United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dayton, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1255
Issued: December 14, 2018

Case Submitted on the Record

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

JURISDICTION
On May 19, 2017 appellant, through counsel, filed a timely appeal from an April 3, 2017
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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 20
percent permanent impairment of the right upper extremity and 20 percent permanent impairment
of the left upper extremity for which she previously received schedule award compensation.
FACTUAL HISTORY
On September 15, 1998 appellant, then a 39-year-old distribution window clerk, filed an
occupational disease claim (Form CA-2) alleging a right hand and bilateral arm condition that she
attributed to repetitive motions while performing her employment duties.3 OWCP accepted the
claim for bilateral carpal tunnel syndrome, bilateral flexor synovitis of hands, and bilateral lesion
of ulnar nerve. On April 14, 1999 appellant filed a claim for a schedule award (Form CA-7). By
decision dated August 6, 1999, OWCP granted appellant a schedule award for 20 percent
permanent impairment of the right upper extremity and 20 percent permanent impairment of the
left upper extremity. The period of award ran from May 20, 1999 to October 9, 2001.
On July 9, 2010 appellant filed a claim for a schedule award (Form CA-7).
In an August 4, 2010 report, Dr. William N. Grant, a Board-certified internist, opined that
appellant had nine percent permanent impairment of the left wrist and nine percent permanent
impairment of the right wrist based on the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).4
OWCP referred appellant to Dr. Edward Gregory Fisher, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine the nature and extent of her employmentrelated condition(s). In his August 19, 2011 report, Dr. Fisher opined that appellant had reached
maximum medical improvement (MMI) as of June 10, 1997 regarding her neck sprain, June 30,
1999 regarding her bilateral carpal tunnel syndrome, and May 1, 1998 regarding her bilateral
synovitis of the hands. He concluded that appellant had a total of six percent permanent
impairment of the upper extremities arising from her accepted work-related conditions from all of
her injury claims of April 10, 1997, February 1, 1998, February 1, 1999, and April 11, 2002.
In a September 14, 2011 report, Dr. Martin Fritzhand, a Board-certified urologist,
determined that appellant had nine percent permanent impairment of the left upper extremity and
six percent permanent impairment of the right upper extremity.

3

OWCP assigned the present claim OWCP File No. xxxxxx764. Appellant was also injured on April 10, 1997
when she slipped and jarred her neck and back while trying to catch herself. That claim, assigned OWCP File No.
xxxxxx505, was allowed for limited medical treatment only. Appellant was injured again on February 1, 1999 while
picking up a tub of mail. OWCP accepted that claim, assigned OWCP File No. xxxxxx505, for thoracic sprain, right
shoulder sprain, and lumbosacral sprain. On or about April 11, 2002 appellant reported a left elbow condition that
she attributed to repetitive work activities. OWCP accepted that claim, assigned OWCP File No. xxxxxx422 for right
trigger thumb and an authorized left elbow surgery performed on September 25, 2003. These claims have been
administratively combined, with OWCP File No. xxxxxx764 serving as the master file.
4

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

2

On December 8, 2011 an OWCP medical adviser reviewed the reports from Dr. Fisher and
Dr. Fritzhand and concluded that “each physician provided his own clinical impression according
to his own clinical judgment” and indicated that he could not “make a definite determination as to
whose rating [was] more accurate.”
OWCP referred appellant to Dr. Manhal Ghanma, a Board-certified orthopedic surgeon,
for another second opinion evaluation to determine the nature and extent of her permanent
impairment. In his April 30, 2013 report, Dr. Ghanma determined that appellant had three percent
permanent impairment of the right upper extremity and six percent permanent impairment of the
left upper extremity.
OWCP found that a conflict existed between Dr. Fisher and Dr. Fritzhand. On June 25,
2013 Dr. Albert E. Becker, Jr., a Board-certified orthopedic surgeon, performed an impartial
medical examination. He found that appellant had reached MMI in late 2004 and assigned the
date of September 28, 2004. Dr. Becker concluded that appellant had three percent permanent
impairment of the right upper extremity and seven percent permanent impairment of the left upper
extremity.
In an October 4, 2013 report, Dr. Morley Slutsky, an OWCP medical adviser and Boardcertified occupational medicine specialist, reviewed the medical evidence of record and
determined that appellant had two percent permanent impairment of the right upper extremity
regarding her right median nerve and two percent permanent impairment of the right and left upper
extremity regarding her bilateral carpal tunnel syndrome according to the sixth edition of the
A.M.A., Guides.
On December 11, 2013 Dr. Becker disagreed with Dr. Slutsky’s impairment rating.
By decision dated February 12, 2014, OWCP found that appellant was previously paid a
schedule award for 20 percent permanent impairment of the right upper extremity and 20 percent
permanent impairment of the left upper extremity and the medical evidence of record was
insufficient to establish an increase in the impairments already compensated.
On February 17, 2014 counsel requested an oral hearing by a representative of OWCP’s
Branch of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
August 15, 2014.
Subsequently, counsel submitted an addendum report dated August 26, 2014 from
Dr. Fritzhand who opined that appellant had 25 percent permanent impairment of the left upper
extremity.
By decision dated November 4, 2014, OWCP’s hearing representative found Dr. Becker’s
report insufficient to resolve the conflict in medical opinion evidence, vacated the prior decision,
and remanded the case for a new referee evaluation to resolve the conflict of medical opinion
regarding greater impairment due to all of appellant’s accepted employment-related conditions.

3

OWCP referred appellant to Dr. Arthur F. Lee, a Board-certified orthopedic surgeon, for a
referee examination. In his January 23, 2015 report, Dr. Lee opined that appellant had six percent
permanent impairment of the right and left upper extremities based on her diagnosis of carpal
tunnel syndrome and ulnar neuropathy at the elbow.
On March 19, 2015 Dr. Slutsky found that Dr. Lee’s January 23, 2015 report did not
provide detailed rating calculations with rationale to justify any of his conclusions. The medical
adviser recommended referring appellant to a new referee physician.
In a supplemental report dated May 15, 2015, Dr. Lee provided clarifications to his initial
report.
On May 20, 2015, however, Dr. Slutsky continued to find that Dr. Lee’s opinion was not
supported by detailed calculations and lacked probative value.
OWCP referred appellant to Dr. Roger Meyer, a Board-certified orthopedic surgeon, for a
new referee examination. In his January 29, 2016 report, Dr. Meyer found that appellant’s current
diagnoses were bilateral carpal tunnel syndrome, bilateral villonodular synovitis of the hands,
bilateral lesion of the ulnar nerve, lumbar sprain, and left ulnar neuropathy of the elbow. He
advised that appellant was not capable of performing her date-of-injury job and restricted her to
sedentary work with light use of her hands and no lifting, bending, or prolonged standing/walking
due to her lumbar conditions. Utilizing the diagnosis-based impairment (DBI) method, Dr. Meyer
determined that appellant had reached MMI in 2004 and opined that appellant had two percent
permanent impairment of the right and left upper extremities due to her bilateral carpal tunnel
syndrome, three percent permanent impairment of the right upper extremity, five percent
permanent impairment of the left upper extremity based on her ulnar nerve condition, nine percent
permanent impairment for the triggering of her digits, and five percent permanent impairment for
her lumbar condition.
On March 1, 2016 Dr. David I. Krohn, OWCP’s district medical adviser (DMA) and
Board-certified internist, reviewed the medical evidence of record and noted that Dr. Meyer failed
to perform a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) or functional scale when
determining appellant’s impairment rating due to her diagnosis of bilateral carpal tunnel syndrome.
He also found that, regarding appellant’s diagnosis of bilateral cubital tunnel syndrome, Dr. Meyer
did not discuss ulnar nerve impairment as required under Table 15-23, page 449, of the A.M.A.,
Guides. The medical adviser concluded that, regardless of the outcome of the issues raised above,
appellant’s bilateral upper extremity impairments would not exceed the 20 percent rating
previously awarded.
In an April 21, 2016 addendum report, Dr. Meyer stated that, regarding the carpal tunnel
syndrome rating, he “did go through the calculations that [Dr. Krohn] outlined and is the reason
[he] came up with the [two percent] as [Dr. Krohn] nicely calculated.” With regard to the bilateral
cubital tunnel syndrome, he found that the electromyography (EMG) criteria for a significant block
at either elbow was not present, which is why he calculated a two percent permanent impairment
for both the right and left upper extremity. Dr. Meyer determined that appellant had reached MMI
on June 25, 2013 for her bilateral cubital tunnel syndrome and “December 1, 200” for her bilateral
carpal tunnel syndrome.

