United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
EXPEDITIONARY MEDICAL SUPPORT
COMMAND, Williamsburg, VA, Employer
__________________________________________

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

Docket No. 20-0537
Issued: September 24, 2020

Case Submitted on the Record

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

JURISDICTION
On January 8, 2020 appellant filed a timely appeal from a July 12, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated June 27, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 12, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.
FACTUAL HISTORY
On September 2, 2008 appellant, then a 49-year-old inventory management specialist, filed
a traumatic injury claim (Form CA-1) alleging that on that day he sustained a right ankle injury
when he slipped on loose rocks and twisted his ankle while in the performance of duty. He stopped
work on the date of the alleged injury. OWCP accepted appellant’s claim for right ankle sprain,
deltoid ligament; knee sprain, lateral collateral ligament; and right venous embolism and deep vein
thrombosis (DVT) of the right lower extremity.
Appellant continued to receive medical treatment. In a September 16, 2016 office note,
Dr. Matthew Hopson, a podiatrist, related appellant’s complaints of right ankle pain and noted an
onset of 20 years ago. Upon examination of appellant’s right ankle, he observed pain on range of
motion with instability along the distal portion and varicose veins on the medial aspect of the right
ankle. Dr. Hopson related that a right ankle x-ray examination revealed joint space narrowing
osteoarthritic changes along the right ankle joint and small old avulsion fractures along the medial
lateral aspects of the ankle. He diagnosed post-traumatic osteoarthritis of the right ankle and joint
and right ankle and joint pain.
In an October 17, 2016 office note, Dr. Hopson indicated that appellant was seen for
follow-up of right ankle pain and noted an onset of 20 years ago. He noted examination findings
of right ankle pain and instability along the right ankle joint and assessed post-traumatic
osteoarthritis of the right ankle and foot. Dr. Hopson related that appellant was scheduled for a
right ankle stabilization procedure and ankle arthroscopy.
In a November 16, 2016 examination report, Dr. John Paschold, a Board-certified internist
who specializes in hematology and medical oncology, related that appellant was seen for followup of his hypercoagulable state and noted his complaints of DVT. He reviewed appellant’s history
and conducted an examination. Dr. Paschold diagnosed DVT disorder and factor V leiden
mutation disorder.
On March 27, 2017 appellant requested authorization for right ankle arthroscopy surgery.
In a March 28, 2017 letter, OWCP advised appellant that it would be unable to authorize
his request for right ankle arthroscopic surgery and repair of the right ankle ligament. It noted that
the request was not accompanied by an explanation as to why the requested procedure was
necessary to treat the accepted employment injury.
In an April 11, 2017 letter, Dr. Hopson indicated that a 2011 magnetic resonance imaging
(MRI) scan of the right ankle verified arthritic changes along the ankle joint and a torn anterior
talofibular ligament (ATF) ligament. He related that appellant did not have any MRI scan imaging
from the September 2, 2008 sprain to verify if the torn ligament happened during that incident.

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Dr. Hopson reported that the last several years with a torn ligament had led to further instability
and arthritic changes along the ankle joint. He explained that he proposed to do a lateral ankle
stabilization and repair the torn ligament in order to prevent or, at least, slow the process of further
osteoarthritic changes in appellant’s ankle. Dr. Hopson reported that the surgery would benefit
appellant and slow the arthritic process down to hopefully prevent further surgery on the right
ankle joint.
In an April 13, 2017 letter, appellant explained that he sprained his ankle while he was on
active duty in the Navy in 1985. He also related that he fractured his right ankle in 2003, for which
he had an accepted workers’ compensation claim under OWCP File No. xxxxxx179.3
By decision dated April 20, 2017, OWCP denied authorization for right ankle arthroscopy
surgery and repair. It found that the medical evidence of record was insufficient to establish that
the proposed surgery was necessary to treat his September 2, 2008 employment injury.
Appellant subsequently submitted additional medical evidence.
In a May 17, 2017 note, Dr. Paschold noted appellant’s diagnoses of DVT disorder and
factor V Leiden mutation disorder. He reviewed appellant’s history and provided examination
findings. Dr. Paschold discussed appellant’s laboratory and pathology results.
In a November 20, 2017 report, Dr. Hopson related appellant’s complaints of worsening
right ankle pain. He reviewed appellant’s history, noted examination findings, and discussed
diagnostic testing results. Dr. Hopson assessed right ankle post-traumatic osteoarthritis and right
ankle pain. He reported that appellant may no longer be a candidate for an ankle joint arthroscopy,
but may need to have the ankle joint fused or replaced.
Appellant underwent a right ankle computerized tomography (CT) scan on November 30,
2017, which revealed moderate ankle joint osteoarthritis, chronic ossifications suggestive of
remote anterior inferior tibiofibular (AITF), ATF, deep deltoid ligament injury, and mild posterior
and middle subtalar joint osteoarthritis.
In a December 5, 2017 report, Dr. Hopson indicated that appellant’s CT scan revealed
osteoarthritic changes along the right ankle joint and the chronic ossifications along the ATF
ligament consistent with the old ankle sprain injury, which has subsequently sclerosis. He
explained that after lengthy discussion about an ankle implant versus ankle joint fusion due to the
arthritic condition of the subtalar joints, appellant opted for the joint replacement.
In a January 3, 2018 report, Dr. Michael E. Landis, a Board-certified vascular surgeon,
recounted that appellant had a history of remote right ankle injury, recurrent chronic right lower
extremity DVT, and chronic venous insufficiency with ulceration. He indicated that appellant
continued to have moderate right lower extremity trophic changes adjacent to the medial malleolux
and intermittent ulcerations. Dr. Landis noted that appellant was supposed to have right ankle
3

Under File No. xxxxxx179, OWCP accepted that on February 7, 2003 appellant fractured his right ankle when he
stepped into a hole while inspecting a vehicle while in the performance of duty. It accepted his claim for right ankle
fracture. Appellant’s claims have not been administratively combined.

