United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGION IX, Richmond, CA, Employer
__________________________________________

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

Docket No. 15-1309
Issued: September 25, 2015

Case Submitted on the Record

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

JURISDICTION
On May 22, 2015 appellant filed a timely appeal from an April 30, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish a cervical condition
causally related to factors of her federal employment.
FACTUAL HISTORY
On January 28, 2015 appellant, then a 43-year-old claims representative, filed an
occupational disease claim (Form CA-2) alleging a shoulder and neck condition, requiring

1

5 U.S.C. § 8101 et seq.

surgery, due to repetitive and stressful factors of her federal employment. She stopped work on
November 3, 2014 and returned on December 8, 2014.
In an undated statement, received from the employing establishment on February 2, 2015,
appellant’s October 17, 2014 cervical spine condition was acknowledged including the surgery
of November 4, 2014. It noted that she was on leave from November 3 to December 5, 2014,
cleared for limited duty from December 8, 2014 to January 1, 2015, and released for duty
without restrictions on January 2, 2015. The employing establishment contended that it had
discussed with appellant the availability of ergonomic adjustments for her workstation, but she
had failed to submit medical documentation describing what type of ergonomic equipment she
needed.
In a January 27, 2015 letter, the employing establishment had conveyed to appellant its
willingness to obtain ergonomic equipment, provided that she submit appropriate medical
documentation. It further furnished her with an ergonomic video which had information on
adjusting a workstation.
Dr. Vedat Deviren, a Board-certified orthopedic surgeon, in a December 1, 2014 work
status note (received by OWCP on February 7, 2015) cleared appellant to work with the
following restrictions: maintain a six-hour per day schedule, wear a hard cervical collar, and
take 15-minute breaks every 90 minutes. In a January 23, 2015 work status note, also received
by OWCP on February 7, 2015, Dr. Deviren requested that she be released from work from
January 23 to 26, 2015 due to “spine precautions.”
On January 26, 2015 Dr. Deviren completed a form requesting a special needs chair for
appellant. He informed the employing establishment that she required a workstation positioned
to prevent appellant from bending or twisting her neck. In an attached letter, Dr. Deviren noted
that appellant was under his care for a spine condition and advised the employing establishment
to provide her with “her own designated desk.”2
In a February 17, 2015 letter, OWCP informed appellant that the evidence of record was
insufficient to support her claim. It advised her to provide a medical report containing a
physician’s opinion supported by a medical explanation as to how work factors caused or
aggravated a diagnosed condition.
OWCP received a December 22, 2014 Family and Medical Leave Act form, in which
Dr. Deviren described appellant’s duties as processing claims electronically, interviewing the
public, answering telephones, typing, and writing. Dr. Deviren noted October 17, 2014 as the
approximate date that her injury commenced and reported that her condition would last from 12
to 18 months. He further advised that appellant necessitated periodic absences from work for
postsurgery follow-up examinations and physical therapy rehabilitation.
2

A health summary from appellant’s healthcare provider stated that appellant was diagnosed with cervical
spondylosis with myelopathy and cervical disc herniation on October 17, 2014, and cervical stenosis of the spine
and cervical myelopathy on October 23, 2014. The summary indicated that appellant underwent a cervical spinal
fusion. Accompanying the summary was a listing of blood test values from November 4 to 7, 2014, as well as
listings of other testing and treatment provided at other times. The summary was not prepared by a physician.

2

In a March 11, 2015 statement, appellant attributed her injury to repetitive reaching and
typing, long hours of sitting, turning her neck to engage with clients, a lack of ergonomic
equipment, and “stressors” from management. She contended that she sat and typed for eight
hours per day and reached for documents approximately six hours per day.
On April 10, 2015 appellant was seen in an emergency room by Dr. Emily Harrington, a
neurology resident, and Dr. Gary M. Green, Board-certified in emergency medicine, for
complaints of arm and leg numbness. A magnetic resonance imaging (MRI) scan revealed a disc
bulge. The physicians diagnosed cervical disc herniation. In an accompanying April 10, 2015
report, Dr. Green stated that appellant could return to work the next day.
Appellant, in an April 17, 2015 statement, maintained that her duties included typing,
reaching, and turning her neck, on a daily basis. She reported suffering neck and shoulder pain
for a “few years” before seeking medical treatment. Appellant related undergoing surgery on
November 4, 2014 and returning to work, with restrictions, on December 15, 2014. She
expressed interest in attaining ergonomic equipment to avoid further surgery.
On April 30, 2015 OWCP denied appellant’s claim, finding the medical evidence
insufficient to demonstrate that appellant’s condition was causally related to the identified
employment factors.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence,3 including that he or she is an employee within the meaning of FECA4 and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.6
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.7

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

See M.H., 59 ECAB 461 (2008); see 5 U.S.C. § 8101(1).

5

R.C., 59 ECAB 427 (2008); see 5 U.S.C. § 8122.

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

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

3

Causal relationship is a medical issue8 and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
There is no dispute that appellant’s work duties included prolonged sitting, repetitive
reaching and typing, and engaging with clients. The issue on appeal is whether appellant
established a cervical injury as a result of her employment. The Board finds that the medical
evidence of record does not establish a causal relationship between appellant’s claimed condition
and her employment duties.
On April 10, 2015 Drs. Harrington and Green noted treating appellant for arm and leg
numbness and diagnosed cervical disc herniation. The physicians, however, did not provide any
opinion as to the cause of appellant’s condition. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.10 Likewise, the reports and status notes from Dr. Deviren do not offer any
opinion supporting that appellant’s work duties caused or aggravated her cervical condition.
The record also contains a healthcare summary and listings of medical testing and
treatment. See supra note 2. This does not constitute probative medical evidence as there is no
indication that the person preparing such documents qualifies as a physician. C.B., Docket No.
09-2027 (issued May 12, 2010); Merton J. Sills, 39 ECAB 572, 575 (1988) (unsigned medical
evidence with no adequate indication that it was completed by a physician is not considered
probative medical evidence).
On appeal, appellant reiterated that her duties, including sitting, typing, and using a
mouse, caused her condition. As noted above, the medical evidence does not establish her claim.
Because appellant has not provided such medical opinion evidence, she has failed to meet her
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that her cervical condition is causally
related to factors of her federal employment.
8

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

9

Victor J. Woodhams, 41 ECAB 345 (1989).

