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

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

Docket No. 11-1275
Issued: January 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 2, 2011 appellant filed a timely appeal from the March 10, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her
reconsideration request.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit decision. Because
more than one year has elapsed between the last merit decision dated December 11, 1995 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on and after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).
2

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. OWCP accepted that appellant sustained
tendinitis and de Quervain’s complex of the right hand and wrist and she returned to limited-duty
work on December 29, 1990. In April 8 and June 9, 1994 decisions, it found that she did not
sustain a recurrence of total disability on or after February 19, 1992 due to her accepted right
hand and wrist conditions. In a December 11, 1995 decision,3 the Board affirmed OWCP’s
decisions. It determined that the reports of appellant’s attending Board-certified orthopedic
surgeons, Dr. Rida N. Azer and Dr. William E. Gentry, did not establish that she sustained an
employment-related recurrence of disability. In eight decisions issued between April 3, 1997
and May 4, 2001, OWCP denied her request for merit review on the grounds that her
applications for review were not timely filed and failed to present clear evidence of error. In
March 17, 2003 and July 13, 2004 decisions,4 the Board affirmed OWCP’s refusal to reopen
appellant’s case for merit review because her applications for review were not timely filed and
failed to present clear evidence of error. In connection with her reconsideration requests,
appellant argued that her requests were timely because they were filed within a year of a Board
decision. She also claimed that the reports of Dr. Azer showed that she had disability after
February 19, 1992 due to her accepted right hand and wrist injury.
In decisions dated January 26, 2006 and March 5, 2007, OWCP again denied appellant’s
requests for reconsideration without performing a merit review. In a December 12, 2007
decision,5 the Board set aside OWCP’s March 5, 2007 decision, finding that OWCP did not
provide sufficient findings of fact and reasoning to explain its determination that she was not
entitled to a review of the merits of her claim. It remanded the case to OWCP for a proper
evaluation of appellant’s December 2006 reconsideration request in accordance with 5 U.S.C.
§ 8128(a) and the relevant regulations. In a January 28, 2008 decision, OWCP denied her
request for reconsideration without a merit review, finding that she had not timely requested
reconsideration and had failed to submit factual or medical evidence sufficient to establish clear
evidence of error in OWCP’s prior merit decisions. In an October 15, 2008 decision,6 the Board
affirmed OWCP’s refusal to reopen appellant’s case for merit review because her applications
for review were not timely flied and failed to present clear evidence of error.
In November 12, 2008, March 4 and 24, 2009 letters, appellant requested reconsideration
of her claim. She repeated many of the arguments that she made in connection with her prior
reconsideration requests. In a May 1, 2009 decision, OWCP denied appellant’s reconsideration
request on the grounds that it was untimely filed and did not establish clear evidence of error. In
a February 26, 2010 decision,7 the Board affirmed OWCP’s May 1, 2009 decision without

3

Docket No. 95-802 (issued December 11, 1995).

4

Docket No. 01-2038 (issued March 17, 2003); Docket No. 04-545 (issued July 13, 2004).

5

Docket No. 07-1364 (issued December 12, 2007).

6

Docket No. 08-1230 (issued October 15, 2008).

7

Docket No. 09-1590 (issued February 26, 2010).

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considering the merits of her claim. The facts and the circumstances of the case are set forth in
the Board’s prior decisions and are incorporated herein by reference.
In a January 21, 2011 letter, appellant requested reconsideration of her claim. She
contended that her reconsideration request was timely because it was filed within one year of the
Board’s February 26, 2010 decision. Appellant argued that her claim should be reviewed on the
merits. She alleged, as she did in prior requests for reconsideration, that the reports of Dr. Azer
showed that she had disability after February 19, 1992 due to her accepted right hand and wrist
injury. In addition, appellant contended that OWCP acted improperly by failing to adequately
explain why it did not evaluate her reconsideration request and that it failed to apply the
appropriate legal standards in adjudicating her claim.
In a March 10, 2011 decision, OWCP denied appellant’s reconsideration request finding
that she did not submit sufficient evidence or legal argument to require reopening of her claim
for review on the merits. It stated, “The arguments that you have provided are considered to be
cumulative and repetitive and have been previously addressed by [OWCP].”
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.9 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.10 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.11 The Board has held that the submission of evidence
or argument which repeats or duplicates evidence or argument already in the case record does not
constitute a basis for reopening a case.12 While a reopening of a case may be predicated solely on
a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.13

8

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.607(a).

11

Id. at § 10.608(b).

12

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

13

John F. Critz, 44 ECAB 788, 794 (1993).

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ANALYSIS
The Board does not have jurisdiction over the merits of appellant’s claim. The issue
presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2), requiring OWCP to reopen the case for a review of the merits.
In her January 21, 2001 application for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. She did not identify a specific
point of law or show that it was erroneously applied or interpreted. Appellant did not advance a
new and relevant legal argument. A claimant may be entitled to a merit review by submitting
new and relevant evidence, but she did not submit any new and relevant medical evidence in this
case. Appellant presented several arguments that she had presented on numerous prior
occasions. As noted, the submission of argument which repeats or duplicates argument already
presented to OWCP does not constitute a basis for reopening a case.14 Appellant contended that
her reconsideration request was timely because it was filed within one year of the Board’s
February 26, 2010 decision (which was a nonmerit decision) and asserted that her claim should
have been reviewed on the merits. According to OWCP procedure, the one-year period for
requesting reconsideration begins on the date of the original OWCP decision, but the right to
reconsideration within one year also accompanies any subsequent merit decision on the issues,
including any merit decision by the Board. This right to reconsideration within one year does not
accompany nonmerit decisions of the Board.15 The Board notes that this argument does not have
a reasonable color of validity. The Board notes that the last merit decision was in 1995.
Appellant alleged that the reports of Dr. Azer, an attending Board-certified orthopedic surgeon,
showed that she had disability after February 19, 1992 due to her accepted right hand and wrist
injury and that OWCP failed to adequately support its repeated denials of her claim. However,
she has presented a similar argument on numerous prior occasions.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). The Board notes that the last merit decision was in 1995. Appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, advance a
relevant legal argument not previously considered by OWCP or submit relevant and pertinent
evidence not previously considered. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied
merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further review of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

14

See supra note 12.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (October 2011).