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surgery, but it had been delayed such that now Dr. Hopson was recommending joint replacement.
He noted examination findings and opined that appellant appeared to be doing well clinically.
A January 18, 2018 right lower extremity venous insufficiency duplex study showed no
evidence of DVT in the right common femoral, femoral, or popliteal veins.
In progress notes January 24 to March 27, 2018, Dr. Landis noted examination findings
and appellant’s history of venous insufficiency, DVT, and right lower leg stasis ulceration. He
diagnosed chronic venous insufficiency with recurrent stasis ulceration of the right lower extremity
DVT and right ankle degenerative joint disease following remote trauma. Dr. Landis noted that
appellant was scheduled for right ankle joint repair/replacement with Dr. Hopson in March.
Appellant underwent additional diagnostic testing. A February 27, 2018 post-ablation
venous duplex revealed successful right perforator vein closure and acute and occlusive DVT in
the adjacent right 1 of 2 distal posterior tibial veins. A March 9, 2018 lower extremity venous
duplex scan report revealed chronic, focal, nonocclusive deep venous thrombosis of the right
popliteal vein, acute, occlusive DVT of the right distal posterior tibial and vein of the right calf.
In a March 9, 2018 examination report, Dr. Paschold noted right lower extremity
examination findings of right ankle pain. He assessed DVT disorder, factor V Leiden mutation
disorder, and ankle pain.
OWCP received a series of diagnostic laboratory results dated April 10, 2017 to
May 9, 2018.
On June 18, 2018 appellant requested reconsideration. He asserted that while he had a 20year-history of previous ankle injuries, his current ankle conditions were a result of his accepted
September 2, 2008 right ankle sprain injury.
In a March 9, 2018 letter to Dr. Hopson, Dr. Paschold indicated that he had been treating
appellant since approximately 2010 for right ankle pain. He explained that he initially thought
appellant’s condition may be more related to peripheral vascular disease and/or postphlebitic
syndrome, but now he felt that there was probably an orthopedic component as well.
In a May 23, 2018 letter, Dr. Hopson indicated that appellant had been his patient since
late 2016 and suffered from unstable ankle as a result of ATF, talofibular, and deltoid ligament
damage. He explained that the damaged ligaments and instability had led to development of
arthritis in the ankle joint. Dr. Hopson related that appellant’s ankle joint had deteriorated to the
point that repair was no longer an option and he now recommended right ankle replacement
surgery. He opined that the sprain that occurred in September 2008 was a contributing factor to
appellant’s condition. Dr. Hopson noted that appellant’s ankle condition continued to deteriorate.
He concluded that ankle replacement surgery was the best option to treat appellant’s current ankle
condition, which had continued to deteriorate as a result of the 2008 sprain.
By decision dated June 27, 2018, OWCP denied modification of the April 20, 2017
decision.
OWCP subsequently received laboratory testing results dated July 5, 2018 to April 1, 2019.
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Additionally, appellant submitted an August 7, 2018 office visit note, wherein Dr. Hopson
indicated that appellant was treated for follow-up of worsening right ankle pain. He reviewed
appellant’s history and provided examination findings. Dr. Hopson noted continued pain along
the right ankle joint and no joint tenderness, instability, or decreased mobility. He assessed right
ankle joint pain and right ankle post-traumatic osteoarthritis.
In a November 27, 2018 office note, Dr. Paschold reviewed appellant’s history and noted
examination findings of right medial malleolus hyperpigmentation varicosities in the extremities.
He assessed DVT disorder, factor V Leiden disorder, and ankle pain.
In a May 14, 2019 report, Dr. Landis related appellant’s history of chronic venous
insufficiency, recurrent DVT, and arthritis in his right ankle. He indicated that appellant had been
scheduled to undergo a total joint replacement, but it was canceled due to insurance constraints.
Dr. Landis recounted appellant’s ongoing complaints of pain and discomfort on the dorsum of his
foot. He opined that this appeared to be musculoskeletal in nature, and not related to either arterial
or venous insufficiency.
On June 28, 2019 appellant requested reconsideration. In a letter dated June 24, 2019,
appellant requested information on how to change his doctor since Dr. Hopson no longer wanted
to treat his ankle injury. He also requested that his current claim be combined with his accepted
February 6, 2003 ankle injury claim because connecting the two claims would address the concerns
expressed about the history of his ankle injury. Appellant also contended that three physicians had
provided a well-rationalized opinion that his diagnosed post-traumatic osteoarthritis was a direct
result of the 2003 fracture and the 2008 sprain. Furthermore, citing to the Federal (FECA)
Procedure Manual, he alleged that his ankle sprain and subsequent post-traumatic osteoarthritis
conditions were clear-cut traumatic injury claims, which did not require a fully-rationalized
medical opinion.
Appellant submitted a July 8, 2011 report by Dr. Loel Z. Payne, a Board-certified
orthopedic surgeon, who diagnosed talar dome osteochondritis dissecans. Dr. Payne opined that
the diagnosed condition “is due to his previous inversion sprain injury several years ago.” He
noted that appellant remained symptomatic and recommended an MRI scan and possible surgical
intervention in the form of an arthroscopic chondroplasty.
Appellant also submitted an October 22, 2018 note by Dr. Aasta Pedersen, a Boardcertified orthopedic surgeon, who related appellant’s complaints of left knee pain from
compensating on his right ankle and continued right ankle pain. Dr. Pederson reported diagnosed
conditions of left knee osteoarthritis and right ankle and foot post-traumatic osteoarthritis.
By decision dated July 12, 2019, OWCP denied appellant’s reconsideration request. It
found that his reconsideration request was untimely filed and failed to demonstrate clear evidence
of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
request for reconsideration must be received by OWCP within one year of the date of OWCP’s

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decision for which review is sought.4 Timeliness is determined by the document receipt date of
the request for reconsideration as is indicated by the “received date” in the Integrated Federal
Employees’ Compensation System.5 The Board has found that the imposition of the one-year time
limitation does not constitute an abuse of the discretionary authority granted OWCP under section
8128(a) of FECA.6
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the request demonstrates clear evidence of error.7 OWCP regulations
and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an 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
OWCP of how the evidence submitted with the reconsideration request bears on the evidence
previously of record and whether the new evidence demonstrates clear evidence of error.11 The
Board makes an independent determination of whether a claimant has demonstrated clear evidence
of error on the part of OWCP such that it abused its discretion in denying merit review in the face
of such evidence.12
OWCP’s procedures further provide that the term clear evidence of error is intended to
represent a difficult standard.13 The claimant must present evidence that on its face shows that
OWCP made an error (for example, proof that a schedule award was miscalculated). Evidence
such as a detailed, well-rationalized medical report that, if submitted before the denial was issued,

4

20 C.F.R. § 10.607(a).

5

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

6

G.L., Docket No. 18-0852 (issued January 14, 2020).

7

20 C.F.R. § 10.607(b); R.S., Docket No. 19-0180 (issued December 5, 2019).

8

Id.; Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(a).

9

20 C.F.R. § 10.607(b); B.W., Docket No. 19-0626 (issued March 4, 2020); Fidel E. Perez, 48 ECAB 663,
665 (1997).
10

See G.B., Docket No. 19-1762 (issued March 10, 2020); Leona N. Travis, 43 ECAB 227, 240 (1991).

11

B.W., supra note 9.

12

Id.; Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

13

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(b).

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would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.14
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.15 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.16 The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.17
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed.
OWCP received appellant’s request for reconsideration on June 28, 2019, which was more
than one year after the last merit decision, dated June 27, 2018. As appellant’s request for
reconsideration was untimely filed, he must demonstrate clear evidence of error on the part of
OWCP.18
The Board further finds, however, that OWCP did not make findings regarding the
evidence that appellant submitted in support of the reconsideration request.19
In support of his untimely request for reconsideration, appellant submitted a July 8, 2011
report from Dr. Payne, who diagnosed talar dome osteochondritis dissecans “due to his previous
inversion sprain injury several years ago.” He recommended an MRI to be followed by a
determination as to whether surgery was warranted. Additionally, appellant submitted an
August 7, 2018 report from Dr. Hopson, an October 22, 2018 report from Dr. Pedersen, a
November 27, 2018 report from Dr. Paschold, and a May 14, 2019 report from Dr. Landis
regarding the medical treatment he received for his right ankle pain, DVT disorder, and right ankle
post-traumatic osteoarthritis. Although OWCP acknowledged appellant’s submission of the
aforementioned evidence in its July 12, 2019 decision, the only report it analyzed in explaining
why appellant had failed to demonstrate clear evidence of error was that of Dr. Hopson. It

14

G.B., supra note 10; A.R., Docket No. 15-1598 (issued December 7, 2015).

15

5 U.S.C. § 8124(a).

16

20 C.F.R. § 10.126.

17

C.M., Docket No. 19-1211 (issued August 5, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014);
Federal (FECA) Procedure Manual Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013) (all decisions
should contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance).
18

Supra note 8.

19
See Order Remanding Case, J.K., Docket No. 20-0556 (issued August 13, 2020); Order Remanding Case, C.D.,
Docket No. 19-1962 (issued June 29, 2020).

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provided no discussion relative to the remainder of the new evidence submitted by appellant.20
Thus, the Board finds that OWCP did not comply with the review requirements of FECA and its
implementing regulations.21 Appellant, therefore, could not understand the precise defect of the
claim and the kind of evidence which would overcome it.22
The Board will therefore set aside OWCP’s July 12, 2019 decision and remand the case for
findings of fact and a statement of reasons, to be followed by an appropriate decision on appellant’s
untimely reconsideration request.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The Board further finds, however, that the case is not in
posture for decision regarding whether appellant’s reconsideration request has demonstrated clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: September 24, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

See R.T., Docket No. 19-0604 (issued September 13, 2019); J.K., id.

21

See C.M., supra note 17.

