United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 09-864
Issued: November 6, 2009

Case Submitted on the Record

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

JURISDICTION
On February 12, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 8, 2009 merit decision denying his recurrence of disability
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of total disability on or after October 22, 2007 due to his May 25, 2004 employment
injury.
FACTUAL HISTORY
The Office accepted that on May 25, 2004 appellant, then a 50-year-old maintenance
mechanic, sustained aggravation of a displaced lumbar disc without myelopathy when he twisted
his body while stepping out of a maintenance truck with his left leg forward and his right leg

remaining in the truck.1 Appellant stopped work on May 26, 2004 and returned to light-duty
work for the employing establishment on June 28, 2004.
On February 13, 2005 Dr. Joe Ellis Wheeler, an attending Board-certified neurosurgeon,
performed a hemilaminectomy at L1-2 with discectomy, foraminotomy, osteophytectomy and
decompression of nerve roots, reinforcement of existing fusion and removal of instrumentation at
L5-S1, transforaminal lumbar interbody fusion with instrumentation at L1-2 and lateral
transverse process arthrodesis at L1-2. These procedures were authorized by the Office.
Appellant returned to light-duty work for the employment establishment on August 14, 2005.
On March 30, 2007 the Office granted appellant a schedule award for a nine percent permanent
impairment of his left leg.
In early to mid 2007, appellant was reporting to his attending physicians that he was
experiencing pain in his low back and pain, numbness and tingling in his legs. He stopped work
on October 22, 2007 and on December 2, 2007 he filed a claim (Form CA-2a) alleging that he
sustained a recurrence of total disability on October 22, 2007 due to his May 25, 2004
employment injury. Appellant noted that beginning in April 2007 he started to experience severe
low back pain and episodes of his leg giving away, causing him to fall.
On December 27, 2007 the Office requested that appellant provide additional factual and
medical evidence in support of his claim.
In an October 15, 2007 report, Dr. David Graybill, an attending osteopath and Boardcertified orthopedic surgeon, noted that appellant reported having an “acute onset of pain.” He
detailed physical findings on examination (including low back pain without neurological
deficits), gave appellant a trigger-point injection, and noted that he “will return to work.” On
November 1, 2007 Dr. Graybill indicated that appellant reported acute low back pain which
caused him to fall. He found that appellant had very limited range of back motion with
significant deconditioning, but indicated that he had “no new neurological deficits of the lower
extremity.” Dr. Graybill stated that he would “initiate off work to go through this rehab[ilitation]
program with intent of restoring his daily function.” He did not give any diagnosis of appellant’s
low back condition.
On November 26, 2007 Dr. Graybill noted that appellant presented with “reinjury of his
back as well as a new injury to his left knee” due to a fall that occurred the previous day. He
indicated that appellant was seen in the emergency room following the fall, and the emergency
room evaluation revealed that the claimant had “significant degenerative joint disease in his knee
as well as loose bodies.” Dr. Graybill stated, “He denies any new pain in his back, but just acute
1

Appellant had several previous work-related injuries to his back. The Office accepted that on January 5, 1996
he sustained cervical and lumbar strains and a herniated L4-5 disc due to a vehicular accident at work. On
September 19, 1996 appellant underwent decompression and fusion surgery at L3-4 and L4-5 which was authorized
by the Office. An implanted bone growth stimulator was removed on May 9, 1997. Appellant was involved in
another work-related vehicular accident on December 19, 1997 and the Office accepted that he sustained cervical
and lumbar strains. On October 4, 2000 he sustained lumbar and cervical sprains and spinal stenosis due to a fall at
work. On October 2, 2001 appellant underwent authorized decompression and fusion surgery at L2-3. The files for
these injuries have been combined with the file for the present claim. Appellant also sustained a work-related
cervical injury in 1994 and underwent authorized cervical surgeries in 1994, 1999 and 2001.

2

low back pain.” He diagnosed failed back syndrome, chronic pain syndrome, and acute injury to
the left knee.
In a January 10, 2008 form report, Dr. Graybill listed May 25, 2004 as the date of injury,
diagnosed failed back syndrome due to the injury and indicated that appellant could not work in
any capacity. In a January 11, 2008 form report, an attending internist with an illegible signature
listed May 25, 2004 as the date of injury, diagnosed status post cervical and lumbar fusion due to
the injury and indicated that appellant could not work in any capacity.
In a February 8, 2008 decision, the Office denied appellant’s claim on the grounds that he
did not submit sufficient medical evidence to establish that he sustained a recurrence of total
disability on or after October 22, 2007 due to his May 25, 2004 employment injury.
Appellant requested a telephone hearing with an Office hearing representative. At the
July 14, 2008 hearing, he testified that beginning in April 2007 if he stood up from a sitting
position or if he was standing and went to take a step, his left leg would lose feeling and give
way and he would unexpectedly fall. Appellant indicated that his physician thought that perhaps
scar tissue was blocking or pinching the nerves in his low back and he was taken off work on
October 22, 2007 because he was falling every day. He submitted additional medical reports
which addressed the treatment of his back condition in early to mid 2008.
In a January 8, 2009 decision, the Office hearing representative affirmed the Office’s
January 8, 2009 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden the employee must show
a change in the nature and extent of the injury-related condition or a change in the nature and
extent of the light-duty job requirements.2
ANALYSIS
The Office accepted that on May 25, 2004 appellant sustained aggravation of a displaced
lumbar disc without myelopathy when he stepped out of a truck. On February 13, 2005 he
underwent authorized back surgery in the form of a hemilaminectomy at L1-2 with discectomy,
foraminotomy, osteophytectomy and decompression of nerve roots, reinforcement of existing
fusion and removal of instrumentation at L5-S1, transforaminal lumbar interbody fusion with
instrumentation at L1-2 and lateral transverse process arthrodesis at L1-2.3 Appellant returned to
2

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

Appellant sustained work-related injuries to his back in 1996, 1997 and 2000 and had authorized back surgeries
in 1996, 1997 and 2001 between the L2-3 and L4-5 levels.

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light-duty work for the employing establishment on August 14, 2005. He stopped work on
October 22, 2007 and alleged that he sustained a recurrence of total disability on October 22,
2007 due to his May 25, 2004 employment injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained a recurrence of total disability on or after October 22, 2007 due to his May 25, 2004
employment injury.
Appellant submitted an October 15, 2007 report from Dr. Graybill, an attending
osteopath and Board-certified orthopedic surgeon, which noted that appellant reported having an
“acute onset of pain.” On November 1, 2007 Dr. Graybill indicated that his patient reported
acute low back pain which caused him to fall. He found that appellant had very limited range of
back motion with significant deconditioning, but indicated that he had “no new neurological
deficits of the lower extremity.” Dr. Graybill stated that he would “initiate off work to go
through this rehab[ilitation] program with intent of restoring his daily function.” On
November 26, 2007 he noted that appellant presented with “reinjury of his back as well as a new
injury to his left knee” due to a fall that occurred the previous day. Dr. Graybill indicated that
appellant was seen in the emergency room following the fall, and the emergency room
evaluation revealed that the claimant had “significant degenerative joint disease in his knee as
well as loose bodies.” He diagnosed failed back syndrome, chronic pain syndrome and acute
injury to the left knee.
These reports, however, are of limited probative value on the relevant issue of the present
case in that they do not contain an opinion on causal relationship.4 Although Dr. Graybill
suggested in his November 1, 2007 report that appellant was totally disabled, he did not provide
any indication of the cause of this ostensible disability. In his November 26, 2007 report, he
indicated that appellant fell on November 25, 2007 which reinjured his back and caused a new
injury to his left knee.5 Dr. Graybill did not provide any opinion in these reports that appellant
sustained a recurrence of total disability on or after October 22, 2007 due to his May 25, 2004
employment injury. He made no mention of the May 25, 2004 injury and did not describe a
spontaneous worsening of a work-related condition.
In a January 10, 2008 form report, Dr. Graybill listed May 25, 2004 as the date of injury,
diagnosed failed back syndrome due to the injury and indicated that appellant could not work in
any capacity. In a January 11, 2008 form report, an attending internist with an illegible signature
listed May 25, 2004 as the date of injury, diagnosed status post cervical and lumbar fusion due to
the injury and indicated that appellant could not work in any capacity. However, neither
Dr. Graybill nor the internist provided a clear indication that appellant’s disability was related to
the May 25, 2004 employment injury. These brief reports do not contain any description of the
May 25, 2004 employment injury or any findings on examination. They do not constitute
rationalized medical reports showing that appellant sustained a work-related recurrence of total
4

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
5

Appellant did not provide any further details about this fall.