4

On May 5, 2016 Dr. Krohn concurred with Dr. Meyer’s rating of two percent permanent
impairment of the right upper extremity, but disagreed with his rating for the left upper extremity.
He calculated that appellant had five percent permanent impairment of the left upper extremity.
Dr. Krohn, however, continued to find that appellant’s right and left upper extremity impairments
did not exceed the 20 percent rating previously awarded.
By decision dated May 13, 2016, OWCP denied appellant’s claim for an additional
schedule award because the medical evidence did not establish that appellant had greater than 20
percent permanent impairment of the right upper extremity and 20 percent permanent impairment
of the left upper extremity, for which she previously received schedule award compensation.
On May 23, 2016 counsel requested an oral hearing by a representative of OWCP’s Branch
of Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
January 18, 2017. OWCP did not receive any additional medical evidence regarding the extent of
appellant’s bilateral upper extremity permanent impairment.
By decision dated April 3, 2017, OWCP’s hearing representative accepted Dr. Krohn’s
opinion and found that appellant had not established that she had greater than 20 percent permanent
impairment of the right upper extremity and 20 percent permanent impairment of the left upper
extremity for which she previously received schedule award compensation. Consequently, she
affirmed OWCP’s May 13, 2016 schedule award decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.6 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing

5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

7

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

5

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved OWCP’s use of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.9
ANALYSIS
The issue on appeal is whether appellant met her burden of proof to establish that she has
greater than 20 percent permanent impairment of the right upper extremity and 20 percent
permanent impairment of the left upper extremity for which she previously received schedule
award compensation.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation has been followed regarding the proper use of the DBI or the range of motion (ROM)
methodology when assessing the extent of permanent impairment for schedule award purposes.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed that
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis. Furthermore, the Board observed that physicians interchangeably
cited to language in the first printing or the second printing when justifying use of either ROM or
DBI methodology. Because OWCP’s own physicians were inconsistent in the application of the
A.M.A., Guides, the Board found that OWCP could no longer ensure consistent results and equal
justice under the law for all claimants.12
In order to ensure consistent results and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the April 3, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

12

See T.H., supra note 10.

6

and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.13
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: December 14, 2018
Washington, DC

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

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

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

13

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF THE ARMY, BLUEGRASS
ARMY DEPOT, Richmond, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1109
Issued: September 4, 2007

Case Submitted on the Record

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

JURISDICTION
On March 19, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 16, 2007 merit decision, denying his claim for a November 30,
2006 employment injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), 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 sustained a
right shoulder injury in the performance of duty on November 30, 2006.
FACTUAL HISTORY
On December 6, 2006 appellant, then a 54-year-old explosives operator, filed a traumatic
injury claim, alleging that he sustained a right shoulder injury on November 30, 2006. He
indicated that he heard his shoulder pop when he pulled a 30 millimeter (mm)

munitions container in an attempt to pin it to another munitions container.1 Appellant stopped
work on December 1, 2006 and returned to light-duty work for the employing establishment on
December 5, 2006.2
In a December 12, 2006 letter, the Office requested that appellant submit additional
factual and medical evidence in support of his claim.
In a December 5, 2006 (Form CA-16) report, Dr. Gene Dillman, II, an attending Boardcertified family practitioner, stated that appellant reported that on November 30, 2006 he injured
his right shoulder when he was putting cans together end-to-end and pulled one out. He noted
that appellant reporting hearing a pop in his shoulder and experiencing right shoulder and arm
pain. Dr. Dillman indicated that on examination appellant could not externally or internally
rotate his right upper arm and diagnosed right infraspinatus injury. He checked a “yes” box
indicating that the diagnosed condition was caused or aggravated by the reported employment
injury and determined that he was totally disabled from December 5 to 12, 2006. In a
December 5, 2006 note, Dr. Dillman stated that appellant should not lift, pull or push with his
right arm/shoulder until cleared by an orthopedic consultant. He indicated that appellant had an
injury of the infraspinatus muscle and might have a tear or rupture.
On December 11, 2006 Dr. Philip F. Corbett, an attending Board-certified orthopedic
surgeon, stated that appellant reported that he injured his right shoulder on November 30, 2006
when he was pulling a “fairly significant weight.” He noted that appellant reported that he heard
a pop in his shoulder and experienced severe pain which radiated into his neck and right arm.
Dr. Corbett indicated that on examination of the right shoulder appellant appeared to have full
range of motion and negative drop arm sign, but had shoulder pain on active and passive motion,
exquisite tenderness over the biceps tendon, positive cross arm sign and positive impingement
sign.3
In a January 16, 2007 decision, the Office denied appellant’s claim finding that he did not
meet his burden of proof to establish that he sustained a right shoulder injury in the performance
of duty on November 30, 2006. The Office accepted that the November 30, 2006 employment
incident occurred when appellant moved a heavy munitions canister while attempting to pin it to
another canister, but found that he did not submit sufficient medical evidence to show that he
sustained injury as a result.

1

The record contains an accident report, updated on April 21, 2006, indicating that appellant’s right shoulder
popped when he positioned a 30 mm can weighing about 75 pounds by sliding it approximately four inches in order
to pin it to another can.
2

The record contains a December 5, 2006 “sick slip” indicating that appellant should not lift, pull or push with
his right arm due to a November 30, 2006 injury, but the note does not appear to be signed by a physician.
3

The record contains the findings of December 27, 2006 venous ultrasound testing of the right upper extremity
revealed no evidence of right upper extremity thrombus.

