United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0212
Issued: August 4, 2017

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 October 3, 2016 appellant, through his representative, filed a timely appeal from an
August 5, 2016 nonmerit decision of the Office of Workers’ Compensation Programs. As more
than 180 days elapsed from the last merit decision of OWCP dated March 13, 2015, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s representative contends that the factual and medical evidence
submitted in support of appellant’s request for reconsideration constitutes new evidence and
argument not previously considered by OWCP.
FACTUAL HISTORY
On January 13, 2011 appellant, then a 25-year-old safety and occupational health
specialist, filed an occupational disease claim (Form CA-2) alleging that on January 9, 2008 he
first became aware of his bilateral carpal tunnel syndrome and severe eye impairment. He
further alleged that on April 1, 2008 he first realized that his conditions were caused or
aggravated by using a keyboard and mouse while simultaneously holding his wrist in awkward
positions and gripping tightly for long periods of time at work.
Appellant submitted medical and diagnostic reports dated January 17 to May 29, 2008.
In a May 29, 2008 report, Dr. Luke I. Kao, a Board-certified neurologist, reviewed the results of
a nerve conduction velocity and electromyogram (NCV/EMG) studies and assessed right C5-6
radiculopathy and bilateral carpal tunnel syndrome, mild on the right and minimal on the left.
By letter dated February 7, 2011, OWCP advised appellant of the deficiencies in his
claim and requested that he submit additional factual and medical evidence. It also requested
that the employing establishment respond to appellant’s allegations.
In a February 12, 2011 letter, appellant requested an extension to respond to the
February 7, 2011 development letter. He corrected his occupational disease claim form to reflect
that he not only sustained bilateral carpal tunnel syndrome, but also hand repetitive strain
injuries.
OWCP received an unsigned return-visit patient sheet from Maryland Center for Eye
Care dated February 18, 2005 which noted findings on examination and addressed appellant’s
eye condition.
In a March 14, 2011 report, Dr. Constantine A. Misoul, a Board-certified orthopedic
surgeon, noted that appellant worked at the employing establishment from December 2005 until
January 2008 as a safety specialist. He reported his bilateral hand and cervical and lumbar spine
symptoms, described his work duties, provided findings on physical examination, and noted an
impression of bilateral carpal tunnel syndrome.
In a May 3, 2011 decision, OWCP denied appellant’s occupational disease claim, finding
that the evidence of record did not establish fact of injury as the evidence failed to show that the
claimed events occurred as alleged. It noted that he did not submit any factual evidence in
response to the February 7, 2011 development letter.

2

On May 23, 2011 appellant, through his representative, requested reconsideration. In a
declaration dated May 16, 2011 and an undated affidavit, appellant attributed his carpal tunnel
syndrome to his work duties. In the May 16, 2011 declaration he described the job duties which
included repetitive hand, wrist, and finger motions; using automated office equipment
approximately six to seven hours during his nine-hour workday; and archiving and sorting file
documents, binders, references, and books, three to four hours a day, five days a week.
Appellant attributed his increasingly worsening vision to his computer use. In the declaration he
noted that he first noticed his claimed hand injury on January 4, 2008 while reaching overhead to
get documents at work. Appellant’s right hand began to tingle around January 9, 2008. He also
had continuous numbness in his right hand and experienced pain, numbness, and tingling in his
wrist and finger. Appellant performed full-duty work until January 14, 2008 when he stopped
work due to pain from his claimed occupational disease. In the undated affidavit, he contended
that his hand injury and pain were exacerbated by working at a fast pace and in a fixed posture
for long durations without being afforded sufficient recovery time. Appellant attributed his eye
condition to poor lighting in his work area.
Appellant submitted a copy of his job description as a safety and occupational health
specialist. It included reviewing and analyzing available materials on the employing
establishment’s program, developing an evaluation plan for the employing establishment,
coordinating the selection of sites for and to conduct field reviews by regional offices,
participating in opening conferences with employing establishment safety and health officials
and managers to discuss an evaluation plan, and conducting or leading on-site headquarters
evaluation of the employing establishment. It also included analyzing field evaluation reports
and findings of headquarters reviews to develop recommendations for improving program
effectiveness, briefing appropriate supervisors and employing establishment officials on findings
and recommendations preparatory to a closing conference, and participating in a closing
conference and preparing a final report and executive summary for submission by the Secretary
of Labor to an employing establishment head being evaluated and for submission with the
employing establishment’s comments to the Office of Management and Budget.
Appellant also submitted a July 23, 2008 report from Dr. Michael A. Franchetti, a Boardcertified orthopedic surgeon, a June 7, 2011 NCV/EMG study report from Dr. Kao, and a work
capacity evaluation (Form OWCP-5c) with an illegible date from Dr. Hampton J. Jackson, Jr., a
Board-certified orthopedic surgeon. The physicians diagnosed occupationally-related lumbar,
cervical, bilateral hand, and right shoulder conditions and noted appellant’s disability from work.
In a June 24, 2011 memorandum, the employing establishment disagreed with appellant’s
description of his work duties and advised that he was involved in a broad range of activities,
allowed one hour a day for lunch, routinely took several breaks throughout the day, did not work
six to seven hours a day at his computer, and was not forced to perform repetitive hand and
finger motions or work at a fast pace and in a fixed position at his workstation. It noted that he
was not at work on January 4, 2008 as he was on scheduled annual leave and it did not receive
notice of his injury and limitations prior to the filing of his claim.
In a July 20, 2011 statement, appellant disagreed with the employing establishment’s
June 24, 2011 memorandum. He asserted that he performed work duties and sustained injuries,
as he had alleged.

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By decision dated July 28, 2011, OWCP denied modification of the May 3, 2011
decision. It found that appellant did not submit any evidence to establish the claimed work
factors and that the employing establishment disputed his account.
On August 29, 2011 OWCP received a July 19, 2011 report from Dr. Jackson which
noted findings on examination and found that appellant had bilateral carpal tunnel syndrome
causally related to the injury which manifested on January 9, 2008.
In a letter dated July 20, 2012, appellant, through his representative, requested
reconsideration and submitted an August 9, 2011 report from Dr. Eric G. Dawson, an orthopedic
surgeon. Dr. Dawson noted appellant’s work duties as a safety specialist at the employing
establishment, conducted an examination, and reviewed diagnostic test results. He opined that
appellant’s bilateral carpal tunnel syndrome, right worse than left side, was due to his repetitive
work motions. Dr. Dawson advised that he was not able to return to his work duties.
In an October 17, 2012 decision, OWCP denied modification of the July 28, 2011
decision.
On June 14, 2013 appellant requested reconsideration and contended that a declaration of
W.R., a former coworker, should cure the deficiencies in his claim. In a partial copy of his
May 11, 2013 affidavit, W.R. noted that he and appellant had similar work duties as safety and
health specialists at the employing establishment. Based on his observation, appellant’s duties
were technical in nature and required him to spend many hours a day at his workstation. W.R.
indicated that while a position description provided that appellant was required to attend
meetings and professional development conferences, these duties were not indicative of a routine
day. He maintained that his computer station duties subjected him to more than a usual risk for
sustaining neck, shoulder, back, and waist injuries than a nonvisually challenged employee.
In an August 12, 2013 decision, OWCP denied further merit review of appellant’s claim.
It found that the evidence submitted was irrelevant or immaterial.3
On September 17, 2013 appellant requested reconsideration. In an undated affidavit,
W.R. noted his own work duties as a safety and health specialist. He also noted that on several
occasions he witnessed that appellant’s physical difficulties impacted his work capability. W.R.
related appellant’s account of the overwhelming effect a project he worked on for two to three
months archiving and filing old documents had on his health.
In a December 16, 2013 decision, OWCP denied modification of the August 12, 2013
decision. It found that W.R.’s affidavit was insufficient to establish appellant’s claimed
employment factors.
On December 15, 2014 appellant’s representative requested reconsideration and
contended that a report from Dr. Eric L. Weisbrot, a specialist in family medicine, established a
3

In the August 12, 2013 decision, it appears that OWCP did not review W.R.’s May 11, 2013 affidavit. It listed
the evidence submitted in support of appellant’s June 8, 2013 request for reconsideration, but did not list or address
W.R.’s May 11, 2013 affidavit.

