
December 11, 2002 appellant filed a claim for a recurrence of her April 18, 1996 employment
injury. By decision dated February 21, 2002, the Office denied her claim for compensation as
the medical evidence was not sufficient to establish a recurrence of her original work injury.
On August 1, 2003 appellant filed another claim for recurrence. By decision dated
September 25, 2003, the Office denied her claim finding that the factual and medical evidence
did not establish that the claimed recurrence resulted from the accepted work injury. Appellant
filed a request for reconsideration on September 15, 2004. The Office denied modification by
decision dated December 17, 2004. By request dated December 13, 2005, but received by the
Office on December 30, 2005, appellant again requested reconsideration. She submitted a
nutrition risk evaluation dated March 9, 2004 by a clinical nutrition specialist. In a letter dated
December 13, 2005, appellant noted that she received disability insurance from the Veterans
Administration and Social Security based on interstitial cystitis and whiplash. She contended
that none of her doctors ever indicated that she completed treatment for her injuries sustained as
a result of the automobile accident. Appellant also contended that all the relevant medical
evidence was not in the file.
By decision dated April 12, 2006, the Office denied appellant’s request for
reconsideration for the reason that it was untimely filed and failed to establish clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.1 This section vests the Office with
discretionary authority to determine whether it will review an award for or against payment of
compensation.2 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority to determine whether it will review an award for or against payment of
compensation.3 One such limitation is that the application for reconsideration must be sent
within one year of the date of the Office decision for which review is sought.4 In those instances
when a request for reconsideration is not timely filed, the Office will undertake a limited review

1

5 U.S.C. § 8128(a); see Leon D. Faidley, Jr., 41 ECAB 104 (1989).

2

Under Section 8128 of the Act, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607.

4

20 C.F.R. § 10.607(a).

2

to determine whether the application presents clear evidence of error on the part of the Office in
its most recent merit decision.5
ANALYSIS
The most recent merit decision was issued on December 17, 2004. Appellant signed the
appeal papers with the date “December 13, 2005.” However, the Office indicated that the appeal
was not received until December 30, 2005 and accordingly, was not filed within one year of the
last merit decision.
The Board notes that the Office regulation and Chapter 2.1602.3(b)(1) of the Office
procedure manual provide that timeliness for a reconsideration request is determined not by the
date the Office receives the request, but by the postmark on the envelope.6 In the instant case,
the Office stated that the copy of the priority mail label indicated that the envelope was scanned
at the local scanning station on December 30, 2005. The Board has reviewed this label and
cannot find any indication on it of when it was scanned. Furthermore, there is no visible post
mark. The Office procedure manual states that, when there is no evidence to establish the
mailing date, the date of the letter itself should be used.7 For this reason, the Board finds that, as
appellant’s request was dated December 13, 2005, there is no other evidence that would establish
the mailing date.8 Therefore, appellant’s request for reconsideration was timely filed. As she
timely filed her request for reconsideration within one year of the December 17, 2004 merit
decision, the Office improperly denied appellant’s reconsideration request by applying the legal
standard reserved for cases where reconsideration is requested after more than one year. Since
the Office erroneously reviewed the evidence submitted under the clear evidence of error
standard, the Board will remand the case to the Office for review of this evidence under the
proper standard of review for a timely reconsideration request.

5

20 C.F.R. §.10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise and explicit and it must be apparent on its face that the Office committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of the Office decision
is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office’s decision. Thankamma Mathews,
44 ECAB 765, 770 (1993).
6

See 20 C.F.R. § 10.607(a). The Office’s procedures require that an imaged copy of the envelope that enclosed
the request for reconsideration should be in the case record. If there is no postmark or it is not legible, other
evidence such as a certified mail receipt, a certificate of service and affidavits may be used to establish the mailing
date. In the absence of such evidence, the date of the letter itself should be used. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (January 2004).
7

Id. See also Donna M. Campbell, 55 ECAB 241 (2004).

8

Subsequent to the April12, 2006 decision, appellant submitted additional evidence. The Board’s jurisdiction is
limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R. § 501.2(c).
The Board may not consider this evidence for the first time on appeal.

3

CONCLUSION
The Board finds that appellant’s December 13, 2005 request for reconsideration was
timely filed.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 12, 2006 is set aside and the case is remanded for further
development consistent with this decision
Issued: May 10, 2007
Washington, DC

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

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

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

4


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

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

Docket No. 12-232
Issued: May 23, 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 November 22, 2011 appellant filed a timely appeal from a September 26, 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 this case.2
ISSUE
The issue is whether appellant sustained an injury on November 21, 2010 in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new medical evidence on appeal but the Board has no jurisdiction to review evidence for
the first time on appeal.2 He may submit the new evidence and any new argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.

FACTUAL HISTORY
On August 4, 2011 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim alleging that on November 21, 2010 he sprained his left ankle in the performance of duty.
He related I had delivered a certified letter to a customer and was returning to my truck when I
thought the customer said something to me. Appellant turned to see what the customer said and
he was talking to someone in the house. I stepped off of the deck onto a wooden sidewalk and
rolled my left ankle. The employing establishment controverted the claim, stating that appellant
alleged that he told his supervisor “on the accident date but the supervisor does not recall him
telling him anything about the accident.”
By letter dated August 19, 2011, OWCP requested additional factual and medical
evidence, including a detailed description of how his injury occurred and a rationalized medical
report explaining the relationship between any diagnosed condition and the alleged work
incident.
On November 10, 2010 Dr. Andrew P. Kant, a Board-certified orthopedic surgeon,
evaluated appellant for left ankle pain. He stated, “[Appellant] reports that his back gave out
yesterday, and then the left ankle.” Dr. Kant diagnosed an ankle sprain.3
In a report dated June 2, 2011, Dr. David Navid, an osteopath, related that appellant
“apparently initially injured his ankle while slipping off his porch back on November 10, 2010.
Ever since then, he has been having problems with his ankle.”4 Dr. Navid diagnosed posterior
tibial tendinitis of the left ankle, an osseous contusion of the subtalar joint or possible early
degenerative arthritis and early Achilles’ insertional tendinopathy of the left ankle.5
In a statement dated September 3, 2011, appellant related that he advised his supervisor,
Sonny McNatt, of the injury he received “leaving a delivery of a certified letter” on the date of
the incident. He told Mr. McNatt that he was going to see the doctor but could not get an
appointment until the next day. Appellant’s ankle did not improve. When he told his supervisor
about his continued ankle problem a few weeks after the incident his supervisor told him that it
was too late to file for workers’ compensation. A union steward later advised appellant that he
could still file a claim.
By decision dated September 26, 2011, OWCP denied appellant’s claim after finding that
he had not established that he sustained an injury as alleged. It determined that the evidence
3