2

LEGAL PRECEDENT
An employee who claims benefits under the Federal Employees’ Compensation Act4 has
the burden of establishing the essential elements of his claim.5 The claimant has the burden of
establishing by the weight of reliable, probative and substantial evidence that the condition for
which compensation is sought is causally related to a specific employment incident or to specific
conditions of the employment. As part of this burden, the claimant must present rationalized
medical opinion evidence, based upon a complete and accurate factual and medical background,
establishing causal relationship.6 However, it is well established that proceedings under the Act
are not adversarial in nature and while the claimant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.7
ANALYSIS
Appellant alleged that he injured his right shoulder on November 30, 2006 while moving
a heavy munitions canister. The Office accepted that an employment incident occurred when
appellant moved a heavy munitions canister while attempting to pin it to another canister, but
found that he did not submit sufficient medical evidence to show that he sustained a right
shoulder injury in the performance of duty on November 30, 2006.
The Board notes that, while none of the reports of appellant’s attending physicians are
completely rationalized, they are consistent in indicating that appellant sustained an
employment-related injury on November 30, 2006 and are not contradicted by any substantial
medical or factual evidence of record. While the reports are not sufficient to meet appellant’s
burden of proof to establish his claim, they raise an uncontroverted inference between appellant’s
claimed condition and the employment incident of November 30, 2006 and are sufficient to
require the Office to further develop the medical evidence and the case record.8
Appellant submitted a December 5, 2006 Form CA-16 in which Dr. Dillman, an
attending Board-certified family practitioner, stated that appellant reported that on November 30,
2006 he injured his right shoulder when he was putting cans together. Dr. Dillman indicated that
on examination appellant could not externally or internally rotate his right upper arm and
diagnosed right infraspinatus injury. He checked a “yes” box indicating that the diagnosed
condition was caused or aggravated by the reported employment injury and determined that he
was totally disabled from December 5 to 12, 2006. In a December 5, 2006 note, Dr. Dillman
stated that appellant should not lift, pull or push with his right arm/shoulder and indicated that he
might have a tear or rupture.

4

5 U.S.C. §§ 8101-8193.

5

Ruthie Evans, 41 ECAB 416, 423-24 (1990); Donald R. Vanlehn, 40 ECAB 1237, 1238 (1989).

6

Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

7

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

8

See Robert A. Redmond, 40 ECAB 796, 801 (1989).

3

Appellant also submitted a December 11, 2006 report in which Dr. Corbett, an attending
Board-certified orthopedic surgeon, stated that appellant reported that he injured his right
shoulder on November 30, 2006 when he was pulling a “fairly significant weight.” Dr. Corbett
did not provide an opinion that appellant sustained an employment injury on November 30,
2006, but he noted several positive right shoulder findings, indicating that appellant had shoulder
pain on active and passive motion, exquisite tenderness over the biceps tendon, positive cross
arm sign and positive impingement sign.
The case will be remanded to the Office for further evidentiary development regarding
the issue of whether appellant sustained an employment-related injury on November 30, 2006.
The Office should prepare a statement of accepted facts and obtain a medical opinion on this
matter. After such development of the case record as the Office deems necessary, an appropriate
decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish that he sustained a right shoulder injury in the performance
of duty on November 30, 2006. The case will be remanded to the Office for further development
of this matter to be followed by an appropriate decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 16, 2007 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: September 4, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1358
Issued: February 1, 2018

Case Submitted on the Record

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

JURISDICTION
On June 9, 2017 appellant, through counsel, filed a timely appeal from an April 4, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a bilateral knee
condition causally related to factors of his federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On March 22, 2010 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral knee pain and swelling and a
medial meniscal tear due to climbing up and down steps in the performance of duty for many
years. He submitted medical evidence. By decision dated June 2, 2010, OWCP denied
appellant’s claim, finding the medical evidence insufficient to establish causal relationship. It
developed this matter under OWCP File No. xxxxxx382.
On September 15, 2010 OWCP obtained a second opinion evaluation from Dr. Lawrence
Barr, an osteopath and Board-certified internist, who found no pathophysiological causal
relationship between appellant’s work duties and bilateral knee osteoarthritis.
By decision dated October 29, 2010, OWCP denied appellant’s claim, finding that the
weight of Dr. Barr’s report negated causal relationship. Appellant appealed to the Board on
January 26, 2011.
OWCP also accepted that on October 11, 2011, appellant sustained a left knee contusion
in a work-related motor vehicle accident claim under OWCP File No. xxxxxx345.4
By decision and order issued November 18, 2011,5 the Board set aside OWCP’s
October 29, 2010 decision. The Board found that Dr. Barr’s opinion could not represent the
weight of the medical evidence as it was based on an inaccurate factual history inconsistent with
the statement of accepted facts (SOAF). The Board remanded the case to OWCP to obtain a
referral opinion regarding whether appellant’s years of walking up and down steps in his job
caused or aggravated his claimed condition.
On remand, OWCP obtained a second opinion from Dr. Stanley Askin, a Board-certified
orthopedic surgeon, who provided a January 26, 2012 report attributing appellant’s bilateral knee
osteoarthritis solely to aging. Dr. Askin submitted a February 10, 2012 addendum report finding
no causal relationship between appellant’s employment and the development of the claimed
condition.
By decision dated April 2, 2012, OWCP denied appellant’s occupational disease claim,
finding that causal relationship had not been established, based on Dr. Askin’s opinion as the

3

Docket No. 15-0156 (issued March 24, 2015); Docket No. 11-0692 (issued November 18, 2011).

4
OWCP administratively combined File Nos. xxxxxx382 and xxxxxx345, with the latter serving as the master
file. Appellant also has claims under File No. xxxxxx922, accepted for a February 21, 2003 left knee injury, and
File No. xxxxxx852, accepted for an April 30, 2011 right knee sprain. File Nos. xxxxxx922 and xxxxxx852 are not
before the Board on the present appeal.
5

Docket No. 11-0692 (issued November 18, 2011).

