United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUBMARINE BASE, Silverdale, WA, Employer
__________________________________________

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Appearances:
John Goodwin, Esq., for the appellant
Jim C. Gordon, Jr., Esq., for the Director

Docket No. 06-996
Issued: February 22, 2007

Oral Argument January 10, 2007

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

JURISDICTION
On March 22, 2006 appellant, through counsel, filed a timely appeal of a January 6, 2006
merit decision of the Office of Workers’ Compensation Programs, denying modification of her
wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the August 13, 2001 determination of
her wage-earning capacity in the constructed position of office helper should be modified.
FACTUAL HISTORY
This case has previously been on appeal before the Board. On August 7, 1995 appellant,
then a 39-year-old development program assistant, filed a traumatic injury claim alleging that on
that date she slipped and fell while working at the employing establishment. The Office
accepted her claim for left shoulder and hip contusions, bursitis of the left hip and impingement
syndrome of the left shoulder. The Office also accepted a hip strain on December 11, 1996.

Appellant returned to part-time limited-duty work at the employing establishment until
March 27, 1998. The Office placed her on the periodic rolls effective March 29, 1998.
In a January 5, 2001 decision, the Office found that the constructed position of office
helper represented appellant’s wage-earning capacity.1 In a March 24, 1999 medical report,
Dr. James Russo, Jr., an Office referral physician, opined that appellant could successfully
complete the training program and perform the duties of a cashier II, telephone solicitor and
office helper.2 Appellant requested an oral hearing before an Office hearing representative.
By decision dated April 24, 2001, an Office hearing representative set aside the
January 5, 2001 wage-earning capacity determination and remanded the case to the Office. He
found that appellant did not receive a pretermination notice. On July 6, 2001 the Office issued a
proposed notice of reduction of compensation benefits based on appellant’s ability to perform the
position of office helper.
In a decision dated August 13, 2001, the Office finalized its reduction of appellant’s
compensation effective August 12, 2001. The evidence of record was sufficient to establish that
the position of office helper was medically and vocationally suitable and within appellant’s
commuting area. On August 14, 2001 appellant requested an oral hearing before an Office
hearing representative.
Prior to the January 8, 2002 oral hearing, appellant submitted medical reports dated
August 6 and October 8, 2001 from Dr. Earle who stated that appellant sustained impingement
syndrome of the left shoulder and chronic left hip bursitis. Following the hearing, she submitted
Dr. Earle’s October 24, 2000 report in which he stated that appellant’s left shoulder adhesive
capsulitis and trochanteric bursitis of the left hip were doing well.
By decision dated March 11, 2002, an Office hearing representative affirmed the
August 13, 2001 wage-earning capacity determination. Appellant appealed to the Board.
In a January 10, 2003 decision, the Board found that the Office properly reduced
appellant’s compensation benefits effective August 12, 2001 based on her ability to perform the
constructed position of office helper.3 It found that Dr. Russo’s March 24, 1999 report and
Dr. Earle’s April 20, 2000 OWCP-5c form constituted the weight of the medical opinion
evidence.

1

The physical requirements of the office helper position involved strength levels of 20 pounds occasionally and
10 pounds frequently. It did not involve climbing, balancing, kneeling, crouching, crawling, feeling, tasting/
smelling, far acuity, depth perception, color vision and field vision. The position required occasional stooping and
accommodation for frequent reaching, handling, fingering, talking, hearing and near acuity.
2

In an April 20, 2000 work capacity evaluation (Form OWCP-5c), Dr. Guy H. Earle, an attending Board-certified
family practitioner, stated that appellant could not work eight hours per day because she attended school.
Appellant’s physical limitations included sitting from four to six hours, walking two hours and standing three to four
hours per day and no reaching over her shoulder. Further, appellant could twist, push and pull up to 8 pounds, lift
up to 15 to 20 pounds and squat and kneel occasionally and climb, seldom to occasionally.
3

Docket No. 02-1311 (issued January 10, 2003).

2

By letter dated April 22, 2003, appellant, through counsel, requested reconsideration
before the Office. Counsel contended that appellant was unable to lift 20 pounds based on
Dr. Earle’s April 10, 2003 report. Dr. Earle reiterated his diagnosis of left hip bursitis and left
shoulder impingement syndrome. He stated that these conditions had been stable for some time.
Based on a March 24, 2003 physical capacity evaluation (PCE), Dr. Earle opined that appellant
was limited to sitting one-half to three-quarters of an hour, four to six hours per day, standing
one quarter to one-half hour, three to four hours per eight-hour day and walking one-quarter hour
or less at a time one to two hours per eight-hour day. Appellant could bend, reach with the left
arm and operate foot controls occasionally and squat and kneel seldom. She could not crawl or
climb. Finger manipulation was unrestricted. Based on a March 10, 2003 National Institute for
Occupational Safety and Health (NIOSH) lifting test, Dr. Earle stated that appellant could push
and pull 5 pounds frequently and 15 pounds occasionally, and lift and carry 4 pounds frequently
and 8 pounds occasionally.
By letter dated May 20, 2003, the Office noted that Dr. Earle recommended work
restrictions were more severe than those previously assigned. It requested that he explain the
material worsening of appellant’s work-related conditions to support the need for greater
restrictions. Dr. Earle did not respond.
In a June 25, 2003 decision, the Office denied appellant’s request for reconsideration on
the grounds that the evidence submitted was irrelevant and, thus, was insufficient to warrant a
merit review of her claim. By letter dated July 8, 2003, appellant, through counsel, requested
reconsideration. In a May 27, 2003 report, Dr. Earle stated that appellant continued to have
impingement syndrome in the left shoulder that significantly affected her ability to push, pull, lift
and carry. The bursitis in her hip affected her gait and ability to stand, walk and sit but had
improved somewhat with the addition of medication to her regimen. Dr. Earle stated that these
restrictions were based on the March 10, 2003 PCE. He indicated that another PCE was
performed on May 27, 2003 which found, among other things, that appellant could not lift more
than 14 pounds.
By letter dated August 21, 2003, the Office requested that Dr. Earle explain what caused
appellant’s lifting ability to deteriorate since his April 20, 2000 report, which limited lifting to 15
to 20 pounds to his current restriction of lifting up to 14 pounds. The Office authorized a PCE.
In an August 25, 2003 letter, Dr. Earle stated that appellant’s physical capacities had been
reevaluated using limited testing. He explained that the change from 15 to 20 pounds
occasionally to 14 pounds occasionally did not represent a large deterioration of her physical
capacity. In a report dated September 11, 2003, Dr. Earle reported the results of an August 29,
2003 PCE. He stated that overall appellant’s capacities had not changed significantly compared
to prior ones. Appellant certainly demonstrated capacities that would allow her to work as an
office helper based on the physician’s knowledge of the requirements of this job.
By decision dated October 1, 2003, the Office denied modification of the August 13,
2001 wage-earning capacity determination. Dr. Earle’s opinion constituted the weight of the
medical opinion evidence in finding that appellant was capable of performing the duties of an
office helper.

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In a letter dated November 7, 2003, appellant, through counsel, requested
reconsideration. Counsel stated that Dr. Earle’s October 13, 2003 report established that
appellant was not physically capable of performing the office helper position.
In a decision issued on November 20, 2003, the Office denied appellant’s request for
reconsideration as it neither raised substantive legal questions nor included pertinent new and
relevant evidence and, thus, it was insufficient to warrant a merit review of its prior decisions.
By letter dated December 3, 2003, appellant, through counsel, requested reconsideration.
In a May 21, 2004 decision, the Office denied modification of the August 13, 2001 wageearning capacity determination. The evidence of record failed to establish that appellant was
unable to perform the duties of the office helper position based on Dr. Earle’s October 13, 2003
report. The Office noted that Dr. Earle stated that he did not have an opportunity to review a
description of the job analysis for the office helper position prior to writing his September 11,
2003 report. He indicated that some of the duties of the position were somewhat more
demanding than similar job analyses in the state system. Dr. Earle opined that appellant should
be able to perform the duties of the constructed position with limitations which included carrying
2 pounds frequently and 5 pounds occasionally at a sedentary level and lifting 5 pounds
frequently and 11 pounds occasionally at shoulder and overhead levels.
On June 18, 2004 appellant appealed to the Board. By order dated January 7, 2005, the
Board remanded the case to the Office for reconstruction of the case record.4
On May 5, 2005 the Office reissued its May 21, 2004 decision, denying modification of
the August 13, 2001 wage-earning capacity determination. On May 25, 2005 appellant appealed
to the Board. By order dated November 1, 2005, the Board again remanded the case to the
Office for reconstruction of the case record.5
On January 6, 2006 the Office reissued its May 5, 2005 decision, denying modification of
the August 13, 2001 wage-earning capacity determination. It found that the evidence of record
failed to establish that appellant could not perform the duties of the constructed position of office
helper.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
4

Order Remanding Case, Docket No. 04-1762 (issued January 7, 2005).

