United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Flowery Branch, GA, Employer
__________________________________________

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

Docket No. 17-1726
Issued: March 12, 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 7, 2017 appellant filed a timely appeal from the July 14, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established greater than 18 percent permanent
impairment of her right upper extremity, for which she previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
OWCP accepted that on May 23, 2013 appellant, then a 56-year-old lead customer
service clerk, sustained reflex sympathetic dystrophy (RSD) of the right upper limb and an
acromioclavicular sprain of the right shoulder and upper arm while in the performance of duty.
It paid appropriate compensation benefits and authorized surgery performed by Dr. Jesse E.
Seidman, an attending Board-certified orthopedic surgeon on December 18, 2013.3 Appellant
returned to light-duty work on August 14, 2014 and Dr. Seidman then released her to return to
full-duty work on January 12, 2015.
On January 21, 2015 appellant filed a claim for a schedule award (Form CA-7). In a
January 12, 2015 report, Dr. Seidman noted active abduction and forward flexion of the right
shoulder at 140 degrees, external rotation at 40 degrees, internal rotation at 30 degrees, and
extension at 50 degrees. He found good motion of the right wrist, slight atrophy in the right
hand, and range of motion (ROM) of the proximal interphalangeal (PIP) and
metacarpophalangeal (MCP) joints limited to 90 degrees.
An OWCP medical adviser reviewed the evidence of record on February 4, 2015. He
found that appellant had attained maximum medical improvement (MMI) as of December 18,
2014, one year after arthroscopic right shoulder surgery. Referring to Table 15-34 in the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides),4 the medical adviser found, utilizing ROM
methodology, three percent impairment of the right upper extremity due to forward elevation
limited to 140 degrees, three percent impairment due to shoulder abduction limited to 140
degrees, four percent impairment due to internal rotation limited to 30 degrees, and two percent
impairment for external rotation limited to 40 degrees. He combined these percentages to equal
12 percent permanent impairment of the right upper extremity.
In a March 2, 2015 letter, Dr. Seidman found that appellant had attained MMI as of
January 12, 2015. He opined that she had 18 percent permanent impairment of the right upper
extremity according to unspecified portions of the A.M.A., Guides.
An OWCP medical adviser reviewed Dr. Seidman’s report on April 10, 2015 and
concurred that appellant had 18 percent permanent impairment of the right upper extremity due
to limited right shoulder and finger motion. He noted that Dr. Seidman indicated that she had
complex regional pain syndrome postoperation with resultant motion deficit of right shoulder as
well as finger motion which equaled a total 18 percent right upper extremity impairment. The
2

Docket No. 16-1462 (issued April 11, 2017).

3

Dr. Seidman performed arthroscopic debridement of the subscapularis, arthroscopic subacromial
decompression, biceps tenotomy, arthroscopic Mumford procedure, and arthroscopic double row rotator cuff repair.
4

Table 15-34 (Shoulder Range of Motion), p. 475, A.M.A., Guides (6th ed. 2009).

2

medical adviser found that it was appropriate to use the ROM rating method as opposed to a
diagnosis-based impairment (DBI) methodology, because appellant’s RSD syndrome manifested
itself primarily through limited shoulder and hand motion.
By decision dated May 5, 2015, OWCP granted appellant a schedule award for 18
percent permanent impairment of the right upper extremity. The period of the award ran from
January 12, 2015 to February 9, 2016.
In a May 18, 2015 letter, appellant requested a telephonic oral hearing, which was held
before an OWCP hearing representative on December 17, 2015. At the hearing, she described
continued limited motion in her right hand and shoulder. Appellant’s husband presented
information and quoted newspaper articles about RSD syndrome. Appellant submitted
photographs illustrating her limited hand motion, including the inability to make a fist with her
right hand. Following the hearing, she submitted physical therapy notes.
By decision dated March 2, 2016, OWCP’s hearing representative affirmed OWCP’s
May 5, 2015 schedule award determination, finding that the additional evidence submitted did
not establish that appellant sustained greater than 18 percent permanent impairment of the right
upper extremity.
Appellant appealed to the Board on July 1, 2016. By decision dated April 11, 2017, the
Board set aside the March 2, 2016 decision.5 The Board found that OWCP had inconsistently
applied Chapter 15 of the A.M.A., Guides regarding the proper use either the DBI or ROM
methodology in assessing the extent of permanent impairment. The Board remanded the case for
OWCP to issue a de novo decision after development of a consistent method for calculating
permanent impairment of the upper extremities.
On June 16, 2017 OWCP requested that its medical adviser review Dr. Seidman’s
March 2, 2015 impairment rating of 18 percent permanent impairment of the right upper
extremity and explain how the impairment calculation was determined under the reprinted 2009
sixth edition A.M.A., Guides. In pertinent part, it indicated that the medical adviser must
reference all pertinent objective and subjective findings, identify the methodology used by the
rating physician, and advise whether the applicable tables in the A.M.A., Guides identify a
diagnosis that can alternatively be rated by ROM. If the A.M.A., Guides allows for the use of
both the DBI and ROM methods to calculate an impairment rating for the diagnosis in question,
the method producing the higher rating should be used. If the rating physician provided an
assessment using the ROM method and the A.M.A., Guides allows for use of ROM diagnosis in
question, the medical adviser was to independently calculate the impairment using both the ROM
and DBI methods and identify the higher rating. He noted that if it was clear to the evaluator
evaluating loss of ROM that a restricted ROM had an organic basis, three (3) independent
measurements should be documented/recorded and the greatest ROM should be used for the
determination of impairment. If the medical evidence of record was not sufficient to render a
rating based on ROM where allowed, the medical adviser was advised to note the medical
evidence necessary to complete the ROM rating and render an impairment rating using the DBI
method, if possible, given the available evidence. OWCP noted that appellant had previously
5

Supra note 2.

3

been awarded 18 percent permanent impairment of the right upper extremity and requested that
its medical adviser opine whether an additional impairment had been incurred.
On June 19, 2017 Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as
an OWCP medical adviser, reviewed the evidence of record. He noted that appellant had
received 18 percent permanent partial impairment of the right upper extremity, but the
calculation of additional impairment was not possible as the examination findings of March 2,
2015 were not provided. Dr. Hammel noted that, under the DBI method, she had 10 percent
permanent impairment for class 1 distal clavical excision under Table 15-5, page 403 of A.M.A.,
Guides.
The medical adviser indicated that the most recent clinical examination of January 12,
2015 showed mild continued shoulder and wrist pain with moderate ROM loss in the right
shoulder. The ROM in the digits limited to 90 PIP and MCP index through small finger. The
PIP joint had 10 degree flexion contracture. The shoulder showed mild limitation in ROM with
no crepitus. The wrist was limited to 40 degrees of extension with full motion in all other planes.
Utilizing the DBI method, the medical adviser indicated under Table 15-5, page 403, a
distal clavicle excision, class 1 default C had 10 percent impairment. A grade 1 was provided for
history modifier for mild continued symptoms and a grade 1 was provided for examination
modifier for mild ROM loss. A clinical studies modifier was not applicable as it was used to
select DBI. Applying the net adjustment formula, the medical adviser concluded that appellant
had 10 percent upper extremity impairment under the DBI method.
Utilizing the ROM method, the medial adviser found a total impairment of seven percent
for the hand/wrist. Under Table 15-32, wrist extension of 40 degrees was given three percent
impairment with all other planes noted as normal. Under Table 15-31, 90 degrees flexion
equaled six percent digit impairment; 10 flexion contracture equaled three percent digit
impairment. Four fingers equated nine percent digit impairment, which, when converted under
Table 15-11, equaled four percent total right hand impairment, consisting of one percent
impairment for each of the index, long, ring and small fingers. No specific findings ROM were
noted for the shoulder impairment or an analysis under ROM for shoulder.
The medical adviser combined the DBI (10 percent distal clavicle resection) and ROM
(7 percent wrist/digit) impairment for a total 17 percent right upper extremity permanent
impairment. He indicated that, March 2, 2015, the date of the award examination, was the date
MMI was reached. The medical adviser stated that the 17 percent upper extremity impairment
was not additive to the previously awarded 18 percent. He also stated that, based on his
calculations above, the previous impairment calculation seemed reasonable.
By decision dated July 14, 2017, OWCP denied appellant’s claim as the medical
evidence did not support an increase in the impairment already compensated. It noted that the
medical adviser had applied the DBI and ROM methodologies to the examination findings
provided by the treating physician and had indicated that the calculation seemed reasonable.