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causal relationship between appellant’s bilateral carpal tunnel syndrome and work duties. In a
December 12, 2014 report, Dr. Weisbrot noted appellant’s safety and occupational health
specialist work duties, provided findings on physical examination, and opined that appellant had
carpal tunnel syndrome causally related to his work duties.
In a March 13, 2015 decision, OWCP denied modification of the December 16, 2013
decision. It found that appellant failed to submit a detailed and accurate description of the work
duties he believed caused his bilateral carpal tunnel syndrome.
On March 10, 2016 appellant’s current representative requested reconsideration. He
contended that another affidavit from W.R. established appellant’s work duties. Appellant’s
representative further contended that a report from Dr. Michael E. Batipps, a Board-certified
neurologist, established causal relationship between appellant’s medical conditions and his job
duties.
In a March 9, 2016 affidavit, W.R. provided essentially the same description of
appellant’s work duties and his physical difficulties with performing these duties as set forth in
his May 11, 2013 and undated affidavits.
In a June 11, 2015 report, Dr. Batipps noted appellant’s complaints of chronic daily
cervical, bilateral shoulder, hand, and back symptoms. He related appellant’s account of
working as a safety specialist commencing in 2005 through January 4, 2008 and the development
of his symptoms while working in this position. In 2005, appellant was required to constantly
lift and carry large records, books, and supplies. In 2007, he was required to perform repetitive
motions with both upper extremities during filing activities. Appellant also performed extensive
computer keyboard activities. On January 4, 2008 he was required to reach overhead with his
right hand to obtain a heavy reference book. Dr. Batipps noted a history of appellant’s medical
treatment and reported findings on neurological examination. He provided an impression of a
January 4, 2008 work injury, cervical disc herniations with right cervical radiculopathy, right
shoulder rotator cuff partial tear with chronic right shoulder pain, and chronic lumbosacral
radiculopathy. Dr. Batipps advised that the diagnosed conditions were due to the January 4,
2008 work injury. He also noted an impression of repetitive stress injuries, both upper
extremities, due to work-related activities with resultant bilateral carpal tunnel syndrome.
Dr. Batipps opined that appellant was totally disabled due to the diagnosed conditions based on
objective test results and his examination findings.
By decision dated August 5, 2016, OWCP denied reconsideration of the merits of
appellant’s claim. It found that the evidence submitted was repetitious, irrelevant, or immaterial.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
4

Supra note 2. Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

5

considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received within one year of the
date of that decision.6 Section 10.608(b) of the implementing regulations state that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.7
ANALYSIS
On March 10, 2016 appellant, through his representative, requested reconsideration of the
March 13, 2015 decision that denied modification of the denial of his occupational disease claim.
The underlying issue on reconsideration is factual in nature, whether appellant established the
claimed factors of his federal employment that were alleged to have caused his claimed
conditions.
In his March 10, 2016 request for reconsideration, appellant’s representative did not show
that OWCP erroneously applied or interpreted a specific point of law, or advance a new and
relevant legal argument not previously considered. Thus, appellant is not entitled to a review of
the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered. W.R.’s March 9, 2016 affidavit, while new, essentially reiterated his
previous description of appellant’s work duties and physical difficulties with performing his
work duties as set forth in earlier affidavits. Evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for
reopening a case.8
Dr. Batipps’ new report dated June 11, 2015 related appellant’s account of constantly
lifting and carrying large records, books, and supplies, repetitive use of his upper extremities
when filing and performing computer keyboard activities, and reaching overhead with his right
hand to obtain a heavy reference book. However, Dr. Batipps is not qualified as a finder of fact
in this case as there is no evidence that he had direct knowledge of appellant’s employment
duties at the time in question. Furthermore, Dr. Batipps’ medical opinion with respect to the
cause of appellant’s condition is irrelevant to the underlying factual issue.9 Evidence which does

5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

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

8

D.K., 59 ECAB 141 (2007).

9

See Bonnie A. Contreras, 57 ECAB 364 (2006) (where a claimant did not establish an employment incident
alleged to have caused an injury, it was not necessary to consider any medical evidence).

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not address the particular issue under consideration does not constitute a basis for reopening a
case.10
The Board accordingly finds that appellant did not meet 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.
On appeal, appellant’s representative contends that the factual and medical evidence
submitted in support of appellant’s request for reconsideration constitutes new evidence and
argument not previously considered by OWCP. As found, however, appellant did not submit
relevant and pertinent new evidence with his reconsideration request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits review of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2017
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

10

See K.T., Docket No. 15-1916 (issued February 1, 2016).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 06-2160
Issued: February 12, 2007

Case Submitted on the Record

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

JURISDICTION
On September 26, 2006 appellant filed a timely appeal from the August 23, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the schedule award decision.
ISSUE
The issue is whether appellant has a permanent impairment to a scheduled member, organ
or function of the body as a result of his accepted employment injury.
FACTUAL HISTORY
On May 1, 2002 appellant, then a 55-year-old pipe fitter, sustained an injury in the
performance of duty: “While working around machinery I pulled my body into a cramped area.
I felt a pain in my groin. I now have a hernia and will need surgery.” The Office accepted his
claim for right inguinal hernia. Appellant underwent surgical repair on July 17, 2002.

Appellant filed a claim for a schedule award. The Office informed him that he was
responsible for furnishing a physician’s report establishing that he had a permanent impairment
to his upper or lower extremities as a result of his unilateral inguinal hernia.
On April 13, 2006 Dr. Michael S. McManus, a specialist in occupational medicine,
reported that appellant had reached maximum medical improvement. He stated:
“Patient states present symptoms stable and unchanged for the past approximately
two and a half years. Patient states continues to experience episodes sharp or
stabbing pain with chronic sense of tightness right inguinal region. Pain
aggravated by excess ambulation, lifting or carrying heavy objects and/or
intercourse. Patient denies any recurrent local mass. Patient denies any wound
breakdown, drainage, local swelling, or associated symptoms.”
***
“Patient states secondary to residual right inguinal symptoms, nonwork activities
he has had to limit or discontinue include taking walks, jogging or running, and
yard work or gardening.”
Dr. McManus diagnosed status post right direct inguinal herniorrhaphy with mesh
placement. He determined that appellant’s impairment was best described as a mild Class I
impairment, estimated to equal two percent of the whole person from Table 6-9, page 136, of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001).
On August 23, 2006 the Office denied appellant’s claim for a schedule award. The
Office explained that Dr. McManus did not report impairment to any scheduled member, organ
or function of the body.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
The Act does not authorize schedule awards for permanent impairment of “the whole
person.”3 The Act authorizes schedule awards for only those members, organs and functions of
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404 (1999). Effective February 1, 2001 the Office began using the fifth edition of the A.M.A.,
Guides as per FECA Bulletin No. 01-05 (issued January 29, 2001). See Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Exhibit 4 (June 2003).
3

Ernest P. Govednick, 27 ECAB 77 (1975).