5

Order Remanding Case, Docket No. 05-1304 (issued November 1, 2005).

6

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

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the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.7 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS
The Board finds that appellant did not meet her burden of proof to modify the August 13,
2001 wage-earning capacity. The evidence of record fails to establish that there was a material
change in her accepted conditions, that she was vocationally rehabilitated or that the original
determination was made in error.
Dr. Russo, an Office referral physician, reviewed a description of the office helper
position and opined in a March 24, 1999 report that appellant could perform the duties of this
position. In an April 20, 2000 OWCP-5c form, Dr. Earle, an attending physician, set forth
physical limitations defining appellant’s capacity for work. Based on this evidence, the Office
determined appellant’s wage-earning capacity as an office helper.
Appellant has not submitted sufficient medical evidence to establish a material change in
the nature and extent of her accepted left shoulder and hip contusions, bursitis of the left hip,
impingement syndrome of the left shoulder and hip strain.
In an April 10 2003 report, Dr. Earle stated that appellant could lift and carry four pounds
frequently and eight pounds occasionally. On May 27, 2003 he indicated that appellant’s
employment-related conditions affected her ability to push, pull, lift, carry, stand, walk and sit
based on a March 10, 2003 PCE. Dr. Earle advised that appellant could not lift more than 14
pounds. In an October 13, 2003 report, he reiterated that appellant could perform the office
helper position with the restrictions of lifting no more than 5 pounds frequently and 11 pounds
occasionally. Regarding appellant’s lifting restrictions, Dr. Earle stated on August 25, 2003 that
the change from 15 to 20 pounds to 14 pounds did not represent a significant deterioration of her
physical capacity. On September 11, 2003 he stated that appellant could perform the office
helper position as the August 29, 2003 PCE did not show a significant change in her capacities
compared to prior evaluations. The Board finds that Dr. Earle did not support a material change
in the nature or extent of appellant’s accepted condition. He noted familiarity with the office
helper position and explained that he did not observe a material change in appellant’s capacity
for employment. Dr. Earle characterized the change in lifting restrictions as not significant.
Appellant has not submitted evidence to show that the original August 13, 2001
determination regarding her wage-earning capacity was erroneous. On appeal, appellant
contends that at the time of the Office’s August 13, 2001 decision, Dr. Russo’s March 24, 1999
report was too old to serve as a basis for the reduction of her compensation. It is well established
that a wage-earning capacity determination must be based on a reasonably current medical
evaluation.9 However, in this case, appellant’s wage-earning capacity was based on Dr. Russo’s
7

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

8

Id.

9

Carl C. Green, Jr., 47 ECAB 737 (1996).

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March 24, 1999 report, as well as Dr. Earle’s April 20, 2000 OWCP-5c form. Both physicians
were consistent with the physical requirements of the constructed office helper position. Neither
physician reported that appellant was totally disabled due to residuals of her accepted conditions.
Appellant further contends that the Office improperly reduced her compensation because
it did not send Dr. Earle a description of the office helper position. Dr. Earle stated in his
October 13, 2003 report that he did not have a chance to review the job analysis for the office
helper position prior to writing his September 11, 2003 report. He noted that the tasks of the
constructed position were more demanding than similar job analyses in the state system.
However, Dr. Earle did not change his opinion that appellant could perform the office helper
position. He merely modified restrictions for her while working in the constructed position
which he stated did represent a material change in her capacity for work.
Appellant did not submit evidence showing a material change in the nature and extent of
her accepted left shoulder and hip contusions, bursitis of the left hip, impingement syndrome of
the left shoulder and hip strain. She did not demonstrate that the Office’s original determination
of her wage-earning capacity was erroneous or that she has been retrained or vocationally
rehabilitated. Appellant has not met her burden of proof to establish that the Office’s wageearning capacity decision should be modified.
CONCLUSION
The Board finds that appellant has failed to establish a basis for modification of the
August 13, 2001 wage-earning capacity rating as an office helper.

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ORDER
IT IS HEREBY ORDERED THAT the January 6, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2007
Washington, DC

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

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

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

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

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

Docket No. 18-1631
Issued: April 1, 2019

Case Submitted on the Record

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

JURISDICTION
On August 28, 2018 appellant, through counsel, filed a timely appeal from a July 26, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than
180 days has elapsed from the last merit decision dated September 21, 2016 to the filing of this

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

The Board notes that following the July 26, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On December 3, 2014 appellant, then a 38-year-old mail handler assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on November 22, 2014, he injured his lower back
repetitively loading mail trays onto a belt while in the performance of duty. OWCP accepted the
claim for lumbar sprain, a permanent aggravation of displacement of a lumbar intervertebral disc
at L4-5 and L5-S1 without myelopathy, an aggravation of lumbosacral spondylosis, and an
aggravation of spondylolisthesis. Appellant stopped work on November 22, 2014 and returned to
full-time modified employment on December 16, 2015.
On August 10, 2016 appellant filed claims for compensation (Form CA-7) requesting
wage-loss compensation for disability beginning February 10, 2016.
By decision dated September 21, 2016, OWCP denied appellant’s claim for wage-loss
compensation for disability beginning February 10, 2016. It found that he had not submitted
medical evidence establishing that he was unable to work for the period claimed due to his accepted
employment injury.
On December 18, 2017 appellant, through counsel, requested reconsideration. He
contended that the accompanying September 19, 2017 medical report from Dr. Kenneth L.
Renkens, Jr, a Board-certified neurosurgeon, supported that he was disabled from employment
beginning February 10, 2016. Counsel noted that OWCP had failed to consider the report and
cited Board case law finding that OWCP must review all evidence in reaching its decision.
Dr. Renkens reviewed the medical evidence on September 19, 2017. He advised that he
had treated appellant from March 27, 2015 to February 2, 2017. Dr. Renkens discussed
appellant’s history of a November 22, 2014 employment injury and lumbar fusion at L4-5 and L5S1 on August 24, 2015. He noted that appellant had resumed modified employment after the
surgery. Dr. Renkens indicated that he had evaluated appellant on August 26, 2016 for increased
back pain and had recommended a lumbar computerized tomography (CT) myelogram study based
on his level of pain to “assess the status of his fusion to be sure that he did not have a
pseudoarthrosis or a nonunion or nonhealing of the fusion at that time….” He noted that the CT
myelogram study had shown a solid fusion, but that electrodiagnostic testing had revealed changes
in the nerve roots of the lower lumbar spine. Dr. Renkens diagnosed an aggravation of an
underlying degenerative condition. He advised that he had taken appellant off work pending the
results of the CT myelogram as the fusion could be aggravated by his employment duties if it was
not solid. Dr. Renkens related, “Unfortunately, during that period from August 26, 2016 through
3

5 U.S.C. § 8101 et seq.

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December 21, 2016, there was a delay in approval and authorization for that testing so he would
be considered off work and would justify his inability to work at that time.” He opined that
appellant’s employment had aggravated a degenerative condition.
By decision dated July 26, 2018, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 The one-year period for requesting reconsideration
begins on the date of the original OWCP decision, but the right to reconsideration within one year
also accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.6 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s integrated Federal Employees’ Compensation System).7 The Board has found that the
imposition of the one-year limitation does not constitute an abuse of the discretionary authority
granted OWCP under section 8128(a) of FECA.8
OWCP may not deny an application for review solely on the grounds that the application
was not timely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of
error.9 OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows clear evidence of error on the part of OWCP.10
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.11 The Board
notes that clear evidence of error is intended to represent a difficult standard.12 Evidence that does
4

5 U.S.C. § 8128(a); see also Y.S., Docket No. 08-0440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

7

Id. at Chapter 2.1602.4(b) (February 2016).

