United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jason S, Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1537
Issued: December 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 18, 2013 appellant filed a timely appeal from the January 7, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation effective May 8, 2011 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
OWCP accepted that prior to July 23, 2007 appellant, then a 44-year-old tax examination
assistant, sustained bilateral carpal tunnel syndrome due to her work duties. It also accepted that
1

5 U.S.C. §§ 8101-8193.

she sustained articular cartilage disorder of her right forearm. Appellant underwent left carpal
tunnel release on July 24, 2007, right carpal tunnel release on December 17, 2007 and
arthroscopic triangular fibrocartilage complex debridement of her right wrist on April 18, 2008.
The procedures were authorized by OWCP. Appellant did not return to work and received
wage-loss compensation.
In a March 2, 2010 report, Dr. Noubar Didizian, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, reported the findings from examination of appellant on
February 25, 2010. He discussed her medical history, noting that the case had been accepted for
bilateral carpal tunnel syndrome and articular cartilage disorder of her right forearm.
Dr. Didizian advised that the prognosis was fair for appellant’s bilateral carpal tunnel and her
triangular fibrocartilage complex. Appellant had some triangular fibrocartilage complex
symptoms with pronation and supination movement with clicking, which could be on the basis of
the distal radioulnar joint and degenerative disease. She had weakness in her hands, right more
than left and this was attributable to residuals of the carpal tunnel and triangular fibrocartilage
complex surgery on the right side. Dr. Didizian noted that this was a chronic condition and that
there were permanent residuals of the right and left wrist surgeries. He also noted, “There is a
secondary problem with diabetes, which can cause neuropathy. [Appellant] does feel numbness
in the toes and numbness symptoms could very well be on the basis of diabetes, but not the
[triangular fibrocartilage complex] findings. So in totality, there are residuals from the
postsurgery affect and the [triangular fibrocartilage complex] and possibly the median nerve.”
In a March 5, 2010 report, Dr. Didizian further stated that appellant had permanent partial
disability related to the work injury and noted, “Capacity is provided based on today’s
examination. The capacity is strictly for the accepted injury.” Appellant had other medical
issues which included possibly collagen disease and that a rheumatologic workup showed an
increase in sedimentation rate and C-reactive proteins. Dr. Didizian stated that magnetic
resonance imaging (MRI) scan of the brain and cervical spine and angiography did not explain
appellant’s upper extremity weakness, but that the cervical spine MRI scan showed degenerative
changes. In a March 1, 2010 work capacity form, he found that she could work eight hours per
day with restrictions of lifting up to 5 pounds for one hour, pushing up to 10 pounds for one
hour, pulling up to 10 pounds for one hour and engaging in repetitive wrist movements for one
hour. Dr. Didizian noted that appellant had arm tremors, right greater than left, which were not
related to her work injury. In an August 2, 2010 letter, he clarified his March 1, 2010 work
capacity form by stating, “It is my medical opinion that [appellant] can work one hour at a time
with 15-minute rests in between as far as the use of the wrists are concerned. This is also true for
lifting, pushing and pulling activities.”
On September 2, 2010 the employing establishment offered appellant a full-time job as a
customer service representative. The position involved entering data on a computer while
helping callers with customer service matters. The physical requirements of the position
included using a keyboard, continuously or intermittently, not to exceed a maximum of 1 hour at
a time for 6.5 hours per day; simple grasping, continuously or intermittently, not to exceed
1 hour at a time for 6.5 hours per day; reaching above shoulder level not to exceed 1 hour at a
time for 6.5 hours per day; and pulling and pushing, continuously or intermittently, not to exceed
1 hour at a time for 6.5 hours per day. Lifting, carrying, pulling and pushing were limited to
10 pounds on a continuous or intermittent basis.

2

Appellant initially rejected the customer service representative position. She submitted
medical evidence in support of her contention that she could not perform its duties. In a May 4,
2009 note, Dr. John S. Taras, an attending Board-certified orthopedic surgeon, indicated that
appellant could not push, pull or lift more than three pounds or engage in repetitive overhead
activities. In an October 15, 2010 note, Dr. Nora Sandorfi, an attending Board-certified internist,
stated that appellant “is still unable to fulfill the requirements of her job. [Appellant] should be
considered disabled.”2 In an October 27, 2010 note, Dr. George E. Fisher, an attending
Board-certified internist, noted that she was “still unable to fulfill the requirements of the present
job due to carpal tunnel syndrome and articular cartilage injury. [Appellant] is totally disabled.”
Appellant later accepted the customer service representative position, worked on
January 12 and 13, 2011 and then stopped work. She claimed that her medical condition
prevented her from performing the duties of the position.
In a February 17, 2011 letter, OWCP advised appellant of its determination that the
customer service representative position offered by the employer was suitable. It informed her
that her wage-loss benefits would be terminated if she did not reaccept the position or provide
good cause for not doing so within 30 days of the date of the letter.
In an April 7, 2011 letter, OWCP advised appellant that her reasons for not returning to
the customer service representative position were not support by the evidence. It reviewed the
October 15, 2010 report of Dr. Sandorfi and the October 27, 2010 report of Dr. Fisher and found
the opinions were not sufficiently well rationalized to establish that she could not perform the
customer service representative position. OWCP informed appellant that the position was still
available. It advised her that her compensation would be terminated if she did not reaccept the
position within 15 days of the date of the letter. Appellant did not return to customer service
representative position within the allotted period.
In an April 25, 2011 decision, OWCP terminated appellant’s entitlement to wage-loss and
schedule award compensation effective May 8, 2011 on the grounds that she refused an offer of
suitable work. It again indicated that the opinion of Dr. Didizian showed that she could work as
customer service representative.
Appellant requested a hearing before an OWCP hearing representative that was held on
September 15, 2011. She argued that her numerous nonwork-related conditions, as well as the
medications she took for them, prevented her from working as a customer service representative.
In a March 7, 2011 report, Dr. Fisher diagnosed bilateral carpal tunnel syndrome, chronic
low back pain, Arnold-Chiari malformation, left ear tinnitus, glaucoma, gastroesophageal reflux
disease, diverticulosis, congestive heart failure, bilateral complex ovarian cyst, dystonia,
alopecia, triangular fibrocartilage complex tears of her right wrist, diabetes mellitus (type 2),
hypertension, obstructive sleep apnea, hypothyroid and partial right elbow tear at the common
extensor tendon. He advised that appellant had permanent restrictions that included no repetitive
activity of her upper extremities. Appellant could not push, pull, lift, reach or carry anything
2

In a January 19, 2010 note, Dr. Sandorfi stated that appellant should remain out work and noted that she was
still undergoing testing and treatment.

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above three pounds and she could not engage in any overhead work. She was prescribed one
Percocet every eight hours as needed for pain and it was indicated that she had already been
prescribed more than a dozen medications that were taken daily including Fentanyl and
Oxycodone.
In a November 30, 2011 decision, an OWCP hearing representative affirmed the
April 24, 2011 decision.
On October 4, 2012 appellant requested reconsideration.
OWCP did not consider all of her disability medical conditions.