4

LEGAL PRECEDENT
The schedule award provisions of FECA6 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. It, 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 sound 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. The
A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and
the Board has concurred in such adoption.7 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition of the A.M.A., Guides.8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.9 In some instances, an OWCP medical adviser’s opinion
can constitute the weight of the medical evidence. This occurs in schedule award cases where an
attending physician indicates that the MMI has been reached and described the permanent
impairment of the affected member, but does not offer an impairment rating. In this instance, a
detailed opinion by an OWCP medical adviser, who gives a percentage based on reported
findings and the A.M.A., Guides, may constitute the weight of the medical evidence.10
OWCP procedures state that any previous impairment to the member under consideration
is included in calculating the percentage of loss, except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.11
Regarding the application of ROM or DBI impairment methodologies in rating
permanent impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
6

5 U.S.C. § 8107.

7

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
9

Id. at Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-0674 (issued August 13, 2014); D.H.,
Docket No. 12-1857 (issued February 26, 2013).
10

See Federal (FECA) Procedure Manual, id. at Chapter 2.810.8(i) (September 2010).

11

Id. at Chapter 2.808.8.b (February 2013).

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“Upon initial review of a referral for upper extremity impairment evaluation, the
[district medical adviser] (DMA) should identify (1) the methodology used by the
rating physician (i.e., DBI or ROM) and (2) whether the applicable tables in
Chapter 15 of the [A.M.A.,] Guides identify a diagnosis that can alternatively be
rated by ROM. If the [A.M.A.,] Guides allow for the use of both the DBI and
ROM methods to calculate an impairment rating for the diagnosis in question, the
method producing the higher rating should be used.” (Emphasis in original).
The Bulletin further advises:
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.
“Upon receipt of such a report, and if the impairment evaluation was provided
from the claimant’s physician, the CE should write to the claimant advising of the
medical evidence necessary to complete the impairment assessment and provide
30 days for submission. Any evidence received in response should then be routed
back to the DMA for a final determination.”
ANALYSIS
On prior appeal, the Board remanded the case for OWCP to reevaluate the extent of
appellant’s permanent impairment of her right upper extremity after it determined a consistent
method for rating upper extremity impairments under the A.M.A., Guides. On remand the
medical adviser, Dr. Hammel, reviewed the evidence and found that she had 17 percent right
upper extremity permanent impairment after combining DBI (10 percent distal clavicle
resection) and ROM (7 percent wrist/digit) impairment. On July 14, 2017 OWCP denied an
increased schedule award as the medical evidence of record did not support an increase in the
permanent impairment previously awarded. The Board finds that this case is not in posture for
decision.
In his March 2, 2015 report, Dr. Seidman opined that appellant had 18 percent right upper
extremity impairment. He also indicated that she had attained MMI as of January 12, 2015.
However, Dr. Seidman neither referenced a specific edition of the A.M.A., Guides, nor provided
any calculations or examination findings explaining his 18 percent permanent impairment rating.
As he did not provide an impairment calculation referring to specific elements of the A.M.A.,
Guides, his impairment rating is of diminished probative value.12
OWCP’s medial adviser, Dr. Hammel, found that appellant had reached MMI as of
March 2, 2015. He used Dr. Seidman’s January 12, 2015 examination findings to calculate her
impairment as there were no examination findings of March 2, 2015. For the DBI impairment,
12
See Shalanya Ellison, 56 ECAB 150, 154 (2004) (an estimate of permanent impairment is irrelevant and of
diminished probative value where it is not based on the A.M.A., Guides).

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OWCP’s medical adviser indicated that appellant had 10 percent right upper extremity
impairment due to distal clavicle resection. There is no indication that Dr. Seidman obtained
three ROM measurements and that the ROM had an organic basis. In its June 16, 2017
instructions, OWCP specifically informed its medical adviser that “if it was clear to the evaluator
evaluating loss of ROM that a restricted ROM had an organic basis, three (3) independent
measurements should be documented/recorded and the greatest ROM should be used for the
determination of impairment.” It further instructed that “If the medical evidence of record was
not sufficient to render a rating based on ROM where allowed, the medical adviser was advised
to note the medical evidence necessary to complete the ROM rating.” The medical adviser failed
to follow OWCP’s instructions as he did not indicate what medical evidence was used to
complete the ROM rating. Furthermore, the prior schedule award was for ROM deficits in the
shoulder and wrist/digits. The medical adviser failed to include Dr. Seidman’s ROM shoulder
findings in his ROM impairment calculation. Due to the above-noted deficiencies, OWCP’s
medical adviser’s impairment report is of diminished probative value.13
Pursuant to its procedures, OWCP shall further develop the claim to obtain the three
independent ROM measurements required under FECA Bulletin 17-06 (issued My 8, 2017).
Following this and other such development as it deemed necessary, OWCP shall issue a de novo
decision regarding appellant’s claim for an increased right upper extremity schedule award.14
CONCLUSION
The Board finds that this case is not in posture for decision.

13

FECA Bulletin No. 17-06 (issued May 8, 2017).

14

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 14, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: March 12, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-1510
Issued: November 25, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 30, 2008 appellant filed a timely appeal from an April 22, 2008 decision of the
Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to 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’s fall at work on April 25, 2006 was sustained in the
performance of duty.
FACTUAL HISTORY
On May 8, 2006 appellant, then a 68-year-old hospitality aid, filed a traumatic injury
claim alleging that on April 25, 2006 he passed out in the men’s room while attempting to
urinate, injuring both shoulders, his lower back, neck and legs during the fall. In a personal
statement, he indicated that, although he did not remember falling, he “came to” on a cement

floor and “must have braced [his] right shoulder” when he fell. Appellant noted that he had been
suffering from acute bronchitis when he went to work on the date of injury.1
Appellant submitted an April 25, 2006 emergency department progress note from
Dr. Keri Gardner, a treating physician, who provided a history of an injury that allegedly
occurred that day at the employing establishment. He informed Dr. Gardner that he had been
feeling tired and somewhat dizzy during the day. Appellant went into the bathroom at the end of
his shift and felt nauseated. The last thing he remembered, before passing out, was going to the
urinal to urinate. After appellant regained consciousness, there were “lots of people around
him.” Dr. Gardner noted appellant’s chronic low back and bilateral shoulder pain. Although
appellant denied any previous history of syncopal episodes, Dr. Gardner’s notes reflect that he
had a “likely micturation syncope (vasovagal).” He noted no signs of trauma, and his neck and
head computerized tomography (CT) scans were normal.
On April 27, 2006 Dr. Curtis W. Spencer, III, a Board-certified orthopedic surgeon,
treated appellant for bilateral shoulder and low back pain. He related appellant’s report that he
passed out in the employing establishment restroom on April 25, 2006 prior to going home.
Appellant remembered feeling dizzy earlier in the day. He stated that, when he woke up, he was
surrounded by doctors, and felt a sharp pain in his head and right shoulder and arm from hitting
the cement floor. Dr. Spencer noted that appellant had experienced weakness in both arms since
the accident. He found limited range of motion in appellant’s right shoulder, as well as a
positive drop sign and tenderness in the acromioclavicular (AC) joint and the subacromial area of
the right shoulder. X-rays and examination revealed Type III acromion; mild degenerative neck
disease; degenerative disc disease of the lumbar spine; and positive impingement signs. A
previous magnetic resonance imaging scan showed a possible complete tear of both rotator cuffs.
Dr. Spencer stated, “I think [appellant] has a cervical strain related to his shoulder disability.” In
an April 27, 2006 disability slip, he recommended that appellant be “off work” for three months,
due to bilateral shoulder, neck and low back pain.
The employing establishment controverted appellant’s claim, contending that appellant
was treated by Dr. Spencer on April 27, 2006 for injuries related to a March 5, 2000 shoulder
injury, rather than the alleged April 25, 2006 injury.
By letter dated May 23, 2006, the Office informed appellant that the information and
evidence submitted was insufficient to establish his claim. It requested additional information
and evidence, including: details surrounding the events of April 25, 2006; information regarding
preexisting conditions which may have caused or contributed to the incident; witness statements;
and a narrative report from his physician with a diagnosis and an opinion as to the relationship
between the diagnosed condition and the alleged incident.