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the body that are specified in the Act and in the implementing regulations.4 Amendments to the
Act modified the schedule award provisions to provide for an award for permanent impairment
to a member of the body covered by the schedule regardless of whether the cause of the
impairment originated in a scheduled or nonscheduled member.5
The burden is upon the employee to establish by evidence that he is entitled to
compensation.6
ANALYSIS
Dr. McManus’ impairment rating of two percent of the whole person provides no basis
for the payment of a schedule award because the Act does not recognize impairments of “the
whole person.” The Act recognizes impairments of the arm, leg, hand, foot, thumb, fingers and
toes. The Act authorizes compensation for loss of hearing, loss of vision and the loss of an eye.
Section 8107(c)(22) of the Act authorizes awards for the permanent loss or loss of use of “any
other important external or internal organ of the body as determined by the Secretary” of Labor.7
The Secretary made such a determination and added the following organs to the compensation
schedule: breast, kidney, larynx, lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/
vagina.8
Because Dr. McManus did not report an impairment of any of these specified members,
organs or functions of the body, his report does not support appellant’s claim for a schedule
award. He noted that appellant had episodes of a sharp or stabbing pain with a chronic sense of
tightness in the “right inguinal region,” but he did not report a peripheral nerve injury or any pain
radiating into the leg, penis or testicle from the site of appellant’s direct inguinal hernia. As a
result, his findings do not support impairment to the leg or penis or testicle originating from the
site of the hernia.
It may be that activities of daily living aggravate appellant’s pain at the operative site,
and that this in turn limits his activities of daily living. But with no medical opinion explaining
how residuals of the accepted employment injury have caused impairment to a scheduled
member, organ and function of the body according to the criteria of the A.M.A., Guides,
appellant has not met his burden of proof to show that he is entitled to a schedule award.

4

Thomas E. Montgomery, 28 ECAB 294 (1977).

5

As the schedule award provisions of the Act include the extremities, a claimant may be entitled to a schedule
award for permanent impairment to an extremity even though the cause of the impairment originated, for example,
in the spine. Rozella L. Skinner, 37 ECAB 398 (1986).
6

Harold Hendrix, 1 ECAB 54 (1947).

7

5 U.S.C. § 8107(c)(22).

8

20 C.F.R. § 10.404(a) (1999).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

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

Docket No. 14-938
Issued: August 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief JJudge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2014 appellant filed a timely appeal from a September 19, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an
employment-related injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on August 10, 2013, as alleged.
On appeal, appellant contends that at the time of the injury she could not open her eye
because of the severe pain and was advised to go to the doctor. She stated that there was no way
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 19, 2013 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

of knowing at the time without doctor’s supervision that there was no permanent damage to her
eye.
FACTUAL HISTORY
On August 10, 2013 appellant, then a 40-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a right eye injury that day as a result of being
grazed by flat mail.
In an August 16, 2013 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted an August 20, 2013 statement that she was injured on August 10,
2013 on Maysville Road while she was putting a flat into a mailbox. As she was reaching across
the flat, it grazed her eye. Appellant stated that her eye started watering and became blurry and
stinging. She pulled her car into the next driveway and called the employing establishment.
Appellant denied any similar disability or symptoms before the injury.
Appellant submitted hospital records from Saint Joseph Mount Sterling dated
August 10, 2013. She was seen and treated for a “minor right eye injury [with] no evidence of
abrasion.” The records listed a history of being “poked with a piece of mail while at work.”
By decision dated September 19, 2013, OWCP accepted that the August 10, 2013
incident occurred. It denied the claim finding that appellant failed to submit sufficient medical
evidence to establish a firm medical diagnosis causally related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
3

5 U.S.C. § 8101 et seq.

4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).

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sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP accepted that the employment incident of August 10, 2013 occurred at the time,
place and in the manner alleged. The issue is whether appellant sustained an injury as a result.
The Board finds that appellant did not meet her burden of proof to establish that she sustained an
eye injury due to the August 10, 2013 employment incident.
Appellant submitted August 10, 2013 hospital records from Saint Joseph Mount Sterling.
She was seen and treated for a “minor right eye injury [with] no evidence of abrasion” as a result
of being “poked with a piece of mail while at work.” The Board finds that the diagnosis of
“minor right eye injury [with] no evidence of abrasion” is a description of a symptom rather than
a firm diagnosis of a medical condition.8 Moreover, there is no opinion from a physician
addressing causal relationship of an eye condition to the accepted incident. The August 10, 2013
hospital records from Saint Joseph Mount Sterling are insufficient to establish a firm medical
diagnosis or causal relation. Appellant has failed to establish fact of injury.
On appeal, appellant contends that at the time of the injury she could not open her eye
because of severe pain and was advised by her supervisor and coworkers to seek treatment. As
noted, the Board finds that appellant has not submitted sufficient medical evidence to support
that she sustained an eye injury causally related to the August 10, 2013 employment incident.
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 met her burden of proof to establish that she
sustained an injury in the performance of duty on August 10, 2013, as alleged.
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

8

See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the September 19, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lewiston, MI, Employer
__________________________________________

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

Docket No. 11-981
Issued: January 11, 2012

Case Submitted on the Record

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

JURISDICTION
On March 11, 2011 appellant filed a timely appeal from a February 23, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained permanent impairment warranting a schedule
award.
FACTUAL HISTORY
On December 11, 2007 appellant, then a 44-year-old part-time flexible clerk, filed an
occupational disease claim for a back condition due to performing repetitive lifting as a clerk.

1

5 U.S.C. §§ 8101-8193.

OWCP initially denied her claim but, on July 28, 2008 accepted an L5-S1 herniated disc.
Appellant stopped work on September 15, 2008.
On November 16, 2007 appellant underwent a magnetic resonance imaging (MRI) scan
of the lumbar spine which revealed small mild right posterior paracentral L5-S1 disc herniation
abutting the S1 nerve root. She came under the care of Dr. Karyn L. Woelflein, a Board-certified
physiatrist, from January 2, 2008 to January 29, 2009, who diagnosed chronic low back pain,
degenerative disc disease and disc herniation at L5-S1.
On May 20, 2009 appellant filed a claim for a schedule award. She submitted a May 29,
2009 report from Dr. John Pier, a Board-certified neurologist, who opined that appellant had five
percent impairment of the whole person based on the fourth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (fourth edition 1993) (A.M.A.,
Guides).2 Dr. Pier did not believe the impairment rating would differ under the fifth edition of
the A.M.A., Guides. He noted that appellant was at maximum medical improvement and would
fall into a lumbosacral category 2 as her examination did not reveal significant sensory loss,
motor loss or reflex changes. Appellant was also treated by Dr. Lue J. Dionne, a chiropractor.
On June 19, 2009 Dr. Dionne provided an impairment rating pursuant to the fifth edition of the
A.M.A., Guides.3
On October 13, 2009 OWCP requested that Dr. Pier submit a detailed report pursuant to
the sixth edition of the A.M.A., Guides.4 It advised Dr. Pier that schedule awards are not
payable for impairment to the back; however, such awards are paid for impairment to the lower
extremities based on significant pain, sensory deficit or motor impairment of the lower
extremities that result from the job-related low back injury.
Appellant submitted a March 4, 2009 lumbar MRI scan which revealed a broad-based
right paracentral disc bulge at L5-S1 level with contact with the S1 nerve root, mild disc
desiccation and posterior disc bulging at L3-4. In an October 26, 2009 report, Dr. Pier diagnosed
minimal right L5-S1 disc protrusion and radiculitis into the right lower extremity as confirmed
by MRI scan. He noted findings of low back pain with right gluteal and leg pain and opined that
appellant was at maximum medical improvement. Dr. Pier noted that he was not overly familiar
with the sixth edition of the A.M.A., Guides but believed that appellant would have five percent
impairment of the whole person pursuant to this edition.
In a March 12, 2010 letter, OWCP requested that appellant submit an assessment of
permanent impairment under the sixth edition of the A.M.A., Guides as Dr. Pier had not properly
used the sixth edition to rate her impairment.
Appellant submitted reports from Dr. Woelflein dated March 23 and April 2, 2010, who
diagnosed chronic low back pain with radiating pain into the right lower extremity with
2

A.M.A., Guides (4th ed. 1993).