2

weight of the medical evidence. Counsel disagreed with this decision and requested a hearing
with OWCP’s Branch of Hearings and Review.
By decision dated June 13, 2012, a representative of OWCP’s Branch of Hearings and
Review conducted a preliminary review and set aside OWCP’s April 2, 2012 decision, finding
that Dr. Askin’s opinion could not represent the weight of the medical evidence as it required
clarification. The hearing representative directed that OWCP request an addendum report from
Dr. Askin.
On June 28, 2012 OWCP provided an updated SOAF to Dr. Askin. At OWCP’s request,
Dr. Askin submitted July 5, November 28, and December 11, 2012 addendum reports. He
opined that appellant’s knee injuries and employment factors did not cause, aggravate, or
accelerate the claimed bilateral knee osteoarthritis.
By decision dated May 21, 2013, OWCP denied appellant’s occupational disease claim,
finding that causal relationship was not established and that Dr. Askin’s opinion continued to
represent the weight of the medical evidence.
In a May 28, 2013 letter, counsel requested a hearing, held September 24, 2013. He
asserted that Dr. Askin’s opinion should be given no medical weight as he was unable to clarify
his opinion on causal relationship in any of his five reports. Counsel provided a September 21,
2013 report from Dr. Colin A. Campbell, an attending osteopath Board-certified in internal
medicine. Dr. Campbell opined that the February 21, 2003 employment-related left meniscal
tear, OWCP File No. xxxxxx922, began the degradation of appellant’s left knee, further
exacerbated by carrying heavy packages on a deranged left knee, leading to arthritis. The
October 11, 2011 employment injury further progressed the degeneration of appellant’s knee.
By decision dated December 11, 2013, OWCP’s hearing representative set aside the
May 21, 2013 decision. She directed OWCP to prepare a new SOAF and refer appellant to a
new second opinion specialist, as Dr. Askin “already provided numerous addendums which had
defects.”
In a December 20, 2013 letter, OWCP referred appellant and an updated SOAF to
Dr. Askin, who provided a January 3, 2014 report repeating that appellant’s bilateral knee
osteoarthritis was an age-related condition unrelated to his federal employment.
On February 18, 2014 OWCP obtained a second opinion report from Dr. Robert Smith, a
Board-certified orthopedic surgeon, who opined that the February 21, 2003 employment-related
knee injury was not competent to produce osteoarthritis. At OWCP’s request, Dr. Smith
provided a March 9, 2014 addendum, opining that appellant’s bilateral knee osteoarthritis was a
“developmental condition” unrelated to her work duties or the accepted injuries.
By decision dated March 12, 2014, OWCP denied appellant’s occupational disease claim,
finding that, based on Dr. Smith’s opinion, causal relationship was not established.
In a March 18, 2014 letter, counsel requested a hearing, held June 9, 2014. At the
hearing, he contended that OWCP should have accorded the weight of the medical evidence to

3

Dr. Campbell, or found a conflict between Dr. Campbell and Dr. Smith requiring resolution by
an impartial medical examiner.
By decision dated July 28, 2014, the hearing representative affirmed the March 12, 2014
decision, finding that Dr. Smith provided adequate rationale explaining that appellant’s bilateral
knee osteoarthritis was age related, with no contribution from his employment. Appellant,
through counsel, then appealed to the Board on October 31, 2014.
By decision and order issued March 24, 2015,6 the Board set aside OWCP’s July 28,
2014 decision, finding a conflict of medical opinion between Dr. Campbell, for appellant, and
Dr. Smith, for the government, regarding the etiology of appellant’s bilateral knee osteoarthritis.
The Board remanded the case to OWCP to obtain an impartial medical opinion from an
appropriate specialist, based on an updated SOAF, addressing whether appellant’s years of
walking up and down steps in his job caused or aggravated his claimed condition.
On remand, OWCP prepared an updated SOAF based on a position description of
appellant’s date-of-injury letter carrier position. It noted that he was “required to perform
arduous exertion involving prolonged standing and walking” while carrying a mail satchel
weighing up to 35 pounds. To resolve the conflict of medical opinion between Dr. Campbell and
Dr. Smith, OWCP selected Dr. Howard Zeidman, a Board-certified orthopedic surgeon, as an
impartial medical examiner. It provided a November 13, 2015 impartial medical examiner
referral form and screen captures documenting OWCP’s use of the Physician Directory System
(PDS). In a series of questions, OWCP specifically requested that Dr. Zeidman address any
causal relationship between the 2003 and 2011 accepted employment injuries, appellant’s work
duties, and the claimed bilateral knee osteoarthritis.
Dr. Zeidman submitted a November 19, 2015 report reviewing the medical record and
SOAF. He noted that the record mentioned osteoarthritis of both knees, and MRI scan evidence
of a meniscal injury. Dr. Zeidman found appellant able to perform full duty.
In March 15 and May 20, 2016 letters, OWCP sought a supplemental report from
Dr. Zeidman addressing causal relationship. It requested that he list all diagnoses of either knee
and provide medical rationale explaining how the duties described in the SOAF would cause or
contribute to these conditions. OWCP also asked that Dr. Zeidman discuss any relationship
between the accepted March 12, 2003 and October 11, 2011 injuries and appellant’s ongoing
condition. It also provided a work capacity evaluation (Form OWCP-5c) for completion.
Dr. Zeidman responded by May 17, 2016 letter. He diagnosed “degenerative arthritis,
mild with minimal changes” of both knees, with radiologic evidence of a torn meniscus, but no
clinical indication of derangement. Regarding causal relationship, Dr. Zeidman opined that there
did “not appear to be any problem other than that which would reasonably be expected and
consistent with [appellant’s] age.” He found appellant able to perform full duty without
restrictions.

6

Docket No. 15-0156 (issued March 24, 2015).

4

In a July 13, 2016 letter, OWCP requested that Dr. Zeidman comply with the two prior
requests to provide a well-reasoned report explaining whether appellant’s work duties or the
February 21, 2003 and October 11, 2011 employment injuries caused or contributed to a
diagnosed condition. It also asked that Dr. Zeidman explain why he concluded that appellant’s
bilateral knee condition was caused by the aging process and not work factors. OWCP requested
that he provide his supplemental report within 14 days. Dr. Zeidman did not respond.
By decision dated December 7, 2016, OWCP denied appellant’s occupational disease
claim for bilateral knee osteoarthritis, finding that the medical evidence failed to establish causal
relationship. It explained that, although Dr. Zeidman did not submit a second addendum report
as requested by July 13, 2016 letter, his two prior opinions were “sufficient enough to hold the
weight of the medical evidence” because of his status as an impartial medical examiner and his
review of the record.
In a December 13, 2016 letter, counsel requested a hearing. At the hearing, held
March 1, 2017, he contended that Dr. Zeidman was not properly selected using the PDS system
as there was no Form ME-023 of record. Counsel also asserted that Dr. Zeidman’s opinion could
not represent the special weight of the medical evidence as he did not provide medical rationale
discussing causal relationship despite OWCP’s initial referral and the three requests for
clarification. He emphasized that OWCP issued its December 7, 2016 decision, according
Dr. Zeidman the weight of the medical evidence, although he refused to respond to the July 13,
2016 request for a supplemental report.
By decision dated April 4, 2017, an OWCP hearing representative affirmed OWCP’s
December 7, 2016 decision, finding that Dr. Zeidman’s opinion was sufficiently rationalized to
represent the special weight of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA7 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 and/or specific condition for which compensation is claimed are causally related to
the employment injury.8 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.9
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.10 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
7

Supra note 2.

8

Joe D. Cameron, 41 ECAB 153 (1989).

9

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

10

20 C.F.R. § 10.5(q).

5

(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) 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 is generally 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 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.11
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination. This is called a referee examination
and OWCP will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.12
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.13 In situations where OWCP secures an opinion from
an impartial medical specialist for the purpose of resolving a conflict in medical evidence and the
opinion from such specialist requires clarification or elaboration, OWCP has the responsibility to
secure a supplemental report from the specialist for the purpose of correcting the defect in the
original opinion. If the specialist is unwilling or unable to clarify and elaborate on his or her
opinion, the case should be referred to another appropriate impartial medical specialist.14 Unless
this procedure is carried out by OWCP the intent of section 8123(a) of FECA will be
circumvented when the impartial specialist’s medical report is insufficient to resolve the conflict
of medical evidence.15

11

Solomon Polen, 51 ECAB 341 (2000).