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ORDER
IT IS HEREBY ORDERED THAT the March 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________

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

Docket No. 17-0694
Issued: June 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 6, 2017 appellant filed a timely appeal from a November 3, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision dated July 14, 2016, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 15, 2007 appellant, then a 41-year-old supervisory special agent, filed an
occupational disease claim (Form CA-2) alleging that he sustained cervical disc injuries as a
result of his federal employment. He alleged that in November 1993 as well as from 1999 to
2002, he was a member of a special weapons and tactics team, and his duties included numerous
physical activities while wearing a heavy vest and helmet. Appellant also indicated that from
November 15 to 16, 2006 he was in charge of a work-related exercise and had sharp pain in his
neck.
OWCP accepted the claim on October 24, 2008 for aggravation of cervical disc
displacement without myelopathy. There is no indication that appellant claimed or received
wage-loss compensation at the time.
Appellant filed a claim for compensation (Form CA-7) on November 10, 2008, indicating
that he was claiming a schedule award. By decision dated March 12, 2009, OWCP issued a
schedule award for 14 percent left upper extremity permanent impairment. The period of the
award was 43 weeks, commencing December 8, 2008.
On January 11, 2016 appellant filed a claim for a recurrence (Form CA-2a) commencing
December 1, 2015. He indicated that on the claim form that the recurrence was for medical
treatment only.
OWCP advised appellant by letter dated January 14, 2016 that further medical evidence
was necessary to establish his recurrence claim. Appellant was afforded 30 days to submit the
necessary evidence.
In response to the January 14, 2016 OWCP letter, appellant wrote that he had chronic,
recurring pain.
By decision dated February 17, 2016, OWCP denied the claim for a recurrence of a
medical condition. It indicated that no medical evidence had been received regarding the need
for further medical treatment.
OWCP thereafter received a February 2, 2016 report from Dr. H. Edward Lane, III, a
Board-certified orthopedic surgeon, on February 19, 2016. Dr. Lane wrote that appellant had an
existing C5-7 disc issue from 2005 to 2006 that was aggravated by required weight training for
the employing establishment. He reported that appellant’s cervical pain had worsened as of
December 2015 and appellant was unable to do any physical training.
Appellant requested reconsideration on June 15, 2016. He submitted a May 25, 2016
report from Dr. Lane. Dr. Lane reported that appellant had persistent cervical pain, as
demonstrated by a January 15, 2016 magnetic resonance imaging scan confirming changes at the
C5-6 and C6-7 levels. He opined that this was an ongoing issue related to appellant’s original
work injury and he would benefit from a cervical discectomy and fusion surgery.

2

By decision dated July 14, 2016, OWCP reviewed the merits of the claim and the
February 2 and May 25, 2016 reports from Dr. Lane and had found that the medical evidence
was insufficient to establish the recurrence claim.
Appellant again requested reconsideration on November 1, 2016. In a letter of that date,
he wrote that in the July 14, 2016 OWCP decision there was “no reference or consideration” of
Dr. Lane’s May 25, 2016 report. Appellant argued that Dr. Lane’s report made it clear that his
original injury had become more symptomatic over time. He resubmitted the May 25, 2016
report from Dr. Lane.
By decision dated November 3, 2016, OWCP declined to review the merits of the claim.
It found that appellant had not met any of the requirements for a merit review pursuant to 5
U.S.C. § 8128(a).
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
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.”3 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.4
ANALYSIS
Appellant submitted a November 1, 2016 reconsideration request from a July 14, 2016
OWCP decision denying his claim for a recurrence of a medical condition.
Appellant did not show that OWCP had erroneously applied or interpreted a specific
point of law, or advance a relevant legal argument not previously considered by OWCP. His
argument on reconsideration was that OWCP had failed to consider Dr. Lane’s May 25, 2016
report, but in the July 14, 2016 merit decision OWCP noted that it had received and reviewed
Dr. Lane’s May 25, 2016 report. While it quoted from Dr. Lane’s February 2, 2016 report,
OWCP also explained that there was a gap in the medical record from approximately 2010
through 2016. It found that the medical evidence of record was insufficient to establish an
employment-related condition as of December 2015. There is no indication that OWCP failed to
consider the May 25, 2016 report. It is well established that the reopening of a case is not
2

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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required where the legal contention has no reasonable color of validity.5 The Board finds that
appellant’s argument has no reasonable color of validity in this case.
As to the submission of evidence, appellant resubmitted the May 25, 2016 report from
Dr. Lane. Material which is duplicative of that already contained in the case record does not
constitute a basis for reopening a case.6 Since this report was previously of record and
considered by OWCP, it did not constitute relevant and pertinent new evidence not previously
considered by OWCP.
The Board accordingly finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered by OWCP. OWCP
therefore properly denied merit review in this case.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of the claim pursuant to 5 U.S.C. § 8128(a).

5

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

6

M.V., Docket No. 17-0132 (issued April 7, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 3, 2016 is affirmed.
Issued: June 22, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 11-752
Issued: January 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2011 appellant filed a timely appeal from the January 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) granting him a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a five percent impairment to his left arm, for which he received a schedule award.
On appeal, appellant disagreed with the amount and the time period for the award,
contending that he had the same operation before and received 80 percent more than in this
decision.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 11, 2009 appellant, then a 53-year-old city letter carrier, filed a claim for a
traumatic injury alleging that on February 10, 2009, while making deliveries on his route, he fell
on his left side of his body injuring his left shoulder. OWCP accepted his claim for left shoulder
sprain, acromioclavicular and left rotator cuff tear. On May 15, 2009 appellant had a left
shoulder arthroscopy with arthroscopic debridement of subscapularis and labrum, anterior
subacromial decompression and arthroscopic rotator cuff repair. He was released to full-duty
work on October 1, 2009.
On November 10, 2009 appellant filed a claim for a schedule award.
In a December 24, 2009 report, Dr. Laura Kaufman, a physician Board-certified in both
family and occupational medicine, discussed appellant’s history and her physical examination of
him. She listed his assessment as left shoulder fixed and stable with left upper extremity
impairment of five percent. In reaching this conclusion, Dr. Kaufman noted that appellant had
an acromioclavicular sprain and strain (primary diagnosis) along with rotator cuff rupture and
rotator cuff sprain and strain. She found that the diagnosis for the purpose of the impairment
rating was rotator cuff rupture. Dr. Kaufman then determined that pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th
ed. 2009), appellant had a class 1 impairment, grade C.2 She referred to the adjustment grid and
found that he had a Functional History (GMFH) grade modifier of one3 and a Physical
Examination (GMPE) grade modifier of one.4 Dr. Kaufman noted that there was no grade
modifier for Clinical Studies (GMCS) because that was used for the diagnosis. She noted that
the grade modifier net adjustment resulted in no adjustment to the five percent impairment
rating.5
On October 1, 2010 OWCP referred appellant’s case to its medical adviser. In a report
dated October 12, 2010, OWCP’s medical adviser noted that Dr. Kaufman provided an excellent
rating report on December 24, 2009, complete with excellent and detailed examination findings
with range of motion determinations times three for the left shoulder and comparables for the
right shoulder. He noted that she appropriately applied the sixth edition of the A.M.A., Guides
and determined that pursuant to Table 15-5 on page 403 of the A.M.A., Guides, appellant had a
class 1 impairment with a grade C default value of five percent. OWCP’s medical adviser noted
that Dr. Kaufman correctly applied grade modifiers in reaching appellant’s calculation that he
had an impairment rating of five percent to the left upper extremity.
On January 19, 2011 OWCP issued a schedule award for a five percent impairment of the
left arm (left upper extremity). The award was for 15.6 weeks of compensation to run during the
period November 9, 2009 to February 26, 2010.
2

A.M.A., Guides 403, Table 15-5.

