United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Houston, TX,
Employer
__________________________________________

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

Docket No. 20-0689
Issued: February 5, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 10, 2020 appellant filed a timely appeal from an October 31, 2019 merit
decision and a January 31, 2020 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the January 31, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty; and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision and a prior order are incorporated herein by reference. The relevant
facts are set forth below.
On June 24, 2015 appellant, then a 55-year-old bankruptcy specialist, filed a notice of
recurrence (Form CA-2a) under OWCP File No. xxxxxx575.4 OWCP converted the recurrence
claim to a new occupational disease claim, adjudicated under OWCP File No. xxxxxx163.5
By decision dated December 4, 2015, OWCP denied the new occupational disease claim,
finding that appellant had not identified any compensable factors of employment and, thus, had
not established an emotional condition in the performance of duty. Following a December 21,
2015 request for reconsideration, by decision dated March 25, 2016, OWCP denied modification
of its December 4, 2015 decision.
On May 16, 2016 appellant filed an appeal with the Board from OWCP’s December 4,
2015 and March 25, 2016 merit decisions. By order dated December 22, 2016, the Board
remanded the case to OWCP for further development, to be followed by a de novo decision.6 The
Board explained that on remand OWCP shall obtain a statement from appellant in which she
described in detail the employment conditions or incidents she believed caused or contributed to
her emotional condition claimed in 2015.
On November 2, 2017 OWCP accepted the claim in OWCP File No. xxxxxx163 for major
depressive disorder, recurrent, moderate, and generalized anxiety disorder. Included was a notice
to the employing establishment explaining the basis for the acceptance. OWCP noted that an
October 8, 2015 Equal Employment Opportunity Commission (EEOC) decision of record ruled in
appellant’s favor regarding her claim of harassment.

3

Order Remanding Case, Docket No. 16-1167 (issued December 11, 2016); Docket No. 18-1179 (issued
June 11, 2019).
4

Appellant’s December 2, 2008 occupational disease claim under OWCP File No. xxxxxx575 was accepted for
major depression, recurrent episode, moderate, and generalized anxiety disorder. Appellant stopped work on
November 7, 2008 and returned to full-duty work on October 7, 2010.
5

OWCP administratively combined OWCP File Nos. xxxxxx163 and xxxxxx575, with OWCP File No. xxxxxx575
serving as the master file.
6

Docket No. 16-1167, id.

2

In correspondence dated December 5, 2017, the employing establishment notified OWCP
that the November 2, 2017 decision in which appellant’s claim was accepted was incorrectly based
on a nonexistent judicial finding in appellant’s favor by the EEOC.
By letter dated December 28, 2017, OWCP advised appellant that it proposed to rescind
its November 2, 2017 acceptance for generalized anxiety disorder and major depressive disorder,
recurrent, moderate. It discussed appellant’s claimed factors of employment and found that none
were compensable. OWCP further noted that it had erred because the EEOC document relied on
in its acceptance was not a final decision.
By decision dated February 12, 2018, OWCP rescinded the acceptance of appellant’s claim
for major depressive disorder, recurrent, moderate, and generalized anxiety disorder, effective
December 28, 2017. It found that she had not established a compensable factor of employment
and that it had erred in its November 2, 2017 decision, noting new evidence had been received on
December 5, 2017 indicating that there was no final EEOC decision dated October 18, 2015.
On February 26, 2018 appellant requested reconsideration. By decision dated May 10,
2018, OWCP denied modification of the February 12, 2018 decision.
Appellant filed an appeal with the Board on May 18, 2018 from the February 12 and
May 10, 2018 merit decisions. By decision dated June 11, 2019, the Board affirmed those
decisions, finding that OWCP had met its burden of proof to rescind its November 2, 2017
acceptance of appellant’s emotional condition claim and that she had not met her burden of proof
to establish an emotional condition in the performance of duty.7
Evidence submitted during the pendency of appellant’s appeal to the Board included
February 21, 2017 and September 11, 2018 employing establishment denials of appellant’s
reasonable accommodation requests, a December 18, 2017 decision regarding an EEOC claim that
found no substantiated factors, a July 6, 2018 EEOC decision that affirmed the dismissal of her
complaint regarding alleged unlawful employment discrimination in reprisal of prior protected
EEOC activity, other information regarding her EEOC claim, August 15, 2018 and May 28, 2019
employing establishment responses to appellant’s grievances regarding a reduction in her
workload, and other information regarding grievances, and medical evidence previously of record.
OWCP also received a leave bank application dated April 11, 2019 in which Dr. Harish N.
Thankur, a Board-certified internist, provided diagnoses including depression and anxiety, and emails regarding a 2018 request for reasonable accommodation.
On June 20, 2019 appellant requested reconsideration. In support thereof, she submitted a
July 17, 2018 letter in which an employing establishment physician discussed her reasonable
accommodation request and suggested alternatives.
Medical evidence submitted included laboratory and diagnostic study results from a
September 28, 2019 emergency department visit and medical literature concerning different types

7

Docket No. 18-1179, supra note 3.

3

of headaches and tachycardia. Appellant additionally submitted reports from Dr. Shannon Payne,
a chiropractor, regarding a back condition.
By decision dated October 31, 2019, OWCP denied modification.8
On December 16, 2019 appellant again requested reconsideration. She asserted that the
employing establishment committed error by denying her reasonable accommodation and
submitted evidence previously of record.
In an undated report, Dr. Jonathan Morris, an attending licensed clinical psychologist, who
began treating appellant in June 2015, maintained that in recent years appellant had developed
stress-based psychophysiological health problems that were likely psychoneuroimmunological
sequelae of a work environment, where, reportedly, she was subject to harassment and onerous
demands made by specific supervisors and managers. He maintained that the employing
establishment’s denial of appellant’s reasonable accommodations were based on ﬂawed logic,
rendering them nonsensical and advised that objective clinical indicators suggested a recent
exacerbation of appellant’s symptom complex since the denial of reasonable accommodation.
In a January 8, 2019 report, Dr. Charles E, Willis, II, a Board-certified anesthesiologist and
pain management specialist, noted seeing appellant that day for an initial visit and that she was
working full duty. He reported a history that on or about June 28, 2015 she began experiencing
symptoms of pain and discomfort in her neck, bilateral shoulders, and low back, headaches, and
that she attributed her symptoms to an increasingly stressful work environment. Dr. Willis
described current complaints and examination findings. His diagnoses included recurrent major
depressive disorder and generalized anxiety disorder. Dr. Willis opined, with reasonable medical
certainty that the constant stress of appellant’s job had contributed to her diagnoses.
By decision dated January 31, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT -- ISSUE 1
It is well established that once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation.9 After OWCP properly discharges its burden of
proof to justify rescinding its acceptance of a claim, the burden of proof shifts back to the employee
to establish that he sustained an injury while in the performance of duty and is therefore entitled
to compensation benefits.10
OWCP noted that it was denying modifying modification of the Board’s June 11, 2019 decision. OWCP, however,
has no jurisdiction to review a Board decision. The decisions and orders of the Board are final as to the subject matter
appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R. § 501.6(d).
Appellant had 30 days from the date of the Board’s June 11, 2019 decision to file a petition for reconsideration with
this Board of its decision. Id. at § 501.7; see also C.M., Docket No. 19-1211 (issued August 5, 2020); B.B., Docket
No. 14-0464 (issued June 4, 2014).
8

9

See Frank J. Mela, Jr., 41 ECAB 115 (1989); Harold S. McGough, 36 ECAB 332 (1984).

10

Kathleen M. Fava (John F. Malley), 49 ECAB 519 (1998).

4

An employee seeking benefits under FECA11 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.12 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.13
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to his or her condition; (2) medical evidence establishing that he has an
emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to his or her emotional
condition.14
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,15 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within coverage
under FECA.16 When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable.17
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.18 Where, however, the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.19
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.
11

Supra note 1.

12

S.Z., Docket No. 20-0106 (issued July 9, 2020); R.C., 59 ECAB 427 (2008).

13

Id.

14

R.B., Docket No. 19-0343 (issued February 14, 2020).