3

A.M.A., Guides (5th ed. 2001).

4

A.M.A., Guides (6th ed. 2008).

2

degenerative disc disease and a small herniated disc by MRI scan at L5-S1 abutting the S1 nerve
root. On April 2, 2010 Dr. Woelflein advised that appellant had permanent impairment related to
her lumbar spine; however, OWCP did not allow impairment based on a spine injury. She noted
that appellant did not have a limb injury which would fall under any of the categories in the
A.M.A., Guides. Dr. Woelflein indicated that she was not familiar enough with the sixth edition
of the A.M.A., Guides to determine an impairment rating.
OWCP referred appellant to Dr. Lawrence Leonard, a Board-certified orthopedist, for a
second opinion evaluation. In an August 10, 2010 report, Dr. Leonard reviewed appellant’s
history and described his findings on examination. Appellant had normal heel and toe gait while
reflexes were active and equal. Muscle examination showed no significant muscle weakness in
either leg and Wartenberg pinwheel and light touch tests revealed no significant hypesthesia.
Dr. Leonard reported negative sitting straight leg raises and recumbent straight leg raises were
normal bilaterally without sciatic symptoms. Hip examination was normal. Dr. Leonard stated
that back range of motion was excellent, with some spasm detected in the lower erector spinae
muscles bilaterally, while the sciatic notches were not tender to palpation. He diagnosed
degenerative L5-S1 disc disease with nonverifiable right S1 sciatic, mild. Dr. Leonard noted that
using Table 16-1, appellant was a class 1, mild problem with an impairment of 1 to 13 percent of
the lower extremity. He noted the functional history would provide a grade modifier of 3, grade
C, physical examination provided a 0 grade modifier and clinical studies provided a 0 grade
modifier. Dr. Leonard noted that the pain disability questionnaire of 17-A provided a score of
106 for a grade modifier of 3, grade C. He applied these findings to Figure 16-2 and determined
that appellant had three percent impairment of the right leg. Dr. Leonard noted no peripheral
nerve involvement, no amputation and normal range of motion of the legs. He opined that
appellant had approximately three percent impairment of the right lower extremity as best as he
could determine noting that this did not reflect permanent impairment due to her degenerative
disc and nonverifiable sciatica. Dr. Leonard noted that appellant reached maximum medical
improvement in September 2008.
In an August 26, 2010 report, an OWCP medical adviser stated that there was no basis for
rating any impairment based on appellant’s accepted conditions. He referenced Dr. Leonard’s
rating of three percent based Table 16-1, page 495 of the A.M.A., Guides and noted that use of
this table was inappropriate because it provided generic information but did not provide
definitions to identify specific ratings per diagnoses. The medical adviser noted that it must be
determined if verifiable radiculopathy was present at maximum medical improvement and if
ratable impairment existed based on sensory or motor deficits. In this case Dr. Leonard had
found no significant muscle weakness in either leg and no significant hypoesthesia detected. The
medical adviser agreed with Dr. Leonard’s diagnoses of degenerative L5-S1 disc disease with
nonverifiable right S1 mild sciatica, and opined that where no verifiable radiculopathy exists
there is no ratable impairment for sensory or motor deficits. He noted that Dr. Leonard found no
sensory deficit in either leg and no motor weakness in the legs. The medical adviser opined that
for this reason there was no ratable spinal nerve impairment in accordance with the A.M.A.,
Guides.
On September 9, 2010 OWCP denied appellant’s claim for a schedule award.
September 20, 2010 appellant requested a review of the written record.

3

On

In a decision dated February 23, 2011, an OWCP hearing representative affirmed the
September 9, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.9
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.10 FECA and the implementing regulations do not
provide for the payment of a schedule award for the permanent loss of use of the back or the
body as a whole.11 The Board notes that section 8101(19) specifically excludes the back from
the definition of organ.12 However, a claimant may be entitled to a schedule award for
permanent impairment to an upper or lower extremity even though the cause of the impairment
originated in the neck, shoulders or spine.13
ANALYSIS
On appeal, appellant alleges that she is entitled to a schedule award. OWCP accepted her
claim for L5-S1, herniated disc. FECA does not provide for a schedule award based on
impairment to the back or spine. Appellant may only be awarded a schedule award for
impairment to the lower extremities if such impairment is established as being due to her
accepted lumbar condition.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

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

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

12

5 U.S.C. § 8101(19).

13

Thomas J. Engelhart, supra note 10.

4

In support of her claim, appellant submitted a May 29, 2009 report from Dr. Pier, who
opined that appellant had five percent impairment of the whole person based on the fourth
edition of the A.M.A., Guides.14 The Board has carefully reviewed Dr. Pier’s report and notes
that his findings do not support permanent impairment of the upper or lower extremities.
Dr. Pier noted examination did not reveal significant sensory loss, motor loss or reflex changes
in the lower extremities. OWCP requested that Dr. Pier provide an impairment rating based on
the sixth edition of the A.M.A., Guides and in an October 26, 2009 report, Dr. Pier noted that he
was not overly familiar with the sixth edition of the A.M.A., Guides but believed that appellant
would have five percent impairment of the whole person pursuant to this edition. Dr. Pier did
not reference any tables or charts in the sixth edition of the A.M.A., Guides, and he did not
attribute any impairment to a scheduled body member as a result of the accepted condition. He
did not explain how appellant’s lumbar condition caused impairment to either lower extremity or
provide an adequate description of appellant’s physical condition so that an impairment rating
could be determined by an OWCP medical adviser. Similarly, on April 2, 2010, Dr. Woeflein
advised that appellant did not have a limb injury which would fall under any of the categories in
the A.M.A., Guides. She indicated that she was not familiar enough with the sixth edition of the
A.M.A., Guides to determine an impairment rating. Neither physician explained how appellant’s
accepted lumbar condition caused permanent impairment to the lower extremities. These reports
are of limited probative value and are insufficient to establish a basis for the payment of a
schedule award.15
Appellant also submitted a June 19, 2009 report from Dr. Dionne, a chiropractor, who
opined that she had 10 to 13 percent impairment pursuant to the fifth edition of the A.M.A.,
Guides.16 However, the Board has held that the opinion of a chiropractor, regarding a permanent
impairment of a scheduled extremity or other member of the body is beyond the scope of the
statutory limitation of a chiropractor’s services.17 Dr. Dionne’s reports are thus of no probative
value with regards to the extent of any permanent impairment.
OWCP referred appellant to Dr. Leonard who found that appellant had three percent
impairment of her right leg. Dr. Leonard noted appellant’s reflexes were active and equal with
no significant muscle weakness in either leg and no sensory loss or significant hypesthesia. He
diagnosed degenerative L5-S1 disc disease with nonverifiable right S1 sciatic, mild. Dr. Leonard
noted that using Table 16-1, appellant was a class 1, mild problem with an impairment of 1 to 13
percent of the leg. He noted that the functional history would provide a grade modifier of 3,
14

A.M.A., Guides (4th ed. 1993).

15

See Carl J. Cleary, 57 ECAB 563, 568 at note 14 (2006) (an opinion which is not based upon the standards
adopted by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative
value in determining the extent of a claimant’s impairment).
16

A.M.A., Guides (5th ed. 2001).