3

Id. at page 406, Table 15-7.

4

Id. at page 408, Table 15-8.

5

(GMFH 1 minus class 1) plus (GMPE 1 minus class 1) plus (GMCS not factor) equals 0 plus 0.

2

LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.9
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the class of diagnosis (CDX) is determined from the shoulder regional grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for GMFH, grade modifier for GMPE and grade modifier for GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to its medical adviser for an opinion concerning the percentage of impairment
using the A.M.A., Guides.11
ANALYSIS
In the present case, OWCP accepted appellant’s claim for left shoulder sprain,
acromioclavicular and left rotator cuff tear and he had surgery on May 15, 2009. The Board
finds that he has no more than a five percent impairment of the left upper extremity for which he
received a schedule award based on the opinions of Dr. Kaufman and OWCP’s medical adviser.

6

Supra note 2.

7

20 C.F.R. § 10.404.

8

Id.

9

See Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.77, Exhibit 1
(January 2010). For OWCP decisions issued before May 1, 2009, the fifth edition of the A.M.A., Guides (5th ed.) is
used.
10

See A.M.A., Guides 411 (6th ed. 2009).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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Dr. Kaufman properly utilized Table 15-5 of the A.M.A., Guides and found that appellant
had a class 1 impairment, grade C, which is described by the A.M.A., Guides as a history of a
rotator cuff injury with residual loss, functional with normal range of motion.12 She applied the
grade modifiers and determined that the grade modifiers’ net adjustment did not change the
impairment rating. OWCP’s medical adviser agreed with Dr. Kaufman’s assessment, noting that
she provided an excellent rating report. Appellant has not provided any medical report
indicating that he is entitled to a greater schedule award.
Appellant contends on appeal that he had the same injury before and that he received a
greater award encompassing a greater number of weeks. However, as discussed above, OWCP
no longer applies the fifth edition of the A.M.A., Guides. For decisions issued on or after May 1,
2009, the sixth edition of the A.M.A., Guides is used for determining impairment ratings.13
Moreover, section 8107(c)(1) of FECA14 provides that for a 100 percent loss of use of the arm, a
claimant is entitled to 312 weeks’ of compensation. As appellant has a five percent loss of use of
his left arm, he is entitled to five percent of 312 weeks or 15.6 weeks’ of compensation, which
was provided to him in the schedule award decision. He is entitled to no more under FECA.
For these reasons, appellant did not show that he has more than a five percent impairment
of his left upper extremity.
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 not met his burden of proof to establish that he has
more than a five percent impairment to his arm, for which he received a schedule award.

12

Supra note 2.

13

See supra note 9.

14

5 U.S.C. § 8107(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2011 is affirmed.
Issued: January 23, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
DEPARTMENT OF THE ARMY,
FORT CARSON, Colorado Springs, CO,
Employer
__________________________________________

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Appearances:
Dale W. Pederson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1644
Issued: January 10, 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 July 18, 2006 appellant filed a timely appeal from an April 17, 2006 decision of the
Office of Workers’ Compensation Programs determining her wage-earning capacity and a July 7,
2006 decision affirming this determination. Pursuant to 20 C.F.R. §§ 501.2(c) and 501(d)(3), the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the selected position of telephone sales representative properly
represented appellant’s wage-earning capacity.
FACTUAL HISTORY
The Office accepted that on June 5, 2000 appellant, then a 44-year-old materials
examiner in temporary status, sustained left wrist tendinitis with pisotriquetral dysfunction when
she slipped and fell, landing on her left hand. She was separated from the employing

establishment on September 30, 2000 due to a reduction-in-force. Appellant received wage-loss
compensation for temporary total disability beginning October 1, 2000.
On February 2, 2001 appellant underwent surgical removal of the pisiformis bone, ulnar
nerve release and tenolysis of the left wrist. The Office authorized this procedure. Dr. David A.
Labosky, an attending Board-certified orthopedic surgeon, opined that appellant reached
maximum medical improvement June 7, 2001. He found that appellant was able to perform fulltime sedentary duty with upper extremity restrictions.1 By decision dated February 25, 2002, the
Office granted appellant a schedule award for a nine percent impairment of the left upper
extremity due to restricted left wrist motion.2
Dr. Labosky submitted periodic reports through May 20, 2004 noting appellant’s
complaints of left wrist pain with transient numbness and paresthesias in the fingers. He also
found mild osteoarthritic changes in the left wrist.
In an October 6, 2004 form, Dr. Charles Wadsworth, a Board-certified internist, noted the
accepted injury and surgery. He also listed appellant’s history of three lumbar surgeries, arthritis
of the knees and wrists, asthma and allergic rhinitis. Dr. Wadsworth indicated that, if appellant
worked full time, she would need to lie down for 15 minutes every 2 hours and would miss 4 or
more days of work a month. He limited her to carrying 5 pounds occasionally, standing for no
more than 30 minutes continuously, occasional reaching and repetitive movements.
On January 19, 2005 the Office referred appellant to Dr. Hendrick J. Arnold, III, a Boardcertified orthopedic surgeon, for a second opinion examination. It provided him a copy of the
medical record and a statement of accepted facts. Dr. Arnold submitted a February 2, 2005
report noting appellant’s history of three lumbar surgeries, three left knee surgeries, a right foot
operation, asthma and seizures as well as the accepted left wrist condition and surgery. He
related her complaints of left hand pain, swelling and clumsiness. Dr. Arnold observed restricted
ranges of motion in both wrists. He opined that appellant continued to have a partial disability of
the left hand and wrist due to the June 5, 2000 injury. Dr. Arnold found appellant able to
perform sedentary duty for eight hours a day, with lifting limited to five pounds and no repetitive
motions with the left arm. He recommended a left wrist splint.
On February 23, 2005 the Office authorized vocational rehabilitation services and
referred appellant to Nora Dunne, a vocational rehabilitation counselor. In reports dated April 6
to June 6, 2005, Ms. Dunne noted that appellant attended school through the ninth grade in
Germany, was not a native speaker of English and had work limitations due to the accepted
injury and a nonoccupational lumbar condition. However, appellant obtained American
citizenship and took a two-year community college course in dietetics. Also, she had three prior
jobs requiring vocational preparation at Level 3 or higher, equal to 30 days to 3 months of
1

Dr. Labosky obtained a July 10, 2001 functional capacity evaluation demonstrating that appellant could perform
light duty for eight hours a day.
2

Dr. Labosky opined that, according to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment, appellant had a 9 percent impairment of the left upper extremity due to
limited left wrist motion; 3 percent for palmar flexion limited to 40 degrees; 4 percent for dorsal flexion limited to
40 degrees; 2 percent for radial deviation limited to 10 degrees.