10

J.F., Docket No. 09-1061 (issued November 17, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the April 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL OFFICE, San Juan, PR, Employer
__________________________________________

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

Docket No. 17-1846
Issued: March 27, 2018

Case Submitted on the Record

DECISION AND ORDER

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

JURISDICTION
On August 31, 2017 appellant filed a timely appeal from a June 21, 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish lower extremity
permanent impairment due to his accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts set forth in the Board’s prior
decision are incorporated herein by reference. The relevant facts are as follows.
On September 28, 2007 appellant, then a 53-year-old senior service representative, filed an
occupational disease claim (Form CA-2) alleging that he developed a low back injury while
organizing and searching for documents.3 He claimed that he reinjured his back bending at work.
Appellant noted that he initially injured his back in 1995 and that this claim was accepted as well
as a subsequent recurrence in 1999. OWCP accepted his claim for lumbar sprain on
December 10, 2007. It expanded the claim to include acceptance of severe generalized anxiety
disorder with depressive features on June 24, 2010.
Appellant filed a claim for a schedule award (Form CA-7) on December 16, 2009.
By decision dated September 22, 2011, OWCP denied his schedule award claim, finding
that he had not submitted sufficient evidence to establish permanent impairment of a scheduled
member. Appellant requested a review of the written record from OWCP’s Branch of Hearings
and Review on October 11, 2011.
By decision dated December 9, 2011, OWCP’s hearing representative set aside the
September 22, 2011 decision and remanded the case for OWCP to undertake further development
and refer appellant for a second opinion evaluation to determine his permanent impairment.
OWCP referred appellant for a second opinion examination with Dr. Olga Rios, a Boardcertified neurologist.
By decision dated April 6, 2012, OWCP denied appellant’s claim for a schedule award
finding that Dr. Rios was unable to provide an accurate description of impairment. Appellant
subsequently appealed to the Board. In a January 7, 2013 decision,4 the Board set aside the April 6,
2012 decision as OWCP did not refer Dr. Rios’ report to an OWCP medical adviser in keeping
with its procedures.
On February 21, 2013 OWCP’s medical adviser reviewed Dr. Rios’ report and found that
her impairment rating was not based on reliable findings. He recommended an additional second
opinion evaluation.

2

Docket No. 12-1328 (issued January 7, 2013).

3

Appellant had several prior claims with OWCP including a November 20, 1993 claim accepted for right ankle
fracture. He filed claims for traumatic back injuries on October 4, 1995 and September 2, 1999. OWCP accepted the
September 2, 1999 injury for low back strain; OWCP File No. xxxxxx273. On December 1, 1997 appellant injured
his left big toe while walking up the stairs at the employing establishment which OWCP accepted for a contusion,
OWCP File No. xxxxxx739. OWCP accepted that he sustained a left ankle fracture on November 29, 2002; OWCP
File No. xxxxxx904.
4

Supra note 2.

2

By decision dated March 11, 2013, OWCP again denied appellant’s schedule award claim.
Appellant requested a review of the written record and in a June 5, 2013 decision, OWCP’s hearing
representative set aside the March 11, 2013 decision and remanded the case for OWCP to refer
appellant for a supplemental report from Dr. Rios.
In a December 4, 2013 supplemental report, Dr. Rios noted that, when she examined
appellant in 2012, he exaggerated motor weakness and in her opinion was enhancing his symptoms
such that she could not make a proper assessment of his functional status. She found that appellant
had strength of 4/5 in the right leg and -4/5 in the left leg with no atrophy. Dr. Rios performed a
sensory examination and reported no clear deficit to pinprick, light touch, or vibration. Appellant’s
gait was stiff, he used a cane, and he was unable to tandem, heel, or toe walk, but that did not have
Romberg’s sign. Dr. Rios diagnosed diffuse degenerative disc disease of the lumbar spine and
L4-5 radiculopathy on the left. She found that this examination was more reliable, and that
appellant had radiculopathy in the L4-5 region on the left side with diminished strength in both
legs. Dr. Rios concluded that her examination supported that he had degenerative disease of the
lumbar spine with clear evidence of L4-5 radiculopathy consistent with his work-related injury.
She noted that appellant’s current examination did not support sensory deficit. Dr. Rios applied
the spinal nerve impairment provisions of the American Medical Association Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides)5 and found that he had 9 percent
permanent impairment of L3, 11 percent permanent impairment of L4, and 9 percent permanent
impairment of L5.
OWCP’s medical examiner reviewed Dr. Rios’ report on March 4, 2014 and found that her
permanent impairment rating was of “no value” as there was no medical evidence supporting her
conclusions. He recommended a new second opinion evaluation.
On April 9, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Christian Schenk, a Board-certified neurologist. In a report dated April 24, 2014, Dr. Schenk
provided history of injury and reviewed the statement of accepted facts (SOAF). He reviewed
appellant’s lumbar magnetic resonance imaging (MRI) scan and found degenerative disc disease
with mild bulging at L2-3 and L3-4. On physical examination Dr. Schenk reported low back
tenderness to touch, but no muscle atrophy or muscle spasms. He determined that muscle tone
was normal, that muscle testing was unreliable with poor effort. Dr. Schenk found that sensory
examination was patchy, and inconsistent. It lacked a dermatomal or peripheral pattern of sensory
deficits throughout the extremities, trunk, and face. Dr. Schenk noted that appellant’s sensation
and strength findings were exaggerated by appellant and clearly demonstrated by entraining,
distraction, and maneuvers. He concluded that appellant did not have a neurologic or structural
lesion and that his examination was contaminated by symptom enhancement and nonphysiological
exaggeration. Dr. Schenk found no permanent impairment of the lower extremities.
OWCP’s medical adviser reviewed Dr. Schenk’s report on May 13, 2014 and found no
permanent impairment of appellant’s legs warranting a schedule award.