17

Pamela K. Guesford 53 ECAB 726 (2002); see also George E. Williams, 44 ECAB 530 (1993) (a chiropractor
may only qualify as a physician in the diagnosis and treatment of spinal subluxation and his or her opinion is not
considered competent medical evidence in evaluation of other disorders, including those of the extremities, although
these disorders may originate in the spine); see also J.B., Docket No. 11-405 (issued September 7, 2011); M.E.,
Docket No. 10-2277 (issued June 13, 2011).

5

grade C, physical examination had a 0 grade modifier and clinical studies would have a 0 grade
modifier. Dr. Leonard applied these findings to Figure 16-2 and determined that appellant had
three percent right leg impairment.
In a September 7, 2010 report, an OWCP medical adviser reviewed Dr. Leonard’s report
and disagreed with his conclusion that appellant had three percent impairment based Table 16-1,
page 495, of the A.M.A., Guides. The medical adviser indicated that use of Table 16-1 was
inappropriate because it provided generic information but did not provide definitions to identify
specific ratings per diagnoses. The Board notes that Table 16-1 notes the classes of impairment
and the corresponding ranges of impairment for all diagnosis-based impairments in Chapter 16
of the A.M.A., Guides but does not address impairment for particular conditions.18 As noted,
Dr. Leonard found no sensory deficit or motor weakness in either extremity related to appellant’s
lumbar spine pathology. The medical adviser opined that because there was no sensory or motor
deficits to the extremities there was no basis for rating any impairment based on appellant’s
accepted conditions. The medical adviser agreed with Dr. Leonard’s diagnoses of degenerative
L5-S1 disc disease and opined that where no verifiable radiculopathy exists there is no ratable
impairment for sensory or motor deficits. The medical adviser opined that for this reason there
was no ratable impairment of either leg in accordance with the A.M.A., Guides. The Board finds
that the medical adviser properly explained why Dr. Leonard’s findings did not support an
impairment rating for either leg. As there is no medical evidence in conformance with the
A.M.A., Guides, supporting ratable impairment of a scheduled body member, causally related to
the accepted condition, OWCP properly denied appellant’s claim for a schedule award.
On appeal, appellant asserts that Dr. Dionne provided an appropriate impairment rating
after performing an examination and reviewing x-rays and that his rating should be given more
weight than that of a medical adviser who did not examiner her. As noted above, an impairment
rating for schedule award purposes is beyond the scope of the statutory limitation on a
chiropractor’s services. The Board further notes that OWCP procedures provide that, after
obtaining all necessary medical evidence, the file should be routed to the 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.19
Here, the medical adviser considered the medical evidence and explained why there was no basis
to rate impairment for the legs due to appellant’s accepted condition.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

18

Table 16-1 appears in section 16.1 of the A.M.A., Guides, Principles of Assessment. A.M.A., Guides 494-95.
This section of the A.M.A., Guides refers the reader to section 16.3d for a detailed description of the process for
calculating impairment values. Section 16.3d, page 518, directs that a diagnosis-based regional grid be used to
determine impairment class with grades then determined by using adjustment grids.
19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

6

CONCLUSION
The Board finds that appellant did not establish that she sustained permanent impairment
of her lower extremity based on her accepted lumbar condition.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

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

Docket No. 20-0784
Issued: May 11, 2021

Case Submitted on the Record

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

JURISDICTION
On February 26, 2020 appellant filed a timely appeal from a February 19, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1
The Board notes that, during the pendency of this appeal, OWCP issued a March 16, 2020 decision which denied
appellant’s request for a hearing regarding OWCP’s February 19, 2020 decision. The Board and OWCP may not
simultaneously exercise jurisdiction over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626; see J.W., Docket No.
19-1688, n.1 (issued March 18, 2020); J.A., Docket No. 19-0981, n.2 (issued December 30, 2019); Arlonia B. Taylor,
44 ECAB 591 (1993); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s March 16, 2020 decision
is set aside as null and void.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the February 19, 2020 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 abused its discretion in denying appellant’s request for
authorization for an anterior cervical discectomy and fusion from C3-6 and a posterior
laminectomy and fusion from C3-T2.
FACTUAL HISTORY
This case has previously been before the Board on a different issue.4 The facts and
circumstances as set forth in the Board’s prior decision are incorporated herein by reference. The
relevant facts are as follows.
On February 4, 2017 appellant, then a 54-year-old postal support employee mail processing
clerk, filed a traumatic injury claim (Form CA-1) alleging that on that date she was hit on the head
by a shelf cage door while in the performance of duty. OWCP accepted the claim for a cervical
sprain and herniated nucleus pulposus at C5-6 with radiculopathy. On February 20, 2020 it
expanded acceptance of the claim to include a left shoulder partial tear capsule. Appellant stopped
work on February 4, 2017 and returned to light-duty work for four hours per day on June 14, 2017.
OWCP paid her wage-loss compensation on the supplemental rolls as of April 6, 2017 and on the
periodic rolls as of September 17, 2017.
In a February 4, 2019 report, Dr. Robert Kowalski, a Board-certified neurosurgeon,
provided an assessment of cervical radiculopathy and cervical myelopathy with cervical
radiculopathy. He opined that appellant’s symptoms had worsened. Dr. Kowalski also indicated
that current magnetic resonance imaging (MRI) scan and computerized tomography scan showed
progressive injuries to the C3-4, C4-5, and C5-6 discs, which all had cord compression, and an
anterior slip of C7 on T1. In light of appellant’s cord compression instability, he recommended
decompression surgery at C3-4, C4-5, and C5-6 anterior cervical discectomy and fusion (ACDF)
and C3-T2 decompression and instrumentation fusion along with noninvasive electrical bone
growth stimulator postoperatively.
OWCP subsequently received Dr. Kowalski’s February 8, 2019 surgical authorization
requests which included bilateral cervical spine fusion, bilateral insert spine fixation device, and
bone marrow aspiration bone graft.
On February 12, 2019 OWCP referred appellant’s medical records along with a
February 12, 2019 statement of accepted facts (SOAF) to its district medical adviser (DMA) to
obtain an opinion as to whether the proposed surgical procedures were medically necessary and
causally related to her accepted conditions.
Dr. Kenechukwu Ugokwe, a Board-certified neurosurgeon, serving as OWCP’s DMA,
reviewed the SOAF and appellant’s medical records on February 18, 2019. In a report of the same
date, he indicated that she had undergone a prior C6-7 fusion. Dr. Ugokwe noted that appellant’s
cervical MRI scan showed moderate right lateral recess stenosis at C3-4 and bilateral lateral recess
stenosis at C5-6. He opined that the proposed cervical spine fusion, removal and spine disc surgery
add-on were causally related to the accepted medical conditions as she did not have this neck pain

4

Docket No. 18-1655 (issued June 19, 2019).