1

A May 12, 2006 statement of accepted facts reflects that appellant filed several previous claims for
compensation, including: a December 8, 1989 occupational disease claim which was accepted for lumbosacral
strain (File No. xxxxxx840); a December 16, 1990 occupational disease claim which was accepted for a left
shoulder strain (File No. xxxxxx889); and a March 28, 2000 traumatic injury claim which was accepted for lumbar
strain and bilateral shoulder strains (File No. xxxxxx427).

2

By decision dated June 23, 2006, the Office denied appellant’s claim for compensation
on the grounds that the evidence did not establish that he sustained an injury in the performance
of duty. It found that appellant’s collapse and fall on April 25, 2006 was idiopathic, noting that
the fall was due to a micturation syncope, and that the evidence did not establish that he had
struck an intervening object prior to landing on the floor.
On October 30, 2006 appellant requested reconsideration. He stated that he was
performing his duties of wiping the sink and urinal bowl prior to passing out. Appellant
indicated that he was not sure whether or not he hit the urinal as he fell, “because [his] legs,
back, neck and both shoulders [were] sore.”
Appellant submitted a June 8, 2006 report, wherein Dr. Spencer opined that the April 25,
2006 accident aggravated appellant’s low back and left shoulder conditions. However, he stated
his belief that appellant’s right rotator cuff tear was a natural progression of his March 5, 2000
injury.
In a merit decision dated November 13, 2006, the Office denied modification of its prior
decision. It found that appellant fell due to a personal, unknown, nonoccupational pathology and
that the evidence did not establish that he fell onto any object on his way to the floor.
On November 13, 2007 appellant, through his representative, requested reconsideration,
contending that the April 25, 2006 fall was unexplained and, therefore, compensable. The
representative argues that the Office had failed to meet its burden of proof to show that the fall
was caused by a preexisting condition.
In an October 29, 2007 report, Dr. Spencer stated that it was “really impossible for [him]
to say whether [the April 25, 2006 fall] was an idiopathic fall or that he had an unexplained fall
or that he had [micturation] syncope.” He indicated that it “sounded” as though he had a
vasovagal response. Noting that Dr. Spencer was unable to say whether the fall was industrial in
nature, he opined that it did not contribute to his low back or shoulder disability.2
In a December 17, 2007 letter, the employing establishment contended that appellant was
not entitled to compensation for his April 25, 2006 fall because there was no job-related reason
for the fall. Further, the establishment argued that Dr. Spencer’s October 29, 2007 report lacked
probative value.
By decision dated April 22, 2008, the Office denied modification of its previous decisions,
finding that the evidence was consistent with a syncopal episode. The claims examiner stated
that, although Dr. Spencer’s opinion was not well reasoned, it was the sole medical opinion
regarding the cause of the fall. He further stated that, if Dr. Spencer had known that appellant
suffered from acute bronchitis, “there would be more reason to believe that the fall was syncopal
in nature.”

2

The Board notes that appellant submitted additional medical evidence for the period from October through
December 13, 2007 related to carpal tunnel release surgery, exacerbation of chronic back pain and psychiatric
issues.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden to establish the essential elements of his claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, that
an injury was sustained in the performance of duty as alleged, and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.4
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface, and there is no intervention or contribution by any hazard or special condition of
employment -- is not within coverage of the Act.5 Such an injury does not arise out of a risk
connected with the employment and is, therefore, not compensable. However, as the Board has
made equally clear, the fact that the cause of a particular fall cannot be ascertained or that the
reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.
This follows from the general rule that an injury occurring on the industrial premises
during working hours is compensable unless the injury is established to be within an exception to
such general rule.6 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted
and caused the fall.7
ANALYSIS
The Board finds that appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.
As stated above, an injury resulting from an idiopathic fall is not compensable.8 However,
the fact that the cause of a particular fall cannot be ascertained, or that the reason it occurred
cannot be established, does not establish that it was due to an idiopathic condition. If the record
does not establish that the particular fall was due to an idiopathic condition, it must be

3

5 U.S.C. §§ 8101-8193.

4

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Carol A. Lyles, 57 ECAB 265 (2005).

6

Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

7

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).

8

Carol A. Lyles, supra note 5.

4

considered as merely an unexplained fall, one which is distinguishable from a fall in which it is
definitely proved that a physical condition preexisted the fall and caused the fall.9
In the present case, the factual evidence of record is insufficient to establish that appellant’s
fall was idiopathic. No one actually witnessed, and appellant does not remember, the fall or the
events immediately preceding it. He does remember feeling tired and dizzy earlier in the day.
Though there is no evidence establishing that appellant tripped or slipped, the Board is unable to
make a determination as to the cause of the fall based on the scant factual evidence at hand.
The medical evidence does not establish that appellant sustained a syncopal episode on
April 25, 2006 due to a personal, nonoccupational pathology. Dr. Gardner stated that appellant
had a “likely micturition syncope.” Dr. Spencer indicated that it was “really impossible” for him
to say whether the April 25, 2006 fall was idiopathic, though it “sounded like a vascular
response.” The medical opinions of Drs. Gardner and Spencer are speculative as to the cause of
appellant’s fall. In addition, appellant’s medical history did not include previous syncopal
episodes. Although appellant stated that he felt dizzy during the workday and had been suffering
from acute bronchitis, there is no probative medical evidence of record which establishes that the
fall was idiopathic. Neither Dr. Gardner’s nor Dr. Spencer’s reports provide a rationalized
opinion as to the cause of the condition that caused or contributed to the fall. The Board finds
that the syncopal episode remains an unexplained fall while appellant was engaged in activities
incidental to his employment duties. Appellant’s injury is therefore compensable.
CONCLUSION
The Board finds that appellant’s April 25, 2006 fall at work was sustained in the
performance of duty.

9

Steven S. Saleh, supra note 4; Judy Bryant, supra note 7; Martha G. List, supra note 7.

5

ORDER
The April 22, 2008 decision of the Office of Workers’ Compensation Programs is
reversed. The case is remanded to the Office for a determination of the nature and extent of any
disability causally related to the April 25, 2006 fall.
Issued: November 25, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, FAIR OAKS POST
OFFICE, Fair Oaks, CA, Employer
__________________________________________

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

Docket No. 11-911
Issued: October 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2011appellant filed a timely appeal of a November 16, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective May 5, 2010.
On appeal, appellant alleged that she had continued medical residuals and disability from
her accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 11, 2008 appellant, then a 49-year-old mail carrier, filed a traumatic injury
alleging that on February 9, 2008 she injured her right knee when she stepped out of a mail
vehicle on the pavement and jammed her right knee. She sought treatment at the Med Center
and received the diagnosis of right knee sprain/strain. Appellant returned to light-duty work on
February 11, 2008. OWCP accepted her claim for strain of the right knee.
Dr. John Champlin, a Board-certified family practitioner, supported the diagnosis of right
knee strain/strain on February 11, 2008. On March 19, 2008 he expanded appellant’s claim to
include probably chondromalacia of the patella and right patellofemoral pain syndrome. On
May 5, 2008 Dr. Champlin included the additional diagnosis of patella subluxation. Appellant
underwent a magnetic resonance imaging (MRI) scan on May 7, 2008 which demonstrated no
abnormal areas or significant findings. In a note dated May 14, 2008, Dr. Champlin found that
her right hip was aching and that she reported feeling depressed and anxious over her injury. On
June 12, 2008 he added the diagnosis of degenerative joint disease in the right knee.
Dr. Randall K. Schaefer, a Board-certified orthopedic surgeon, examined appellant on
June 5, 2008 and diagnosed right patellofemoral pain syndrome. He provided a history of injury
and reviewed the MRI scan. Dr. Schaefer provided work restrictions of no climbing, squatting or
kneeling. On July 7, 2008 he repeated his diagnosis and work restrictions.
On October 1, 2008 Dr. Champlin noted that appellant was terminated by her employer
due to her disability. In his November 6, 2008 note, he stated that she had depression secondary
to her orthopedic injury. Dr. Champlin noted that appellant had developed hip pain secondary to
her gait in a note dated December 4, 2008.
OWCP conducted a telephone conference on February 24, 2009. Appellant reported that
she was terminated from her employment because of residuals of her February 9, 2008
employment injury. OWCP noted that she was employed as a transitional carrier in
September 2007 and ended on September 29, 2008 in a one-year temporary appointment. It
informed appellant of her burden to establish a consequential emotional condition and also
informed her of her burden to establish a schedule award.
On March 4, 2009 OWCP referred appellant for a second opinion evaluation with
Dr. Robert S. Ferretti, a Board-certified orthopedic surgeon. In a report dated April 9, 2009,
Dr. Ferretti noted her history of injury and found a slight limp of the right leg on physical
examination. He found no swelling, deformity or discoloration of the right knee. Dr. Ferretti
stated that appellant had no tenderness on palpation, but that she had a palpable soft patellar
region popping sensation during range of motion with no pain or ligamentous laxity. He
diagnosed history of right knee sprain/strain. Dr. Ferretti stated, “The currently diagnosed
condition would be probably chondromalacia patella syndrome. This is medically connected to
the injury described … with a consequence of a right knee sprain/strain, which most likely
involved the patellofemoral joint. As mentioned, the condition is subjective with no objective
abnormality found, which can be consistent with a mild chondromalacia patellae pain syndrome.
In this case, this would be a presumptive diagnosis with no evidence of any residuals of a
specific right knee sprain/strain.” Dr. Ferretti found that appellant had no physical limitations