12

5 U.S.C. § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000).

13

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

14

See Philip H. Conte, 56 ECAB 213 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

15

Harold Travis, 30 ECAB 1071 (1979).

6

ANALYSIS
The Board previously remanded the claim to OWCP for selection of an impartial medical
examiner to resolve a conflict of medical opinion between Dr. Campbell, an attending Boardcertified internist, and Dr. Smith, a Board-certified orthopedic surgeon, regarding the causal
relationship between accepted employment injuries, work factors, and claimed bilateral knee
osteoarthritis. OWCP selected Dr. Zeidman, a Board-certified orthopedic surgeon, as an
impartial medical specialist. It specifically instructed him to provide medical rationale
explaining whether appellant’s duties as a letter carrier, or the accepted 2003 and 2011 knee
injuries, caused or contributed to the claimed knee conditions.
Dr. Zeidman provided a November 19, 2015 report noting that various reports and studies
of record indicated a left medial meniscal tear and bilateral knee osteoarthritis. OWCP
determined that Dr. Zeidman’s report did not contain the requested medical rationale addressing
causal relationship. In March 15 and May 20, 2016 letters, it requested that he submit an
addendum report on this issue. In response, Dr. Zeidman submitted a May 17, 2016 letter
asserting that appellant’s bilateral knee osteoarthritis was age related, but did not explain the
medical reasoning supporting this conclusion.
OWCP determined that Dr. Zeidman’s supplemental report was inadequate to resolve the
medical conflict. To address these deficiencies, it solicited a second addendum report from
Dr. Zeidman on July 13, 2016.
OWCP specifically requested that he explain the
pathophysiologic mechanisms supporting his conclusion that appellant’s bilateral knee
osteoarthritis was attributable only to the aging process, without any contribution from his
federal duties. It also directed that Dr. Zeidman address whether the three prior accepted knee
injuries had any effect on his ongoing condition. Dr. Zeidman did not respond. Nevertheless,
OWCP issued its December 7, 2016 decisions finding his opinion “sufficient enough” to resolve
the conflict, and its April 4, 2017 decision affirming this determination. The Board finds,
however, that Dr. Zeidman’s opinion is insufficiently rationalized to represent the special weight
of the medical evidence.
As explained, where OWCP secures an opinion from an impartial medical specialist for
the purpose of resolving a conflict in medical evidence and the opinion from such specialist
requires clarification or elaboration, it has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting the defect in the original opinion. If the specialist is
unwilling or unable to clarify and elaborate on his or her opinion, the case should be referred to
another appropriate impartial medical specialist.16 Unless this procedure is carried out by OWCP
the intent of section 8123(a) of FECA will be circumvented when the impartial specialist’s
medical report is insufficient to resolve the conflict of medical evidence.17
OWCP selected Dr. Zeidman as the impartial medical examiner to resolve a conflict of
medical opinion on the issue of causal relationship. To be entitled to special weight, his opinion

16

Supra note 11.

17

Supra note 12.

7

must contain clear, persuasive rationale on the critical issue in the claim.18 However,
Dr. Zeidman’s reports do not contain such rationale. OWCP thrice attempted to obtain an
addendum report discussing causal relationship, but ultimately failed to do so. It was then
obligated to submit the case record and a SOAF to a new impartial specialist.19 Instead, OWCP
relied on Dr. Zeidman’s inadequate opinion. Therefore, the case must be remanded for further
development.
Upon remand, OWCP shall combine all cases involving appellant’s knee conditions, in
particular OWCP File Nos. xxxxxx922 and xxxxxx852, with the present claim so that the
impartial specialist will have a complete understanding of the claims involving his knees.20
Thereafter, it shall refer appellant, an updated SOAF, and the medical record to a new impartial
medical specialist to obtain a rationalized opinion on causal relationship. Following this and any
other development deemed necessary, OWCP shall issue a de novo decision in the case.
On appeal, counsel contends that OWCP failed to meet its responsibility to develop the
medical evidence as it issued its April 4, 2017 decision without obtaining an adequate
supplemental report from Dr. Zeidman. As explained, the case will be remanded to OWCP for
selection of a new impartial medical examiner.
CONCLUSION
The Board finds that the case is not in posture for a decision.

18

Supra note 10.

19

M.B., Docket No. 09-0567 (issued November 12, 2009); Nancy Keenan, 56 ECAB 687 (2005);
Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071 (1979); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(e) (September 2010) (if
the referee physician does not respond, the claims examiner should request a new referee examination).
20

See id. Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000). OWCP
procedures provide that cases should be doubled when a new injury is reported for an employee who previously
filed an injury claim for a similar condition.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 4, 2017 is set aside, and the case is remanded for additional
development consistent with this decision of the Board.
Issued: February 1, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, CURSEEN-MORRIS
P & DC, Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2154
Issued: February 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 20, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated June 29, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over this case.
ISSUE
This issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty causally related to factors of her federal
employment.
FACTUAL HISTORY
On September 12, 2005 appellant, then a 44-year-old mail handler who worked on the
north loading dock, filed a Form CA-1, traumatic injury claim, alleging that on that day she was
harassed by her supervisor, Michael Fair, and that this caused post-traumatic stress disorder and
a recurrence of right carpal tunnel syndrome. She noted that she had a sexual harassment case
against Mr. Fair. On the claim form, Mr. Fair commented that appellant disagreed with a change

of work assignment and, following a meeting regarding this, she left work. In support of her
claim, appellant submitted a September 12, 2005 report in which Dr. Lawrence Zinar, a Boardcertified psychiatrist, diagnosed depression and post-traumatic stress disorder, advised that she
was unable to work, and that she had entered an outpatient, partial hospitalization program. By
report dated September 16, 2005, Dr. Indu Sud, a Board-certified psychiatrist, noted that
appellant would be in the partial hospitalization program for four to six weeks. Appellant did not
return to work.
On October 6, 2005 the Office informed appellant of the type evidence needed to support
her claim. By decision dated November 15, 2005, the Office denied the claim. In a statement
dated November 6, 2005, received by the Office on November 11, 2005, appellant reported that
in July 2005 she had filed an Equal Employment Opportunity (EEO) Commission claim against
Mr. Fair and contended that at that time employing establishment management should have
transferred her. She stated that she had a preexisting emotional condition and had been on
medication since 2002 when she was harassed by a previous supervisor, but that continued
harassment and job threats caused additional stress.1 Appellant also submitted a duty status
report with an illegible signature dated December 2, 2005 advising that she could not work.
On December 12, 2005 appellant requested a hearing or teleconference. She submitted
additional statements in which she reported a history that in 2001 she was hospitalized due to
depression caused by management harassment and was fine after that until Mr. Fair began to
harass her in April 2005 which caused flashbacks, anxiety attacks, nightmares and severe
depression. Appellant alleged that he inappropriately changed her work assignments and denied
her leave requests, that parking was a problem and the identification and bag checks upon
entering work caused stress. She stated that on September 5, 2005 Mr. Fair threatened to write
her up if she did not perform her assigned duties and that she was under tremendous stress
because Legionnaire’s disease was in the employing establishment facility’s water system. In a
November 4, 2005 report, Dr. Sud noted appellant’s report that treatment by her supervisor
caused flashbacks of abuse by her husband. He diagnosed post-traumatic stress disorder,
chronic, severe and major depressive disorder, recurrent, severe, with mood congruent psychotic
feature and inter-episode recovery.
Appellant also submitted evidence regarding EEO claims filed on July 9 and 14, 2005.
An EEO investigative summary related appellant’s complaints including that in May 2005
Mr. Fair asked her to go out with him, that he persistently paged her, that in June 2005 he
threatened her employment, and on July 6, 2005 he stared at her in an uncomfortable manner and
made inappropriate comments, that on July 15, 2005 Ms. Talley did not follow-up on appellant’s
complaints about Mr. Fair, that he closely supervised her, and that on September 6, 2005 she was
required to work overtime and was only allowed to drink water during official breaks.
Regarding September 12, 2005, appellant stated that Mr. Fair changed her work assignment and
threatened to reassign her. The summary reported that Mr. Fair denied that he asked appellant
out or sexually harassed her. He stated that appellant was paged because she would not be at her
assigned position and would be talking excessively with other employees and that she clocked
out early. Mr. Fair noted that on September 6, 2005 appellant was working voluntary overtime
1

