United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALEXANDRIA MEDICAL CENTER,
Pineville, LA, Employer
__________________________________________

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

Docket No. 13-318
Issued: March 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On November 26, 2012 appellant filed a timely appeal of an August 3, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she injured
her neck, back and left shoulder in the performance of duty.
FACTUAL HISTORY
On June 4, 2012 appellant, then a 39-year-old nursing assistant, filed a traumatic injury
claim alleging that on June 1, 2012 a coworker assaulted her while she was feeding a patient.
1

5 U.S.C. § 8101 et seq.

The employing establishment disputed appellant’s claim stating that the assault occurred as she
was using improper language and struck her coworker with a cart. The employing establishment
alleged willful misconduct on the part of appellant.
Appellant’s alleged assailant, Selena Nicole Gaylor, completed a statement on June 1,
2012 and stated that appellant referred to her as a lesbian and a lock jaw bitch. The police report
stated that Ms. Gaylor struck appellant in the upper left shoulder. Appellant then struck
Ms. Gaylor in the face. Ms. Gaylor stated that appellant was making inappropriate comments
about her to another coworker, she confronted appellant and appellant began to scream at her and
pushed a feeding cart into her.
Appellant confirmed that Ms. Gaylor had come to where she was working and hit her.
Appellant submitted medical evidence diagnosing cervical and thoracic strain.
In a letter dated July 3, 2012, OWCP requested additional factual and medical evidence
from appellant and the employing establishment. On August 3, 2012 the employing
establishment responded and stated that appellant and Ms. Gaylor had been friends, but that their
friendship had ended. It stated that both employees had informed their supervisors that they did
not wish to share responsibilities at work and that they did not get along. Appellant provided no
additional response.
By decision dated August 3, 2012, OWCP denied appellant’s claim finding that she was
not injured in the performance of duty as the assault was the result of a personal matter imported
from outside the employment.
LEGAL PRECEDENT
Congress, in providing for a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might befall
an employee contemporaneous or coincidental with his or her employment; liability does not attach
merely upon the existence of any employee/employer relation.2 FECA provides for the payment of
compensation for disability or death of an employee resulting from personal injury sustained while
in the performance of duty.3 The term “in the performance of duty” has been interpreted to be the
equivalent of the commonly found prerequisite in workers’ compensation law, “arising out of and

2

Minnie N. Heubner (Robert A. Heubner), 2 ECAB 20, 24 (1948); Christine Lawrence, 36 ECAB 422, 42324 (1985).
3

See 5 U.S.C. § 8101 et seq.

2

in the course of employment.”4 “In the course of employment” deals with the work setting, the
locale and time of injury.5 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his master’s business; (2) at a place where he [or she] may reasonably
be expected to be in connection with the employment; and (3) while he [or she] was
reasonably fulfilling the duties of his [of her] employment or engaged in doing
something incidental thereto.”6
This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting but also a causal concept, the requirement being that the
employment caused the injury in order for an injury to be considered as arising out of the
employment, the facts of the case must show some substantial employer benefit is derived or an
employment requirement gave rise to the injury.7
Larson states that assaults arise out of the employment either if the risk of assault is
increased because of the nature or setting of the work or if the reason for the assault was a
quarrel having its origin in the work. Assaults for private reasons do not arise out of the
employment unless, by facilitating an assault that would not otherwise be made, the employment
becomes a contributing factor.8 Generally, the Board has held that personal disputes between
coworkers are not compensable if they arise outside the scope of employment.9
The Board has held that when animosity or a dispute which culminates in an assault is
imported into the employment from a claimant’s domestic or private life, the assault does not
arise in the performance of duty.10 In Agnes V. Blackwell,11 the employee sustained injury
following an assault by a coworker with whom she had been romantically involved outside of
work. The Board denied coverage under FECA, finding that the altercation arose out of a prior
personal relationship between the employee and her coworker. The employee acknowledged
that, during the prior year, she had slept with her coworker on a single occasion but had come to
believe this a mistake as he was married. The Board found that the animosity which precipitated

4

James E. Chadden, Sr., 40 ECAB 312, 314 (1988).

5

Denis F. Rafferty, 16 ECAB 413, 414 (1965).

6

Carmen B. Gutierrez (Neville R. Baugh), 7 ECAB 58, 59 (1954).

7

See Eugene G. Chin, 39 ECAB 598, 602 (1988).

8

A. Larson, The Law of Workers’ Compensation § 8.00 (2006); see also R.S., 58 ECAB 660 (2007).

9

J.F., Docket No. 10-1255 (issued January 5, 2011); George A. Rodriguez, 57 ECAB 224 (2005).

10

R.S., supra note 8.

11

44 ECAB 200 (1992).

3

the assault was imported into the employment from the prior private relationship between the
parties and not out of or in the course of their employment.
ANALYSIS
The Board finds that appellant’s injury on June 1, 2012 did not arise in the course of her
federal employment.
At the time of the assault, appellant was engaged in the performance of her duties as a
nursing assistant, feeding a patient. As noted, however, time, place and manner are not alone
sufficient to establish entitlement to compensation. Appellant must also establish that her injury
arose out of her employment or that a factor of her employment gave rise to the assault.12
The evidence of record does not establish that appellant’s employment contributed to or
facilitated the assault of June 1, 2012.13 The increased risk of injury arose from a prior personal
relationship with her coworker, which was imported into the workplace. Appellant’s injury did
not arise from the type of work she was required to perform as a nursing assistant. Rather, it was
the result of personal animosity that arose out of her private life and prior relationship with her
coworker, an estranged friend.14
CONCLUSION
The Board finds that appellant’s injury on June 1, 2012 did not arise in the course of her
federal employment.

12

Supra note 7.

13

Supra note 8.

14

Supra note 11.

4

ORDER
IT IS HEREBY ORDERED THAT the August 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
U.S. POSTAL SERVICE, OGLETHORPE POST
OFFICE, Savannah, GA, Employer
__________________________________________

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

Docket No. 15-0967
Issued: August 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 25, 2015 appellant filed a timely appeal of a December 31, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has established more than 39 percent permanent
impairment of the left leg, for which he previously received a schedule award.

1

2

5 U.S.C. § 8101 et seq.

Accompanying his request for appeal, appellant submitted additional medical evidence. The Board may not
consider evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the
case. 20 C.F.R. § 501.2(c). Appellant may submit this evidence to OWCP accompanying a valid request for
reconsideration.

FACTUAL HISTORY
OWCP accepted that on November 22, 1996 appellant, then a 54-year-old letter carrier,
sustained a bee sting to the left lower leg. It also accepted that prescribed bed rest for this injury
led to deep vessel thrombophlebitis of the left lower extremity, unspecified deep vessel
thrombosis of the left leg, and postphlebitic syndrome with inflammation of the left lower
extremity. These conditions caused a pulmonary embolism, requiring emergency hospitalization
on February 25, 1997.3 Appellant began outpatient anticoagulation therapy in March 1997. He
retired from the employing establishment, and worked a series of clerical and administrative jobs
in the private sector. Appellant also received wage-loss compensation on the periodic rolls.
Dr. Robert C. Rollings, an attending Board-certified internist specializing in
cardiovascular disease, followed appellant for residual postphlebitic syndrome. He provided
periodic reports and venous Doppler studies through January 2001 diagnosing subacute deep
venous thrombi (DVTs) in the left calf at the common femoral, superficial femoral, peroneal, and
popliteal veins.
On June 18, 2001 appellant filed a claim for an increased schedule award. In a July 16,
2001 report, Dr. Rollings opined that according to the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (hereinafter, A.M.A., Guides)
then in effect, appellant had 50 percent impairment of the left lower extremity due to
postphlebitic syndrome with chronic DVTs. On November 30, 2001 he found a class 3
peripheral vascular impairment of the left lower extremity, due to complications of a
life-threatening pulmonary embolism, demonstrated involvement of the superficial femoral,
popliteal and perineal veins, and chronic deep venous thrombosis and postphlebitic syndrome
requiring lifelong anticoagulation. Appellant also had edema of the left leg only partially
controlled with elastic hosiery.
In a December 20, 2001 report, an OWCP medical adviser reviewed Dr. Rollings’
impairment rating and opined that appellant had 39 percent impairment of the left leg due to
peripheral vascular disease, according to the tables and grading schemes of the fifth edition of
the A.M.A., Guides.
By decision dated February 22, 2002, OWCP issued appellant a schedule award for 39
percent permanent impairment of the left lower extremity. The period of the award ran from
January 18, 2001 to March 15, 2003.
Dr. Rollings continued to follow appellant through 2007 for stable postphlebitic
syndrome of the lower extremities requiring continued anticoagulation therapy and venous
duplex studies. Appellant was hospitalized on September 22, 2013 for anticoagulation therapy to
address a DVT in the proximal superficial femoral and distal popliteal veins.
3