22

Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.1400.5.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 12-1939
Issued: April 5, 2013

Case Submitted on the Record

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

JURISDICTION
On September 21, 2012 appellant filed a timely appeal of a July 27, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying her emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an emotional condition in the performance of duty.
On appeal, appellant contends that OWCP ignored evidence in her favor and her
allegations of wrongdoing by the employing establishment.
FACTUAL HISTORY
On July 28, 2010 appellant, then a 54-year-old transit mail expediter, filed an
occupational disease claim (Form CA-2) alleging that, on or before June 29, 2010, she had
1

5 U.S.C. § 8101 et seq.

anxiety and depression with consequential migraines, hypertension and hyperglycemia due to the
following disciplinary actions: issuance of a February 25, 2008 letter of warning as appellant put
a van in storage with a sack of express mail still inside; an October 28, 2009 letter of warning for
not dispatching mail on time on October 21, 2009; a February 13, 2010 5-day suspension for
using a postal vehicle without authorization on January 17, 2010 and failure to timely expedite
three vans of mail; an April 27, 2010 14-day suspension for failing to scan mail container labels
on March 21 and 28, 2010, resulting in delayed mail; a May 18, 2010 14-day suspension for
being present on postal premises without authorization on 7 dates in February and March 2010
and a verbal altercation with, driver, Kenneth Mitchell with whom she had a dating relationship
in 2001;2 a May 18, 2010 just cause interview regarding the 14-day suspension in which Robert
Felix, supervisor, momentarily blocked her from leaving his office by putting his arm across the
doorway; June 16 and 29, 2010 notices of removal for a pattern of malfeasance and misconduct,
including failure to follow procedures in dispatching mail on May 10, 2010; rescission of the
June 16, 2010 notice of removal. She also alleged reprisal for her union activities from 1986 to
2010 and for filing Equal Employment Opportunity (EEO) grievances.
Appellant denied any and all wrongdoing, asserting that her supervisors fabricated all
accusations against her. She attributed her condition to frustration over conflicting supervisory
instructions from April 25, 2008 to December 11, 2009, and to her supervisors not assigning
overtime in accordance with union procedures, resulting in her working six days a week from
January 16 to February 12, 2010. Appellant also attributed her condition to: anxiety over
Mr. Felix assigning her to three docks simultaneously and moving her from the east dock on
January 17, 2010 in violation of safety protocols; Mr. Felix telling coworkers on January 18 and
April 26, 2010 that he planned to terminate appellant; being informed by a coworker on April 26,
2010 that Mr. Felix stated that he would terminate her; being denied use of a postal vehicle to
travel to and from the van yard; being banned from the transport office on March 27, 2010 for
being on site without permission; and a supervisor using her scanner on May 22, 2010 to set her
up on false disciplinary charges. She also alleged that supervisors failed to provide her with
standard operating procedures for expediter and dispatch protocols. Appellant noted that OWCP
accepted an emotional condition claim in 1990, resulting in restrictions against working under
certain supervisors.
Appellant submitted copies of each disciplinary action to which she attributed her
condition, as well as transportation tracking forms which she asserted showed that she was not at
fault for delaying mail on any of the dates listed. She also provided statements in March, May
and July 2010 from 11 coworkers asserting that Mr. Felix singled her out for disciplinary action,
as other expediters were not penalized for similar misconduct.
In January 16, 17, 24, April 6 and June 20, 2010 statements, Mr. Felix stated that he
investigated an alleged December 2001 physical assault and February 18, 2010 verbal altercation
by appellant against coworker, Mr. Mitchell, whom she dated in 2001. Mr. Mitchell filed a
police report in 2001 stating that appellant threw hot coffee in his face, but he did not press
charges. On January 17, 2010 appellant refused to cooperate with a disciplinary interview into
2

Appellant submitted a May 18, 2010 14-day suspension letter alleging that she called, driver, Mr. Mitchell, a
“punk b---h” and/or “punk mother f--ker” on February 18, 2010 while she was on postal premises without
authorization on her scheduled day off, harassed Mr. Mitchell on March 25, 2010 and entered the employing
establishment without permission on seven dates from February 17 to March 25, 2010.

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her failure to place vans in the proper stalls and comply with supervisory instructions for van
placement. Mr. Felix determined that, on February 18, 2010, she was on postal premises without
authorization on her scheduled day off. Appellant accused Mr. Mitchell of tampering with her
campaign flyers and called him a “Punk B---h.” She also appeared at the transportation office on
March 27, 2010, her scheduled day off, to conduct union campaign activities. During her shift
on June 20, 2010, appellant failed to dispatch a van as directed for the Los Angeles run, left the
dock, failed to process the Santa Ana dispatch and failed to put a van in a stall for the Fresno
dispatch. In just cause and other investigative interviews, appellant categorically denied any
wrongdoing. Mr. Felix concluded that there was sufficient evidence of appellant’s misconduct
and malfeasance to warrant the disciplinary actions against her.
In a July 20, 2010 statement, one of appellant’s coworkers noted that, on January 17,
2010, she called appellant to advise her that a truck was coming into their dock and that the
“Denver driver was waiting.”
In an August 30, 2010 statement, Supervisor Felix stated that, although there were no
standard operating procedures, all of appellant’s duty requirements were detailed in her written
job description. She had worked on the platform as an expediter for more than three years and
should have understood the varying tasks required depending upon the flow and routing of mail.
These duties required labeling and logging mail according to her written job description,
expediting mail and van routing. Although expediters were not authorized to use postal vehicles
as their duties did not require them, appellant signed out a vehicle without permission as she “did
not want to walk the yard to locate [her] vans.” On January 17, 2010 Mr. Felix assigned
appellant to one dock, then a second when she had finished her duties on the first. The third
dock was closed for construction. Appellant violated instructions by moving vans containing
mail, resulting in mail falling from a van and being destroyed due to rain. Mr. Felix confirmed
that he told one of appellant’s coworkers on January 18, 2010 that, if she continued to behave
like appellant, she would end up with a bad attitude like appellant. He noted that his remarks did
not indicate an intention to terminate appellant. Mr. Felix stated that, on February 18, 2010,
appellant appeared at the transportation office on her day off to post her union campaign flyers.
Appellant accused Mr. Mitchell of removing her flyers, called him an obscenity then called a
coworker and repeated her remarks. On April 26, 2010 Mr. Mitchell told an expediter that she
would “be fired just like [appellant] if she did not perform her duties.” He confirmed that, on
June 29, 2010, appellant was issued a notice of removal that was rescinded on the same day. On
May 18, 2010 when Mr. Felix issued appellant a 14-day suspension, she tried to remove the
notice from his office without signing it. He stated that he momentarily blocked the office
doorway with his arm, instructing appellant to either sign the notice or inform him that she
refused to sign it. Appellant then signed the notice and complained of anxiety and chest pains.
Postal Police called an ambulance and appellant was transported to a hospital. Mr. Felix denied
that he or any other supervisor harassed, intimidated, threatened, abused or discriminated against
appellant.
In an August 31, 2010 letter, a retired postal supervisor asserted that, from 1985 to 2009,
expediters were allowed to use postal vehicles to perform their duties.
In a July 15, 2010 report, Dr. Ruth Fallenbaum, an attending licensed clinical
psychologist, related appellant’s account of harassment and disciplinary actions in the
workplace.
She diagnosed adjustment disorder with mixed anxiety and depression.
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Dr. Fallenbaum asserted that appellant felt harassed by illogical disciplinary actions, causing
recrudescence of previously resolved dysthymia.
By decision dated January 26, 2011, OWCP denied appellant’s claim finding that she
failed to establish any compensable employment factors. It found a lack of sufficient evidence to
establish her allegations regarding the February 25, 2008, October 28, 2009, April 27, May 18,
June 16 and 29, 2010 disciplinary actions based on documented nonfeasance, and no harassment
or disparate treatment was established. OWCP found that there was no proof that she was
harassed for not being allowed to use a postal vehicle; that she was assigned to three docks
simultaneously on January 17, 2010 or harassed on March 25 and 27, 2010 when barred from the
transportation office, or that a supervisor misused her scanner on May 22, 2010. OWCP advised
that the following factors were factual, but not compensable: not being provided standard
operating procedures as the document did not exist; working six days a week from January 16 to
February 12, 2010, as no overtime assignment violations were shown; Mr. Felix momentarily
placed his arm across his doorway on May 18, 2010 which did not rise to the level of
constructive imprisonment; his remarks to appellant’s coworkers on January 18 and April 26,
2010 were not made to appellant; a lack of uniformity in supervisory directions from April 25,
2008 to December 11, 2009, as appellant’s duties varied with each work shift and required
flexibility in prioritizing.
In a February 25, 2011 statement, appellant requested a hearing that was held on
June 27, 2011. She asserted that she always followed proper work procedures so the charges
against her were fabricated, and that she was not instructed in proper procedures so the charges
against her were disparate discipline. Appellant submitted her contentions regarding each
disciplinary action against her, asserting that she had not done anything wrong and that she made
mistakes due to conflicting or insufficient instructions.
In March 28 and April 30, 2010 statements, Mr. Mitchell stated that in December 2001,
appellant threw a cup of hot coffee in his face after he ended their dating relationship. On
March 25, 2010 appellant appeared outside the transportation office and yelled at him to come
out. She submitted an April 14, 2010 coworker’s statement alleging that Mr. Mitchell spoke
badly of appellant.
By decision dated and finalized September 20, 2011, an OWCP hearing representative
affirmed the January 26, 2011 decision, finding that the evidence was insufficient to establish
administrative error or abuse. The hearing representative further found that appellant’s
statements, and those of her coworkers, were too general or vague to establish her allegations of
harassment, disparate treatment and false charges.
In an April 23, 2012 letter, appellant requested reconsideration, asserting that the
employing establishment erred in issuing a five-day suspension on February 13, 2010.3 She
submitted a February 2, 2012 letter from the employing establishment, reducing an October 28,
2009 letter of warning to an official discussion, and a February 3, 2012 employer letter reducing
a February 13, 2010 five-day suspension to a letter of warning. Appellant also provided a
3

