United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, NW ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James A. Meserve, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0022
Issued: October 28, 2020

Case Submitted on the Record

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

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from an August 13,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $8,907.41, for which she was without fault, because she
concurrently received FECA wage-loss compensation and Social Security Administration (SSA)
age-related retirement benefits for the period January 1 to June 22, 2019 without an appropriate
offset; (2) whether OWCP properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $424.09 every 28
days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On March 13, 2009 appellant, then a 54-year-old distribution clerk, filed a notice of
recurrence (Form CA-2a) alleging that she sustained additional neck, arm, and shoulder pain on or
before March 3, 2009, due to factors of her federal employment.4 OWCP converted the recurrence
claim as one for a new occupational disease assigned File No. xxxxxx602.
On May 6, 2009 appellant filed a Form CA-2a under OWCP File No. xxxxxx602 alleging
a May 4, 2009 increase in neck and shoulder pain due to factors of her federal employment. She
stopped work on May 4, 2009 and did not return.
On June 10, 2009 OWCP accepted appellant’s claim in File No. xxxxxx602 for cervical
spondylosis without myelopathy. It paid her wage-loss compensation on the supplemental rolls as
of June 20, 2009 and on the periodic rolls as of August 2, 2009.
On April 26, 2011 OWCP expanded acceptance of her claim in File No. xxxxxx602 to
include cervical spondylosis without myelopathy, right rotator cuff syndrome, and allied disorders.
On April 28, 2011 appellant elected to receive FECA compensation benefits.
On November 28, 2012 appellant completed an EN1032 form, which asked that she report
any benefits received from SSA received as part of an annuity under the Federal Employees
Retirement System (FERS), but indicated that she was not to report any benefits received from
SSA on account of employment in the private sector. She responded “No” to the question of
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the August 13, 2019 decision, OWCP received additional evidence. Appellant
also submitted additional evidence on appeal. The Board’s Rules of Procedure provides: “The Board’s review of a
case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not
before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
4

The recurrence claim was originally filed by appellant under OWCP File No. xxxxxx638. In that claim, OWCP
had accepted that on January 1, 2009 appellant sustained a lumbosacral sprain and a left shoulder/upper arm sprain
when she slipped and fell on ice while in the performance of duty.

2

whether she received benefits from SSA as part of an annuity for federal service. Appellant
completed additional EN1032 forms on November 14, 2013, November 15, 2015, November 10,
2016, November 22, 2017, January 9, 2018, and November 8, 2018.
On May 14, 2019 OWCP requested that SSA provide a dual benefits calculation. In a form
dated May 20, 2019, SSA responded that effective January 1, 2019 appellant’s SSA rate with
FERS was $2,012.00 and without FERS was $450.40.
In a June 20, 2019 FERS offset calculation worksheet, OWCP determined that appellant’s
monthly FERS offset was $1,561.80, equivalent to $1,441.66 every 28 days, or $51.49 per day.
OWCP multiplied the $51.49 daily offset by 173, the number of days from January 1 through
June 22, 2019, resulting in a total overpayment amount of $8,907.41.
In a June 20, 2019 letter, OWCP informed appellant that she had been receiving SSA agerelated retirement benefits since January 1, 2019 and that a portion of her SSA benefits were
attributed to her federal service. It found that, if her federal service was not included in her SSA
computation, she would be entitled to $450.40 rather than $2,012.20, and that her monthly FERS
offset was $1,561.80, and the 28-day offset was $1,441.66. OWCP reduced appellant’s 28-day
compensation payments by $1,441.66.
In a preliminary determination dated July 5, 2019, OWCP notified appellant that she had
received an overpayment of compensation in the amount of $8,907.41 because her compensation
benefits had not been reduced for the period January 1 through June 22, 2019, by the portion of
her SSA benefits that were attributable to her federal service and, therefore, she had received a
prohibited dual benefit.
OWCP calculated the overpayment amount by determining the difference between
appellant’s SSA amount with and without FERS for the period January 1 through June 22, 2019.
It noted that her monthly SSA rate was $2,012.20, with a FERS offset of $1,561.80 per month,
$1,441.66 every 28 days, or $51.59 per day. Multiplying the $51.49 daily offset by the 173 days
from January 1 through June 22, 2019 resulted in a total overpayment of $8,907.41. OWCP further
made a preliminary determination that appellant was without fault in the creation of the
overpayment due to the complexity of her benefits situation. It requested that she complete the
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. Additionally, OWCP notified appellant that, within 30 days of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
On July 24, 2019 appellant requested that OWCP make a decision based on the written
evidence. She indicated her disagreement with the fact and amount of the overpayment and
requested waiver of recovery of the overpayment. Appellant asserted that OWCP erred in
calculating the amount of the overpayment because her monthly SSA benefit was $1,766.00 and
not $2,012.00. In support of her assertion, she provided a March 21, 2019 SSA “Notice of Award,”
indicating that her January 2019 payment was $1,327.00 based on her request to receive reduced
retirement benefits due to the FECA offset. An April 5, 2019 SSA letter notes a monthly benefit
payment of $1,766.00.

3

By decision dated August 13, 2019, OWCP finalized its preliminary overpayment
determination and found an overpayment of compensation in the amount of $8,907.41 for the
period January 1 through June 22, 2019 because it had failed to offset appellant’s compensation
payments for the portion of her SSA age-related retirement benefits that were attributable to her
federal service. It found that she was not at fault in the creation of the overpayment, but denied
waiver of recovery as appellant failed to complete the Form OWCP-20. Therefore, the evidence
of record was insufficient to substantiate that recovery would either defeat the purpose of FECA
or be against equity and good conscience. OWCP determined that it would require recovery by
deducting $424.09 from appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 Section 8116 limits the right of an employee to receive compensation.
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.6
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of SSA benefits that are attributable to the federal service of the
employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.8
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
The case record establishes that beginning January 1, 2019, appellant concurrently received
FECA wage-loss compensation and SSA age-related retirement benefits without an appropriate
offset. As noted, a claimant cannot receive concurrent compensation for wage loss and SSA agerelated retirement benefits attributable to federal service for the same period.9 The Board finds
that fact of overpayment is therefore established.