5

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

3

In a May 27, 2014 decision, OWCP denied appellant’s claim for a schedule award. On
June 19, 2014 appellant requested a review of the written record.
On August 7, 2014 appellant underwent electromyogram (EMG) studies and nerve
conduction velocity (NCV) studies which demonstrated peripheral neuropathy and chronic L5-S1
right nerve root irritation or radiculopathy.
By decision dated February 23, 2015, a hearing representative set aside the May 27, 2014
decision and remanded the case for additional evaluation by Dr. Schenk6 to determine whether
appellant had any residuals of his accepted lumbar sprain and if so, whether appellant had
permanent impairment to either lower extremity as a result of his accepted condition.
On April 21, 2015 OWCP referred appellant and a SOAF to Dr. David Ross, a Boardcertified neurologist, for a second opinion evaluation. On May 5, 2015 Dr. Ross reviewed the
SOAF and listed appellant’s low back symptoms. On examination he found that appellant’s
lumbosacral spine showed severely decreased range of motion with significant patient guarding.
Appellant had mild paravertebral muscle tenderness and spasm. Dr. Ross found normal motor
tone without atrophy. Appellant’s deep tendon reflexes were symmetric and normal, but he
exhibited give-way weakness bilaterally involving all muscle groups. Sensory examination
revealed decreased to absent vibration in the toes, loss of sensation on the bottom of the left big
toe, in a nondermatomal pattern, mildly decreased pinprick in the right medial calf, sections of the
foot, and in the left foot. Dr. Ross diagnosed nonspecific chronic low back pain. While appellant
had degenerative changes on lumbar MRI scan, these changes did not correlate with his low back
pain. His NCV and EMG findings also did not correspond to his symptoms. Dr. Ross reported
that appellant “may have” mild cervical and lumbar tenderness, but his examination was tainted
by severe symptoms magnification and excessive guarding. He further opined that appellant’s
mild myofascial spasm involving the neck and back “may be” related to his September 2007 work
injury, but that there were no objective findings of neurological dysfunction. Dr. Ross again noted
that appellant’s give-way weakness was due to effort-related issues and subjective,
nonphysiological sensory defects. He determined that appellant had no consistent, reliable,
sensory, or motor findings and did not have ratable lower extremity impairment under the A.M.A.,
Guides. Dr. Ross found that appellant had reached MMI. He noted that he did not have appellant’s
complete medical records.
By decision dated June 19, 2015, OWCP denied appellant’s claim for a schedule award,
finding that, based on Dr. Ross’ report, appellant had no permanent impairment of his lower
extremities warranting a schedule award.
Appellant requested an oral hearing on July 7, 2015. In a January 12, 2016 decision, a
hearing representative directed OWCP to secure a supplemental opinion from Dr. Ross based on
appellant’s complete medical records and refer his report to an OWCP medical adviser to
determine any impairment for schedule award purposes.

6
The record indicates that Dr. Schenk refused OWCP’s request for an additional evaluation of appellant on
March 31, 2015.

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On May 25, 2016 OWCP referred appellant, a new SOAF, and supplementary questions
for an additional examination by Dr. Ross. In his June 6, 2016 report, Dr. Ross noted the SOAF
and reviewed appellant’s medical history. He noted appellant’s reports of back pain radiating
down the right leg into the calf and foot. Appellant related symptoms of tingling down in the right
leg and foot in a nondescript pattern. He found decreased range of motion in the cervical and
lumbar spines with severe guarding and pain behavior. Dr. Ross also found mild paravertebral
muscle tenderness and spasm. Motor examination showed normal tone and bulk. While he noted
that appellant’s strength was minimally reduced in the lower extremities, Dr. Ross concluded that
these findings were unreliable due to complaints of pain and weakness that tainted effort. Reflexes
were symmetric and normal. Appellant’s sensory examination was nonphysiologic with patchy
distributions of pin-prick and temperature loss in mostly the right leg which did not conform to
any dermatomal pattern. Dr. Ross suggested that appellant’s findings were possibly the result of
generalized neuropathy. He diagnosed chronic pain syndrome. Dr. Ross opined that appellant had
chronic low back muscle tenderness and spasm related to his September 27, 2007 work injury. He
again noted that appellant’s examination was tainted by a severe functional overlay evidenced by
multiple nonphysiologic findings. Dr. Ross reported that appellant’s neurological examination of
the lower extremities remained inconsistent and nonphysiologic. He opined that, “There are no
definite abnormalities on which to base impairment to the lower extremities.” Dr. Ross reviewed
appellant’s EMG and NCV study and found that peripheral neuropathy was not related to the 2007
employment injury. He further found that the acute paraspinal muscle EMG findings were likely
recent and not related to the 2007 employment injury.
OWCP again requested a supplemental report from Dr. Ross on October 13, 2016. On
November 6, 2016 Dr. Ross opined that appellant expressed exaggerated chronic pain complaints.
He noted that appellant’s examination showed many nonphysiologic problems including
maladaptive behaviors, give-way weakness, and exaggerated emotional responses that had no
physical or sensory explanation. Dr. Ross concluded that appellant did not have a work-related
physical impairment involving his lower extremities.
On November 29, 2016 OWCP’s medical adviser reviewed the claim and concluded that
appellant had no spinal impairments resulting in permanent impairment of the lower extremities
and therefore his accepted conditions did not warrant a schedule award.
By decision dated December 19, 2016, OWCP denied appellant’s schedule award claim.
On January 18, 2017 appellant requested a review of the written record. He contended that
Dr. Rios’ reports were rejected due to bias, and that she should have been given an opportunity to
correct the defects in her reports. Appellant further contended that the examinations from
Drs. Ross and Schenk should be discounted.
In a June 21, 2017 decision, OWCP’s hearing representative found that appellant had not
met his burden of proof to establish that his accepted lumbar spine condition resulted in permanent
impairment of his lower extremities entitling him to a schedule award.

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LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for loss
of use of scheduled members or functions of the body. FECA, however, does not specify the
manner in which the percentage loss of a member shall be determined. The method used in making
such determination is a matter which rests in the discretion of OWCP. For consistent results and
to ensure equal justice, the Board has authorized the use of a single set of tables so that there may
be uniform standards applicable to all claimants. OWCP evaluates the degree of permanent
impairment according to the standards set forth in the specified edition of the A.M.A., Guides.9
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.10 Because neither FECA nor the implementing regulations provide
for the payment of a schedule award for the permanent loss of use of whole person or the back or
spine,11 no claimant is entitled to such an award.12
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine, the
A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with sixth
edition methodology.14 OWCP has adopted this approach for rating impairment of the upper or

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides. A.M.A.,
Guides, (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability
Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700 Exhibit 1 (January 2010).
10

W.D., Docket No. 10-0274 (issued September 3, 2010); William Edwin Muir, 27 ECAB 579 (1976).

11

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

12

W.D., supra note 10. Timothy J. McGuire, 34 ECAB 189 (1982).

13

W.D., supra note 10. Rozella L. Skinner, 37 ECAB 398 (1986).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5(c)(3) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700
Exhibit 4 (January 2010).