2

from the work-related injury. He indicated that her hip region pain condition had only subjective
findings and he did not consider this a consequential injury. Dr. Ferretti found that appellant
reached maximum medical improvement within six months from the injury on August 9, 2008.
In a letter dated March 15, 2010, OWCP proposed to terminate appellant’s compensation
and medical benefits based on Dr. Ferretti’s report. It allowed 30 days for a response.
By decision dated May 5, 2010, OWCP terminated appellant’s compensation and medical
benefits effective May 5, 2010.
Appellant requested an oral hearing of the May 5, 2010 termination decision on
May 7, 2010.2
Appellant testified at the oral hearing on August 10, 2010. She expressed her frustration
with OWCP.
By decision dated November 16, 2010, the Branch of Hearings and Review found that
appellant recovered from her accepted right knee sprain/strain based on Dr. Ferretti’s report. The
hearing representative further found that she had not established any additional knee conditions
as a result of her accepted February 9, 2008 employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.4 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.5 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition, which require further medical treatment.6
ANALYSIS
OWCP accepted appellant’s claim for right knee sprain/strain. Appellant’s attending
physician, Dr. Champlin continued to support her partial disability for work and diagnosed
2

In a decision dated June 28, 2010, OWCP denied modification of a January 27, 2010 decision denying
appellant’s claim for a consequential shoulder injury. As it issued this decision more than 180 days prior to
appellant’s appeal to the Board, the Board does not have jurisdiction over this decision and will not consider this
issue on appeal. 20 C.F.R. § 501.3.
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

6

Id.

3

additional conditions including chondromalacia patella, right patellofemoral pain syndrome and
degenerative joint disease. He referred appellant to Dr. Schaefer who examined her on June 5
and July 7, 2008 and diagnosed right patellofemoral pain syndrome. Dr. Champlin provided
work restrictions of no climbing, squatting or kneeling.
OWCP referred appellant for a second opinion evaluation with Dr. Ferretti who
completed a report on April 9, 2009 and included a history of injury and physical findings he
stated, “The currently diagnosed condition would be probably chondromalacia patella syndrome.
This is medically connected to the injury described … with a consequence of a right knee
sprain/strain, which most likely involved the patellofemoral joint. As mentioned, the condition is
subjective with no objective abnormality found, which can be consistent with a mild
chondromalacia patellae pain syndrome. In this case, this would be a presumptive diagnosis with
no evidence of any residuals of a specific right knee sprain/strain.” Dr. Ferretti further found that
appellant had no physical limitations from the work-related injury.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits. Dr. Ferretti opined that she had a continued medical condition as a result of
her accepted employment injury and diagnosed chondromalacia patella syndrome. He stated that
this condition was related to appellant’s accepted right knee strain/sprain. There is no medical
evidence in the record which supports a finding that her accepted right knee condition has
resolved without residuals as both Dr. Champlin and Dr. Ferretti continue to support this
diagnosis. As the medical evidence in the record supports that appellant has continued medical
residuals from her accepted employment injury, OWCP failed to meet its burden of proof to
terminate her compensation and medical benefits.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation and medical benefits.

4

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 14, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vineland, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-866
Issued: November 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 24, 2011 appellant filed a timely appeal from an October 18, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) regarding schedule award pay rate.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether OWCP used the proper pay rate in calculating appellant’s schedule
award.

1

5 U.S.C. §§ 8101-8193.

On appeal, appellant’s attorney asserts that the correct pay rate should be that of the day
disability began and OWCP should have sought clarification as to whether appellant lost time
from work immediately following his October 10, 2006 employment injury.
FACTUAL HISTORY
On November 13, 2006 appellant, then a 46-year-old part-time flexible city carrier, filed
a traumatic injury claim, alleging that on October 10, 2006 he strained his lower back lifting a
bag of mail. He stopped work on October 14, 2006 and returned to limited duty on
October 21, 2006.2 The claim form indicated that appellant’s pay rate was $37,996.00 per year.
An undated employing establishment payroll form listed his annual salary as $37,996.00 at an
hourly rate of $19.00. On January 10, 2007 OWCP accepted that appellant sustained a lumbar
disc herniation with left-sided radiculitis.
It accepted a recurrence of disability on
November 29, 2006.
A CA-7 form dated January 10, 2007 advised that appellant’s base pay rate on
October 10, 2006, the date of injury, was $19.00 an hour and his pay rate on November 29, 2006
was also $19.00 an hour. A CA-7 form dated January 23, 2007 indicated that his base pay on
October 10, 2006 was $18.36 an hour with an additional $3.76 per week for Sunday premium
pay and $0.87 per week for night differential. On November 30, 2006 appellant’s base pay was
$19.00 an hour with $3.76 per week for Sunday premium pay and $0.87 per week for night
differential.3 Appellant received wage-loss compensation from November 30, 2006 through
March 4, 2007, at the augmented rate, based on a weekly pay rate of $735.32.4 He returned to
full-time duty with no restrictions on March 5, 2007.
On May 21, 2010 appellant filed a schedule award claim. In a January 12, 2010 report, in
which Dr. David Weiss, an osteopath, advised that appellant had an 18 percent left lower
extremity impairment. In a June 5, 2010 report, Dr. Andrew A. Merola, an OWCP medical
adviser, agreed with Dr. Weiss that appellant had an 18 percent impairment of the left lower
extremity.
By letter dated August 18, 2010, OWCP asked the employing establishment to verify
appellant’s correct pay rate. It included copies of the CA-7 forms with inconsistent information
regarding the base pay on October 10, 2006, noting that both $18.36 and $19.00 per hour were
indicated. On August 23, 2010 the employing establishment responded that appellant’s base pay
on October 10, 2006 was $19.00 an hour, that he worked an average of 38.72 hours each week
and that he was entitled to night differential of $0.87 each week and Sunday premium pay of
$3.76 each week. An OWCP pay rate memorandum indicated that, on the date disability began
2

On December 20, 2006 appellant signed a CA-7a form, noting 36.25 hours of leave used from October 14 to
21, 2006.
3

A CA-7 form dated February 5, 2007 had no pay rate information.

4

Section 8105(a) of FECA provides that, if the disability is total, the United States shall pay the employee during
the disability monetary compensation equal to 66 2/3 percent of his or her monthly pay, the basic compensation rate
for total disability. 5 U.S.C. § 8105(a). Under section 8110, an employee is entitled to compensation at the
augmented rate of 75 percent of the weekly pay if he or she has one or more dependents. 5 U.S.C. § 8110; see R.E.,
59 ECAB 323 (2008).