8

See R.L., Docket No. 18-0496 (issued January 9, 2019).

9

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

10

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 6 at Chapter 2.1602.5(a) (February 2016).

11

R.M., Docket No. 18-1393 (issued February 12, 2019).

12

R.L., Docket No. 18-0496 (issued January 9, 2019).

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not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.13 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.15 The Board makes an independent determination as to whether a claimant has
demonstrated clear evidence of error on the part of OWCP.16
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP issued its last merit decision on September 21, 2016.
Appellant, therefore, had until September 21, 2017 to request reconsideration of that decision.17
As his reconsideration request was not received until December 18, 2017, more than one year after
the September 21, 2016 decision, OWCP properly determined that the reconsideration request was
untimely filed.18 Consequently, appellant must demonstrate clear evidence of error on the part of
OWCP.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP. In its most recent merit decision dated September 21, 2016, OWCP denied his claim for
wage-loss compensation beginning February 10, 2016 as the medical evidence was insufficient to
support that he was disabled causally related to his November 22, 2014 employment injury.
On reconsideration, appellant submitted a September 19, 2017 report from Dr. Renkens.
Dr. Renkens discussed appellant’s history of a November 22, 2014 employment injury treated with
a lumbar fusion at L4-5 and L5-S1 and his subsequent return to modified employment. On
August 26, 2016 he indicated that he had evaluated appellant for complaints of increased pain in
his back and had found that he should not work pending a lumbar CT myelogram study to evaluate
the state of his fusion. Dr. Renkens advised that he was off work until December 21, 2016 due to
a delay in the authorization of the diagnostic testing. He opined that the CT myelogram study had
revealed a solid fusion, but that electrodiagnostic testing had demonstrated changes in the nerve
roots of the lower lumbar spine. Dr. Renkens diagnosed an aggravation of an underlying
degenerative condition due to appellant’s work injury. While he provided some explanation for
his disability determination, as previously noted, clear evidence of error is intended to represent a
difficult standard.19 Even the submission of a detailed, well-rationalized report which, if submitted
before the denial was issued, would have created a conflict in medical opinion requiring further
13

E.B., Docket No. 18-1091 (issued December 28, 2018).

14

J.W., Docket No. 18-0703 (issued November 14, 2018).

15

P.L., Docket No. 18-0813 (issued November 20, 2018).

16

C.Y., Docket No. 18-0693 (issued December 7, 2018).

17

See P.B., Docket No. 17-1963 (issued October 23, 2018).

18

Supra note 5.

19

W.R., Docket No. 18-1042 (issued February 12, 2019).

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development, does not constitute clear evidence of error.20 It is not enough to show that evidence
could be construed so as to produce a contrary conclusion.21 Instead, the evidence must shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision in appellant’s favor.22 The Board finds that the September 18, 2017 report
from Dr. Renkens does not rise to the level of clear evidence of error.23
Counsel, on reconsideration, contended that OWCP had not considered Dr. Renkens’
September 18, 2017 report in its September 21, 2016 decision and noted that Board case law
required OWCP to consider all evidence submitted.24 Dr. Renkens’ September 18, 2017 report,
however, was not before OWCP at the time of the last merit decision issued on
September 21, 2016. OWCP properly undertook a limited review of the report to determine
whether it was sufficient to establish clear evidence of error.25
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

20

E.K., Docket No. 18-0422 (issued August 22, 2018).

21

Id.

22

R.S., Docket No. 18-0505 (issued July 24, 2018).

23

Supra note 19.

24
Counsel cited I.C., where the Board found that a letter from a claimant’s counsel received by OWCP prior to the
one-year time limitation constituted a request for reconsideration. Docket No. 13-0738 (issued July 8, 2013). The
issue in this case, however, is whether the evidence submitted and arguments raised on reconsideration are sufficient
to demonstrate clear evidence of error.
25

Supra note 9.

5

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 1, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, PITTSBURGH
PERFORMANCE CLUSTER, Pittsburgh, PA,
Employer
__________________________________________

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

Docket No. 08-893
Issued: August 22, 2008

Case Submitted on the Record

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

JURISDICTION
On February 5, 2008 appellant filed a timely appeal from a November 28, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs which denied her request for
reconsideration. Because more than one year has elapsed between the most recent merit decision
of the Office dated November 13, 2006 and the filing of this appeal, the Board lacks jurisdiction
to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 12, 2002 appellant, then a 44-year-old customer service support supervisor,
filed a traumatic injury claim alleging that she felt a sharp pain in her left knee on September 18,
2002 while in the performance of duty. She stopped work on November 2, 2002. The Office

accepted the claim for left knee chondromalacia and aggravation of left knee meniscus tear and
authorized a February 11, 2003 left knee osteochondral autograph transfer system surgical
procedure. Appellant returned to light duty on or about March 27, 2003 and stopped work again
on November 8, 2003 due to an accepted left shoulder condition under case number 062096564.1
She subsequently retired on disability in April 2004.
On January 5, 2006 appellant filed a Form CA-7 schedule award claim for her accepted
left knee condition.
In a December 23, 2005 letter, Dr. Lyman S.W. Smith, a Board-certified orthopedic
surgeon, found that appellant had a 21 percent permanent impairment of the left knee. He noted
that appellant had developed reflex sympathetic dystrophy or causalgia of the leg and underwent
a surgical procedure for a Grade 4 articular lesion in the medial femoral condyle. Dr. Smith
rated impairment by identifying a Class 2 to 3 criteria under Table 13-15, page 336 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), as well as significant arthritis as a 15 percent permanent impairment.2 He additionally
noted that appellant had a previous impairment rating of seven percent based on arthritis and
opined that this rating should be combined with her current arthritis rating. Using the Combined
Values Chart on page 604 of the A.M.A., Guides, Dr. Smith opined that appellant had a total 21
percent permanent impairment of the left knee.
In a January 19, 2006 report, an Office medical adviser agreed that appellant had a seven
percent permanent impairment as a result of her meniscectomy. However, he determined that
Dr. Smith’s 15 percent impairment rating for arthritis required further clarification. The Office
medical adviser noted that Table 13-15 of the A.M.A., Guides deals with whole person
impairment, which is not accepted by the Office. He also noted that Dr. Smith failed to
substantiate his rating as no radiologic cartilage interval was provided as required by the A.M.A.,
Guides.3
In a January 24, 2006 letter, the Office requested that Dr. Smith clarify his impairment
rating by providing additional details of how he arrived at the 15 percent permanent impairment.
A copy of the Office medical adviser’s report was provided. The Office did not receive a
response from Dr. Smith.
By decision dated November 13, 2006, the Office granted appellant a schedule award for
seven percent permanent impairment of the left lower extremity.
In an October 18, 2007 letter, appellant requested reconsideration of the Office’s
November 13, 2006 decision. She stated that she had significant arthritis and would eventually
1

The record reflects appellant has several other cases with the Office. These include: case number 062096564
for an accepted left shoulder condition of September 22, 2003; case number 062071083 for an arm condition of
October 7, 2002; and case number 060724117 for an accepted left knee condition of March 19, 1999.
2

A.M.A., Guides 336, Table 13-15, rates impairment due to station and gait disorders of one central or peripheral
nervous system.
3

See id. at 544, Table 17-31.