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lower extremities caused by a spinal injury, as provided in section 3.700 of its procedures which
memorializes proposed tables outlined in a July/August 2009, The Guides Newsletter.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish lower extremity
permanent impairment due to his accepted employment injury.
OWCP accepted appellant’s claim for lumbar sprain and severe generalized anxiety
disorder with depressive features. Appellant filed a claim for a schedule (Form CA-7) and OWCP
determined that he has not met his burden of proof to establish permanent impairment of his lower
extremities due to his accepted employment injury.
Following the Board’s January 7, 2013 decision, OWCP further developed appellant’s
schedule award claim. It complied with the Board’s directive and referred Dr. Rios’ report to an
OWCP medical adviser. He found that her report was based on subjective complaints and
indicated that appellant had symptom magnification such that this report was not a basis for a
schedule award.16
OWCP requested a supplemental report from Dr. Rios, and on December 4, 2013, Dr. Rios
provided appellant’s permanent impairment as it related to his spine. Under FECA, a schedule
award is not payable for injury to the spine.17 Furthermore, this report did not provide an
assessment of appellant’s permanent impairment, pursuant to The Guides Newsletter, establishing
ratable permanent impairment of a scheduled body member.18 As such this report is of limited
probative value in establishing appellant’s entitlement to a schedule award.19
OWCP then referred appellant for a second opinion evaluation with Dr. Schenk. In his
April 24, 2014 report, Dr. Schenk found that appellant did not have a neurologic or structural
lesion and that his examination was contaminated by symptom enhancement and nonphysiological
exaggeration. He concluded that appellant had no permanent impairment of the lower extremities.
This report does not support appellant’s claim for permanent impairment of the lower extremities

15
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibits 1, 4
(January 2010).
16

OWCP procedures provide that, after obtaining all necessary medical evidence, the file should be routed to
OWCP’s medical adviser for an opinion concerning the nature and percentage of impairment and to verify the
calculations of the attending physician or second opinion examiner in accordance with the A.M.A., Guides. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, at Chapter
2.808.6(f)(1) (March 2017).
17

I.S., Docket No. 17-1257 (issued December 21, 2017).

18

T.D., Docket No. 17-1495 (issued January 4, 2018).

19

Id.

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as a result of his accepted spine conditions and does not establish permanent impairment of the
lower extremities warranting a schedule award.20
OWCP then referred appellant to Dr. Ross to evaluate whether his accepted lumbar spine
condition resulted in permanent impairment of his legs. Dr. Ross found that appellant’s
examination was tainted by a severe functional overlay evidenced by multiple nonphysiologic
findings. He also noted that appellant’s neurological examination of the lower extremities
remained inconsistent and nonphysiologic. Dr. Ross determined that appellant had no consistent,
reliable, sensory, or motor findings and did not have ratable lower extremity impairment under the
A.M.A., Guides. The Board finds that as Dr. Ross opined that appellant did not have documented
neurologic deficits that appellant was not entitled to any permanent impairment rating based on
the sixth edition of the A.M.A., Guides.21 There is no current medical evidence of record
supporting that appellant has ratable permanent impairment of a scheduled body member under
the A.M.A., Guides, or The Guides Newsletter.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish lower extremity
permanent impairment due to his accepted employment injury.

20

Id.

21

B.C., Docket No. 17-1617 (issued January 8, 2018); D.K., Docket No. 15-1312 (issued October 6, 2015) (a
finding of no sensory or motor deficits in the lower extremities results in zero percent impairment for the legs as a
result of spine injury pursuant to the A.M.A., Guides).

8

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 27, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, Washington, DC, Employer
__________________________________________

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

Docket No. 18-0180
Issued: August 20, 2018

Case Submitted on the Record

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

JURISDICTION
On October 31, 2017 appellant filed a timely appeal from a May 4, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision dated April 26, 2016, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of the claim.2

1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated March 15, 2018, the Board denied
the request for oral argument as it did not have jurisdiction over the merits of the case and thus, appellant’s arguments
on appeal could adequately be addressed in a decision based on a review of the case record. Order Denying Request
for Oral Argument, Docket No. 18-0180 (issued March 15, 2018).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On March 10, 2016 appellant, then a 44-year-old legal assistant, filed a traumatic injury
claim (Form CA-1) alleging that, on March 1, 2016, she fell when she was struck by copy room
door at the employing establishment and knocked off her crutches. She claimed that her right
knee, which already had a torn anterior cruciate ligament, jerked and was very sore to the touch.
Appellant listed her injury as right knee medial collateral ligament/posterior cruciate ligament tear
(MCL/PCL). She submitted illegible documents in support of her claim.
By development letter dated March 24, 2016, OWCP advised appellant that additional
information was necessary to support her claim, including further information with regard to how
the alleged incident occurred and medical information showing causal relationship between a
medical diagnosis and the alleged employment event. It afforded her 30 days to submit the
necessary evidence.
In response, appellant submitted multiple reports from Kaiser Permanente. These reports
included a February 1, 2016 report wherein Dr. Sangeeta Iyer, a Board-certified internist,
diagnosed right knee medial collateral ligament tear and obesity. Dr. Iyer indicated that appellant
should continue to use crutches. In an April 1, 2016 report, Dr. Gregory Ford, a Board-certified
orthopedic surgeon, noted that appellant was initially injured in a nonemployment injury on
January 22, 2016, and suffered exacerbation of the injury on March 1, 2016 when she fell at work.
Appellant’s diagnoses were listed as right knee PCL tear, subsequent, and right knee MCL tear,
subsequent. Dr. Ford found appellant able to work full capacity on May 18, 2016.
In a decision dated April 26, 2016, OWCP denied appellant’s claim as it determined that
she failed to meet the factual component of her claim. It noted that she had not provided additional
factual information in response to its March 24, 2016 development letter. OWCP further noted
that appellant had not submitted medical evidence to establish that a diagnosed medical condition
was causally related to the alleged work injury or event. The FECA appeal rights accompanying
the decision provided, in part, the following under appeal right number 2, entitled
“RECONSIDERATION: The request must be signed, dated and received within one
calendar year of the date of the decision.” (Emphasis in the original).
Additional medical evidence was received by OWCP after the April 26, 2016 decision.
These included reports that predated the March 1, 2016 alleged incident. In a January 25, 2016
report, Dr. Robert Miles, a Board-certified family practitioner, indicated that appellant sustained a
right knee injury three days prior when she fell on some icy steps and twisted her left knee. He
diagnosed right knee chondral injury and right knee sprain. Records indicate that appellant
continued to receive treatment for her injured right knee. In a February 12, 2016 magnetic
resonance imaging (MRI) scan, Dr. Christopher Wu, a Board-certified radiologist, interpreted an
MRI scan as evincing a full-thickness tear of the MCL and probably full-thickness tear of the PCL
at the tibial attachment. He also noted early cartilage disease in the central trochlear groove.