Appellant filed a claim for recurrence of disability on April 23, 2012. In a May 7, 2012 letter, OWCP advised
appellant that the claim for recurrence of disability was not in posture for a decision due to the pending request for
reconsideration.

4

February 16, 2012 final grievance arbitration panel award, finding “substantive errors” by
appellant’s supervisors in issuing the February 13, 2010 suspension and February 3, 2012 letter
of warning, including “overcharging grievant with certain contract violations.” The arbitrator
found that, at a February 14, 2012 grievance hearing, Mr. Felix’s testimony established that, on
January 17, 2010, he violated a directive prohibiting assigning an employee from the east dock to
another dock, then failed to conduct a fair and thorough just cause interview. The arbitrator
found that the letter of warning should be expunged from appellant’s record due to substantive
procedural errors.
An April 5, 2012 report from Dr. Fallenbaum noted that the February 13, 2010 notice of
suspension “trigger[ed] some psychological symptoms.” A subsequent pattern of supervisory
harassment as related by appellant led to severe anxiety and depression. Dr. Fallenbaum
diagnosed adjustment disorder with mixed anxiety and depression.
In a July 27, 2012 decision, OWCP modified its September 20, 2011 decision to find that
appellant established a compensable employment factor. The February 16, 2012 arbitration
award established procedural errors by her supervisor bringing the disciplinary letter. However,
appellant did not establish causal relationship, as Dr. Fallenbaum’s reports did not contain
sufficient medical rationale explaining how the February 13, 2010 five-day suspension or
February 3, 2012 letter of warning caused her emotional condition. OWCP also found that she
did not establish any other compensable factors of employment.
LEGAL PRECEDENT
FECA provides for payment of compensation for personal injuries sustained while in the
performance of duty.4 Where disability results from an employee’s reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of FECA.5 To establish entitlement to benefits, a claimant must establish a
factual basis for the claim by supporting the allegations with probative and reliable evidence.6
This burden includes the submission of a detailed description of the employment factors or
conditions which appellant believes caused or adversely affected the condition or conditions for
which compensation is claimed.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.8 If a claimant implicates a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor. When the matter

4

5 U.S.C. § 8102(a).

5

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

6

Ruthie M. Evans, 41 ECAB 416 (1990).

7

Effie O. Morris, 44 ECAB 470 (1993).

8

See Norma L. Blank, 43 ECAB 384 (1992).

5

asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.9
ANALYSIS
Appellant did not attribute her emotional condition to the performance of her regular or
specially assigned duties under Cutler. Rather, she attributed her emotional condition, in part, to
a series of disciplinary actions taken by her supervisor. Disciplinary actions including oral
reprimands, discussions or letters of warning for conduct are noncompensable administrative
actions unless the employee shows management acted unreasonably.10 To support such a claim,
a claimant must establish a factual basis by providing probative and reliable evidence.11 OWCP
accepted the February 13, 2010 five-day suspension as a compensable employment factor as the
arbitration panel found procedural errors by Mr. Felix established administrative error or abuse.
Therefore, appellant has established the February 13, 2010 suspension as a compensable
employment factor.
Appellant also attributed her claimed anxiety condition to a stress reaction by
Supervisor Felix moving her from the east dock to another dock on January 17, 2010, an
administrative error violating safety protocols. The Board notes that the assignment of work is
generally an administrative function and is not compensable absent error or abuse.12 In this case,
the February 16, 2010 final arbitration decision found that Mr. Felix violated safety procedures
on January 17, 2010 by moving appellant from the east dock. The arbitrator’s finding is
sufficient to establish administrative error. The Board finds that appellant has submitted
sufficient probative evidence to establish a compensable employment factor in this regard.
As appellant established two compensable factors of employment, the Board will review
the medical evidence to determine if she established causal relationship. In support of her claim,
appellant submitted reports from Dr. Fallenbaum, an attending licensed clinical psychologist,
who opined on July 15, 2010 that appellant’s perception of disciplinary actions as illogical
caused recrudescence of previously resolved dysthymia. On an April 5, 2012 report
Dr. Fallenbaum stated that the February 13, 2010 notice of suspension “trigger[ed] some
psychological symptoms” without a specific diagnosis. However, she did not explain how or
why the two accepted employment factors, the February 13, 2010 disciplinary action and being
moved from the east dock on January 17, 2010, would cause or aggravate a specific emotional
condition. The Board finds that Dr. Fallenbaum’s opinion is insufficient to meet appellant’s
burden of proof in establishing causal relationship in this case.13
Appellant alleged that the claimed condition resulted from a number of employment
incidents which OWCP found to be noncompensable. Therefore, the Board must review whether
these alleged incidents and conditions are covered employment factors under the terms of FECA.
9

Marlon Vera, 54 ECAB 834 (2003).

10

Ruth S. Johnson, 46 ECAB 237 (1994).

11

See Barbara J. Nicholson, 45 ECAB 843 (1994).

12

Donney T. Drennon-Gala, 56 ECAB 469 (2005); Linda J. Edward-Delgado, 55 ECAB 401 (2004).