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see B.B., Docket No. 19-0822 (issued February 18, 2020); B.F., Docket No. 18-1345
(issued February 6, 2019).
8

FECA Bulletin No. 97-09 (February 3, 1997); see also M.D., Docket No. 19-1500 (issued February 24, 2020);
G.K., Docket No. 18-0243 (issued August 17, 2018).
9

5 U.S.C. § 8116(d)(2); J.T., Docket No. 18-1791 (issued May 17, 2019).

4

The Board further finds, however, that OWCP improperly calculated appellant’s
overpayment for the period January 1 through June 22, 2019. OWCP determined the $8,907.41
amount of the overpayment based on monthly SSA age-related retirement benefits of $2,012.00.
However, the record contains conflicting evidence regarding the amount of appellant’s monthly
SSA benefits. The May 20, 2019 dual benefits calculation, verified on July 11, 2019, indicated a
$2,012.00 monthly SSA benefit. A March 21, 2019 SSA “Notice of Award” letter noted a monthly
payment of $1,327.00 and an April 5, 2019 SSA “Notice of Award” letter noted a monthly
payment of $1,766.00, both amounts are significantly less than $2,012.00.
A claimant is entitled to an overpayment decision that clearly explains how the amount
was calculated.10 The Board finds that the overpayment decision in this case does not provide
such an explanation.11 Therefore, the amount of the overpayment has not yet been established.
On remand OWCP shall determine the exact amount of the overpayment of compensation.
It shall then issue a new preliminary overpayment determination, with an overpayment action
request form, a Form OWCP-20, and instructions for appellant to provide supporting financial
information. After this and such other further development as deemed necessary, OWCP shall
issue a de novo decision.12
CONCLUSION
The Board finds that fact of overpayment has been established. The Board further finds
that this case is not in posture for decision regarding the amount of the overpayment.

10

L.B., Docket No. 19-1322 (issued January 27, 2020); A.J., Docket No. 18-1152 (issued April 1, 2019); J.W.,
Docket No. 15-1163 (issued January 13, 2016); see also O.R., 59 ECAB 432 (2008) (with respect to overpayment
decisions, OWCP must provide clear reasoning showing how the overpayment was calculated); see Jenny M. Drost,
56 ECAB 587 (2005) (to comply with OWCP’s overpayment procedures, an overpayment decision must contain a
clearly written explanation indicating how the overpayment was calculated).
11

Id.

12
As the case is not in posture for decision regarding the amount of overpayment, the issues of waiver and recovery
of the overpayment are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: October 28, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
IMMIGRATION & CUSTOMS ENFORCEMENT, )
San Antonio, TX, Employer
)
____________________________________________ )
C.H., Appellant

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

Docket No. 08-2246
Issued: May 15, 2009

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 August 14, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decisions dated March 11 and June 30, 2008. Under 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 sustained any permanent impairment of her left upper
extremity causally related to her accepted left carpometacarpal sprain, left wrist sprain, or left
radiocarpal fracture, thereby entitling her to a schedule award.
FACTUAL HISTORY
Appellant, a 52-year-old special agent, injured her left thumb and left wrist on June 19,
2007 when she picked up a heavy box. The Office accepted the claim for left thumb
carpometacarpal sprain, left wrist sprain and left radiocarpal fracture.

On February 7, 2008 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left upper extremity.
In a report dated January 22, 2008, Dr. Thilo R. Weisflog, a specialist in orthopedic
surgery, evaluated the permanent impairment to appellant’s left upper extremity. He noted that
appellant was right-hand dominant and that appellant had a significant history of previous lefthand injury of March 23, 2006 for which appellant had been declared at maximum medical
improvement on September 16, 2006 and had been issued a zero percent left upper extremity
impairment rating. Dr. Weisflog advised that appellant reached maximum medical improvement
for her June 19, 2007 injury on January 22, 2008. He found that appellant had a 12 percent
permanent impairment of the left thumb pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment (fifth edition) (the A.M.A., Guides). Dr. Weisflog
derived this impairment by finding a 12 percent left thumb impairment based on decreased range
of motion. Relying on Figure 16-12 at page 456, he measured 60 degrees range of motion for
joint flexion of the interphalangeal thumb joint flexion, for a one percent impairment; a 39
degree flexion for metacarpophalangeal thumb joint flexion, for a two percent impairment; a
thumb adduction of 4.0 centimeters, for a four percent thumb impairment; radial abduction of 40
degrees, for a two percent thumb impairment; and thumb resistance of 6.0 centimeters, for a
three percent thumb impairment. Dr. Weisflog completed an upper extremity impairment rating
worksheet and converted the 12 percent finger impairment pursuant to conversion Tables 16-1
and 16-2 at page 439 to find a total 5 percent left upper extremity impairment.
In a report dated February 27, 2008, an Office medical adviser reviewed Dr. Weisflog’s
January 22, 2008 report and found a zero percent impairment. He asserted that the A.M.A.,
Guides did not provide any impairment due to strains or sprains. The Office medical adviser
stated that the Office did not recognize those conditions as being permanent in nature and could
not be the basis of an impairment award.
By decision dated March 11, 2008, the Office denied appellant’s claim for a schedule
award. It found that the medical evidence of record did not support that she had sustained an
employment-related permanent impairment.
By letter postmarked April 14, 2008, appellant requested a review of the written record.
By decision dated June 30, 2008, the Office’s Branch of Hearings and Review denied
appellant’s request for a review of the written record. It found that her request was postmarked
April 14, 2008, which was more than 30 days after the issuance of the Office’s March 11, 2008
decision, and that she was not entitled to a review of the record as a matter of right. The Office
considered the matter in relation to the issue involved and denied appellant’s request on the
grounds that the issue was factual and medical in nature and could be addressed through the
reconsideration process by submitting additional evidence.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 sets forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.2 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.3
ANALYSIS
The Board finds that the case is not in posture for decision.
The Office denied appellant’s request for a schedule award based on the Office medical
adviser’s February 27, 2008 impairment evaluation. The Office medical adviser reviewed the
January 22, 2008 report of Dr. Weisflog and determined that appellant did not sustain any
permanent impairment to her left thumb. He stated that the A.M.A., Guides do not provide any
impairment due to strains or sprains and that the Office does not recognize these conditions as
being permanent in nature. The Board notes that the fact that there is no specific provision for an
impairment based on strains or sprains in the A.M.A., Guides does not warrant a conclusion that
such an award is precluded. The Act provides that loss of use of the thumb is compensable by
schedule award.4 The Board routinely reviews schedule award claims for which the accepted
condition is sprain or strain and has recognized that a sprain/strain may result in a permanent
impairment.5 Moreover, the record reflects that appellant’s injury was accepted for a left thumb
radiocarpal fracture.
Upon reaching maximum medical improvement, the evidence ordinarily permits a
determination to be made as to the degree of permanent loss of use of the scheduled member.6
Dr. Weisflog noted that appellant had reached maximum medical improvement on
June 19, 2007. He obtained measurements to rate appellant’s left thumb impairment arising from
1