In a report signed November 16, 2010, Dr. Kant placed appellant in a brace. On March 2, 2011 he noted that
appellant’s ankle had not improved. Dr. Kant diagnosed peroneal tenosynovitis and recommended diagnostic
studies. In a progress report dated May 25, 2011, he diagnosed minimal tenosynovitis of the posterior tendon.
4

An August 19, 2011 magnetic resonance imaging (MRI) scan study of the left ankle revealed an area of
“subcortical marrow edema and subcortical cystic changes in the calcaneum at the medial aspect of the posterior
subtalar joint” most likely due to degenerative changes or old trauma and an exostosis in the distal fibula.
5

On September 1, 2011 Dr. Navid diagnosed a traumatic cyst of the left foot at the subtalar joint and found that
appellant could resume work on August 31, 2011 without restrictions. In a progress report of the same date, he
recommended further diagnostic studies in six months.

2

contained inconsistencies sufficient to cast doubt that the work incident occurred at the time,
place and in the manner alleged.
On appeal appellant argues that he injured his ankle delivering a certified letter. When he
stepped off the customer’s porch he turned his ankle and strained his back.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.9 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.10 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.11
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.12 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.13 An employee
6

Supra note 1.

7

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

8

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

9

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

10

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

11

Id.

12

See Louise F. Garnett, 47 ECAB 639 (1996).

13

See Betty J. Smith, 54 ECAB 174 (2002).

3

has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.14
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.15 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.16
ANALYSIS
On August 4, 2011 appellant filed a traumatic injury claim alleging that on November 21,
2010 he sprained his ankle when he stepped off a customer’s deck after delivering a letter.
OWCP denied his claim finding that he did not demonstrate that the specific event occurred at
the time, place and in the manner described.
The initial question presented is whether appellant has established that the November 21,
2010 employment incident occurred as alleged.
The Board finds that appellant has not established the occurrence of the alleged
November 21, 2010 work incident. Appellant did not file a claim for an injury until almost nine
months after the incident. While he maintained that he advised his supervisor on the date of the
incident, his supervisor did not remember being informed of an accident on that date. The record
contains medical reports but none of the reports provide November 21, 2010 as the date of
injury. Additionally, the medical evidence does not contain a history of injury consistent with
appellant’s description of the alleged work event. In a report dated November 10, 2010, which
predates the date of the alleged incident, Dr. Kant indicated that he related a history of his back
and then his ankle “giving out” the day before. On June 2, 2011 Dr. Navid noted that appellant
hurt his ankle when he slipped off his porch on November 10, 2010. These inconsistencies in the
history of injury cast serious doubt on the validity of his claim.17 As appellant failed to provide
evidence sufficient to establish that the November 21, 2010 incident occurred at the time, place
and in the manner alleged, he has not met his burden of proof.18
On appeal appellant maintains that he sustained an injury when he stepped off a
customer’s porch. As discussed, however, he did not submit any evidence corroborating his
allegation.

14

Id.

15

Linda S. Christian, 46 ECAB 598 (1995).

16

Gregory J. Reser, 57 ECAB 277 (2005).

17

See S.P., 59 ECAB 184 (2007); Michael A. Danowski, 34 ECAB 706 (1983).

18

See D.A., Docket No. 10-2112 (issued May 11, 2011).

4

CONCLUSION
The Board finds that appellant has not established that he sustained an injury on
November 21, 2010 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 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
__________________________________________
P.W., Appellant
and
DEPARTMENT OF THE NAVY, U.S. FLEET
FORCES COMMAND, STENNIS SPACE
CENTER, MS, Employer
__________________________________________

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

Docket No. 18-1766
Issued: March 19, 2019

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 22, 2018 appellant filed a timely appeal from an August 10, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated January 25, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
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).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 1, 2017 appellant, then a 54-year-old electronic technician, filed a traumatic injury
claim (Form CA-1), alleging that he sustained “lower back pain, right shoulder, arm, and hand
pain” injuries on May 30, 2017 while in the performance of duty “lifting gliders with shipping
container units double-stacked approximately 322 [pounds] each.” He indicated that proper
equipment was not used and a crane, joist, and pallet jack should have been used to complete the
job safely.
In a July 12, 2017 report, Dr. David F. Roberts, a family medicine specialist, diagnosed
low back pain.
By decision dated August 2, 2017, OWCP accepted that the May 30, 2017 incident
occurred as alleged, but denied appellant’s claim, finding that he failed to submit evidence
containing a medical diagnosis in connection with the accepted incident. It noted that Dr. Roberts
had diagnosed “low back pain,” but that pain is a symptom, not a diagnosis of a medical condition.
OWCP concluded that appellant had not established fact of injury as he had not met the
requirements to establish that he sustained an injury as defined by FECA.
Appellant subsequently submitted a July 31, 2017 magnetic resonance imaging (MRI) scan
of the right elbow, ordered by Dr. Roberts, which demonstrated mild right common extensor
tendinopathy.
On August 21, 2017 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In support of his claim, appellant further submitted two reports dated September 5, 2017
from Dr. Henry T. Leis, a Board-certified orthopedic surgeon, who diagnosed lateral epicondylitis
and advised that appellant was capable of limited-duty work, effective September 6, 2017.
By decision dated January 25, 2018, an OWCP hearing representative affirmed the prior
decision, finding that, although appellant had established that medical conditions were diagnosed
in connection with the accepted incident, the medical evidence of record was insufficient to
establish causal relationship between his diagnosed conditions and the accepted May 30, 2017
employment incident.
In response, appellant resubmitted the July 31, 2017 MRI scan, as well as the two
September 5, 2017 reports from Dr. Leis.
On May 8, 2018 appellant requested reconsideration. He reiterated the factual and medical
history of his claim and argued that Dr. Leis’ September 5, 2017 medical report was not mentioned
in the January 25, 2018 hearing representative’s decision.
By decision dated August 10, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim, finding that he neither advanced a relevant legal argument nor submitted
relevant and pertinent new evidence.