Her counsel asserted that

In a January 7, 2013 decision, OWCP affirmed its November 30, 2011 decision
terminating appellant’s compensation. It discussed her argument that she had numerous
nonwork-related conditions, which prevented her from working as a customer service
representative. The decision stated:
“In order for a medical condition to be covered under FECA, medical evidence
must demonstrate that it is related to the accepted injury. A physician must
explain how the work event(s) caused or affected your condition, based upon an
accurate factual and medical history, citing objective findings in support of the
opinion.
“The other medical conditions of [appellant] mentioned by the attorney and
Dr. Fisher are not shown to be caused or aggravated by the injury sustained on
June 3, 1994.
“The weight of medical evidence remains with Dr. Didizian who opined, with
rationalization, that the claimant could perform the job of customer service
representative with the [employing establishment], based on the restrictions that
resulted from the accepted, work[-]related conditions of bilateral carpal tunnel
syndrome and the right wrist condition.”
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”3 However, to justify such termination, OWCP must show that the work offered
was suitable.4 An employee who refuses or neglects to work after suitable work has been offered
to him or her has the burden of showing that such refusal to work was justified.5 The Board has

3

5 U.S.C. § 8106(c)(2).

4

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

5

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

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held that all impairments, whether work related or not, must be considered in assessing the
suitability of an offered position.6
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and articular
cartilage disorder of her right forearm. Appellant underwent OWCP-authorized a bilateral tunnel
release, right carpal tunnel release and arthroscopic triangular fibrocartilage complex
debridement of her right wrist.
On September 2, 2010 the employing establishment offered appellant a full-time job as a
customer service representative. The position involved inputting data on a computer while
helping callers with customer service matters. The physical requirements of the position
included using a keyboard for up to 6.5 hours of an 8-hour workday, engaging in overhead work
and lifting, carrying, pulling and pushing up to 10 pounds. Appellant worked in the position for
two days in January 2011 but then stopped work and did not return.
In finding that appellant could physically perform the position, OWCP relied on March 1,
2 and August 2, 2010 reports of Dr. Didizian, an OWCP referral physician. The Board finds,
however, that his reports do not establish that she can physically perform the customer service
representative position. Therefore, OWCP did not meet its burden of proof to show that the
position was suitable.
In a March 1, 2010 work capacity form, Dr. Didizian indicated that appellant could work
eight hours per day with restrictions of lifting up to 5 pounds for one hour, pushing up to
10 pounds for one hour, pulling up to 10 pounds for one hour and engaging in repetitive wrist
movements for one hour. In an August 2, 2010 supplemental letter, he stated that she could work
one hour at a time with 15-minute rests in between as a far as the use of the wrists are concerned.
Dr. Didizian noted that this was also true for lifting, pushing and pulling activities. The Board
notes, however, that he explicitly indicated in his reports that these work restrictions were based
only on appellant’s accepted work injuries, bilateral carpal tunnel syndrome and articular
cartilage disorder of her right forearm. They did not incorporate her many nonwork-related
conditions. The Board has held that all impairments, whether work related or not, must be
considered in assessing the suitability of an offered position.7
Dr. Didizian noted that there were nonwork-related conditions that could affect
appellant’s ability to work. For example, he stated that she had diabetes which “very well” could
have caused her neuropathy, including numbness in her toes. Dr. Didizian also indicated that
appellant had possible systemic collagen disease affecting her extremities, noting that a
rheumatologic workup showed an increase in sedimentation rate and C-reactive proteins.
Appellant also had degenerative cervical disease as well as arm tremors, right greater than left,
which Dr. Didizian noted were not related to her work injuries. Dr. Didizian explicitly indicated
that her work restrictions were based only on her accepted work injuries; he did not provide a
6

See Mary E. Woodard, 57 ECAB 211 (2005).

7

Id.

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clear opinion on her ability to work based on her overall medical condition. OWCP did not
request that he clarify his opinion to whether appellant could physically work as a customer
service representative.
The record also contains medical evidence concerning appellant’s capacity to work as a
customer service representative. In a May 4, 2009 note, Dr. Taras, an attending Board-certified
orthopedic surgeon, indicated that appellant could not push, pull or lift more than three pounds.
The requirements of the customer service representative required lifting, carrying, pulling and
pushing up to 10 pounds on a continuous or intermittent basis. In an October 27, 2010 note,
Dr. Fisher, an attending Board-certified internist, noted that appellant was “still unable to fulfill
the requirements of the present job due to carpal tunnel syndrome and articular cartilage injury.
[Appellant] is totally disabled.”8
In a March 7, 2011 report, Dr. Fisher diagnosed bilateral carpal tunnel syndrome, chronic
low back pain, Arnold-Chiari malformation, left ear tinnitus, glaucoma, gastroesophageal reflux
disease, diverticulosis, congestive heart failure, bilateral complex ovarian cyst, dystonia,
alopecia, triangular fibrocartilage complex tears of her right wrist, diabetes mellitus (type 2),
hypertension, obstructive sleep apnea, hypothyroid and partial right elbow tear at the common
extensor tendon. He indicated that appellant had permanent restrictions that included no
repetitive activity of her upper extremities and no pushing, pulling, lifting or carrying anything
above three pounds.9
For these reasons, OWCP did not establish the suitability of the customer service
representative position on which the offer of suitable work was based. Therefore, it improperly
terminated her compensation effective May 8, 2011.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation effective May 8, 2011 on the grounds that she refused an offer of suitable work.

8

In an October 15, 2010 note, Dr. Sandorfi, an attending Board-certified internist, stated that appellant “is still
unable to fulfill the requirements of her job. She should be considered disabled.”
9

Dr. Fisher also noted appellant’s considerable medication regimen, including pain medications such as Percocet,
Fentanyl and Oxycodone. Appellant had argued that her medications would prevent her from working as a customer
service representative.

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ORDER
IT IS HEREBY ORDERED THAT the January 7, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 20, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CAPTAIN JAMES A. LOVELL FEDERAL
HEALTH CARE CENTER, North Chicago, IL,
Employer
__________________________________________

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

Docket No. 20-0015
Issued: May 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from an August 27,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). 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.

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 appellant has met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On December 13, 2018 appellant, then a 69-year-old rehab technician, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral carpal tunnel
syndrome due to factors of his federal employment. He noted that he first became aware of his
condition on August 12, 2018 and first realized that it was caused or aggravated by his federal
employment on December 4, 2018. Appellant explained that, since August 12, 2018, his wrists
had bothered him and that it felt that his hands were not getting any blood flow circulation as they
hurt and felt like they were asleep. He then treated with his primary physician who diagnosed
carpal tunnel syndrome. Appellant did not stop work.
In a development letter dated December 19, 2018, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and attached a questionnaire for his completion. OWCP also requested
narrative medical report from appellant’s physician, providing a firm diagnosis of a condition and
a rationalized opinion on how his employment duties caused or aggravated his condition. It
afforded appellant 30 days to provide the necessary information.
OWCP received a December 4, 2018 progress note from Dr. Walid Khayr, Board-certified
in internal medicine. Dr. Khayr reported that, upon examination, he found numbness in appellant’s
fingers of both hands related to the frequent typing he performed on a computer. He associated
appellant’s symptoms with positive signs of carpal tunnel syndrome, prescribed splints, and made
an orthopedic referral for further evaluation.
In response to OWCP’s questionnaire, appellant submitted a December 25, 2018 statement
in which he explained the history of pain in his hands that he had experienced since April 15, 2018.
He noted that his fingers were stiff and in pain and that he would have to shake them in order to
try and get feeling and blood back into them. Appellant detailed his employment duties, which
included significant amounts of typing and writing for the majority of his days, folding sheets,
filing papers, as well as creating binders and admission packets for anywhere from 40 to 60 hours
per week. He stated that he would use ice packs in order to treat the pain in his hands.
In a January 14, 2019 medical report, Dr. Peter Hoepfner, a Board-certified orthopedic
surgeon, recounted appellant’s history of pain in both of his hands. On evaluation he diagnosed
bilateral carpal tunnel syndrome, as well as low grade left thumb carpometacarpal (CMC) arthritis.
Dr. Hoepfner ordered an electromyography and addressed possible treatment options for appellant
moving forward.
By decision dated January 24, 2019, OWCP denied appellant’s occupational disease claim
finding that the evidence of record failed to establish that his diagnosed condition was causally
related to the accepted factors of his federal employment. It explained that he failed to submit a