See 5 U.S.C. § 8107(c).

2

Id. at § 8107(c)(19).

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(6).

5

See R.H., Executrix of the Estate of B.H., 59 ECAB ___ (Docket No. 07-2286, issued September 19, 2008). The
Office accepted the claim for left ankle sprain, the Board affirmed a schedule award for 27 percent permanent
impairment of the left lower extremity. See also Linda R. Sherman, 56 ECAB 127 (2004), the Office accepted the
claim for left shoulder sprain, the Board affirmed a schedule award for eight percent permanent impairment of the
left upper extremity. Jesse Mendoza, 54 ECAB 802 (2003), the Office accepted the claim for knee, leg and lumbar
sprain and contusions of the face, scalp and neck, the Board affirmed schedule awards for one percent impairment of
the right lower extremity and five percent impairment of the left lower extremity.
6

Michael Vining (Kevin M. Vining), 52 ECAB 354 (2001).

3

her accepted injury pursuant to indicated figures and tables of the A.M.A., Guides. The method
for calculating motion impairments for individual digits is outlined in subsection 16.4c of the
A.M.A., Guides, at page 452, which states:
“The motion impairment pie charts are used for motion impairment calculation of
a specific joint. Because the same relative value scale is applied to each motion
unit and to its components, the impairment values derived for each are added
directly together to obtain the total motion impairment of a specific joint. The
total impairment value of a motion unit is obtained by adding the impairment
values contributed by its two component movements (e.g., impairment of
flexion/extension motion unit equals IF percent plus IE percent)….” (Emphasis in
the original.)
Dr. Weisflog found that appellant had a 12 percent left thumb impairment based on
decreased range of motion in accordance with Figure 16-12 at page 456 of the A.M.A., Guides.
He noted a one percent impairment for joint flexion of the interphalangeal thumb joint flexion; a
two percent impairment based on decreased metacarpophalangeal thumb joint flexion; a four
percent thumb impairment for decreased thumb adduction; a two percent impairment for
diminished radial abduction, and a three percent impairment based on thumb resistance.
Although he calculated appellant’s 12 percent left thumb extremity impairment by properly
referencing the applicable standards of the A.M.A., Guides relating to range of motion deficits of
the left thumb, the Office medical adviser erred by failing to consider these findings.
Dr. Weisflog’s report makes note of range of motion deficits relating to appellant’s left thumb
which clearly indicate that appellant sustained permanent impairment due to his accepted injury.
Although Dr. Weisflog converted the 12 percent left thumb impairment to a 5 percent left upper
extremity impairment, the report does not explain the basis for such conversion. Dr. Weisflog
stated that there was no impairment at the level of the wrist or hand. Therefore, any schedule
award would be for impact to the left thumb.7
Furthermore, Dr. Weisflog noted that appellant had a previous injury to the left upper
extremity which had reached maximum medical improvement and had been rated to be a zero
percent permanent impairment. The Office did not address this preexisting injury in the denial of
appellant’s claim for a schedule award. In determining the amount of a schedule award for a
member of the body that sustained an employment-related permanent impairment, preexisting
conditions are to be included.8
Accordingly, the Office’s March 11, 2008 decision will be set aside and the case
remanded to the Office for further development as to appellant’s left thumb impairment
consistent with the standards of the A.M.A., Guides.9

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4a (March 2005).

8

Mike E. Reid, 51 ECAB 543 (2000).

9

In light of the Board’s remand of the March 11, 2008 schedule award decision, the Office’s June 30, 2008
decision denying an oral hearing is rendered moot.

4

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: May 15, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, VICKERY STATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1204
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On August 3, 2021 appellant filed a timely appeal from a March 29, 2021 merit decision
and a July 27, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 27, 2021 decision, appellant submitted additional evidence to the Board.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 28, 2021 appellant, then a 69-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed bilateral wrist pain due to factors of his federal
employment. He noted that an attached statement explained how his employment factors caused
his condition, however, no such statement was contained in the record. Appellant noted that he
first became aware of his claimed injury on December 16, 2021 and realized its relation to his
federal employment on January 26, 2021.3 On the reverse side of the claim form, his supervisor,
M.J., indicated that appellant’s work was modified so that he did not have to lift items over 10
pounds and that he was attending physical therapy daily. The employing establishment challenged
appellant’s claim because appellant did not submit any factual or medical documentation.
In a development letter dated February 5, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of additional factual and medical evidence
needed and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP requested additional information from the employing establishment, including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities. It
afforded both parties 30 days to respond.
A January 26, 2021 report from Dr. Juan Zamora, a Board-certified physician specializing
in family medicine, related appellant’s history of injury. Appellant awoke on December 16, 2020
with sharp pain in his left wrist and continued to experience frequent pain and discomfort
extending into his middle fingers. A similar pattern of pain started in his right wrist on
December 30, 2020. Appellant also began to experience right elbow pain on January 4, 2021.
Pain in each of these areas increased with activity. Dr. Zamora opined that appellant’s condition
was work related and recommended diagnostic testing. He diagnosed unspecified sprains of the
right elbow and both wrists.
On February 9, 2021 appellant responded to OWCP’s development questionnaire, noting
that he worked limited duty and retired from the employing establishment on February 1, 2021.
He indicated that his responses to OWCP’s remaining questions were contained in an attached
statement, however, no such statement is found in the record.
Appellant underwent bilateral wrist x-rays and a magnetic resonance imaging (MRI) scan
on February 10, 2021. The x-ray of his left wrist revealed severe triscaphe and mild
trapeziometacarpal osteoarthritis and a one millimeter ulnar positive variance indicating possible
ulnar impaction syndrome or triangular fibrocartilage complex (TFCC) tears. The x-ray of
appellant’s right wrist revealed severe triscaphe and mild radiocarpal and trapeziometacarpal
osteoarthritis. The MRI scan of his left wrist demonstrated tricompartmental wrist effusions,
chondromalacia within the lunate and distal ulna, which could relate to ulnar impaction syndrome
and/or osteoarthritis, severe triscaphe and mild-to-moderate trapeziometacarpal osteoarthritis,
3