2

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.4
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.5 If the request is timely, but fails to meet at least one of requirements for
reconsideration, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.6
ANALYSIS
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).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law. Moreover, he did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of his claim based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
On reconsideration, appellant argued that Dr. Leis’ September 5, 2017 medical report was
not mentioned in the hearing representative’s decision. The Board finds, however, that Dr. Leis’
reports were previously reviewed and considered by OWCP.
Appellant further argued on reconsideration that the employing establishment had
committed a number of violations of agency and EEO regulations. He argued that his injury was
a result of these violations. These contentions are not legal arguments addressing the underlying
issue of whether appellant submitted sufficient medical evidence to establish a causal relationship

2
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607.

4

Id. at § 10.607(a). 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 2.1602.4b.
5

20 C.F.R. § 10.606(b)(3).

6

Id. § 10.608(a), (b).

3

between his diagnosed conditions and the accepted May 30, 2017 employment incident at work.7
The Board has held that the submission of an argument which does not address the particular issue
involved does not constitute a basis for reopening a case. As such, appellant’s opinions are
irrelevant to the claim and do not comprise a basis for reopening the case on its merits.8 As he did
not allege that OWCP erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not previously considered by OWCP he is not entitled to a review of the
merits of his claim based on the first and second requirements under section 10.606(b)(3).9
In support of his request for reconsideration, appellant resubmitted an MRI scan dated
July 31, 2017 and two reports dated September 5, 2017 from Dr. Leis. The Board finds that the
submission of this medical evidence did not require reopening appellant’s case for merit review
because appellant submitted the same July 31, 2017 MRI scan and September 5, 2017 reports by
Dr. Leis, which were previously reviewed by OWCP’s hearing representative in her January 25,
2018 decision. As these reports are substantially similar to evidence already of record, they are
duplicative and do not constitute relevant and pertinent new evidence. Thus, appellant has not
established a basis for reopening his case.10
The Board finds that as OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(3) it properly denied his request for reconsideration of the merits of his claim under
5 U.S.C. § 8128(a).11
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).

7

The Board notes that it is appellant’s burden to submit sufficient evidence to establish a causal relationship.
John J. Carlone, 41 ECAB 354 (1989).
8

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

9

D.D., Docket No. 18-0648 (issued October 15, 2018).

10

B.B., Docket No. 18-0782 (issued January 11, 2019).

11
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2019
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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Appearances:
James G. Noucas, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-0737
Issued: September 4, 2015

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 February 12, 2014 appellant, through counsel, filed a timely appeal from an
August 21, 2013 schedule award 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 schedule award.
ISSUE
The issue is whether appellant established more than one percent permanent impairment
of the right or left upper extremities for which he received a schedule award.
On appeal counsel asserts that OWCP did not properly develop the medical record as it
failed to provide complete and accurate medical histories for reviewing physicians, and
improperly allowed a medical adviser to provide a second record review. For these reasons,

1

5 U.S.C. §§ 8101-8193.

appellant argues that the reports of the second opinion, referee physician, and OWCP medical
advisers should be excluded.
FACTUAL HISTORY
On April 30, 2001 appellant, then a 45-year-old painter/blaster, filed an occupational
disease claim alleging that his employment duties caused arm and wrist pain. He began limited
duty. OWCP accepted carpal tunnel syndrome, lateral epicondylitis, and bilateral forearm
tendinitis of each arm as employment related.
A November 1, 2001 electrodiagnostic study showed right mild median neuropathy at the
wrist. The study on the left was at the high end of the reference range. Dr. Randi D. Lebar, a
Board-certified orthopedic surgeon, performed a right carpal tunnel release on
December 21, 2001.
In a January 24, 2003 report, Dr. John T. Chance, Board-certified in orthopedic surgery
and surgery of the hand, noted appellant’s complaint of right and left hand pain and a prior
history of a right thumb fracture. He diagnosed left ulnar neuropathy (cubital tunnel syndrome),
bilateral/lateral epicondylitis, Dupuytren disease (not work related), and right thumb
degenerative joint disease, status post remote injury. On June 24, 2003 Dr. Chance advised that
appellant’s bilateral arm pain and numbness were worse.
On December 29, 2003 appellant filed a schedule award claim. By letter dated
January 12, 2004, OWCP informed him of the evidence needed to support a schedule award
claim and enclosed a form letter for his physician. The letter advised that an impairment
determination should be completed in accordance with the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment2 (hereinafter A.M.A., Guides).
In an August 8, 2005 report, Dr. William Chernin, Board-certified in family medicine, answered
all questions on the form letter “permanently disabled.”
Nothing further was submitted by appellant until his attorney contacted OWCP in
July 2008. In a February 18, 2009 report, Dr. Minh Tran, a Board-certified physiatrist, reviewed
the 2001 carpal tunnel surgery and appellant’s complaint that shoulder problems began at work
around 2002. She indicated that appellant had left shoulder acromioplasty and distal clavicle
excision on April 5, 2005. Dr. Tran examined appellant and diagnosed right acromioclavicular
(ACL) joint degenerative disease.
In a September 22, 2009 report, Dr. Frank A. Graf, a Board-certified orthopedic surgeon,
noted the accepted conditions and appellant’s medical history and job duties. After his
retirement, appellant worked part time as a janitor from 2004 to 2008. He reported that in late
2000 he began having constant thumb and wrist pain that extended into the forearm, elbows,
upper arms and shoulders which continued and now included neck pain. Dr. Graf reviewed
medical records and provided findings on examination. Appellant had bilateral upper extremity
repetitive motion and vibration syndrome that evolved from work exposure. Dr. Graf noted that
appellant had permanent changes in multiple upper extremity anatomical structures including
2

A.M.A., Guides (5th ed. 2000).