2

or October 13, 2006, appellant’s annual salary was $39,520.00 with a base weekly rate of
$760.00, plus $3.76 in Sunday premium pay and $0.87 in night differential, for a total of
$764.63, based on 40 hours each week.
On September 7, 2010 appellant was granted a schedule award for an 18 percent left leg
impairment or a total of 51.82 weeks to run from January 12, 2010 to January 9, 2011. The
effective date for pay rate computation purposes was that of October 13, 2006, with a weekly pay
of $735.32 which, with cost-of-living adjustments, yielded a weekly award of $594.75 at the
augmented rate. Appellant received a first schedule award payment on September 7, 2010 at that
rate, for the period January 12 through August 28, 2010 and thereafter received periodic
compensation.
On September 16, 2010 appellant, through his attorney, requested reconsideration of the
schedule award pay rate. He submitted a notice of personnel action, effective November 25,
2006, stating that his base hourly wage was $19.26. In an October 18, 2010 decision, OWCP
explained that the pay rate used to calculate the schedule award was taken from appellant’s CA-1
form, traumatic injury claim. It noted that he stopped work on October 14, 2006 and returned on
October 21, 2006 and this was supported by a CA-7a form. OWCP explained that appellant’s
annual pay rate on the date of injury was $37,996.00 with a weekly rate of $730.69. Sunday
premium pay of $3.76 and night differential of $0.87 were added, which yielded a weekly pay
rate of $735.32, the pay rate used to calculate the schedule award.
LEGAL PRECEDENT
Under FECA, monetary compensation for disability or impairment due to an employment
injury is paid as a percentage of monthly rate.5 Section 8101(4) provides that “monthly pay”
means the monthly pay at the time of injury or the monthly pay at the time disability begins or
the monthly pay at the time compensable disability recurs, if the recurrence begins more than six
months after the injured employee resumes regular full-time employment with the United States,
whichever is greater.6 The compensation rate for schedule awards is the same as compensation
for wage loss.7 OWCP procedures provide that, if the employee did not stop work on the date of
injury or immediately afterwards, defined as the next day, the record should indicate the pay rate
for the date of injury and the date disability began. The greater of the two should be used in
computing compensation and if they are the same, the pay rate should be effective on the date
disability began.8
Section 8114(d)(1) of FECA provides that, if the employee worked in the employment in
which he or she was employed at the time of injury during substantially the whole year
immediately preceding the injury and the employment was in a position for which an annual rate
5

See 5 U.S.C. §§ 8105-8107.

6

Id. at § 8101(4).

7

See 20 C.F.R. § 10.404(b); K.H., 59 ECAB 495 (2008).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.5(a)(3)
(September 2011).

3

of pay -- (A) was fixed, the average annual earnings are the annual rate of pay; or (B) was not
fixed, the average annual earnings are the product obtained by multiplying the daily wage for the
particular employment or the average thereof, if the daily wage has fluctuated, by 300 if he or
she was employed on the basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2-day
week and 260 if employed on the basis of a 5-day week.9 OWCP procedures provide that the
pay rate of a part-time flexible employee of the Postal Service who works substantially the entire
year prior to injury would be computed under section 8114(d)(1)(B).10
ANALYSIS
The Board finds that this case not in posture for decision regarding appellant’s pay rate
for computation purposes. Appellant did not challenge the impairment rating of his schedule
award but the rate of pay used to calculate the award, contending that OWCP should have sought
clarification regarding the date disability began and his pay rate. He sustained an employment
injury on October 10, 2006. Appellant stopped work on October 14, 2006, received continuation
of pay and returned to limited duty on October 21, 2006.
The rate of pay for schedule award purposes is the highest rate that satisfies the terms of
section 8104(4) of FECA, the date of injury, the date disability begins or the date of recurrent
disability.11 As appellant stopped work on October 14, 2006, the correct pay rate would
therefore be his rate of pay on that day, as it was the date disability began. He was granted a
schedule award on September 7, 2010, based on a weekly pay rate of $735.32. The record,
however, contains contradictory information regarding appellant’s pay rate. The case must
therefore be remanded to OWCP to explain the pay rate calculation used for his schedule award
determination.
The only specific information regarding appellant’s rate of pay on the date disability
began is an OWCP pay rate memorandum advising that on October 13, 2006 his annual salary
was $39,520.00 based on 40 hours a week, 52 weeks a year, or $760.00 per week. Sunday
premium pay of $3.76 and night differential of $0.87 were added to the weekly base pay, for a
total weekly pay rate of $764.63. This pay rate was not used in the September 7, 2010 schedule
award which used a weekly rate of $735.32.
Additional relevant information regarding appellant’s rate of pay includes his traumatic
injury claim form dated November 13, 2006. This indicated that his pay rate was $37,996.00 per
year. An undated employing establishment payroll form indicated that appellant’s annual salary
was $37,996.00 at an hourly rate of $19.00. A CA-7 form dated January 10, 2007 indicated that
his base pay rate on October 10, 2006, the date of injury, was $19.00 an hour and his pay rate on
November 29, 2006 was also $19.00 an hour. A CA-7 form dated January 23, 2007 indicated
that appellant’s base pay on October 10, 2006 was $18.36 an hour with an additional $3.76 per
week for Sunday premium pay and $0.87 per week for night differential. It indicated that on
9

5 U.S.C. § 8114(d)(1)(B); see H.S., 58 ECAB 511 (2007).

10

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.900.4.c(2) (March 2011).

11

5 U.S.C. § 8101(4); see Patricia K. Cummings, 53 ECAB 623 (2002).

4

November 30, 2006 his base pay was $19.00 an hour with $3.76 per week for Sunday premium
pay and $0.87 per week for night differential.
Following an OWCP request to explain these discrepancies, on August 23, 2010, the
employing establishment advised that appellant’s base pay on October 10, 2006 was $19.00 an
hour, that he worked an average of 38.72 hours each week and that he was entitled to night
differential of $0.87 each week and Sunday premium pay of $3.76 each week. An OWCP pay
rate memorandum indicated that, on the date disability began or October 13, 2006, appellant’s
annual salary was $39,520.00 with a base weekly rate of $760.00, plus $3.76 in Sunday premium
pay and $0.87 in night differential for a total of $764.63, based on 40 hours each week. A notice
of personnel action, effective November 25, 2006, indicating that his base hourly wage was
$19.26.
In calculating the September 7, 2010 schedule award, OWCP used a weekly base pay rate
of $730.69 plus $3.76 in Sunday premium pay and $0.87 in night differential, to total $735.32
and did not use the pay rate information found in the employing establishment’s August 23, 2010
response to an OWCP inquiry. In the October 18, 2010 merit decision on the schedule award
pay rate issue, OWCP explained that appellant’s pay rate on the date of injury or October 10,
2006, was used. Notwithstanding that the record contains contradictory information regarding
appellant’s date-of-injury pay rate, as noted above appellant’s disability began on
October 14, 2006. OWCP procedures provide that, if the employee did not stop work on the date
of injury or immediately afterwards, defined as the next day, the record should indicate the pay
rate for the date of injury and the date disability began. The greater of the two should be used in
computing compensation and if they are the same, the pay rate should be effective on the date
disability began.12 Neither the September 7, 2010 schedule award decision nor the October 18,
2010 decision regarding the schedule award pay rate contained a sufficient explanation regarding
the method used in calculating appellant’s pay rate for schedule award purposes, especially in
light of the contradictory information contained in the record. Moreover, it is unclear whether
appellant, a part-time flexible employee, worked substantially the entire year prior to the injury
and, if so, whether the principles of section 8114(d)(1) were applied.13
For these reasons, the case must be remanded to OWCP to obtain sufficient information
from the employing establishment regarding appellant’s employment status, to include whether
section 8114(d)(1) is applicable and what his hourly wage was on October 14, 2006, the date
disability began, to be followed by a decision on the merits with a sufficient explanation
regarding the pay rate used to calculate his schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether OWCP used the
proper pay rate in calculating appellant’s schedule award.
12

Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.900.5(a)(3) (September 2011). Board precedent
also contemplates that pay rate discrepancies must be clarified. See E.C., 59 ECAB 397 (2008); Gary Vancura, 40
ECAB 427 (1989).
13

While the employing establishment advised that appellant worked an average of 38.72 hours a week, it did not
explain the period used to make this calculation.