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disability on or after October 22, 2007. Appellant submitted additional medical reports which
addressed the treatment of his back condition in early to mid 2008, but they provide no
indication that he sustained a recurrence of total disability as alleged.
For these reasons, appellant did not show a change in his injury-related condition on or
after October 22, 2007 such that he was rendered totally disabled from work. He also did not
allege or establish a change in the nature and extent of his light-duty job requirements.
Therefore the Office properly denied appellant’s recurrence of disability claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability on or after October 22, 2007 due to his May 25, 2004
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 8, 2009 decision is affirmed.
Issued: November 6, 2009
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
V.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Montgomery, AL,
Employer
__________________________________________

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

Docket No. 19-1309
Issued: January 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On May 27, 2019 appellant, through counsel, filed a timely appeal from a November 28,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from OWCP’s last merit decision, dated November 15, 2017, to the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 18, 2015 appellant, then a 49-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on May 15, 2015 she suffered injuries to her left
shoulder/arm when a coworker, E.G., pushed her from behind while in the performance of duty.3
On the reverse side of the claim form, the employing establishment noted that appellant stopped
work on May 15, 2018 and returned to work on May 18, 2018.
In a May 18, 2015 statement, E.G. indicated that as she walked around appellant, she
leaned gently and touched or pressed against appellant with both hands on appellant’s back.
Appellant reportedly made faces and told E.G. that she had touched the part of her back that had
severe nerve damage. E.G. also noted that appellant stated that her back felt like it was on fire.
Appellant later returned stating that she had been instructed to go to the emergency department for
treatment of her pain.
In a May 20, 2015 statement, another coworker, A.P., noted that he had reviewed a video
recording of the alleged May 15, 2015 incident as a member of the safety assessment team. He
noted that E.G. touched appellant twice on the shoulder as she moved around her. A.P. also noted
that there did not appear to be significant movement of appellant’s body to indicate that she had
been pushed. Appellant was reportedly smiling and did not appear to be in immediate distress or
discomfort until she put her head down several seconds later. A.P. indicated that he did not see
sufficient evidence to indicate that an injury had occurred.
In a May 30, 2015 letter, the employing establishment controverted appellant’s claim
noting that the video recording of the May 15, 2015 incident merely showed another officer
“touching [appellant] on the shoulder area.”
In a June 11, 2015 development letter, OWCP requested that appellant submit additional
evidence in support of her claim. It advised her of the type of factual and medical evidence needed
and provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
By decision dated July 20, 2015, OWCP denied appellant’s claim, finding that she had not
established a diagnosed medication condition in connection with the accepted May 15, 2015
employment incident.
OWCP subsequently received a May 20, 2015 report from Dr. Chad Mathis, a Boardcertified orthopedic surgeon, who noted that appellant was seen as a follow-up for complaints of
left shoulder pain. Dr. Mathis noted that appellant’s symptoms had worsened since her last visit.
3
Under OWCP File No. xxxxxx287, appellant has an accepted claim for July 26, 2014 neck and left shoulder
sprains.

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He also noted that she had been receiving physical therapy. On examination of the left shoulder,
Dr. Mathis observed tenderness over the subacromial and glenohumeral aspects, forward flexion
to 110 degrees, and external rotation with the arm by the side to 10 degrees. He diagnosed adhesive
capsulitis of the shoulder and supplied a shoulder immobilizer. Dr. Mathis recommended
arthroscopy.
On July 19, 2016 appellant, through counsel, requested reconsideration of OWCP’s
July 20, 2015 decision. Counsel argued that the May 15, 2015 employment incident aggravated
appellant’s prior left shoulder injury. He also noted that she had undergone surgery on June 25,
2015, and later received a diagnosis of complex regional pain syndrome. Lastly, counsel argued
that appellant established the elements of her May 15, 2015 claim.
Additional evidence included a May 15, 2015 left shoulder x-ray, which revealed no
abnormality.
In a report dated May 15, 2015, Dr. Nicholas J. Manzari, Jr., Board-certified in emergency
and internal medicine, examined appellant for complaints of upper back and left shoulder pain
associated with a chronic injury. He related just prior to arrival that she sustained a “direct blow”
to her left thoracic area at work. On examination, Dr. Manzari observed moderate left lateral
tenderness of the back, as well as tenderness and range of motion restricted by pain of the left
upper extremity. He diagnosed shoulder pain and discharged appellant in stable condition.
By decision dated August 22, 2016, OWCP reviewed the merits of the claim, but denied
modification of the July 20, 2015 decision.
On August 22, 2017 appellant, through counsel, requested reconsideration of OWCP’s
August 22, 2016 decision.
In a February 5, 2016 report, Dr. Alethia B. Sellers, Board-certified in pain medicine and
anesthesiology, noted that she had examined appellant for complaints of back, neck, and arm pain.
She noted that appellant stated that in July 2014, she injured her left shoulder and brachial plexus
after lifting a bag off of a conveyer belt at an airport. Appellant underwent shoulder surgery in the
summer of 2015. She described an incident where a coworker lost her balance and bumped into
her back. Diagnostic studies, including a magnetic resonance imaging (MRI) scan, a nerve
conduction velocity study, and a left shoulder x-ray were normal. On examination, Dr. Sellers
observed tenderness at C5 and C6 and edema of the left hand/wrist. She diagnosed complex
regional pain syndrome (CRPS) and noted that appellant’s pain was out of proportion to findings
on imaging and clinical studies.
In clinical notes dated April 29, 2016, Dr. Sellers noted her review of a recent MRI scan
which demonstrated a mild central disc bulge at C5-6 causing mild central canal stenosis. She
diagnosed CRPS and pain disorder with psychological factors and recommended a stellate
ganglion block.
In an August 16, 2016 letter, Dr. Sellers explained that appellant had an original workrelated injury on July 26, 2014 when she injured her neck and shoulder. She noted that appellant
underwent surgery with Dr. Mathis on July 25, 2015, but that her problems persisted. Appellant
returned for follow up on April 29, 2016 and Dr. Sellers examined the results of a recent MRI
3