13

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

6

Regarding the employing establishment’s unilateral reduction of an October 28, 2009 letter of
warning to an official discussion, and unilateral rescission of the June 16, 2010 notice of
removal, the Board has held that a subsequent reduction or rescission of a disciplinary action by
itself does not establish error or abuse.14 Appellant has not submitted sufficient evidence to
show that the October 28, 2009 letter of warning was issued in error. Therefore, she has not
established a compensable employment factor in this regard. Also, appellant did not submit
evidence corroborating her allegations of employing establishment administrative error or abuse
in issuance of the February 25, 2008 letter of warning, April 27, 2010 14-day suspension,
May 18, 2010 14-day suspension and June 29, 2010 notice of removal. Similarly, she did not
contest, and Mr. Felix’s supervisory statements establish that she was banned from the
transportation office on March 27, 2010 because she was present on her day off without
permission. Therefore, these disciplinary matters are not compensable work factors.15
Appellant also attributed her emotional condition to being denied use of a postal vehicle
and a lack of standard operating procedures in addition to her written job description. However,
the Board has held that self-generated frustration arising from not being allowed to work in a
particular position or to hold a particular job is not compensable under FECA.16 Mr. Felix noted
that there were no standard operating procedures and that expediters were not authorized to use
postal vehicles in performing their duties. Although an August 31, 2010 letter from a retired
postal supervisor stated generally that expediters were allowed to use postal vehicles, he did not
provide any specific information to establish that appellant was wrongfully denied the use of a
vehicle. Appellant has not established a compensable employment factor regarding the lack of
standard operating procedures or denial of authorization to use a postal vehicle.
Appellant also alleged that supervisors violated overtime assignment policies from
January 16 to February 12, 2010, that supervisors issued conflicting or confusing instructions
from April 25, 2008 to December 11, 2009, and that a supervisor wrongfully used her scanner on
May 22, 2010 allegedly to fabricate disciplinary charges.
However, an employee’s
dissatisfaction with the way a supervisor performs duties or exercises discretion in assigning
work is not compensable absent error or abuse.17 Appellant did not submit corroborating
evidence establishing conflicting supervisory instructions, that the overtime assignments were
erroneous, or that a supervisor using her scanner on May 22, 2010 was erroneous or abusive.
She failed to establish compensable employment factors in this regard.
Appellant also contended that Mr. Felix’s negative remarks to coworkers on January 18
and April 26, 2010, and being informed of these remarks by a coworker on April 26, 2010
contributed to her anxiety. Mr. Felix acknowledged that, on January 18, 2010, he told one of
appellant’s coworkers that she was developing a bad attitude similar to appellant. The Board has
held that every statement made in the workplace is not a compensable factor of employment. A
mere utterance which may engender offensive feelings in an employee does not sufficiently

14

Paul L. Stewart, 54 ECAB 824 (2003); Mary L. Brooks, 46 ECAB 266, 274 (1994).

15

Janice I. Moore, 53 ECAB 777 (2002).

16

Lori A. Facey, 55 ECAB 217 (2004); see Katherine A. Berg, 54 ECAB 262 (2002).

17

Supra note 12.

7

affect the conditions of his or her employment to constitute a compensable factor.18 Under the
circumstances of this case the Board finds that Mr. Felix’s remarks are not compensable.19
Appellant also attributed her condition to Mr. Felix momentarily blocking his office
doorway with his arm on May 18, 2010 when she attempted to leave his office without signing a
disciplinary letter or stating that she refused to sign. Mr. Felix confirmed that he momentarily
blocked the doorway with his arm but from both appellant’s and his description of the event, the
Board finds that his momentary gesture does not rise to the level of a compensable work factor.
Therefore, it is not a compensable factor of employment.20
Appellant also alleged a pattern of harassment and reprisals for her union activities and
for filing grievances. For harassment or discrimination to give rise to a compensable disability
under FECA, there must be probative and reliable evidence that harassment or discrimination did
in fact occur.21 Mere perceptions of harassment, retaliation or discrimination are not
compensable under FECA.22 Appellant did not submit probative evidence, such as witness
statements, corroborating her allegations of retaliation and harassment based on union or
grievance activities. The absence of such documentation diminishes the validity of her
contentions in this case where there is no evidence to document that she was discriminated or
retaliated against. As appellant has not established these incidents as factual, she has not
established a compensable work factor under FECA with respect to the claimed harassment and
reprisals.
The Board notes that several of appellant’s allegations involve interactions with
Mr. Mitchell. In March 28 and April 30, 2010 statements, Mr. Mitchell explained that he
previously dated appellant but broke off the relationship in 2001, greatly upsetting her and
leading to the December 2001 incident in which she threw hot coffee in his face. Generally, the
Board has held that personal disputes between coworkers are not compensable if they arise
outside the scope of employment and are then imported into the workplace.23 In this case, the
record establishes that appellant had a prior relationship with her coworker, imported to the
workplace. Therefore, their interactions are not considered compensable factors of employment.
On appeal, appellant asserts that OWCP ignored evidence in her favor and wrongfully her
allegations of employer wrongdoing. As noted, appellant established two compensable factors of
employment due to employer error. The Board notes that OWCP carefully considered her
multiple statements and related documentation in its decisions.

18

Denis M. Dupor, 51 ECAB 482 (2000).

19

Cyndia R. Harrill, 55 ECAB 522 (2004).

20

Id.

21

Marlon Vera, supra note 9.

22

Kim Nguyen, 53 ECAB 127 (2001).

23

James P. Schilling, 54 ECAB 641 (2003).

8

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 has not established that she sustained an emotional
condition in the performance of duty as alleged. The July 27, 2012 decision is modified to find
that being moved from the east dock on January 17, 2010 constituted a compensable factor of
employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 27, 2012 is affirmed as modified.
Issued: April 5, 2013
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

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

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
2

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartford, CT, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1982
Issued: August 26, 2015

Oral Argument July 23, 2015

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

JURISDICTION
On September 15, 2014 appellant, though counsel, filed a timely appeal from an
August 22, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 31 percent impairment of his left lower
extremity and a 31 percent impairment of his right lower extremity, for which he received
schedule awards.
FACTUAL HISTORY
On May 3, 2012 appellant, then a 60-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed right and left knee permanent acceleration of
osteoarthritis as a result of his federal employment duties. On February 28, 2011 he underwent
1

5 U.S.C. § 8101 et seq.

bilateral knee replacement. By decision dated November 1, 2012, OWCP accepted the claim for
bilateral knee permanent aggravation of osteoarthritis.
On November 9, 2012 appellant filed a claim for a schedule award (Form CA-7).
In support of his schedule award claim, appellant submitted an April 26, 2012 medical
report from Dr. Byron V. Hartunian, a Board-certified orthopedic surgeon. In his report,
Dr. Hartunian noted that he evaluated appellant on April 6, 2012 and reviewed prior medical
reports pertaining to his bilateral knee condition. He provided a history of appellant’s
employment activities and findings on physical examination. Dr. Hartunian noted that right knee
flexion range of motion (ROM) was 94 degrees, left knee flexion ROM was 98 degrees, and
extension was 0 degrees for both knees. He diagnosed status post right and left knee
replacement for end-stage degenerative arthritis. Using the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),2
Dr. Hartunian opined that appellant had a total 37 percent impairment of the right lower
extremity and 37 percent impairment of the left lower extremity. According to Table 16-3 Knee
Regional Grid, section for total knee replacement, Dr. Hartunian identified the diagnosis as a
class 3 severe problem, which yielded a default value of 37 percent.3
Dr. Hartunian explained that class placement for lower extremity arthroplasty required, in
part, an analysis of hardware positioning through the use of postarthroplasty clinical studies. He
noted that appellant’s postarthroplasty clinical studies showed good hardware positioning. Class
placement for lower extremity arthroplasty also required an analysis of range of motion.
Dr. Hartunian explained that appellant’s postarthroplasty physical examination indicated a mild
motion deficit. He noted that, because clinical studies and physical examination were used to
determine the class, they were not used as modifiers. Dr. Hartunian further explained that the
A.M.A., Guides provide that “imaging studies” (as opposed to “clinical” studies) were used to
grade arthritis. However, in a postarthroplasty situation, the arthritic cartilage surfaces have been
replaced by prostheses and there is no longer any arthritis to grade. Dr. Hartunian stated that, for
this additional reason, the clinical studies grade modifier was inapplicable as appellant’s relevant
clinical studies were imaging studies and x-rays used to confirm the diagnosis. He stated that the
functional history adjustment as determined by gait derangement was a grade modifier 0 as there
was no antalgic limp. When determining the grade modifier based on the AAOS Lower Limb
Questionnaire completed by appellant, he assigned a grade modifier 2 for moderate problem.4
Dr. Hartunian noted that, because the difference between these two methods of determination is
2, the functional history adjustment was considered unreliable and excluded from the grading
process. Thus, the net adjustment formula did not apply in this situation, resulting in a default
class 3, grade C impairment of 37 percent for the right lower extremity and 37 percent for the left
lower extremity.
Dr. Hartunian concluded that appellant reached maximum medical
improvement (MMI) one year after his knee surgery in February 2012.