15

28 ECAB 125 (1976).

16

M.A., Docket No. 19-1017 (issued December 4, 2019); Robert W. Johns, 51 ECAB 137 (1999).

17

R.B., supra note 14; Pamela D. Casey, 57 ECAB 160 (2005); Lillian Cutler, supra note 24.

18

D.T., Docket No. 19-1270 (issued February 4, 2020); Thomas D. McEuen, 41 ECAB 387 (1990).

19

M.A., supra note 16.

5

Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.20
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for an
emotional condition claim. The claim must be supported by probative evidence.21
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed compensable factors of
employment and may not be considered.22 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. If a
compensable factor of employment is substantiated, OWCP must base its decision on an analysis
of the medical evidence that has been submitted.23
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
that was previously considered in its June 11, 2019 decision which found that OWCP properly
rescinded the acceptance of the emotional condition claim.24 Findings made in prior Board
decisions are res judicata, absent any further review by OWCP under section 8128 of FECA.25 As
the Board previously found that OWCP met its burden of proof to justify rescinding its acceptance
of appellant’s emotional condition claim, the burden of proof shifts back to appellant to establish
that she sustained an injury while in the performance of duty and is therefore entitled to
compensation benefits.26 The newly submitted evidence regarding grievances and EEOC claims
does not establish error or abuse on the part of the employing establishment. The filing of
grievances and EEOC complaints are administrative or personnel matters which, although
generally related to the employee’s employment, are administrative functions of the employer
rather than the regular or specially assigned work duties of the employee and are not covered under
FECA, absent evidence of error or abuse on behalf of the employing establishment.27
20

C.R., Docket No. 19-1721 (issued June 17, 2020); Kim Nguyen, 53 ECAB 127 (2001).

21

L.S., Docket No. 18-1471 (issued February 26, 2020).

22

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

23

S.Z., supra note 12; J.F., 59 ECAB 331 (2008).

24

Docket No. 18-1179, supra note 3.

25

G.B., Docket No. 19-1448 (issued August 21, 2020); S.Y., Docket No. 20-2020 (issued July 15, 2020); Robert G.
Burns, 57 ECAB 657 (2006); Clinton E. Anthony, Jr. 49 ECAB 476 (1998) .
26

Supra note 10.

27

A.B., Docket No. 18-0635 (issued August 14, 2020).

6

Appellant has submitted allegations regarding her claims of discrimination, but has not
submitted corroborating evidence of error or abuse in these administrative matters by the
employing establishment, such as a final EEOC decision or grievance determination in her favor.
The Board thus finds that she has not established a compensable employment factor.28
As the Board finds that appellant has not established a compensable employment factor, it
is not necessary to consider the medical evidence of record.29
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 does not entitle a claimant the review of an OWCP decision as a
matter of right.30 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.31 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.32
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (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.33 When a timely request for reconsideration does not meet at least one of

28

Regarding appellant’s allegation that the employing establishment improperly denied her 2018 request for
reasonable accommodation, the instant claim pertains to the occupational disease claim appellant filed on June 24,
2015 under OWCP File No. xxxxxx163. As the Board noted in its December 16, 2016 order, appellant’s current claim
pertains to employment conditions or incidents she believed contributed to her 2015 emotional condition. Appellant’s
current allegation that the employing establishment committed error by denying her request for reasonable
accommodation in 2018 is outside of the Board’s jurisdiction. She may file a new claim with OWCP regarding this
additional alleged factor. See V.H., Docket No. 18-0456 (issued August 9, 2019); Theresa L. Andrews, 55 ECAB
719 (2004).
29

Margaret S. Krzycki, 43 ECAB 496 (1992).

30

5 U.S.C. § 8128(a).

31

20 C.F.R. § 10.607.

32
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Chapter 2.1602.4b.
33

20 C.F.R. § 10.606(b)(3); see B.R., Docket No. 19-0372 (issued February 20, 2020).

7

the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.34
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
With her December 13, 2019 reconsideration, appellant merely reiterated that the
employing establishment committed error with regard to her reasonable accommodation requests.
As noted, that alleged factor is not within the Board’s jurisdiction and is therefore irrelevant.
Appellant thus did not show that OWCP erroneously applied or interpreted a specific point or law
and did not advance a new and relevant legal argument not previously considered. Consequently,
she was not entitled to a review of the merits based on the first and second above-noted
requirements.35
Moreover, appellant’s request for reconsideration did not include relevant and pertinent
new evidence in support of her request for reconsideration. While appellant submitted medical
evidence, the underlying issue in this case is whether appellant has met her burden of proof to
establish an emotional condition in the performance of duty. This is a factual issue which must be
addressed by relevant new factual evidence.36 This medical evidence is therefore irrelevant and
insufficient to warrant merit review. Consequently, appellant was not entitled to a review of the
merits based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.37
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty. The Board further finds that OWCP properly denied
appellant’s request for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

34

Id. at § 10.608.

35

Id. at § 10.606(b)(3); see J.W., Docket No. 19-1795 (issued March 13, 2020).

36

I.J., Docket No. 19-1278 (issued December 30, 2019).

37

20 C.F.R. § 10.608; see M.M., Docket No. 20-0523 (issued August 25, 2020).

8

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2020 and October 31, 2019 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 5, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
V.J., Appellant
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and
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DEPARTMENT OF AGRICULTURE, ANIMAL, )
PLANT HEALTH INSPECTION SERVICE,
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PLANT PROTECTION AND QUARANTINE,
)
Robinson, NJ, Employer
)
__________________________________________ )
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1660
Issued: January 25, 2012

Case Submitted on the Record

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

On July 8, 2011 appellant, through his attorney, filed a timely appeal from the April 12,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed
her January 6, 2011 schedule award claim.1
The Board has duly considered the matter and will affirm OWCP’s April 12, 2011
decision. Appellant’s representative expresses no disagreement with the schedule award per se.
Rather, he argues only that OWCP delayed its adjudication of appellant’s schedule award claim
until the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2009) became applicable on May 1, 2009, which deprived him of due
process rights regarding a determination under the fifth edition, and that a protected property
interest cannot be deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970)
and Mathews v. Eldridge, 424 U.S. 319 (1976). These cases held only that a claimant who was
in receipt of benefits (in Goldberg welfare benefits and in Mathews social security benefits)

1

On January 9, 2007 appellant, a 39-year-old manager, injured her right forearm, ankle and knee when she
slipped on stairs while in travel status. OWCP accepted the claim for closed fracture of the shaft of the radius and
ulna, right knee contusion and right ankle sprain.

could not have those benefits terminated without procedural due process. In this case, appellant
simply made a claim for a schedule award. She was not in receipt of schedule award benefits nor
was OWCP attempting to terminate benefits. Appellant had no vested right to a schedule award
under the fifth edition of the A.M.A., Guides. In Harry D. Butler,2 the Board noted that
Congress delegated authority to the Director of OWCP regarding the specific methods by which
permanent impairment is to be rated. Pursuant to this authority, the Director adopted the
A.M.A., Guides as a uniform standard applicable to all claimants and the Board has concurred in
the adoption.3 On March 15, 2009 the Director exercised authority to advise that as of May 1,
2009 all schedule award decisions of OWCP should reflect use of the sixth edition of the
A.M.A., Guides.4 The applicable date of the sixth edition is as of the schedule award decision
reached. It is not determined by either the date of maximum medical improvement or when the
claim for such award was filed. Accordingly,
IT IS HEREBY ORDERED THAT the April 12, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

43 ECAB 859 (1992).

3

Id. at 866.