2

need a total knee replacement due to ongoing pain. Appellant advised that she had another knee
surgery in February 2007 and had to retire due to her knee condition. In an October 16, 2007
letter, Dr. Smith advised that he stood by his previous rating of October 28, 2005.4 Other
medical evidence of file subsequent to the Office’s November 13, 2006 decision did not contain
any information addressing appellant’s impairment.
By decision dated November 28, 2007, the Office denied appellant’s request for
reconsideration without conducting a merit review. It found that she did not provide any
additional relevant medical evidence or legal argument to establish that her schedule award
rating of seven percent to the left lower extremity was incorrect or that she had greater
impairment than that awarded.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.5 Section 10.606(b)(2) of Office
regulations provides that a claimant may obtain review of the merits of the claim by either:
(1) showing that the Office erroneously applied or interpreted a specific point of law;
(2) advancing a relevant legal argument not previously considered by the Office; or
(3) constituting relevant and pertinent new evidence not previously considered by the Office.6
Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.7 The
Board has held that the submission of evidence which does not address the particular issue
involved does not comprise a basis for reopening a case.8 It is well established that evidence
which repeats or duplicates that already of record does not constitute a basis for reopening a case
for merit review.9
ANALYSIS
The only decision before the Board in this appeal is the November 28, 2007 decision
denying appellant’s application for review of the Office’s November 13, 2006 schedule award,
which found that she had a seven percent permanent impairment to her left lower extremity. To
be relevant, the arguments and evidence submitted in support of the October 18, 2007 request for
reconsideration must address whether the Office erred in its determination of the impairment
rating or whether appellant has impairment greater than the amount awarded.
4

The Board notes the prior rating from Dr. Smith was dated December 23, 2005.

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.608(b).

8

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

9

See Arlesa Gibbs, 53 ECAB 204 (2001).

3

In her October 18, 2007 request for reconsideration, appellant advised that she underwent
an additional surgical procedure to her knee, noted the current condition of her left knee and the
possible need for a total knee replacement. However, the matter of determining permanent
impairment of a scheduled member of the body is a medical issue.10 Appellant’s assertions
regarding the extent of her permanent impairment are not relevant to the underlying issue. The
Board has held that the submission of evidence which does not address the particular issue
involved does not comprise a basis for reopening a case.11 Appellant did not allege or
demonstrate that the Office erroneously applied or interpreted a specific point of law. She did
not advance a relevant legal argument not previously considered by the Office. Therefore,
appellant is not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).12
In support of her request for reconsideration, appellant submitted an October 16, 2007
letter from Dr. Smith, who reiterated his prior impairment rating of 21 percent impairment rating
to the left lower extremity. As his letter simply restated his previous opinion, it is cumulative of
evidence already of record. As noted, evidence which repeats or duplicates that already of
record does not constitute a basis for reopening a case for merit review.13 None of the evidence
of record subsequent to the Office’s November 13, 2006 decision addresses appellant’s
impairment rating and is not relevant to the issue at hand. Consequently, appellant is not entitled
to a review of the merits of his claim based on the third requirement under section
10.606(b)(2).14 She did not meet the third criteria for warranting a merit review.
The Board finds that appellant did not meet any of the three criteria warranting further
merit review. The Office properly denied her October 18, 2007 request for reconsideration
without conducting a merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

10

The degree of functional impairment or injury is essentially a medical question that can only be established by
medical evidence. R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007).
11

Joseph A. Brown, Jr., supra note 8.

12

20 C.F.R. § 10.606(b)(2)(i) and (ii).

13

See Arlesa Gibbs, supra note 9.

14

See Joseph A. Brown, Jr., supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2007 is affirmed.
Issued: August 22, 2008
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sharonville, OH, Employer
__________________________________________

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

Docket No. 12-1642
Issued: December 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 30, 2012 appellant, through her attorney, filed a timely appeal of a July 12, 2012
Office of Workers’ Compensation Programs’ (OWCP) merit decision denying her claim for
modification of a loss of wage-earning capacity determination and recurrence of disability.
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.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that her
April 18, 2007 wage-earning capacity determination should be modified; and (2) whether
appellant has established that she sustained a recurrence of total disability commencing
March 30, 2010.
FACTUAL HISTORY
On February 7, 2004 appellant, then a 55-year-old mail handler filed notice of traumatic
injury alleging that she injured her neck and shoulder in the performance of duty on
1

5 U.S.C. § 8101 et seq.

February 6, 2004. OWCP accepted her claim for sprain/strain of the shoulder, upper arm,
trapezius and neck on February 15, 2005 under File No. xxxxxx717.
Appellant filed an occupational disease claim on April 20, 2005 alleging that she
developed bilateral carpal tunnel syndrome due to factors of her federal employment; assigned
OWCP File No. xxxxxx247, which is the claim under which the current appeal is filed. OWCP
accepted her claim on April 28, 2005 for bilateral carpal tunnel syndrome. Appellant underwent
a right carpal tunnel release on October 14, 2005. She returned to light-duty work on
November 8, 2005. On November 28, 2006 OWCP expanded the acceptance of appellant’s
claim to include right wrist tendinitis as a result of her employment duties. Appellant accepted a
light-duty position on January 31, 2007 working as a mail handler. The light-duty position
became available on February 17, 2007.
By decision dated April 18, 2007, OWCP found that appellant’s position of modified
mail handler effective January 17, 2007 fairly and reasonably represented her wage-earning
capacity.
Appellant underwent an open subacrominal decompression and bursectomy with release
of the coracoacrominal ligament on November 19, 2009. She was released to full duty for the
right shoulder on February 26, 2010.
Appellant filed a notice of recurrence of disability on March 30, 2010 alleging on that
date she sustained a recurrence of disability due to her accepted occupational employment injury.
She stated that she was told by the employing establishment that there was no work for her based
on her restrictions. Appellant’s supervisor confirmed this statement. The employing
establishment stated that appellant was in the National Reassessment Process (NRP). Appellant
filed a claim for compensation requesting leave without pay compensation from March 27
through May 4, 2010.
In a report dated April 5, 2010, appellant’s attending physician, Dr. Thomas E. Shockley,
Jr., a Board-certified orthopedic surgeon, stated that appellant had bilateral hand and wrist
discomforts as well as right elbow pain. He found positive Phalen’s and Tinel’s signs and
recommended left carpal tunnel release.
In a letter dated May 12, 2010, OWCP instructed appellant on the basis for modifying a
loss of wage-earning capacity determination and allowed 30 days for a response. Dr. Shockley
referred appellant for electrodiagnostic testing which demonstrated recurrent carpal tunnel
syndrome on the right and mild to moderate carpal tunnel syndrome on the left.
OWCP issued a decision on February 10, 2012 denying appellant’s claim for
compensation. It found that appellant had not submitted the necessary evidence to establish
modification of the April 18, 2007 wage-earning capacity determination.
Appellant requested an oral hearing before an OWCP hearing representative on
February 14, 2012. She testified at the oral hearing on May 16, 2012. Appellant stated that her
limited-duty position was being filled by a coworker.
By decision dated July 12, 2012, an OWCP hearing representative found that appellant
had not established a recurrence of disability or that the loss of wage-earning capacity
2

determination was in error or a material change in the nature and extent of her injury-related
condition.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.2 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.3
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.4
ANALYSIS -- ISSUE 2
In its July 12, 2012 decision, an OWCP hearing representative affirmed the February 10,
2012 decision and denied modification of the April 18, 2007 loss of wage-earning capacity
determination. He found that the duties of the modified position that was the subject of the
original loss of wage-earning capacity decision fairly and reasonably represented appellant’s
wage-earning capacity.
As noted above, OWCP issued a formal loss of wage-earning capacity decision on
April 18, 2007. The employing establishment reassessed appellant’s rated position under NRP,
resulting in a withdrawal of limited duty and a claim for wage-loss compensation beginning
March 27, 2010 filed by appellant. OWCP analyzed the case under the customary criteria for
modifying a loss of wage-earning capacity determination, but did not acknowledge FECA
Bulletin No. 09-05 or fully follow the procedures outlined therein for claims, such as this, in
which limited-duty positions are withdrawn pursuant to NRP.
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.5 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals, and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.6
2

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

3

Id.

4

FECA Bulletin No. 09-05 (issued August 18, 2009).

5

Id.

6

Id. at § I.A. 1-2.

3

As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the August 24, 2011 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate de novo
decision on appellant’s entitlement to wage-loss compensation beginning November 7, 2009.7
CONCLUSION
The Board finds that the case is not in posture for decision and will be remanded to
OWCP for further development.8
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2012 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: December 20, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

See D.T. Docket No. 12-217 (issued October 16, 2012); M.E., Docket No. 11-1416 (issued May 17, 2012).