2

bilateral carpal tunnel syndrome, bilateral chronic tendinitis and lateral epicondylitis, bilateral
chronic forearm tendinitis, bilateral chronic shoulder pain with symptomatic rotator cuff and
ACL joints, bilateral chronic hand pain with symptomatic carpometacarpal (CMC) and carpal to
carpal osteoarthritis. He also diagnosed bilateral Dupuytren’s nodular fasciitis that was not work
related.
Dr. Graf stated that under the sixth edition of the A.M.A., Guides,3 there was no listing
for hand/arm vibration syndrome or repetitive motion syndrome, noting that appellant did not
have vasomotor, pseudomotor and trophic changes found in complex pain syndrome. He opined
that appellant had a condition which had global effects on both arms, and that hand/arm vibration
syndrome should be a listed impairment class. To establish an appropriate diagnosis for each
injured part of the arm, Dr. Graf assigned an appropriate class of impairment, followed by use of
the adjustment grid and grade modifiers including functional history, physical examination and
clinical studies with assignment of upper extremity ratings, which he combined under the
Combined Values Chart for each diagnosis. He combined the arm impairments following the
ratings for each diagnosis, concluding that complex regional pain syndrome was a global
diagnosis with class assignments and impairment ratings for global upper extremity symptoms.
Dr. Graf indicated that appellant had a bilateral class 2 impairment for thumb arthritis, for five
percent arm impairment; a bilateral class 1 impairment for epicondylitis, for seven percent arm
impairment; a bilateral class 1 impairment for shoulder ACL joint and rotator cuff injury, for
seven percent arm impairment; and that, under Table 15-23, he had a bilateral median nerve
syndrome for five percent arm impairment. He stated that using the Combined Values Chart and
appellant’s QuickDASH score, he had a total 39 percent impairment to each upper extremity.
Dr. Graf referenced Table 15-1 and opined that appellant’s bilateral hand/arm vibration
syndrome and repetitive motion disorder was a class 3 or severe problem.
On November 9, 2009 Dr. Barry W. Levine, an OWCP medical adviser Board-certified
in internal medicine and pulmonary disease, reviewed Dr. Graf’s report. He stated that based on
the sixth edition of the A.M.A., Guides appellant had an 11 percent right upper extremity
impairment and an 18 percent left upper extremity impairment. OWCP requested that
Dr. Levine explain the difference between his rating and those of Dr. Graf. In a June 13, 2010
report, he stated that Dr. Graf’s impairment ratings were not accurate. Dr. Levine explained his
findings and conclusions.
On October 26, 2010 Dr. Graf stated that maximum medical improvement for the right
upper extremity was reached six months after the December 21, 2001 carpal tunnel release, or
June 21, 2002, and that his conclusion that appellant had 39 percent upper extremity impairment
was a total combined for right and left arm impairments.
In December 2010 OWCP referred the record to Dr. Christopher R. Brigham, an OWCP
medical adviser Board-certified in family and occupational medicine. In a January 3, 2011
report, Dr. Brigham disagreed with Dr. Graf’s impairment analysis, noting that Dr. Graf did not
reference any tables or properly apply grade modifiers. He stated that maximum medical
improvement was reached on October 26, 2010, the date of Dr. Graf’s evaluation. Dr. Brigham
3

Id. (6th ed. 2008).

3

comprehensively explained his conclusion that appellant had a total 12 percent right upper
extremity impairment and 11 percent impairment on the left.
On May 11, 2011 OWCP asked Dr. Graf to provide range of motion measures for
appellant’s arms. In a May 25, 2011 response, Dr. Graf stated that range of motion was of
limited relevance and referred to his 2009 report. OWCP forwarded Dr. Brigham’s July 21,
2011 report to Dr. Graf for review. In a July 26, 2011 report, Dr. Graf noted that a critique of
another physician’s permanent impairment analysis was not the same as an opinion of
permanency in a specific patient and that to arrive at such an opinion, a clinical examination was
essential to a fair and equitable process. He reiterated that the A.M.A., Guides had limitations
with regard to appellant, as he discussed in his September 22, 2009 report.
In August 2011 OWCP referred appellant to Dr. Lawrence Leonard, a Board-certified
orthopedic surgeon, for a second opinion. In a September 26, 2011 report, Dr. Leonard reviewed
the statement of accepted facts and medical record. He noted appellant’s report that after
retirement from the shipyard, he worked as a cab driver and a janitor; stopped work about three
years prior, and at the present time, volunteered as driver driving 900 miles over approximately
24 hours weekly. Appellant complained of bilateral thumb, wrist, elbow, and shoulder pain.
Dr. Leonard noted appellant’s description of his daily activities that included, in addition to
volunteer driving, cooking, yard work, fishing, and walking his dog. He described physical
examination findings and diagnosed status post left shoulder acromioplasty and distal clavicle
excision in April 2005; status post right carpal tunnel release in December 2001; bilateral
Dupuytren’s contracture; history of open reduction of fracture, right metacarpal, age 16; and
history of multiple joint aches and pains, etiology undetermined. Dr. Leonard determined that
maximum medical improvement would be six months postsurgery for the left shoulder and right
hand. He found that no impairment rating was necessary for appellant’s shoulders and CMC
joint arthritis because these conditions were not accepted. There was no impairment due to a
preexisting injury. Dr. Leonard advised that, under the A.M.A., Guides, utilizing the diagnosisbased impairment methodology, Table 15-4, appellant had one percent impairment of each arm
due to bilateral elbow epicondylitis. He found no impairment due to carpal tunnel syndrome, as
there were no sensory deficits on physical examination. Dr. Leonard concluded that appellant
had one percent impairment of each arm.
In an October 31, 2011 report, Dr. Brigham agreed with Dr. Leonard that appellant had
no impairment due to carpal tunnel syndrome. Excluding the ratings for the unaccepted
conditions, he agreed that appellant had one percent impairment to each upper extremity.
OWCP found that a conflict in medical opinion arose regarding appellant’s upper
extremity impairments. In a May 22, 2012 letter to appellant, it identified the conflict as
between Dr. Leonard and Dr. Brigham, and referred him to Dr. David N. Markellos, a Boardcertified orthopedic surgeon, for an impartial evaluation. In a second May 22, 2012 letter,
addressed to Dr. Markellos, OWCP again identified the conflict as between Dr. Leonard and
Dr. Brigham.
In May 29, 2012 correspondence appellant’s counsel informed OWCP that in the letter
addressed to Dr. Markellos, the conflict was identified as between Dr. Leonard and Dr. Brigham.
He also maintained that appellant’s bilateral shoulder conditions were work related.