4

FECA Bulletin No. 09-03 (issued March 15, 2009). The FECA Bulletin was incorporated in the Federal
(FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

2


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Fort Dodge, KS, Employer
_________________________________________

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

Docket No. 11-1269
Issued: January 19, 2012

Case Submitted on the Record

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

JURISDICTION
On April 22, 2011 appellant filed a timely appeal from the March 11, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request
for further merit review of her claim. She also timely appealed an October 25, 2010
decision which denied her claim for an injury in the performance of duty. 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 has met her burden of proof to establish that she
sustained an injury in the performance of duty; and (2) whether OWCP properly refused to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 8, 2010 appellant, then a 37-year-old patient services assistant, filed an
occupational disease claim alleging that she sustained headaches, stuffy nose, burning in her
lungs and a tickle in the back of her throat in the performance of duty. She first became aware of
her condition and its relation to her work on March 11, 2010. Appellant did not stop work.
In letters dated April 26, 2010, OWCP requested additional factual and medical evidence
from appellant and the employing establishment. In a May 1, 2010 statement, appellant noted
that she was exposed to air contaminated with mold spores at the employing establishment for
eight hours a day since the start of her employment. Once she was removed from the building,
her symptoms were alleviated.
By decision dated May 25, 2010, OWCP denied appellant’s claim finding that she had
failed to submit medical evidence in support of her claim.
In a letter dated May 25, 2010, Rosetta Hubbard, a supervisor, noted that the employing
establishment concurred with appellant’s allegations. Appellant was exposed from 2009 up to
March 11, 2010. Afterwards, all staff were moved to minimize the effects of exposure. OWCP
received numerous environmental studies, mold reports and a position description.
On June 16, 2010 appellant requested reconsideration.2 She stated that at the time she
filed her claim, the air quality studies were not available; but the studies she obtained revealed
two kinds of mold. As a result of her exposure, appellant experienced sinus discomfort, dryness
in her sinuses, headache, burning eyes, itchy throat and just not feeling right. Appellant noted
that she did not have any health issues prior to her exposure, which she became aware of on
March 11, 2010.
In a telephone memorandum dated June 30, 2010, OWCP acknowledged that the May 25,
2010 decision was issued prematurely and a new decision would be issued once additional
evidence was reviewed.
By decision dated July 7, 2010, OWCP denied appellant’s claim finding that she failed to
submit medical evidence in support of her claim.
On August 11, 2010 appellant requested reconsideration. She reiterated her belief that
her condition was work related.
In support of her request, appellant submitted nursing notes dated July 8 and August 2,
2010, and progress notes from January 2009 to August 2010 that were either unsigned or from a
nurse practitioner. She also submitted a July 30, 2010 laboratory report, an article on
formaldehyde exposure, a record of telephone calls and an August 5, 2010 work restriction from
a nurse practitioner. A July 16, 2010 chest x-ray read by Dr. Rajesh Gogia, a Board-certified
diagnostic radiologist, revealed clear lungs.

2

The date indicated 2009; however this appears to be a typographical error.

2

By decision dated October 25, 2010, OWCP denied appellant’s claim finding that she
failed to submit medical evidence in support of her claim.
On February 23, 2011 appellant requested reconsideration.
In a statement received on March 2, 2011, appellant reiterated her belief that her
condition was work related. She noted that she had incurred medical expenses as a result.
OWCP also received several nurse’s notes dating from November 16, 2009 to August 30, 2010
and e-mail correspondence pertaining to running laboratory tests.
By decision dated March 11, 2011, OWCP denied appellant’s request for reconsideration
finding that she failed to submit either new and relevant evidence or legal contentions not
previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

5

Id.

3

ANALYSIS -- ISSUE 1
Appellant alleged that she was exposed to air contaminated with mold spores at the
employing establishment. The employing establishment confirmed that she was exposed to mold
while at work. OWCP found that the claimed employment factor -- exposure to air contaminated
with mold spores at work -- occurred. Appellant has established that she was exposed to air
contaminated with mold spores, as alleged. However, she has not submitted sufficient medical
evidence to establish that such exposure caused or contributed to her claimed medical conditions.
Appellant did not submit any evidence from a physician explaining how being exposed to
air contaminated with mold spores at the employing establishment caused or contributed to any
lung or breathing condition. OWCP advised appellant of the need to provide medical evidence
addressing this aspect of her claim; but there is no report from a physician addressing how mold
exposure at work caused any diagnosed medical condition.
Appellant provided a July 16, 2010 x-ray report from Dr. Gogia. The report merely noted
findings but did not contain any opinion regarding the cause of her claimed condition. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.6 Appellant did not submit a
medical report from a physician that explained how specific exposures in her federal
employment caused or aggravated her diagnosed condition.
The record also contains progress notes and treatment reports from nurse practitioners.
Health care providers such as nurses, acupuncturists, physician’s assistants, and physical
therapists are not physicians as defined under FECA. Their opinions on causal relationship do
not constitute probative medical evidence and have no weight or probative value.7
Although appellant submitted an article on formaldehyde exposure this is also
insufficient to establish her claim. The Board has held that newspaper clippings, medical texts
and excerpts from publications are of no evidentiary value in establishing causal relationship as
they are of general application and are not determinative of whether the specific condition
claimed was causally related to the particular employment factors alleged.8
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to

6

Jaja K. Asaramo, 55 ECAB 200 (2004).

7

Jane A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2).

8

D.E., 58 ECAB 448 (2007).

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

4

establish causal relationship.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is no probative, rationalized medical evidence addressing or explaining how
appellant’s exposure to air contaminated with mold spores caused and/or aggravated a medical
condition. She has not substantiated her claim.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,11
OWCP’s regulations provide that a claimant’s application for reconsideration must be submitted
in writing and set forth arguments or contain evidence that either: (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.12 To be entitled to a merit review of an OWCP decision
denying or terminating a benefit, a claimant must file his or her application for review within one
year of the date of that decision.13 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.14
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP. The evidence she submitted is not pertinent to the underlying issue in this
appeal, which is medical in nature, whether she has established an injury in the performance of
duty.
Appellant requested reconsideration on February 23, 2011 and reiterated her belief that
her condition was work related. She also noted that she had incurred expenses as a result.
Appellant also provided several nursing notes dated from November 16, 2009 to August 30,
2010 and e-mail correspondence pertaining to running laboratory tests. The Board notes this
evidence is not relevant to the underlying issue regarding an occupational disease arising on or
about March 11, 2010. As noted, the issue of causal relation is medical in nature. The reports
from the nurse do not constitute medical evidence under section 8101(2). Additionally, the
e-mail correspondence and stated her belief that her condition is work related is not relevant as it
is not medical evidence. The Board has held that the submission of evidence which does not
10

Id.

11

5 U.S.C. § 8128(a). Under section 8128(a) of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.
12

20 C.F.R. §§ 10.609(a) and 10.606(b).

13

Id. at § 10.607(a).

14

Id. at § 10.608(b).

5

address the particular issue involved in the case does not constitute a basis for reopening the
claim.15
Appellant did not submit evidence or argument showing that OWCP erroneously applied
or interpreted a specific point of law, did not advance a relevant legal argument not previously
considered by OWCP or submit relevant and pertinent new evidence not previously considered
by OWCP. It properly denied her reconsideration request.
On appeal, appellant noted that she submitted medical evidence which was signed by her
physician. Additionally, she noted that her physician worked with the nurse. But the record
does not contain medical reports from a physician. The reports from appellant’s nurse cannot be
considered medical evidence. Appellant also provided a new report from her physician.
However, the Board has no jurisdiction to review this evidence for the first time on appeal.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of the merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty. The Board further finds that OWCP properly
denied her request for reconsideration.

15

See David J. McDonald, 50 ECAB 185 (1998).