In a January 20, 1998 letter, Dr. Anthony M. Sussman, a Board-certified vascular surgeon and second opinion
physician, explained that the bee sting and bed rest caused a deep venous thrombosis, leading to the pulmonary
embolism. He explained that, if appellant “had not suffered the bee sting then, he would not have been off his feet
and would not have developed the deep venous thrombosis followed by the pulmonary embolism.” Dr. Sussman
recommended that appellant be limited permanently to sedentary work.

2

On May 1, 2014 appellant claimed a schedule award. He submitted a May 1, 2014
impairment rating from Dr. Rollings, opining that according to Table 4-12, pages 68 and 69 of
the sixth edition of the A.M.A., Guides,4 appellant had a class IV-E or 65 percent Class of
Diagnosis (CDX) impairment of the left lower extremity due to postphlebitic syndrome/chronic
DVT, complicated by recurrent pulmonary embolism, vascular damage, and severely abnormal
venous duplex studies.
On May 13, 2014 the medical adviser reviewed Dr. Rollings’ impairment rating. He
found that appellant had reached maximum medical improvement as of May 1, 2014. The
medical adviser disagreed with Dr. Rollings’ rating methodology. He found that according to
Table 4-12, a class 1 quadriceps impairment equaled six percent impairment of the left leg.
Appellant did not have a higher class of impairment as there was no vascular damage to the left
leg, such as from a healed amputation or vascular disease with amputation of two or more toes.
The medical adviser found a grade modifier for Functional History (GMFH), grade modifier for
findings on Physical Examination (GMPE), and a grade modifier for Clinical Studies (GMCS) of
1. Applying the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX),
or (1-1) + (1-1) + (1-1), resulted in a net adjustment of zero, leaving the final impairment rating
at six percent of the left lower extremity.5
In a September 11, 2014 letter, OWCP advised appellant of the additional evidence
needed to establish his claim, including an impairment rating from his attending physician
according to the sixth edition of the A.M.A., Guides. Appellant was afforded 30 days to submit
such evidence. In response, he submitted an October 3, 2014 report of Dr. Larry Horesh, an
attending Board-certified diagnostic radiologist, who opined that a venous duplex study showed
postphlebitic syndrome complicated by a history of left leg DVT with duplex stigmata of chronic
left femoral DVT and reflux, clinical left distal calf claudication, and possible arterial pathology.
By decision dated December 31, 2014, OWCP denied appellant’s claim for an increased
schedule award, finding that the six percent impairment found by the medical adviser on review
of Dr. Rollings’ report was less than the 39 percent previously awarded.
LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
4

According to Table 4-12, pp. 68-69 of the A.M.A., Guides, “Criteria for Rating Impairment due to Peripheral
Vascular Disease -- Lower Extremity; Lower Extremity Peripheral Vascular Disease,” class 4 rating equals a 45 to
65 percent impairment of the lower extremity, characterized by vascular damage and severely abnormal findings on
arterial or venous duplex studies.
5

In a May 14, 2014 addendum, the medical adviser opined that there was no applicable schedule award for
cardiac or pulmonary impairment.
6

5 U.S.C. § 8107.

3

tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.7 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.8
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, in addressing lower extremity impairments, the
evaluator identifies the impairment class for the class of diagnosis, which is then adjusted by
grade modifiers based on functional history, physical examination, and clinical studies.10 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
The lower extremity chapter of the A.M.A., Guides states that vascular conditions are
rated in accordance with section 4.8 of the A.M.A., Guides Vascular Diseases Affecting the
Extremities, and may be combined with diagnosis-based impairments using the Combined
Values Chart.11
Section 9.6 thrombotic disorders states that impairment is based on both the thrombotic
disorder itself and the impact of the thrombosis that has occurred on a particular affected body
system. This includes the degree of injury to the end organ, such as the lungs, heart, brain,
kidney, and extremities from thrombosis and on how the disorder affects the individual’s
capacity to perform the activities of daily living.12 The A.M.A., Guides state, “Regardless of the
system involved, the rating that results due to the sequelae of thrombotic disease should be
combined with the impairment from the thrombotic disease itself (to which is added five percent
for the use of anticoagulants, if appropriate, before combining) using the Combined Values Chart
in the Appendix.”13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the percentage of impairment
using the A.M.A., Guides.14

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides, 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement” (6th ed. 2008).
10

Id. at 494-531 (6th ed. 2008).

11

Id. at 497. See also F.B., Docket No. 13-1755 (issued January 9, 2014).

12

Id. at 206-08, section 9.6 thrombotic disorders.

13

Id. at 207, section 9.6c.

14

Tommy R. Martin, 56 ECAB 273 (2005).

4

ANALYSIS
OWCP accepted appellant’s claim for deep vessel thrombophlebitis, unspecified deep
vessel thrombosis, and postphlebitic syndrome with inflammation of the left lower extremity.
By decision dated February 22, 2002, OWCP granted appellant a schedule award for 39
percent permanent impairment of the left leg. On May 1, 2014 appellant filed a claim for an
increased schedule award. In support of his claim, he submitted a May 1, 2014 impairment
rating from Dr. Rollings, an attending Board-certified internist specializing in cardiovascular
disease, opining that according to Table 4-12 of the sixth edition of the A.M.A., Guides,
appellant had a class IV-E or 65 percent impairment class of diagnosis of the left lower extremity
due to chronic DVT, complicated by recurrent pulmonary embolism, vascular damage, and
severely abnormal venous duplex studies. Appellant also provided an October 3, 2014 venous
duplex study which did not address the issue of permanent impairment.
The medical adviser reviewed Dr. Rollings’ impairment rating on May 13, 2014 and
asserted that Dr. Rollings had misapplied the A.M.A., Guides, as appellant did not have vascular
damage due to amputation or from vascular disease requiring amputation of two or more toes.
He opined that appellant had a class 1 quadriceps impairment, equaling six percent impairment
of the left leg. The medical adviser found grade modifiers of 1 in all categories, resulting in no
net adjustment of the default CDX.
The Board finds that the medical adviser properly applied the sixth edition of the A.M.A.,
Guides to rate impairment to appellant’s left lower extremity. The medical adviser reviewed the
medical evidence and determined that appellant had no more than six percent impairment for the
left leg, which was less than the 39 percent previously awarded. OWCP properly accorded his
assessment the weight of medical opinion. Appellant did not submit medical evidence
conforming to the A.M.A., Guides that established greater impairment. Therefore, OWCP’s
December 31, 2014 decision was proper under the law and facts of the case.
On appeal, appellant asserts that he is entitled to greater than the 39 percent impairment
previously awarded as Dr. Rollings found a 50 or 65 percent impairment. He asserts that he is
totally disabled for work and has difficulty walking. Appellant requests that OWCP grant him an
increased schedule award for the six percent impairment of the left lower extremity as found by
the medical adviser. As stated above, Dr. Rollings’ opinion was insufficient to warrant an
additional percentage of impairment beyond the 39 percent previously awarded. The 6 percent
impairment as found by the medical adviser was not in addition to the 39 percent awarded.
CONCLUSION
The Board finds that appellant has not established more than 39 percent impairment of
the left lower extremity, for which he received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 31, 2014 is affirmed.
Issued: August 13, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, KY, Employer
__________________________________________