2

training. Ms. Dunne scheduled vocational testing for June 17, 2005, which appellant did not
attend due to an illness. Appellant then expressed a disinterest in continuing with a vocational
rehabilitation plan.
In a July 27, 2005 report, Ms. Dunne identified employers in appellant’s commuting area
for the positions of parking lot cashier, U.S. Department of Labor’s Dictionary of Occupational
Titles (DOT) #211.462-010 and telephone sales representative DOT #299.375-014. Both
positions were classified as sedentary and semi-skilled. The telephone sales representative
position required computer data entry, occasional reaching and handling and frequent fingering.
Specific vocational preparation was noted as Level 3. Ms. Dunne determined that the telephone
sales representative position had an entry-level wage of $320.00 a week in appellant’s
commuting area.
In an August 19, 2005 letter, the Office asked Dr. Labosky to review position
descriptions for telephone sales representative and parking lot cashier, state whether appellant
could perform those jobs and whether any modifications would be needed. Dr. Labosky
responded on August 23, 2005 that appellant was capable of performing the duties of both jobs.
In a September 19, 2005 form, he indicated that she could perform either position full time.
By notice dated February 16, 2006, the Office advised appellant that it proposed to
reduce her wage-loss compensation by her earning capacity as a telephone sales representative of
$320.00 a week. The Office stated that she had skills and experience appropriate for the
telephone sales representative position. It found that, according to labor market research
performed from July 26, 2005 to February 14, 2006, the telephone sales representative job was
performed in sufficient numbers as to make it reasonably available to appellant within her
commuting area. The Office determined that appellant had a 36 percent loss of wage-earning
capacity based on the formula set forth in Albert C. Shadrick.3 It afforded her 30 days in which
to submit additional evidence regarding her capacity to earn wages as a telephone sales
representative. Appellant did not submit additional evidence regarding her wage-earning
capacity prior to April 17, 2006.4
By decision dated April 17, 2006, the Office finalized the proposed reduction of
compensation effective May 14, 2006, based on appellant’s ability to earn wages in the selected
position of telephone sales representative. The Office noted that, effective February 16, 2006,
the current pay rate for her date-of-injury job and step was $499.68. Appellant was capable of
earning $320.00 a week as a telephone sales representative. The Office determined that she had
a 36 percent loss of wage-earning capacity. It found that the position was medically suitable and
within her physical requirements.

3

5 ECAB 376 (1953).

4

By an April 6, 2006 notice, the Office advised appellant that an overpayment of $2,080.58 was created in her
case. She received compensation at the augmented rate from January 7 to 21, 2006 when she had no eligible
dependents as her husband had died on January 6, 2005. Appellant repaid the entire amount by check on
April 12, 2006. The overpayment issue is not before the Board on the present appeal.

3

In a June 1, 2006 letter, appellant requested reconsideration. She contended that the
Office failed to consider her preexisting lumbar and knee conditions in selecting the telephone
sales representative position. Appellant stated that she underwent an L5-S1 laminectomy and
discectomy on September 18, 1986 and August 19, 1988, with an L5-S1 decompression on
November 15, 1989. She also asserted that the position was beyond her vocational skills.
Appellant submitted an April 17, 2006 vocational evaluation by John Drew, a rehabilitation
counselor retained by appellant’s attorney. Mr. Drew found that appellant read English at a
seventh grade level, spelled at a sixth grade level and had mathematical competency at an eighth
grade level. He opined that appellant was not readily employable as a telephone sales
representative due to her medical conditions and low academic skills.
By decision dated July 7, 2006, the Office denied modification of the April 17, 2006
decision. It found that Dr. Arnold noted appellant’s preexisting lumbar, knee and foot conditions
and opined that she could perform full-time sedentary work. Dr. Labosky also opined that
appellant could perform the telephone sales representative position. The Office found that her
education and employment history were consistent with the skills required for the telephone sales
representative position. It found that the vocational rehabilitation report prepared by Mr. Drew
was not medical evidence as he was not a physician. Also, the report was of diminished
probative value as it was based on appellant’s opinion of her work capacities, not the medical
record.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.5 Under section 8115(a), wage-earning capacity is determined
by the actual wages received by an employee if the earnings fairly and reasonably represent his
or her wage-earning capacity. If the actual earnings do not fairly and reasonably represent his or
her wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect wageearning capacity in his or her disabled condition.6
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service. Finally, application of the

5

David W. Green, 43 ECAB 883 (1992).

6

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

4

principles set forth in Albert C. Shadrick,7 will result in the percentage of the employee’s loss of
wage-earning capacity.8
ANALYSIS
The Office accepted that appellant sustained left wrist tendinitis with pisotriquetral
dysfunction, requiring surgery on February 2, 2001. It granted her a schedule award for a nine
percent impairment of the left upper extremity due to the accepted injury. Following an
attempted vocational rehabilitation effort, the Office identified the position of telephone sales
representative as being within appellant’s medical and vocational capacities. It reduced
appellant’s wage-loss compensation based on her ability to earn wages in the selected position of
telephone sales representative. Appellant does not contest the mathematical accuracy of the
Office’s calculations or the pay rates used. She contends that it failed to consider her preexisting
lumbar, knee and foot conditions in considering the telephone sales representative position.
In selecting the telephone sales representative position, the Office relied on the opinion of
Dr. Arnold, a Board-certified orthopedic surgeon and second opinion physician. In a February 2,
2005 report, Dr. Arnold noted appellant’s occupational and nonoccupational conditions,
including the accepted left wrist injury and surgery, three lumbar surgeries, three left knee
surgeries, a right foot operation, asthma and seizures. He opined that, despite these conditions,
appellant was able to perform full-time sedentary work with restrictions on use of the left arm.
The Board finds that Dr. Arnold’s report was based on a complete medical history, including
appellant’s preexisting back, knee and foot problems. Dr. Labosky, an attending Board-certified
orthopedic surgeon, also reviewed and approved the position description for telephone sales
representative. He opined on August 23 and September 19, 2005 that appellant could perform
the position full time. Thus, her own physician found her medically capable of working as a
telephone sales representative.
There is no probative medical evidence contradicting
Dr. Labosky’s opinion. The medical evidence does not establish that appellant’s preexisting
lumbar, knee or foot conditions prevent her from performing the duties of the selected position.
Appellant asserts that her vocational skills are below those required for the job, as she
completed only nine years of formal education and was not a native speaker of English.
Ms. Dunne, a vocational rehabilitation counselor, noted both these facts in reports from April to
June 2005. She also noted that appellant had sufficient language and academic skills to obtain
American citizenship and take a two-year community college dietetics course. Also, three of
appellant’s previous jobs required vocational preparation equal to or greater than the 30 days to 3
months required by the telephone sales representative position. The Board, therefore, finds that
the selected position of telephone sales representative was vocationally appropriate. The Office
properly reduced appellant’s wage-loss compensation based on her ability to earn wages in the
selected position of telephone sales representative.

7

5 ECAB 376 (1953).

8

James A. Birt, 51 ECAB 291 (2000); Francisco Bermudez, 51 ECAB 506 (2000).