16

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

6

ORDER
IT IS HEREBY ORDERED THAT the March 11, 2011 and October 25, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)

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

Docket No. 12-1759
Issued: June 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 20, 2012 appellant, through her attorney, filed a timely appeal from a
March 20, 2012 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 this case.
ISSUE
The issue is whether appellant sustained permanent impairment warranting a schedule
award.
On appeal, appellant’s attorney contends that Dr. William H. Spellman, a Board-certified
orthopedic surgeon, was not properly selected as an impartial medical specialist using the
Physicians Directory System (PDS) as there was no screen shot showing his selection. He also
contends that Dr. Spellman’s report should be treated as a second opinion report because the only
impairment rating established under the sixth edition of the American Medical Association,
1

5 U.S.C. § 8101 et seq.

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) was from an OWCP
medical adviser. This created a conflict between the two physicians as to the extent of
appellant’s permanent impairment which required referral to a new referee medical examination.
Counsel further contends that Dr. Spellman did not conduct a thorough medical examination as
he did not report any neurological findings.
FACTUAL HISTORY
This case has previously been before the Board. In a March 2, 2007 decision, the Board
found that OWCP properly found a conflict in the medical opinion evidence between Dr. David
Weiss, an osteopath, and Dr. Stephen J. Valentino, an OWCP referral physician, regarding the
extent of permanent impairment to appellant’s left lower extremity.2 However, the Board found
that the reports of Dr. Barry A. Silver were insufficient to resolve the conflict in the medical
opinion evidence as he did not address the deficiencies noted by OWCP regarding appellant’s
impairment. The Board remanded the case to OWCP for referral of appellant to another
impartial medical specialist to resolve the conflict. In a February 3, 2009 decision, the Board
found that the case was not in posture for decision regarding appellant’s entitlement to a
schedule award for impairment to her lower extremities.3 The Board stated that a conflict
remained unresolved, as Dr. Evan S. Kovalsky, a Board-certified orthopedic surgeon and
impartial medical specialist, failed to properly apply the fifth edition of the A.M.A., Guides in
determining that appellant had five percent impairment to her left lower extremity. The Board
directed OWCP to secure a supplemental report from Dr. Kovalsky to correct the defect in his
original opinion. The facts and history contained in the prior appeal are incorporated by
reference.4
On remand, OWCP obtained a supplemental report from Dr. Kovalsky and had an
OWCP medical adviser review and comment on this report. In an April 15, 2009 decision,
OWCP denied appellant’s claim for a schedule award based on the opinion of the medical
adviser. This decision was set aside by an OWCP hearing representative in a decision dated
June 12, 2009. The hearing representative found that OWCP improperly accorded determinative
weight to the medical adviser’s opinion over Dr. Kovalsky’s opinion. She remanded the case to
OWCP for referral of appellant to a third impartial medical adviser. In an October 5, 2009
decision, OWCP denied appellant’s schedule award claim based on the impartial medical
opinion of Dr. Elliott Menkowitz, a Board-certified orthopedic surgeon. In a May 7, 2010
decision, an OWCP hearing representative set aside the October 5, 2009 decision and remanded
the case for further development. She found that Dr. Menkowitz’s report was insufficiently
rationalized. The hearing representative directed OWCP to obtain a supplemental report from
him acknowledging the accepted employment-related condition and providing a detailed
description of his physical findings and testing, and a reasoned opinion as to whether appellant
2

Docket No. 06-2111 (issued March 2, 2007).

3

Docket No. 08-1691 (issued February 3, 2009).

4

On December 15, 1991 appellant, then a 33-year-old mail processor, filed an occupational disease claim
alleging that on July 3, 1991 she first became aware of her lower back condition and realized that her condition was
caused by her employment duties. OWCP accepted the claim for temporary exacerbation of preexisting L5-S1
degenerative disc disease.

2

had any employment-related impairment to either lower extremity in accordance with the sixth
edition of the A.M.A., Guides. In a July 22, 2010 decision, OWCP denied appellant’s claim for
a schedule award based on Dr. Menkowitz’s supplemental report. This decision was set aside
and the case was remanded for further development by an OWCP hearing representative in a
decision dated December 21, 2010. The hearing representative found that Dr. Menkowitz’s
report was not well rationalized. She directed OWCP to refer appellant to a new impartial
medical specialist to determine the extent of her permanent impairment.
On February 2, 2011 appellant was referred to Dr. Spellman for a fourth impartial
medical examination. The record contains an iFECS Report: MEO23 Appointment Schedule
Notification referring appellant to Dr. Spellman for an impartial medical examination.
Additionally, a Bypass Doctor screenshot for another Board-certified orthopedic surgeon who
was bypassed is of record. The screenshot reflects that Dr. Stephanie Sweet, a Board-certified
orthopedic surgeon, was bypassed because she did not perform impartial medical examinations
at that time. The record also contains a ME-M-Memorandum of Referral to Specialist and a MEM-Referee Medical Referral Philadelphia District Office both dated January 31, 2011. Both
documents include a listing of all physicians previously involved in the case.
In an April 4, 2011 medical report, Dr. Spellman obtained a history of appellant’s work
duties and medical background. He provided a detailed review of her medical records.
Dr. Spellman noted appellant’s complaint of back pain which she rated as eight with associated
numbness. On physical examination of the back, he found no scoliosis, abnormal lordosis or list.
The pelvis was level. On bony and soft tissue palpation, there was no tenderness or muscle
spasm. The soft tissues were smooth without areas of induration or trigger points. On forward
flexion more than 15 degrees, appellant reported increased back pain. In a sitting position, she
had full painless internal and external rotation of both hips and negative straight leg raising when
sustained at 90 degrees symmetrically. Deep tendon reflexes were 2+ symmetrically in the lower
extremities. Proximal and distal motor strength was grossly full in the lower extremities. A
Fabere’s test was negative symmetrically. On examination of the lower extremities,
Dr. Spellman found unremarkable morphology. Skin color, temperature, texture and hydration
from the knees to the toes were unremarkable. Circumferential measurements of both lower legs
10 centimeters proximal to the tibial tubercle were equal. There was no swelling in the ankles or
distal joints. Quadriceps were appropriately reactive and circumferential measurements of both
thighs 10 centimeters proximal to the superior pole of the patella were equal. Regarding the left
lower extremity, appellant reported decreased sensation with light touch over the left posterior
and lateral leg extending to include the entire dorsum of the left foot and over the first metatarsal,
great toe, the first web space and plantar surface of the foot. There was full range of motion of
the knees, ankles and distal joints. All joints were stable and pain free to stressing. Full distal
pulses were present. Proximal and distal motor strength was grossly full. Deep tendon reflexes
were 2+ symmetrically in the lower extremities. A Fabere’s test was negative symmetrically.
Dr. Spellman noted that appellant had no findings or complaints regarding her right lower
extremity. The concern was her left lower extremity as it related to her back condition. This
involved lumbar root irritation and then by extension, peripheral nerve impairment.
Dr. Spellman noted that under Table 17-4, Lumbar Spine Regional Grid: Spine Impairments, on
page 571 of the sixth edition of the A.M.A., Guides, a patient with subjective complaints without
physical findings or significant clinical abnormalities that were generally assigned class 0

3

impairment and had no ratable impairment.5 He, thus, determined that since appellant did not
have any anatomically verifiable complaints, she had no permanent impairment. Dr. Spellman
noted that in evaluating peripheral nerve impairment under Table 16-12, page 532 of the A.M.A.,
Guides, stated that the sensory examination should conform to the cutaneous distribution of a
peripheral nerve or branch of a peripheral nerve. On sensory examination, he found an altered
sensation over the entire posterior and lateral aspect of appellant’s left lower leg and dorsum and
plantar surface of her left foot. This was not consistent with a single nerve root or peripheral
nerve. Dr. Spellman determined that the sensory changes consistent with a nerve root which, in
this case was S1 resulted in class 0 impairment. He noted that appellant had no motor function
impairment in the left lower extremity as demonstrated by gross strength assessment or atrophic
changes. Dr. Spellman stated that other concerns of lower extremity impairment such as,
complex regional pain syndrome (CRPS), amputation and range of motion were not relevant. He
opined that appellant had no impairment of her lower extremities secondary to her accepted back
condition. Dr. Spellman concluded that she had reached maximum medical improvement.
In an April 18, 2011 decision, OWCP denied appellant’s schedule award claim based on
Dr. Spellman’s April 4, 2011 impartial medical opinion.
By letter dated April 21, 2011, appellant, through her attorney, requested an oral hearing
before an OWCP hearing representative.
In a July 13, 2011 decision, an OWCP hearing representative set aside the April 18, 2011
decision and remanded the case for OWCP to forward Dr. Spellman’s April 4, 2011 report
together with the medical record to an OWCP medical adviser for review and determination of
the extent of appellant’s permanent impairment in accordance with the sixth edition of the
A.M.A., Guides.
On August 19, 2011 an OWCP medical adviser reviewed Dr. Spellman’s findings. He
advised that appellant probably reached maximum medical improvement in January 1992. The
medical adviser stated that while Dr. Spellman’s finding that appellant had no bilateral lower
extremity impairment was correct, the methodology he used was not appropriate. The correct
method for rating impairment of spinal nerve impairment such as, radiculopathy affecting the
extremities was discussed in the July/August 2009 edition of The Guides Newsletter. The
medical adviser stated that the physical examination findings documented by Dr. Spellman
demonstrated normal motor function in the lower extremities. He further stated that
Dr. Spellman’s sensory examination identified a decrease in light touch sensation over the
posterior and lateral leg extending to include the entire dorsum of the left foot, extending over
the first metatarsal and great toe and the first web space and plantar surface of the foot. The
medical adviser noted Dr. Spellman’s opinion that this finding was not consistent with a specific
nerve root. As such, it cannot serve as a basis for assignment of impairment. Additionally, the
medical adviser noted that a June 14, 2011 magnetic resonance imaging (MRI) scan revealed
mild degenerative disease without significant central canal or neural foramina stenosis did not
demonstrate nerve root compromise. He concluded that as the imaging studies and physical
5

The Board notes that it appears Dr. Spellman inadvertently stated that Table 17-4 was located on page 561
rather than page 571 of the sixth edition of the A.M.A., Guides as he provided the correct title of the table.