8

In view of the disposition of the first issue, the second issue regarding a recurrence of disability is moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Jamaica, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0383
Issued: July 1, 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 December 9, 2014 appellant, through counsel, filed a timely appeal from a
November 7, 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.
ISSUE
The issue is whether appellant established that he has more than one percent impairment
of his left upper extremity for which he received a schedule award.
On appeal, appellant, through counsel, contends that he has established a schedule award
for 25 percent impairment of his left upper extremity based on the report of his treating
physician.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 25, 2011 appellant, then a 67-year-old microbiologist, filed a traumatic injury
claim alleging that on April 20, 2011 he tripped and fell and dislocated his forearm bones and
fractured his elbow joint. A closed treatment of the left elbow was performed on the date of
injury. On November 21, 2011 OWCP accepted appellant’s claim for dislocation of elbow and
fracture of coronoid process of elbow.
On May 14, 2013 appellant filed a claim for a schedule award. In support thereof, he
submitted reports dated August 29 and September 21, 2012, wherein Dr. Nader Paksima, an
osteopath and chief of Orthopedic Surgery at Jamaica Hospital Medical Center, noted that he
treated appellant with a closed reduction of the elbow fracture dislocation and then closed
treatment of this injury with follow-up x-rays, physical therapy, and monitoring. Dr. Paksima
noted that he last saw appellant on August 29, 2012 at which time he noted range of motion to
the left elbow from 20 to 135 degrees which lacked 20 degrees of extension. He indicated that
appellant’s ulnar collateral ligament showed approximately 10 to 15 degrees of laxity.
Dr. Paksima noted that the radial collateral ligament was intact, that there was crepitus to
palpatation along the joint, that muscle strength was 5/5 for biceps and triceps, and that his nerve
examination was intact. He further noted that x-rays showed loss of medial-sided joint space as
well as loss of joint space on the lateral side, osteophyte formation and loose bodies around the
elbow, and periarticular calcifications. Dr. Paksima opined that appellant was at maximum
medical improvement. He noted that, based on Table 15-4, pages 399-400 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th
ed. 2009), appellant had a class 2, grade D level of impairment with regard to his collateral
ligament injury and a class 1, grade D level of impairment with regard to his elbow dislocation
and class 1, grade D level of impairment with regard to the coronoid fracture, and a class 1,
grade D impairment with regard to loose bodies or osteochondral lesions. Dr. Paksima stated
that in reaching this conclusion he followed instructions given on page 383 through 390 and the
instructions in section 15.3 of the A.M.A., Guides.
In a February 19, 2013 addendum, Dr. Paksima opined that, pursuant to the sixth edition
of the A.M.A., Guides, appellant had a class 2, grade D degree of impairment, which
corresponded to 25 percent loss of use of the left upper extremity.
On June 20, 2013 OWCP referred the case to an OWCP medical adviser. In a response
of the same date, the medical adviser stated that he needed an addendum showing how
Dr. Paksima arrived at the 25 percent figure.
By letter to Dr. Paksima dated October 10, 2013, OWCP requested a supplemental report
requesting specific information with regard to how he arrived at his conclusion that appellant had
25 percent impairment of the left upper extremity. It advised Dr. Paksima that the report should
include step-by-step calculations noting exact pages and tables. OWCP advised that grade
modifiers should be used and an explanation provided with regard to net modifiers and the
adjustment formula.
In a December 12, 2013 letter, Dr. Paksima stated that appellant had a class 2, grade D
degree of impairment. He stated that, while there was a range given for the class 2 degree of

2

impairment, the subgrading system of letter D pertains to the severity of his impairment, which is
why he picked 25 percent loss of use of the left upper extremity. Dr. Paksima referred to his
prior report of August 29, 2012.
On March 12, 2014 OWCP asked its medical adviser to review appellant’s claim. In a
March 19, 2014 response, the medical adviser contended that Dr. Paksima’s report made no
sense and that he did not believe that Dr. Paksima was familiar with the methodology of the sixth
edition of the A.M.A., Guides. He noted that to properly apply the sixth edition of the A.M.A.,
Guides, one must pick one major diagnosis for a particular joint and use only one method that
gives the highest value. The medical adviser also noted that one does not pick grade D
arbitrarily, but must choose a class and then one can modify the class by using the net modifier
adjustment formula. He recommended obtaining a second opinion by an orthopedic surgeon
familiar with the sixth edition of the A.M.A., Guides.
On June 20, 2014 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for a second opinion. In a July 11, 2014 report, Dr. Askin opined that
appellant had reached maximum medical improvement with regard to his employment injury.
He noted that appellant’s diagnosis was coronoid process fracture with subluxation or dislocation
of the elbow that had been treated. With regard to objective findings, Dr. Askin noted that
appellant may have had some limitation of motion early on, but that his two elbows now have
equal motion. He then applied the sixth edition of the A.M.A., Guides to determine appellant’s
permanent impairment. Dr. Askin indicated that, with respect to analysis on the basis of loss of
motion, none was relevant at the present time because appellant does have equivalent motion for
both flexion and extension of the elbow, and pronation and supination of the forearm. Regarding
the fracture itself, he stated that, pursuant to Table 15-4 on page 399, the residual symptoms
pertaining to the elbow itself were minimal, so based on the fracture, appellant would have a
class 1 Class of Diagnosis with a default consideration of three percent impairment of the upper
extremity. As per Table 15-7 on page 406 of the A.M.A., Guides, the Functional History grade
modifier (GMFH) would be zero, as appellant is able to exercise regularly. As per Table 15-8 on
page 408 of the A.M.A., Guides, Dr. Askin indicated that the Physical Examination grade
modifier (GMPE) would also be zero as there is symmetry to the opposite side. As per Table
15-9 on page 410 of the A.M.A., Guides, the Clinical Studies grade modifier (GMCS) would be
one as the studies confirmed the diagnosis, but the claimant had an excellent outcome. Dr. Askin
then used the net adjustment formula on page 411 of (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX) and found (0-1) + (0-1) + (1-1) = -2. He then found that the net adjustment of -2
translated to a grade A impairment and a final one percent impairment rating. Dr. Askin noted
that he was not provided with any documentation that there was arthritic change secondary to
injury. He also noted that he was provided with Dr. Paksima’s calculation of February 19, 2013
suggesting 25 percent loss of use of the upper extremity, but that he was not provided with
clinical documentation that corroborates that calculation.
OWCP referred the case to a new OWCP medical adviser, and in a report dated
October 21, 2014, the medical adviser agreed with the report of Dr. Askin, and opined that
appellant had one percent impairment of the left upper extremity.
By decision dated November 7, 2014, OWCP issued a schedule award for one percent
impairment of the left upper extremity.

3

LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.4 The A.M.A., Guides has been adopted
by the implementing regulations as the appropriate standard for evaluating schedule losses.5 For
impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician
evaluating permanent impairment to use the sixth edition.6
The sixth edition requires identifying the impairment class for the diagnosed condition,
which is then adjusted by grade modifiers based on functional history, physical examination and
clinical studies.7 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).8
ANALYSIS
OWCP accepted appellant’s claim for a dislocation of his left elbow and a fracture of the
coronoid process of his left elbow. Appellant filed a claim for a schedule award on
May 14, 2013.
In support of his claim for a schedule award, appellant submitted reports by his treating
osteopath, Dr. Paksima, who found that appellant had 25 percent impairment of the left upper
extremity pursuant to the A.M.A., Guides. Dr. Paksima explained his conclusion only by general
references to Table 15-4 at pages 399 to 400 of the A.M.A., Guides and pages 383 through 390
and section 15.3 of the A.M.A., Guides. He did not sufficiently explain how he arrived at his
rating. OWCP, at the advice of its medical adviser, asked Dr. Paksima for a supplemental report.
In a December 12, 2013 addendum, Dr. Paksima again indicated that appellant had a class 2
grade D degree of impairment and 25 percent impairment of his left upper extremity. However,
he did not apply the formula as set forth in the A.M.A., Guides, did not explain how he applied
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013).
7

A.M.A., Guides 494-531.

8

Id. at 521.