5

ORDER
IT IS HEREBY ORDERED THAT the October 18 and September 7, 2010 decisions of
the Office of Workers’ Compensation Programs are set aside and remanded to OWCP for
proceedings consistent with this opinion of the Board regarding appellant’s pay rate for
computation purposes. The September 7, 2010 decision is affirmed with regard to the degree of
his left lower extremity impairment.
Issued: November 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Morton, MS, Employer
__________________________________________

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

Docket No. 14-273
Issued: April 16, 2014

Case Submitted on the Record

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

JURISDICTION
On November 20, 2013 appellant filed a timely appeal from July 8 and September 13,
2013 merit decisions of the Office of Workers’ Compensation Programs (OWCP) which denied
her recurrence claim and an October 17, 2013 nonmerit decision which denied her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a recurrence of
a medical condition on May 13, 2013 causally related to her August 16, 2012 employment
injury; and (2) whether OWCP properly denied her September 26, 2013 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 16, 2012 appellant, then a 53-year-old food inspector, alleged that she
sustained an injury to her right elbow when she hit her arm on a rack in the performance of duty.
She stopped work and returned to full duty on August 18, 2012.
In a handwritten August 17, 2012 attending physician’s report, Dr. A. Archie Howard,
Jr., a Board-certified family practitioner, stated that on August 16, 2012 appellant sustained a
right elbow contusion when she bumped her arm at work. Examination findings noted
tenderness to palpation of the right lateral elbow, no swelling, and full range of motion.
Dr. Howard checked a box marked “yes” that appellant’s condition was caused or aggravated by
the described employment activity.
On May 14, 2013 appellant filed a notice of recurrence related to the August 16, 2012
employment injury. She did not claim wage-loss compensation and noted the date of recurrence
as May 13, 2013. Appellant stated that she continued to feel pain and alleged that her right
elbow never stopped hurting.
By letter dated May 23, 2013, OWCP accepted appellant’s claim for right elbow
contusion. With regard to her recurrence claim, it advised her that the evidence submitted was
insufficient to establish her need for additional medical treatment due to a worsening of her
work-related injury. OWCP explained that appellant’s claim was accepted for a soft tissue injury
that typically resolved within three to six weeks and noted that there was no medical evidence to
demonstrate that she continued to suffer residuals of the accepted right elbow contusion. It
requested additional evidence to support her recurrence claim, including a rationalized medical
opinion from an attending physician explaining the causal relationship between her current
condition and the accepted August 16, 2012 employment injury.
In a handwritten May 13, 2013 progress note, Dr. Howard related appellant’s complaints
of right elbow and arm pain. He provided examination findings and diagnosed right elbow pain.
In an attached return to work note, Dr. Howard reported that appellant returned to work on
May 20, 2013 without restrictions.
In a June 11, 2013 statement, appellant explained that her right elbow constantly hurt and
that she still took pain medication. She believed her current condition was due to her original
injury because the pain never really left and she still took pain medicine prescribed by
Dr. Howard.
In a handwritten June 19, 2013 progress note, Dr. Howard stated that the original
mechanism of injury was that she bumped her arm on a stand. He reported that the physical
examination revealed tenderness to palpation and that x-rays were normal. Dr. Howard
diagnosed right elbow contusion. He stated that appellant did not claim that her condition
materially worsened but that the pain never went away or resolved. Dr. Howard recommended
that appellant avoid pain exacerbating activity as much as possible.
In a decision dated July 8, 2013, OWCP denied appellant’s recurrence claim. It found
that the medical evidence was insufficient to establish that her current right elbow condition was
causally related to the accepted August 16, 2012 employment-related injury.

2

On July 21, 2013 appellant submitted a request for reconsideration. She stated that her
right elbow was still hurting and that she was in a lot of pain. Appellant described the
August 16, 2012 incident and the medical treatment she received. She explained that it took her
so long to go back to the doctor because she was trying to treat her arm herself using icy hot
therapy and medication. Appellant stated that the pain continued to worsen to the extent that she
was no longer able to perform all her work duties and needed a helper.
In a July 5, 2013 progress note, Dr. John Cope, a Board-certified orthopedic surgeon,
stated that appellant was referred by Dr. Howard for further evaluation and treatment of her
complaints of pain in her right elbow since August 2012 when she bumped it on a stand. He
reviewed her history and conducted an examination. Dr. Cope observed pain to resisted wrist
extension and tenderness over the lateral epicondyle. Range of motion was full. Dr. Cope
diagnosed right elbow lateral epicondylitis.
In a July 16, 2013 initial evaluation report, Amanda Cox, a physical therapist, related
appellant’s complaints of ongoing right elbow pain for over a year as a result of hitting her elbow
on an iron bar at work. Appellant stated that the pain initially improved but had increased over
the last several months due to the repetitive motions that she performed at work. Upon
examination, Ms. Cox observed tenderness to palpation along the lateral epicondyle and anterior
forearm and pain at the end range flexion of the wrist and with supination of the forearm. Range
of motion of the wrist and elbow was full. Ms. Cox recommended that appellant have 12
physical therapy treatments and described the treatment she would receive.
By decision dated September 13, 2013, OWCP denied modification of the July 8, 2013
decision. It determined that the medical evidence was insufficient to establish that appellant
sustained a recurrence of her accepted August 16, 2012 employment injury.
On September 26, 2013 appellant requested reconsideration. In a September 20, 2013
report, Dr. Cope stated that her condition had significantly improved following an injection and
physical therapy. Upon examination, he observed mild tenderness over the lateral epicondyle,
negative long finger extension test. Dr. Cope diagnosed right elbow tenosynovitis. He noted
that there was some question regarding the relationship of appellant’s current symptoms to the
August 2012 injury. Dr. Cope related that she informed him that she never completely got better
following the original injury. Appellant explained that her symptoms never completely got
better and had worsened and that she had seen Dr. Howard on several occasions for this same
problem. Dr. Cope opined that this meant that her problem was currently related to the original
fall. He also pointed out that appellant had injury symptoms of the same type that persisted
unresolved since the job injury. Dr. Cope requested that workers’ compensation cover physical
therapy for the rest of her symptoms.
In a decision dated October 17, 2013, OWCP denied appellant’s request for
reconsideration finding that no evidence was submitted sufficient to warrant further merit review
under 5 U.S.C. § 8128(a). It determined that the evidence submitted was cumulative in nature.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
3

give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.2 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to effect the purposes specified in FECA.3 The
only limitation on OWCP’s authority is that of reasonableness.4
A recurrence of medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original condition or injury is not
considered a need for further medical treatment, nor is an examination without treatment.5
To establish a recurrence of medical condition, a claimant must furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the claimed condition is causally related to the employment injury, and who,
supports that conclusion with sound medical rationale. Where no such rationale is present, the
medical evidence is of diminished probative value.6
OWCP procedures state that, after 90 days of release from medical care (as stated by the
physician or computed from the date of the last examination or the physician’s instruction to
return as needed), a claimant is responsible for submitting an attending physician’s report that
contains a description of the objective findings and supports a causal relationship between the
claimant’s current condition and the accepted condition. The medical evidence on causal
relationship should be as conclusive as the evidence required to establish the original claim.7
ANALYSIS -- ISSUE 1
OWCP accepted that on August 16, 2012 appellant sustained a right elbow contusion as a
result of hitting her arm on a rack in the performance of duty. She returned to full duty on
August 18, 2012. On May 14, 2013 appellant filed a recurrence claim for medical treatment.
Because she did not stop work or claim compensation for wage loss, she is claiming a recurrence
of a medical condition. Accordingly, appellant has the burden of furnishing medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the claimed condition is causally related to the employment injury.
Appellant submitted various reports dated August 16, 2012 to June 19, 2013 by her
treating physician, Dr. Howard. In an August 17, 2012 attending physician’s report, Dr. Howard
stated that she sustained a right elbow contusion at work on August 16, 2012 and provided
examination findings. He checked a box marked “yes” that appellant’s condition was caused or
aggravated by the August 16, 2012 employment incident. In a June 19, 2013 report, Dr. Howard
2

5 U.S.C. § 8103(a).

3

Marjorie S. Geer, 39 ECAB 1099 (1988).

4

Daniel J. Perea, 42 ECAB 214 (1990).

5

20 C.F.R. § 10.5(y).

6

T.Y., Docket No. 12-393 (issued August 3, 2012).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5.b (May 2003).