A January 20, 2021 notice of separation indicated that appellant retired from the employing establishment on
January 31, 2021.

2

increased signal within the TFCC compatible with either a TFCC tear or TFCC degeneration, and
mild generalized extensor tenosynovitis. The MRI scan of appellant’s right wrist demonstrated
mild generalized extensor tenosynovitis with grade 1 strain of the extensor carpi ulnaris tendon,
tricompartmental wrist effusions, severe triscaphe and mild trapeziometacarpal osteoarthritis, and
increased signal within the TFCC indicative of either a TFCC tear or TFCC degeneration .
In a February 23, 2021 report, Dr. Zamora reviewed the February 10, 2021 x-ray and MRI
scans and diagnosed chondromalacia, osteoarthritis, and TFCC degeneration, possibly with tears.
He opined that appellant’s conditions were due to the natural wear and tear of the body but were
aggravated by his 42 years of work for the employing establishment. Dr. Zamora advised appellant
to begin a regimen of physical rehabilitation.
By decision dated March 29, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between his diagnosed conditions and the accepted factors of his federal employment.
Appellant subsequently submitted an undated statement responding to OWCP’s initial
development questionnaire. He described his employment activities, including daily sorting and
delivering of mail and parcels weighing up to 70 pounds and carrying up to 35 pounds of letters,
flats, and small parcels in a satchel carried on left shoulder such that weight was almost entirely
on his left shoulder and arm. Appellant noted that he had been under lifting restrictions at work
since July 2020 due to a left arm injury. He compensated for his left arm injury by doing more
work with his right arm. Appellant’s left wrist and hand pain began during the night on
December 16, 2020, and he reported it to his station manager, D.D, the next day. Similar pain
began in his right wrist on December 30, 2020 and in his right arm and elbow on January 4, 2021.
Appellant experienced greater pain and discomfort during periods of activity. He reported this
history to his manager, M.J., on January 13 and 15, 2020. Appellant’s activities outside of work
consisted mainly of listening to music and watching movies. He believed that his symptoms were
indicative of repetitive motion injuries due to the nature of his work for the employing
establishment.
OWCP received February 23, 2021 report from Dr. Zamora in which he again reviewed
the February 10, 2021 x-rays and MRI scans and diagnosed chondromalacia, osteoarthritis, and
TFCC degeneration, possibly with tears. Dr. Zamora opined that appellant’s conditions were due
to the natural wear and tear of the body but were aggravated by his 42 years of work at the
employing establishment. Specifically, he explained that appellant’s work duties, including
carrying and handling heavy loads, sorting and casing mail, repetitively twisting at the wrist to
open mailboxes, and repetitively locking and unlocking his work vehicle throughout the day,
aggravated his conditions. Dr. Zamora advised that appellant begin a regimen of physical
rehabilitation.
On April 28, 2021 appellant requested reconsideration. In support of his request, he
submitted an April 27, 2021 statement, in which he contended that his more than 42 years of
service to the employing establishment, including a great deal of overtime, directly contributed to
his diagnosed conditions. Appellant noted that, as a result of a previously accepted left arm injury,
assigned OWCP File No. xxxxxx014, he had been restricted to eight hours of work per day during
the latter half of 2020. Finally, he argued that the medical documentation proved causal

3

relationship between his diagnosed medical conditions and the accepted factors of his federal
employment.
By decision dated July 27, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 4 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, 5 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. 6 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. 7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 8
Causal relationship is a medical question that requires rationalized medical opin ion
evidence to resolve the issue. 9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background. 10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical

4

Supra note 1.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

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).
8

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).
9

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

10

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

4

rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment.
In his January 26, 2021 report, Dr. Zamora diagnosed unspecified sprains of the right
elbow and both wrists and opined that appellant’s condition was work related. Similarly, in a
February 23, 2021 report, he diagnosed chondromalacia, osteoarthritis, and TFCC degeneration,
possibly with tears, and opined that appellant’s conditions were due to the natural wear and tear of
the body, but were aggravated by appellant’s 42 years of work for the employing establishment.
While he provided an affirmative opinion suggestive of causal relationship, Dr. Zamora did not
offer medical rationale sufficient to explain why he believes appellant’s employment duties could
have resulted in or contributed to his diagnosed conditions. Without identifying specific
employment duties or explaining how they caused or aggravated app ellant’s conditions,
Dr. Zamora’s letter is of limited probative value and is insufficient to meet appellant’s burden of
proof.12
In a separate February 23, 2021 report, Dr. Zamora repeated the above diagnoses and again
opined that appellant’s conditions were due to the natural wear and tear of the body , but were
aggravated by appellant’s 42 years of work for the employing establishment. Specifically, he
explained that appellant’s work duties, including carrying and handling heavy loads, sortin g and
casing mail, repetitively twisting at the wrist to open mailboxes, and repetitively locking and
unlocking his work vehicle throughout the day, aggravated his conditions. However, Dr. Zamora
did not explain how any of these described employment activities caused appellant’s diagnosed
chondromalacia, osteoarthritis, and TFCC degeneration. To be of probative medical value, a
medical opinion must explain how, physiologically, the movements involved in the employment
activities caused or contributed to the diagnosed conditions. 13 As such, Dr. Zamora’s report is
insufficient to establish appellant’s claim.
The remaining medical evidence consisted of bilateral x-ray and MRI scans of appellant’s
wrists. The Board has held, however, that diagnostic testing reports, standing alone, lack probative
value on the issue of causal relationship as they do not address the relationship between the
accepted employment factors and a diagnosed condition. 14 For this reason, this evidence is also
insufficient to meet appellant’s burden of proof.