4

In an August 7, 2012 report, Dr. Markellos noted his review of the medical record and
appellant’s description of his work duties. Appellant complained of bilateral elbow, shoulder
and forearm pain over the years. Dr. Markellos further indicated that appellant reported that
after he left federal employment he worked in a janitorial job and currently did volunteer driving
for the disabled, averaging about 30 hours per week. He was puzzled by the identified conflict
between Dr. Leonard and Dr. Brigham as the physicians agreed in their impairment analyses.
Dr. Markellos provided upper extremity physical examination findings including normal
shoulder range of motion bilaterally. He indicated that there was no evidence of residual carpal
tunnel syndrome either by history or clinical examination with negative Tinel’s sign and
Phalen’s test, normal sensation of all digits, and no evidence of atrophy. There was no
tenderness at the lateral epicondyles but pain of the dorsal extensors and no evidence at the
present time of cubital tunnel syndrome. Dr. Markellos advised that he agreed with the
impairment assessment regarding epicondylitis found by Dr. Leonard and confirmed by
Dr. Brigham, that appellant had a one percent permanent impairment of each upper extremity
due to epicondylitis and no impairment for carpal tunnel syndrome.
In a November 13, 2012 report, Dr. Morley Slutsky, Board-certified in occupational
medicine and an OWCP medical adviser, indicated that to complete a review of the record, he
needed a copy of a NeuroMetrix study performed prior to the December 21, 2001 right carpal
tunnel release, the April 4, 2005 operative report for appellant’s left shoulder surgery, and any
additional diagnostic tests. At OWCP’s request, appellant forwarded the November 1, 2001
NeuroMetrix test; Dr. Lebar’s treatment notes from November 9, 2001 to September 7, 2006;
November 11, 2004 bilateral shoulder x-rays that demonstrated degenerative changes about the
ACL joints; bilateral hand x-rays dated November 11, 2004 that demonstrated degenerative joint
disease; a preoperative history and physical dated April 1, 2005 prior to left shoulder surgery;
and an April 4, 2005 operative report for left shoulder acromioplasty and distal clavicle excision
for left shoulder rotator cuff tendinitis and ACL joint arthritis.
On July 24, 2013 Dr. Slutsky reviewed the record, including Dr. Markellos’ report. He
stated that maximum medical improvement was reached on September 21, 2011. Dr. Slutsky
agreed that, as there was no clinical evidence of carpal tunnel syndrome or cubital tunnel
syndrome, appellant had no impairment for these conditions. He noted that the A.M.A., Guides
provide that range of motion is used primarily as a physical examination adjustment factor and,
only if no other approach was available, should an impairment calculation be based on range of
motion. Dr. Slutsky advised that appellant’s most impairing diagnosis was bilateral/lateral
epicondylitis. Under Table 15-4, he determined that appellant had one percent impairment of
each arm due to a diagnosis of lateral epicondylitis.
By decision dated August 21, 2013, appellant was granted schedule awards for one
percent impairment of the right and left arms. The awards totaled 6.24 weeks, to run from
September 21 to November 3, 2011. OWCP credited the opinion of Dr. Markellos who provided
a referee impairment evaluation.4

4

In the August 21, 2013 decision, OWCP identified the conflict as between the opinions of Drs. Graf, Brigham
and Leonard.

5

LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).11 In determining entitlement to a schedule award, preexisting impairment to the
scheduled member is to be included.12
Although the diagnosis-based approach is the preferred method of evaluating permanent
impairment under the sixth edition of the A.M.A., Guides,13 Table 15-2 through Table 15-5
provide that, if loss of motion is present, the impairment may alternatively be assessed under
section 17-7, range of motion impairment.14 A range of motion impairment stands alone and is not
combined with a diagnosis-based impairment.15
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.16 In
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

12

Peter C. Belkind, 56 ECAB 580 (2005).

13

A.M.A., Guides, supra note 4 at 461, section 15.7.

14

Id. at 391-05.

15

Id. at 405.

16

Id. at 449.

6

Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.17
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.18 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.19 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.20
OWCP procedures further provide that, while an OWCP medical adviser may review the
opinion of a referee specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility and not that of OWCP’s medical adviser who should not resolve the
conflict of medical opinion or attempt to clarify or expand the opinion of the medical referee. If
clarification is necessary, a supplemental report should be obtained from the referee specialist.21
ANALYSIS
The accepted conditions in this case are bilateral carpal tunnel syndrome, bilateral/lateral
epicondylitis and bilateral forearm tendinitis.
The Board notes that Dr. Brigham considered appellant’s impairment rating on two
occasions. OWCP procedures indicate that only after a case has been referred for a referee
examination, is it necessary to route the file to a new OWCP medical adviser for schedule award
calculation review.22 In this case, OWCP referred appellant’s file to Dr. Brigham in
December 2010 and October 2011, prior to its determination in May 2012 that a conflict in
medical evidence arose. There was no error in referring the record to Dr. Brigham on two
occasions. The Board also notes that, although Dr. Slutsky submitted two reports dated
17

Id. at 448-50.