5

CONCLUSION
The Board finds that the selected position of telephone sales representative properly
represented appellant’s wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 7 and April 17, 2006 are affirmed.
Issued: January 10, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, New York, NY, Employer
__________________________________________

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

Docket No. 17-1746
Issued: February 16, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 7, 2017 appellant filed a timely appeal from an April 20, 2017 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated March 17, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 1, 2016 appellant, then a 44-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 24, 2016 she sustained a right shoulder injury
when she was assisted by a nurse while turning a patient. She did not stop work, but she began
performing limited-duty work for the employing establishment. On the reverse side of the claim
form, appellant’s immediate supervisor indicated that the nurse who assisted appellant advised
that she did not follow the employing establishment’s policies/procedures when turning the
patient.
Appellant submitted a February 1, 2016 duty status report (Form CA-17) of an attending
nurse practitioner with an illegible signature. The nurse practitioner listed the date of injury as
January 24, 2016, the mechanism of injury as positioning a heavy patient while bathing, and the
diagnosis due to injury as shoulder strain. Appellant was advised that she could return to work,
but that she should not use her right arm.
The findings of February 5, 2016 x-ray testing of appellant’s right shoulder contained an
impression of no acute fracture or dislocation.
In a February 10, 2016 letter, a workers’ compensation program manager indicated that
the employing establishment was controverting appellant’s claim for a January 24, 2016
employment injury because she did not submit sufficient medical evidence to support such an
injury.
In a February 10, 2016 development letter, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a
medical explanation as to how the reported employment incident caused or aggravated a medical
condition. It requested that appellant complete and return an attached questionnaire which posed
various questions regarding the employment incident that she believed caused or aggravated her
claimed condition. On February 10, 2016 OWCP also requested additional information from the
employing establishment.
On March 9, 2016 OWCP received a response to its February 10, 2016 development
letter to appellant in which she provided further description of the January 24, 2016 work
incident. Appellant noted that she and a coworker assisted a patient who had a bowel movement
and that they grasped opposite ends of a bedsheet upon which the patient was lying. She advised
that she felt a pinching pain in her neck, which extended down to her right hand, when she pulled
the sheet toward her. In a March 7, 2016 statement, the coworker advised that, after she and
appellant provided care to the patient on January 24, 2016, appellant began to complain of right
shoulder pain.
OWCP also received a response to its February 10, 2016 letter to the employing
establishment in which an official provided information about safety procedures for lifting and
turning patients.
Appellant submitted a February 17, 2016 duty status report (Form CA-17) of an
individual with an illegible signature who specialized in orthopedics. The individual listed the

2

date of injury as January 24, 2016, the affected body parts as neck and right shoulder, and the
diagnosis due to injury as radiculitis. Appellant was advised that she could return to light-duty
work with no lifting using her right arm.2
In a March 17, 2016 decision, OWCP denied appellant’s claim for a January 24, 2016
employment injury. It accepted that the employment incident occurred on January 24, 2016
while appellant was in the process of turning a patient, but found that she failed to submit
medical evidence establishing a causal relationship between the accepted employment incident
and a diagnosed medical condition. OWCP determined that the medical evidence submitted by
appellant did not provide sound medical rationale, based on a complete and accurate medical
history and supported by objective findings, explaining how the January 24, 2016 employment
incident caused a diagnosed medical condition.
In a February 8, 2017 letter received on March 21, 2017, appellant indicated that she was
requesting reconsideration of OWCP’s March 17, 2016 decision. She noted that she was
attaching a report which indicated that her current diagnosis was rotator cuff impingement, rather
than neck sprain, radiculitis, and shoulder sprain as previously diagnosed. Appellant advised
that, due to the new diagnosis, her physician recommended shoulder surgery to correct the
problem.
In support of her reconsideration request, appellant submitted an April 14, 2016 report
from Dr. Arnold Goldman, an attending Board-certified orthopedic surgeon. Dr. Goldman noted
that appellant presented with a chief complaint of right shoulder pain and reported that she felt
pain in her right shoulder while turning a patient she was cleaning at work on January 24, 2016.
He detailed the findings of his physical examination on April 14, 2016, noting right shoulder
pain and limited range of motion of the right shoulder and diagnosing right shoulder
impingement and rule out right rotator cuff tear. Dr. Goldman recommended sedentary work
restrictions, including lifting/carrying no more than 15 pounds and avoiding climbing, kneeling,
bending, stooping, and twisting. He indicated that he had completed a federal workers’
compensation form documenting that “the injury/condition is causally related to the accident of
[January 24, 2016].”
In a May 12, 2016 report, Dr. Goldman advised that his physical examination on that date
revealed a positive right shoulder impingement sign. He recommended work restrictions,
including lifting/carrying no more than 15 pounds, and indicated that he completed a form
allowing appellant to answer telephones, but restricting her from taking vital signs in a manner
requiring her to lift equipment or a patient’s upper extremities. In a May 12, 2016 Form CA-17,
Dr. Goldman listed the date of injury as January 24, 2016, the mechanism of injury as turning a
patient while engaged in cleaning, and the diagnosis due to injury as right shoulder rotator cuff
tear. He advised that appellant could perform sedentary work which did not require lifting more
than 10 pounds or taking vital signs.
In June 9 and July 21, 2016 reports, Dr. Goldman reported physical examination findings
and diagnosed impingement/rotator cuff arthropathy of the right shoulder and rule out right
shoulder rotator cuff tear. In his June 9, 2016 report, he recommended work restrictions,
2

Appellant also resubmitted a copy of the February 1, 2016 Form CA-17 of an attending nurse practitioner.

3

including lifting/carrying no more than 15 pounds and no taking of vital signs in a manner
requiring appellant to lift equipment or a patient’s upper extremities. In a July 21, 2016 Form
CA-17, Dr. Goldman listed the date of injury as January 24, 2016, the mechanism of injury as
turning a patient while engaged in cleaning, and the diagnosis due to injury as right shoulder
rotator cuff tear. He advised that appellant could answer telephones, but that she could not take
vital signs or lift more than 10 pounds.
In a September 1, 2016 report, Dr. Goldman noted that his physical examination revealed
that appellant continued to have limited range of motion of her right shoulder. He diagnosed
impingement/rotator cuff arthropathy of the right shoulder and continued to recommend work
restrictions. Dr. Goldman also expressed his belief that appellant would benefit from diagnostic
arthroscopy of her right shoulder. In a September 1, 2016 Form CA-17, he listed the date of
injury as January 24, 2016 and the mechanism of injury as turning a patient while engaged in
cleaning. Dr. Goldman indicated that appellant could not lift more than 10 pounds with her right
arm. On October 11, 2016 he completed another narrative report containing similar examination
findings as observed on September 1, 2016. In July 1 and November 29, 2016, and January 24
and February 21, 2017 CA-17 forms, Dr. Goldman provided the same claimed mechanism of the
alleged January 24, 2016 injury as provided in previous CA-17 forms and recommended lifting
restrictions for the right arm. In the January 24 and February 21, 2017 CA-17 forms, he listed
the diagnosis due to injury as right rotator cuff impingement.3
By decision dated April 20, 2017, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error. It found that her
request for reconsideration was untimely filed because it was filed on March 21, 2017, a date
more than one year after the issuance of its March 17, 2016 decision. OWCP noted that
appellant submitted additional evidence and argument in support of her claim, but it indicated
that this evidence/argument did not explain why the March 17, 2016 decision was improperly
decided or otherwise demonstrate clear evidence of error in that decision.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit,
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.4 When determining the one-year period for
requesting reconsideration, the last day of the period should be included unless it is a Saturday,
Sunday, or a federal holiday.5 Timeliness is determined by the document receipt date, i.e., the
“received date” in OWCP’s Integrated Federal Employees’ Compensation System.6 The Board

3

Appellant also submitted the findings of an August 19, 2016 magnetic resonance imaging (MRI) scan of her
right shoulder which contained an impression of supraspinatus tendinosis.
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
also M.A., Docket No. 13-1783 (issued January 2, 2014).
6

Federal (FECA) Procedure Manual, id. at Chapter 2.1602.4(b).