4

examination findings did not demonstrate nerve root compromise, there was no basis for rating
regional impairment to either lower extremity due to appellant’s lumbar spine injury.
In a September 6, 2011 decision, OWCP denied appellant’s claim, finding that the weight
of the medical evidence rested with Dr. Spellman’s impartial medical opinion that appellant had
no impairment of either lower extremity under the sixth edition of the A.M.A., Guides. It found
that his opinion was supported by OWCP’s medical adviser’s opinion.
On September 9, 2011 appellant’s attorney requested an oral hearing before a hearing
representative.
At the January 5, 2012 hearing, appellant’s attorney argued that Dr. Spellman was not
properly selected as an impartial medical specialist under the PDS as there was no screen shot
showing his selection. Counsel also contended that his report was of diminished probative value
as he failed to identify neurological examination findings, used the wrong methodology to
formulate his impairment rating as noted by OWCP’s medical adviser and was instrumental in
writing the A.M.A., Guides.
In a March 20, 2012 decision, an OWCP hearing representative affirmed the denial of
appellant’s schedule award claim. The hearing representative accorded determinative weight to
Dr. Spellman’s impartial medical opinion.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage of loss of use.8 However, neither FECA nor
the regulations specify the manner in which the percentage of impairment shall be determined.
For consistent results and to ensure equal justice for all claimants, OWCP adopted the A.M.A.,
Guides as a standard for determining the percentage of impairment and the Board has concurred
in such adoption.9 For OWCP decisions issued on or after May 1, 2009, the A.M.A., Guides (6th
ed. 2008) is used for evaluating permanent impairment.10
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial
evidence.11 A claimant seeking a schedule award therefore has the burden of establishing that
6

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

7

20 C.F.R. § 10.404.

8

5 U.S.C. § 8107(c)(19).

9

20 C.F.R. § 10.404(a).

10

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

11

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

her accepted employment injury caused permanent impairment of a scheduled member, organ or
function of the body.12
A schedule award is not payable for the loss or loss of use, of a part of the body that is
not specifically enumerated under FECA. Neither FECA nor its implementing regulations
provide for a schedule award for impairment to the back or to the body as a whole. Furthermore,
the back is specifically excluded from the definition of organ under FECA.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter Rating Spinal Nerve Extremity Impairment using the sixth edition (July/August 2009)
is to be applied.14
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).15 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).16
Section 8123(a) of FECA provides in pertinent part: If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.17 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.18
It is well established that OWCP procedures provide that an impartial medical specialist
must be selected from a rotational list of qualified Board-certified specialists, including those

12

E.g., Russell E. Grove, 14 ECAB 288 (1963) (where medical reports from the attending physicians showed that
the only leg impairment was due to arthritis of the knees, which was not injury related, the claimant failed to meet
his burden of proof to establish entitlement to a schedule award).
13

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

14

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is
included as Exhibit 4.
15

A.M.A., Guides 533.

16

Id. at 521.

17

5 U.S.C. § 8123(a).

18

L.S., Docket No. 12-139 (issued June 6, 2012); see also Jack R. Smith, 41 ECAB 691, 701 (1990); James P.
Roberts, 31 ECAB 1010, 1021 (1980).

6

certified by the American Medical Association and American Osteopathic Association.19 The
physician selected as the impartial specialist must be one wholly free to make an independent
evaluation and judgment. To achieve this end, OWCP has developed procedures for the
selection of the impartial medical specialist designed to provide adequate safeguards against the
appearance that the selected physician’s opinion was biased or prejudiced.20 The procedures
contemplate that impartial medical specialists will be selected from Board-certified specialists in
the appropriate geographical area on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.21 OWCP’s procedures
provide that the selection of referee physicians (impartial medical specialists) is made through a
strict rotational system using appropriate medical directories. The procedure manual provides
that the PDS should be used for this purpose wherever possible.22 The PDS is a set of standalone software programs designed to support the scheduling of second opinion and referee
examinations.23 The PDS database of physicians is obtained from the American Board of
Medical Specialties which contains the names of physicians who are Board-certified in certain
specialties. It is also well established that, when a case is referred to an impartial medical
specialist for the purpose of resolving a conflict, the opinion of such specialist, if sufficiently
well rationalized and based on proper factual and medical background must be given special
weight.24
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 opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by OWCP’s medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.25
ANALYSIS
The Board previously found that the opinions of Drs. Silver and Kovalsky, impartial
medical examiners, were insufficiently rationalized to establish the extent of appellant’s
permanent impairment causally related to the accepted employment-related lumbar injury. The
Board concluded that there remained an unresolved conflict in medical opinion.
19

See LaDonna M. Andrews, 55 ECAB 301 (2004); A.R., Docket No. 09-1566 (issued June 2, 2010).

20

See Raymond J. Brown, 52 ECAB 192 (2001); A.R., supra note 19.

21

B.P., Docket No. 08-1457 (issued February 2, 2009).

22

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b (May 2003).
The Board notes that, as of July 2011, the Medical Management Application in iFECS replaced the prior PDS
selection procedure for an impartial medical specialist. Id. at Chapter 3.500.5 (July 2011).
23

Id. at Chapter 3.500.7 (September 1995, May 2003).

24

Gloria J. Godfrey, 52 ECAB 486 (2001).

25

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.7(h) (April 1993).

7

On remand, OWCP referred appellant to several impartial medical specialists who were
unable to resolve the conflict of medical opinion. Thus, it ultimately referred her to
Dr. Spellman to evaluate the extent of her permanent impairment. In a March 20, 2012 decision,
OWCP denied appellant’s schedule award claim based on Dr. Spellman’s April 4, 2011 report.
Counsel contended on appeal that Dr. Spellman should be considered a second opinion
physician and not an impartial medical specialist because the only impairment rating based on
the sixth edition of the A.M.A., Guides was from an OWCP medical adviser. As the Board
previously found, OWCP properly determined that a conflict arose in the medical opinion
evidence between Dr. Weiss, an attending physician, and Dr. Valentino, an OWCP referral
physician, as to the nature and extent of appellant’s employment-related permanent impairment,
which required referral to an impartial medical examiner. As the selected physicians were
unable to resolve the conflict of medical opinion, OWCP properly referred appellant to
Dr. Spellman.
Counsel further contended on appeal that OWCP did not properly select Dr. Spellman as
the impartial medical specialist as there was no screen shot showing his selection. The Bypass
Doctor screenshot provided by OWCP indicated that Dr. Sweet did not perform impartial
medical examinations at that time. Documentation also listed other physicians previously
involved in the case so as to avoid any appearance of impropriety on the part of OWCP in the
selection process. There is no evidence to establish that OWCP’s decision to bypass this
physician was inappropriate or unreasonable or that it failed to comply with its rotational
procedures. Appellant did not provide any probative evidence to demonstrate bias on the part of
Dr. Spellman. The Board has held that an impartial medical specialist properly selected under
OWCP’s rotational procedures will be presumed unbiased and the party seeking disqualification
bears the substantial burden of proving otherwise. Mere allegations are insufficient to establish
bias.26 The Board finds, therefore, that the evidence does not establish an error in the selection
of Dr. Spellman as an impartial medical specialist.
In an April 4, 2011 report, Dr. Spellman reported that appellant had reached maximum
medical improvement. He concluded that she had no permanent impairment to either lower
extremity due to her employment-related back condition. Dr. Spellman reviewed a history of the
accepted injury and appellant’s medical treatment and records. On examination of the back, he
provided essentially normal findings except increased pain on forward flexion more than 15
degrees. On examination of the bilateral lower extremities, Dr. Spellman also reported
essentially normal findings except appellant’s complaint of decreased sensation with light touch
over the left posterior and lateral left leg extending to the entire dorsum of the left foot and over
the first metatarsal, great toe, the first web space and plantar surface of the foot. Under Table
17-4, Lumbar Spine Regional Grid: Spine Impairments, on page 571 of the sixth edition of the
A.M.A., Guides, he opined that appellant had a class 0 impairment without physical findings or
significant clinical abnormalities which resulted in no impairment. Under Table 16-12 for
peripheral nerve impairment (A.M.A., Guides, 534-36), Dr. Spellman found that she had a
class 0 impairment as her complaint of an altered sensation over the entire posterior and lateral
aspect of her left lower leg and dorsum and plantar surface of her left foot was not consistent
26