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physician’s opinion as to how his employment activities caused, contributed to, or aggravated his
work-related injury.
On February 6, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a February 25, 2019 attending physician’s report (Form CA-20), Dr. Hoepfner repeated
appellant’s history of pain in his hands and again diagnosed bilateral carpal tunnel syndrome. He
checked a box marked “yes” to indicate his belief that appellant’s condition was caused or
aggravated by his employment activities and explained that carpal tunnel syndrome can be
aggravated by repetitive work with the hands. Dr. Hoepfner also noted that, if left untreated, carpal
tunnel syndrome could lead to chronic numbness and tingling in the hands, as well as weakness.
In a telephonic hearing held on June 13, 2019, appellant detailed his history of employment
duties and pain he experienced in relation to his duties in which he performed for 20 years. He
also noted that he used his hands for home construction projects outside of work. The hearing
representative held the case record open for 30 days for the submission of additional evidence.
OWCP did not receive additional evidence.
By decision dated August 27, 2019, OWCP’s hearing representative affirmed the
January 24, 2019 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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,3 that an injury was sustained in the performance of duty as alleged
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 Aphysician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to factors of his federal employment.
In Dr. Hoepfner’s February 25, 2019 Form CA-20 report, he diagnosed bilateral carpal
tunnel syndrome and checked a box marked “yes” to indicate his belief that appellant’s condition
was caused or aggravated by his employment activities. He further explained that carpal tunnel
syndrome can be aggravated by repetitive work with the hands. Although Dr. Hoepfner’s opinion
generally supported causal relationship between the accepted employment factors and appellant’s
diagnosed condition, he did not provide sufficient rationale explaining his conclusions. Without
explaining how the repetitive work involved in appellant’s employment duties caused or
contributed to his carpal tunnel syndrome, Dr. Hoepfner’s opinion is of limited probative value.10
As such, the Board finds that Dr. Hoepfner’s Form CA-20 did not provide adequate medical
rationale to explain the basis of his conclusion on causal relationship.11
Dr. Hoepfner’s remaining medical evidence consists of a January 14, 2019 medical report
in which he diagnosed bilateral carpal tunnel syndrome and low grade left thumb CMC arthritis.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.12 For this reason,
Dr. Hoepfner’s January 14, 2019 medical report is insufficient to meet appellant’s burden of proof.

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

See A.P., Docket No. 19-0224 (issued July 11, 2019).

11

D.B., Docket No. 17-1845 (issued February 16, 2018); T.H., Docket No. 14-0326 (issued February 5, 2015).

12

R.Z., Docket No. 19-0408 (issued June 26 2019); P.S., Docket No. 18-1222 (issued January 8, 2019).

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In a December 4, 2018 progress note, Dr. Khayr noted numbness in appellant’s fingers and
related it to the frequent typing appellant performed on a computer. He opined that appellant’s
symptoms were positive signs of carpal tunnel syndrome and referred appellant to orthopedics for
further evaluation. As set forth previously, without explaining how typing on the computer caused
or contributed to appellant’s bilateral carpal tunnel syndrome, Dr.Khayr’s opinion is of limited
probative value on the issue of causal relationship.13 For this reason, Dr. Khayr’s medical report
is insufficient to meet appellant’s burden of proof.
As there is no rationalized medical evidence of record explaining how appellant’s
employment duties were sufficient to have caused or aggravated his bilateral carpal tunnel
syndrome, he has not met his burden of proof to establish that his condition is causally related to
the accepted factors of his federal employment.
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 his burden of proof to establish bilateral carpal
tunnel syndrome causally related to factors of his federal employment.

13

Supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the August 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
U.S. SENATE, SERGEANT-AT-ARMS,
Washington, DC, Employer
__________________________________________

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

Docket No. 13-954
Issued: August 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 12, 2013 appellant filed a timely appeal from a September 13, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her
reconsideration request. Because more than 180 days elapsed from the most recent merit
decision dated June 6, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the case.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1

An appeal of a final adverse OWCP decision issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On November 24, 2004 the Board
issued an order granting remand and cancelling oral argument.3 The Director acknowledged that
OWCP’s initial decision denying appellant’s claim was adjudicated without consideration of
whether her injury occurred in the performance of duty.4 Following further development,
OWCP accepted the claim for aggravation of degenerative disc disease at C5-6, C6-7 and C7-T1
with cervical radiculopathy and paid benefits. Appellant underwent surgical procedures for the
cervical region in February 2000 and for the lumbar region in February 2002. Her employment
terminated on June 15, 2000.
By decision dated January 8, 2009, OWCP authorized appellant’s claim for compensation
for the period June 16, 2000 through March 6, 2007. By decision dated October 28, 2009, it
found that she was entitled to compensation for the period June 16, 2000 through November 18,
2008 but denied compensation subsequent to November 18, 2008. By decisions dated May 27,
2010 and June 6, 2011, OWCP denied modification of the October 28, 2009 decision.
On June 4, 2012 appellant, through her attorney, requested reconsideration. He argued
that the medical reports of record provided sufficient rationale to establish that conditions
causally related to the February 8, 1996 slip and fall disabled appellant from all work since
November 18, 2008. In the alternative, counsel contended that a conflict in medical opinion
arose as to the reason for her continuing disability. He contended that appellant also sustained a
consequential aggravation of bilateral knee degenerative joint disease and that her bilateral total
knee replacements contributed to her disability from work since November 18, 2008.
Appellant submitted an undated report by Dr. David A. Gooray, a Board-certified
internist with a subspecialty in cardiovascular disease, previously received by OWCP on
November 12, 2009. She also submitted a duplicative July 19, 2010 report by Dr. Brian G.
Evans, a Board-certified orthopedic surgeon.
By decision dated September 13, 2012, OWCP denied appellant’s request for
reconsideration on the grounds that she did not submit new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,5 its
regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
3

Docket No. 03-1650 (issued November 24, 2004).

4

Appellant filed a traumatic injury claim for degenerative disc disease related to a February 8, 1996 fall while
walking to work “on the sidewalk in the vicinity of Lot 16 Parking lot.”
5

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

20 C.F.R. § 10.606(b)(1)-(2).

2

terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already of record,8 or the submission of evidence or argument
which does not address the particular issue involved, does not constitute a basis for reopening a
case.9
ANALYSIS
Appellant disagreed with OWCP’s June 6, 2011 decision which found that there was
insufficient evidence to establish that she was disabled subsequent to November 18, 2008 as a
result of her February 8, 1996 work injury. The Board does not have jurisdiction to review the
merits of the case. The sole issue is whether appellant’s request for reconsideration met any of
the conditions of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for further
review of the merits.
Appellant did not identify a specific point of law or establish that OWCP erroneously
applied or interpreted a legal principle. She did not advance a new and relevant legal argument.
In the June 4, 2012 request for reconsideration, appellant’s attorney argued that the medical
evidence of record established that her current conditions were causally related to the February 8,
1996 slip and fall injury and caused disability since November 18, 2008. He also argued for a
conflict in the medical opinion evidence. The medical evidence upon which counsel’s argument
is premised was previously submitted and considered by OWCP and found insufficient to
establish compensation for disability subsequent to November 18, 2008. While he also contends
that appellant has consequential conditions that arose out of her work injury that contributed to
her disability since November 18, 2008, she bears the burden of proof in such matter. OWCP
has not issued a decision on whether any consequential conditions resulted from the
November 18, 2008 work injury. Appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law and she has not advanced a relevant legal argument not
previously considered by OWCP.
A claimant may be entitled to a merit review by submitting relevant and pertinent new
evidence not previously considered by OWCP, but appellant submitted no such evidence with
her reconsideration request. She submitted duplicative medical reports from the physicians of
record with her request for reconsideration. The Board finds that she did not meet any of the
requirements for further merit review.10
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). She did not show that OWCP erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by OWCP, or submit
7

Id. at § 10.607(a).

8

See A.L., Docket No. 08-1730 (issued March 16, 2009). See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

10

See L.H., 59 ECAB 253 (2007).

3

relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, appellant advanced arguments pertaining to the merits of her case. The Board
noted above that it only has jurisdiction over OWCP’s September 13, 2012 nonmerit decision
which denied her request for reconsideration and therefore is precluded from conducting a merit
review. Appellant also submitted new evidence on appeal. The Board lacks jurisdiction to
review evidence for the first time on appeal.11 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 OWCP properly denied appellant’s application for reconsideration
without merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

11

20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, WILMINGTON
PROCESSING & DISTRIBUTION CENTER,
New Castle, DE, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1660
Issued: May 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 22, 2009 appellant filed a timely appeal from a January 23, 2009 merit decision
of the Office of Workers’ Compensation Programs denying his claim for a recurrence of
disability. The Board has jurisdiction over the merits of the case pursuant to 20 C.F.R.
§ 501.2(c) and 501.3(e).
ISSUE
The issue is whether appellant established that he sustained a recurrence of disability or
of a medical condition on or after January 19, 1999 causally related to his November 25, 1998
employment injury.
On appeal, appellant contended that the medical evidence was sufficient to establish that
he sustained a recurrence of his employment injury. He also argued that the employing
establishment required him to perform dangerous tasks six months after he underwent lung
surgery and that he worked in a stressful environment.