4

has found that the imposition of the one-year limitation does not constitute an abuse of
discretionary authority granted OWCP under section 8128 of FECA.7
OWCP may not deny an application for review solely because the application was
untimely filed. When an application for review is untimely filed, it must nevertheless undertake
a limited review to determine whether the application demonstrates clear evidence of error.8
OWCP’s regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit, and
must manifest on its face that OWCP committed an error. Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error. It is not enough to merely show that the evidence could be
construed so as to produce a contrary conclusion. This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. To
demonstrate clear evidence of error, the evidence submitted must be of sufficient probative value
to prima facie shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision.10
OWCP procedures note that the term “clear evidence of error” is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.11 The Board makes an independent determination of whether a claimant has
demonstrated clear evidence of error on the part of OWCP.12
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.13 As appellant’s request for
7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

8

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

9

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(a).

10

Robert G. Burns, 57 ECAB 657 (2006).

11

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.1602.5(a); J.S., Docket No. 16-1240 (issued
December 1, 2016).
12

See D.S., Docket No. 17-0407 (issued May 24, 2017).

13

See supra note 4.

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reconsideration was not received by OWCP until March 21, 2017, more than one year after the
issuance of its March 17, 2016 merit decision, it was untimely filed. Consequently, she must
demonstrate clear evidence of error by OWCP in its March 17, 2016 decision.
The Board further finds that appellant has failed to demonstrate clear evidence of error on
the part of OWCP in issuing its March 17, 2016 decision.
Appellant failed to submit the type of positive, precise, and explicit evidence which
manifests on its face that OWCP committed an error in its March 17, 2016 decision denying her
claim for a January 24, 2016 employment injury.14 The evidence and argument she submitted in
connection with her untimely reconsideration request did not raise a substantial question
concerning the correctness of OWCP’s March 17, 2016 decision. Appellant argued that the
medical evidence she submitted on reconsideration established her claim for a January 24, 2016
employment injury. The Board notes that this newly submitted medical evidence is similar to the
medical evidence previously submitted and considered by OWCP to be insufficient to establish
appellant’s claim for a January 24, 2016 employment injury. In reports dated between April 14,
2016 and February 21, 2017, Dr. Goldman diagnosed such right shoulder conditions as rotator
cuff impingement/arthropathy and rotator cuff tear. In his April 14, 2016 narrative report, he
indicated that he had completed a federal workers’ compensation form documenting that the
diagnosed conditions of right shoulder impingement and rule out right rotator cuff tear were
causally related to appellant’s turning of a patient on January 24, 2016.15 In other form reports,
Dr. Goldman related various right shoulder conditions to the accepted January 24, 2016
employment incident of turning a patient.16 These reports would not tend to demonstrate clear
evidence of error in OWCP’s March 17, 2016 decision because they merely provide an opinion
on causal relationship without providing necessary medical rationale in support of such an
opinion.17 Appellant did not explain how this new evidence raised a substantial question as to
the correctness of OWCP’s March 17, 2016 decision denying her claim for a January 24, 2016
employment injury.
The Board finds that appellant’s application for review does not show on its face that
OWCP committed error when it found in its March 17, 2016 decision that she failed to establish
14

See Robert G. Burns, supra note 10.

15

The record does not contain a copy of this federal workers’ compensation form.

16

In his May 12, 2016 Form CA-17, Dr. Goldman listed the date of injury as January 24, 2016, the mechanism of
injury as turning a patient while engaged in cleaning, and the diagnosis due to injury as right shoulder rotator cuff
tear. In his January 24 and February 21, 2017 CA-17 forms, he provided the same claimed mechanism of the
January 24, 2016 injury as provided in previous CA-17 forms and listed the diagnosis due to injury as right rotator
cuff impingement. Appellant also submitted medical evidence which did not contain an opinion on causal
relationship.
17

The Board has held that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how an employment activity could have caused or aggravated a medical condition. See
Y.D., Docket No. 16-1896 (issued February 10, 2017); D.R., Docket No. 16-0528 (issued August 24, 2016). In its
March 17, 2016 decision, OWCP determined that the medical evidence submitted by appellant did not provide
sound medical rationale explaining how the January 24, 2016 employment incident caused a diagnosed medical
condition.

6

an employment injury on January 24, 2016.18 As noted, clear evidence of error is intended to
represent a difficult standard.19 Because she simply reiterated her previous arguments and
submitted evidence which did not raise a substantial question as to the correctness of OWCP’s
prior decision, appellant has not met this standard in this case.20
For these reasons, OWCP properly determined that appellant’s untimely reconsideration
request failed to demonstrate clear evidence of error in its March 17, 2016 decision.21
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

18

See S.F., Docket No. 09-0270 (issued August 26, 2009).

19

See supra note 11.

20

See Robert G. Burns, supra note 10.

21

On appeal appellant asserts that she requires additional medical treatment for her right shoulder condition.
However, for the reasons explained above, but she did not show clear evidence of error in OWCP’s March 17, 2016
decision denying her claim for a January 24, 2016 employment injury.