11

Id.; Victor J. Woodhams, supra note 8.

12

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

13

A.W., Docket No. 19-0327 (issued July 19, 2019); M.D., Docket No. 18-0195 (issued September 13, 2018);
Jimmie H. Duckett, 52 ECAB 332 (2001).
14

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

5

As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof. 15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP decision for which review is sought. 18 If it chooses to grant reconsideration, it reopens and
reviews the case on its merits. 19 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 20

15

See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).
16

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see L.D., id; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
19

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

20

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

6

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Appellant also did not submit relevant and pertinent new evidence in support of his
reconsideration request. The underlying issue on reconsideration is whether appellant has met his
burden of proof to establish a medical condition causally related to the accepted factors of his
federal employment. This is a medical issue which is addressed by relevant medical evidence not
previously considered. 22
With his request for reconsideration, appellant submitted an undated response to OWCP’s
initial development questionnaire, a February 23, 2021 medical report from Dr. Zamora, and an
April 27, 2021 statement contending that his conditions were causally related to the accepted
factors of his federal employment. The undated questionnaire response and the April 27, 2021
statement do not constitute relevant and pertinent new evidence as they are not medical evidence.
Further, Dr. Zamora’s separate February 23, 2021 medical report substantially replicates a
previously considered report of even date. The only addition in the later-submitted report was a
list of employment activities that he believed aggravated appellant’s medical conditions.
Dr. Zamora’s did not, however, offer an explanation of the causal relationship between those
activities and the diagnosed conditions. The Board has held that the submission of evidence that
does not address the particular issue involved does not constitute a basis for reopening a case. 23
As such, appellant is not entitled to further review of the merits of his claim based on the third
above-noted requirement under 20 C.F.R. § 10.606(b)(3).24
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 25
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted factors of his federal employment. The Board further
21

C.B., Docket No. 18-1108 (issued January 22, 2019).

22

Y.L., Docket No. 20-1025 (issued November 25, 2020).

23

See T.T., Docket No. 19-0319 (issued October 26, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECB 140 (2000); Edward Matthew Diekemper; 31 ECAB 224, 225 (1979).
24

Supra note 16.

25

J.B., supra note 20; D.G., Docket No. 19-1348 (issued December 2, 2019).

7

finds that OWCP properly denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 29 and July 27, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed. 26
Issued: March 11, 2022
Washington, DC

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

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

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

26

Upon return of the case record, OWCP may consider administratively combining the current claim file with
OWCP File No. xxxxxx014.

8


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

)
)
)
)
)
)
)
)

Appearances:
Scott B. Baron, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2287
Issued: February 23, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant filed a timely appeal of an April 16, 2009 decision of the
Office of Workers’ Compensation Programs, denying merit review of his claim. As the most
recent merit decision is dated December 18, 2008, pursuant to 20 C.F.R. § 501.3(e), the Board
does not have jurisdiction of the merits of the appeal.
ISSUE
The issue is whether the Office properly denied appellant’s April 3, 2009 application for
reconsideration pursuant to 8128(a).
FACTUAL HISTORY
On June 11, 2007 appellant filed an occupational disease claim (Form CA-2) alleging that
he sustained an emotional condition as a result of harassment and verbal abuse by a supervisor.
By decision dated December 20, 2007, the Office denied the claim, finding that no compensable
work factors had been established.

Appellant, through his representative, requested reconsideration of his claim on
September 26, 2008. Counsel argued that the alleged incidents occurred and that appellant
experienced excessive harassment from his supervisors. By decision dated December 18, 2008,
the Office denied modification of the December 20, 2007 decision. The Office again found no
compensable work factors had been established.
In a letter dated April 3, 2009, appellant requested reconsideration of the claim. He
argued that the statements from Maxine German-Hawkins, Carroll Hendrid and Dean Lamberti
were sufficient to establish a compensable work factor. According to appellant, the Office
improperly gave weight to statements by Delbert Tullius and Curtis Warner. Appellant
resubmitted the statements from Ms. German-Hawkins, Ms. Hendrid and Mr. Lamberti. In
addition, he resubmitted a May 18, 2007 report from a psychiatrist, Dr. Kevin Harrison; a
June 11, 2007 report from a psychiatrist, Dr. Richard Bacharach; and a March 24, 2008 report
from Dr. Margit Bleecker, a neurologist.
By decision dated April 16, 2009, the Office denied the request for reconsideration
without merit review of the claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision.1 The employee shall exercise this right through a request to
the district office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”2
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.3
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.4

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.605 (1999).

3

Id. at § 10.606(b)(2).

4

Id. at § 10.608.