There is no indication in the record that appellant had a previously accepted claim for an emotional condition.

2

when he disciplined her about drinking water on the workroom floor which was against policy.
He stated that on September 12, 2005 he explained to appellant that she was the most junior mail
handler and had to perform duties other mail handlers had declined, and that she was
insubordinate and refused to do her assigned duties. Mr. Fair then stated that he, Ms. Talley,
Alvin Harper and appellant met to discuss a reassignment, but that appellant then filed the CA-1.
He stated that there was no Legionnaire’s disease at the employing establishment and denied
treating appellant differently than other employees. The report stated that Ms. Talley denied that
appellant reported to her that she was being sexually harassed by Mr. Fair and knew nothing
about the complaint until contacted regarding appellant’s EEO claim. She stated that no other
employees had complained about Mr. Fair. The report continued that Waverlye Vaughn stated
that she supervised appellant when Mr. Fair was off and had no specific knowledge other than
appellant’s report that Mr. Fair looked her up and down. Greg Hembry, a mail handler, noted
appellant’s report that Mr. Fair asked her out. He stated that appellant was constantly paged and
harassed and he felt these were unwarranted. Cynthia Cuthbertson, a mail handler, noted that
appellant was frequently paged, and opined that she was a good worker. She reported that, while
at appellant’s home, she heard a telephone message that Mr. Fair called appellant there about
paperwork, and noted that appellant told her she was asked out by Mr. Fair and harassed by him.
Lynette Williams, a clerk, stated that she witnessed Mr. Fair staring at appellant, and that he
frequently paged her, ordering her to report back to the dock, and that she had heard other
women complain about Mr. Fair. Robyn Lord, an analyst for the EEO Commission, stated that
she tried to set up an interview with appellant who did not respond to her messages. Angela
Nelson, supervisor of the west dock, stated that Mr. Fair, supervisor of the north dock, would
page appellant who would be at the west dock talking with a friend instead of performing her
work duties at the north dock. She stated that neither appellant nor other employees had
complained to her about Mr. Fair. Ronald E. Smith, a mail handler, noted appellant’s report that
Mr. Fair asked her out. He stated that appellant would be paged because she would be taking
too long coming back to work, and opined that Mr. Fair, who played favorites, harassed and
discriminated against appellant. Mr. Smith stated that on September 12, 2005 he and another
mail handler passed on the assignment of moving rolling stock. The investigative summary
advised that on July 14, 2005 a predisciplinary interview was held to discuss appellant’s
excessive time off her assigned duties and falsification of time, and that Mr. Fair provided copies
of disciplinary actions against other employees. The summary reported that testing showed that
Legionella bacteria was not detected at the employing establishment and demonstrated that
appellant was the junior mail handler on September 12, 2005.
A telephonic hearing was held on March 9, 2006 in which appellant testified that on
September 12, 2005 Mr. Fair ordered her to perform various chores and when she complained,
Ms. Talley was not sympathetic. She stated that she looked for a shop steward before the
meeting but could not locate one, became upset after the meeting, left work, and went to the
hospital. Appellant alleged that she was harassed by both Mr. Fair and Ms. Talley, and generally
contended that employing establishment management should have transferred her or Mr. Fair.
She related that she had filed two sexual harassment cases against Mr. Fair but final decisions
regarding these had not been issued, and she did not know if grievances had been filed.
Appellant stated that she was still in a partial hospitalization program. The hearing
representative explained that appellant needed to submit corroborative statements, and she was
given 30 days to provide additional evidence.

3

By decision dated May 30, 2006, the hearing representative remanded the case to the
Office for further development. The Office was to obtain a response from the employing
establishment regarding appellant’s allegations which submitted statements dated June 16, 2006.
Mr. Fair again described the events of September 12, 2005, stating that the meeting was held to
discuss appellant’s work performance and excessive time away from her assigned duties. He
stated that a change in supervisors was suggested but that appellant refused, left and filed the
instant claim. Mr. Fair denied that he ever sexually harassed her. Ms. Talley reported that the
meeting on September 12, 2005 was held at appellant’s request. She stated that she suggested a
change in work location but appellant refused and filed this claim. Ms. Talley reiterated that she
did not recall appellant telling her anything about Mr. Fair sexually harassing her. Mr. Harper
stated that the purpose of the meeting was to inform appellant that she was to be reassigned
pending an investigation of the claimed sexual harassment.
By decision dated June 29, 2007, the Office found that, as appellant had not established a
compensable factor of employment, she did not sustain an employment injury in the performance
of duty.2
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.3
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,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.5
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.6 When an employee experiences
emotional stress in carrying out his or her employment duties, and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
2

The Board notes that, as appellant contended that her condition was caused by work factors that extended over a
period longer than a single workday or shift, the Office properly adjudicated the case as an occupational disease
claim. 20 C.F.R. § 10.5(q).
3

Leslie C. Moore, 52 ECAB 132 (2000).

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Robert W. Johns, 51 ECAB 137 (1999).

4

assignment or other requirement imposed by the employing establishment or by the nature of the
work.7 A claimant must support his or her allegations with probative and reliable evidence.
Personal perceptions alone are insufficient to establish an employment-related emotional
condition.8
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 the Act.9 Where 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.10
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. A claimant must establish
a factual basis for his or her allegations with probative and reliable evidence. Grievances and
EEO complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred. Where an employee alleges harassment and cites specific incidents, the Office or other
appropriate fact finder must determine the truth of the allegations. The issue is not whether the
claimant has established harassment or discrimination under EEO Commission standards.
Rather, the issue is whether the claimant under the Act has submitted sufficient evidence to
establish a factual basis for the claim by supporting his or her allegations with probative and
reliable evidence.11
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment-related emotional condition. She initially alleged that she suffered
stress on September 12, 2005 when she disagreed with job assignments given to her by her
supervisor Mr. Fair and during a meeting held later that day. Administrative and personnel
matters are not considered factors of employment absent error or abuse by the employing
establishment,12 and an employee’s complaints concerning the manner in which a supervisor
performs his or her duties as a supervisor or the manner in which a supervisor exercises

7

Lillian Cutler, supra note 4.