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

Docket No. 20-1391
Issued: July 6, 2021

Case Submitted on the Record

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

JURISDICTION
On July 13, 2020, appellant filed a timely appeal from a February 12, 2020 merit decision
and a June 24, 2020 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an injury in
the performance of duty on December 19, 2019, as alleged; and (2) whether OWCP properly

1
2

5 U.S.C. § 8101 et seq.

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

determined that appellant had abandoned her request for an oral hearing before an OWCP hearing
representative.
FACTUAL HISTORY
On December 21, 2019 appellant, then a 51-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 19, 2019 she sustained a lower back and a right leg
injury when she rearranged the contents of her long life vehicle (LLV) while in the performance
of duty. On the reverse side of the claim form, L.P., an employing establishment supervisor,
controverted the claim. She indicated that she had dropped off packages to appellant on the date
of injury, but appellant made no complaints of back pain at that time. L.P. noted that appellant
informed her later that day that her back was hurting. Appellant stopped work on the date of injury.
In a January 6, 2020 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence required and provided a
questionnaire for her completion. OWCP also requested a narrative medical report from
appellant’s treating physician containing a detailed description of findings and a diagnosis,
explaining how appellant’s work activities caused, contributed to, or aggravated her medical
conditions. It afforded appellant 30 days to submit the necessary evidence.
In a January 12, 2019 response to OWCP’s development questionnaire, appellant indicated
that on December 19, 2019 she was in the back of her postal vehicle arranging packages on a shelf.
While in a crouched position, she was lifting a tray weighing approximately 35 pounds, which was
heavier on one end. The tray’s imbalance caused appellant to twist and jerk to prevent it from
falling. She indicated that she sent a text message to her supervisor to request assistance on her
route and to advise that she had hurt her back. Appellant noted that her supervisor was not in the
post office when she returned from her route. She explained that she was scheduled off from work
the following day, December 20, 2019, and attempted to rest. Appellant continued to have pain,
and on December 21, 2019 filed an injury report and thereafter sought medical treatment. She
initially contacted her family physician on December 23, 2019 and was referred to another medical
group that was unable to see her without a claim number. Appellant then obtained an urgent care
appointment on December 27, 2019 where she received a referral for an orthopedic evaluation.
A December 27, 2019 x-ray scan of the lumbar spine revealed no acute abnormality. In a
December 29, 2019 medical note, Jordan McClure, a physician assistant, noted that appellant
presented with ongoing pain in her lumbar and right hip. He assessed right hip joint pain and low
back strain and referred her to orthopedics for further evaluation and treatment.
Dr. John Bartsch, a physical medicine and rehabilitation specialist, saw appellant on
January 13, 2020. He noted complaints of low back and right hip pain which began when she
lifted a tray that twisted and pulled her in an awkward motion while at work on
December 19, 2019. Dr. Bartsch performed a physical examination and reviewed x-ray imaging
of appellant’s lumbar spine and right hip and pelvis, which revealed mild primary osteoarthritis of
both hips. He diagnosed lumbar sprain/strain, prescribed physical therapy and a muscle relaxer,
and provided work restrictions of no more than 10 pounds lifting, pushing, or pulling.

2

In a January 14, 2020 attending physician report (Form CA-20), Dr. Bartsch indicated that
he first examined appellant on January 13, 2020. He reiterated that she sustained a lifting injury
at work on December 19, 2019. Dr. Bartsch diagnosed lumbar strain and opined that appellant
was partially disabled from January 13 to February 13, 2020. He found that she could return to
light-duty work beginning January 13, 2020 with no lifting, pushing, or pulling over 10 pounds.
In an e-mail dated January 14, 2020, L.P. alleged that on December 21, 2019 she provided
appellant with paperwork to seek medical attention at an urgent care or emergency room and
directed appellant to return the completed paperwork that day. She indicated that, despite her
instructions, appellant did not return with the paperwork and appellant did not respond to L.P.’s
telephone call that night.
In a February 12, 2020 memorandum of telephone call (Form CA-110) an OWCP claims
examiner contacted L.P. to inquire whether she received a text from appellant regarding the
December 19, 2019 work injury. L.P. indicated that appellant reported that she did not feel well,
but did not indicate that appellant injured herself.
By decision dated February 12, 2020, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted sufficient evidence to establish that the events occurred as
alleged. It noted that her statements did not align with the supervisor’s statements regarding the
date that the injury was reported.
Dr. Bartsch reevaluated appellant on February 10, 2020 and noted that her pain was
unchanged. On physical examination appellant was found to be tender on the belt line with
tenderness to palpitation to insertion of the hip flexors and around the psoas tendon. Dr. Bartsch
further noted that she had limited range of motion and pain, as well as a positive straight leg raise,
bilaterally, and hip impingement on the right.
A duty status report (Form CA-17) dated February 12, 2020 from an unidentifiable
healthcare provider noted ongoing restrictions and a diagnosis of lumbar sprain and strain.
On February 19, 2020 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received an undated statement, wherein appellant indicated that she
notified her supervisor via text message on December 19, 2019 that she hurt her back rearranging
her LLV. Appellant noted that her supervisor brought her five to six tubs of packages while on
her route and that she hurt her back further by bending over to organize the tubs. She alleged that
her supervisor subsequently sent someone to deliver 15 minutes of her route. OWCP also received
copies of text messages dated December 19, 2019 purportedly between appellant and her
supervisor.3
In a May 4, 2020 notice, OWCP’s hearing representative informed appellant that her oral
hearing was scheduled for June 9, 2020 at 10:30 a.m. Eastern Standard Time (EST). OWCP

3

The text messages contained in the case record are only partially legible.

3

provided a toll-free number and passcode for the hearing. It mailed the notice to appellant’s last
known address of record.
By notice dated May 8, 2020, OWCP informed appellant that it corrected the time for the
June 9, 2020 telephonic hearing to 12:30 p.m. EST. It also provided her with a corrected toll-free
telephone number and passcode. Appellant did not make an appearance and no request for
postponement of the hearing was made.
By decision dated June 24, 2020, an OWCP hearing representative found that appellant
had abandoned her request for an oral hearing as she had received written notification of the
hearing 30 days in advance, but failed to appear. It further noted that there was no indication in
the record that appellant had contacted the Branch of Hearings and Review either prior to, or
subsequent to, the scheduled hearing to explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
To establish that, an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and

4

Supra note 1.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

4

circumstances and his or her subsequent course of action.9 In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met his or her burden of proof when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has met her burden of proof to establish that the
December 19, 2019 employment incident occurred while in the performance of duty, as alleged.
Appellant indicated in her December 21, 2019 claim form, and subsequent statements, that
she sustained low back and right leg injuries on December 19, 2019 when she was lifting and
rearranging packages and trays weighing up to 35 pounds in her LLV, which became imbalanced
and caused her to twist and jerk to prevent them from falling. She also maintained that she reported
her injury via text message to her supervisor on December 19, 2019. Although appellant’s
supervisor, L.P., indicated that appellant had not returned paperwork related to appellant’s claimed
injury on December 21, 2019 as instructed, she acknowledged on the reverse side of the claim
form that although appellant made no mention of an injury when she dropped off packages to
appellant on her route, but she indicated that appellant reported that her back was hurting later in
the day on December 19, 2019. She further confirmed via a telephone call on February 12, 2020
with an OWCP claims representative that appellant text her on December 19, 2019 and reported
that appellant did not feel well.
As noted above, an employee’s statement alleging that an injury occurred at a given time
and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.11
Moreover, Dr. Bartsch’s January 13, 2019 medical report confirms the history of injury as
appellant injuring her lower back and right hip at work on December 19, 2019 when she twisted
and jerked her body in an awkward motion while trying to lift trays. His subsequent reports also
provide a consistent history of an employment injury on December 19, 2019 with clinical findings
and a diagnosis of lumbar strain and sprain.
The Board, therefore, finds that, based on her statements, the medical evidence of record,
and L.P.’s statements, appellant has met her burden of proof to establish that the December 19,
2019 employing incident occurred in the performance of duty, as alleged.
As appellant has established that the December 19, 2019 employment incident occurred as
alleged, the question becomes whether this incident caused an injury.12 As OWCP found that she
9

S.W., Docket No. 17-0261(issued May 24, 2017).