2

prior to the work injury. However, Dr. Ugokwe opined that the medical evidence was unclear as
to the cervical disc level for the proposed operation.
By letter dated February 19, 2019, OWCP requested additional information from appellant
with regards to the proposed surgery.
In a March 18, 2019 letter, Dr. Kowalski indicated that appellant had continued residuals
from her employment injury and that he was proposing an anterior discectomy from C3-6, to be
performed on day 1, and a posterior fusion from C3-T2, to be performed on day 2. He indicated
that conservative treatment had failed and that the surgery was medically necessary to avoid
permanent impairment.
On June 13, 2019 OWCP referred appellant to Dr. Mitchell Supler, a Board-certified
neurosurgeon, for a second opinion examination to determine whether she had continued residuals
of her accepted employment-related conditions and whether the proposed surgery was causally
related to her employment injury and/or accepted conditions.
In a September 18, 2019 report, Dr. Supler noted his review of the SOAF and appellant’s
medical records. He presented findings on physical and neurological examination and provided
an impression of C5-6 disc ostophyte complex with bilateral neuroforaminal narrowing producing
cervical radiculopathy; bulge of the disc at the C4-5 level with some canal stenosis; and partial
tear of the supraspinatus with associated rotator cuff injury. Dr. Supler recommended against the
proposed surgery of an anterior discectomy from C3-6 and then a posterior fusion from C3-T2 as
it was too extensive for appellant’s condition. He indicated that many of her symptoms involving
her left upper extremity could be associated with a rotator cuff injury that may have occurred
during the work incident and recommended that she be evaluated for an orthopedic injury
involving her shoulder. Dr. Supler opined that any cervical surgery could be limited to the C4-5
and C5-6 level, and possibly C3-4 anteriorly. However, he opined that there was no need for any
posterior decompression.
By decision dated December 18, 2019, OWCP denied appellant’s request for authorization
for an anterior discectomy from C3-6 and a posterior fusion from C3-T2. It found that the evidence
of record did not support that the requested bilateral cervical spine fusion, bilateral insert spine
fixation device, and bone marrow aspiration bone graft procedures were medically necessary to
address the effects of her work-related injury or conditions.
On a request form dated and postmarked January 8, 2020, received by OWCP on January 9,
2020, appellant requested a telephonic hearing before a representative of OWCP’s Branch of
Hearings and Review of the December 18, 2019 decision.
On January 23, 2020 appellant requested that OWCP expand the acceptance of her claim
to include a left shoulder rotator cuff tear.5
In a February 3, 2020 progress note, Dr. Kowalski continued to diagnose cervical
radiculopathy, cervical spine instability, and cervical pain. He recommended, given appellant’s
cord compression, instability, and long tract signs, decompression surgery at C3-4, C4-5, and C56 ACDF. Dr. Kowalski indicated that she would require a noninvasive electrical bone growth
5

As noted, OWCP expanded the claim on February 20, 2020 to include a left shoulder partial tear capsule.

3

stimulator postoperatively and that appellant may require a C3-T2 decompression and
instrumented fusion in the future.
By decision dated February 19, 2020, OWCP again denied appellant’s request for anterior
discectomy from C3-6, and posterior fusion from C3-T2.
LEGAL PRECEDENT
Section 8103 of FECA6 provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.7 In interpreting this section of FECA, the
Board has recognized that OWCP has broad discretion in approving services provided under
section 8103, and the only limitation on OWCP’s authority is that of reasonableness.8
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.9 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.10 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment.11
ANALYSIS
The Board finds that this case is not in posture for decision.
Following OWCP’s December 18, 2019 decision denying appellant’s requests for surgical
authorization, appellant submitted a timely request for an oral hearing before a representative of
OWCP’s Branch of Hearings and Review, which was postmarked January 8, 2020. Under FECA
and its implementing regulations, a claimant who has received a final adverse decision by OWCP
is entitled to receive a hearing upon writing to the address specified in the decision within 30 days

6

Supra note 2.

7

5 U.S.C. § 8103(a); see M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

8

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
9

J.M., Docket No. 20-0565 (issued November 5, 2020); see R.M., Docket No. 19-1319 (issued December 10,
2019); Debra S. King, 44 ECAB 209 (1992).
10

B.I., supra note 8; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB
282 (1986).
11

P.L., Docket No. 20-0392 (issued October 28, 2020); see T.A., Docket No. 19-1030 (issued November 22, 2019);
Cathy B. Millin, 51 ECAB 331, 333 (2000).

4

of the date of the decision for which a hearing is sought.12 Unless otherwise directed in writing by
the claims examiner, an OWCP hearing representative will mail a notice of the time and place of
the hearing to the claimant and any representative at least 30 days before the scheduled date. The
record reflects that appellant had timely requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review with regards to OWCP’s December 18, 2019 denial of
authorization, but had did not receive notice from an OWCP hearing representative as to the time
and place of the hearing. As there exists an outstanding request for a hearing before an OWCP
representative, OWCP improperly issued its February 19, 2020 decision. The case, therefore, will
be remanded for OWCP to conduct an oral hearing before an OWCP hearing representative per
appellant’s request.
The case, therefore, will be remanded for an oral hearing, pursuant to appellant’s timely
January 8, 2020 request. After this and such further development as deemed necessary, it shall
issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 11, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

5


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

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Appearances:
Pat Palmeri, for the appellant
Office of Solicitor, for the Director

Docket No. 14-2048
Issued: May 13, 2015

Case Submitted on the Record

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

JURISDICTION
On September 26, 2014 appellant, through his representative, filed a timely appeal from a
September 10, 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.
ISSUES
The issues are: (1) whether OWCP properly found a $30,761.91 overpayment of
compensation was created from August 1, 2007 to May 31, 2014; (2) whether it properly found
appellant was at fault in creating the overpayment and therefore not entitled to wavier; and
(3) whether OWCP properly determined the overpayment should be recovered by deducting
$550.00 every 28 days from continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 16, 1998 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained stress and anxiety as a result of an April 7, 1998
employment incident. He alleged that his supervisors treated him in an abusive manner. On
June 22, 1998 OWCP accepted the claim for depressive disorder. Appellant began receiving
compensation on the periodic rolls.
OWCP periodically sent appellant EN1032 forms that requested information with respect
to any additional income, changes in dependents, or receipt of other federal benefits. The form
requests information for the prior 15 months. As to receipt of Social Security Administration
(SSA) benefits, the EN1032 form states that appellant must report any SSA benefits received as
part of an annuity under the Federal Employee Retirement System (FERS). In an EN1032 form
signed on November 9, 2007, appellant responded “no” to the question as to whether he had
received SSA benefits as part of an annuity for federal service. Similarly, he responded “no” in
EN1032 forms dated November 10, 2008, December 19, 2009, May 31, 2011, February 11,
2012, and December 11, 2013.
On January 30, 2014 OWCP requested that SSA provide information with respect to
appellant’s receipt of SSA benefits. In a response received on May 30, 2014, the SSA indicated
that through July 2007 appellant had received disability benefits. SSA indicated that as of
August 2007, appellant received retirement benefits and reported the difference between the SSA
rate with FERS and without FERS.
By letter dated June 6, 2014, OWCP advised appellant that it had received information
from SSA which showed that he had been receiving SSA benefits attributable to years of federal
service under the FERS program. It stated that the portion of SSA benefits attributable to federal
service required an offset from continuing compensation.
In a letter dated July 7, 2014, OWCP advised appellant of a preliminary determination
that an overpayment of compensation of $30,761.91 had occurred from August 1, 2007 to
May 31, 2014. It explained that he had been receiving SSA benefits attributable to federal
employment under FERS. A fiscal pay rate memorandum was enclosed that contained OWCP’s
calculations as to the amount of the overpayment. OWCP also made a preliminary determination
that appellant was at fault in creating the overpayment, noting that he failed to properly complete
the EN1032 forms. It indicated that he had made incorrect statements on the EN1032 forms and
failed to provide material information. An OWCP-20 (overpayment recovery questionnaire)
form was enclosed and appellant was requested to submit the form and supporting financial
documents.
On August 1, 2014 appellant’s spouse submitted a letter asking why OWCP had reviewed
the forms for seven years and not checked them or contacted appellant. Appellant submitted a
May 20, 2008 letter from SSA stating they had converted his benefits to retirement benefits
effective August 2007 and spouse’s benefits had to be reduced. He did not submit any financial
evidence.