2

ANALYSIS
In the April 3, 2009 application for reconsideration, appellant again expressed his
disagreement with the Office’s finding that no compensable work factors were established. He
argued that the coworker statements were sufficient to establish a compensable work factor
based on harassment or verbal abuse. The standard, however, for requiring a merit review is that
the application shows that the Office erroneously applied or interpreted a specific point of law or
advances a relevant legal argument not previously considered by the Office. Appellant did not
show that the Office erroneously applied a specific point of law. He indicated that he disagreed
with the Office’s assessment of the factual evidence, without showing an erroneous application
of a specific point of law. Moreover, appellant did not advance a new and relevant legal
argument. He cited a case involving an allegation of harassment,5 but this case only reiterated
the well-established principle that harassment may be a compensable work factor if there is
sufficient factual evidence. The reopening of a case is not required where the legal contention
has no reasonable color of validity.6 The Board finds that appellant did not show that the Office
erroneously applied or interpreted a specific point of law or advance a new and relevant legal
argument.
With respect to accompanying evidence, appellant did not submit any new evidence. The
coworker statements were all previously submitted to the record prior to the last merit decision
on December 18, 2008. The medical evidence would not be relevant until a compensable work
factor was established, and in any case the medical evidence was duplicative.7
On appeal, appellant asserts that he did present a legal contention not previously
considered, namely that the Office “misapplied facts to the law given overwhelming evidence
from unbiased witnesses that support [appellant’s] claim.” He cited the case of Charles E.
Munson8 for the proposition that the Office should have weighed the unbiased testimony of
witnesses against the biased testimony from the employing establishment. In Munson, the Board
found the claimant had not substantiated a claim for harassment, discrimination or other
compensable work factor and, in addition, the Office had properly denied merit review.9 It does
not support appellant’s argument that he had met the requirements of 20 C.F.R. § 10.606(b)(2) in
this case. In his April 3, 2009 application for reconsideration, appellant stated his disagreement

5

Paul H. Comer, Docket No. 01-730 (issued December 20, 2001). Appellant also cited Beverly Dark, Docket
No. 01-2178 (issued February 3, 2003), for the proposition that the statements show the alleged harassment was not
based solely on appellant’s perception. This case noted only that mere perceptions of harassment are not
compensable; the Board found a compensable work factor based on chronic pain from an accepted employment
injury.
6

Elaine M. Borghini, 57 ECAB 549 (2006); Annette Louis, 54 ECAB 783 (2003).

7

Although the Office considered the March 24, 2008 report from Dr. Bleecker as new evidence, it had been
submitted to the record on September 26, 2008.
8

Docket No. 02-1796 (issued February 13, 2003).

9

In Munson, the claimant made allegations of harassment and discrimination, but provided no probative
supporting evidence.

3

with the Office’s findings, without meeting any of the requirements for reopening the case for
merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s application for
reconsideration without merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 16, 2009 is affirmed.
Issued: February 23, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Madison, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0809
Issued: July 21, 2016

Case Submitted on the Record

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

JURISDICTION
On March 10, 2016 appellant, through counsel, filed a timely appeal from a February 8,
2016 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.
ISSUE
The issue is whether appellant met his burden of proof to establish a lumbar condition
causally related to factors of his federal employment.
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.

FACTUAL HISTORY
On November 23, 2012 appellant, then a 43-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a displaced thoracic spinal cord,
degenerative disc bulging, acute low back pain, lumbar pelvic muscle spasms, and subluxation as
a result of his federal employment duties which entailed constant bending, reaching, and
stooping.
This case has previously been before the Board. By decision dated February 7, 2013,
OWCP denied appellant’s claim finding that the medical evidence had failed to establish that his
lumbar conditions were causally related to his accepted federal employment duties. Appellant
requested reconsideration and by decision dated May 7, 2013, OWCP denied his request for
reconsideration without reviewing the merits of the claim. On appeal, by decision dated
March 21, 2014, the Board set aside OWCP’s May 7, 2013 nonmerit decision.3 The Board
determined that OWCP had failed to review newly submitted medical reports and remanded the
case to OWCP to issue a de novo final decision after properly considering all of the evidence of
record.
On remand, OWCP evaluated the medical evidence of record and, by decision dated
July 17, 2014, affirmed the prior February 7, 2013 decision finding that the medical evidence
failed to establish that appellant’s conditions were causally related to his federal employment
duties. On August 19, 2014 appellant filed an appeal of OWCP’s July 17, 2014 decision. By
decision dated December 12, 2014, the Board affirmed OWCP’s July 17, 2014 decision finding
that he had not met his burden of proof to establish that his diagnosed lumbar conditions were
causally related to the accepted factors of his federal employment.4 The findings of fact and
conclusions of law from the prior decision and order are incorporated herein by reference.
Following the Board’s December 12, 2014 decision, appellant, through counsel,
requested reconsideration before OWCP. By letter dated December 9, 2015, counsel requested
reconsideration and noted submission of reports from William S. Middleton Memorial Veterans
Hospital not previously considered.
In a June 18, 2015 hospital report, Dr. Thomas E. Looze, Board-certified in internal
medicine, reported that approximately one month prior appellant began to experience a sharp
increase in lower back pain with radiculopathy. Dr. Looze noted that appellant’s primary pain
related to the anterior left thigh and left knee. He also complained of pain in his back when
sitting. Dr. Looze reported that appellant’s occupation entailed driving a shuttle bus, as well as
helping a friend manage a fitness gym. Appellant reported that he had been working out just
prior to his most recent flare up. His routine, which included cardio work by exercising on a
bike or treadmill for 15 minutes, started to irritate his back. Appellant also swam and did various
resistance activities. Dr. Looze reviewed an April 25, 2014 magnetic resonance imaging scan of
the lumbar spine. He discussed the importance of taking a more measured approach with the
development of an exercise program, noting that appellant’s impulsiveness with regard to
3

Docket No. 14-145 (issued March 21, 2014).

4

Docket No. 14-1819 (issued December 12, 2014).

2

switching up his program and how he demonstrated moving into end range positions with
“jerky” motions that could cause spasming/reinjury. Dr. Looze explained that appellant
presented to the emergency room with acute chronic lower back pain. He noted that appellant
appeared to have performed a routine maintenance fitness program with options to try new things
all the time. Dr. Looze indicated that appellant did not benefit from this approach which
appeared to set him up for frequent reinjury. An accompanying progress note provided
diagnoses of spinal stenosis, lumbar region without neurogenic claudication, intervertebral disc
disease, lumbar radiculopathy, and chronic low back pain.
By decision dated February 8, 2016, OWCP affirmed the December 12, 2014 decision
finding that the medical evidence failed to establish that appellant’s conditions were causally
related to his federal employment duties.
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 filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
5

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

6

Michael E. Smith, 50 ECAB 313 (1999).