10

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

11

S.A., Docket No. 19-1221 (issued June 9, 2020).

12

C.H., Docket No. 19-1781 (issued November 13, 2020); A.C., Docket No. 18-1567 (issued April 9, 2019).

5

had not established fact of injury, it did not analyze or develop the medical evidence. 13 Thus, the
Board will set aside OWCP’s February 12 and June 24, 2020 decisions and remand the case for
consideration of the medical evidence.14 Following this and other such further development as
deemed necessary, OWCP shall issue a de novo decision addressing whether appellant has met her
burden of proof to establish a diagnosed medical condition causally related to the accepted
December 19, 2019 employment incident and any attendant disability.15
CONCLUSION
The Board finds that appellant has met her burden of proof to establish that the
December 19, 2019 employment incident occurred in the performance of duty, as alleged. The
Board further finds that this case is not in posture for decision with regard to whether she has
established an injury causally related to the accepted December 19, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 24 and February 12 and 2020 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for further
action consistent with this decision of the Board.
Issued: July 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
13

Supra note 8; R.W., Docket No. 11-0362 (issued October 24, 2011).

14

W.R., Docket No. 17-0287 (issued June 8, 2018).

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Little Rock, AR, Employer
__________________________________________

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

Docket No. 14-1992
Issued: January 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2014 appellant, through counsel, filed a timely appeal of a June 26,
2014 decision of the Office of Workers’ Compensation Programs (OWCP), denying his
application for reconsideration without merit review of the claim. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the June 26, 2014 nonmerit decision. Since more than 180 days has elapsed
between the last decision on the merits of the claim for compensation dated October 24, 2013
and the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim
pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant a merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 10, 2012 appellant, then a 54-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on September 11, 2012 he injured his right knee in the
performance of duty. He indicated on the claim form that a cart door struck his right knee.
In a report dated October 22, 2012, Dr. Smitha J. Thomas, a Board-certified family
practitioner, provided a history that appellant had a two-month history of right medial knee pain
after being hit by a door at work. He noted the results of a September 12, 2012 x-ray and
diagnosed enthesopathy of the patellar tendon. By letter dated October 10, 2012, the employing
establishment controverted the claim, stating that appellant now stated the date of injury was
September 4, 2012.
In a report dated March 11, 2013, Dr. Carlos Adams, a Board-certified internist,
diagnosed a right medial meniscus tear and degenerative changes. He indicated that a
February 23, 2013 magnetic resonance imaging (MRI) scan had revealed a medial meniscus tear
and degenerative joint disease.
By decision dated April 26, 2013, OWCP denied the claim for compensation. It found
the evidence was not sufficient to establish an employment incident as alleged.
On June 13, 2013 OWCP received an April 19, 2013 report from Dr. Adams, who again
noted the results on the February 23, 2013 MRI scan. Dr. Adams stated there had been no recent
MRI scan prior to the injury for comparison purposes, but based on the history and examination
results, “it is highly likely that [appellant’s] work injury did exacerbate his right knee
conditions.” According to Dr. Adams, appellant should work with restrictions that included 50pound lifting and no repeated squatting of knee bending.
On August 26, 2013 appellant requested reconsideration. He indicated that the injury
occurred on September 11, 2012 and he reported the injury to his supervisor. Appellant also
indicated that he had knee surgery on August 13, 2013.
By decision dated October 24, 2013, OWCP reviewed the merits of the claim for
compensation. It found the incident occurred as alleged, but the medical evidence was not
sufficient to establish a diagnosed condition causally related to the employment incident.
According to OWCP, Dr. Adams did not provide a rationalized medical opinion on the issue.
On April 17, 2014 appellant requested reconsideration. He submitted a November 16,
2013 report from Dr. Thomas, who stated that he had arthroscopic knee surgery on
August 3, 2013. Dr. Thomas stated that an MRI scan had shown a medial meniscal tear but “I
cannot tell whether it is related to the incident he had at work or whether it is from his [history
of] long time foot problems. [Appellant’s] foot problems are related to his flat feet and also
bunion.” Dr. Thomas provides results on examination and stated that appellant was doing better
since surgery.
By decision dated June 26, 2014, OWCP determined appellant’s request for
reconsideration was insufficient to warrant merit review. It found the report from Dr. Thomas
was similar to reports of record.
2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
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 evidence not previously considered by OWCP.”3
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.4
ANALYSIS
In the present case, appellant submitted an application for reconsideration of the
October 24, 2013 OWCP decision. He did not attempt to show that OWCP erroneously applied
or interpreted a specific point of law, or advance a new and relevant legal argument. Appellant
did submit a November 16, 2013 report from Dr. Thomas. OWCP had denied the claim for
compensation on the grounds that the medical evidence did not establish a diagnosed condition
causally related to the September 11, 2012 employment incident. The question is whether the
evidence submitted is sufficient to reopen the claim for review of the merits of the claim.
While appellant does not have to submit evidence that is sufficient to establish the claim,
he does have to submit relevant and pertinent evidence not previously considered by OWCP. In
this regard the November 16, 2013 report from Dr. Thomas is not sufficient to require OWCP to
reopen the claim for merit review. He confirms that appellant had a medial meniscus tear of the
right knee, which had previously been established. On the critical question of causal relationship
with employment, Dr. Thomas states only that she cannot tell whether it is employment-related,
referring to a long-standing foot problem related to appellant’s flat feet. This does not constitute
relevant and pertinent evidence to the medical issue. As the Board has noted, the term “relevant”
applies to evidence that makes a factor that is of consequence to the determination more probable
or less probable than without the evidence.5 On the issue of causal relationship between a knee
condition and the September 11, 2012 employment incident, the November 16, 2013 report does
not provide relevant evidence.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,

2

5 U.S.C. § 8128(a) (providing that “[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”).
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

5

J.L., Docket No. 13-1010 (issued September 6, 2013).