2

A.M.A., Guides (2009).

3

Id. at 511, Table 16-3.

4

Id. at 516.

2

OWCP properly routed Dr. Hartunian’s report and the case file to Dr. Morley Slutsky, an
OWCP district medical adviser (DMA), for review and a determination on whether appellant
sustained a permanent impairment of the lower extremities and the date of MMI.
In a November 27, 2012 report, Dr. Slutsky reported that appellant reached MMI on
April 26, 2012, the date of Dr. Hartunian’s examination. He calculated 31 percent impairment of
the right lower extremity and 31 percent impairment of the left lower extremity. Dr. Slutsky
reported that he agreed with Dr. Hartunian’s diagnosis for bilateral knee arthroplasty and also
placed appellant in class 3 for bilateral total knee arthroplasty with good alignment and stability
and mild motion loss. Applying appellant’s range of motion examination findings to Table
15-23, Dr. Slutsky noted that he had 10 percent knee motion impairment for the right and
10 percent impairment for the left.5 Dr. Slutsky agreed with Dr. Hartunian that the clinical
studies grade modifier was not applicable because diagnostic testing was used to place
appellant’s knee into the correct diagnostic class, and could not be used to assign a grade
modifier.6 He further agreed that the functional history was also not applicable in the grading
process. Dr. Slutsky explained that appellant’s AAOS score equaled a grade modifier 2 while
the functional history adjustment as determined by gait derangement equaled a grade modifier 0
for no antalgic limp.7 As there was a difference of two grade modifiers between these functional
history measures, the functional history was unreliable and would not be used in the rating
calculation. With respect to physical examination, Dr. Slutsky disagreed with Dr. Hartunian’s
assessment to exclude it from the net adjustment formula. Dr. Slutsky assigned a grade modifier
0, stating that appellant’s ROM and stability testing were used to place the knees into the correct
diagnostic class and no other objective deficits were documented.8 Using the net adjustment
formula, Dr. Slutsky found that the difference of 0 physical examination grade modifier from
3 for the class of diagnosis equaled a net adjustment of -3. As the lowest rating in the class -2,
the final grade A resulting in a 31 percent impairment of the left lower extremity and 31 percent
impairment of the right lower extremity.9
By letter dated January 10, 2014, OWCP informed appellant that Dr. Slutsky, the DMA,
provided a 31 percent impairment rating for each lower extremity as opposed to the earlier
37 percent impairment rating provided by Dr. Hartunian. It provided appellant with a copy of
Dr. Slutsky’s report and advised him to obtain a supplemental report from his treating physician
which would support further consideration of the additional six percent impairment difference
for each lower extremity.
In a December 31, 2012 supplemental report, Dr. Hartunian reviewed Dr. Slutsky’s report
and disagreed with his final 31 percent impairment rating. He noted that, after further review of
the A.M.A., Guides, he was amending his previous opinion regarding the applicability of the
grade modifier for functional history, namely, that it should be excluded because the AAOS
5

Id. at 549.

6

Id. at 519, Table 16-8.

7

Id. at 516, Table 16-6.

8

Id. at 517, Table 16-7.

9

Supra note 3.

3

finding was disparate by two or more from the gait derangement finding 0. Rather,
Dr. Hartunian stated that appellant’s functional history should be assigned a grade modifier 2 as
the A.M.A., Guides stipulate that the highest class modifier should be used as the value for that
adjustment in the net adjustment calculation.10
Dr. Hartunian also noted that Dr. Slutsky erroneously assigned a grade modifier 0 for
physical examination when no grade modifier should be assigned as it was used to define the
class. He referenced the section of the A.M.A., Guides which stated, “If a grade modifier, or
nonkey factor, was used for primary placement in the regional grid, it may not be used again in
the impairment calculations. For example, if a diagnostic class was determined using range of
motion as a factor, then range of motion is not considered again when determining the physical
examination adjustment factor.”11 Dr. Hartunian further disagreed with the date of MMI
assigned by Dr. Slutsky, stating that MMI was reached in February 2012, one year after
undergoing right and left knee total knee replacement. He stated that it was well accepted that
the MMI for joint replacement was generally about one year following joint replacement surgery,
noting that MMI applied to the function of a joint and focused on functional impairment.
Dr. Hartunian stated that all of his conclusions from his prior report remained the same:
placing appellant in class 3 and no grade modifiers assigned for physical examination or clinical
studies because they were used to confirm the diagnosis. Using the net adjustment formula, he
took the difference of 2 for the functional history grade modifier from 3 for the class diagnosis
resulting in a -1 adjustment. This resulted in a grade B impairment rating of 34 percent
permanent impairment of the right lower extremity and 34 percent impairment of the left lower
extremity.
OWCP provided Dr. Slutsky with Dr. Hartunian’s January 4, 2013 supplemental report
and requested an addendum report addressing the opposing opinions.
In a June 25, 2013 report, Dr. Slutsky reported that the findings made in his prior
November 27, 2012 report remained unchanged. He disagreed with Dr. Hartunian’s assignment
of grade modifier 2 for functional history and maintained that the functional history could not be
used in the net adjustment formula because it was unreliable. Dr. Slutsky noted that, while the
AAOS score equaled a grade modifier 2, the primary determinate for functional history grade
modifiers were objective factors found in Table 16-6.12 He stated that appellant did not have a
gait issue and there was no documentation of a positive Trendelenburg which resulted in a grade
modifier 0. The DMA referenced section 16.3a of the A.M.A., Guides and stated that because
there was a significant discrepancy of two grade modifiers between the observed functional
status and that of appellant’s history, the functional history was unreliable.13
Dr. Slutsky further maintained that physical examination should be assigned a grade
modifier 0. He stated that appellant’s knee ROM and stability testing were used to place
10

Supra note 7.

11

A.M.A., Guides 515-16.

12

Supra note 7.

13

A.M.A., Guides 516.

4

appellant into the correct diagnostic class and no other objective deficits were documented.
Based upon this, appellant’s physical examination grade modifier was 0. Dr. Slutsky noted that
this was consistent with an example provided in the A.M.A., Guides for a total knee replacement
rating.14 Thus, he argued that Dr. Hartunian’s assertion that the physical examination grade
modifier should be excluded from the net adjustment calculation was incorrect. Dr. Slutsky
concluded that MMI was April 26, 2012, the date of the rating examination performed by
Dr. Hartunian.
By decision dated January 31, 2014, OWCP granted appellant a schedule award claim for
31 percent permanent impairment of the right lower extremity and 31 percent impairment of the
left lower extremity. It found that the weight of the medical evidence rested with Dr. Slutsky
serving as the DMA. The date of MMI was noted as April 6, 2012, the date of Dr. Hartunian’s
examination.
The award covered a period of 178.56 weeks from April 6, 2012 to
September 2, 2015.
On February 12, 2014 appellant, through counsel, requested an oral hearing before the
Branch of Hearings and Review.
At the June 17, 2014 hearing, counsel argued that the weight of the medical evidence
rested with Dr. Hartunian as Dr. Slutsky improperly utilized the A.M.A., Guides.
By letter dated July 16, 2014, counsel argued that OWCP deemed the medical evidence
to be sufficiently complete to warrant a decision and as such, no further medical development
was necessary. He argued that Dr. Slutsky’s reports were not probative or of equal weight to the
reports of Dr. Hartunian, and also argued that no conflict was created and no referee physician
was warranted. Rather, the weight of the medical evidence rested with Dr. Hartunian and OWCP
should utilize his report in determining appellant’s schedule award.
By decision dated August 22, 2014, the Branch of Hearings and Review affirmed
OWCP’s January 31, 2014 schedule award. It noted that the weight of the medical opinion
rested with Dr. Slutsky serving as the DMA.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.15 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.16
14

Id. at 527.