8

Roger Williams, 52 ECAB 468 (2001).

9

Charles D. Edwards, 55 ECAB 258 (2004).

10

Kim Nguyen, 53 ECAB 127 (2001).

11

James E. Norris, 52 ECAB 93 (2000).

12

Kim Nguyen, supra note 10.

5

supervisory discretion fall, as a rule, outside the scope of coverage provided by the Act.13
Although the handling of disciplinary actions, evaluations and leave requests, the assignment of
work duties and the monitoring of activities at work are generally related to the employment,
they are administrative functions of the employer and not duties of the employee.14 Mr. Fair
explained that appellant was assigned specific duties on September 12, 2005 because two mail
handlers with more seniority had declined the specific jobs. When appellant, the most junior
mail handler there, refused to perform the assignment, Ms. Talley suggested a reassignment.
This was discussed at the meeting held that day. Assigning work is an administrative function of
a supervisor, and appellant submitted no evidence to show that Mr. Fair’s assignment on
September 12, 2005 or at any other time was erroneous or abusive. An employee’s frustration
from not being permitted to work in a particular environment or to hold a particular position is
not compensable.15 This was thus not a compensable factor of employment.16
The Board also finds that Ms. Talley acted within her supervisory discretion by calling a
meeting on September 12, 2005, which was at appellant’s request, to discuss appellant’s work
assignments. A claimant’s own feeling or perception that a form of criticism by or disagreement
with a supervisor is unjustified, inconvenient or embarrassing is self-generated and does not give
rise to coverage under the Act absent evidence that the interaction was, in fact, erroneous or
abusive. This principle recognizes that a supervisor or manager must be allowed to perform his
or her duties and that, in performing such duties, employees will at times dislike the actions
taken.17 Ms. Talley, Mr. Fair and Mr. Harper explained that the meeting was held to discuss
reassigning appellant to another supervisor while her EEO claims were being investigated.
Appellant refused the reassignment and stopped work that day. There is no evidence of record to
show error on the part of the employing establishment in conducting this meeting. Appellant
therefore did not establish this as compensable.18
Appellant also generally alleged that she was improperly denied leave. She, however,
submitted no evidence regarding specific denials or to establish that the employing establishment
committed error or abuse. Appellant also alleged that Mr. Fair paged her on numerous occasions
and monitored her work closely. Mr. Fair stated that he only paged appellant when she was
away from her workstation, and the monitoring of activities of work is an administrative function
of the employer.19 As there is no evidence of error or abuse in these administrative matters, they
would not be compensable factors of employment.20
13

Marguerite J. Toland, 52 ECAB 294 (2001).

14

Cynthia R. Harrill, 55 ECAB 522 (2004).

15

Ronald K. Jablanski, 56 ECAB 616 (2005).

16

See Beverly R. Jones, 55 ECAB 411 (2004).

17

See Michael A. Deas, 53 ECAB 208 (2001).

18

Marguerite J. Toland, supra note 13.

19

Phillip L. Barnes, 55 ECAB 426 (2004).

20

Id.

6

Regarding appellant’s allegation that she was sexually harassed by Mr. Fair, while she
submitted evidence that she had filed EEO claims in that regard, grievances and/or EEO
complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred.21 Where an employee alleges harassment and cites specific incidents, the Office or
other appropriate fact finder must determine the truth of the allegations. The issue is not whether
the claimant has established harassment or discrimination under EEO Commission standards.
Rather, the issue is whether the claimant has submitted sufficient evidence to establish a factual
basis for the claim under the Act by supporting his or her allegations with probative and reliable
evidence.22 Appellant submitted no evidence that included a finding of harassment or other
probative evidence sufficient to establish a compensable work factor in this regard.23 While she
submitted witness statements, these were insufficient to establish harassment as they either only
noted her description of the claimed harassment did not describe with specificity instances of
harassment. Mr. Fair denied that he harassed appellant and explained that it was against policy
to drink water on the workroom floor. The telephone call made to appellant’s home was
regarding paperwork, and testing showed that Legionella’s bacteria was not present at the
employing establishment. An employee’s allegation that she was harassed or discriminated
against is not determinative of whether or not the alleged incident of harassment or
discrimination occurred.24 The employing establishment denied that appellant was subjected to
harassment or discrimination, and the EEO Commission made a finding of no discrimination or
retaliation. The Board therefore finds that appellant has not submitted sufficient evidence to
establish that he was harassed or discriminated against by employing establishment
management.25
Finally, the Board finds that appellant’s contentions that finding parking at the employing
establishment and having to provide identification and have her bags checked upon entering
work are not compensable. Not every situation that has some connection to employment is
considered a compensable work factor,26 and these activities would not arise in the performance
of duty as they bear no relation to appellant’s daily work activities or specially assigned duties.27
As appellant did not submit sufficient probative evidence to establish a compensable factor of
employment, she failed to establish that she sustained an emotional condition in the performance
of duty.28

21

Charles D. Edwards, supra note 9.

22

Id.

23

Pamela D. Casey, 57 ECAB ____ (Docket No. 05-1768, issued December 13, 2005).

24

See Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

25

See James E. Norris, supra note 11.

26

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

27

See Janet L. Terry, 53 ECAB 570 (2002).

28

Because appellant failed to establish a compensable employment factor, it was not necessary to consider the
medical evidence. Marlon Vera, 54 ECAB 834 (2003).

7

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2007 be affirmed.
Issued: February 13, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, CHICAGO CENTRAL
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1192
Issued: March 14, 2022

Case Submitted on the Record

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

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 23, 2021 merit decision and
a May 26, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 26, 2021 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.

(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
On December 18, 2015 appellant, then a 47-year-old sales and services distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on December 12, 2015 she
strained her abdomen when lifting a package while in the performance of duty. OWCP accepted
the claim for a ventral hernia without obstruction or gangrene. On August 15, 2016 appellant
underwent an OWCP-authorized ventral hernia repair. OWCP paid her wage-loss compensation
on the supplemental rolls for time lost from work for the period August 13 through
October 21, 2016. Appellant returned to modified light-duty employment on October 17, 2016
and to her date-of-injury employment on November 7, 2016.
In an impairment evaluation dated November 23, 2020, Dr. Blair Andrew Rhode, a Boardcertified orthopedic surgeon, discussed appellant’s history of sustaining a ventral hernia lifting a
package at work on December 12, 2015. He noted that the hernia had been surgically repaired and
that she had returned to her regular work duties. On examination, Dr. Rhode found tenderness
along the midline of the abdomen with no evidence of a recurrent hernia. Referencing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he found class 1 impairment of the abdomen using Table 6-4 on page 107,
relevant to determining impairments of the digestive tract, which yielded a default whole person
impairment of five percent. Dr. Rhode applied grade modifiers of zero for functional history,
physical examination, and clinical studies, and found a total of five percent whole person
impairment.
On February 3, 2021 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated February 3, 3021, OWCP requested that appellant submit an
impairment evaluation addressing whether she had obtained maximum medical improvement
(MMI) and providing an impairment rating in accordance with the A.M.A., Guides.
On March 18, 2021 Dr. David I. Krohn, a Board-certified internist serving as a district
medical adviser (DMA), noted that Dr. Rhode had not described any current symptoms or
attributed the tenderness to palpation along the midline to the surgical incision. Utilizing Table
6-10 on page 122 of the A.M.A., Guides, relevant to determining impairment due to abdominal
herniation, he found class 0 impairment based on physical findings showing “no palpable defect
in supporting structures of the abdominal wall and no description of slight protrusion at the site of
defect with increased abdominal pressure.” Dr. Krohn advised that Dr. Rhode had used Table 6-4,
which was relevant to impairment of the upper digestive tract, instead of Table 6 -10, the
appropriate method set forth in the A.M.A., Guides for calculating impairment due to herniations.
He found that appellant had reached MMI on December 15, 2020.