3

or submit relevant evidence not previously considered by OWCP. Therefore OWCP properly
denied the application for reconsideration without merit review of the claim.
CONCLUSION
The Board finds OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant a merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2014 is affirmed.
Issued: January 21, 2015
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
B.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
SEQUOIA NATIONAL PARK SERVICES,
Three Rivers, CA, Employer
__________________________________________

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

Docket No. 14-796
Issued: September 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 25, 2014 appellant filed a timely appeal from a February 5, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed from issuance of the last merit decision on
January 29, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
his claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 15, 1997 appellant, then a 26-year-old firefighter, injured his right knee while
hiking on a hillside. OWCP accepted the claim for right plica syndrome, right knee sprain and
right patella chondromalacia. It authorized right knee arthroscopies which were performed on
March 3, 1998, February 9, 1999, September 6, 2000 and January 26, 2010.
On January 7, 2011 appellant filed a claim for a schedule award.
On October 5, 2011 OWCP referred appellant for a second opinion evaluation to
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, who was asked to determine
whether appellant had any permanent impairment due to his accepted injury.
In a report dated October 17, 2011, Dr. Swartz, reviewed the statement of accepted facts
and the medical evidence of record. He noted the accepted employment conditions of right knee
strain, right patella chondromalacia and right plica syndrome. The physical examination
revealed that appellant squatted well with both knees, walked without a limp, had good gait, no
right knee instability mild right knee anter-medial tenderness, pain with McMurray’s test
maneuver and reverse McMurray’s maneuver and no pain with patellofemoral compression. The
range motion was -15/120 degrees. Dr. Swartz stated x-rays were required in order to provide an
impairment rating. OWCP authorized the diagnostic testing.
In a November 29, 2011 supplemental report, Dr. Swartz stated that appellant would not
qualify for an impairment rating for knee arthritis under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) as
the cartilage interval was too small. Appellant had flexion contracture up to 15 degrees, which
represented a 20 percent impairment pursuant to Table 16-23 at page 549 of the
A.M.A., Guides.2 Dr. Swartz indicated that 120 degrees of flexion did not qualify for an
impairment rating under this table. Using Table 16-6, functional history adjustment, he found
that appellant remained in class 2 as the grade modifier was zero.3 Dr. Swartz found that
appellant had a 20 percent right lower extremity impairment based on loss of range of motion, a
class 2 moderate impairment under Table 16-25 at page 550 of the A.M.A., Guides.
In a Janaury 20, 2012 report, Dr. Leonard A. Simpson, a medical adviser, concurred with
Dr. Swartz’s impairment rating of 20 percent to the right lower extremity. He noted that
Dr. Swatz recommended a stand alone range of motion impairment rating. Dr. Simpson related
that 15 degrees flexion contracture was considered moderate under Table 16-23 or 20 percent
lower extremity impairment. Under Table 16-25 a moderate impairment was a class 2. Using
Table 16-17, page 545 for functional history adjustment, he found a grade modifier of zero and
no increase in the impairment rating. Thus, Dr. Simpson found a total 20 percent lower
extremity permanent impairment with October 17, 2011 as the date of maximum medical
improvement.

2

A.MA., Guides 549 (6th ed.).

3

Id. at 516, Table 16-6.

2

By decision dated January 29, 2013, OWCP granted appellant a schedule award for a
20 percent impairment of the right lower extremity. The award covered a period of 57.60 weeks
and ran from October 17, 2011 to November 23, 2012.
In a letter dated October 22, 2013, appellant requested reconsideration. He contended
that Dr. Swartz’s evaluation was inaccurate and did not provide accurate range of motion
findings for his right knee.
By decision dated February 5, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS
On January 29, 2013 OWCP issued a decision granting appellant a schedule award for a
20 percent impairment of his right lower extremity. Appellant requested reconsideration of this
decision on October 22, 2013. The issue presented is whether he met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In his request for reconsideration, appellant did not contend that OWCP erroneously
applied or interpreted a specific point of law. He did not advance a new and relevant legal
argument. Appellant also did not submit pertinent new and relevant evidence. He contended
that Dr. Swartz’s opinion was inaccurate as to the physical findings and impairment rating.
Appellant, however, provided no evidence to establish that the physical findings or rating made
by Dr. Swartz were incorrect. A claimant may be entitled to a merit review by submitting
pertinent new and relevant evidence, but he did not submit any evidence in support of his
request.

4

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
5

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
6

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

3

The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Thus, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
CONCLUSION
The Board further finds that OWCP properly denied appellant’s request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2014 is affirmed.
Issued: September 12, 2014
Washington, DC

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

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

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

4


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

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

Docket No. 08-1740
Issued: July 14, 2009

Case Submitted on the Record

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

JURISDICTION
On June 3, 2008 appellant, through counsel, filed a timely appeal of the November 8,
2007 and May 6, 2008 merit decisions denying her recurrence of disability claim. 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 has established that she sustained a recurrence of total
disability from July 20 to October 7, 2007 causally related to her accepted employment-related
injury.
FACTUAL HISTORY
On April 13, 2000 appellant, then a 36-year-old part-time flexible mail handler, sustained
an injury to the back of her right leg and thigh as a result of pulling and pushing mail on and off
a freight elevator. By letter dated January 8, 2001, the Office accepted her claim for lumbar
sprain and lumbosacral neuritis with lumbar decompression surgery at L4-5 which was
performed on May 11, 2001. By letter dated September 20, 2004, it accepted appellant’s claim

for postlaminectomy syndrome. Following intermittent periods of total disability, she returned to
limited-duty work on February 3, 2006 as a part-time flexible modified mail handler.
On August 13, 2007 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period August 2 to 17, 2007.
An August 1, 2007 magnetic resonance imaging (MRI) lumbar scan report of
Dr. Michele M. Keys, a Board-certified osteopath, found degenerative disc disease with
postoperative changes, facet degenerative changes and a degree of biforaminal encroachment,
left side greater than right side at L4-5. Dr. Keys also found fibroid-type tumors. He noted that
a small amount of fluid within the pelvis/posterior cul-de-sac region with differential diagnosis
including, but not limited to benign ruptured ovarian cyst versus infectious/inflammatory process
could not be excluded.
In an August 2, 2007 medical report, Dr. Fernando G. Diaz, an attending Board-certified
neurosurgeon, reviewed a history of appellant’s employment-related injuries and medical
treatment. He reported normal findings on physical and neurological examination. Dr. Diaz
noted that a July 2007 MRI scan of the lumbar spine revealed degenerative disc disease with disc
space narrowing, lateral bilateral foraminal stenosis and nerve root compression at L4-5 with a
subtle remaining pseudomeningocele. He also noted an August 2007 electromyogram (EMG)
revealed chronic left L5 radiculopathy. Dr. Diaz opined that the diagnosed conditions were
causally related to the accepted April 13, 2000 employment injuries. He recommended a
decompressive laminectomy, radical discectomy, posterolateral arthrodesis with posterior
instrumentation and anterior arthrodesis with anterior instrumentation at L4-5 on the left.
On August 14, 2007 appellant filed a claim (Form CA-2a) alleging that she sustained a
recurrence of total disability beginning on August 1, 2007. She stopped work on July 20, 2007.
In an August 13, 2007 form report, Dr. Diaz stated that appellant sustained a displaced lumbar
disc without myelopathy due to her April 13, 2000 employment injuries. He opined that she was
totally disabled commencing August 2, 2007.
In an August 7, 2007 report, Dr. John H. Dooley, Ph.D., a clinical psychologist, reviewed
a history of appellant’s April 13, 2000 employment injuries and medical treatment. He
diagnosed a pain disorder associated with both psychological factors and general medical
conditions. Dr. Dooley stated that appellant experienced a severe single episode of major
depression. His assessment revealed a markedly depressed, frustrated and angry individual.
Dr. Dooley opined that, while appellant’s emotional disruption appeared to be directly related to
her pain and resulting disability, her condition was complicated by a history of developmental
abuse and ingrained feelings of rejection. Appellant had a history of remote and more recent
suicide attempts. Dr. Dooley found no evidence of somatization, secondary gain, environmental
reinforcement, or manipulation of her pain complaints.
By letter dated August 30, 2007, the Office advised appellant that the evidence submitted
was insufficient to establish a recurrence of total disability claim. It requested additional factual
and medical evidence.