FACTUAL HISTORY
On November 25, 1998 appellant, then a 62-year-old custodian, sustained a traumatic
injury while lifting a cardboard box into a dumpster at work. The overhead lifting of the box
aggravated appellant’s surgical wound from a January 15, 1998 surgery, when a cancerous tumor
was removed from his lower left lung. The Office accepted the claim for right thoracic spine
strain.
Appellant stopped working on the date of his injury. On December 3, 1998 his treating
physician, Dr. Wayne Hentschel, an osteopath, released appellant to full-time, light duty with
limitations on lifting, carrying and overhead work. After working light duty for several months,
appellant returned to full duty.1 The Office closed his case on January 19, 1999. Appellant
retired on January 1, 2006.
On July 9, 2007 appellant filed a claim for a recurrence of disability (Form CA-2). He
stated that he experienced the recurrence from 2005 through present but was claiming wage-loss
compensation from 1998. Appellant stated that, following his injury, he worked light duty
casing mail for several months. He claimed that he continued to experience aches and pains in
the same area as his initial injury.
In a July 30, 2007 letter, the Office notified appellant of the deficiencies in his claim and
requested he provide additional evidence. It resent the letter on August 7, 2007.
By decision dated September 10, 2007, the Office denied appellant’s recurrence claim on
the grounds that he did not submit sufficient medical or factual evidence to support his claim “for
a recurrence of symptoms related to the originally accepted work injury requiring medical
treatment and causing disability.”
On April 10, 2008 appellant filed a request for reconsideration.
On May 10, 2007 Dr. Satoshi Ikeda, a Board-certified thoracic surgeon, stated that he
treated appellant in November 2003 due to pain at his former surgical site. He treated appellant
again on April 4, 2005 for a recurrence of pain with work.
In a June 21, 2007 medical note, Dr. David Driban, Board-certified in family medicine,
stated that he had treated appellant since February 5, 2005. He reported that in 1999 appellant
was diagnosed with bronchogenic lung cancer and underwent curative surgery with left upper
lung lobectomy. Dr. Driban opined that appellant suffered left back and side pain in his surgery
location due to a 1999 work injury where he was lifting cardboard boxes over his head. He
stated that appellant had intermittent pain since the injury and still continued to experience
problems.
On March 26, 2008 Dr. Ikeda reported appellant’s complaints of chronic left chest pain
near his previous surgical site beginning after he returned to work 10 years prior. Appellant
stated that his pain was caused by lifting heavy objects and that he still continued to experience
1

It is unclear from the record what date appellant returned to full duty.

2

the same pain. Physical examination revealed a well-healed surgical site and pinpointed pain in
the chest in the midline on the thoracotomy side. A magnetic resonance imaging (MRI) scan had
negative results.
On May 7, 2004 Dr. Anthony Curci, an osteopath, stated that appellant was currently
under his care and that he was not to work any evening hours due to multiple medical problems.
By decision dated April 16, 2008, the Office denied modification of the September 10,
2007 decision, finding that appellant did not submit sufficient medical opinion to establish that
he sustained a recurrence of disability causally related to the November 25, 1998 employment
injury.
On October 28, 2008 appellant filed a request for reconsideration. He stated that he
continued to experience recurrences of the pain he experienced in 1998 and that he was taking
prescriptions for pain. Appellant contended that the submitted medical evidence showed that
lifting heavy objects over his head after major surgery caused pain at the surgical site.
In a March 7, 2001 letter, Dr. Ikeda advised that appellant underwent surgery on
January 15, 1998 for lung cancer and that he would follow-up with treatment every six months.
On May 2, 2001 he reported appellant’s complaints of continued pain at the thoracotomy site but
only during hard labor. Chest x-rays did not show any evidence of recurrence and physical
examination did not reveal any abnormalities. Dr. Ikeda provided a prescription note indicating
that appellant could work light duty with no heavy mopping for long periods. On October 17,
2001 he advised that appellant still experienced occasional chest discomfort after his
thoracotomy three and a half years ago. Physical examination was essentially unremarkable and
a chest x-ray was adequate without evidence of recurrence.
In a February 26, 2003 report, Dr. Ikeda stated that appellant continued to have recurring
episodes of pain sporadically since his surgery on January 15, 1998. He stated that he
experienced a recurring episodic condition and that he would be required to be off of work
intermittently whenever he experienced left chest pain.
In reports dated February 27, 2003 through March 22, 2004, Dr. Curci diagnosed lung
cancer, chronic obstructive pulmonary disorder and pleurodynia beginning in 1997 and lasting
for an unknown duration. He opined that appellant would occasionally be disabled due to the
condition and that he would experience four to six episodes of disability a year during which
time he would be unable to perform work of any kind.
On June 1, 2005 Dr. Driban stated that appellant was partially disabled from June 1
through July 1, 2005 due to pleurodynia secondary to lung surgery for lung cancer. He indicated
that the condition was life long. Dr. Driban provided work restrictions including a total
limitation on lifting, carrying, pushing, pulling and reaching over the shoulder due to back and
chest pain and shortness of breath. He also limited appellant’s sitting and standing to four hours
a day due to back spasms.
In a 2005 medical report, Dr. John J. Kelly, a Board-certified internist, stated that
appellant was discharged from the hospital on September 14, 2005 following an episode of chest
pain. Appellant reported ongoing chronic, left-sided, pleuritic-type chest discomfort following
3

the resection of his lung cancer in the left lower lobe. He also reported some shortness of breath
in the past couple weeks and dizziness and lightheadedness over the past couple days. Dr. Kelly
noted that appellant’s symptoms appeared to be coming on with work-related exertion activities.
He stated that appellant underwent an exercise cardiolite stress test on September 14, 2005.
Appellant achieved greater than 85 percent of his predicted maximum heart rate and no
myocardial perfusion abnormalities were found. However, his ejection fraction was low-tonormal at 42 percent. Dr. Kelly attached a copy of the cardiolite stress test report.
In a January 23, 2009 decision, the Office denied modification of the prior decisions on
the grounds that appellant did not submit sufficient medical evidence to establish that he
sustained a recurrence of his employment-related thoracic strain. It noted that the medical
evidence addressed follow-up treatment of appellant’s unrelated surgical procedure but did not
discuss the presence of objective finds related to the November 25, 1998 employment injury.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”2 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable, and probative evidence that the disability for which he claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.3 Where no such rationale is present,
medical evidence is of diminished probative value.4
A recurrence of a medical condition is defined in the Office’s procedure manual as “the
documented need for further treatment of the accepted condition when there has been no work
stoppage.”5
ANALYSIS
The Office accepted that appellant sustained a right thoracic spine strain on
November 25, 1998 while lifting cardboard boxes into a dumpster at work. Appellant returned
to light duty on December 3, 1998 and several months later returned to full duty. The Office
closed appellant’s case on January 19, 1999. The issue is whether appellant established that he

2

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

5

J.F., 58 ECAB 124 (2006); Mary A. Ceglia, 55 ECAB 626, 629 (2004); Federal (FECA) Procedure Manual, Part
2 -- Claims, Recurrences, Chapter 2.1500.3(a) (January 1998).