scan, which demonstrated a mild central disc bulge at C5-6 causing mild central stenosis.
Dr. Sellers stated that this finding would not explain her complaints of pain. Appellant underwent
stellate ganglion blocks on July 5, 2016, returning on July 14, 2016 to report increased pain of the
left upper extremity. Dr. Sellers noted that the failure of the stellate ganglion blocks to reduce pain
demonstrated that appellant’s CRPS was advanced. She opined that appellant’s employment
incident was more likely than not the cause of her CRPS, which followed an injury on July 26,
2014, later being hit by a wheelchair and pushed by a coworker, and that she was not yet at
maximum medical improvement for her conditions. Dr. Sellers recommended visiting a
psychologist and affirmed that her opinions were within a reasonable degree of medical certainty.
In clinical notes dated June 23, 2017, Dr. Sellers followed up with appellant for complaints
of chronic left arm pain. On examination of the left shoulder, she observed reduced range of
motion with pain, reduced strength of the deltoid, allodynia, hyperalgesia, and asymmetric
temperature. Dr. Sellers noted that appellant had poor response and previous adverse reactions to
stellate ganglion block. She diagnosed CRPS and left upper extremity pain, explaining that there
were no other diagnoses that better explained her signs and symptoms. Dr. Sellers recommended
acupuncture and hypnosis for appellant’s pain.
By decision dated November 15, 2017, OWCP reviewed the merits of appellant’s claim
and found that while she had provided sufficient evidence to establish a diagnosed medical
condition, the evidence of record was insufficient to establish causal relationship between her
medical conditions and the accepted May 15, 2015 employment incident.
On November 15, 2018 appellant requested reconsideration of OWCP’s November 15,
2017 decision.
By letter dated November 2, 2018, Dr. Sellers noted that appellant had been under her care
since February 5, 2016 and repeated her prior findings. She stated that this was possibly from an
injury at work and possibly postoperative, but no definite nerve injury was noted. Dr. Sellers
clarified that the current diagnosis of CRPS was a diagnosis of exclusion, which became a
“working diagnosis” that had continued along with left shoulder and arm pain. Appellant had not
responded well to a stellate ganglion block or other treatments. Dr. Sellers explained that over the
years, her examination had changed, but she continued to endorse similar pain varying in intensity.
Appellant was also noted to catastrophize her pain and Dr. Sellers had discussions with her about
pain psychology. Dr. Sellers indicated that she believed appellant had CRPS of the left upper
extremity, especially on initial presentation.
By decision dated November 28, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
4
This section provides in pertinent part: [t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

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limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7
If the request is timely, but fails to meet at least one of the requirements for reconsideration,
OWCP will deny the request for reconsideration without reopening the case for review on the
merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Appellant’s request for reconsideration did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a new and relevant legal argument not previously
considered. Thus, appellant is not entitled to a review of the merits of her claim based on the first
and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
In support of her request for reconsideration, appellant submitted an additional report from
Dr. Sellers dated November 2, 2018. Dr. Sellers reviewed appellant’s history of injury, prior
treatment, and noted her “working diagnosis” of CRPS which was possibly from an injury at work
and possibly postoperative, but no definite nerve injury was noted. She indicated that she believed
appellant had CRPS of the left upper extremity, especially on initial presentation. The Board finds
that this report is substantially similar to Dr. Sellers’ prior medical reports, which were previously
reviewed and considered by OWCP. Dr. Sellers did not provide new or relevant evidence
explaining how appellant’s diagnosed CRPS condition was causally related to the accepted
employment incident of May 15, 2015. The Board has held that the submission of evidence which
duplicates or is substantially similar to evidence already in the case record does not constitute a

5

20 C.F.R. § 10.607.

6

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

Id. at § 10.606(b)(3).

8
Id. at § 10.608(b); O.P., Docket No. 19-0445 (issued July 24, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).

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basis for reopening a case.9 Thus, appellant was not entitled to a review of the merits of her claim
based on the third above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 3, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

9
S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-0039 (issued March 3, 2009); D.K.,
59 ECAB 141 (2007).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 14-1458
Issued: September 8, 2015

Case Submitted on the Record

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

JURISDICTION
On June 10, 2014 appellant, through counsel, filed a timely appeal from a May 13, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her right shoulder
condition was causally related to factors of her employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the May 13, 2014 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
On January 11, 2012 appellant, then a 56-year-old postmaster, filed a claim for an
occupational disease claim alleging that she sustained right arm and shoulder pain as a result of
sorting and distributing mail. She stated that she developed tendinitis in her rotator cuff causing
rotation of acromioclavicular (AC) joint by using her arm in many duties performed at work.
Appellant noted that she first became aware of her condition and realized that it resulted from her
employment on May 11, 2007.3 She stopped work on April 22, 2012 and filed for disability
compensation.
By letter dated February 24, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim and requested additional medical evidence to establish that
she sustained a diagnosed condition as a result of her federal employment.
In a March 30, 2012 magnetic resonance imaging (MRI) scan of the cervical spine,
Dr. John Huddle, a Board-certified diagnostic radiologist, reported right paramedian disc
protrusion at C5-6 mildly compressing appellant’s right nerve root and encroaching into the right
neural foramen and mildly broad-based protrusions at C6-7 mildly compressing into the right
lateral recess.
In an April 19, 2012 attending physician’s report, Dr. Gregory J. Cush, a Board-certified
orthopedic surgeon, noted a date of injury of May 11, 2007 and history of injury of “repetitive
use right arm.” He diagnosed impingement syndrome of the AC joint. Dr. Cush checked a box
marked “yes” that appellant’s condition was caused or aggravated by an employment activity.
He reported that appellant was totally disabled beginning January 31, 2012.
In a handwritten May 5, 2012 letter, appellant stated that after years of throwing mail
around and flipping mail into cases and post office boxes, she experienced a terrible pain
throughout her shoulder to her elbow on May 11, 2007 while working at the employing
establishment. After several days of not being able to work she contacted her family doctor and
underwent an MRI scan which revealed right shoulder rotator cuff syndrome. Appellant was
referred to Dr. Cush who recommended surgery. At the time, she did not want to undergo
surgery, however, and instead opted to receive shots in order to continue working. Appellant
noted that the shots relieved the pain for only a couple of months. She continued to work until
the pain worsened this year.
In a decision dated May 8, 2012, OWCP denied appellant’s claim. It accepted that she
worked as a postmaster and was diagnosed with a right shoulder condition, but denied her claim
finding insufficient medical evidence to establish that her right shoulder condition was causally
related to factors of her employment.
3

The record reflects that appellant filed an additional occupational disease claim on March 1, 2013 for a right
hand condition (File No. xxxxxx374), which is currently still under review. Appellant also filed two previous
occupational disease claims on February 1, 2012 for a left hand condition (File No. xxxxxx003) and on March 5,
2012 for an emotional condition (File No. xxxxxx193). The record also reflects that she has a previously accepted
claim (File No. xxxxxx726) for right wrist carpal tunnel syndrome. On January 31, 2012 appellant filed a claim for
recurrence of disability, which was denied.