2

On March 8, 2016 appellant was treated by Mr. Waters and his reports were reviewed by
Dr. Mychelle Shegog, a Board-certified orthopedic surgeon. Mr. Waters noted that appellant had
her crutch knocked out from under her last week at work, causing her right knee to give out
backwards. He noted that her MRI scan showed a complete proximal MCL tear and PCL tears,
otherwise minimal damage/degeneration. Mr. Waters recommended that appellant continue to use
her crutches and indicated that he would refer her to a surgeon for evaluation. Appellant also
submitted physical therapy reports.
On May 1, 2017 appellant requested reconsideration. She submitted a statement in which
she alleged that she sent paperwork from her doctor that contained a specific statement that the
workplace injury resulted in an exacerbation of her prior injury. Appellant also stated that she
could not specify in more detail about the incident as it happened so quickly. She stated that the
“Chair of the Departmental Appeals Board” as well as her supervisor were on the scene when
emergency services came to help her off the floor. Appellant noted that her supervisor was with
her as she left the office, got into the ambulance, went to the hospital emergency department, and
that her supervisor stayed until she received the x-rays and her husband arrived. She also submitted
an e-mail form her supervisor memorializing a discussion they had relative to modified work
activity.
By decision dated May 4, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA 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 or her own motion or on application.
The Secretary, in accordance with facts found on review, may end, decrease, or increase the
compensation awarded, or award compensation previously refused or discontinued.3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the implementing
regulation provides that an application for reconsideration must be received within one year of the
date of OWCP’s decision for which review is sought.4 Timeliness is determined by the document
receipt date (i.e., the received date in OWCP’s Integrated Federal Employees’ Compensation
system).5 When determining the one-year period for requesting reconsideration, the last day of
the period should be included unless it is a Saturday, a Sunday, or a legal holiday.6 The Board has

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(a).

5

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

6

Id.

3

found that the imposition of the one-year limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.7
However, OWCP will reopen a claimant’s case for merit review, notwithstanding the oneyear filing limitation, if the claimant’s application for review demonstrates clear evidence of error
on the part of OWCP in its most recent merit decision. To demonstrate 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.8
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but it 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.9 The Board
notes that clear evidence of error is intended to represent a difficult standard.10 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.11 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.12 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.13 The Board makes an independent determination as to whether a claimant has
demonstrated clear evidence of error on the part of OWCP.14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. A request for reconsideration must be received within one
year of the date of OWCP’s decision for which review is sought.15 As appellant’s request for
reconsideration was not received by OWCP until May 1, 2017, more than one year after the
April 26, 2016 merit decision, it was untimely filed. Appellant contends that, based on the practice
in her office, her understanding was that her reconsideration request must be mailed by
April 26, 2017. However, in the statement with regard to appellant’s FECA appeal rights that was
mailed to her with the decision, OWCP clearly noted and highlighted that any request for
7

5 U.S.C. § 81328(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989)

8

Supra note 4 § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

9

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

10

R.K., Docket No. 16-0355 (issued June 27, 2016).

11

Jimmy L. Day, 48 ECAB 652 (1997).

12

Id.

13

Id.

14

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

15

20 C.F.R. § 10.607(a).

4

reconsideration must be signed, dated, and received by OWCP within one-calendar year of the
date of the decision. Consequently, appellant must demonstrate clear evidence of error by OWCP
in its April 26, 2016 decision.
The Board also finds that appellant has not demonstrated clear evidence of error in the
April 26, 2016 merit decision. The underlying issue is whether appellant has established that the
claimed March 1, 2016 employment incident occurred as alleged -- i.e., that she in fact fell off her
crutches when she was hit by a copy room door, and that this alleged incident caused her diagnosed
conditions. The Board finds that the arguments and evidence submitted by appellant in support of
her request for reconsideration did not raise a substantial question as to the correctness of the denial
of the claim.16
The term clear evidence of error is intended to represent a difficult standard, and appellant’s
statement about her supervisor accompanying her to the hospital and that the Chairman of the
employing establishment’s appeals board was on the scene when the emergency personnel arrived
is not the type of positive, precise, and explicit argument which manifested on its face that OWCP
committed an error as it does not describe a mechanism of injury.17 Appellant’s statement and
email memorializing a conversation relative to modified work is of insufficient probative value to
shift the weight in her favor and raise a substantial question as to the correctness of the denial of
claim in OWCP’s April 26, 2016 merit decision.18
In order to demonstrate clear evidence of error, a claimant must submit evidence relevant
to the issue which was decided by OWCP.19 The only evidence submitted on reconsideration was
medical evidence. Clear evidence of error is intended to represent a difficult standard. The
submission of a detailed, well-rationalized medical report which, if submitted before the merit
decision was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.20 The Board makes an independent determination of
whether a claimant has demonstrated clear evidence of error on the part of OWCP.21 The medical
evidence appellant submitted on reconsideration did not on its face establish that the alleged
incident caused an injury. Consequently, the medical evidence is insufficient to demonstrate clear
evidence of error.
The Board finds that appellant’s request for reconsideration does not demonstrate that
OWCP committed error when it denied appellant’s claim on April 26, 2016.22 As noted, clear

16

D.B., Docket No. 17-1197 (issued November 1, 2017).

17

Id.

18

See J.P., Docket No. 17-0053 (issued March 23, 2017).

19

B.C., Docket No. 16-1404 (issued April 14, 2017).

20

James R. Mirra, 56 ECAB 738 (2005); supra note 5 at Chapter 2.1602.5(a) (February 2016).

21

Nancy Marcano, 50 ECAB 110 (1998).

22

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

5

evidence of error is intended to represent a difficult standard and appellant has not met this standard
in this case.
For these reasons, the evidence submitted by appellant does not raise a substantial question
concerning the correctness of OWCP’s April 26, 2016 merit decision and OWCP properly
determined that appellant did not demonstrate clear evidence of error in that decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated May 4, 2017 is affirmed.
Issued: August 20, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-190
Issued: June 12, 2012

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On November 2, 2011 appellant, through counsel, filed a timely appeal from a
September 28, 2011 decision of the Office of Workers’ Compensation Programs (OWCP)
concerning his loss of wage-earning capacity determination based on his actual earnings. The
Board assigned Docket No. 12-190.
OWCP accepted that on August 25, 1988 appellant sustained subluxations of T1, T2, T4,
L3, L4 and L5, which resolved as of January 15, 1992 and conversion disorder.1
On March 14, 2011 OWCP issued a loss of wage-earning capacity determination based
upon appellant’s actual earnings as a clerk2 working 20 hours per week beginning February 2,
2009 and earning a weekly salary of $331.00. It found that this position fairly and reasonably
represented his wage-earning capacity with the reduction effective February 2, 2009.
1

This case has previously been before the Board. In a March 2, 2011 decision, the Board reversed OWCP’s
December 9, 2009 decision affirming a March 27, 2009 wage-earning capacity decision. Docket No. 10-891 (issued
March 2, 2011). The Board found that OWCP failed to meet its burden of proof in finding the clerk position
suitable as appellant had not worked the clerk position for more than 60 days.
2

Appellant initially returned to work as a clerk working four hours per day four days per week on January 26,
2009, which was increased to five hours per day on February 2, 2009.