4

the grade modifiers to reach a grade D degree of impairment, did not provide mathematical
calculations indicating how he calculated the 25 percent impairment, or sufficiently explain his
calculations pursuant to the A.M.A., Guides. As such, his report was properly found to be of
diminished probative value.
At the suggestion of OWCP’s medical adviser, it referred appellant to Dr. Askin for a
second opinion. Dr. Askin concluded that appellant had one percent impairment of his left upper
extremity. He thoroughly explained his rating process. Dr. Askin noted that, pursuant to Table
15-4 on page 399 of the A.M.A., Guides, appellant had a class 1 diagnosis based on his fracture
with minimal residual symptoms. He then applied the grade modifiers of zero for functional
history, zero for physical examination and one for clinical studies. Applying the formula as set
forth in the A.M.A., Guides, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated
(0-1) + (0-1) + (1-1) = -2. Dr. Askin then moved the grade calculation to the left two spaces and
found that appellant had one percent impairment of the left upper extremity. The medical
adviser agreed with Dr. Askin’s calculations.
As Dr. Paksima did not properly apply the rating criteria of the A.M.A., Guides, OWCP
properly relied on the reports of the second opinion physician, Dr. Askin, as well as the medical
adviser. Dr. Askin and the medical adviser properly applied the appropriate sections of the
A.M.A., Guides, calculated the proper diagnosis class, and applied correct grade modifiers. Both
physicians provided a detailed discussion of how each element of the rating scheme related to
appellant’s impairment. Therefore, OWCP decision finding one percent impairment of the left
upper extremity was proper under the facts and circumstances of this case. There is no probative
medical evidence establishing a greater degree of impairment.9
Appellant may request a schedule award or increased schedule award regarding the left
upper extremity at any time, based on evidence of a new exposure or medical evidence showing
a progression of an employment-related condition resulting in permanent impairment or
increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than one percent
impairment of his left upper extremity for which he received a schedule award.

9

See W.S., Docket No. 14-1184 (issued January 8, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 7, 2014 is affirmed.
Issued: July 1, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elk Grove, IL, Employer
__________________________________________

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

Docket No. 08-332
Issued: May 22, 2008

Case Submitted on the Record

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

JURISDICTION
On November 13, 2007 appellant filed a timely appeal from the September 19, 2007
decision of the Office of Workers’ Compensation Programs which denied his claim of injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
appeal.
ISSUE
The issue is whether appellant sustained an injury causally related to factors of his federal
employment.
FACTUAL HISTORY
On June 21, 2007 appellant, then a 52-year-old mail handler, filed an occupational
disease claim contending that his right shoulder condition was due to repetitive motion required
in his work duties. He first became aware of his shoulder condition on October 25, 2006 and
related it to his federal employment on December 18, 2006. Appellant did not stop work.

Dr. James M. Hills, an attending Board-certified orthopedic surgeon, submitted treatment
notes dated December 15, 2006 to June 6, 2007. He advised that appellant was seen for a threemonth history of right shoulder pain which appellant attributed to heavy lifting and carrying
related to his duties as a truck driver. On examination Dr. Hill found that range of motion of the
cervical spine was normal in all directions; however, appellant exhibited discomfort on extreme
range of motion and Spurlings maneuver. There was no soft tissue swelling or atrophy of the
right shoulder. Dr. Hill diagnosed right shoulder and neck pain consistent with either a rotator
cuff tendinopathy or radiculopathy. On May 8, 2007 he obtained a magnetic resonance imaging
scan which revealed right rotator cuff tendinitis and a suprascapular ganglion, suggestive of a
possible superior labral injury. Dr. Hill stated that appellant’s right shoulder condition was
“probably related to a rotator cuff tendon pathology” consisting of a combination of rotator cuff
impingement syndrome “possibly” in conjunction with a superior labral tear.
On June 21, 2007 appellant further described the pain to his right shoulder and his duties
loading mail trucks to which he attributed his condition. By letter dated July 11, 2007, the Office
requested that he submit additional evidence in support of his claim.
On August 20, 2007 Dr. Hill reviewed his treatment of appellant commencing
December 18, 2006. Appellant attributed his right shoulder condition to heavy lifting while
unloading mail from trucks and in positioning his hands above shoulder level. His symptoms
were localized to the anterior and superior aspects of the deltoid region. Dr. Hill reiterated that
appellant first exhibited a combination of a possible rotator cuff tendinopathy and cervical
radiculopathy; however, subsequent evaluation was more consistent with rotator cuff tendon
pathology. Appellant was last seen on June 5, 2007, at which time Dr. Hill noted that he could
continue with conservative management or consider surgery. He stated that appellant’s right
shoulder symptoms were “likely a result of his repetitive heavy lifting required in his heavy labor
occupation.” Dr. Hill noted that surgery would likely bring relief to appellant’s symptoms and
allow him to resume his normal work duties.
In a September 19, 2007 decision, the Office denied appellant’s claim. It found that the
medical evidence was not sufficient to establish that his right shoulder condition was caused or
aggravated by his accepted work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim. This includes that the individual
is an “employee of the United States” within the meaning of the Act, that the claim was timely
filed within the applicable time limitation period, that an injury was sustained in the performance
of duty, as alleged, and that any disability and condition for which compensation is claimed are

1

5 U.S.C. §§ 8101-8193.

2

causally related to the employment.2 These are the essential elements of each compensation claim
regardless of whether it is predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
those employment factors alleged to have caused or contributed to the presence or occurrence of
the disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed. Stated differently, the medical evidence must establish that the diagnosed condition is
causally related to the employment factors identified by the claimant. The medical evidence
required to establish causal relationship is rationalized medical opinion. Rationalized medical
opinion evidence includes a physician’s rationalized opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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
identified employment factors.4
ANALYSIS
Appellant has attributed his right shoulder condition to his work as a mail handler loading
mail trucks. He was treated by Dr. Hill in December 2006 and related a three-month history of
increasing pain to the region of the right shoulder and cervical spine. Dr. Hill noted that he first
attributed appellant’s symptoms to either a rotator cuff injury or to radiculopathy involving the
cervical spine. On subsequent evaluation, appellant’s pain was localized to the deltoid region of
the right shoulder. Dr. Hill noted that appellant underwent diagnostic testing of the cervical
spine, which revealed moderate to severe spinal stenosis from C4 to C7. Based on this
evaluation, he stated that he did not believe that appellant’s cervical findings accounted for his
discomfort. As to a specific diagnosis, Dr. Hill stated that the magnetic resonance imaging scan
evaluation demonstrated “rotator cuff tendinitis and a suprascapular ganglion suggestive of a
possible superior labral injury.” The treatment notes provided by Dr. Hill did not address the
issue of how appellant’s right shoulder condition was caused or aggravated by the lifting
performed in his duties as a mail handler. In an August 20, 2007 report, Dr. Hill reiterated that
appellant’s findings were more consistent with rotator cuff tendon pathology than a cervical
radiculopathy. He noted that appellant received conservative management and that surgery was
contemplated in the form of arthroscopic subacromial decompression in combination with a
possible resection of the suprascapular ganglion and repair of the superior glenoid labral tear. In
addressing causal relationship, Dr. Hill stated: “I believe that his right shoulder symptoms are
likely a result of his repetitive heavy lifting required in his heavy labor occupation.”

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

Id.