18

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

19

20 C.F.R. § 10.321.

20

V.G., 59 ECAB 635 (2008).

21

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(g)(1,2) (February 2013).
22

Id.

7

November 13, 2012 and July 24, 2013, he merely requested OWCP to obtain additional test
reports. In the second report, he reviewed the record including the additional evidence.
As to appellant’s arguments regarding the statement of accepted facts, OWCP procedures
provide that the statement of accepted facts should include accepted conditions.23 There is no
mandate that it include preexisting or subsequently acquired conditions. OWCP has not accepted
that appellant sustained an employment-related shoulder condition. However, as discussed
below, preexisting impairment to a scheduled member is to be included in an impairment
analysis.24
Regarding the identified conflict in medical opinion, the Board notes that OWCP stated
that it arose between Dr. Leonard, who provided a second opinion evaluation for OWCP, and
Dr. Brigham, an OWCP medical adviser. The Board has held a conflict in medical evidence is
created between the medical opinion of an employee’s physician and the medical opinion of
either a second opinion physician or an OWCP medical adviser, not between two OWCP
physicians.25 Since the conflict in this case was between two OWCP physicians, Dr. Markellos
cannot serve as a referee physician. His opinion cannot be accorded the special weight accorded
an impartial examiner.26 Dr. Markellos’ opinion, however, can still be considered for its own
intrinsic value.27 His impairment conclusion, as supported by that of Dr. Leonard and
Drs. Brigham and Slutsky, OWCP medical advisers, constitutes the weight of the medical
evidence that appellant has one percent impairment of each arm due to epicondylitis and no
impairment of either arm due to carpal tunnel syndrome. Both Dr. Leonard and Dr. Markellos
performed thorough physical examinations. Dr. Leonard advised that, in accordance with the
A.M.A., Guides, utilizing the diagnosis-based impairment methodology, under Table 15-4,
appellant had one percent impairment of each upper extremity due to bilateral elbow
epicondylitis. He found no impairment due to carpal tunnel syndrome, noting that there were no
sensory deficits on his examination. Dr. Leonard concluded that appellant had one percent
impairment of each arm. Dr. Markellos agreed with this conclusion regarding appellant’s upper
extremity impairments, as did Dr. Brigham in his October 27, 2011 report and Dr. Slutsky on
July 24, 2013.
While Dr. Graf performed an impairment evaluation, he did not appropriately follow the
process outlined in the A.M.A., Guides. Rather he did not reference tables other than Table 151, Definition of Impairment Classes. As Dr. Graf did not properly follow the procedures
outlined in the A.M.A., Guides, his opinion is of diminished probative value.28 The Board
23

Id. at Chapter 2.809.5 (February 2013).

24

Peter C. Belkind, supra note 12.

25

5 U.S.C. § 8123(a); 20 C.F.R. § 10.321.

26

See, e.g., Delphia Y. Jackson, 55 ECAB 373 (2004) (where the Board found that OWCP improperly found a
conflict under 5 U.S.C. § 8123 between two physicians, neither of whom was appellant’s physician; the physician
selected to resolve the assumed conflict was not considered an impartial medical specialist and his report was not
entitled to special weight).
27

See Cleopatria McDougal Saddler, 47 ECAB 480 (1996).

28

R.A., Docket No. 09-2134 (issued August 3, 2010).

8

therefore concludes that the medical evidence of record establishes that appellant has one percent
impairment of each upper extremity due to epicondylitis and no impairment of either upper
extremity due to carpal tunnel syndrome.
CONCLUSION
The Board finds appellant has failed to establish more than one percent permanent
impairment of the right or left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the August 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.29
Issued: September 4, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

29

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 08-2346
Issued: May 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
Appellant filed a timely appeal from a May 9, 2008 nonmerit decision of the Office of
Workers’ Compensation Programs denying reconsideration of a July 12, 2007 merit decision.
As more than a year has elapsed since the last merit decision, dated July 12, 2007, and the filing
of this appeal, by letter postmarked July 15, 2008, the Board lacks jurisdiction over the merits of
appellant’s case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without conducting further merit review.
FACTUAL HISTORY
On May 23, 2006 appellant, a 63-year-old aircraft mechanic, filed an occupational
disease claim (Form CA-2) for hearing loss. He attributed his condition to working in a
1

See 20 C.F.R. §§ 501.2(c) and 501.3.

hazardous noise area. The employing establishment controverted appellant’s claim based on the
absence of rationalized medical evidence supporting his claim.
By decision dated November 13, 2006, the Office accepted appellant’s claim for hearing
loss. However, it denied his claim for a schedule award because the hearing loss was not severe
enough to be considered ratable.
Appellant disagreed and requested reconsideration on June 4, 2007. In support of his
request, he submitted results of a hearing test conducted May 29, 2007.
By decision dated July 12, 2007, the Office denied modification of its November 13,
2006 merit decision.
Appellant disagreed and by request dated April 18, 2008, he requested reconsideration.
He submitted no evidence in support of his reconsideration claim and by decision dated May 9,
2008, the Office denied reconsideration of its prior decision.
LEGAL PRECEDENT
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
Section 10.606(b)(2) of the implementing federal regulations provide guidance for the Office in
using this discretion.2 The regulations provide that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”3
Section 10.608(b) provides that, when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.4 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section

2

20 C.F.R. § 10.606(b)(2).

3

Id.

4

Id. at § 10.608(b).