See L.W., 59 ECAB 471 (2008).

8

with a single nerve root or peripheral nerve. He stated that appellant had no motor function
impairment in the left lower extremity as demonstrated by gross strength assessment or atrophic
changes. Dr. Spellman noted that lower extremity impairment due to CRPS, amputation and
range of motion were not relevant. He concluded that appellant had no impairment of her lower
extremities secondary to her accepted back condition.
OWCP procedures state that an OWCP medical adviser must review the report to verify
correct application of the A.M.A., Guides and confirm the percentage of permanent impairment
as well as specify his reasons for assigning a certain percentage of loss of use to the
measurements or factors provided by the examining physician.27 In this case, the medical
adviser properly stated that Dr. Spellman used an incorrect methodology to rate appellant’s
impairment and determined that there was no basis for a lower extremity impairment in either
extremity under the sixth edition of the A.M.A., Guides and The Guides Newsletter
July/August 2009. He noted his physical examination finding of normal motor function in the
lower extremities. The medical adviser also noted Dr. Spellman’s sensory examination finding
of a decrease in light touch sensation over the posterior and lateral leg extending to include the
entire dorsum of the left foot, extending over the first metatarsal and great toe and the first web
space and plantar surface of the foot and opinion that this finding was not consistent with a
specific nerve root. He further noted his conclusion that this finding could not serve as a basis
for assignment of impairment. The medical adviser noted that the June 14, 2011 MRI scan,
which revealed mild degenerative disease without significant central canal or neural foramina
stenosis, did not demonstrate nerve root compromise. He concluded that as the imaging studies
and physical examination findings did not demonstrate nerve root compromise, there was no
basis for rating regional impairment to either lower extremity due to appellant’s lumbar spine
injury. As the medical adviser utilized Dr. Spellman’s objective clinical findings to compare
them with impairment criteria listed in the A.M.A., Guides, the Board finds that appellant is not
entitled to a schedule award for any employment-related impairment of either lower extremity.28
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained permanent
impairment warranting a schedule award.

27

R.S., Docket No. 09-1331 (issued April 5, 2010); Federal (FECA) Procedure Manual, supra note 25 at Chapter
2.810.7(c) (April 1993).
28

If the clinical findings are fully described, any knowledgeable observer may check the findings with the
A.M.A., Guides criteria. A.M.A., Guides 17. See also I.H., Docket No. 08-1352 (issued December 24, 2008).

9

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, BEAUMONT
ENCODING CENTER, Beaumont, TX,
Employer
__________________________________________

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

Docket No. 07-148
Issued: July 20, 2007

Case Submitted on the Record

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

JURISDICTION
On October 23, 2006 appellant filed a timely appeal of a decision of the Office of
Workers’ Compensation Programs dated July 21, 2006 which denied merit review. Because
more than one year has elapsed between the most recent merit decision dated May 23, 2005 and
the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board lacks
jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a May 23, 2005 decision, the Board
found that appellant failed to meet her burden of proof to establish that she sustained an

employment-related emotional condition causally related to accepted employment factors.1 By
order dated August 5, 2005, the Board denied appellant’s petition for reconsideration. The law
and the facts of the case as set forth in the previous Board decision are incorporated herein by
reference.
On May 13, 2006 appellant requested reconsideration before the Office. She submitted
duplicates of evidence previously of record, including February 8 and April 3, 2002 reports from
Dr. Ramaswamy Lakshmanan, an April 11, 2002 report from Dr. Rejen Desai, a work capacity
evaluation dated August 8, 2002 and a second opinion evaluation dated September 3, 2002 from
Dr. Jorge A. Raichman and a June 10, 2003 report from Dr. Ravikumar Kanneganti. By decision
dated July 21, 2006, the Office denied appellant’s reconsideration request.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.3 Section 10.608(a) of the Code of
Federal Regulations provides that a timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence and/or argument that meets at least
one of the standards described in section 10.606(b)(2).4 This section provides that the
application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (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.5
Section 10.608(b) provides that, when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.6
ANALYSIS
The only decision before the Board in this appeal is the July 21, 2006 Office decision
denying appellant’s application for review. Because more than one year had elapsed between the
date of the last recent merit decision in the case, the Board’s May 23, 2005 decision and the
filing of this appeal on October 23, 2006, the Board lacks jurisdiction to review the merits of her
claim.7
1

Docket No. 03-1885 (issued May 25, 2005).

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.608(a).

5

20 C.F.R. § 10.608(b)(1) and (2).

6

20 C.F.R. § 10.608(b).

7

20 C.F.R. § 501.3(d)(2).

2

With her May 13, 2006 reconsideration request, appellant merely contended that the
Board had made errors in its May 23, 2005 decision.8 She did not allege or demonstrate that the
Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by the Office. Consequently, she was not entitled to a
review of the merits of her claim based on the first and second above-noted requirements under
section 10.606(b)(2).9
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted duplicate evidence in support of her request for reconsideration. The medical reports
and other evidence submitted had previously been reviewed by the Board and the Office.
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.10 As appellant did not submit relevant and
pertinent new evidence not previously considered by the Office, the Office properly denied her
reconsideration request.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

A decision of the Board is final upon the expiration of 30 days from the date of the decision. Joseph A. Brown,
Jr., 55 ECAB 542 (2004). In this case, the Board denied appellant’s petition for reconsideration on August 5, 2005.
9

20 C.F.R. § 10.606(b)(2).

10

James W. Scott, 55 ECAB 606 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 21, 2006 be affirmed.
Issued: July 20, 2007
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF THE NAVY,
CHARLESTON NAVAL SHIPYARD,
Charleston, SC, Employer
__________________________________________

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

Docket No. 16-0679
Issued: June 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 22, 2016 appellant filed a timely appeal from a September 10, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant established a basis for modifying OWCP’s March 13,
1998 wage-earning capacity decision.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with his appeal. The Board, however, is precluded from considering
evidence that was not already part of the record when OWCP issued its final decision on September 10, 2015. Thus,
it is precluded from receiving this evidence on appeal. 20 C.F.R. § 501.2(c)(1) (2014).

FACTUAL HISTORY
This case has previously been before the Board.3
The facts and circumstances set forth in the prior Board decision are incorporated herein
by reference. The relevant facts are set forth below. On April 12, 1994 appellant, then a
41-year-old welder, injured his left thumb and wrist in the performance of duty. OWCP
accepted the claim for left thumb ulnar collateral ligament tear and authorized surgery.
Appellant was unable to resume his regular duties as a welder.4 The employing establishment
terminated his employment, effective October 28, 1994, and OWCP subsequently paid him
wage-loss compensation for temporary total disability. In February 1995, OWCP referred
appellant for vocational rehabilitation services.
In December 1997, appellant began working full time as a container maintenance
mechanic (land base) with the International Longshoremen’s Association (ILA). His private
sector ILA job was a light-duty version of a welder’s position, which his then-treating physician
approved.5
By decision dated March 13, 1998, OWCP determined that appellant’s full-time
reemployment with ILA fairly and reasonably represented his wage-earning capacity. The
decision noted that, effective December 7, 1997, appellant earned $520.00 per week as a
container maintenance mechanic. Because his current earnings with ILA were less than what he
earned in his date-of-injury welder position, OWCP compensated him based on the loss of wageearning capacity.6

3

Docket No. 13-1105 (issued July 23, 2013).