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By decision dated September 10, 2014, OWCP finalized the preliminary determinations.
It found an overpayment of $30,761.91 was created and appellant was at fault in creating the
overpayment. OWCP further found the overpayment would be recovered by deducting $550.00
from continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8116(d)(2) requires that compensation benefits be reduced by “the amount of
any such social security benefits payable that are attributable to federal service.” OWCP’s
procedures provide that, while SSA benefits are payable concurrently with FECA benefits, in
disability cases, FECA benefits will be reduced by SSA benefits paid on the basis of age and
attributable to the employee’s federal service.2 It obtains information from SSA on the amount
of the claimant’s benefits beginning with the date of eligibility to FECA benefits. SSA will
provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA will also
provide a hypothetic SSA benefit computed without FERS covered earnings. OWCP will then
deduct the hypothetical benefit from the actual benefit to determine the amount of benefits which
are attributable to federal service and that amount will be deducted from FECA benefits to obtain
the amount of compensation payable.3
ANALYSIS -- ISSUE 1
In the present case, the record indicated that appellant was receiving wage-loss
compensation during the period August 1, 2007 to May 31, 2014 due to his accepted April 7,
1998 injury. During that same period, the evidence established that he was also receiving SSA
retirement benefits attributable to his federal service. 5 U.S.C. § 8116(d)(2) states that
compensation benefits are reduced by the amount of such SSA benefits attributable to federal
service. OWCP had paid appellant wage-loss compensation from August 1, 2007 to May 31,
2014 without any reduction based on SSA benefits. Therefore, an overpayment of compensation
was created.
To determine the amount, OWCP obtains evidence from SSA as to the SSA benefits with
FERS and without FERS covered earnings. The difference represents the amount that
compensation should have been reduced. In this case, OWCP obtained information from SSA
and provided a memorandum that calculated the amount of the overpayment. For the period
August 1, 2007 to May 31, 2014, the difference between the SSA rates with and without FERS
was $30,761.91. No contrary evidence was provided. The Board accordingly finds that the
record properly documents a $30,761.91 overpayment of compensation in this case.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(e) (June 2009). This
same section of the manual explains that if social security benefits are paid for disability rather than age, SSA
benefits paid for disability shall be reduced by FECA compensation payable.
3

FECA Bulletin No. 97-09 (issued February 3, 1997). See also P.G., Docket No. 13-589 (issued July 9, 2013).

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LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA4 provides: “Adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”5 No waiver of an overpayment is possible if the claimant is at fault in
creating the overpayment.6
On the issue of fault, 20 C.F.R. § 10.433 provides in pertinent part that an individual is
with fault in the creation of an overpayment who: “(1) made an incorrect statement as to a
material fact which he or she knew or should have known to be incorrect; or (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which the recipient knew or should have known was incorrect. (This provision applies
only to the overpaid individual.)”
ANALYSIS -- ISSUE 2
In the present case, OWCP found appellant was at fault in creating the overpayment. It
noted that he had incorrectly completed the EN1032 forms, as he had stated “no” to the specific
question of whether he was receiving SSA benefits as part of an annuity for federal service. The
record contains EN1032 reports dated November 9, 2007, November 10, 2008, December 19,
2009, May 31, 2011, February 11 and December 27, 2012,7 and December 11, 2013. As the
Board indicated in B.L.,8 when a claimant incorrectly states on an EN1032 form that he did not
have any SSA benefits attributable to federal service, OWCP may properly find appellant at fault
for the period covered. According to 20 C.F.R. § 10.433(1) noted above, a finding of fault is
proper when a claimant makes an incorrect statement as to a material fact that he or she knew or
should have known was incorrect. As indicated in the legal precedent, no waiver of the
overpayment is possible when the claimant is at fault in creating the overpayment.
The December 27, 2012 EN1032 form in the record, however, does not contain the page
providing a response to the question as to SSA benefits. OWCP cannot find appellant at fault for
making an incorrect statement as to a material fact with respect to this form. There is no
evidence in the record that appellant made an incorrect statement on the December 27, 2012
EN1032. The period covered by the form is the 15-month period prior to December 27, 2012.
As noted above, appellant did make incorrect statements on the February 11, 2012 and
December 11, 2013 EN1032 forms. The 15-month period covered by the December 11, 2013
EN1032 form commences on September 11, 2012.
Therefore, from February 12 to
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8129(b).

6

Gregg B. Manston, 45 ECAB 344 (1994).

7

The record also contains a December 27, 2012 signed EN1032 form, but that document does not include the
page with a response as to SSA benefits.
8

Docket No. 13-1422 (issued June 2, 2014).

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September 10, 2012, there is no period covered by an EN1032 form with an incorrect statement
as to a material fact. Based on the evidence of record, appellant cannot be found at fault during
this period. The case will be remanded for proper consideration of waiver for this portion of the
overpayment.
On appeal, appellant states that he does not believe he was at fault and the overpayment
should be waived. For the reasons discussed above, the Board finds that the record does
establish that he was at fault during the periods covered by an EN1032 form where he provided
an incorrect statement. Appellant is therefore not entitled to waiver for an overpayment during
the periods in which he is properly found to be at fault.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize hardship.”9
With respect to the submission of financial evidence, OWCP’s regulations at 20 C.F.R.
§ 10.438 provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA, or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.”
ANALYSIS -- ISSUE 3
As to the recovery of the overpayment, OWCP provided appellant with an opportunity to
submit an OWCP-20 questionnaire and other relevant financial information. Such information
would be used to consider the financial circumstances of the individual and to properly minimize
hardship in recovering the overpayment from continuing compensation.
Appellant did not submit any relevant financial information. As noted above, an
individual is responsible for providing information about income, expenses, and assets. When a
claimant fails to submit financial information, OWCP may recover the overpayment in
installments large enough to recover the debt promptly.10 The Board finds that it properly
9

20 C.F.R. § 10.441.

10

See A.V., Docket No. 13-1612 (issued September 8, 2013).

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determined the overpayment could be recovered by deducting $550.00 every 28 days from
continuing compensation payments.
CONCLUSION
The Board finds that OWCP properly found an overpayment of $30,761.91 was created.
Appellant was at fault in creating the overpayment, except for the period February 12 to
September 10, 2012, as the evidence does not document an incorrect statement as to a material
fact that he should have known was incorrect for this period. The Board further finds that
OWCP properly determined that the overpayment would be recovered by deducting $550.00
from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2014 is affirmed with respect to fact and amount
of overpayment, and recovery of the overpayment. The decision is set aside with respect to a
finding of fault for the period February 12 to September 10, 2012, and remanded for proper
consideration of waiver of this portion of the overpayment.
Issued: May 13, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Longmont, CO, Employer
__________________________________________

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

Docket No. 07-881
Issued: August 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 12, 2007 appellant filed a timely appeal from the March 7, May 24 and
September 14, 2006 merit decisions of the Office of Workers’ Compensation Programs, which
denied her claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of appellant’s claim. The Board also has jurisdiction to review
the Office’s January 22, 2007 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
January 15, 2006; and (2) whether the Office properly denied her December 26, 2006 request for
reconsideration.
FACTUAL HISTORY
On January 15, 2006 appellant, then a 36-year-old air traffic control specialist, filed a
claim alleging that she sustained an injury in the performance of duty that day: “Exposed elec.