7

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2017 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: February 16, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0493
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 15, 2021 appellant, through counsel, filed a timely appeal from a
December 17, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 17, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted January 1, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 22, 2005 appellant, then a 65-year-old lead screener, filed a notice of
recurrence (Form CA-2a) alleging that on January 1, 2005 he experienced a recurrence of a
previously accepted cervical spine condition. 5 He stopped work on February 12, 2005 and did not
return. OWCP developed the claim as one for a new occupational disease (Form CA-2). On
May 5, 2005 it accepted a lumbar strain, cervical thoracic strain, and lumbar radiculopathy. On
July 27, 2005 OWCP expanded its acceptance of the claim to include the additional diagnosis of
an L4-5 disc herniation.
On August 29, 2005 appellant underwent an OWCP-authorized laminectomy, facetectomy,
and foraminotomy at L4 and L5. OWCP paid wage-loss compensation. It placed appellant on the
periodic rolls, effective February 19, 2006.
Appellant underwent a series of OWCP-authorized cervical facet block and cervical
epidural injections from January 12 through July 18, 2007, and lumbar epidural steroid injections
on August 28, 2007.6 From December 30, 2014 through January 23, 2017, he also underwent a
series of OWCP-authorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks,
OWCP-authorized bilateral radiofrequency ablation from L3 through L5, and OWCP-authorized
caudal and bilateral L4-5 transforaminal epidural steroid injections.
On May 30, 2017 OWCP obtained a second opinion regarding appellant’s work capacity
and the etiology of his continuing condition from Dr. Vicki Kalen, a Board-certified orthopedic
surgeon. In a June 21, 2017 report, Dr. Kalen opined that multilevel degenerative disc changes
visible on imaging studies were normal for appellant’s age, and that surgery had resolved the
accepted L4-5 disc herniation. She found that the accepted employment injuries had resolved
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx865 for a cervical strain.
OWCP administratively combined OWCP File Nos. xxxxxx840 and xxxxxx865, with OWCP File No. xxxxxx840
serving as the master file.
6

A January 23, 2006 cervical magnetic resonance imaging (MRI) scan demonstrated disc narrowing at C4-5, C5-6,
and C6-7 with degenerative disc bulges. A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior
laminectomies at L4-5 with 5 millimeter (mm) anterolisthesis of L4 on L5, increased since a March 4, 2005 study,
resulting in bilateral neural foraminal narrowing, with possible compression of the left exiting L4 nerve root, a
posterior osteophyte at L5-S1 contributing to moderate bilateral neural foraminal narrowing with contact of the exiting
L5 nerve roots bilaterally, mildly increased posterior disc bulge at L2 -3 with mild spinal canal and neural foraminal
narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3, 2008 lumbar x-rays demonstrated a Grade 1
anterolisthesis of L4 on L5 with instability, and prominent degenerative disc disease present at L5 -S1.

2

without residuals. In a July 10, 2017 supplemental report, Dr. Kalen noted work restrictions
related to appellant’s age of 78 and age-related spinal complaints, unrelated to the employment
injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in anesthesiology and pain
medicine, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed OWCP-authorized bilateral transforaminal epidural steroid injections at L4-5.
Dr. Kinder diagnosed lumbar radiculopathy. 7
On March 6, 2018 OWCP found a conflict of medical opinion between Dr. Kalen, for the
government, and Dr. Kinder, for appellant, regarding the relationship of appellant’s continuing
condition to the employment injury. To resolve the conflict, on March 20, 2018 OWCP referred
appellant for an impartial medical examination with Dr. Lowell Anderson, a Board-certified
orthopedic surgeon. In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical
examiner (IME), reviewed appellant’s history of injury, medical records, and the statement of
accepted facts (SOAF). On examination, he observed restricted range of motion of the cervical
spine, paraspinal tenderness to palpation of the cervical spine, left intrascapular region, and
lumbosacral junction, possible mild weakness of the left lower extremity evident on toe -raise and
step testing, possible mild hamstring weakness in the left lower extremity, subjective dec reased
sensation in the second, third, and fourth fingers of the left hand, minimally decreased sensation
in the fifth finger of the left hand, limited lumbar range of motion, decreased sensation in the entire
left lower extremity, and negative seated straight leg raising tests bilaterally. Dr. Anderson also
noted that thigh circumference at 10 centimeters proximal to the patella was 51/49, right over left.
He diagnosed multilevel cervical spondylosis, cervical spinal stenosis, likely left upper extremity
radiculopathy symptoms related to nerve root irritation at multiple levels of the cervical spine,
central cervical stenosis related to genetic and age-related progression of a preexisting cervical
condition. Dr. Anderson opined that the accepted injury “with likely L4-5 herniated disc” and
surgery had resolved without residuals as it was “likely satisfactorily treated” by surgery. He noted
that appellant’s ongoing cervical and lumbar conditions were due only to age-related degenerative
changes. Dr. Anderson indicated that appellant had attained maximum medical improvement
“many years ago.” He found appellant unable to perform his date-of-injury position due to
nonoccupational, age-related degenerative changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation as he
was no longer disabled from work as a result of the accepted January 1, 2005 injuries, based on
Dr. Anderson’s opinion as the IME. It afforded him 30 days to respond.
In a letter dated June 6, 2018 appellant, through counsel, contended that Dr. Anderson
failed to differentiate between sequelae of the employment injury and age-related degenerative
changes. Appellant submitted a June 1, 2018 report by Dr. Xi Tian, Board-certified in
anesthesiology and pain medicine, diagnosing a ligamentous cervical spine sprain and chronic
postoperative pain.
By decision dated June 14, 2018, OWCP terminated appellant’s wage-loss compensation,
effective that day, based on the special weight accorded Dr. Anderson’s report as the impartial
7

A December 6, 2017 MRI scan of the cervical spine demonstrated moderate-to-severe spondylosis at C5-6, C6-7,
and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and neuroforaminal narrowing.

3

medical examiner. It noted that the decision did not affect appellant’s entitlement to medical
benefits.
On June 19, 2018 OWCP received a June 7, 2018 report by Dr. Tian, diagnosing a sprain
of ligaments of cervical spine.
In a June 22, 2018 report, Dr. Richard Wohns, a Board-certified neurosurgeon, noted the
accepted January 1, 2005 occupational injury and diagnosed cervical stenosis, cervical
radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. 8 He opined that the
January 1, 2005 employment aggravated or activated these latent, asymptomatic conditions. 9
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held November 14, 2018.
In a December 11, 2018 letter, counsel asserted that OWCP should expand its acceptance
of the claim to include an L5-S1 disc herniation, lumbar stenosis, and failed back syndrome.
Appellant submitted additional evidence.
By decision dated January 29, 2019, an OWCP hearing representative affirmed the
June 14, 2018 termination decision.
On February 11, 2019 OWCP received a November 1, 2018 report by Dr. Wohns, in which
he opined that appellant’s cervical and lumbar conditions were caused by repetitive flexion and
extension of the upper and lower body while lifting and throwing heavy luggage at work on
January 1, 2005. Dr. Wohns explained that appellant’s accepted lumbar sprain, cervical-thoracic
sprain, herniated L4-5 disc, and lumbar radiculitis had naturally progressed over time subsequent
to a failed L4-5 laminectomy. He listed additional diagnoses of cervical stenosis, cervical
radiculopathy, and bilateral occipital neuralgia. 10
On April 11, 2019 OWCP received a November 15, 2018 report by Dr. Tian, diagnosing
lumbago, other chronic postoperative pain, and a ligamentous lumbar sprain.
8

A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2 -3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.
9

Appellant consulted several other physicians in 2018 and 2019. In an October 25, 2018 report, Dr. David
Hoffman, a Board-certified family practitioner, referred him to a pain management clinic. In a January 10, 2019
report, Dr. Darin Blackburn, a Board-certified family practitioner, noted treating appellant since the January 1, 2005
employment injury. He opined that appellant’s injury-related cervical and lumbar spine symptoms had not resolved
and necessitated work limitations. In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Boardcertified orthopedic surgeon, noted a history of the accepted January 1, 2005 employment injury and subsequent
treatment. On examination he noted slightly diminished cervical and lumbar lordosis, and limited range of cervical
and lumbar spine motion. Dr. Martin recommended physical therapy.
10