4

noted tenderness to palpation upon examination and that x-rays were normal and diagnosed right
elbow contusion. He reported that appellant did not claim that her condition materially worsened
but that the pain never went away or resolved. Dr. Howard provided an accurate history of the
August 16, 2012 employment injury and diagnosed right elbow contusion, however, he did not
provide any medical explanation or rationale. The Board has held that when a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, without
explanation or rationale, that opinion is of diminished probative value and is insufficient to
establish a claim.8 Dr. Howard’s reports, therefore, are insufficient to establish appellant’s
recurrence claim.
Appellant also submitted a July 5, 2013 progress note by Dr. Cope, who noted that
appellant was treated for right elbow pain since August 2012. Upon examination, he observed
pain to resisted wrist extension and tenderness over the lateral epicondyle. Dr. Cope diagnosed
right elbow lateral epicondylitis. Although he provided examination findings and a diagnosis,
Dr. Cope does not describe the cause of appellant’s right elbow condition nor relate her current
condition to the August 16, 2012 employment injury. The Board has found that 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.9
The additional physical therapy report is likewise insufficient to establish appellant’s
claim as physical therapists are not considered physicians under FECA.10
On appeal, appellant alleges that her case was not supposed to be looked at as a
recurrence but as a new claim. The Board notes that, if she is no longer claiming a recurrence
injury, appellant may file a new traumatic injury or occupational disease claim with OWCP. She
has not submitted sufficient medical evidence to establish that her current condition is causally
related to the August 16, 2012 employment injury. Accordingly, the Board finds that appellant
has failed to establish a recurrence of the August 16, 2012 employment injury.11
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
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.12 OWCP’s regulations provide that OWCP may
8

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

9

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

10

R.M., 59 ECAB 690 (2008); section 8101(2) of FECA provides as follows: the term physician includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law.
11

See K.K., Docket No. 13-217 (issued March 18, 2013).

12

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).

5

review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise her right through a request to the district Office.13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.14
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.15 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.16 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.17
ANALYSIS -- ISSUE 2
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; she has not advanced a relevant legal argument not previously
considered by OWCP; and she has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
By decisions dated July 8 and September 13, 2013, OWCP denied appellant’s recurrence
claim finding that the evidence did not establish that she experienced a recurrence of the
August 16, 2012 employment injury.
On September 16, 2013 appellant requested
reconsideration and submitted a new September 20, 2013 report by Dr. Cope. This report,
however, did not provide any new and relevant evidence to the underlying medical issue
regarding an employment-related recurrence of medical condition beginning May 14, 2013.
Dr. Cope merely repeated what appellant informed him that she never completely got better
following the original injury. The previously submitted medical evidence had discussed
appellant’s complaints that her symptoms never resolved following the August 16, 2012
employment injury. Thus, the Board finds that Dr. Cope’s report only provided cumulative
evidence with respect to the medical issue of causal relationship.
Appellant did not meet any requirements of 20 C.F.R. § 10.606(b)(2). She did not submit
any evidence along with her request for reconsideration to show that OWCP erroneously applied
13

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
14

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a).

16

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

17

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

6

or interpreted a specific point of law or advances a relevant legal argument not previously
considered by OWCP. Pursuant to 20 C.F.R. § 10.608(b), OWCP properly declined to reopen
the case for review of the merits.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen her case for further consideration of the merits of her claim under
5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant failed to establish a recurrence of a medical condition on
May 13, 2013 causally related to her August 16, 2012 employment injury. The Board also finds
that OWCP properly denied her September 26, 2013 request for reconsideration pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 17, September 13 and July 8, 2013
merit decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, Corvallis, OR, Employer
__________________________________________

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

Docket No. 06-1985
Issued: February 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 25, 2006 appellant filed a timely appeal of the June 8, 2006 decision of the
Office of Workers’ Compensation Programs which denied his reconsideration request. Because
more than one year has elapsed between the most recent merit decision dated May 18, 2005 and
the filing of this appeal, the Board lacks jurisdiction to review the merits of this claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On September 19, 1997 appellant, then a 59-year-old information receptionist, filed a
traumatic injury claim alleging that on September 18, 1997 he tripped over a chair while at work
and injured his right ankle, leg and low back. The Office accepted the claim for herniated disc at
L5-S1 and authorized a microlumbar discectomy. Appellant returned to work in a part-time,

light-duty position and on May 6, 1998 returned to full-time duty subject to various restrictions.
He retired on August 1, 1998.
Appellant submitted various records dated April 24 to December 7, 1984 from
Dr. Ruben J. Saez, a Board-certified orthopedist, who treated him for persistent right L5
radiculopathy, secondary to nerve entrapment by a protruding L4 disc. In a June 5, 1984
operative report, Dr. Saez performed a decompressive laminectomy at L4-5, microsurgical
discectomy at L4-5 on the right and diagnosed protruded L4 disc with lateral stenosis on the
right. Thereafter appellant came under the treatment of Dr. Steven K. Goodwin, a Boardcertified orthopedist, who, in an operative report dated February 10, 1998, noted performing a
right L5-S1 microlumbar discectomy and diagnosed disc herniation under the S1 nerve root.
Appellant also submitted chiropractor reports dated March 30 to April 2, 1998 which noted his
treatment for low back pain. A magnetic resonance imaging (MRI) scan of the lumbar spine
dated April 17, 1998 revealed degenerative and postsurgical findings with some compression of
the thecal sac at L5-S1. Appellant submitted a June 19, 1998 report from Dr. David Abel, a
Board-certified orthopedist, who treated him in follow-up after a second discectomy and
diagnosed residual neural injury resulting from recent disc herniation and from remote back
problems. He was seen in consultation on February11, 1999 with Dr. Charles E. Brondos, a
Board-certified neurologist, who determined that appellant had 10 percent impairment of the
lumbosacral spine.
On March 2, 2002 appellant filed a CA-2a, a recurrence of disability alleging that in
April 1998 he developed a recurrence of back pain causally related to the accepted work injury
of September 18, 1997. On the same date, he submitted a claim for compensation for the period
August 1, 1998 to February 20, 2002.
Appellant submitted reports from Dr. Paula A.
Lantsberger, Board-certified in preventative medicine, dated July 13, 2001 and January 18, 2002.
Dr. Lantsberger noted a history of injury on September 18, 1997 and subsequent surgical
treatment. She diagnosed history of lumbar disc disease at the lower lumbar level and epidural
fibrosis as a result of the surgical interventions. Dr. Lantsberger indicated that appellant would
not be a good candidate for surgery and opined that he could not work full time. In a report
dated November 24, 2003, she diagnosed lumbosacral disc disease status post back surgeries and
advised that he could not return to his previous position as an information receptionist, but he
could return to work in another capacity subject to various restrictions.
In correspondence dated September 13, 2002, the Office accepted appellant’s claim for a
recurrence of disability commencing July 13, 2001.
In a decision dated November 24, 2003, the Office rescinded the September 13, 2002
decision and denied appellant’s claim for a recurrence of disability filed on March 2, 2002.
On December 22, 2003 appellant requested an oral hearing before an Office hearing
representative. The hearing was held on February 23, 2005. Appellant, through his attorney,
submitted a brief and asserted that the Office erroneously rescinded the September 13, 2002
decision. He submitted an MRI scan of the lumbar spine dated January 9, 2004 which revealed a
L3-4 mild disc bulge with mild facet degenerative changes, L4-5 disc protrusion with
subligamentous herniation anteriorly and mild bulge posteriorly and a L5-S1 mild broad-based
posterior disc bulge with moderate facet degenerative changes. Appellant also submitted

2

physical therapy notes. He came under the treatment of Dr. Karen Schaaf, a Board-certified
family practitioner. In reports dated April 15 to October 21, 2004, Dr. Schaaf diagnosed low
back pain, status post discectomy and radiculopathy.
By decision dated May 18,
November 24, 2003 decision.

2005,

the

hearing

representative

affirmed

the

On May 12, 2006 appellant requested reconsideration and provided a detailed history of
his medical treatment. He contended that he continued to be disabled due to his work-related
injury and that his disability prevented him from performing the job he held when he was
injured. Appellant submitted duplicative copies of medical records from Dr. Saez, Dr. Abel,
Dr. Brondos and Dr. Lantsberger. He submitted new physical therapy notes from March 9, 2004
to March 17, 2005. In reports dated March 17 to May 3, 2006, Dr. Schaaf treated appellant for a
cancer spot on his face which was surgically removed. She diagnosed squamous cell excised,
disequilibrium and low back pain from job-related injuries and surgeries. In a report dated
May 3, 2006, Dr. Schaaf noted treating appellant since the spring of 2004 for low back pain and
she recommended acupuncture and physical therapy. She advised that he had significant
disability from back pain and was unable to sit or stand for more than five minutes.
By decision dated June 8, 2006, the Office denied appellant’s reconsideration request on
the grounds that his request neither raised substantive legal questions, nor included new and
relevant evidence and was, therefore, insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,1 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,2 which provides that a claimant may obtain review of the merits of his or her written
application for reconsideration, including all supporting documents, set 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].”