3

The Board finds that the opinion of Dr. Hill is of diminished probative value on the issue
of causal relation. It is well established that a physician’s opinion that a claimant’s illness is
“likely” related to his federal employment, without further medical rationale, is speculative in
nature and insufficient to establish causal relationship.5 To be probative, a physician’s opinion
on causal relationship must provide rationale for the opinion reached and be expressed in terms
of a reasonable degree of medical certainty.6 Dr. Hill’s narrative report to the Office did not
adequately explain the nature of how appellant’s work loading mail trucks caused or contributed
to the development of his right shoulder condition. His conclusion on causal relation is
supported by little more than one sentence in his narrative report. For this reason, the Board
finds that appellant did not submit sufficient medical evidence in support of his claim for
compensation.
CONCLUSION
The Board finds that appellant has not established that his right shoulder condition is
causally related to his duties as a mail handler.
ORDER
IT IS HEREBY ORDERED THAT the September 19, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 22, 2008
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
5

See Cecelia M. Corley, 56 ECAB 662 (2005); Michael R. Shaffer, 55 ECAB 386 (2004); Alberta S. Williamson,
47 ECAB 569 (1996).
6

See Steven S. Saleh, 55 ECAB 169 (2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Yuma, AZ, Employer
__________________________________________

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

Docket No. 14-179
Issued: March 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 1, 2013 appellant filed a timely appeal from the July 3, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on January 25, 2013, as alleged.
On appeal, appellant contends that his injury occurred in the performance of duty. He
further noted that he supplied additional evidence on appeal in support of his claim.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 26, 2013 appellant, then a 31-year-old border patrol agent, filed a traumatic
injury claim alleging that on January 25, 2013, while driving an all-terrain vehicle (ATV), he
approached a curve, his right front tire hit a boulder causing uneven weight distribution, the
vehicle began to rollover, and he was ejected from the vehicle. He noted that as a result of this
incident, he had head swelling to the left side, right wrist swelling, right and left knee pain,
stiffness to the neck and back, and left ankle sprain and swelling. The employing establishment
properly issued appellant an authorization for medical examination (Form CA-16). He was
treated and released at St. Joseph’s Hospital Emergency Room.2
By letter dated February 1, 2013, OWCP informed appellant that it was necessary to
submit further information, including medical information, to support his claim. Appellant did
not file a timely response to OWCP’s letter.
By decision dated March 4, 2013, OWCP denied appellant’s claim as it found that he had
not submitted medical evidence establishing a diagnosis in connection with the accepted
incident.
On March 12, 2013 appellant requested review of the written record by an OWCP
hearing representative.
Appellant submitted a January 25, 2013 injury report by the Buckey Valley Rural
Volunteer Fire District that indicated that he was transported to St. Joseph’s Hospital
complaining of right wrist pain.
Appellant submitted notes from his visit at the Emergency Department at St. Joseph’s
Hospital on January 25, 2013. An emergency room intake note authored by Jason Jacobson, RN,
dated January 25, 2013 indicated that during working hours appellant was thrown from his
vehicle striking his head and was notable for right wrist deformity.
In the CA-16 attending physician’s report form dated January 25, 2013, Dr. Michael
Christopher, a physician Board-certified in emergency medicine, noted that appellant was thrown
from an ATV after it struck a rock. He diagnosed wrist sprain, closed head injury and cervical
strain. Dr. Christopher also checked a box indicating that the injuries were caused or aggravated
by appellant’s employment activity. Appellant had a computerized tomography (CT) scan of the
head, which was interpreted by Dr. James Murphy, a Board-certified radiologist, as evincing no
evidence of acute intracranial abnormality. A CT scan of the cervical spine was interpreted as
detecting no abnormalities. Appellant’s right wrist x-ray, as interpreted Dr. Nell Dunn, a
radiologist, evinced no acute fracture or dislocation.
In a March 12, 2013 note, Richard A. Ramirez, a supervisory border patrol agent, stated
that on January 25, 2013 at approximately 6:30 a.m. appellant was involved a rollover accident
while in the performance of duty and was transported to St. Joseph’s medical facility in Phoenix,

2

When a CA-16 form is properly executed, it creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim.
See Tracey P. Spillane, 54 ECAB 608 (2003); 20 C.F.R. § 10.300(c).

2

Arizona. He further noted that during the accident, appellant sustained injuries to his right wrist,
knees, ankles, head, and cervical spine.
By decision dated July 3, 2013, the hearing representative modified the prior decision by
noting that appellant had established that he had a closed head injury, a right wrist sprain and a
cervical sprain, but that he had not established that these injuries were causally related to the
accepted employment incident and accordingly affirmed the January 25, 2013 decision as
modified.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
OWCP accepted that appellant was involved in a vehicular accident on January 25, 2013
while in the performance of duty and that he was diagnosed with wrist sprain, closed head injury
and cervical sprain. However, it determined that he had not submitted rationalized, probative
medical evidence to establish that the January 25, 2013 employment accident caused the injuries.
3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

3

Appellant submitted records from his visit to the Emergency Department at St. Joseph’s
Hospital on the date of the accident, January 25, 2013. Dr. Christopher, the treating physician at
the Emergency Department, diagnosed appellant with wrist sprain, closed head injury and
cervical strain. He also checked a box indicating that the injuries were caused or aggravated by
appellant’s employment activity described, but he did not explain his answer despite instructions
that asked for an explanation. The Board has held that, without further explanation or rationale,
a checked box on a form report is not sufficient to establish causal relation.7 D. Christopher did
not explain how appellant’s vehicular accident caused his listed injuries. In the absence of such
explanation, his opinion is insufficient to establish causal relationship in this case.8 The record
also contains further reports from St. Joseph’s Hospital; however these reports are not helpful in
establishing a medical diagnosis or causal relationship. Dr. Murphy noted that the CT of
appellant’s head evinced no acute intracranial abnormality and that the CT of the cervical spine
showed no abnormalities. Similarly, Dr. Dunn interpreted an x-ray of appellant’s right wrist as
showing no acute fracture or dislocation.
Appellant also submitted nurse’s intake notes, however, health care providers such as
nurses, physician’s assistants and physical therapists are not physicians under FECA. Thus, their
opinions do not constitute medical evidence and have no weight or probative value.9
The Board notes that appellant’s supervisor indicated that as a result of the January 25,
2013 accident, appellant sustained injuries to his right wrist, knees, ankles, head and cervical
spine. The record also contains a report from the Rural Volunteer Fire District that transported
appellant to the hospital. However, neither of these items constitutes medical evidence. The
issue of causal relationship is a medical one and must be resolved by probative medical opinion
from a physician.10
The Board, however, notes that where, as in this case, an employing establishment
properly executes a Form CA-16 which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the CA-16 form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination
or treatment regardless of the action taken on the claim.11 The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated
earlier by OWCP.12 The record is silent as to whether OWCP paid for the cost of appellant’s
examination or treatment for the period noted on the form.

7

See also T.C., Docket No. 12-1766 (issued February 4, 2013); Calvin E. King, 51 ECAB 284 (2000); Debra S.
King, 44 ECAB 203 (1992).
8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

See George H. Clark, 56 ECAB 162 (2004); Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2).
This subsection defines the term physician. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the
Board held that medical opinion, in general, can only be given by a qualified physician).
10

I.A., Docket No. 13-1701 (issued January 17, 2014).

11

See Tracy P. Spillane, 54 ECAB 608 (2003).

12

See 20 C.F.R. § 10.300(c).

4

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.13 As appellant did not establish that his medical condition was
causally related to the accepted factor of his employment, OWCP properly denied appellant’s
claim.
Appellant submitted new medical evidence on appeal. The Board has no jurisdiction to
review new evidence on appeal.14 However, he may submit evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on January 25, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 3, 2013 is affirmed.15
Issued: March 9, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

14

See 20 C.F.R. § 501.2(c)(1).

15

Richard J. Daschbach, Chief Judge, who participated in the preparation of the opinion, was no longer a member
of the Board after May 16, 2014.