on [display monitor] shocked me as I moved it into view.” A witness wrote the following: “I
witnessed [appellant] trying to move the sector 21 scope by placing her hand on the lower left
side of the scope. I heard a ‘pop’ and observed the left side of the scope go blank.”
Appellant stopped work on January 19, 2006 and sought medical treatment. A
January 19, 2006 treatment note from a Dr. Reginald Guy related the history of the incident and
appellant’s complaints: “This patient complains of being shocked when moving a video screen
display at work on the 15th of this month. The patient has experienced intermittent chest pain
lasting up to two minutes over the past three days, perhaps associated with some shortness of
breath.” Dr. Guy described normal objective findings and diagnosed noncardiac chest pain. He
advised that appellant used over-the-counter antacids for her discomfort and released her to
resume work that night with no restrictions.
In a decision dated March 7, 2006, the Office denied appellant’s claim for compensation.
The Office found that the claimed event occurred, but there was no medical evidence providing a
diagnosis connected to the event. The Office explained that findings of pain or discomfort alone
did not satisfy the medical aspect of appellant’s case.
On March 16, 2006 Dr. Guy reported as follows:
“Please be advised that I did see [appellant] on January 15, [sic] 2006 after she
sustained an accidental electric shock while manipulating a monitor at the Air
Traffic Controller Station in Longmont. The patient complained of chest pain.
EKG [electrocardiogram] and cardiac enzymes were unremarkable. I discussed
this case with the cardiologist at Longmont Clinic who suggested she may be
experiencing chest wall pain from muscle spasms secondary to the electrical
shock. I must agree with his opinion as the patient has entirely recovered from
this injury. She persistently had normal electrocardiograms subsequent to this
accident and has been pain-free for several weeks.”
Appellant requested reconsideration.
In a decision dated May 24, 2006, the Office reviewed the merits of appellant’s case and
denied modification of its prior decision. The Office explained that the evidence established the
reported work event on January 15, 2006, and that the factual basis of appellant’s claim was
satisfied, but she needed to submit a detailed medical report with a clear and concise diagnosis
rendered by a qualified physician.
Appellant requested reconsideration and submitted a June 1, 2006 report from a
Dr. Marie E. Bush, who related appellant’s history and the normal findings made on
examination. Dr. Bush diagnosed noncardiac chest pain/musculoskeletal chest pain. She noted
that one of their cardiologists, a Dr. Stathis, concurred that the etiology of the chest pain was not
cardiac but musculoskeletal in origin and directly related to the electrical shock that appellant
received at work. Dr. Bush described appellant’s subsequent medical care.
In a decision dated September 14, 2006, the Office reviewed the merits of appellant’s
case and denied modification of its prior decision. The Office noted that the only diagnosis

2

related to her claimed injury was that of pain with symptoms of shortness of breath, which did
not satisfy the need for a stated medical condition.
On December 26, 2006 appellant again requested reconsideration. She stated that the
attending physician changed the diagnosis code. Appellant submitted several copies of
Dr. Bush’s June 1, 2006 report and stated that Dr. Bush felt that her letter clearly stated that the
pain was “musculoskeletal in origin and was directly related to the electrical shock that
[appellant] received while at work.”
In a decision dated January 22, 2007, the Office denied appellant’s request. The Office
found that the medical evidence received since the September 14, 2006 merit decision was
repetitious and did not warrant a reopening of appellant’s case.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of duty.1
An employee seeking benefits under the Act has the burden of proof to establish the essential
elements of her claim. When an employee claims that she sustained an injury in the performance
of duty, she must submit sufficient evidence to establish that she experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged. She must also
establish that such event, incident or exposure caused an injury.2
A person who claims benefits for a work-related injury has the burden of establishing by
the weight of the medical evidence a firm diagnosis of the condition claimed and a causal
relationship between that condition and factors of federal employment.3 Causal relationship is a
medical issue4 and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion of the physician must be based on a complete factual and medical
background of the claimant,5 must be one of reasonable medical certainty6 and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the established incident or factor of employment.7
1

5 U.S.C. § 8102(a).

2

See generally Abe E. Scott, 45 ECAB 164 (1993); John J. Carlone, 41 ECAB 354 (1989).

3

E.g., Patricia Bolleter, 40 ECAB 373 (1988).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

ANALYSIS -- ISSUE 1
The Office accepted that the January 15, 2006 incident occurred as alleged. Appellant
has met her burden to submit sufficient evidence to establish that she experienced a specific
event, incident or exposure occurring at the time, place and in the manner alleged. The only
question that remains is whether this incident caused a specific injury.
The diagnosis of noncardiac chest pain identifies no particular medical condition or
disease, no underlying pathology. It merely rules out a cardiac etiology.8 It is the equivalent of a
physician reporting, “I do not know what is causing her pain, but it is not a cardiac problem.”
The Office cannot pay compensation for an unnamed medical condition. Dr. Guy’s advice to use
over-the-counter antacids for the discomfort suggests that he believed appellant’s chest pain
might be a symptom of heartburn.
Dr. Guy later reported that he agreed with the cardiologist at the clinic, who suggested
that appellant might have been experiencing chest wall pain from muscle spasms secondary to
the electrical shock. This is a speculative hypothesis. Although the opinion of a physician does
not have to reduce the cause or etiology of a disease or condition to an absolute medical certainty,
neither can such opinion be speculative or equivocal.9 Further, muscle spasm, like pain, remains
but a symptom of an underlying and as yet unidentified medical condition or disease.
Dr. Bush diagnosed noncardiac chest pain/musculoskeletal chest pain, again based on the
cardiologist’s opinion that the etiology of the chest pain was not cardiac but musculoskeletal in
origin and directly related to the electrical shock appellant received at work. Although this
narrows the focus of a possible injury, Dr. Bush still identified no particular musculoskeletal
condition or disease. Appellant might have sustained an injury in the performance of duty, but
her physicians appear too uncertain about what physiological damage the electricity caused, if
any, to offer a differential diagnosis of that injury. For this reason, she has not met her burden of
proof to establish entitlement to benefits under the Act.10 The Board will affirm the Office
decisions denying her claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”11
8

Compare Thomas R. Horsfall, 48 ECAB 180 (1996) (where the physician diagnosed noncardiac chest pain
caused by costochondritis, or an inflammatory reaction in the costochondral junction).
9

Philip J. Deroo, 39 ECAB 1294 (1988); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Board-certified
internist that the employee’s complaints “could have been” related to her work injury was speculative and of limited
probative value).
10

Any opinion that the electric shock caused a diagnosed medical condition or disease must be supported by
sound medical reasoning.
11

20 C.F.R. § 10.605 (1999).

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An application for reconsideration must be sent within one year of the date of the Office decision
for which review is sought.12
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.14
ANALYSIS -- ISSUE 2
Appellant’s December 26, 2006 request for reconsideration meets none of the standards
for obtaining a merit review of her case. The Office received copies of Dr. Bush’s June 1, 2006
report, but this was not new evidence. Evidence that repeats or duplicates evidence already in the
record has no evidentiary value and constitutes no basis for reopening a case.15 Appellant stated
that the attending physician changed the diagnosis code, but she submitted no evidence to support
her assertion.16 The Board will affirm the Office’s decision denying appellant’s request for
reconsideration. Appellant is not entitled to a reopening of her case.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on January 15, 2006. The record contains no
diagnosis of a specific medical condition or disease. The Board also finds that the Office
properly denied appellant’s request for reconsideration.

12

Id. at § 10.607(a).

13

Id. at § 10.606.

14

Id. at § 10.608.

15

Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

16

Appellant submitted to the Board half a dozen health insurance claim forms with a corrected diagnosis code
(the old code “whited out” and overwritten with a new code, with no indication who made the changes). The
Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final decision. 20
C.F.R. § 501.2(c). As this evidence was not before the Office, the Board has no jurisdiction to review it.

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ORDER
IT IS HEREBY ORDERED THAT the January 22, 2007 and the September 14,
May 24 and March 7, 2006 decisions of the Office of Workers’ Compensation Programs are
affirmed.
Issued: August 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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