To determine whether the employee’s work fairly and reasonably represents his wageearning capacity, OWCP should consider whether the tour of duty is at least equivalent to that of
the job held on date of injury. Unless it is, OWCP may not consider the work suitable. Thus,
reemployment may not be considered suitable when the job is part time, unless the claimant was
a part-time worker at the time of injury.3
The Board having duly considered the matter concludes that OWCP failed to meet its
burden of proof in reducing appellant’s wage-loss compensation effective February 2, 2009
based on his actual earnings as a clerk. OWCP found appellant was working part time or 20
hours per week in the clerk position. However, it has administratively determined that part-time
reemployment does not fairly and reasonably represent an employee’s wage-earning capacity in
the open labor market unless the claimant was a part-time worker at the time of injury.4 At the
time of his injury appellant was a full-time employee working 40 hours per week. OWCP failed
to follow its procedures when it determined that appellant’s part-time job working 20 hours per
week fairly and reasonably represented his wage-earning capacity.
The Board finds that March 14, 2011 loss of wage-earning capacity determination was, in
fact, erroneous. Therefore, the Board will reverse OWCP’s September 28, 2011 decision
affirming the wage-earning capacity determination.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(a)(1) (October 2009).
4

Federal (FECA) Procedure Manual, supra note 3. See O.V., Docket No. 11-98 (issued September 30, 2011)
(overruling Price to the extent of their finding that OWCP’s procedure allows consideration of part-time
reemployment when the tour of duty is not at least equivalent to that of the job held on the date of injury).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2011 is reversed.
Issued: June 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 07-669
Issued: November 7, 2007

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 January 16, 2007 appellant filed a timely appeal of a May 25, 2006 decision of the
Office of Workers’ Compensation Programs which denied merit review. Because more than one
year has elapsed between the most recent merit decision dated September 22, 2005 and the filing
of this appeal on January 16, 2007 the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.

FACTUAL HISTORY
On January 18, 2005 appellant, then a 39-year-old clerk, filed an occupational disease
claim alleging that he developed a right hip condition while in the performance of duty.1 He
became aware of his condition on July 26, 2004. Appellant stopped work on January 18, 2005.
Appellant submitted a July 26, 2004 report from Dr. Don H. Powell, an osteopath, who
treated him for low back and radicular pain in his buttocks and leg that developed when he was
sorting mail and lifting packages at work. Dr. Powell diagnosed sudden onset of back pain. An
October 14, 2004 nuclear medicine bone scan of the hips revealed abnormal activity in the right
femoral neck region which may be attributed to bursitis, avascular necrosis of the femoral head
or a stress reaction to an old injury. In a November 12, 2004 report, Dr. James R. Ellis, a Boardcertified physiatrist, treated appellant for right hip pain. He noted that appellant had a workrelated lifting injury in July 2004 which caused a resolved back injury. Dr. Ellis diagnosed right
hip pain which preexisted the July 26, 2004 injury. Also submitted was a January 14, 2005
return to work slip from Dr. Gregory J. Golladay, a Board-certified orthopedic surgeon, who
diagnosed bursitis and hip contusion.
Appellant submitted diagnostic test findings and reports from Dr. Golladay dated
January 14 and February 11, 2005, who treated him for right hip pain which occurred after
prolonged standing and twisting at his job. Dr. Golladay diagnosed right hip pain contusion,
mechanical stress reaction on the femoral head, early osteoarthritis and trochanteric bursitis.
Also submitted was a report from Dr. David Galluch, a Board-certified physiatrist, dated
March 20, 2005, who diagnosed femoral neck stress reaction and noted that appellant’s right hip
pain had dramatically improved over the last month.
By decision dated June 16, 2005, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that his claimed medical condition was caused by
employment-related events.
Appellant requested reconsideration and submitted additional medical evidence. In
May 27 and June 20, 2005 reports, Dr. Golladay noted right hip pain, in trochanteric bursitis and
a stress injury to the femoral neck caused by an injury on July 26, 2004. He indicated that
appellant’s lumbar strain was directly related to twisting and bending at his job which caused an
alteration in appellant’s gait mechanics and was related to the stress syndrome that developed in
his femoral neck and the underlying degenerative arthritis in the hip.
In a decision dated September 22, 2005, the Office denied modification of the June 16,
2005 decision.
In a letter dated March 9, 2006, appellant requested reconsideration. He submitted a
report from Dr. Golladay, dated March 1, 2006, who opined that appellant’s stress reaction in his
hip was secondary to the alteration in his gait from his lumbar strain that occurred on

1

Appellant filed a claim for a lumbar injury occurring on July 26, 2004 which was accepted by the Office for a
lumbar strain, claim number 09-2049438.