4

subsequently experienced a recurrence causally related to his November 25, 1998 employment
injury. The Board finds he has not met his burden of proof.
Appellant submitted medical reports from Dr. Ikeda who stated that appellant underwent
surgery for lung cancer on January 15, 1998 and reported complaints of recurring pain at the
thoracotomy site, particularly during hard labor. Dr. Ikeda stated that appellant experienced
episodic conditions of pain that would require him to be off work intermittently. He treated
appellant for pain at the former surgical site in November 2003 and again on April 4, 2005 for a
recurrence of pain with work. In a March 26, 2008 report, Dr. Ikeda relayed appellant’s
complaints of continuing chronic left chest pain near his previous surgical site beginning after he
returned to work 10 years prior. Appellant reported that the pain was caused by lifting heavy
objects. Physical examination revealed pinpoint pain in the chest on the thoracotomy side.
The Board finds that Dr. Ikeda’s medical reports are insufficient to establish appellant’s
claim as he did not provide an explanation, supported by medical rationale, of how appellant’s
recurrent episodes of pain or any resulting disability was related to the November 15, 1998 injury
or the accepted thoracic strain.6 None of Dr. Ikeda’s reports provide a firm medical diagnosis to
account for the reported pain symptoms.7 On March 26, 2008 he noted appellant’s complaints
that his pain was caused by heavy lifting. However, appellant’s belief that his employment
caused or aggravated his condition is not sufficient to establish causal relationship.8 Dr. Ikeda
stated that appellant experienced a recurrence of pain with work on April 4, 2005 and reported
that he primarily experienced pain with hard labor. Here, it appears as though he is relating
appellant’s condition and resulting pain symptoms to appellant’s employment activities after
returning to work subsequent to his injury. The Board has held that, if a medical condition or
disability results from exposure to new work factors after a claimant returned to work, the chain
of causation from the accepted injury is broken and an appropriate new claim should be filed.9
Therefore, Dr. Ikeda’s opinions that appellant’s condition is related to his employment activities
after returning to work are not sufficient to establish appellant’s recurrence claim as they
implicate a new injury.
In a May 7, 2004 medical report, Dr. Curci stated that appellant was not to work any
evening hours due to multiple medical problems. In medical reports dated February 27, 2003
through March 22, 2004, he diagnosed lung cancer, chronic obstructive pulmonary disorder and
pleurodynia. Dr. Curci opined that appellant would, intermittently, be totally disabled due to his
conditions. He did not address, however, the November 25, 1998 employment injury, or provide
an opinion as to the cause of the diagnosed conditions or address how they were related to the
accepted thoracic strain. Dr. Curci did not express any opinion that appellant’s intermittent
disability was related to his employment injury. As he did not opine that a causal relationship

6

See Annie L. Billingsley, 50 ECAB 210 (1998).

7

See C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); Robert Broome, 46 ECAB 276 (1994).

8

See Ruby I. Fish, 46 ECAB 276 (1994).

9

See Phillip L. Barnes, 55 ECAB 426 (2004).

5

existed between the diagnosed conditions and the November 25, 1998 employment injury, his
reports do not support appellant’s recurrence claim.10
On June 1, 2005 Dr. Driban stated that appellant was partially disabled due to
pleurodynia secondary to his lung cancer surgery and that the condition was life long. He also
provided work restrictions. This report is also insufficient to establish appellant’s recurrence
claim. The only condition diagnosed by Dr. Driban was that of pleurodynia. He did not relate
this condition to appellant’s employment injury, but rather stated that it was secondary to
appellant’s nonwork-related cancer surgery. Dr. Driban did not address whether appellant
required either further medical treatment or had any disability due to her November 25, 1998
thoracic strain. Thus, his opinion is of diminished probative value.11
In a June 21, 2007 medical note, Dr. Driban stated that in 1999 appellant suffered left
back and side pain in his surgery location due to a work injury were he was lifting cardboard
boxes over his head. He opined that appellant continued to suffer intermittent pain since the
injury. This report is also insufficient to establish appellant’s claim. Although Dr. Driban
described the employment injury and opined that appellant continued to suffer intermittent pain,
he did not provide a diagnosis of appellant’s condition to account for the pain symptoms.12 He
did not describe the history of appellant’s employment injury, including whether it had worsened
or contributed to a new condition over the years, or otherwise explain how the accepted 1998
thoracic spine strain continued to cause pain or disability almost 10 years after it occurred.13
In a 2005 medical report, Dr. Kelly stated that appellant was discharged from the hospital
on September 14, 2005 after an episode of chest pain. Appellant reported ongoing chronic
pleuritic-type chest discomfort following his surgery for lung cancer as well as shortness of
breath, dizziness and light headedness. Dr. Kelly noted that appellant’s symptoms appeared to
be coming on with work-related exertion activities.
Dr. Kelly did not provide a specific diagnosis or present any medical evidence bridging
the symptoms of appellant’s present condition and the November 25, 1998 thoracic strain.14
Although he noted that appellant’s symptoms appeared to be related to exertion activities at
work, the only relevant issue is whether appellant experienced a spontaneous change in a
medical condition resulting from his November 25, 1998 employment injury. As noted if
appellant sustained an injury due to subsequent work activities after his injury, his claim does not
meet the definition of a recurrence but implicates a new injury.15 Dr. Kelly did not provide a
rationalized medical opinion explaining whether appellant was experiencing a diagnosed

10

See Theresa L. Andrews, 55 ECAB 719 (2004).

11

See Richard A. Neidert, 57 ECAB 474 (2006).

12

See Robert Broome, supra note 7.

13

See Cecelia M. Corley, 56 ECAB 662 (2005).

14

See Mary A. Ceglia, 55 ECAB 626 (2004).

15

See Phillip A. Barnes, supra note 9.

6

condition related to his November 25, 1998 employment injury. Thus, his report does not
establish appellant’s claim.16
The Board finds that appellant did not submit sufficient medical evidence establishing
that he sustained a recurrence of medical condition or any resulting disability casually related to
his November 25, 1998 employment injury.
On appeal, appellant contends that the employing establishment required him to perform
dangerous tasks six months after he underwent lung surgery and that he worked in a stressful
environment. These arguments pertain to matter over which there is no final Office decision.
The issue on appeal is whether appellant sustained a recurrence of his November 28, 1998
traumatic injury.
CONCLUSION
The Board finds that appellant did not establish that he sustained a recurrence of
disability or a recurrence of medical condition on or after January 19, 1999 causally related to his
November 25, 1998 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
16

See Carmen Gould, 50 ECAB 504 (1999).

7


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
White Plains, NY, Employer
)
_________________________________________ )
M.B., Appellant

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-43
Issued: July 18, 2011

Case Submitted on the Record

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

JURISDICTION
On September 20, 2010 appellant filed a timely appeal of a July 23, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) finding that her request for reconsideration
was untimely and failed to show clear evidence of error. Because more than one year has
elapsed since the most recent merit decision dated August 18, 2006, and the filing of this appeal
on September 20, 2010, the Board lacks jurisdiction to review the merits of the claim.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 July 23, 2010 nonmerit decision.3

1

The Board has jurisdiction over final decisions of OWCP. See 20 C.F.R. § 501.2(c). For Office decisions
issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of Office decisions issued
on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R. § 501.3(e) (2008).
2

5 U.S.C. § 8101 et seq.

3

The record also contains a July 23, 2010 decision related to attorney’s fees. This decision is not being appealed.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a September 23, 2005
decision, the Board affirmed OWCP’s termination of compensation benefits effective March 22,
2003 and also found that appellant had not established that her condition on or after March 22,
2003 was causally related to her accepted work injury.4 In a December 4, 2008 decision, the
Board affirmed an October 16, 2007 OWCP decision that denied appellant’s reconsideration
request without a merit review of the claim.5 The facts and the history contained in the prior
appeals are incorporated by reference.
In a letter dated June 29, 2010, appellant, through her representative, requested
reconsideration. She asserted that OWCP failed to accept all of appellant’s injuries as
compensable. Appellant alleged that all of her conditions were related to her accepted
February 29, 2000 employment injury. She also alleged that OWCP did not meet its burden of
proof to terminate her compensation benefits as she continued to suffer from her employmentrelated injuries. In support of her arguments, appellant submitted new medical evidence.
In a January 20, 2010 report, Dr. Sana L. Bloch, a Board-certified neurologist and
treating physician, noted that she reviewed appellant’s history of injury and treatment. She also
examined appellant on January 3, 2010 and related that appellant had pain on rotation of the neck
to either side, spasm of the cervical muscles on the left side. Dr. Bloch advised that appellant
continued to have a failed back syndrome which caused severe pain radiating down the left arm.
She stated that appellant could not engage in gainful employment as she could not do any lifting,
twisting or turning. Dr. Bloch opined that appellant was currently permanently and totally
disabled due to her employment. She advised that appellant’s condition was “more probably
than not caused by the fact of federal employment.” Dr. Bloch noted that her opinion was
previously documented in her prior reports.
In a decision July 23, 2010, OWCP denied appellant’s request for reconsideration for the
reason that it was not timely filed and failed to present clear evidence of error.