2

In a July 10, 2007 report, Dr. Diaz stated that appellant sustained lumbar radiculopathy as
a direct result of her accepted April 13, 2000 employment injuries.
On August 31 and September 14, 2007 appellant filed CA-7 forms for the period
August 18 to 31, 2007 and August 31 to September 14, 2007, respectively. By letters dated
September 11 and October 3, 2007, the Office requested additional medical evidence.1
In an October 1, 2007 report, Dr. Diaz opined appellant’s degenerative disc disease at the
L4-5 level as a direct result of her April 13, 2000 employment-related injuries.
A September 20, 2007 report of Dr. Peter Goodman, Board-certified in emergency
medicine, stated that appellant suffered from acute exacerbation of chronic radicular back pain.
In an October 9, 2007 disability certificate, Dr. Diaz stated that appellant sustained a
lumbar disc. He released her to return to work on October 8, 2007 with restrictions.
On October 27, 2007 Dr. Anthony F. Skalak, an Office medical adviser, reviewed a
history of appellant’s April 13, 2000 employment injuries and medical treatment. He opined that
she sustained degenerative disc disease at L4-5 and bilateral foraminal stenosis which was
causally related to her accepted employment-related injury. Dr. Skalak opined that the requested
decompressive laminectomy with instrumental fusion was medically necessary. He found that
appellant was capable of working in her limited-duty position because it was sedentary in nature
with minimal weight requirements and adequate allowance made for breaks as she required.
Dr. Skalak noted that the symptoms related to her lower extremity and lumbar spine should not
be exacerbated by the performance of her work duties.
On November 7, 2007 the Office accepted appellant’s claim for degenerative disc disease
at L4-5 and bilateral foraminal stenosis.
By decision dated November 8, 2007, the Office denied appellant’s recurrence of
disability claim. It found the medical evidence of record insufficient to establish that she was
totally disabled from July 20 to October 7, 2007 causally related to her accepted employmentrelated injuries. By letter dated November 13, 2007, appellant, through counsel, requested a
telephonic hearing before an Office hearing representative.
In a January 7, 2008 report, Dr. Diaz recommended an MRI scan of the lumbar spine in
preparation for surgery. On January 14, 2008 Dr. Michael J. Paley, a Board-certified radiologist,
performed an MRI scan of the lumbar spine which demonstrated normal discs at T11-12 through
L3-4, an adequate canal diameter and a foramina which appeared patent.
In a January 14, 2008 report, Dr. Diaz stated that appellant suffered from residual
herniated disc lateral into the foramen at L4-5 with the natural progression of degenerative disc
disease at L4-5 following her accepted employment injuries and surgery.
1

Reports covering the period February 2 to December 14, 2007, from physicians whose signatures are illegible,
stated that appellant was status post lumbar surgery and she had depression and insomnia. Appellant received
sacroiliac joint injections. A September 20, 2007 report of a nurse whose signature is illegible stated that appellant
experienced back pain.

3

On February 11, 2008 Dr. James E. Selis, a Board-certified radiologist, performed a
computerized tomography (CT) scan of the lumbar spine. He stated that it demonstrated
levoconvex scoliosis. Dr. Selis found no evidence of disc abnormality, spinal stenosis or
narrowing of the neural foramina at L1-2, L2-3, L3-4 and L5-S1. He noted a previous left-sided
laminectomy at L4-5. Dr. Selis stated that a mild diffuse bulge of the disc and a small protrusion
of the disc on the left that caused some mild effacement of the thecal sac. He further stated that
the neural foramina were normally patent. Dr. Selis concluded that there had been no significant
change based on a September 4, 2007 CT scan.
Hospital records indicate that appellant underwent lumbar surgery on February 21, 2008
which was performed by Dr. Diaz.
Following the March 10, 2008 telephonic hearing, appellant submitted hospital records
and discharge instructions dated February 26, 2008. X-rays of the lumbar spine which were
performed by Dr. Paley on March 10 and 26, 2008 revealed that appellant was status post fusion
at L4-5 and that she sustained levoscoliosis. On March 26, 2008, Dr. Henry C. Tong, a Boardcertified physiatrist, listed appellant’s pain medication. A February 26, 2008 lumbar x-ray report
of Dr. Hugh H. Kerr, a Board-certified radiologist, found no acute process. A February 22, 2008
lumbar x-ray report of Dr. Burton I. Ellis, a Board-certified radiologist, demonstrated five
nonrib-bearing type vertebral bodies. There were transverse fixation screws through the anterior
body of L4 to the superior body of L5 with a fixation plate along the left lateral aspect. There
was also intervertebral spacer at L4-5. In an April 21, 2008 x-ray report, Dr. Paley stated that
appellant was status post fusion at L4-5.
In an undated report, Dr. Diaz stated that appellant sustained a displacement lumbar disc
without myelopathy. In a March 3, 2008 report, he prescribed physical therapy treatment for
appellant’s disc degeneration at L4-5 during the period March 3 to April 9, 2008.
By decision dated May 6, 2008, an Office hearing representative affirmed the
November 8, 2007 decision. The hearing representative found that appellant failed to establish
that she sustained a recurrence of disability during the period July 20 to October 7, 2007.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.2 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.3
2

20 C.F.R. § 10.5(x).

3

Id.

4

When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.4
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.5
ANALYSIS
The Office accepted that appellant sustained lumbar sprain, lumbosacral neuritis with
lumbar decompression surgery at L4-5, postlaminectomy syndrome, degenerative disc disease at
L4-5 and bilateral foraminal stenosis on April 13, 2000. Following these injuries, appellant
returned to limited light-duty work. She claimed a recurrence of total disability from July 20 to
October 7, 2007 causally related to her accepted employment injuries. Appellant must
demonstrate either that her condition changed such that she could not perform the light-duty
activities required by her modified job or that the requirements of the limited light-duty jobs
changed or were withdrawn. The Board finds that the record contains no evidence that the
limited light-duty job requirements were changed or withdrawn or that appellant’s employmentrelated condition changed to the point that she was precluded from engaging in limited light-duty
work.
The diagnostic reports of Dr. Keys, Dr. Selis, Dr. Paley, Dr. Kerr and Dr. Ellis, and
hospital surgical and discharge reports regarding appellant’s lumbar conditions are insufficient to
establish her claim for a recurrence of total disability. These records do not address the issue of
her disability for work from July 20 to October 7, 2007 or how any disability was causally
related to the accepted April 13, 2000 employment injuries.
Dr. Diaz’s July 10, 2007 report stated that appellant sustained lumbar radiculopathy as a
direct result of her accepted April 13, 2000 employment injuries. He addressed the initial injury
accepted in this case and not the alleged recurrence of total disability from July 20 to
October 7, 2007. This report is not relevant to the issue of whether appellant’s disability during
the claimed period was causally related to the April 13, 2000 employment injuries.
Dr. Diaz’s August 2 and October 1, 2007 reports stated that appellant’s degenerative disc
disease at L4-5 with disc space narrowing, lateral bilateral foraminal stenosis, nerve root
compression at L4-5 with a subtle remaining pseudomeningocele and chronic left L5
radiculopathy were causally related to the accepted April 13, 2000 employment injuries. In a
4