2

In a letter dated May 29, 2012 and received on May 30, 2012, appellant, through counsel,
submitted a request for a telephone hearing. By decision dated July 25, 2012, an OWCP hearing
representative vacated the May 8, 2012 denial decision and returned the claim to the district
office for further medical development. She directed the district office to prepare a statement of
accepted facts (SOAF) and refer appellant’s claim, along with specific questions, to appellant’s
attending physician Dr. Cush for examination to determine causal relationship.
On August 9, 2012 OWCP referred appellant’s claim, along with a SOAF, to Dr. Cush
for examination and a rationalized medical opinion on the causal relationship, if any, between
appellant’s right shoulder condition and her employment duties as a postmaster.
In a September 12, 2012 report, Dr. Timothy P. Duffey, an orthopedic surgeon, evaluated
appellant for complaints of right shoulder pain. He reviewed her available medical records and
noted that she had evidence of some AC joint osteoarthritis in her right shoulder. Dr. Duffey
recommended that appellant wait on shoulder surgery because he believed most of her pain at the
present time was C5 pain in her biceps, distal humerus region, and some trapezius pain.
On November 2, 2012 OWCP contacted Dr. Cush’s office via telephone to determine
whether he would respond to the August 9, 2012 letter. No response was received by Dr. Cush
or his office.
In a decision dated November 21, 2012, OWCP denied appellant’s claim finding
insufficient medical evidence to establish that her right shoulder condition was causally related
to her employment.
In a letter dated November 26, 2012 and received on November 27, 2012, appellant,
through counsel, requested a telephone hearing, which was held on February 13, 2013. She was
represented by counsel. Counsel stated that appellant had not been seen by Dr. Cush in over a
year as she was referred to a different orthopedic specialist. Appellant explained that she had a
new treating physician, Dr. Duffey, and had submitted various medical reports from him
regarding treatment for her right shoulder pain. An OWCP hearing representative advised
appellant that she needed a narrative report from Dr. Duffey regarding the causal relationship
between appellant’s right shoulder condition and her federal employment.
In an April 18, 2013 report, Dr. Robert J. Nowinski, an orthopedic surgeon, related
appellant’s complaints of progressive pain and stiffness in her right shoulder since a May 11,
2007 industrial injury. Upon examination, he observed global tenderness and passive stiffness of
the right shoulder. Range of motion demonstrated forward elevation to 140 and abduction to 80.
Neer and Hawkins impingement signs were positive. Dr. Nowinski reported that appellant’s
neurovascular status was intact and found no signs of instability. He stated that x-rays of the
right shoulder revealed sloped acromion and moderate AC joint arthropathy. Dr. Nowinski
diagnosed progressive right shoulder adhesive capsulitis with frozen shoulder and post-traumatic
rotator cuff syndrome with impingement and AC joint arthropathy.
In an April 25, 2013 report, Dr. Duffey stated that he treated appellant for her right
shoulder condition for the past 11 months. He reported that on May 11, 2007 she experienced
sharp pain in the right shoulder but was able to continue to work with active assistance with her

3

right upper extremity. Dr. Duffey explained that appellant’s causal relationship was a rotator
cuff partial tear related to the May 11, 2007 incident. He stated that she had some cumulative
injury since that time of May 11, 2007 because she continued to work with the partial tear until
January 11, 2012.
Dr. Duffey reviewed appellant’s history and conducted an examination. He reported
evidence of rotator cuff weakness and tear with positive Jobe and drop arm tests. Dr. Duffey
diagnosed outlet impingement of the shoulder, rotator cuff syndrome, partial tear of the
supraspinatus tendon, affliction of the shoulder, sprain and strain of the shoulder, partial tear of
the subscapularis tendon, labral tears of the shoulder, and progressive adhesive capsulitis of the
shoulder. He opined that the facts of the injury were a direct and proximal cause of the
diagnoses he had above, based on the review of her medical records, examination, and test
results. Appellant also resubmitted Dr. Duffey’s various medical reports.
In a decision dated April 30, 2013, the hearing representative affirmed the November 21,
2012 denial decision.
In a letter dated and received on May 24, 2013, counsel requested reconsideration. He
stated that OWCP should review the case on the merits and grant appellant’s request for
work-related benefits.
In a May 31, 2013 attending physician’s report, Dr. Nowinski reported a history of injury
of right shoulder pain when using repetitive motions every day. He reported findings of adhesive
capsulitis with frozen shoulder, post-traumatic rotator cuff syndrome, and impingement.
Dr. Nowinski checked “yes” that appellant’s condition was caused or aggravated by an
employment activity and explained “repetitive use of right arm for periods of years of
employment duties.” He noted that she was totally disabled from June 18 to August 18, 2013.
By decision dated October 28, 2013, OWCP denied modification of the April 30, 2013
decision finding that the medical evidence was insufficient to establish that appellant’s right
shoulder condition was causally related to factors of her employment.
In a letter dated February 14, 2014 and received on February 17, 2014, appellant, through
counsel, submitted a request for reconsideration. Counsel stated that he was submitting a
November 14, 2013 report by Dr. Duffey that was not previously submitted and confirmed the
causal relationship between appellant’s employment and her medical condition.
In a November 14, 2013 report, Dr. Duffey noted that appellant was injured on
May 11, 2007. He stated that at the time she was performing lifting duties that often involved
50- to 70-pound crates when she experienced immediate pain in her right shoulder. Dr. Duffey
explained that appellant had acute onset after lifting overhead heavy weight on May 11, 2007
which then persisted and increased in severity over the years. He stated that the weight shift and
movement overhead was causally and directly related to the partial tear of the rotator cuff and the
supraspinatus tendon in her shoulder. Dr. Duffey concluded that appellant had established causal
relationship and alleged that her shoulder condition should be allowed and established.

4

In a decision dated May 13, 2014, OWCP denied modification of the October 28, 2013
decision finding that the medical evidence was insufficient to establish that appellant’s right
shoulder condition was causally related to factors of her employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.8
ANALYSIS
Appellant alleges that she sustained a right shoulder condition as a result of repetitively
using her right arm and shoulder in the performance of duty. OWCP accepted her factors of
employment as a postmaster, but denied her claim finding insufficient medical evidence to
establish that her right shoulder condition was causally related to her federal employment. The
Board finds that appellant did not meet her burden of proof to establish that she sustained a right
shoulder occupational disease as a result of her employment duties.
In support of her claim, appellant submitted various attending physician’s reports by
Dr. Nowinski dated April 18 to May 31, 2013. Dr. Nowinski discussed her history of
progressive pain and stiffness in her right shoulder since a May 11, 2007 industrial injury. He
conducted an examination and observed global tenderness and stiffness of the right shoulder.
Dr. Nowinski stated that x-rays of the right shoulder revealed sloped acromion and moderate AC
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

joint arthropathy. He diagnosed progressive right shoulder adhesive capsulitis with frozen
shoulder and post-traumatic rotator cuff syndrome with impingement and AC joint arthropathy.
In a May 31, 2013 report, Dr. Nowinski checked “yes” that appellant’s condition was caused or
aggravated by “repetitive use of right arm” during employment. The Board notes that he
provided examination findings and a medical diagnosis. Dr. Nowinski indicated by checking a
box marked “yes” that appellant’s right shoulder condition was caused or aggravated by
repetitive use of her right arm at work. He failed, however, to provide any medical explanation
or rationale for how her right shoulder condition was caused or aggravated by her employment.
The Board has held that when a physician’s opinion on causal relationship consists only of
checking “yes” to a form question, without explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim.9 Because Dr. Norwinski failed to
adequately explain his opinion on causal relationship, his reports are insufficient to establish
appellant’s claim.
Likewise, Dr. Cush’s April 19, 2012 attending physician’s report also failed to establish
appellant’s occupational disease claim as he merely checked a box marked “yes” that appellant’s
condition was caused by an employment activity without any medical explanation or rationale.
Appellant was also examined by Dr. Duffey, who in reports dated September 12, 2012 to
November 14, 2013, reported his treatment for her right shoulder condition. Dr. Duffey
reviewed her medical records and noted that she had evidence of some AC joint osteoarthritis in
her right shoulder. Upon examination of her right shoulder, he observed evidence of rotator cuff
weakness and tear. Dr. Duffey diagnosed outlet impingement of the shoulder, rotator cuff
syndrome, partial tear of the supraspinatus tendon, affliction of the shoulder, sprain and strain of
the shoulder, partial tear of the subscapularis tendon, labral tears of the shoulder, and progressive
adhesive capsulitis of the shoulder. In an April 25, 2013 report, he stated that on May 11, 2007
appellant experienced sharp pain in the right shoulder. He reported that the causal relationship
was a rotator cuff partial tear related to the May 11, 2007 incident. Dr. Duffey explained that
appellant had some cumulative injury since that time of May 11, 2007 because she continued to
work with the partial tear until January 11, 2012. In a November 14, 2013 report, he further
clarified that she had an acute onset injury on May 11, 2007 after lifting heavy weight overhead
which then persisted and increased in severity of the years.
The Board finds that Dr. Duffey’s reports are likewise insufficient to establish causal
relationship as they are based on an incomplete background.10 Dr. Duffey discussed how
appellant sustained an acute onset injury on May 11, 2007, but he does not relate her right
shoulder condition to repetitively distributing mail as appellant claimed. The Board has found
that rationalized medical opinion evidence must relate specific employment factors identified by
the claimant to the claimant’s condition, with reasons stated by a physician.11 Because