4

Docket No. 05-331 (issued September 23, 2005), petition for recon. denied (issued February 3, 2006).

5

Docket No. 08-749 (issued December 4, 2008).

2

LEGAL PRECEDENT
Section 8128(a) of FECA6 vests OWCP with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”7
OWCP’s imposition of a one-year time limitation within which to file an application for
review as part of the requirements for obtaining a merit review does not constitute an abuse of
discretionary authority granted OWCP under section 8128(a).8 This section does not mandate
that OWCP review a final decision simply upon request by a claimant.
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a). Thus, section 10.607(a) of the implementing regulations
provide that an application for reconsideration must be sent within one year of the date of
OWCP’s decision for which review is sought.9
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.10
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8128(a).

8

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

9

20 C.F.R. § 10.607(a).

10

Id. at § 10.607(b).

11

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

3

a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision. The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.12
ANALYSIS
In its July 23, 2010 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its most recent merit decision on August 18, 2006.
Counsel’s June 29, 2010 letter requesting reconsideration was submitted more than one year after
the August 18, 2006 merit decision and was, therefore, untimely.
In accordance with Board precedent and internal guidelines, OWCP properly proceeded
to perform a limited review to determine whether appellant’s application for review showed clear
evidence of error, which would warrant reopening appellant’s case for merit review under
section 8128(a) of FECA, notwithstanding the untimeliness of her application. OWCP reviewed
the evidence submitted by appellant in support of her application for review, but found that it did
not clearly show that OWCP’s prior decision was in error.
The Board finds that the evidence and argument submitted by appellant in support of her
application for review does not raise a substantial question as to the correctness of OWCP’s
decision and is insufficient to demonstrate clear evidence of error. The August 18, 2006 decision
denied modification of prior decisions that terminated appellant’s benefits effective March 22,
2003 and denied any continuing work-related condition thereafter. With the June 20, 2010
request for reconsideration, appellant alleged that OWCP failed to accept all of her injuries as
compensable and that they were all related to the February 29, 2000 employment injury. The
Board notes that this argument does not establish clear evidence of error. OWCP terminated
appellant’s compensation and benefits on the grounds that she no longer had any injury-related
disability or continuing employment-related residuals after March 22, 2003 causally related to
her employment-related injury. It considered the medical evidence in reaching its decision and
the Board’s prior decision affirmed OWCP’s decision. Counsel did not show any error by
OWCP in its August 18, 2006 decision that raises a substantial question as to the correctness of
OWCP’s decision.
To establish clear evidence of error, it is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion. Thus, appellant’s lay opinion13 that
additional medical conditions were work related does not establish clear evidence of error.
Likewise, appellant’s assertion that OWCP did not meet its burden of proof to terminate
appellant’s compensation benefits as appellant continued to suffer from her employment-related
injuries does not establish clear evidence of error. OWCP accorded special weight to the opinion
of the impartial medical examiners, when it terminated appellant’s compensation benefits. The
12

Id.

13

See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical opinion, in
general, can only be given by a qualified physician).

4

Board previously affirmed OWCP’s determination. Appellant has not presented evidence or
argument that raises a substantial question concerning the correctness of OWCP’s decision.
Appellant also submitted a January 20, 2010 report from Dr. Bloch who opined that
appellant had additional employment-related injuries and was permanently and totally disabled
as a result of her employment injury. This report is insufficient to establish clear evidence of
error. The Board notes that Dr. Bloch was on one side of conflict that was resolved by the
impartial medical examiner. Additional reports from a physician on one side of the conflict that
is properly resolved by a referee physician are generally insufficient to overcome the weight
accorded the referee’s report or create a new conflict.14 Even evidence sufficient to create a
conflict would not, establish clear evidence of error. The Board has held that the term “clear
evidence of error” is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that OWCP made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which
if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error and would not require a review of a case.15
The Board finds that the evidence and argument submitted on reconsideration is
insufficient to shift the weight of the evidence in favor of appellant’s claim and raise a
substantial question that OWCP erred in its August 18, 2006 decision. Therefore, the Board
finds that appellant has not presented clear evidence of error.
On appeal, appellant repeated arguments made in his reconsideration request, but as
noted above, they are not sufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

14

See Harrison Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).

15

Annie L. Billingsley, 50 ECAB 210 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the July 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0093
Issued: October 9, 2018

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 10, 2017 appellant filed a timely appeal from an April 14, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment of his left lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On September 28, 2006 appellant, then a 52-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that, on that date, his left leg got caught on an exposed surge protector wire
while at work, causing injury to his left knee. He stopped work on September 29, 2006. OWCP
1

5 U.S.C. § 8101 et seq.

accepted the claim for tear of medial meniscus of left knee and sprain of left knee and leg.
Appellant returned to light-duty work for four hours a day on November 1, 2006, but stopped work
the same day. OWCP accepted a recurrence of total disability commencing November 1, 2006.
Appellant underwent OWCP-authorized arthroscopic debridement of torn left medial
meniscus and removal of a pathological medial patellar plica on January 11, 2007, which was
performed by Dr. Steven M. Erlanger, a Board-certified orthopedic surgeon. Dr. Erlanger noted
that “there was a large area of complete thickness, articular cartilage loss on the medial femoral
condyle involving a large portion of the weight bearing area.” The postoperative diagnosis was
torn left medial meniscus, pathological medial patellar plica, and extensive medial femoral
osteoarthritis. Appellant returned to full-duty regular work on March 12, 2007.
On October 20, 2010 appellant filed a claim for a schedule award (Form CA-7). OWCP
advised him, by development letter dated November 5, 2010, of the requirements necessary for
establishing permanent impairment to a scheduled member based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2
In a November 22, 2010 report, Dr. Erlanger noted that appellant had “20 percent
permanent disability secondary to the torn medial meniscus with associated arthritis.”
By decision dated May17, 2011, OWCP denied appellant’s schedule award claim. It found
that the medical evidence of record did not establish that he had reached maximum medical
improvement (MMI), nor did it contain an impairment rating based on the A.M.A., Guides.
On May 10, 2012 appellant requested reconsideration.
In a June 6, 2011 report, Dr. Erlanger provided an impression of status post left partial
medial meniscectomy with osteoarthritis and permanent 20 degrees loss of flexion. He opined that
appellant reached MMI and had 20 percent permanent impairment of the left leg.
In an April 23, 2012 report, Dr. Erlanger opined that appellant was “25 percent disabled.”
By decision dated August 6, 2012, OWCP denied modification of its May 17, 2011
schedule award denial. It found that the medical evidence was insufficient to establish that the
accepted conditions had reached a fixed and permanent state. OWCP further found that there was
insufficient evidence of permanent impairment to a scheduled member or function of the body
under 5 U.S.C. § 8107 or 20 C.F.R. § 10.404.
On August 5, 2013 appellant requested reconsideration.
In a July 22, 2013 report, Dr. Erlanger noted the history of the September 29, 2006 work
injury and that he underwent arthroscopic partial medial meniscectomy and chondroplasty for
grade 3 arthritic changes in the medial compartment. He opined that appellant had 15 percent
permanent impairment of the left lower extremity. Under Table 16-3, Dr. Erlanger advised that
2