4

According to the latest statement of accepted facts (SOAF), the physical requirements of claimant’s date-ofinjury position as welder included standing, walking, stooping, bending, kneeling, climbing, and crawling. The
April 21, 2011 SOAF also noted that work may be done in awkward and cramped positions, such as when welding
in hard to reach places. Additionally, welders were noted to frequently handle objects weighing from 20 to 50
pounds and occasionally, objects weighing in excess of 50 pounds when setting up work and equipment for
completion of assignments.
5

Appellant found the ILA position on his own, and began work on a trial basis, effective August 18, 1997. He
worked for one week and afterward reported that he was able to perform the required physical tasks. Appellant also
indicated that the ILA position was “less demanding” and “less strenuous” than his prior position with the
employing establishment. On August 25, 1997 Dr. Howard L. Brilliant, a Board-certified orthopedic surgeon,
provided two disability certificates. One certificate indicated that appellant “may return to work at new welding
job.” The other disability certificate noted that appellant “may return to work as [a] container maintenance
mechanic….” Dr. Brilliant had previously examined appellant on August 5, 1997. Although appellant’s work with
ILA was initially sporadic, he eventually secured full-time work in early December 1997. During a December 16,
1997 follow-up visit, Dr. Brilliant noted that appellant’s examination was basically unchanged. He indicated that
appellant still had pain, limited motion of his thumb, and a flexion deformity. Dr. Brilliant also reported that
appellant was currently working as a longshoreman.
6

The March 13, 1998 wage-earning capacity determination noted that appellant’s earnings as a container
maintenance mechanic represented 87 percent of the current wages of his date-of-injury position.

2

Appellant worked as a private sector container maintenance mechanic through
October 2005. It is unclear why he stopped work entirely in October 2005. OWCP continued to
pay wage-loss compensation based on the March 13, 1998 wage-earning capacity determination.
In August 2009, it expanded appellant’s claim to include left wrist post-traumatic degenerative
arthritis.
When the case was last before the Board, OWCP had denied modification of its
March 13, 1998 wage-earning capacity determination.7 On June 11, 2012 appellant’s thenrepresentative again requested modification of the wage-earning capacity decision as the
evidence of record demonstrated a material change in the nature and extent of his injury-related
condition. By decision dated October 1, 2012, OWCP denied his claim for additional wage-loss
compensation.
Appellant appealed to the Board. In its July 23, 2013 decision, the Board found that he
had not established a basis for modifying the March 13, 1998 wage-earning capacity
determination.8 The Board reviewed the relevant medical evidence and the arguments presented
and found that appellant had not met any of the three grounds for modification. Accordingly, the
Board affirmed OWCP’s October 1, 2012 decision.
Since issuing its last decision on October 1, 2012, OWCP referred appellant to
Dr. James F. Bethea, a Board-certified orthopedic surgeon and second opinion physician, who
provided results on examination on April 30, 2013. Dr. Bethea diagnosed left thumb ulnar
collateral ligament tear. At the time, appellant indicated that he could not do anything with his
left thumb. Grabbing and opening a door with his left thumb was reportedly impossible.
Dr. Bethea determined that appellant’s accepted condition was unresolved because it had
progressed to osteoarthritis of the left thumb. He further stated that appellant could not return to
work as a welder for the employing establishment.9
On April 9, 2014 a new representative for appellant filed a request for
reconsideration/modification. Counsel resubmitted a June 17, 2009 left wrist imaging study. He
also submitted a new December 11, 2013 report from Dr. Bright McConnell, III, a Boardcertified orthopedic surgeon, who had previously conducted a second opinion evaluation on
June 5, 2009.10

7

Modification is only warranted where the party seeking to modify an wage-earning capacity determination
establishes either that there is a material change in the nature and extent of the injury-related condition, the
employee has been retrained or otherwise vocationally rehabilitated or the original determination was erroneous.
20 C.F.R. § 10.511.
8

Supra note 3.

9

Although Dr. Bethea was aware that appellant “accepted a light-duty assignment with the ILA for
[approximately] eight years,” he did not specifically comment on whether appellant was able to work in a light-duty
capacity.
10

The Board’s July 23, 2013 decision discussed in detail the results of Dr. McConnell’s June 5, 2009 second
opinion evaluation.

3

In his most recent December 11, 2013 report, Dr. McConnell diagnosed osteoarthritis of
the left wrist and hand. He noted that when he last examined appellant in 2009, his thenrestrictions precluded a return to his previous occupation as a welder. Dr. McConnell further
noted that appellant “has been employed as a longshoreman since 1997.” He also reported that
appellant’s “position is container maintenance mechanic.” According to Dr. McConnell,
appellant had increasing problems with his left thumb and wrist, “causing difficulty completing
his current work requirements.” Dr. McConnell noted that the primary purpose of the
appointment was to determine appellant’s current work capacity. He explained that appellant
had post-traumatic degenerative changes of his wrist, as well as the metacarpophalangeal (MCP)
and carpometacarpal (CMC) joints of his left thumb. Dr. McConnell further explained that the
2009 work restrictions were intended to prevent repetitive wrist motion (less than 1 to 2 hours
daily), and included a five-pound left hand lifting restriction. He noted that appellant had a
significant compromise with respect to tasks requiring left hand repetitious grip or pinch
activities. These restrictions remained current and were permanent in nature. Dr. McConnell
further noted that he did not have access to a formal job description for a container maintenance
mechanic position. He believed that if the container maintenance mechanic position description
did not accommodate the above-noted left hand restrictions, then appellant would not be able to
continue in that specific occupation.
In a May 8, 2014 decision, OWCP found the evidence of record insufficient to establish a
material worsening of appellant’s accepted left thumb and wrist condition. Consequently, it
denied modification.
On March 27, 2015 appellant again requested modification of the March 13, 1998
wage-earning capacity determination. He argued that the May 8, 2014 decision was erroneous
because OWCP had not relied on a reasonably current medical examination in determining that
the “constructed job of container maintenance mechanic” was medically suitable. Appellant
noted that, while Dr. Brilliant resubmitted the two August 25, 1997 disability certificates,11
appellant claimed that he had not physically examined him or reevaluated his functional capacity
“at or about that time.” He claimed that the most recent physical examination was conducted on
June 1, 1995, which was more than 2½ years prior to the March 13, 1998 wage-earning capacity
determination.12
Appellant also submitted an April 24, 2014 letter from ILA Local 1422-A President,
Leonard A. Bailey. He provided a general description of the duties of an ILA mechanic in the
maritime industry. Mr. Bailey explained that mechanics performed maintenance/repair on
intermodal chassis and containers, which included chassis tire maintenance/repair utilizing a
25-pound hammer and a ¾-inch impact gun. He also noted that tractor-trailer tires weighed
approximately 75 pounds. Mr. Bailey further indicated that chassis repair required basic
11

Supra note 5.

12

The June 1, 1995 report appellant referenced was an impairment rating from Dr. Brilliant. At the time, he
diagnosed gamekeeper’s thumb with secondary arthritis and thumb flexion contracture. He noted that appellant’s
thumb was fairly useless the way it was. Dr. Brilliant recommended fusion of the MCP joint in a more functional
position. He further noted that in appellant’s present condition, there was no way he could return to work as a
welder. Dr. Brilliant found 80 percent impairment of the left thumb and 50 percent impairment of the hand. He also
reiterated that appellant’s function would certainly improve if he had the joint fused.