15

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

16

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

5

The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability, and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).17
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).18
Evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.19
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.20
ANALYSIS
OWCP accepted appellant’s claim for right and left knee permanent aggravation of
osteoarthritis. On February 28, 2011 appellant underwent bilateral knee replacement. The issue
is whether he has more than a 31 percent permanent impairment of the right lower extremity and
31 percent permanent impairment of the left lower extremity, for which he received schedule
awards. The Board finds that appellant is entitled to an additional six percent impairment for the
right lower extremity and six percent impairment for the left lower extremity.21
Diagnosis-based impairment is the primary method for evaluating impairment to the
lower limb. Impairment is determined first by identifying the relevant diagnosis, then by
selecting the class of the impairment: no objective problem, mild problem, moderate problem,
severe problem, very severe problem approaching total function loss. This provides a default
impairment rating, which can be adjusted slightly up or down using grade modifiers or nonkey
factors, such as functional history, physical examination, and clinical studies.22
The impairment values for a total knee replacement are found in Table 16-3, page 511 of
the A.M.A., Guides or the Knee Regional Grid. A good result -- good position, stable,
functional -- has a default impairment value of 25 percent. A fair result -- fair position, mild
instability and/or mild motion deficit -- has a default impairment value of 37 percent. A poor
result has a default impairment value of 67 percent. A poor result with chronic infection has a
default impairment value of 75 percent.

17

Supra note 2 at 493-531.

18

A.M.A., Guides 521.

19

R.V., Docket No. 10-1827 (issued April 1, 2011).

20

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (February 2013).
21

See A.G., Docket No. 14-1143 (issued December 10, 2014).

22

Supra note 2 at 497.

6

In his November 27, 2012 and June 25, 2013 reports, Dr. Slutsky, serving as the DMA,
reported that appellant was entitled to 31 percent impairment of the right lower extremity and 31
percent impairment of the left lower extremity. Dr. Hartunian’s April 26, 2012 report found that
appellant had 37 percent impairment for each lower extremity, which he later amended to
34 percent impairment in his subsequent January 14, 2013 report.
The Board notes that the medical evidence and findings pertaining to appellant’s bilateral
knee arthroplasty were sufficient such that a conflict in medical evidence was not created.23
Dr. Slutsky and Dr. Hartunian agreed that appellant should be placed in class 3 for bilateral total
knee arthroplasty based on his clinical studies and physical examination findings. Both
physicians used appellant’s physical examination findings for knee range of motion and stability
testing to place him in the correct diagnostic class, with a class 3 grade C default impairment
value of 37 percent.
With respect to assigning values for grade modifiers, both Dr. Slutsky and Dr. Hartunian
agreed that no assignment value should be provided for clinical studies as diagnostic testing was
used to place appellant into the correct diagnostic class.24
Dr. Slutsky further agreed with Dr. Hartunian’s initial April 26, 2012 assessment that
functional history could not be assigned a grade modifier and was not applicable in the grading
process. Both physicians agreed that appellant’s AAOS score equaled a grade modifier 2 while
the functional history adjustment as determined by gait derangement equaled a grade modifier 0
for no antalgic limp.25 As there was a difference of two grade modifiers between these
functional history measures, Dr. Slutsky found that the functional history was unreliable and
would not be used in the rating calculation. In his supplemental January 14, 2013 report,
Dr. Hartunian amended his prior functional history assessment and argued that appellant should
be assigned a grade modifier 2 because the A.M.A., Guides stipulate that the highest class
modifier should be used as the value for that adjustment.
The Board notes that Dr. Slutsky properly determined that functional history could not be
assigned a grade modifier as it was not applicable in the grading process. The A.M.A., Guides
indicate that the evaluating physician may use outcome instruments and inventories, such as the
AAOS lower limb questionnaire, as part of the process of evaluating functional symptoms.26
The A.M.A., Guides further provide that, if there are multiple components to a grade modifier,
the evaluator should choose the most objective grade modifier with the highest value, associated
with the diagnosis being rated.27 If a grade modifier is found to be unreliable or inconsistent, it
should be disregarded and eliminated from the calculation.28 In this instance, both physicians
23

See J.J., Docket No. 14-1143 (issued December 10, 2014); Mary L. Henninger, 52 ECAB 408 (2001).

24

Supra note 6.

25

Supra note 7.

26

Supra note 4, section 16.3a (emphasis added); see section 16.9, Appendix 16-A: Lower Limb Questionnaire,
A.M.A., Guides 555. See also G.C., Docket No. 13-1493 (issued September 18, 2014).
27

A.M.A., Guides 521, section 16.3d (emphasis added).

28

Id.

7

agreed with the grade modifiers assigned based on appellant’s AAOS score and gait
derangement. As the functional history differed by two or more grades from that defined by
physical examination or clinical studies, Dr. Slutsky properly determined that functional history
was unreliable and should be excluded from the grading process.29 Assigning the grade modifier
with the highest value would not be appropriate in this case.
With respect to physical examination, Dr. Slutsky and Dr. Hartunian disagree regarding
whether a grade modifier should be assigned. Dr. Slutsky stated that appellant’s knee ROM and
stability testing were used to place the knees into the correct diagnostic class and no other
objective deficits were documented. Based upon this, he assigned a grade modifier 0 for
physical examination.
Dr. Hartunian disagreed with Dr. Slutsky stating that physical
examination had to be excluded from the grading process because it was used to place appellant
in the correct class.
The Board notes that Dr. Slutsky incorrectly assigned a grade modifier for physical
examination, which must be excluded from the net adjustment calculation. Both physicians
agree that range of motion and stability testing were used to place appellant in the correct
diagnostic class. The A.M.A., Guides provide that if a grade modifier or nonkey factor, is used
for primary placement in the regional grid, it may not be used again in the impairment
calculations. For example, if a diagnostic class was determined using range of motion as a
factor, then range of motion is not considered again when determining the physical examination
adjustment factor.30 As Dr. Slutsky stated that, range of motion and stability testing were used to
place the knees into the correct diagnostic class, he improperly assigned a grade modifier 0 for
physical examination as he previously explained that no other objective deficits were
documented.31 Thus, physical examination cannot be used in calculating the net adjustment
formula.32
As the medical evidence establishes that functional history, clinical studies, and physical
examination should be disregarded and eliminated from the net adjustment calculation, the
default value of C for class 3 total knee replacement results in 37 percent impairment as the final
29

If the functional history is determined to be unreliable or inconsistent with other documentation, it is excluded
from the grading process. Supra note 26.
30

Id. at 515-16.

31

The A.M.A., Guides provide that a physical examination grade modifier assignment of 0 pertains to those
patients who have had findings in the past but are now healthy (with no expectation that they will have recurrent
findings). Id. at 15.
32

The Board notes that the example Dr. Slutsky cites on page 527 of the A.M.A., Guides for total knee
replacement does not establish that a grade modifier should be assigned for physical examination. In the example,
the left knee was assigned class 2 while the right knee was assigned class 3. Physical examination was not used to
assign the class for the left knee so physical examination was assigned a grade modifier 0 for the net adjustment
calculation. With respect to the right knee, the example noted that range of motion was used to assign the class and
thus could not be considered for grade assignment. The example provided a grade modifier 1 for physical
examination, however, based on atrophy or weakness, which was not used in assigning the class. It noted that range
of motion would be a grade modifier 2, but had to be excluded. Dr. Slutsky’s reports explained that range of motion
and stability testing were used to place the knees into the correct diagnostic class and no other objective deficits
were documented. He incorrectly relied on this example as support for assigning a physical examination grade
modifier 0.

8

rating value. In this case, appellant was previously awarded 31 percent impairment of the right
lower extremity and 31 percent of the left lower extremity. The Board finds that he is entitled to
an additional six percent impairment of the right lower extremity and six percent impairment of
the left lower extremity.33 The Board further finds that OWCP properly determined that the date
of MMI was April 6, 2012, the date of Dr. Hartunian’s examination.34
CONCLUSION
The Board finds that appellant has established entitlement to 37 percent impairment for
the right lower extremity and 37 percent impairment for the left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the August 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: August 26, 2015
Washington, DC

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

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

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

33

Supra note 21.