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

2

appellant was class 1 grade E for 13 percent loss of use of the lower extremity for meniscal injury.
He further opined that appellant had an additional two percent impairment for primary
osteoarthritic change three millimeter cartilage under Table 15-3 class 1.
On August 23, 2013 OWCP referred a statement of accepted facts (SOAF) and the medical
record to its medical adviser to determine whether appellant attained MMI and established
permanent impairment under the sixth edition of the A.M.A., Guides.
In a September 7, 2013 report, an OWCP district medical adviser (DMA) reviewed the
SOAF. He indicated that Dr. Erlanger’s July 22, 2013 impairment report made no sense. First,
the DMA noted that, under Table 16-3, a class 1 grade E impairment rating of 13 percent was for
both partial medial and lateral menisectomy. However, appellant only had a partial medial
menisectomy. The DMA noted that, under Table 16-3, the highest impairment for a partial medial
menisectomy was three percent. Second, under Table 16-3, page 511, there was no two percent
impairment listed for a primary knee joint osteoarthritis, class 1. Rather, the impairment range
under class 1 was five through nine percent, dependent on the grade modifiers. The DMA advised
that the A.M.A., Guides used only the diagnosis which yielded the highest impairment value. He
recommended that either OWCP secure a supplemental opinion from Dr. Erlanger, or refer
appellant for a second opinion examination from an orthopedic surgeon familiar with the
application of the sixth edition of the A.M.A., Guides.
In an October 8, 2013 letter, OWCP notified Dr. Erlanger of the inconsistencies in his
July 22, 2013 impairment report. It requested that he provide an updated medical report which
was based on the procedures outlined in the sixth edition of the A.M.A., Guides. Dr. Erlanger was
afforded 30 days to provide an updated report. No additional evidence was received.
By decision dated November 12, 2013, OWCP denied modification of the August 6, 2012
decision as the medical evidence was insufficient to support a schedule award claim.
On August 15, 2014 appellant requested reconsideration.
In a March 3, 2014 report, Dr. Erlanger indicated that appellant had arthritic changes and
a medial meniscal tear from the September 29, 2006 work injury. He indicated that appellant
underwent arthroscopic debridement of a torn left medial meniscus and chondroplasty. At surgery
grade 3 arthritic changes were present in the medial compartment. Dr. Erlanger reported that
x-rays of the left knee showed severe medial compartment arthritis with one millimeter of cartilage
remaining on the medial side. He opined that appellant had reached MMI. Dr. Erlanger noted that
appellant’s osteorarthritis of the left knee was a more significant disability than the meniscal tear.
Under Table 16-3, he opined that appellant had 30 percent left lower extremity permanent
impairment due to one millimeter cartilage interval and flexion contracture.
In an August 26, 2014 report, a DMA reviewed Dr. Erlanger’s March 3, 2014 impairment
report. He indicated that Dr. Erlanger failed to identify the class and provide the grade modifiers
along with the net modifier adjustment calculation in determining that appellant had 30 percent
lower extremity permanent impairment. Given the absence of Dr. Erlanger’s calculations, the
DMA recommended referral to an OWCP second opinion physician familiar with the A.M.A.,
Guides.

3

In a September 29, 2014 report, Dr. Erlanger indicated that x-rays of appellant’s left knee
were obtained and revealed decreased joint space. He opined that appellant had 15 percent
permanent impairment of the left lower extremity. Under Table 16-3, Dr. Erlanger advised that
appellant was class 1 grade E for 13 percent loss of use of the lower extremity for meniscal injury.
He further opined that appellant had an additional two percent impairment for primary
osteoarthritic change three millimeter cartilage under Table 15-3 class 1.
By decision dated November 13, 2014, OWCP denied modification of its prior decision of
November 12, 2013. It noted that the basis for Dr. Erlanger’s impairment findings in his
September 29, 2014 were unexplained.
In a November 2, 2015 letter, Dr. Erlanger noted that appellant had reached MMI. Using
the default grade C under Table 16-3, for a one millimeter cartilage interval and flexion
contracture, he opined that appellant had 30 percent left lower extremity impairment. Dr. Erlanger
also suggested that appellant be examined by an OWCP physician who was more familiar with the
schedule award process.
In a December 16, 2015 report, a DMA reviewed the medical record and indicated that he
was unable to provide either a date of MMI or a permanent impairment determination. He advised
that there was insufficient information to assign functional history or physical examination
modifiers and that the x-ray report did not provide adequate information to place appellant into a
DRE class for arthritis. The DMA further indicated that there was no evidence to suggest that the
arthritis being evaluated was caused by the accepted condition and injury.
On February 18, 2016 OWCP referred appellant, along with the medical record and a
SOAF to Dr. William A. Somers, a Board-certified orthopedic surgeon, for a second opinion
impairment evaluation.
In a March 15, 2016 report, Dr. Somers noted the history of the September 28, 2006 work
injury, the medical records, and the SOAF. He noted that, while there were no diagnostic studies
presented for review, a one millimeter cartilage space in the left knee was documented in a clinic
note describing x-rays dated March 3, 2014, an August 24, 2014 DMA note, and a November 2,
2015 letter. Dr. Somers presented examination findings and provided an impression of
degenerative arthritis left knee aggravated by the September 28, 2006 injury and degenerative tear
left medial meniscus by direct cause or aggravation related to the September 28, 2006 work injury.
He indicated that it was evident that degenerative changes were present in the knee at the time of
appellant’s original injury and surgery in 2006/2007 and that all symptoms were brought on by the
September 28, 2006 work injury. Dr. Somers found that, under Table 16-3, appellant fell into class
3, grade C for primary diagnosis of degenerative arthritis which equaled 30 percent left lower
extremity impairment. He noted that appellant had functional history grade modifier of 1 and
physical examination grade modifier of 2. Using the net adjustment formula, Dr. Somer’s found
modifiers totaling 1, which equated to a grade D or 32 percent impairment rating of the left lower
extremity. He indicated that it was impossible to give a definite date of MMI, but it should have
been reached mid-April to mid-May 2007.
In a June 14, 2016 report, a different DMA reviewed the SOAFs, the medical record, and
Dr. Somer’s March 15, 2016 impairment rating. He noted that the operative report indicated that

4

appellant had a “large area of complete thickness articular cartilage loss on the medial femoral
condyle involving a large portion of the weight bearing area” at the time of surgery on January 11,
2007, which he indicated preexisted the accepted employment injury. The DMA noted that
appellant’s accepted conditions did not include osteoarthritis of the left knee and did not include
the diagnosis of a temporary or permanent aggravation of osteoarthritis of the left knee. He
therefore opined that an impairment rating could only be based on a diagnosis of meniscal injury,
partial medial meniscectomy, and not primary osteoarthritis of the left knee. Under Table 16-3,
the DMA opined that appellant was class 1 with grade C with a default impairment value of two
percent for partial medial meniscectomy. The DMA indicated that the functional history had zero
modifier as appellant had normal gait with no pain behaviors. He assigned grade 2 modifiers for
physical examination clinical studies adjustment. Using the net adjustment formula, the DMA
found net adjustment of 1, for a final impairment rating of the left lower extremity of two percent.
He found the MMI was attained April 2012.
On July 13, 2016 OWCP found that conflict in medical opinion existed regarding the
permanent impairment rating and referred appellant to Dr. Donald Getz, a Board-certified
orthopedic surgeon, for an impartial medical impairment evaluation. It noted that Dr. Erlanger,
the attending physician, indicated that appellant had 30 percent permanent impairment;
Dr. Somers, the second opinion physician, advised appellant had 32 percent permanent
impairment; and the DMA disagreed with both physicians and opined appellant had 2 percent
permanent impairment.
In a September 15, 2016 report, Dr. Getz noted the history of the September 28, 2006
employment injury. He indicated that the November 2, 2006 magnetic imaging resonance (MRI)
scan revealed torn medial meniscus, but did not mention arthritis. Dr. Getz noted that description
of pathology at the January 11, 2007 arthroscopy also did not mention arthritis. He indicated that
the postoperative diagnoses included a torn left medial meniscus, medial plica, and osteoarthritis.
Dr. Getz also noted, that while the x-ray report was not available, the x-rays seen on March 3, 2014
x-rays showed severe medial compartment arthritis with one millimeter cartilage remaining on the
medial side of the left knee.
Dr. Getz indicated that, since appellant declined a total knee arthroplasty, MMI was
reached on approximately March 3, 2014. He opined that appellant had end-stage osteoarthritis of
the left knee. Dr. Getz noted that, although mild osteoarthritis preexisted the employment injury,
he opined that it was aggravated and accelerated by the employment incident and eventually
resulted in advanced osteoarthritis of the left knee. Using the sixth edition of the A.M.A., Guides,
he opined that appellant had 28 percent permanent impairment of the left lower extremity. Under
Table 16-3, Dr. Getz found that appellant had class 3 for primary knee joint arthritis, with a default
value of 30 percent impairment. He assigned a grade modifier of 2 for functional history. Utilizing
the net adjustment formula, Dr. Getz found a net adjustment factor of -2, which equated to a final
impairment of 28 percent.
Dr. Getz also commented as to why he felt the DMA’s two percent impairment rating which
excluded the advanced osteoarthritis as preexisting was incorrect. He indicated that he reviewed
the operative report four times and did not find a statement in the pathology description of “a large
area of complete thickness articular cartilage loss on the medial femoral condyle involving a large
portion of the weight-bearing area.” Dr. Getz also indicated that there was no mention of this