5


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
B.O., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
Grand Canyon, AZ, Employer
________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1753
Issued: March 20, 2013

Case Submitted on the Record

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

JURISDICTION
On August 14, 2012 appellant, through his attorney, filed a timely appeal of a March 8,
2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying his claim for
compensation benefits and a June 29, 2012 nonmerit decision. 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 both the merit and nonmerit issues of the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing that he
is entitled to compensation for lost wages from September 28, 2008; and (2) whether OWCP
properly denied appellant’s request for reconsideration of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2007 appellant, then a 47-year-old criminal investigator, filed an
occupational disease claim alleging that he developed post-traumatic stress disorder due to
processing multiple child fatalities. On May 27, 2009 Dr. Thomas Best, a Board-certified
psychiatrist, examined appellant and diagnosed post-traumatic stress disorder, chronic and
severe, major depressive disorder, alcohol dependence in partial remission and severe
occupational stress. He noted that appellant reported that he was a social drinker prior to the
death of a young girl in October 2007. Appellant then began to escalate his alcohol use due to
flashbacks and insomnia. He drank up to a fifth of liquor nightly, but eventually sought
treatment at the Betty Ford Clinic receiving a diagnosis of alcohol dependence and posttraumatic stress disorder.
Dr. William Firth, a Board-certified internist, examined appellant on May 28, 2009 and
diagnosed depression, post-traumatic stress disorder, obesity and mild hypertension. He noted
that appellant’s chief complaint was self-medication with alcohol for post-traumatic stress
disorder symptoms. Dr. Firth stated that appellant began drinking in October 2007 due to the
death of a child at work. He stated that appellant sought treatment for alcohol abuse on
October 9, 2008 at the Betty Ford Clinic and stayed for one month. Appellant drank on six
occasions since his discharge.
Appellant was admitted to The Meadows from May 23 through June 19, 2009 due to
alcohol dependency, post-traumatic stress disorder, major depressive disorder and psychosocial
stressors with regard to occupational exposures and was discharged against medical advice. He
returned to work from July 2 through 6, 2009.
By decision dated December 23, 2009, OWCP accepted appellant’s claim for posttraumatic stress disorder and major depression recurrent. On October 1, 2009 appellant received
psychiatric emergency services due to alcohol use and suicidal ideation.
Appellant filed claims for compensation on July 14, 2010 from September 28, 2008
through August 15, 2009, and on October 4, 2010 for August 16, 2009 through January 2, 2010
and January 3 through October 8, 2010. On August 26, 2009 the employing establishment
terminated his availability pay. On December 30, 2009 appellant was removed from the
employing establishment due to failure to meet conditions of his employment.
The employing establishment provided a memorandum stating that on November 22,
2008 appellant was arrested for driving under the influence. On May 13, 2009 appellant was
arrested for driving under the influence and extreme driving under the influence. His supervisor
suspended his law enforcement commission following the second arrest. A Board of Inquiry at
the employing establishment permanently revoked appellant’s law enforcement commission on
October 1, 2009. Scott Hinson requested permanent revocation of appellant’s law enforcement
authority and law enforcement duties which would require his removal from a designated law
enforcement position.
By decision dated May 11, 2011, OWCP denied appellant’s claim for compensation on
the grounds that his monetary entitlement to law enforcement availability pay and wages was as

2

a result of his conduct unbecoming of a law enforcement officer. It stated that his employment
was terminated for cause effective December 27, 2009 due to his personal actions unrelated to
his employment as a criminal investigator. Appellant requested an oral hearing before an OWCP
hearing representative.
Appellant submitted a Merit Systems Protection Board negotiated settlement agreement
dated March 2, 2010. The employing establishment was to remove his SF-50 of his termination
and related paperwork from his official personnel file and accepted appellant’s voluntary
retirement effective January 1, 2010. Appellant was to receive administrative leave pay from
December 21 through 31, 2009. The employing establishment was to cooperate with appellant
on completion of forms related to his OWCP claim.
At the oral hearing on September 28, 2011, appellant described his citation for driving
under the influence on November 22, 2008 stating that he was in his car in his drive way with the
motor running listening to music when he received the citation. He was not convicted of driving
under the influence. Appellant stated that the second arrest on May 13, 2009 was as he drank
beer following the death of an officer in Flagstaff, Arizona.
By decision dated November 7, 2011, the hearing representative denied appellant’s claim
on the grounds that there was no medical documentation discussing appellant’s disability for
work during the periods claimed.
Appellant submitted a report dated November 1, 2011 from Dr. Stephen B. Cook, a
psychologist, diagnosing post-traumatic stress disorder and stating that appellant could not return
to his work at the employing establishment. Dr. Cook further stated, “While the etiology of
[appellant’s] alcohol abuse/dependency is complex (i.e., family history and/or predisposition;
marital conflict/divorce, etc.), it is my judgment that the [post-traumatic stress disorder]
symptoms were the proximate cause of his alcohol abuse/dependency.”
The employing establishment responded to OWCP’s initial request for information on
December 21, 2011 and clarified events as well as appellant’s involvement. It also submitted an
SF-50 indicating that appellant resigned due to personal reasons effective January 1, 2010.
By decision dated March 8, 2012, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision. It found that he had not established that he was
disabled due to his accepted employment injury and entitled to compensation benefits for the
periods claimed based on Dr. Cook’s report.
Counsel requested reconsideration and stated that OWCP did not consider Dr. Cook’s
opinion that appellant’s accepted condition of post-traumatic stress disorder prevented him from
working during the periods claimed. By decision dated June 29, 2012, OWCP declined to
reopen appellant’s claim for consideration of the merits. It found that appellant did not submit
any relevant new argument in support of his request for reconsideration.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for post-traumatic stress disorder and major depression
recurrent on December 23, 2009. Appellant filed claims for compensation from September 28,
2008 through August 15, 2009, August 16, 2009 through January 2, 2010 and January 3 through
October 8, 2010. He voluntarily resigned from the employing establishment on January 1, 2010.
The medical evidence establishes that appellant sought treatment at the Betty Ford Clinic
for alcohol dependence on October 9, 2008 and continued with that treatment for one month.
OWCP has not accepted alcohol dependency as an accepted or consequential condition. The
medical evidence addressing the causal relationship between alcohol dependency and appellant’s
accepted post-traumatic stress disorder consists of the November 1, 2011 report from Dr. Cook,
who stated that appellant’s accepted condition of post-traumatic stress disorder was the
“proximate cause” of his alcohol dependency. While Dr. Cook opined that appellant’s
alcoholism was due to his accepted condition, he did not offer any medical reasoning in support
2

Id.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

4

of his opinion. Medical reports not containing rationale on causal relationship are entitled to
little probative value and are generally insufficient to meet an employee’s burden of proof.8 As
appellant has not established alcoholism as due to his employment or to his accepted posttraumatic stress disorder, OWCP properly denied compensation for hospitalizations due to this
condition.
Appellant also sought in-house treatment from The Meadows from May 23 through
June 19, 2009 and was discharged against medical advice and again from July 2 through 6, 2009.
He received diagnoses including post-traumatic stress disorder, alcohol dependency and major
depression. The medical records from this facility do not specifically address the reasons for
appellant’s hospitalization or his disability for work. As appellant’s alcohol dependency has not
been accepted, there must be some documentation that appellant’s treatment was due to his
accepted conditions and rendered him disabled for work. The record does not contain this
evidence.
Appellant was also briefly treated on October 1, 2010 due to alcohol use and suicidal
ideation. These medical records do not provide the necessary medical evidence addressing
whether appellant was disabled for work due to his accepted employment injuries.
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that he was totally disabled during the periods claimed due to his accepted emotional
conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.9
Section 10.606(b)(3) of the Code of Federal Regulations provide that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.10
Section 10.608 of OWCP’s regulations provide that when a request for reconsideration is timely,

8

S.S., 59 ECAB 315 (2008).

9

5 U.S.C. §§ 8101-8193, 8128(a).

10

20 C.F.R. § 10.606.

5

but does meet at least one of these three requirements, OWCP will deny the application for
review without reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, counsel did not submit any pertinent new
and relevant evidence. He also did not show that OWCP erroneously applied or interpreted a
specific point of law.
Appellant argued that OWCP failed to consider Dr. Cook’s opinion that appellant’s
accepted condition of post-traumatic stress disorder prevented him from working during the
periods claimed. The Board finds that this argument was considered by OWCP in its March 8,
2012 decision. OWCP specifically noted that Dr. Cook diagnosed post-traumatic stress disorder
and stated that appellant could not return to work at the employing establishment. The Board
finds that appellant did not submit a new legal argument and thus OWCP properly declined to
reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that appellant has not submitted sufficient rationalized medical opinion
evidence to establish that he was disabled due to his accepted emotional conditions during the
periods for which compensation is claimed. The Board further finds that OWCP properly
declined to reopen appellant’s claim for consideration of the merits.

11

20 C.F.R. § 10.608.

6

ORDER
IT IS HEREBY ORDERED THAT the June 29 and March 8, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 20, 2013
Washington, DC

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

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

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

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