2

10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.5
ANALYSIS
The Board finds the Office properly denied appellant’s request for reconsideration
without conducting a merit review because he failed to meet any of the three regulatory criteria
justifying merit review.
The Board notes that appellant did not assert that the Office misapplied or misinterpreted
a point of law or advance a new and relevant legal argument. Therefore appellant has not met
either of the first two regulatory criteria justifying a merit review of her claim.
Furthermore, with his application for reconsideration, appellant submitted no new
evidence in support of his reconsideration request. Therefore he has not met the third criterion of
submitting new and relevant evidence requiring the Office to reopen his claim for merit review
and, therefore, the Office properly denied appellant’s reconsideration request.
The Board finds that, as appellant did not meet any of the three criteria warranting further
merit review, the Office properly denied his request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting further merit review because he failed to meet any of the three regulatory
criteria justifying a merit review.

5

Annette Louise, 54 ECAB 783 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 9, 2008 is affirmed.
Issued: May 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARL VINSON MEDICAL CENTER,
Dublin, GA, Employer
__________________________________________

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

Docket No. 07-204
Issued: May 1, 2007

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 October 30, 2006 appellant filed a timely appeal of a December 7, 2005 merit
decision of the Office of Workers’ Compensation Programs denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she
sustained a back condition causally related to factors of her federal employment on
April 23, 2004.
FACTUAL HISTORY
On October 25, 2005 appellant, then a 44-year-old medical records clerk, filed a
traumatic injury claim alleging that on April 23, 2004 she hurt her back bending, stooping and
twisting while picking up medical records. The employing establishment received notice of

appellant’s claim on May 12, 2004. In an accompanying accident report dated May 4, 2004, the
employing establishment indicated that appellant strained her lower back while lifting records on
April 23, 2004, but elected not to file a claim. Appellant was placed on light duty with no further
lifting of records.
In a November 2, 2005 letter, the Office advised appellant that the evidence was
insufficient to support her claim as no diagnosis of any condition resulting from her April 23,
2004 incident had been provided. It asked her to provide additional information, including a
medical report with a firm diagnosis, history of injury and a rationalized explanation as to how
the reported work incident caused or aggravated the diagnosed condition.
In response, the Office received a May 4, 2004 duty status report with a diagnosis of low
back pain signed with an illegible signature. The history of injury indicated that appellant was
lifting files on April 23, 2004 and hurt her lower back. Also received were: a May 4, 2004
report from Clarence Dupkoski, a physician’s assistant, diagnosing mechanical low back pain
after appellant helped move medical files on April 23, 24 and 26, 2004; a May 4, 2004 lumbar
spine x-ray, noting mild degenerative changes; and reports which either predated the alleged
injury of April 23, 2004 or did not relate to appellant’s claimed back condition.1
By decision dated December 7, 2005, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that the incident on April 23, 2004 caused a medical
condition.2
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4 An employee may establish
that the employment incident occurred as alleged but fail to show that her disability or condition
relates to the employment incident.

1

These included: an employing establishment accident report for an April 19, 2002 incident involving an injury
to appellant’s back while pulling records from file room shelves; a June 5, 2003 report from Jack Owen, a
physician’s assistant, diagnosing low back pain; a June 5, 2003 x-ray of the lumbosacral spine, noting a normal
study; and an October 27, 2004 report from Chris May, a physician’s assistant, noting an upper respiratory infection.
2

The Board notes that appellant submitted evidence to the Office subsequent to its December 7, 2005 decision.
The Board cannot consider this evidence, however, as its review of the case is limited to that evidence which was
before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).
3

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

4

Shirley A. Temple, 48 ECAB 404 (1997).

2

To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, she must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s 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
ANALYSIS
Appellant alleged that on April 23, 2004 she injured her back while bending, stooping,
and twisting while picking up medical records. The Office accepted that the incident occurred as
alleged, but denied the claim on the grounds that she had not established an injury as a result of
the incident. The medical evidence does not establish that appellant’s claimed back condition is
a result of the April 23, 2004 incident.
Appellant submitted a report from a physician’s assistant, Mr. Dupkoski. This report,
however, does not constitute probative medical evidence as physicians’ assistants are not
physicians as defined under the Federal Employees’ Compensation Act.6
Appellant also submitted a May 4, 2004 duty status report which contains an illegible
signature. It is well established that, to constitute competent medical opinion evidence, the
medical evidence submitted must be signed by a qualified physician.7 However, there is no
indication of whether the report was signed by a physician. Thus, this report does not constitute
probative medical evidence.
An award of compensation may not be based on appellant’s belief of causal relationship.8
Neither the mere 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 a causal relationship.9 Simple exposure to a workplace hazard

5

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, supra note 4.

6

See 5 U.S.C. § 8101(2). This subsection defines the term “physician”; see Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician); see
also David P. Sawchuk, 57 ECAB ___ (Docket No. 05-1635, issued January 13, 2006) (lay individuals such as
physician’s assistants, nurses and physical therapists are not competent to render a medical opinion under the Act).
7

Vickey C. Randall, 51 ECAB 357, 360 (2000); Arnold A. Alley, 44 ECAB 912, 921 (1993).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Id.

3

does not constitute a work-related injury entitling an employee to medical treatment under the
Act.10
Although the Office had informed appellant of the necessity of submitting medical
evidence from a qualified physician which established causal relationship in its November 2,
2005 letter, she did not submit sufficient medical evidence in support of her claim. As appellant
has failed to submit any medical evidence supporting a causal relationship between a diagnosed
condition and the April 23, 2004 incident, she has failed to meet her burden of proof that she
sustained an injury in the performance of duty, as alleged. Accordingly, the Board finds that the
Office properly denied her claim for benefits under the Act.
CONCLUSION
Appellant has not met her burden of proof in establishing that her back condition was
caused or aggravated by the April 23, 2004 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2007
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

10

20 C.F.R. § 10.303(a).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hazelwood, MO, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 22-0112
Issued: March 22, 2022