2

July 26, 2004. Dr. Golladay opined that the types of changes seen in appellant’s femoral neck
and on the bone scan could be related to an alteration and gait mechanics.
In a letter dated April 5, 2006, the Office informed Dr. Golladay that appellant filed a
claim for a back injury sustained on July 26, 2004 which was accepted for lumbar strain. It
indicated that appellant filed a separate occupational disease claim on January 18, 2005 for a hip
condition which commenced on July 26, 2004 and was caused by repetitive work factors. The
Office requested that Dr. Golladay address whether appellant’s hip condition was caused by an
altered gait he developed as a result of the July 26, 2004 traumatic injury or whether the
condition was due to repetitive work factors and whether these conditions are resolved.
In a report dated May 9, 2006, Dr. Golladay diagnosed hip pain, hip joint effusion, stress
reaction in the femoral neck and difficulty walking. He indicated that appellant’s hip joint
arthritis was separate, but probably aggravated by his lumbar strain and advised that he could not
comment on appellant’s gait because he had not examined him recently. Dr. Golladay indicated
that on the last examination appellant complained of hip pain and noted that it was not unusual
for an acute injury to unmask or exacerbate the symptoms of arthritis. He also provided a work
restriction evaluation.
By decision dated May 25, 2006, the Office denied appellant’s reconsideration request on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence and was insufficient to warrant further merit review.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,2 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,3 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, sets forth arguments and
contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.4
ANALYSIS
On September 22, 2005 the Office denied modification of appellant’s claim on the
grounds that the evidence of record failed to demonstrate that appellant sustained a hip condition
in the performance of duty. However, following issuance of the September 22, 2005 decision
and after appellant’s March 9, 2006 reconsideration request, the Office received additional
medical evidence, specifically a report from Dr. Golladay dated March 1, 2006, and conducted
further development of appellant’s claim by requesting that Dr. Golladay address the cause of his
hip condition. In so doing, the Office proceeded to exercise its discretionary authority under 5
U.S.C. § 8128. This case is analogous to David F. Garner,5 in which the Board found that, after
soliciting and receiving new evidence on reconsideration, the Office did not conduct a limited
review of the case and that it erred in finding that the reconsideration request was untimely and
did not establish clear evidence of error. The Board stated:
“Because the Office, in its own discretion, reopened appellant’s case for a full
merit review and further developed the case by soliciting additional medical and
factual evidence from appellant, it cannot now deny appellant’s reconsideration
request using the clear evidence of error standard. Rather, the Office should have
applied the abuse of discretion standard to grant or deny modification of its …
decision and then apprise appellant of his concomitant appeal rights.”6
In this case, appellant was notified by the Office on April 5, 2006 that it was further
developing his claim by requesting that Dr. Golladay address whether his hip condition was
caused by an altered gait he developed as a result of the July 26, 2004 traumatic injury or
whether the condition was due to repetitive factors and whether these conditions were resolved.
As the record currently stands, the Office has not issued a merit decision evaluating the evidence
it solicited and obtained from Dr. Golladay. Exercising its discretionary authority, the Office
solicited and received relevant pertinent evidence not previously considered. Therefore, the
Office must conduct an appropriate merit review of the evidence under section 8128(a).
CONCLUSION
The Board finds that the Office improperly denied appellant’s request for reconsideration.

4

20 C.F.R. § 10.608(b).

5

43 ECAB 459 (1992); see also Joyce A. Fasanello, 49 ECAB 490 (1998).

6

Id. at 462.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 25, 2006 is set aside and the case remanded for further
proceedings consistent with this decision.
Issued: November 7, 2007
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0859
Issued: October 14, 2016

Case Submitted on the Record

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

JURISDICTION
On March 22, 2016 appellant, through counsel, filed a timely appeal from a February 2,
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 the case.
ISSUE
The issue is whether appellant established that he suffered from a pulmonary 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.

On appeal counsel contends that an OWCP hearing representative totally ignored the
well-rationalized opinion of appellant’s physician when analyzing appellant’s claim. He further
contends that the weight of the medical evidence rests with the opinions of appellant’s treating
physicians, and that at a minimum, appellant should have been referred to an impartial medical
examiner to resolve a conflict in medical opinion evidence between appellant’s physicians and
the physician who conducted the second opinion for OWCP.
FACTUAL HISTORY
On September 19, 2014 appellant, then a 63-year-old boilermaker, filed an occupational
disease claim (Form CA-2) alleging that he suffered from occupational pneumoconiosis with
pulmonary asbestosis and chronic obstructive pulmonary disease (COPD) as a result of his
federal employment. He did not indicate on the claim form that he had stopped work and he did
not submit any evidence with his claim.
By letter dated October 7, 2014, OWCP informed appellant that further information,
including medical evidence, was necessary to support his claim. It afforded him 30 days to
submit this information.
Appellant submitted a statement detailing his work assignments for the employing
establishment and elsewhere for the Boilermakers Union since 1978. He noted that his work
exposed him to coal dust on a daily basis, as well as asbestos, flue gas, fly ash, welding smoke,
fumes and grinding dust. Appellant indicated that he has had shortness of breath and has used
inhalers since approximately 2006. He also noted that he smoked cigarettes for 30 years at the
rate of one and one-half to two packs a day, but indicated that he quit smoking 14 years ago. A
copy of appellant’s work record was submitted that supported his statement regarding his
employment history.
In an August 26, 2014 medical report, Dr. Glen Baker, a physician Board-certified in
internal medicine and pulmonary disease, noted appellant’s work history as a boilermaker for 26
years and listed appellant’s various job assignments. He noted that appellant would occasionally
wear a paper mask, or a more substantial mask, but that he did not wear a mask at all times.
Dr. Baker noted that appellant had been short of breath for the past 15 to 16 years, primarily with
dyspnea on exertion. He interpreted a chest x-ray as showing occupational pneumoconiosis
category 1/0. Dr. Baker also found mild obstructive ventilatory defect on pulmonary function
testing. He stated that with appellant’s FEV1 of 77 percent he would have a class 1 B, 4 percent
impairment based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (2009). Dr. Baker concluded that appellant worked as a
boilermaker for 26 years with exposure to asbestos coal dust as well as other dusts, fumes, and
odors of unclear etiology. He noted that appellant had x-ray changes consistent with early
pulmonary asbestosis and that his pulmonary function studies were mildly reduced. Dr. Baker
noted that appellant ceased cigarette smoking 14 years ago. He opined that appellant’s
impairment was due to a combination of his COPD and pulmonary asbestosis that was due to his
26-year work history, although he noted that his tobacco exposure contributed to his COPD.
Appellant also submitted Dr. Baker’s pulmonary function study, spirometry report and x-ray
report.