1

5 U.S.C. § 8128(a).

2

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.3
ANALYSIS
Appellant’s May 12, 2006 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office.
Appellant’s request for reconsideration asserted that he continued to be totally disabled
due to his work-related injury. However, his letter did not show how the Office erroneously
applied or interpreted a point of law, nor did it advance a point of law or fact not previously
considered by the Office. The Office previously considered appellant’s contentions about
whether he sustained a recurrence of disability and whether he continued to have residuals of his
work-related condition. Consequently, appellant is not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered, appellant submitted various medical records from Dr. Saez dated
September 19 to December 7, 1984, Dr. Abel dated June 19, 1998, Dr. Brondos dated
February 11, 1999, chiropractor reports from March 30 to April 2, 1998, an MRI scan dated
April 17, 1998 and a report from Dr. Lantsberger dated July 16, 2003. However, this evidence
was duplicative of that already and previously considered by the Office.4 Therefore, the Office
properly determined that this evidence did not constitute a basis for reopening the case for a
merit review.
Appellant submitted new physical therapy notes from March 9, 2004 to March 17, 2005
addressing his treatment for chronic low back pain.
The Board has held that

3

20 C.F.R. § 10.608(b).

4

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

4

treatment notes signed by a physical therapist are not considered medical evidence as a physical
therapist is not a physician under the Act.5 Therefore, the Office properly determined that this
evidence did not constitute a basis for reopening the case for a merit review.
Appellant also submitted new reports from Dr. Schaaf who treated him for squamous cell
carcinoma, disequilibrium and low back pain. In a report dated May 3, 2006, Dr. Schaaf noted
treating appellant since the spring of 2004 for low back pain and indicated that he underwent
acupuncture and physical therapy without improvement. She advised that he had significant
disability from back pain and was unable to sit or stand for more than five minutes. However,
these reports are not relevant as they are duplicative to Dr. Schaaf’s prior submitted reports dated
April 15 to October 21, 2004 which were considered by the Office in its decision dated
May 18, 2005. Evidence that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.6 Therefore, this report is
insufficient to require the Office to reopen the claim for a merit review.
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did he
constitute relevant and pertinent evidence not previously considered by the Office.”7
Consequently, he was not entitled to a review of the merits of his claim pursuant to any of the
three requirements under section 10.606(b)(2).
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.

5

See 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical
opinion, in general, can only be given by a qualified physician).
6

See Daniel Deparini, supra note 4.

7

20 C.F.R. § 10.606(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2006 is affirmed.
Issued: February 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 06-1490
Issued: February 23, 2007

Case Submitted on the Record

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

JURISDICTION
On June 19, 2006 appellant filed a timely appeal from the March 16 and June 6, 2006
nonmerit decisions of the Office of Workers’ Compensation Programs which denied his requests
for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review these nonmerit decisions.
ISSUE
The issue is whether the Office properly denied appellant’s requests for reconsideration
on the grounds that they were untimely and failed to show clear evidence of error.
FACTUAL HISTORY
On December 27, 1974 appellant, a 28-year-old city carrier, sustained an injury in the
performance of duty when someone rear-ended his postal vehicle. The Office accepted his claim
for soft-tissue injuries to the right knee, contusion of the right leg, low back syndrome, torn right
lateral meniscus and consequential left knee ligament laxity. Appellant received benefits,

including a March 23, 1979 schedule award for a 20 percent permanent impairment of his right
leg.
Effective January 7, 1999 the Office terminated appellant’s compensation under 5 U.S.C.
§ 8106(c)(2). The Office found that he refused suitable work as a modified carrier without
justification. The attached statement of appeal rights informed appellant that any request for
reconsideration must be made within one year of the date of that decision.
Appellant thereafter filed several claims for a schedule award, twice in 2001 and again
in 2005. Each time the Office explained to him that the 1999 termination precluded the payment
of any further monetary compensation, including compensation for an additional impairment.
On January 30, 2006 appellant requested reconsideration. He submitted a January 30,
2006 medical report from Dr. Robert D. Shlens, his orthopedic surgeon. Dr. Shelns stated that
appellant needed a total knee replacement on the right. He added: “[Appellant] states [that] he
was offered a job in Los Angeles in 1998. He was unable to take the job due to the advanced
arthritis of his knees. [Appellant] was unable to drive, stand or sit for any length of time.”
In a decision dated March 16, 2006, the Office denied reconsideration on the grounds that
appellant’s request was untimely and failed to present clear evidence of error in the January 7,
1999 decision terminating his monetary compensation.
On or about April 14, 2006, appellant again requested reconsideration. He submitted an
April 6, 2006 report from Dr. Shlens who repeated that appellant was unable in 1998 to drive the
distance from his home to the offered job.
Dr. Shlens attached two older reports. On July 23, 1998 he reviewed appellant’s work
restrictions and the physical requirements of the offered modified carrier position. He
concluded: “This appears to be a satisfactory job consistent with the work restrictions in my
correspondence of February 12, 1998.” On December 28, 1998 Dr. Shlens reviewed the physical
requirements of another job:
“[Appellant] was offered a job and he shows me a letter from Douglas Norris,
[s]enior [i]njury [c]ompensation [s]pecialist. The job offered to [him] includes
working as a clerk distributing mail to post offices and to carrier routes which
involves continuous standing, stretching and reaching and may require handling
heavy sacks of mail weighing up to 70 pounds. The other part of the job is that of
a carrier and special delivery messenger which requires collection of mail on foot
or by vehicle under varying conditions and it may require driving motor vehicles
and any kind of traffic and road conditions and delivering parcel post from trucks
and making collections of mail from various boxes or other locations and carrying
mail in shoulder satchels weighing as much as 35 pounds and loading and
unloading sacks of mail weighing up to 70 pounds.”
After commenting that the modified carrier position would be a satisfactory job
consistent with appellant’s work restrictions, Dr. Shlens stated: “This new job offered to
[appellant] is unsatisfactory.”

2

In a decision dated June 6, 2006, the Office denied reconsideration on the grounds that
appellant’s request was untimely and failed to present clear evidence of error in the January 7,
1999 decision.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought. The Office will consider an untimely application
only if the application demonstrates clear evidence of error on the part of the Office in its most
recent merit decision. The application must establish, on its face, that such decision was
erroneous.2
The term “clear evidence of error” is intended to represent a difficult standard.3 If clear
evidence of error has not been presented, the Office should deny the application by letter
decision, which includes a brief evaluation of the evidence submitted and a finding made that
clear evidence of error has not been shown.4
ANALYSIS
When the Office issued its January 7, 1999 decision to terminate appellant’s
compensation, it notified him that he had one year from the date of that decision to request
reconsideration of the matter. He had until January 7, 2000 to make a timely request. His two
requests in 2006 are clearly untimely.
Because these requests are untimely, the Office will not review the merits of appellant’s
case without clear evidence of error in the January 7, 1999 decision terminating his monetary
compensation for refusing suitable work. Dr. Shlens’ January 30, 2006 report asserts that
appellant was unable to take the job in 1998 due to advanced arthritis in his knees, but, if
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607 (1999).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3c (January 2004).

4

Id. at Chapter 2.1602.3.d(1).

3

appellant was unable to drive, stand or sit for any length of time because of advanced arthritis,
Dr. Shlens did not report this in 1998 when he cleared appellant to return to work in the offered
position of modified carrier. As he reported on July 23, 1998 the position of modified carrier
“appears to be a satisfactory job consistent with [appellant’s] work restrictions.” Dr. Shlens
made no attempt to explain his subsequent change of mind. Because his current opinion appears
inconsistent with the medical clearance he provided in 1998, the Board finds that Dr. Shlens’
January 30, 2006 report carries little evidentiary weight and does not show clear evidence of
error in the Office’s January 7, 1999 decision. Dr. Shlens’ April 6, 2006 report is repetitive and
suffers from the same problem.
The Office terminated compensation because appellant refused the position of modified
clerk the position Dr. Shlens approved on July 23, 1998. The Office did not terminate
compensation based on the position he described on December 28, 1998. Dr. Shlens’
December 28, 1998 opinion that this other job was unsatisfactory is immaterial to the termination
of appellant’s compensation. His December 28, 1998 report has no bearing on and fails to show
clear evidence of error in the Office’s January 7, 1999 decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s requests for reconsideration.
Both requests were untimely and neither provided clear evidence of error in the Office’s
January 7, 1999 decision to terminate his compensation under 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the June 6 and March 16, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4