9

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

10

J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M. McQuaid, 52 ECAB 382 (2001) (medical
reports must be based on a complete and accurate factual and medical background).
11

L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).

6

Dr. Duffey did not accurately connect appellant’s right shoulder condition with her accepted
employment factors, his opinion failed to establish causal relationship.
The additional March 30, 2012 diagnostic report by Dr. Huddle fails to establish
appellant’s occupational disease claim. While Dr. Huddle observed disc protrusions of
appellant’s cervical spine he failed to mention any diagnosed right shoulder condition or discuss
the cause of appellant’s medical condition. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.12
On appeal, counsel alleges that OWCP’s decision was overly litigious and an obvious
attempt to nitpick a job description. The Board notes, however, that OWCP does not dispute
appellant’s employment factors as a postmaster. It denied appellant’s claim because the medical
evidence failed to demonstrate that her shoulder condition was causally related to those
employment factors. As previously noted, causal relationship is a medical issue and the medical
evidence generally required to establish causal relationship is rationalized medical opinion
evidence.13 In this case, appellant did not submit any medical evidence that adequately
explained, based on medical rationale, how her shoulder condition resulted in an occupational
disease from her repetitive duties as a postmaster. For these reasons, the Board finds that she did
not meet her burden of proof to establish her occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
shoulder condition is causally related to factors of her employment.

12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
13

Supra note 7.

7

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2014 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2015
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Edward H. Lyshe, Jr., for the appellant
Office of Solicitor, for the Director

Docket No. 07-536
Issued: May 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 20, 2006 nonmerit decision denying her request for further
review of the merits of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
July 16, 2004 decision denying her recurrence of disability claim. Because more than one year
has elapsed between the last merit decision and the filing of this appeal on December 19, 2006,
the Board lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). In a December 19, 2007 order, the Board dismissed appellant’s
appeal for failure to provide attorney authorization. In a January 23, 2009 order, the Board vacated its December 19,
2007 order and reinstated appellant’s appeal.

FACTUAL HISTORY
On January 20, 1988 appellant sustained a pulled muscle of the lower abdomen and a
herniated disc at L4-L5 after unloading a cage of mail from a mail truck. She underwent lumbar
laminectomies on November 16, 1988 and November 19, 1995 which were authorized by the
Office. Appellant’s claim was later expanded to include major depression and she received
appropriate Office compensation for her accepted conditions. After a period of disability, she
returned to limited-duty work on April 29, 1998 for four hours per day, five days per week as a
modified distribution window clerk with various work restrictions. On July 16, 1996 the Office
issued a formal decision determining that the position fairly and reasonably represented
appellant’s wage-earning capacity.
Appellant filed a claim alleging that she sustained a recurrence of disability on or about
July 2, 1999.2 She had a nonwork-related vehicular accident on July 13, 1999, continued
working following the vehicular accident, and then stopped work on July 27, 1999. Appellant’s
claim for recurrence of disability was denied because the evidence of record failed to
demonstrate that the claimed recurrence was causally related to the injuries stemming from the
January 20, 1988 employment injury.
Appellant filed numerous subsequent reconsideration requests and the last merit decision
of record was the Office’s July 14, 2004 decision denying her claim on the grounds that she did
not submit sufficient medical evidence to show that she sustained a recurrence of disability on or
after July 27, 1999 due to her January 20, 1998 employment injury. She filed additional
reconsideration requests and the Office denied her requests for further review of the merits of her
claim in decisions dated March 9 and October 6, 2005.
Appellant submitted a July 17, 2006 statement, received by the Office on July 24, 2006,
in which her attorney at the time, Bert L. Rose, argued that the Office improperly denied her
recurrence of disability claim. Mr. Rose asserted that the Office improperly discounted certain
medical evidence including August 9, August 17, December 9, 1999 and March 12, 2002 reports
of Dr. Stephen C. Ulrich, an attending Board-certified family practitioner. Mr. Rose felt that the
Office placed too much emphasis on appellant’s nonwork-related vehicular accident in July 1999
and did not fully appreciate the seriousness of her January 20, 1988 injury. He argued that the
Office unfairly discounted Dr. Ulrich’s statements regarding appellant’s emotional condition and
its effect on her ability to work because his specialty was family practice medicine rather than
psychiatry. Appellant also submitted several medical reports dated between October 2005 and
July 2006 in which several attending physicians discussed her medical condition in 2005
and 2006.
By decision dated September 20, 2006, the Office denied appellant’s request for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error. It found that appellant’s reconsideration request was
untimely because her July 24, 2006 request was filed more than a year after the issuance of the
Office’s last merit decision dated July 14, 2004. The Office further found that the evidence and
2

Appellant had not yet stopped work at this point.

2

argument submitted by appellant was not the type of probative evidence or argument which
would show clear evidence of error in the Office’s denial of her recurrence of disability claim.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted the Office under section 8128(a) of the Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes “clear evidence of error.”5 Office regulations and procedure provide that the Office
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 the Office.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
3

20 C.F.R. § 10.607(a).

4

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004). Office procedure further provides, “The term ‛clear evidence of error’ is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that the [Office] made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.” Id. at Chapter 2.1602.3c.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.12
ANALYSIS
In its September 20, 2006 decision, the Office properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on July 24,
2006, more than one year after the Office’s July 16, 2004 decision, and therefore she must
demonstrate clear evidence of error on the part of the Office in issuing its prior decisions.
Appellant has not demonstrated clear evidence of error on the part of the Office in issuing
its prior decisions. She did not submit the type of positive, precise and explicit evidence which
manifests on its face that the Office committed an error in denying her claim that she sustained a
recurrence of disability on or after July 27, 1999 due to her January 20, 1998 employment
injury.13
In connection with her untimely reconsideration request, appellant submitted a July 17,
2006 statement in which her attorney at the time, Mr. Rose, argued that the Office improperly
denied her reconsideration request. Mr. Rose asserted that the Office improperly discounted
certain medical evidence including reports of Dr. Ulrich, an attending Board-certified family
practitioner. He felt that the Office placed too much emphasis on appellant’s nonwork-related
vehicular accident in July 1999 and did not fully appreciate the seriousness of her January 20,
1988 injury. Mr. Rose argued that the Office unfairly discounted Dr. Ulrich’s statements
regarding appellant’s emotional condition and its effect on her ability to work because his
specialty was family practice medicine rather than psychiatry.
The Board notes that Mr. Rose’s statement would not tend to support appellant’s
recurrence of disability claim because Mr. Rose has merely provided his own opinion regarding
how the medical evidence of record should have been interpreted. This medical evidence has
been considered by the Office on numerous occasions and Mr. Rose has not pointed out any
aspect of the evidence which would clearly show that the Office erred in denying appellant’s
claim. The issue in the present case is medical in nature and this statement does not constitute
the type of probative evidence that would show clear evidence of error. Appellant also submitted
several medical reports dated between October 2005 and July 2006 in which several attending
physicians discussed appellant’s medical condition in 2005 and 2006. These reports would not
be relevant to the main issue of the present case as none of the reports contains an opinion that
appellant sustained a recurrence of disability on or after July 27, 1999 due to her January 20,
1998 employment injury.
For these reasons, the evidence and argument submitted by appellant does not raise a
substantial question concerning the correctness of the Office’s prior decisions and the Office
properly determined that appellant did not show clear evidence of error in those decisions.
12

Leon D. Faidley, Jr., supra note 4.