5

alleged advanced osteoarthritis (or any arthritis) on preoperative imaging studies. He then opined
that the two percent impairment rating was incorrect. Dr. Getz supported his opinion with medical
rationale that single joint osteoarthritis was usually associated with a traumatic event.
In a December 24, 2016 report, a DMA reported that he disagreed with Dr. Getz’ report
which excluded an impairment rating based on an advanced osteoarthritis as a preexisting
condition. He indicated that the January 11, 2007 operative report clearly indicated that there was
“a large area of complete thickness articular cartilage loss on the medial femoral condyle involving
a large portion of the weight-bearing area” and it was unclear how Dr. Getz could have read the
operation report four times and not seen it.
The DMA noted that he agreed with Dr. Getz’ impairment calculation of 28 percent left
lower extremity impairment if acceptance of the claim were expanded to include permanent
aggravation of osteoarthritis of the left knee. Otherwise, based on the accepted work conditions,
appellant’s impairment rating would be two percent based on the partial medial meniscectomy.
The DMA further noted that MMI was April 2012.
By decision dated April 14, 2017, OWCP granted appellant a schedule award of two
percent permanent impairment to his left leg. The award ran for 5.76 weeks from April 1 to
May 11, 2012 (fraction of a day).
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.3 Neither FECA nor its
implementing regulations specify the manner in which the percentage of impairment for a schedule
award shall be determined. For consistent results and to ensure equal justice for all claimants
OWCP has adopted the A.M.A., Guides, as the uniform standard applicable to all claimants.4 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition as class of diagnosis (CDX), which is then adjusted by grade modifiers based

3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule award
is payable and the maximum number of weeks of compensation to be paid; additional members of the body are found.
4

20 C.F.R. § 10.404(a).

5
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
6
A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.

6

on functional history (GMFH), physical examination (GMPE), and clinical tudies (GMCS).7 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee,
the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee Regional
Grid) beginning on page 509.9 After the CDX is determined from the Knee Regional Grid
(including identification of a default grade value), the net adjustment formula is applied using the
GMFH, GMPE, and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).10 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations of
modifier scores.11
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.12 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical adviser
providing rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained tear of medial meniscus of left knee and sprain of
left knee and leg. Appellant subsequently filed a claim for a schedule award. OWCP issued him
a schedule award for two percent permanent impairment of his lower extremity based on a partial
medial menisectomy.

7

Id. at 499.

8

Id.

9

Id. at 509-11

10

Id. at 515-22.

11

Id. at 23-28.

12

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

13

Supra note 5 at Chapter 2.808.5d (March 2017).

14
See supra note 5 at Chapter 2.808.6(f) (March 2017). See C.K., Docket No. 09-2371 (issued August 18, 2010);
Frantz Ghassan, 57 ECAB 349 (2006).

7

FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.15
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”16 Where OWCP has referred the case to an impartial medical specialist to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and
based upon a proper factual background, must be given special weight.17
The Board finds that OWCP improperly found that there was a conflict in the medical
opinion evidence regarding appellant’s permanent impairment. In July 2016, OWCP had advised
that it was declaring a conflict in the medical opinion evidence. It noted that Dr. Erlanger, the
attending physician, provided 30 percent permanent impairment rating, Dr. Somers, the second
opinion physician, provided 32 percent permanent impairment rating, and the DMA disagreed with
both physicians and provided 2 percent permanent impairment rating.
Dr. Erlanger, however, did not provide a report which was of sufficient probative value to
have created a conflict in the medical evidence with either Dr. Somers or the DMA. In his reports,
he cited to various tables of the A.M.A., Guides, but he failed to explain how grade modifiers were
applied and thus how the final impairment rating was derived. Additionally, Dr. Erlanger’s finding
that appellant reached MMI is vague as he did not provide any explanation for his finding. His
report is of limited probative value with respect to appellant’s permanent impairment because he
did not adequately explain how his impairment ratings were derived under the standards of the
sixth edition of the A.M.A., Guides.18
Under FECA, a conflict in the medical opinion evidence may only be declared between an
OWCP-designated physician and the employee’s physician. There is no provision for finding a
conflict in the medical opinion evidence between two OWCP-designated physicians.19
Due to the lack of a conflict in the medical opinion evidence between a treating physician
and an OWCP physician, Dr. Getz would be considered an OWCP referral physician.20 As such,
his report would not be given special weight with respect to the matter of permanent impairment
based on impartial medical specialist status.21 However, it can be considered for its own intrinsic

15

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

16

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

17

F.C., Docket No. 14-0560 (issued November 12, 2015); Gary R. Sieber, 46 ECAB 215, 225 (1994).

18

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that 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 permanent impairment).
19

See supra note 15.

20

See e.g., L.Y., Docket No. 16-0012 (issued May 17, 2016) (where an impartial medical specialist was converted
to an OWCP referral physician due to the lack of a conflict in the medical opinion evidence).
21

See supra note 17.

8

value.22 In his September 15, 2016 report, Dr. Getz opined that appellant reached MMI March 3,
2014 and that appellant had 28 percent permanent impairment of the left lower extremity based on
primary knee joint arthritis. While OWCP did not accept a left knee arthritic condition, preexisting
impairment to the scheduled member is included when determining entitlement to a schedule
award.23
However, Dr. Getz provided inconsistent information regarding appellant’s arthritic
condition and a contradictory opinion regarding appellant’s permanent impairment. In his
September 15, 2016 report, he opined that appellant had preexisting mild osteoarthritis which was
aggravated and accelerated by the employment injury. Dr. Getz noted that the January 11, 2007
arthroscopy report included a postoperative diagnoses of osteoarthritis, but stated that the
description of pathology did not mention arthritis. This in inherently inconsistent. Dr. Getz also
indicated that there was no statement in the pathology description of “a large area of complete
thickness articular cartilage loss on the medial femoral condyle involving a large portion of the
weight-bearing area.” However, the Board notes that the January 11, 2007 surgical report does
contain the referenced statement in the pathology description. Dr. Getz then offered an impairment
rating based on advanced knee joint osteoarthritis. In light of the inconsistent nature of his
statements and his opinion, the Board finds that his report requires clarification.
Additionally, the Board notes that the DMA incorrectly advised that Dr. Getz’ impairment
calculation of 28 percent permanent impairment would be correct only if the claim was amended
to include permanent aggravation of osteoarthritis of the left knee. As previously noted,
impairment ratings for schedule awards include those conditions accepted by OWCP as job related,
and any preexisting permanent impairment of the same member or function.24
It is well established that proceedings under FECA are not adversarial in nature, and while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.25 Once OWCP undertook development of the
evidence by referring appellant to a second opinion physician and an OWCP medical adviser, it
had an obligation to do a complete job and obtain a proper evaluation and report that would resolve
the issue in this case.26 The Board will therefore set aside OWCP’s April 14, 2017 decision and
remand the case for Dr. Getz, followed by a review of a medical adviser, to conduct a proper
analysis under the A.M.A., Guides in order to determine if appellant has greater than two percent
left lower extremity permanent impairment based upon his preexisting arthritis of the left knee as
well as his tear of the medial meniscus of the left knee. After such further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for a lower extremity
schedule award.

22

See R.H., Docket No. 17-1477 (issued March 14, 2018).

23

See supra notes 12 and 13.

24

Id.

25

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

26

Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

9

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: October 9, 2018
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