Case Submitted on the Record

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

On November 1, 2021, appellant through counsel, filed a timely appeal from a
September 7, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 22-0112.
In a letter dated March 7, 2022, counsel requested that the appeal be dismissed.
The Board has duly considered the matter and concludes that counsel ’s request f or the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the dismissal of the appeal is
granted. The appeal docketed as No. 22-0112 is dismissed.
Issued: March 22, 2022
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

2


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

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

Docket No. 15-1596
Issued: November 5, 2015

Case Submitted on the Record

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

JURISDICTION
On July 20, 2015 appellant filed a timely appeal of a February 9, 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant timely filed an occupational disease claim for
compensation under 5 U.S.C. § 8122(a).
FACTUAL HISTORY
On July 28, 2014 appellant, then a 51-year-old postal clerk, filed an occupational disease
claim (Form CA-2) alleging that she developed loss of hearing due to exposures to automated
1

5 U.S.C. § 8101 et seq.

machinery in the performance of her federal job duties. She indicated that she first became
aware of her condition in 2009 and first realized that her condition was caused by her
employment in 2009. Appellant reported working on automated machinery her entire 26-year
career and alleged that the machines were loud and that dropped equipment was loud. She stated
that her loss of hearing was gradual over a long period of time and that she was currently
experiencing difficulty hearing when others spoke to her. On the reverse of the form, appellant’s
supervisor contended that appellant continued to work and that she first reported her condition on
August 14, 2014.
Appellant submitted a report dated March 27, 2014 from Dr. Maximillian S. Newell, a
Board-certified otolaryngologist. Dr. Newell noted that appellant reported gradual hearing loss
with intermittent tinnitus. He reported that appellant had worked in a high noise environment for
years. Dr. Newell examined appellant’s audiogram and diagnosed mild asymmetrical highfrequency loss. On May 16 and July 18, 2014 he repeated his diagnosis. Dr. Newell opined,
“She has been in the high noise environment for years and this could be a contributing factor.
She states her left ear was closer to the noise source than her right ear.”
In a letter dated August 25, 2014, OWCP requested additional factual and medical
information from appellant including evidence that she timely provided notification of her work
injury, that she actually experienced the work factors alleged, and that she was injured while
performing her federal job duties. It allowed 30 days for a response.
On August 21, 2014 the employing establishment provided noise survey information
dated August 2014. It reviewed this survey and noted that all of the readings were below 85
decibels. The employing establishment stated that appellant worked on a Delivery Bar Code
Sorting Machine (DBCS) which had numerous electric motors as well as small plastic gates. It
further described the nearby sounds of electric forklifts and industrial towing vehicles with
warning beepers. The employing establishment stated that appellant was exposed to DBCS
machine noise for five hours a day six days a week and that soft earplugs were available. It
reported that she continued to experience the described noise exposures.
Appellant responded to OWCP and stated that she was still exposed to hazardous noise at
work. She described working for eight hours a day on loud machinery with no hearing
protection. Appellant indicated that she worked in a warehouse setting with several machines in
the same area running at the same time. She asserted that her hearing loss had a gradual onset
and that she did not realize she was losing her hearing until six months ago. Appellant stated,
“This is why I waited to until now to file my claim, I just did not know what was going on with
me.”
By decision dated February 9, 2015, OWCP denied appellant’s claim finding that it was
untimely filed. It found that she filed her claim on July 28, 2014 for an occupational disease
which she was aware of on January 1, 2009. OWCP found that appellant’s claim was not filed
within the three-year time limitation period and that there was no evidence that her immediate
supervisor was reasonably on notice of her injury.

2

LEGAL PRECEDENT
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.2 Section 8122(b) provides
that, in latent disability cases, the time limitation 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.3 The Board has held that,
if an employee continues to be exposed to injurious working conditions after such awareness, the
time limitation begins to run on the last date of this exposure.4 Even if a claim is not filed within
the three-year period of limitation, it would still be regarded as timely under section 8122(a)(1) if
the immediate superior had actual knowledge of his or her alleged employment-related injury
within 30 days or written notice of the injury was provided within 30 days pursuant to section
8119.5 The knowledge must be such as to put the immediate superior reasonably on notice of an
on-the-job injury or death.6 The Board has indicated that an employee need only be aware of a
possible relationship between his or her condition and his or her employment to commence the
running of the applicable statute of limitations.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 her condition and her 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 she reasonably should have been aware that she 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
ANALYSIS
The Board finds that appellant has established that she filed a timely claim for
compensation under the three-year time limitation of section 8122 of FECA.

2

5 U.S.C. § 8122(a).

3

Id. at § 8122(b).

4

See Linda J. Reeves, 48 ECAB 373 (1997).

5

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

6

Willis E. Bailey, 49 ECAB 511 (1998); B.H., Docket No. 15-0970 (issued August 17, 2015).

7

Edward C. Hornor, 43 ECAB 834, 840 (1992).

8

Larry E. Young, supra note 5.

9

Id.

3

In her notice of occupational disease claim (Form CA-2), appellant advised that she first
became aware of her hearing loss and its relation to her federal employment in 2009. Although
she did not file her claim or give notice to her supervisor until five years later, she continued her
work as a postal clerk. Appellant claimed that she was exposed to loud machinery in the
performance of her duties. The employing establishment supported that she continued to be
exposed to noises from the DBCS machine as well as forklifts and industrial towing vehicles. As
noted, the Board has held that, if an employee continues to be exposed to injurious working
conditions, the time limitation begins to run on the last date of this exposure.10
Because appellant did file a timely claim for compensation while still exposed to loud
working conditions, the case is remanded to OWCP to further develop and adjudicate the claim.
Following this and any other development that it deems necessary, OWCP shall issue a de novo
decision in the case.
CONCLUSION
The Board finds that appellant filed a timely occupational disease claim for compensation
under 5 U.S.C. § 8122(a).

10

B.H., Docket No. 15-0970 (issued August 17, 2015).

4

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2015 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded to OWCP for further
development consistent with this decision.
Issued: November 5, 2015
Washington, DC

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

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

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

5