13

The Office had accepted that appellant sustained a pulled muscle of the lower abdomen, a herniated disc at L4L5 and major depression due to the January 20, 1988 injury.

4

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 20, 2006 decision is affirmed.
Issued: May 18, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
Pine Valley, CA, Employer
_________________________________________

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

Docket No. 13-996
Issued: September 5, 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 March 11, 2013 appellant filed a timely appeal from theSeptember 14, 2012 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 schedule award determination.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
one percent permanent impairment of his rightarm, for which he received a schedule award.
FACTUAL HISTORY
On July 7, 2010 appellant, then a 43-year-old border patrol agent,injured his right index
finger while trying to untie a tire drag with a metal chain at work. He did not stop work. OWCP
accepted the claim for right hand sprain,metacarpophalangeal,right hand/wrist tenosynovitisand
1

5 U.S.C. § 8101 et seq.

right index finger ganglion cyst. Appellant underwent authorized right index finger
tenosynovectomy and cyst excision on December 3, 2010. He received appropriate compensation
benefits.
On October 4 and November 23, 2011appellant filed a claim for a schedule award. In
support of his claim, he provided a March 28, 2011 report from Dr. Thomas W. Harris, an
orthopedic surgeon, who noted appellant’s history of injury and treatment and provided an
impairment rating utilizing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).Dr. Harris noted examination
findings and explained that appellant underwent a right index finger surgical procedure for cyst
excision and tenosynovectomy. He referred to Table 15-22 and determined that appellant had six
percent impairment of the right arm. Dr. Harris indicated that appellant reached maximum
medical improvement.
In aNovember 10, 2011 report, OWCP’s medical adviser noted appellant’s history of
injury and treatment and utilized the A.M.A., Guides. Shedetermined that he had a one percent
impairment of the right upper extremity. The medical adviser explained that the accepted
conditions included: right hand sprain and wrist tendinitis, metacarpophalangeal, ganglion cyst
with right index finger cyst excision and tenosynovectomy.She referred to Table 15-23 and
explained that appellant qualified for a class 1, default position C, translating to six percent for
the digit. The medical adviser indicated that a grade modifier for Clinical Studies (GMCS) was
not applicable. Regarding grade modifiers for Physical Examination(GMPE) and Functional
History (GMFH), she indicated that appellant qualified for a grade modifier 1 for each pursuant
to Table 15-8 and Table 15-7.4 The medical adviser explained that this translated to one percent
hand impairment and also one percent upper extremity impairment under Table 15-12.5 She
opined that appellant reached maximum medical improvement on March 28, 2011.
Accordingly, on December 7, 2011 OWCP granted appellant a schedule award for one
percent permanent impairment of the right upper extremity. The award covered a period of 3.12
weeks from March 28 to April 18, 2011.
On August 7, 2012 appellant requested reconsideration. In support of his claim, he
provided a March 21, 2012 report from Dr. Tal S. David, a Board-certified orthopedic surgeon,
who noted appellant’s history of injury and treatment and provided an impairment rating
utilizing the fifth edition of the A.M.A., Guides.6Dr. David opined that appellant sustained a 15
percent impairment of the right upper extremity.

2

A.M.A.,Guides 392.

3

Id.

4

Id. at406, 408.

5

Id. at 421.

6

Id. at (5th ed. 2001).

2

In an August 30, 2012 report, OWCP’s medical adviser explained that Dr. David utilized
the fifth edition of the A.M.A., Guides7 to calculate appellant’s schedule award but that the sixth
edition was now the standard for impairment determinations. She again explained that appellant
had six percent digit impairment under Table 15-2 which converted one percent right arm
impairment under Table 15-12.
In a September 14, 2012decision, OWCP deniedmodification of its prior decision. It
found that the medical evidence was insufficient to establish increased right arm impairment.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.11
For decisions issued after May 1, 2009, the sixth edition will be used.12
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For upper extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and
GMCS.13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
Evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.15
ANALYSIS
Appellant’s claim was accepted for right hand sprain, right hand/wrist tenosynovitis and
right index finger ganglion cyst. He underwent authorized right index finger tenosynovectomy
7

Id.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

12

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

13

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191(issued May 14, 2010).

14
15

Id.at 521.See also, R.Z., Docket No. 10-1915 (issued May 19, 2011).

J.W., Docket No. 11-289 (issued September 12, 2011).

3

and cyst excision on December 3, 2010. On October 4, 2011 appellant filed a claim for a
schedule award. The Board finds that medical evidence of record establishes no more than one
percent impairment for his right upper extremity.
In support of his claim, appellant submitted a March 28, 2011 impairment rating from
Dr. Harris who found that, underTable 15-2, page 392, appellant had six percent right arm
impairment for a tenosynovectomy. Although Dr. Harris did not specify the precise portion of
the grid that he used, he apparently used the digital stenosing tenosynovitis diagnosis for which,
under class 1, allows four to eight percent digit impairment with six percent being the grade C
default impairment. However,he appears to confuse six percent impairment of the digit or
finger, provided in the grid, for six percent arm impairment. Dr. Harris did not otherwise explain
how, under the A.M.A., Guides, he arrived at six percent arm impairment under Table 15-2
which lists only impairment for digits. He also did not indicate what, if any grade modifiers he
used in applying the net adjustment formula. On November 10, 2011 OWCP’s medical adviser
reviewed this report and found that, under Table 15-2, appellant had a default, grade C, six
percent digit impairment. She set forth applicable grade modifiers used in the net adjustment
formula and indicated that there was no change in the default six percent impairment rating for
the digit. The medical adviser then determinedthat, under Table 15-12, six percent digit
impairment equates to one percent arm impairment. The Board finds that Dr. Harris’ impairment
rating is insufficient to establish any greater impairment than that which appellant was awarded.
The Board also notes that Dr. David, in his March 21, 2012 report, utilized the fifth
edition of the A.M.A., Guidesin finding 15 percent arm impairment. However, effective May 1,
2009, schedule awards are determined in accordance with the sixth edition of the A.M.A.,
Guides.16As Dr. David did not utilize the proper edition of the A.M.A., Guides, the Board finds
thathis impairment rating is of diminished probative value. OWCP’s medical adviser, in
anAugust 30, 2012 report, noted reviewing Dr. David’s report and reiterated her prior
impairment calculation under the sixth edition of theA.M.A.,Guides.
Board precedent is well settled that when an attending physician’s report gives an
estimate of impairment but does not address how the estimate is based upon the A.M.A., Guides,
OWCP is correct to follow the advice of its medical adviser or consultant where he has properly
applied the A.M.A., Guides.17 The Board notes that, in her November 10, 2011 and August 30,
2012 reports, OWCP’s medical adviser provided a rating of one percent right arm impairment
under the sixth edition of the A.M.A., Guides. The record contains no current medical evidence
which explains how, pursuant to the A.M.A., Guides, that appellant has greater than one percent
impairment of the right arm.
On appeal, appellant argues that his treating physician and surgeon indicated that he had
six percent arm impairment. However, as noted above, the reports provided by his physicians