A March 8, 2019 MRI scan of the cervical spine and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

4

In July 1, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant required a
C5-6 and C6-7 anterior cervical discectomy and fusion, and extension of the prior lumbar
laminectomy to include L2 and L3 due to severe lumbar stenosis.
On January 16, 2020 appellant, through counsel, requested reconsideration of the
January 29, 2019 decision.
In a January 21, 2020 report, Dr. Wohns noted that the January 1, 2005 L4-5 laminectomy
had relieved appellant’s bilateral lower extremity radiculopathy, but that sharp, persistent lumbar
pain remained. He diagnosed bilateral occipital neuralgia, cervical radiculopathy, cervical
stenosis, cervical pain, lumbar stenosis with neurogenic claudication, mid back pain, and low back
pain.11
By decision dated January 29, 2020, OWCP denied modification of the prior decision.12
In a February 4, 2020 report, Dr. Wohns diagnosed cervical stenosis of the spinal canal,
lumbar stenosis with neurogenic claudication, and mid-back pain. He ordered a cervical MRI scan.
A June 25, 2020 MRI scan of the cervical spine demonstrated left C2-3 facet arthropathy,
a mild C3-4 disc protrusion with facet arthropathy and bilateral bony foraminal stenosis, possible
partial bony fusion of the endplates and right facets at C4-5 with mild bony stenosis of the right
foramen, degenerative disc narrowing at C5-6 with posterior disc protrusion and central canal
narrowing, partial desiccation of the C6-7 disc with diffuse posterior disc protrusion and central
canal narrowing, and mild anterolisthesis of C7 on T1 with mild posterior disc protrusion and facet
arthropathy.
In a July 20, 2020 report, Dr. Wohns opined that the June 25, 2020 MRI scan demonstrated
the need for a C5-6 andC6-7 microdiscectomy and fusion, to be followed by L2 to L4
laminectomies and foraminotomies.
In an August 13, 2020 letter, counsel requested that OWCP expand its acceptance of
appellant’s claim to include additional conditions as noted by Dr. Wohns. She submitted August 4
and November 17, 2020 letters by Dr. Wohns, who related appellant’s account that the January 5,
2005 employment incident caused the sudden onset of excruciating “electric shock-like pain”
throughout his neck and back, radiating into his head and all extremities. Dr. Wohns explained
that the employment injury caused a herniated lumbar disc “due to a mechanical strain between
two vertebrae, as he twisted to throw the luggage.” He opined that the employment incident also
caused spondylosis and radiculopathy at C5-6, C6-7, and C7-T1 due to strain in his spine “and
shoulder as he twisted to throw the heavy luggage.” Dr. Wohns reiterated that the January 5, 2005
employment injury directly caused or aggravated preexisting cervical stenosis of the spinal canal,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain.
11

In a January 17, 2020 report, Dr. Kathy Wang, an osteopathic physician Board-certified in anesthesiology,
administered a discogram with provocative lumbar discography at L2 -3, L3-4, and L5-S1, which demonstrated
nonconcordant pain at L2-3, L3-4, and L4-5.
12

On July 27, 2020 appellant, through counsel, appealed the January 29, 2020 merit decision to the Board. By
decision dated February 9, 2022, the Board reversed the January 29, 2020 decision, finding that IME Dr. Anderson’s
report was inconsistent with the SOAF. Docket No. 20-1442 (issued February 9, 2022).

5

On November 17, 2020 OWCP referred the medical record and SOAF to Dr. Michael M.
Katz, a Board-certified orthopedic surgeon serving as OWCP’s district medical adviser, for an
opinion on whether the accepted employment injury caused additional conditions. Dr. Katz
submitted a November 19, 2020 report in which he reviewed the medical record and SOAF. He
disagreed with Dr. Wohns’ support for causal relationship, as appellant’s cervical spine conditions
were present prior to a January 23, 2006 MRI scan, and the accepted cervical spine sprain was a
self-limiting condition. Dr. Katz opined that appellant’s cervical spondylosis, cervical stenosis,
and bilateral occipital neuralgia were due to the aging process and “natural history of the
degenerative conditions of the cervical spine” rather than a neck sprain. He commented that the
proposed diagnosis of low back pain was vague, and duplicative of the accepted lumbar conditions,
which were known to produce low back pain.
By decision dated December 17, 2020, OWCP denied expansion of the claim to include
additional conditions, as they appeared to be preexisting or degenerative in nature, unrelated to the
accepted January 1, 2005 employment injury. It accorded the weight of the medical evidence to
the opinion of Dr. Katz.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.14 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 accepted employment injury. 15 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.16
Section 8123(a) provides that, 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 When there are opposing reports of virtually

13

J.R., Docket No. 20-0292 (issued June 26, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

E.W., Docket No. 20-0338 (issued October 9, 2020).

15

L.P., Docket No. 20-0609 (issued October 15, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

16

C.L., 20-0213 (issued September 15, 2021); J.L., Docket No. 20-0717 (issued October 15, 2020); James Mack,
43 ECAB 321 (1991).
17

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his request for claim expansion, appellant submitted reports dated June 22,
2018 through November 17, 2020 by Dr. Wohns. In a June 22, 2018 report, Dr. Wohns opined
that the January 1, 2005 employment injury aggravated or activated latent cervical stenosis,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. He
indicated, in July 1, 2019, January 8, 2020 and July 20, 2020 reports, that sequelae of the
January 1, 2005 injury required C5-6 and C6-7 anterior discectomy and fusion, and extension of a
prior lumbar laminectomy to L2-3. Dr. Wohns explained in his August 3, 2020 letter that
repetitive flexion and extension of the upper and lower body while lifting and throwing heavy
luggage at work on January 1, 2005 caused the additional cervical and lumbar conditions. In his
November 17, 2020 letter, he attributed C5-6, C6-7, and C7-T1 radiculopathy to a strain in
appellant’s spine and shoulder as he twisted to throw heavy luggage on January 5, 2005.
In a November 19, 2020 report, Dr. Katz advised that Dr. Wohns’ reports failed to support
a causal relationship between the January 1, 2005 employment injury and cervical spondylosis,
cervical stenosis, and bilateral occipital neuralgia. He opined that these diagnoses were preexisting
conditions unrelated to the January 1, 2005 employment injury, and that the diagnosis of low back
pain was vague and duplicative.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination. 19 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Wohns, and the DMA, Dr. Katz, regarding whether the claim should be expanded to include
additional cervical conditions.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).20 After this and other such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

D.B., id., D.W., Docket No. 18-0123 (issued October 4, 2018).

19

A.R., Docket No. 19-1204 (issued February 25, 2021); see S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
20

A.R., id.; S.M., Docket No. 19-0397 (issued August 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8