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

5

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

5

January 14, 2008 report, he stated that appellant had a residual herniated disc lateral into the
foramen at L4-5 with the natural progression of degenerative disc disease at L4-5 following her
accepted employment injuries and surgery. Although Dr. Diaz stated that the diagnosed lumbar
conditions were causally related to appellant’s accepted employment injuries, he did not provide
any opinion addressing her disability for work from July 20 to October 7, 2007. He did not
address the issue of disability or explain how her condition had changed such that she could not
perform light duty. The Board finds that his reports are insufficient to establish appellant’s
claim.
Dr. Diaz’s January 7, 2008 report stated that appellant required an MRI scan of the
lumbar spine in preparation for surgery. In an undated report, he stated that she sustained a
displacement lumbar disc without myelopathy. On March 3, 2008 Dr. Diaz prescribed physical
therapy. Again, he did not provide any opinion addressing appellant’s disability for work from
July 20 to October 7, 2007. The Board finds that Dr. Diaz’s reports are insufficient to establish
appellant’s claim.
Dr. Diaz’s August 13, 2007 report reiterated that appellant sustained a displacement
lumbar disc without myelopathy due to the April 13, 2000 employment injuries. He opined that
she was totally disabled from August 2, 2007 through postoperation. Dr. Diaz’s October 9, 2007
disability certificate stated that appellant sustained a lumbar disc; however, he released her to
return to work on October 8, 2007 with restrictions. He did not provide any medical rationale
explaining why appellant was disabled as of August 2, 2007 and then released for work as of
October 8, 2007. The Board notes that surgery was not performed until February 21, 2008.
These reports do not adequately explain how appellant’s condition had changed such that she
was incapable of light duty.
Reports covering the period February 2 to December 14, 2007, from physicians whose
signatures are illegible, diagnosed depression and insomnia. Dr. Tong’s reports dated March 26,
2008 listed appellant’s pain medication. Dr. Goodman’s September 20, 2007 report found that
appellant had an acute exacerbation of chronic radicular back pain. This evidence does not
provide any opinion addressing appellant’s disability for work from July 20 to October 7, 2007.
The Board finds that the reports from these physicians are insufficient to establish appellant’s
claim.
Dr. Dooley’s August 7, 2007 report reviewed a history of appellant’s April 13, 2000
employment injuries and medical treatment. He stated that she suffered from pain disorder
associated with both psychological factors and general medical conditions. Dr. Dooley stated
that appellant also experienced a severe single episode of major depression. He opined that,
while her emotional disruption appeared to be directly related to her pain and resulting disability,
her condition was complicated by a history of developmental abuse and ingrained feelings of
rejection. Dr. Dooley noted a history of remote and more recent suicide attempts. He found no
indications of somatization, secondary gain, environmental reinforcement or manipulation of her
pain complaint. Dr. Dooley did not address the issue of how the accepted April 13, 2000
employment injuries caused or aggravated the diagnosed conditions or caused disability for the

6

period claimed.6 Moreover, his report was speculative in nature, stating that it appeared that
appellant’s emotional condition was related to the accepted employment injuries.7 The Board
finds that Dr. Dooley’s report is insufficient to establish appellant’s claim.
The September 20, 2007 report of a nurse whose signature is illegible and the reports of
appellant’s physical therapists have no probative value in establishing appellant’s claim. Neither
a nurse8 nor a physical therapist9 is considered to be a “physician” as defined under the Federal
Employees’ Compensation Act.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related conditions or a change in the nature and extent of the
limited light-duty requirements which would prohibit her from performing the limited light-duty
positions she assumed after she returned to work.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
total disability during the period July 20 to October 7, 2007 causally related to her accepted
employment-related injuries.

6

See Gloria J. McPherson, 51 ECAB 441 (2000) (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).
7

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); D.D., 57 ECAB 734 (2006);
Cecelia M. Corley, 56 ECAB 662 (2005).
8

See 5 U.S.C. § 8101(2); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

9

See David P. Sawchuk, 57 ECAB 316 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2008 and November 8, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0995
Issued: March 2, 2022

Case Submitted on the Record

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

JURISDICTION
On June 17, 2021 appellant filed a timely appeal from a December 21, 2020 nonmerit
decision and an April 15, 2021 merit decision and of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error; and (2) whether
appellant has met his burden of proof to establish permanent impairment of a scheduled member
or function of the body, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 10, 1989 appellant, then a 35-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 1989 he sustained a left knee injury when pulling an allpurpose container (APC) while in the performance of duty. He did not stop work but was granted
disability retirement on March 11, 1992. OWCP accepted that appellant sustained a sprain/strain
of the left knee and leg, a tear of the left lateral meniscus, and left corns/calluses. It authorized
arthroscopic surgery on the left knee, performed on January 23, 1990.3
On April 15, 2005 appellant filed a notice of recurrence of disability (Form CA-2a),
alleging that he experienced pain and weakness in his left knee commencing October 30, 2004,
causally related to the accepted May 10, 1989 employment injury.
By decision dated August 16, 2006, OWCP denied appellant’s recurrence of disability
claim, finding that the evidence of record was insufficient to establish that appellant sustained a
recurrence of disability commencing October 30, 2004 causally related to his work injury of
May 9, 1989.
On November 28, 2006 appellant appealed to the Board. 4 By decision dated June 7, 2007,
the Board affirmed the August 16, 2006 OWCP decision.
OWCP received additional evidence. Appellant subsequently submitted employing
establishment medical records dated March 4, 1977 through June 7, 1988 where he was treated for
several conditions including ankle, toe, right foot, and back pain. He was treated by Dr. Michael
Redlich, a Board-certified neurologist, on February 25, 1992 for cervical and thoracic disc
syndrome. Likewise, from March 12, 1993 through August 11, 2000, Dr. A. Janati, a Boardcertified neurologist, treated appellant for chronic neck and left lower extremity pain. He
diagnosed degenerative arthritis of the cervical and thoracic spine, which was related to trauma
while in the military in 1978. Appellant attended physical therapy from July 17, 1978 through
March 16, 2000. He also submitted a position description for a personnel clerk.
Dr. Azer treated appellant from October 20, 1989 through September 10, 1991 for
callouses on his left foot and left knee pain. OWCP received diagnostic studies from March 3,
1992 through December 21, 2017.

2

Docket No. 07-406 (issued June 7, 2007).

3

On January 23, 1990 Dr. Samir N. Azer, a Board-certified orthopedist, performed arthroscopy of the left knee,
removed loose chondral fracture, shaved crater, and diagnosed loose chondral body of the left knee with greater defect
of the left medial femoral condyle weight bearing surface.
4

Supra note 2.

2

On January 21, 2017 Dr. Ferdinand M. Amante, Jr., an orthopedic surgeon, reevaluated
appellant for a painful left knee. Appellant reported sustaining a proximal left leg fracture at 14
years old and underwent a left knee meniscectomy in 1990. He diagnosed osteoarthritis of the left
knee and left leg length discrepancy which could be an aggravating factor for osteoarthritis.
In a statement dated September 13, 2018, appellant provided a history of his employment
with the Federal Government. He sought to expand the acceptance of his claim to include
aggravated underlying preexisting medical conditions. In a statement dated December 13, 2018,
appellant again requested expansion of his claim.
In a medical certificate and report dated November 20, 2018, Dr. Emiliano B. Tablante, a
Board-certified orthopedist, noted a history of the May 9, 1989 work injury and provided a medical
history from May 1967 through January 2, 2018. He noted that appellant underwent a posterior
decompression L3-4 and L4-5 on January 2, 2018. Dr. Tablante noted findings on examination of
decreased stride length, tight on trapezius, paracervical and lats doris, muscle spasm o f lower
trapezius, intermittent localized pain of the knee and patella, muscle spasm with dull pain in the
feet and hand, and cervical pain with radiculopathy. He diagnosed left ganglion cyst of first
metatarsal head, focal right synovitis, posterior calcaneal spur, left os peroneum, right pes planus,
overpronation of the foot, osteoarthritis changes of the knees, left patella osteophyte, right knee
varus, status post chronic low back pain with radiculopathy, levoscoliosis, compression deformity
of the thoracic spine, thoracic spondylosis, cervical spondylosis with radiculopathy at C4-5, C5-6,
C6-7, mild anterior wedge compression deformities at C5-6, and bilateral carpal tunnel syndrome.
Dr. Tablante opined within a reasonable degree of medical certainty that the above medical
conditions were consequential to the accepted left knee and leg sprain/strain, left lateral meniscus
tear, and left calluses. He recommended further diagnostic work up including epidural cervical
injections and diagnostic arthroscopy of the left knee.
On May 30, 2019 appellant again requested his claim be reopened and expanded to include
additional conditions.
On September 28, 2020 appellant requested reconsideration of the August 16, 2006 OWCP
decision denying his recurrence claim. He alleged clear evidence of error in the last OWCP
decision based on OWCP’s failure to develop his subsequent injury claims after the January 25,
1990 OWCP-authorize arthroscopic left knee surgery revealed loose chondral bodies and defect
of the medial femoral condyle. Appellant also requested a schedule award for the left lower
extremity, and expansion of the acceptance of his claim.
On September 28, 2020 OWCP received an electromyogram (EMG) and nerve conduction
velocity (NCV) study dated September 18, 2003 that revealed multiple peripheral neuropathy,
sensorimotor affecting the lower more than upper extremities without ruling out bilateral chronic
cervical C5-6 radiculopathies and bilateral lumbar L5 radiculopathies. X-rays of the feet dated
October 3, 2017 revealed posterior calcaneal spurs and os peroneum of the left foot. An x -ray of
the right hip dated November 24, 2019 revealed no discrete fracture or dislocation. An x-ray of
both knees dated March 10, 2020 revealed mild degenerative osteoarthritic changes and bilateral
patellar enthresophytes.