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
17

J.Q., Docket No. 06-2152 (issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

4

did not comport with the sixth edition of the A.M.A., Guides in explaining hiscalculation.
Consequently, they do not establish any greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a one percent permanent impairment of his right upper extremity, for which he
received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2012 decision of the Office of
Workers’ Compensation Programsis affirmed.
Issued: September 5, 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

5


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

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)

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

Docket No. 09-370
Issued: August 18, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2008 appellant filed a timely appeal of the August 18, 2008 merit
decision of the Office of Workers’ Compensation Programs, which found an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment of $785.12 for the period
March 2 to 18, 2006; and (2) whether she is entitled to waiver of recovery of the overpayment.
FACTUAL HISTORY
Appellant, a 44-year-old mail carrier, has an accepted claim for bilateral carpal tunnel
syndrome, which arose on or about July 28, 2004. On December 15, 2005 she underwent an
Office-approved right carpal tunnel release.
The Office paid appropriate wage-loss
compensation for temporary total disability beginning December 15, 2005. Appellant was

placed on the periodic compensation rolls effective January 22, 2006. On March 2, 2006 she
returned to work in a part-time, limited-duty capacity, working four hours per day.1
On June 18, 2008 the Office issued a preliminary determination that appellant received an
overpayment of $785.12 for the period March 2 to 18, 2006. It explained that she returned to
work four hours per day beginning March 2, 2006, but she continued to receive compensation for
eight hours per day through March 18, 2006.2 Additionally, the Office indicated that appellant
was not at fault in creating the overpayment.
On July 31, 2008 appellant submitted an overpayment recovery questionnaire. She
reported no monthly income and monthly expenses of $3,310.00.3 Appellant also reported
$35.00 in assets.
On August 18, 2008 the Office issued a final overpayment decision. Although appellant
was not at fault in creating the $785.12 overpayment, the Office denied her a waiver of recovery.
It noted that she did not report her monthly income on the overpayment questionnaire and she
had not provided any documentation to support her claimed monthly expenses. Because
appellant failed to provide the necessary financial information, the Office found it impossible to
determine whether she was entitled to a waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
If an employee returns to work and has earnings or is in a paid leave status, she is not
entitled to receipt of temporary total disability benefits and actual earnings for the same time
period.4
ANALYSIS -- ISSUE 1
Appellant was on paid leave status effective March 2, 2006, and she began working part
time, four hours per day, on March 6, 2006. On March 18, 2006 the Office paid her wage-loss
compensation for temporary total disability for the period February 19 to March 18, 2006.
Because appellant had effectively returned to work on March 2, 2006, she was no longer entitled
to eight hours of wage-loss compensation per day. Based on information provided by the
employing establishment, the Office determined that she was only entitled to 36 hours of wageloss compensation during the period March 2 to 18, 2006. The record establishes that appellant
was overpaid $785.12 for the above-noted period.

1

Appellant used eight hours of annual leave on March 2, 3 and 4, 2006. March 5, 2006 was her scheduled day
off and on March 6, 2006 she began her part-time employment duties.
2

The Office found that appellant was only entitled to 36 hours of lost wages for the period March 2 to 18, 2006,
which totaled $507.68. Appellant had already been paid $1,292.80 for this same time period.
3

Appellant’s July 31, 2008 EN1032 form reported monthly income of $2,100.00 as a mail carrier since
March 2007.
4

20 C.F.R. § 10.403(a), (c) (2008); Daniel Renard, 51 ECAB 466, 469 (2000).

2

LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of the Federal Employees’ Compensation Act or would be against equity and good conscience.5
Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom the
Office seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses and the
beneficiary’s assets do not exceed a specified amount as determined by the Office.6
Additionally, recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt or when any individual, in reliance on such payment or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office.8 This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience.9 This information will also be used to determine the
repayment schedule, if necessary.10 Failure to submit the requested financial information in a
timely fashion “shall result in denial of waiver....”11
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for waiver of
recovery of the overpayment. In a July 31, 2008 overpayment recovery questionnaire, appellant
misrepresented the amount of her monthly income. Although she was working at the time, she
reported no income on the July 31, 2008 questionnaire.12 Appellant also failed to provide any
documentation to substantiate her reported $3,310.00 in monthly expenses. The regulations
clearly indicate that a failure to submit the requested financial information “shall result in denial
5

5 U.S.C. § 8129(b) (2006); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

6

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents, the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (October 2004).
7

20 C.F.R. § 10.437(a), (b).

8

Id. at § 10.438(a).

9

Id.

10

Id.

11

Id. at § 10.438(b).

12

On a similarly dated EN1032 form, appellant reported current monthly earnings of $2,100.00.

3

of waiver....”13 In light of appellant’s failure to provide complete and accurate financial
information as requested, the Board finds that waiver of recovery of the overpayment is
unwarranted.
CONCLUSION
Appellant received an overpayment of $785.12 for the period March 2 to 18, 2006. The
Board further finds that she is not entitled to waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

20 C.F.R. § 10.438(b).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bartlett, TN, Employer
__________________________________________

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

Docket No. 11-295
Issued: August 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 11, 2010 appellant, through his attorney, filed a timely appeal from a
May 25, 2010 nonmerit decision denying his request for reconsideration. As the last merit
decision of the Office of Workers’ Compensation Programs (OWCP) was issued on
December 23, 2008, the Board lacks jurisdiction to review the merits of this case.1 Pursuant to
the Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits under 5 U.S.C. § 8128(a).

1

For final adverse OWCP decisions issued on and after November 19, 2008, a claimant has 180 days to file an
appeal with the Board. See 20 C.F.R. § 501.3(e).”
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 17, 2007 appellant, a 53-year-old rural mail carrier, filed an occupational
disease claim alleging that he sustained injuries to his cervical spine and upper extremities as a
result of employment activities.3 OWCP accepted his claim for aggravation of degeneration of
thoracic intervertebral disc and aggravation of degenerative disc disease at C4-5.
OWCP found a conflict in medical opinion between appellant’s treating physician,
Dr. Patrick M. Curlee, a Board-certified orthopedic surgeon, who opined that he was totally
disabled, and a second opinion physician, Dr. Carl Huff, a Board-certified orthopedic surgeon,
who opined that his accepted conditions had resolved and that he was able to return to regular
duties. Appellant was referred to Dr. James Galyon, a Board-certified orthopedic surgeon, in
order to resolve the conflict. In a November 15, 2007 report, Dr. Galyon diagnosed degenerative
disc disease at C4-5, which he opined was continually aggravated by driving a postal vehicle and
retrieving mail. He advised that appellant was capable of sedentary work only and
recommended that he be restricted from working more than six hours per day, from reaching
above the shoulder and from lifting more than 10 pounds.
On February 7, 2008 the employing establishment offered appellant a four-hour-a-day
modified rural carrier position, which it characterized as “sedentary clerical work.” Duties
included: (1) processing “kill mail;” (2) answering telephones (taking messages and paging
appropriate employees; and (3) serving as lobby director (assisting and directing customers). On
February 21, 2008 OWCP notified appellant that it found the February 7, 2008 job offer to be
suitable and in accordance with Dr. Galyon’s restrictions, and gave him 30 days to accept the
position or provide an acceptable reason for rejecting it. On February 25, 2008 appellant
informed OWCP that he was unable to perform the duties of the offered position due to his lower
back and neck condition. On March 26, 2008 OWCP advised appellant that his reasons for
refusing the position were unacceptable and provided him 15 days to accept the position.
Appellant submitted a report dated April 9, 2008 from Dr. Roger Vogelfanger, a Boardcertified psychiatrist, who had treated appellant for depression. Dr. Vogelfanger opined that he
would be unable to return to work due to his history of depression and chronic pain.
By decision dated April 14, 2008, OWCP terminated appellant’s compensation benefits
based on his refusal to accept suitable employment. On April 20, 2008 appellant requested an
oral hearing.
In a decision dated December 23, 2008, a hearing representative affirmed the April 14,
2008 decision finding that the physical requirements of the offered position conformed to
Dr. Galyon’s restrictions. The representative stated that appellant had failed to submit any
substantive medical evidence proving disability for the offered position based on his emotional,
low back, carpal tunnel, shoulder or acid reflux conditions. He found that Dr. Vogelfanger’s