4

electrical knowledge and welding and repairing containers involved using a 25-pound hammer to
straighten steel panels that were 8’ x 4’ and an eighth of an inch thick. The steel panels and
similarly sized sheets of flooring had to be manually lifted into place. Lastly, Mr. Bailey
identified various tools utilized by mechanics and explained that the job required frequent
bending, climbing, pushing, pulling, and lifting.
By decision dated May 26, 2015, OWCP denied modification of its March 13, 1998
wage-earning capacity determination. It explained that it had been based on appellant’s actual
earnings as a container maintenance mechanic, not a selected/constructed position he did not
hold, and because the decision was based on his actual earnings, a reasonably current medical
evaluation was not required.13 OWCP further noted that he had performed the ILA container
maintenance mechanic position for nearly eight years, and there was nothing to suggest that this
work, and the earnings derived from it, were not representative of his wage-earning capacity.
Consequently, it found that appellant had not established a basis for modifying the March 13,
1998 determination. Because of a typographical error in the May 26, 2015 decision, OWCP
made a minor correction and reissued the decision on June 8, 2015.
On June 16, 2015 appellant again requested modification. He indicated that he was
submitting new medical evidence that established a change in his injury-related condition,
thereby warranting modification of the March 13, 1998 wage-earning capacity determination.
In a report dated May 29, 2015, Dr. McConnell diagnosed osteoarthritis of the wrist and
hand. He noted that appellant had post-traumatic degenerative changes of his wrist, as well as
the MCP joint and CMC joint of his left thumb. Dr. McConnell further noted that appellant’s
work restrictions had not changed since he was last seen in 2013. He found that appellant could
not perform the duties of an ILA mechanic -- maintenance/repair of intermodal chassis and
containers. Dr. McConnell specifically noted that appellant was unable to use a 25-pound
hammer and unable to lift 75-pound tractor-trailer tires. He further noted that appellant was
unable to lift 8’ x 4’ steel panels as identified in the job description.
In a decision dated September 10, 2015, OWCP found that Dr. McConnell’s May 29,
2015 report was insufficient to establish a material change in the nature and extent of appellant’s
injury-related condition. Consequently, it denied modification of the March 13, 1998
wage-earning capacity determination.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.14 A loss of
wage-earning capacity determination is a finding that a specific amount of earnings, either actual
13

Nonetheless, Dr. Brilliant had examined appellant on August 5, 1997, approximately two weeks prior to his
employment with ILA. He also saw appellant for follow-up on October 13 and December 16, 1997, at which time
Dr. Brilliant noted appellant was currently working as a longshoreman.
14

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

5

earnings or earnings from a selected/constructed position, represents a claimant’s ability to earn
wages.15 Generally, an employee’s actual earnings best reflect his wage-earning capacity.16
Absent evidence that actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity, such earnings must be accepted as representative of the individual’s
wage-earning capacity.17
Compensation payments are based on these determinations, and OWCP’s finding remains
undisturbed until properly modified.18 Modification of a wage-earning capacity determination is
unwarranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.19 The burden of proof is on the party seeking modification.20
ANALYSIS
Appellant argues that the March 13, 1998 wage-earning capacity determination was
issued in error. He argued that the newly submitted medical evidence established a change in his
injury-related condition, thereby warranting modification of the March 13, 1998 wage-earning
capacity determination. In response, OWCP reviewed Dr. McConnell’s May 29, 2015 report and
found this latest evidence insufficient to modify the March 13, 1998 decision. As noted, the
burden of proof is on the party seeking modification of the wage-earning capacity
determination.21
The record indicates that appellant worked as a container maintenance mechanic over an
eight-year period from August 1997 until October 2005. Although he was actively involved in
the vocational rehabilitation process, appellant secured the ILA position on his own.22 His
then-treating physician, Dr. Brilliant, provided an August 25, 1997 disability certificate
indicating that appellant “may return to work as [a] container maintenance mechanic….” At the
time, he represented that the ILA position was “less demanding” and “less strenuous” than his
prior position with the employing establishment. Appellant had been working approximately
three months as a full-time container maintenance mechanic prior to OWCP’s March 13, 1998

15

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

16

Hayden C. Ross, 55 ECAB 455, 460 (2004).

17

Id.

18

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

19

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part
2 -- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
20

Id. at § 10.511.

21

Id.

22

Appellant informed his assigned vocation rehabilitation counselor of the position only after he had worked on a
trial basis for one week in mid-August 1997. Moreover, he had already secured his physician’s approval before he
informed the counselor on August 23, 1997 of his recent return to work.

6

formal wage-earning capacity determination.23 He continued to work as an ILA container
maintenance mechanic for approximately eight years. It remains unclear why appellant left this
position in October 2005 and there is no indication that he is currently employed.
When Dr. McConnell previously examined appellant on December 11, 2013, he was not
privy to the specific requirements of appellant’s job as a container maintenance mechanic. The
wording of his report also strongly suggests that he was under the mistaken belief that appellant
currently worked as a container maintenance mechanic. At the time, appellant reportedly stated
that he was having increasing problems with his left thumb and wrist, which was “causing
difficulty in completing his current work requirements.” After outlining specific left hand
limitations, Dr. McConnell stated that if the container maintenance mechanic position could not
accommodate the noted restrictions, then appellant “would not be able to continue in that
specific occupation.”
In his report dated May 29, 2015, Dr. McConnell similarly noted that appellant “states
that he has had increasing problems with his left thumb and wrist, causing difficulty in
completing his current work requirements.” The report noted that appellant “has been employed
as a longshoreman since 1997.” There is no mention of appellant’s work stoppage in
October 2005. Thus, it remains unclear whether Dr. McConnell realized that almost a decade
had passed since appellant last worked as a container maintenance mechanic for the ILA. His
apparent reliance on an inaccurate and/or incomplete employment history seriously undermines
the probative value of Dr. McConnell’s December 11, 2013 and May 29, 2015 reports.24
Dr. McConnell’s May 29, 2015 report also indicated that appellant could not perform
certain ILA mechanic duties as outlined in Mr. Bailey’s April 24, 2014 letter. Specifically, he
noted that appellant could not use a 25-pound hammer, lift an 8’ x 4’ steel plate, or lift a
75-pound tractor-trailer tire. While this may be an accurate assessment of appellant’s left upper
extremity limitations with respect to the described duties, the current record does not
demonstrate that appellant regularly performed these ostensibly restricted duties while employed
by ILA from August 1997 through October 2005.
When appellant accepted the container maintenance mechanic position in August 1997,
he represented that it was “less demanding” and “less strenuous” than his prior position with the
employing establishment. At the time, OWCP’s rehabilitation specialist described appellant’s
new position as a “light[-]duty version of a welder.” Some of the duties Mr. Bailey described
clearly exceed the physical requirements of appellant’s date-of-injury welder position,25 and as
such, the described duties are inconsistent with appellant’s previous representation that his new
ILA job was less demanding and less strenuous. The Board notes that Mr. Bailey admittedly
provided only a “general description” of what was required of an ILA mechanic. Mr. Bailey’s
23

Generally, a position will be deemed to represent the employee’s wage-earning capacity after he has
successfully performed the required duties for at least 60 days. Supra note 19 at Chapter 2.815.6(a) (June 2013).
24

It is well established that medical reports must be based on a complete and accurate factual and medical
background, and medical opinions based on an incomplete or inaccurate history are of little probative value. See,
e.g., B.R., Docket No. 16-0456 (issued April 25, 2016); Douglas M. McQuaid, 52 ECAB 382, 383 (2001).
25

See supra note 4.

7

April 24, 2014 letter did not address appellant’s specific employment history from August 1997
through October 2005 or even mention appellant by name. Thus, the Board finds this evidence
insufficient to establish a modification of his 1998 wage-earning capacity decision.
The Board further finds that Dr. McConnell’s May 29, 2015 report is insufficient to
establish a material change in the nature and extent of appellant’s injury-related condition such
that he could no longer perform the duties of a container maintenance mechanic on or after
October 2005. Consequently, appellant failed to establish a basis for modifying OWCP’s
March 13, 1998 wage-earning capacity determination.
CONCLUSION
Appellant has not established a basis for modifying OWCP’s March 13, 1998 loss of
wage-earning capacity determination.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8