34

In assessing eligibility for a schedule award, the medical evidence must show that the impairment has reached a
permanent and fixed state, which is generally referred to as MMI. See supra note 20 at Chapter 2.808.5b(1)
(February 2013). Assuming MMI has been attained, the date of MMI is usually considered to be the date of the
evaluation by the attending physician that is accepted as definitive by OWCP. Schedule awards begin on the date of
MMI, unless circumstances show that a later date should be used. A retroactive determination of the date of MMI is
not per se erroneous. When the medical evidence establishes that the employee did in fact reach maximum
improvement by such date, the determination is proper. Supra note 20 at Chapter 2.808.7b.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF THE ARMY, 7TH SIGNAL
COMMAND, Fort Gordon, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1809
Issued: May 23, 2019

Case Submitted on the Record

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

JURISDICTION
On September 27, 2018 appellant filed a timely appeal from an August 3, 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 October 31, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of her
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 20, 2017 appellant, then a 45-year-old budget analyst, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2017 she was exposed in her office to a natural gas
leak while in the performance of duty. She alleged that the exposure caused shortness of breath,
dizziness, weakness, nausea, and a headache. On the Form CA-1, S.H., appellant’s coworker,
provided an April 20, 2017 witness statement confirming that appellant had become dizzy, had
difficulty breathing, and complained of weakness, nausea, and a headache. She further noted that
the fire department confirmed that there was a gas leak. Appellant stopped work on April 14, 2017.
In support of her claim, appellant submitted medical reports dated April 15, 2017 from a
civilian hospital emergency department. Dr. Subhose X. Bathina, a treating family practitioner,
noted that there had been a natural gas leak outside her window or near her desk. Appellant had
fallen asleep at her desk and had become short of breath. Coworkers then discovered the gas leak.
Appellant had been transported to an employing establishment hospital, then transferred to a
civilian hospital for observation. Her condition had improved in the emergency room with oxygen
delivered by nasal cannula. On examination, Dr. Bathina observed mildly elevated blood pressure.
He diagnosed “[h]eadache and dizziness with natural gas exposure, presently improving,” and
“[u]ncontrolled hypertension, which is new.”3 Dr. Bathina admitted appellant for observation.
Appellant was discharged in stable condition on April 15, 2017 by Dr. Omar Ahmad, Boardcertified in internal medicine, who noted a normal respiratory and neurological examination.
In a development letter dated June 1, 2017, OWCP informed appellant that the evidence
submitted was insufficient to establish the claim. It advised her of the type of medical and factual
evidence needed, including corroboration of the gas leak, and a narrative report from her physician
explaining how and why those events had caused her medical conditions. OWCP afforded
appellant 30 days to submit the necessary evidence. No additional evidence was received.
By decision dated July 14, 2017, OWCP accepted that the April 14, 2017 gas leak had
occurred at the time, place, and in the manner alleged. It denied the claim, however, as the medical
evidence of record did not contain a diagnosis of a medical condition caused by the accepted
employment incident. OWCP concluded, therefore, that appellant had not met the requirements
to establish an injury as defined by FECA.
In a letter dated August 5, 2017, appellant requested a review of the written record by an
OWCP hearing representative. She submitted her August 5, 2017 statement asserting that on
April 14, 2017 she had telephoned 911 to report the gas leak and received instructions to evacuate

3
Chest x-rays performed on April 14, 2017 demonstrated left ventricular prominence and minimal increased
interstitial markings without infiltrate. Appellant also submitted laboratory test results.

2

the building. An emergency medical technician (EMT) observed appellant in an ambulance then
transported her to the employing establishment’s hospital.
Appellant provided witness statements from two coworkers and a safety and occupational
health official, who corroborated the April 14, 2017 gas leak. Following the building evacuation,
appellant had been stabilized at the employing establishment’s hospital then treated at a civilian
hospital. L.D. confirmed that appellant had been in the performance of duty at the time of the gas
leak.
Appellant submitted a report dated April 14, 2017 by Dr. Christopher K. Jensen, a treating
physician Board-certified in emergency medicine, affiliated with the employing establishment’s
hospital. Dr. Jensen noted her exposure to a gas leak at work earlier that day. While on oxygen
at the hospital, appellant had normal oxygen saturation and no difficulty breathing. Dr. Jensen
transferred her to a civilian hospital for observation of symptoms of central nervous symptom
toxicity.
Appellant also provided an EMT observation and transport report dated April 14, 2017 and
a hospital nursing log dated April 14 to 15, 2017.
By decision dated October 31, 2017, an OWCP hearing representative affirmed the denial
of appellant’s claim as fact of injury had not been established. He found that the medical evidence
of record did not contain a diagnosis of a medical condition causally related to the accepted
April 14, 2017 employment incident.
On July 31, 2018 appellant requested reconsideration. She submitted additional field notes
dated April 14, 2017, signed by three EMTs, and a March 6, 2018 ambulance bill. Appellant also
submitted copies of emergency medical service and hospital reports previously of record.
By decision dated May 4, 2018, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its October 31, 2017
merit decision. It found that the evidence submitted in support of her request was repetitive or
duplicative of evidence previously of record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.5 If it chooses to grant reconsideration, it reopens and reviews
4

20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a).

3

the case on its merits.6 If the request is timely, but fails to meet at least one of the three
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
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).
In her timely application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor she did advance a new and relevant
legal argument not previously considered. Accordingly, she is not entitled to a review of the merits
of her claim based on the first and second above-noted requirements under section 10.606(b)(3).
With her July 31, 2018 reconsideration request, appellant submitted EMT field notes and
an ambulance bill. This evidence, while new, is not relevant to the underlying medical issue of
fact of injury.8 Evidence which does not address the particular issue under consideration does not
constitute a basis for reopening a case.9
Appellant also submitted copies of medical evidence and emergency medical technician
reports previously of record. Evidence or argument that repeats or duplicates evidence already in
the case record has no evidentiary value and does not constitute a basis for reopening a case.10
Moreover, the submission of evidence which does not address the particular issue involved in the
case does not constitute a basis for reopening the claim.11 Accordingly, appellant is not entitled to
a review of the merits of her claim based on the third above-noted requirement under section
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.12

6

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

7

Id. at § 10.608(b); H.H., supra note 4; E.R., Docket No. 09-1655 (issued March 18, 2010).

8
B.E., Docket No. 18-0849 (issued January 7, 2019); W.C., Docket No. 15-1878 (issued January 6, 2016); see
James A. Long, 40 ECAB 538 (1989); Susan M. Biles, 40 ECAB 420 (1988) (where the Board held that the statement
of a layperson is not competent evidence on relationship medical issue).
9

See F.B., Docket No. 18-1039 (issued December 6, 2018).

10

R.G., Docket No. 18-1045 (issued February 1, 2019); A.A., Docket No. 18-0031 (issued April 5, 2018); James W.
Scott, 55 ECAB 606 (2004).
11

R.G., id.; D. Wayne Avila, 57 ECAB 642 (2006).

12

R.G., id.; M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); (when an application for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the application for reconsideration without reopening the case for a review on the merits).

4

On appeal, appellant contends that she is entitled to reimbursement for medical transport
and hospital costs associated with the accepted April 14, 2017 employment incident. The Board
notes that the employing establishment confirmed and OWCP accepted the April 14, 2017
occupational exposure. However, there is no evidence of record that the employing establishment
completed an authorization for examination and/or treatment (Form CA-16) at the time of the
accepted April 14, 2017 employment incident.13
CONCLUSION
The Board further 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 August 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2019
Washington, DC

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

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

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

13

Where an employing establishment properly executes a Form CA-16 authorizing medical treatment related to a
claim for a work injury, the form creates a contractual obligation, which does not involve the employee directly, to
pay for the cost of the examination/treatment regardless of the action taken on the claim. C.W., Docket No. 17-1293
(issued February 12, 2018). See Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is
authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See
20 C.F.R. § 10.300(c).

5