3

A review of FECA indicates that appellant’s May 16, 1986 traumatic injury claim was accepted for chronic
lumbar strain (File No. xxxxxx167). Appellant’s February 23, 2005 claim for neck and back injuries was denied
(File No. xxxxxx154). His March 6, 2007 emotional disease claim was also denied (File No. xxxxxx35).

2

April 9, 2008 report was deficient, as it did not provide examination findings or address
appellant’s ability to perform the duties of the position offered on February 7, 2008.
On December 22, 2009 appellant, through his representative, submitted a request for
reconsideration together with additional medical evidence. Counsel argued that OWCP failed to
consider the entirety of appellant’s physical conditions, both work related and nonwork related,
as required by Office procedures. He contended that if a claimant was disabled from a position
due to a nonwork-related medical condition arising subsequent to a compensable injury, the
position will be considered unsuitable.4 Counsel contended that the newly submitted medical
reports were sufficient to meet appellant’s burden of proof.
Appellant submitted a June 4, 2009 report from Dr. Vogelfanger, who stated that he had
treated appellant on a regular basis since March 16, 2007 when he was diagnosed with major
depressive episode severe, dysthymia and alcohol dependency. Dr. Vogelfanger noted that, as of
April 9, 2008, appellant was taking medications (including prozac, klonopin and lyrica) capable
of causing dizziness, abnormal coordination, emotional liability, confusion, nervousness,
anxiety, weakness and problems concentrating. Noting that he had reviewed the position offered
to appellant on February 7, 2008, he opined that appellant was not able to return to work on
April 9, 2008 and was not able to be physically present to perform those tasks. As of March 31,
2008 appellant was having periods of uncontrollable crying, was experiencing sleep disturbance
on a regular basis and when even driving near any postal facility, reported severe anxiety, which
was manifested by difficulty breathing, shaking and feelings of impending doom. When he
attempted unsuccessfully to return to work in 2007, he reported ongoing anxiety in interacting
with others. Dr. Vogelfanger opined that appellant’s inability to interact with others would
preclude his ability to perform the duties of the offered position.
On June 16, 2009 OWCP authorized a cervical spinal fusion and removal of vertebral
body and insertion of spinal fixation device.
Appellant submitted a September 23, 2009 report from Dr. Adrian Blotner, a Boardcertified psychiatrist, who noted appellant’s increasing neck and low back pain and described
symptoms of decreased energy, anxiety, depressed mood and decreased concentration. He also
submitted August 28 and September 16, 2009 reports from Dr. Leslie R. McGowan, a Boardcertified urologist, regarding his bladder condition.
By decision dated May 25, 2010, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was duplicative and cumulative in nature and therefore
insufficient to warrant merit review. The claims examiner stated that “most of the arguments
presented [were] already addressed in the hearing decision dated December 24, 2008 and offer
no new information.”
On appeal appellant contends that the employing establishment was attempting to force
him to accept a position he was unable to perform physically or mentally, as established by the
medical evidence.
4

Counsel cited Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.4 (December 1995).

3

LEGAL PRECEDENT
In order to reopen a case for merit review under section 8128(a) of FECA,5 OWCP’s
regulations provide that a claimant must submit evidence or argument that: (1) shows that
OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant legal
argument not previously considered by OWCP; or (3) constitutes relevant and pertinent new
evidence not previously considered by OWCP.6 To be entitled to a merit review of OWCP’s
decision denying or terminating a benefit, a claimant also must file his application for review
within one year of the date of that decision.7 When a claimant fails to meet one of the above
standards, OWCP will deny the application for reconsideration without reopening the case for
review on the merits.8
In order to obtain merit review, appellant need not submit evidence sufficient to
discharge his burden of proof. Rather, the new evidence must be only relevant and pertinent and
not previously considered by OWCP.9
ANALYSIS
As noted, the Board does not have jurisdiction over the merits of this case. The issue
presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2) requiring OWCP to reopen the case for review of the merits. The Board finds
that appellant satisfied two of the three requirements. Therefore, OWCP abused its discretion by
denying his request for further merit review.
In the December 22, 2009 request for reconsideration, appellant’s representative argued
that OWCP failed to consider the entirety of appellant’s physical conditions, both work related
and nonwork related, as required by OWCP procedures. He also contended that if a claimant is
disabled from a position due to a nonwork-related medical condition arising subsequent to a
compensable injury, the position will be considered unsuitable. The Board finds that counsel
advanced a relevant legal argument not previously considered by the Office.10
The Board also finds that appellant submitted relevant and pertinent new evidence not
previously considered by the Office.11 Dr. Vogelfanger’s June 4, 2009 narrative report is new
5

Section 8128(a) of the Act provides that the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See F.D. (S.D.), 58 ECAB 413 (2007); Donald T. Pippin, 53 ECAB 631 (2003).

10

20 C.F.R. § 10.606(b)(2). The Board notes that in denying merit review, the claims examiner stated that “most
of the arguments presented [were] already addressed” in the prior decision, acknowledging that some arguments had
not been addressed.
11

Id.

4

evidence and is relevant to the issues addressed by the December 23, 2008 decision. The hearing
representative found that Dr. Vogelfanger’s prior report was deficient, in part, because it did not
address appellant’s ability to perform the duties of the position offered on February 7, 2008. In a
June 4, 2009 report, Dr. Vogelfanger opined that appellant was unable to perform the duties of
the proposed modified position due to symptoms related to his diagnosed depression and anxiety,
which he described in detail and side effects of required medications. He further opined that
appellant’s ability to interact with others precluded his ability to perform two of the three duties
identified in the job description (answering phones (taking messages and paging appropriate
employees) and serving as lobby director (assisting and directing customers)). As discussed, to
obtain merit review, a claimant need not submit all evidence that may be necessary to discharge
his burden of proof. Rather, the evidence need only be relevant and pertinent and not previously
considered by OWCP.12 Dr. Vogelfanger’s June 4, 2009 report satisfies this requirement.
The Board finds that appellant advanced a relevant legal argument not previously
considered by OWCP and submitted relevant and pertinent new evidence not previously
considered. Appellant has met the requirements for obtaining further merit review.13 The case
will be remanded to OWCP to conduct an appropriate merit review of the claim. Following this
and such other development as deemed necessary, OWCP shall issue a merit decision on the
claim.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for further review of
the merits under 5 U.S.C. § 8128(a).

12

See F.D. supra note 9; Donald T. Pippin, supra note 9.

13

20 C.F.R. § 10.606(b)(2).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2010 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: August 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6