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Mike Bradford, an industrial hygienist for the employing establishment prepared an
undated report concerning appellant’s claim. He discussed appellant’s employment history and
challenged his assertion that he used a paper mask, as the employing establishment required Half
Mask Air Purifying Respirators, at a minimum. Mr. Bradford also contended that appellant
spent approximately 80 percent of his working career at various assignments for the Boilermaker
Union, and that the employing establishment could not attest to his exposure or protection during
this employment. He discussed appellant’s smoking history. Mr. Bradford concluded that given
the exposure to coal dust at the employing establishment was consistently under the OSHA
guidelines, appellant’s smoking history was the likely causative factor in his respiratory illness
and would be unrelated to the work for the employing establishment. He noted that the
employing establishment continued to have a very strong respiratory protection program for
workers exposed to airborne hazards.
On December 22, 2014 OWCP referred appellant to Dr. Allan Goldstein, a physician
Board-certified in pulmonology and internal medicine, for a second opinion. In a January 12,
2015 report, Dr. Goldstein noted that he had reviewed appellant’s record and had conducted a
physical examination. He concluded that appellant did not have asbestosis. Dr. Goldstein noted
that appellant’s x-rays showed no evidence of pneumoconiosis. He related that appellant’s
pulmonary functions showed an obstructive defect with a slight increase in residual volume that
did not improve with a bronchodilator, and the small airways decreased in volume with
bronchodilators suggesting some irritation of the airway. Dr. Goldstein noted that the diffusion
capacity was reduced but normalized for alveolar volume. He opined that although appellant had
been exposed to asbestos and did have an appropriate latency period, he did not meet the
American Thoracic Society criteria for asbestosis. Dr. Goldstein explained that appellant’s chest
x-ray did not show a profusion of 1/0, that the criteria required a restrictive defect on pulmonary
function. He also related that, while appellant had an obstructive defect, he did not have rales on
examination, and that, while his diffusion was abnormal, it was corrected for alveolar volume.
Dr. Goldstein noted that appellant did have COPD, but that this is related to his smoking. He
opined that, although appellant has been exposed to asbestos based on history, he does not have
asbestosis. Dr. Goldstein noted that appellant did not give a history that would be consistent
with occupational asthma, and that his pulmonary functions were not consistent with reversible
airways disease and were not consistent with restrictive defect. The objective tests supporting
Dr. Goldstein’s report were also submitted to the record.
By decision dated March 17, 2015, OWCP denied appellant’s claim as it determined that
the medical evidence of record did not demonstrate that his chronic obstructive pulmonary
disease was the result of his accepted exposure to asbestosis during his federal employment.
By letter dated March 26, 2015, postmarked March 27, 2015, appellant requested a
hearing before an OWCP hearing representative.
In an October 5, 2015 x-ray report, Dr. Matthew A. Vuskovich, a physician Boardcertified in occupational medicine, interpreted appellant’s radiograph and determined that
appellant had category 2/1 pneumoconiosis.
Appellant requested a hearing. At the hearing held on November 18, 2015, appellant
testified and described the duties of a boilermaker and described his duties at each of his job

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assignments for the employing establishment and his exposure to asbestos. He noted that the
dust got in his nose and that he would blow it out his nose and cough up dust. Appellant
described his breathing problems. He noted that it has been 15 years since he smoked. Counsel
discussed the medical evidence. He argued that as there was a conflict in the medical evidence
between appellant’s treating physician and the second opinion physician, appellant should have
been referred for an impartial medical examination.
In a December 22, 2015 letter, the employing establishment contended that the exposure
to coal dust that appellant and counsel allege was not accurate, and that there was no quantitative
analysis showing this alleged exposure to dust. It stated that appellant was never exposed to an
airborne hazard identified by air sampling, and therefore there was no requirement for him to
wear the enhanced protection. However, if a hazard existed, more protective equipment would
have been required. This letter also noted that only trained personnel (insulators) with proper
personal protective equipment were allowed to perform insulating abatement duties, and that
appellant did not perform insulating/abatement duties as a boilermaker during his tenure at the
employing establishment.
In a January 5, 2016 letter to the hearing representative, counsel responded to the
employing establishment’s letter, arguing that the employing establishment clearly noted data
regarding appellant’s exposure to respirable dust was not available. However, admittedly, dust
was present at the plants where appellant worked. Counsel argued that one negative report, that
of Dr. Goldstein, could not represent the weight of the evidence.
By decision dated February 2, 2016, the hearing representative found that appellant had
not submitted any detailed rationalized medical evidence to support that his claimed condition
was due to factors of his employment, and accordingly affirmed the March 17, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.3 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.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

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disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.7
ANALYSIS
The Board finds that this case is not in posture for decision as there is an unresolved
conflict in medical opinion. OWCP determined that appellant had established that he was
exposed to respirable dust during his federal employment. Further, the evidence established that
appellant was diagnosed with pulmonary issues, including COPD.
However, OWCP denied appellant’s claim, finding that he failed to establish a causal
relationship between the accepted factors of his federal employment and the medical diagnosis.
In reaching this conclusion, the hearing representative determined that appellant had not
submitted any detailed rationalized medical evidence to support that the claimed condition is due
to factors of his federal employment. Although she mentioned the report of appellant’s
physician, Dr. Baker, when discussing the factual history of the case, the hearing representative
did not discuss Dr. Baker’s report when analyzing the medical evidence. Instead, the hearing
representative found that Dr. Goldstein, the second opinion physician, opined that appellant’s
condition was not related to his federal employment, and she denied benefits based on this
report.
The Board notes that the hearing representative’s statement that appellant failed to submit
rationalized medical evidence to support that he suffered a medical diagnosis causally related to
the accepted factors of his federal employment is incorrect. Appellant submitted a report by
Dr. Baker, a physician who is Board-certified in internal medicine and pulmonary disease.
Dr. Baker conducted objective studies. He noted that appellant’s chest x-ray was consistent with
early pulmonary asbestosis and that his pulmonary function studies were mildly reduced.
Dr. Baker discussed appellant’s employment-related exposure to dust, noted his smoking history,
and concluded that appellant’s impairment was due to a combination of his COPD and
pulmonary asbestosis that was due to his 26-year work history as a boilermaker, although he did
note that appellant’s tobacco exposure contributed to his COPD. Dr. Baker diagnosed
occupational pneumoconiosis with pulmonary asbestosis category 1/0 and mild obstructive
ventilatory defect on pulmonary function testing.
6

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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OWCP referred appellant to Dr. Goldstein for a second opinion, and Dr. Goldstein
disagreed with the diagnoses of Drs. Baker and Vuskovich. Dr. Goldstein, who is also Boardcertified in pulmonology and internal medicine, concluded that appellant’s x-rays showed no
evidence of pneumoconiosis, and that his pulmonary functions and blood gas studies also were
not supportive of asbestosis. He found that appellant’s pulmonary functions were not consistent
with reversible airways disease and were not consistent with a restrictive defect. Rather,
Dr. Goldstein determined that appellant suffered from COPD related to his prior smoking
history.
The Board finds that the reports of Drs. Baker and Goldstein are of virtually equal weight
and rationale.8 Both physicians are Board-certified in internal medicine and pulmonology. Both
physicians support their respective conclusions with objective studies, discussion of appellant’s
employment history, and physical examination findings. Because there is an unresolved conflict
in medical opinion, pursuant to 5 U.S.C. § 8123(a), the case will be remanded to OWCP for
referral to an impartial medical examiner to determine whether appellant has a pulmonary
condition causally related to the accepted factors of his federal employment. After OWCP has
developed the case record consistent with the Board’s directive, a de novo decision shall be
issued.
CONCLUSION
This case is not in posture for decision due to an unresolved conflict in the medical
evidence.

8

See Darlene R. Kennedy, 57 ECAB 414, 416 (2006); see also D.S., Docket No. 16-0174 (issued April 11, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2016 is set aside, and the case is remanded for further
action consistent with this decision.
Issued: October 14, 2016
Washington, DC

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

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

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

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