7

Elaine Pendleton, supra note 5.

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.9 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.10
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities as part of his employment
duties as a letter carrier. It denied his claim, however, because the evidence failed to establish a
causal relationship between those factors of his federal employment and his diagnosed
conditions. The Board finds that the medical evidence of record is insufficient to establish that
appellant’s back conditions were causally related to factors of his federal employment as a letter
carrier.
The Board notes initially that, with respect to the findings made in its prior decision dated
December 12, 2014, those matters are res judicata absent any further review by OWCP under
section 8128 of FECA.11
The only new evidence received following OWCP’s last merit decision on July 17, 2014
was a June 18, 2015 William S. Middleton Memorial Veterans Hospital report from Dr. Looze.
The Board finds that his report fails to establish that appellant developed a lumbar injury as a
result of his federal employment duties.12
In his June 18, 2015 report, Dr. Looze reported that approximately one month prior
appellant began to experience a sharp increase in lower back pain with radiculopathy. His
primary pain related to the anterior left thigh and left knee, but also complained of back pain
when sitting. The Board notes that appellant has alleged a back injury in this claim with no
allegations of a left thigh or knee condition. With respect to the lower back, Dr. Looze
diagnosed acute chronic lower back pain. However, the findings of the physician are of no
probative value as he is describing a symptom rather than a clear diagnosis of the medical
condition.13 The Board has consistently held that pain is a symptom, rather than a compensable
medical diagnosis.14 While the accompanying progress note provided diagnoses of spinal
stenosis, lumbar region without neurogenic claudication, intervertebral disc disease, lumbar
9

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

10

W.F., Docket No. 15-1208 (issued October 23, 2015); James Mack, 43 ECAB 321 (1991).

11

R.T., Docket No. 16-543 (May 20, 2013).

12

R.M., Docket No. 11-1921 (issued April 10, 2012).

13

C.F., Docket No. 08-1102 (issued October 10, 2008).

14

Id.

4

radiculopathy, and chronic low back pain, the report is of no probative value as it failed to
provide any opinion regarding causal relationship.15
Dr. Looze failed to discuss appellant’s employment duties as a letter carrier and provide a
firm medical diagnosis which could reasonably be attributed to his federal employment duties.
This is important as appellant informed the physician that he had been working out just prior to
his most recent flare up and that his routine exercise on the bike and treadmill started to irritate
his back. Dr. Looze also attributed appellant’s lumbar condition to his exercise routine, noting
that his impulsive movements and “jerky” motions could cause spasming/reinjury. He noted that
appellant appeared to have performed a routine maintenance fitness program while also trying
new exercises, but did not benefit from this approach, which appeared to set him up for frequent
reinjury. Given that his report provides support for a nonoccupational injury to the lumbar
region, Dr. Looze’s opinion is of no probative value in establishing a work-related injury.16
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a letter carrier and his back injury.
Thus, appellant has failed to meet his burden of proof.17
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
lumbar condition is causally related to the accepted factors of his federal employment as a letter
carrier.

15

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

C.B., Docket No. 08-1583 (issued December 9, 2008).

17

Supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1428
Issued: February 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 28, 2016 appellant, through counsel, filed a timely appeal from a June 10, 2016
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.
ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment warranting a schedule award.

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.

FACTUAL HISTORY
On October 24, 2008 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 23, 2008 she sustained injury to her left foot/ankle
when she came down on a stick with her left foot. OWCP accepted appellant’s claim for left
ankle sprain and left ankle impingement syndrome. She later stopped work and received
disability compensation on the daily rolls beginning October 8, 2010.
On May 13, 2013 appellant underwent OWCP-authorized left ankle arthroscopy with
extensive debridement. She stopped work on May 13, 2013 and returned to full-duty work on
November 5, 2013.
On July 24, 2014 appellant filed a claim for compensation (Form CA-7) claiming a
schedule award due to her October 23, 2008 work injury.
In a letter dated January 31, 2014, appellant requested that appellant submit additional
evidence in support of her schedule award claim, including a medical report containing an
impairment rating calculated in accordance with the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009) (A.M.A., Guides). Appellant submitted a number of reports from her physical therapy
sessions.
By decision dated March 19, 2014, OWCP denied appellant’s schedule award claim
because she had not submitted medical evidence containing an impairment rating calculated
under the sixth edition of the A.M.A., Guides.
Appellant submitted a March 19, 2014 report in which Dr. Martin Fritzhand, an attending
Board-certified occupational medicine physician, provided an opinion that appellant had a four
percent permanent impairment of her left lower extremity under the sixth edition of the A.M.A.,
Guides. He indicated that, under Table 16-2 (Foot and Ankle Regional Grid), he based his
impairment rating on the diagnosis-based condition of left ankle arthritis, noting that appellant’s
three millimeter cartilage interval constituted a class 1 impairment. In a report dated October 27,
2014, Dr. Fritzhand opined that appellant’s left ankle arthritis was due to the October 23, 2008
work injury.
Appellant timely requested a telephonic hearing with an OWCP hearing representative
which was held on October 1, 2014. In a December 12, 2014 decision, the hearing representative
set aside OWCP’s March 19, 2014 decision. She remanded the case to OWCP for referral to an
OWCP physician for an examination and an opinion on permanent impairment, to be followed
by issuance of an appropriate decision.3
On remand OWCP referred appellant to Dr. James H. Rutherford, a Board-certified
orthopedic surgeon, for examination and an opinion of the extent of her permanent impairment.
3

The hearing representative indicated that, although the reports of Dr. Fritzhand were not fully rationalized, they
were sufficient to require further development of the medical evidence, including referral of appellant to an OWCP
referral physician.