3

A.M.A., Guides (6 th ed. 2008).

2

On March 22, 2021 OWCP requested that Dr. Rhode review and discuss Dr. Krohn’s
March 14, 2021 report. It afforded him 30 days to submit the requested information. No response
was received.
By decision dated April 23, 2021, OWCP denied appellant’s schedule award claim. It
found that Dr. Krohn’s report constituted the weight of the evidence and established that she had
no permanent impairment.
On May 24, 2021 appellant requested reconsideration. She argued that Dr. Rhode had not
responded to OWCP’s March 22, 2021 letter requesting clarification of his report, as he had
retired. Appellant asserted that she had recently attended an appointment at a new facility for an
evaluation.
By decision dated May 26, 2021, OWCP denied appellant’s request for reconsideration of
the merits under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,4 and its implementing federal regulations,5 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 . FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009. 6 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF): A Contemporary Model of Disablement.8 Under the sixth edition, the evaluator
identifies the impairment class of diagnosis (CDX), which is then adjusted by grade modifiers
based on functional history (GMFH), physical examination (GMPE), and clinical studies

4

Supra note 1.

5

20 C.F.R. § 10.404.

6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id., at Chapter 3.700, Exhibit 1 (January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides (6 th ed. 2009), p.3, section 1.3.

3

(GMCS).9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
Evaluators are directed to provide reasons for their impairment choices, including the choices of
diagnoses from regional grids and calculations of modifier scores. 11
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the implementing regulations.12 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.13 Section 8107(c)(22) of FECA provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor. 14 The Secretary of Labor has made such a determination and pursuant to the
authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle,
ovary, uterus, and tongue to the schedule. 15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the p ercentage of permanent impairment
using the A.M.A., Guides.16
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In a November 23, 2020 impairment evaluation, Dr. Rhode found that appellant had
tenderness along the abdominal midline with no evidence of a recurrent hernia. Utilizing Table
6-4 on page 107, which rates upper digestive tract impairment, he found that she had five percent
whole person impairment. FECA, however, does not allow schedule awards for impairment of the
body as a whole. 17 Furthermore, a schedule award cannot be granted for a digestive impairment
or hernia because neither are listed in FECA or the regulations as a scheduled member or function
of the body. 18 The terms of FECA are specific as to the method and amount of payment of

9

Id. at 494-531.

10

Id. 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12

See G.S., Docket No. 17-1318 (issued October 11, 2017); Leroy M. Terska, 53 ECAB 247 (2001).

13

5 U.S.C. § 8107(c).

14

Id. at § 8122(c)(22).

15

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

16

Supra note 6 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

17

D.K., Docket No. 21-0303 (issued July 8, 2021); S.M., Docket No. 14-1052 (issued September 4, 2014).

18

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404; see D.C., Docket No. 14-1618 (issued December 15, 2014).

4

compensation. Neither OWCP, nor the Board, has the authority to enlarge the terms of FECA or
to make an award of benefits under terms other than those specified in the statute. 19
On March 18, 2021 Dr. Krohn found that appellant had no impairment due to her hernia
using Table 6-10 on page 122, which provides criteria for evaluating whole person impairment
due to abdominal herniation. As discussed, however, a hernia is not listed in FECA or the
regulations as a scheduled member or function of the body, and thus there is no basis for awarding
a schedule award for a hernia. 20
As the medical evidence of record is insufficient to establish permanent impairment of a
member or function of the body listed in FECA or its implementing regulations, the Board finds
that appellant has not met her burden of proof. 21
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progressio n of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his or her own motion or on application. 22
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 23
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought. 24 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.25 If the request is timely, but fails to meet at least one

19

G.S., supra note 12; S.K., Docket No. 08-848 (issued January 26, 2009).

20

Supra note 18.

21

G.S., supra note 12.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.606(b)(3); see also S.S., Docket No. 18-0647 (issued October 15, 2018).

24
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. Supra note 6 at Chapter 2.1602.4
(September 2020). Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the received date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter
2.1602.4b.
25

Id. at § 10.608(a); see also M.S., Docket No. 18-1041 (issued October 25, 2018).

5

of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board finds that OWCP properly considered appellant’s representative’s
correspondence as a request for reconsideration and not as a claim for a schedule award. 27 The
underlying issue on reconsideration is whether the medical evidence demonstrates a permanent
impairment of a scheduled member or function warranting a schedule award. Thus, the Board
must determine whether appellant presented sufficient evidence or argument demonstrating
permanent impairment sufficient to warrant a merit review pursuant to 5 U.S.C. § 8128(a).28
Appellant has not submitted evidence or raised an argument in support of her request for
reconsideration sufficient to warrant further merit review pursuant to 20 C.F.R. § 10.606(b)(3).
She did not show that OWCP erroneously applied or interpreted a specific point of law or raise a
relevant legal argument not previously considered. On reconsideration, appellant asserted that
Dr. Rhode had retired and that she had sought an impairment evaluation from another physician.
Her contention, however, is not relevant to the underlying issue of whether she sustained a
permanent impairment causally related to her accepted employment injury. 29 That is a medical
issue which must be addressed by relevant and pertinent medical evidence. 30 Thus, appellant is
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)(3). 31
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. As she did not provide relevant and pertinent new evidence,
appellant is not entitled to a merit review based on the third requirement under section
10.606(b)(3). 32
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review. 33

26

Id. at § 10.608(b); K.S., Docket No. 18-1022 (issued October 24, 2018).

27

See K.W., Docket No. 19-0553 (issued November 8, 2019); B.W., Docket No. 18-1415 (issued March 8, 2019).

28

S.W., Docket No. 18-1261 (issued February 22, 2019).

29

See A.G., Docket No. 20-0290 (issued June 24, 2020).

30

See T.V., Docket No. 19-1504 (issued January 23, 2020); S.P., Docket No. 18-1419 (issued February 27, 2019).

31

20 C.F.R. § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

32

Id. at § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

33

A.F., Docket No. 18-1154 (issued January 17, 2019); C.C., Docket No. 17-0043 (issued June 15, 2018).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied her request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26, 2021 and April 23, 2021 are affirmed.
Issued: March 14, 2022
Washington, DC

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

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

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

7