3

On October 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated October 20, 2020, OWCP requested that appellant submit an
impairment evaluation addressing whether he had reached MMI and provide an impairment rating
using the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 It afforded him 30 days to submit additional medical
evidence in support of his schedule award claim.
By decision dated December 21, 2020, OWCP denied appellant’s reconsideration request
of the August 16, 2006 recurrence decision, finding that it was untimely filed and failed to
demonstrate clear evidence of error.
By decision dated April 15, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely, it undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates clear evidence of error on the part of OWCP.11
5

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

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

9

G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 8 at Chapter 2.1602.5 (September 2020).

4

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record. 12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, 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 shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP. 14
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures 16 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including a merit decision of the Board.17 The most recent merit decision on the recurrence issue
was the Board’s June 7, 2007 decision, which affirmed the denial of appellant’s claim for a
recurrence of disability on October 30, 2004. As OWCP received his request for reconsideration
on September 28, 2020, more than one year after the June 7, 2007 decision, the Board finds that it
was untimely filed. Because appellant’s request was untimely filed, he must demonstrate clear
evidence of error on the part of OWCP in its August 16, 2006 decision.

12

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (September 2020).

14

U.C., Docket No. 19-1753 (issued June 10, 2020).

15

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (September 2020); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

20 C.F.R. § 10.607(b); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a. (September 2020); R.G., Docket No. 21-0540 (issued November 9, 2021); B.P., Docket No. 20-0178
(issued August 23, 2021); Debra McDavid, 57 ECAB 149 (2005).

5

Appellant submitted employing establishment medical records dated March 4, 1977
through June 7, 1988; treatment notes from Dr. Redlich dated February 25, 1992; reports from
Dr. Janati dated March 12, 1993 through August 11, 2000; physical therapy treatment notes from
July 17, 1978 through March 16, 2000; and reports from Dr. Azer dated October 20, 1989 through
September 10, 1991. These reports are not relevant to the recurrence claim as they predate the
alleged date of the recurrence and do not raise a substantial question as to whether the August 16,
2006 decision was in error. 18
Appellant submitted diagnostic studies dated March 3, 1992 through March 10, 2020
including x-rays, MRI scans, and an EMG/NCV study. Diagnostic studies, standing alone, lack
probative value on the issue of causal relationship. 19 Therefore, none of this evidence manifests
on its face that OWCP committed an error in denying appellant’s claim for recurrence of disability
commencing October 30, 2004. Thus, the evidence is insufficient to demonstrate clear evidence
of error.20
Appellant also submitted a January 21, 2017 report from Dr. Amante who diagnosed
osteoarthritis of the left knee and left leg length discrepancy, which could be an aggravating factor
for osteoarthritis. Similarly, in a medical certif icate and report dated November 20, 2018,
Dr. Tablante provided additional nonaccepted diagnoses and opined within a reasonable degree of
medical certainty the mentioned diagnoses were consequential to the accepted left knee and leg
sprain/strain, left lateral meniscus tear, and left calluses. However, these reports do not address
the claimed recurrence of disability commencing October 30, 2004. Thus, this evidence does not
raise a substantial question as to the correctness of OWCP’s August 16, 2006 merit decision. 21
As appellant has not raised an argument or submitted any evidence that manifests on its
face that OWCP committed an error in denying his recurrence claim, the Board finds that his
untimely request for reconsideration failed to demonstrate clear evidence of error. 22
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of FECA, 23 and its implementing federal regulations,24 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
18

M.P., Docket No. 17-0367 (issued March 12, 2018); Leona N. Travis, 43 ECAB 227 (1991).

19

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
20

J.C., Docket No. 20-1250 (issued May 24, 2021); W.D., Docket No. 19-0062 (issued April 15, 2019).

21

T.C., Docket No. 19-1709 (issued June 5, 2020); B.W., Docket No. 19-0626 (issued March 4, 2020).

22

Id.

23

5 U.S.C. § 8107.

24

20 C.F.R. § 10.404.

6

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. 25 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 26
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 27 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.28 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a d iscussion of how the
impairment rating was calculated. 29 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.30
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment. 31 OWCP procedures, however,
further provide that if a claimant does not provide an impairment evaluation from his or her
physician when requested, and there is an indication of permanent impairment in the medical
evidence of file, the claims examiner (CE) should refer the claimant for a second opinion
evaluation. The CE may also refer the case to the DMA prior to scheduling a second opinion
examination to determine if the evidence in the file is sufficient for the DMA to provide an
impairment rating. If the case is referred for a second opinion, the report should contain the
information described in 6a above.32 If it does not contain this information, clarification with the
second opinion should be sought. 33

25

Id. at § 10.404(a).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
27

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

28

Supra note 8 at Chapter 2.808.5 (March 2017).

29

Id. at Chapter 2.808.6(a) (March 2017).

30

Id. at Chapter 2.808.6(c).

31

Id.

32

Chapter 2.808.6a(1) provides that the medical evidence should include a detailed history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and the appropriate
impairment based on the most significant diagnosis, as well as a discussion of how the impairment rating was
calculated. Supra note 8 at Chapter 2.808.6a.
33

Supra note 8 at Chapter 2.808.6d (March 2017).

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP accepted the claim for sprain/strain of the left knee and leg, a tear of the left lateral
meniscus, left corns/calluses, and aggravation of other spondylosis with radiculopathy,
lumbosacral region. On October 9, 2020 appellant filed a claim for a schedule award. Under
FECA,34 where a claimant is seeking a schedule award, he or she must submit a medical report
that “must contain accurate measurements of the function of the organ or member, in accordance
with the A.M.A., Guides.”35 The burden is on the claimant to provide this evidence. 36
In support of his claim, appellant submitted a November 20, 2018 report by Dr. Tablante.
However, the Board finds that it is of diminished probative value because he neither utilized the
sixth edition of the A.M.A., Guides, nor found that appellant reached MMI. Therefore,
Dr. Tablante’s report is insufficient to establish permanent impairment of a scheduled member or
function of the body causally related to appellant’s accepted employment condition. 37
The remaining medical evidence submitted by appellant is also insufficient to establish
permanent impairment of a scheduled member or function of the body causally related to
appellant’s accepted employment condition as it also does not conform with the protocols of the
A.M.A., Guides.
Accordingly, the Board finds that appellant has not met his burden of proof.
Appellant may request a schedule award, or increased schedule award, at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. The Board
further finds that appellant has not met his burden of proof to establish permanen t impairment of
a scheduled member or function of the body, warranting a schedule award.

34

Supra note 1.

35

20 C.F.R. § 10.333.

36

Id. at § 10.115.

37

See M.G., Docket No. 19-0823 (issued September 17, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 and December 21, 2020 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 2, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9