2

In a January 20, 2015 report, Dr. Rutherford found no permanent impairment, under the sixth
edition of the A.M.A., Guides, entitling her to a schedule award. He noted that at the time of his
evaluation appellant had a normal examination of her left ankle and a normal range of motion.
Recent x-rays of appellant’s left ankle showed a normal joint space and normal mortise of the
left ankle. Dr. Rutherford opined that, at the time of the January 20, 2015 evaluation, appellant
had no ratable impairment or a zero percent permanent impairment of her lower extremities. He
noted, “[Appellant] also does not have a diagnosis of left ankle osteoarthritis as a result of the
injury of October 23, 2008 and thus she has no ratable impairment related to arthritis.”
On February 4, 2015 an OWCP medical adviser agreed with Dr. Rutherford’s assessment
that appellant did not have permanent impairment under the sixth edition of the A.M.A., Guides.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Fritzhand and Dr. Rutherford regarding appellant’s permanent impairment. It referred
appellant to Dr. John McGrail, a Board-certified orthopedic surgeon, for an impartial medical
examination and an impairment rating evaluation.
In a report dated June 23, 2015, Dr. McGrail discussed appellant’s factual and medical
history, including the findings of diagnostic testing of the left ankle, and reported the findings of
his examination of appellant on June 17, 2015. He noted that, upon examination, appellant
exhibited normal range of left ankle motion and that muscle tone was equal in both ankles
without atrophy. Dr. McGrail indicated that x-rays of appellant’s ankles, which were obtained
on January 20 and June 17, 2015, showed a left ankle within normal limits and no sign of
arthritis. He found that appellant’s left ankle appeared identical to her uninjured right ankle in
the x-ray projections. Dr. McGrail concluded that appellant did not have permanent impairment
under the sixth edition of the A.M.A., Guides entitling her to a schedule award. He found that
appellant had a zero percent rating under Table 16-2 beginning on page 501 in that she was rated
as class 0, indicating no significant objective abnormal findings or muscle or tendon injury.
Dr. McGrail opined that appellant’s October 23, 2008 work injury had resolved as there was no
objective evidence of this injury. Dr. McGrail concluded that appellant exhibited no evidence of
left ankle arthritis and did not qualify for an impairment rating under Table 16-2 for this
condition.
On July 26, 2015 an OWCP medical adviser agreed with Dr. McGrail that appellant had
no permanent impairment under the sixth edition of the A.M.A., Guides.
In a decision dated August 26, 2015, OWCP denied appellant’s claim for a schedule
award finding that the special weight of the medical evidence on this matter rested with the wellrationalized opinion of Dr. McGrail, the impartial medical specialist.
Appellant requested a telephonic hearing with an OWCP hearing representative and such
a hearing was held on March 23, 2016. Counsel testified that appellant did in fact have left ankle
arthritis and asserted that she should receive a schedule award based on this condition.
By decision dated June 10, 2016, an OWCP hearing representative affirmed OWCP’s
August 26, 2015 decision finding that appellant did not meet her burden of proof to establish
permanent impairment entitling her to a schedule award.

3

LEGAL PRECEDENT
The schedule award provision of the FECA4 and its implementing regulations5 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment
from loss, or loss of use, of scheduled members or functions of the body. However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.10
ANALYSIS
OWCP accepted that on October 23, 2008 appellant sustained a left ankle sprain and left
ankle impingement syndrome. On May 13, 2013 she underwent OWCP-authorized left ankle
arthroscopy with extensive debridement. On July 24, 2014 appellant filed a Form CA-7 claiming
a schedule award due to her October 23, 2008 work injury.
The Board finds that appellant had not met her burden of proof to establish permanent
impairment entitling her to a schedule award.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (January 2010).
7

Federal (FECA) Procedure Manual, id. at Chapter 2.808.5a (February 2013); Chapter 3.700, Exhibit 1
(January 2010).
8

5 U.S.C. § 8123(a).

9

William C. Bush, 40 ECAB 1064, 1975 (1989).

10

R.S., Docket No. 08-1158 (issued January 29, 2009).

4

The Board notes that OWCP found a conflict in the medical opinion evidence between
Dr. Fritzhand and Dr. Rutherford regarding appellant’s permanent impairment and referred
appellant to Dr. McGrail for an impartial examination and an impairment rating evaluation.11
The Board finds that the weight of the medical evidence regarding appellant’s entitlement
to schedule award compensation rests with the opinion of Dr. McGrail.12 In a report dated
June 23, 2015, Dr. McGrail noted that, upon examination on June 17, 2015, appellant exhibited
normal range of left ankle motion and that muscle tone was equal in both ankles without atrophy.
He indicated that x-rays of appellant’s ankles showed a left ankle within normal limits and no
sign of arthritis. Dr. McGrail concluded that appellant did not have permanent impairment under
the sixth edition of the A.M.A., Guides entitling her to a schedule award. He found that
appellant had a zero percent rating under Table 16-2 beginning on page 501 in that she was rated
as class 0, indicating no significant objective abnormal findings or muscle or tendon injury.
Dr. McGrail opined that appellant exhibited no evidence of left ankle arthritis and did not qualify
for an impairment rating under Table 16-2 for this condition.13
Appellant has not submitted any probative evidence showing that she had a permanent
impairment under the sixth edition of the A.M.A., Guides causally related to the October 23,
2008 employment injury. She has therefore failed to meet her burden of proof.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish permanent
impairment entitling her to a schedule award.

11

See supra notes 8 and 9. On March 19, 2014 Dr. Fritzhand provided an opinion that appellant had a four
percent permanent impairment of her left lower extremity under the sixth edition of the A.M.A., Guides. In contrast,
Dr. Rutherford determined on January 20, 2015 that appellant did not have permanent impairment, under the sixth
edition of the A.M.A., Guides, entitling her to a schedule award.
12

See supra note 10.

13

On July 26, 2015 an OWCP medical adviser agreed with Dr. McGrail that appellant had no permanent
impairment under the sixth edition of the A.M.A., Guides.

5

ORDER
IT IS HEREBY ORDERED THAT the June 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6