United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Garden City, NY, Employer
__________________________________________

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

Docket No. 08-1754
Issued: February 18, 2009

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 June 11, 2008 appellant timely appealed a March 21, 2008 merit decision of the
Office of Workers’ Compensation Programs which granted a schedule award for employmentrelated hearing loss and a May 27, 2008 decision denying his request for an oral hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether appellant has greater than 41 percent binaural hearing loss;
and (2) whether the Branch of Hearings & Review properly denied appellant’s April 26, 2008
request for an oral hearing.
FACTUAL HISTORY
Appellant, a 70-year-old retired aviation safety inspector, has an accepted claim for
employment-related bilateral noise-induced hearing loss, which arose on or about May 2, 2006.

In a report dated July 24, 2006, Dr. Salim A. Matar, a Board-certified otolaryngologist
and Office referral physician, diagnosed employment-related bilateral sensorineural hearing loss.
He rated appellant’s binaural impairment at 47.8 percent.
Dr. Ira D. Rothfeld, a Board-certified otolaryngologist, reviewed appellant’s case record
at the Office’s request. In a report dated September 10, 2006, he found that appellant had a
40.63 percent binaural hearing loss based on the July 24, 2006 audiogram administered in
conjunction with Dr. Matar’s examination.
Appellant filed a claim for a schedule award on October 11, 2006 and the Office
commenced payment on the award in May 2007 without having issued a formal decision.
In July 2007 the Office received a May 16, 2007 audiogram.
In a decision dated March 21, 2008, the Office granted appellant a schedule award for 41
percent binaural hearing loss. The award covered a period of 82 weeks from July 24, 2006
through February 17, 2008.1
On April 26, 2008 appellant requested an oral hearing. By decision dated May 27, 2008,
the Branch of Hearings & Review denied appellant’s hearing request because it was untimely.
Appellant was advised that he could pursue the issue by requesting reconsideration before the
district Office.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act 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.2 The Act, 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. The implementing regulations have adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.3 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).4
Utilizing the claimant’s recorded frequencies at 500, 1,000, 2,000 and 3,000 cycles per
second, the losses at each frequency are added and then averaged.5 From this average loss a
1

By the time the Office issued a decision, all payments under the schedule award had been disbursed.

2

The Act provides that, for complete, or 100 percent loss of hearing in one ear, an employee shall receive 52
weeks’ compensation. For complete loss of hearing of both ears, an employee shall receive 200 weeks’
compensation. 5 U.S.C. § 8107(c)(13) (2006).
3

20 C.F.R. § 10.404 (2008).

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

5

A.M.A., Guides 250.

2

“fence” of 25 decibels is deducted because, as the A.M.A., Guides points out, losses below 25
decibels result in no impairment in the ability to hear everyday speech under everyday
conditions.6 The remainder is then multiplied by a factor of 1.5 to arrive at the percentage of
monaural hearing loss.7 The binaural loss is determined by calculating the loss in each ear using
the formula for monaural loss. Then the lesser of the two monaural values is multiplied by five.
The resulting value is then added to the greater monaural loss and the total is divided by six to
arrive at the binaural hearing loss.8
ANALYSIS -- ISSUE 1
Appellant argues that he has a 47.8 percent hearing loss as indicated by Dr. Matar in a
July 24, 2006 report. Dr. Matar based his binaural impairment rating on Table 11-2, A.M.A.,
Guides 248-49. Although the A.M.A., Guides include Table 11-2 as an alternative method for
calculating binaural hearing impairment, the Office has not endorsed this particular method.9
The appropriate formula for determining hearing impairment under the Act is as noted above.
But while Dr. Rothfeld applied the correct formula for determining binaural hearing loss, the
data he used was not entirely consistent with the July 24, 2006 audiogram results.
In reviewing appellant’s July 24, 2006 audiogram, the frequency levels recorded at 500,
1,000, 2,000 and 3,000 hertz for the right ear reveal decibel losses of 40, 50, 60 and 65,
respectively, for a total of 215 decibels.10 This amount when divided by four results in an
average hearing loss of 53.75 decibels. The average loss of 53.75 is reduced by 25 decibels to
28.75, which when multiplied by 1.5 represents a 43.1 percent monaural hearing loss for the
right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz
revealed decibel losses of 40, 65, 65 and 75 decibels respectively, for a total of 245 decibels.11
Utilizing the above-noted formula (245 ÷ 4 = 61.25 − 25 = 36.25 x 1.5 = 54.4) results in a 54.4
percent monaural hearing loss for the left ear. Based on the 43.1 percent loss in the right ear and
the 54.4 percent loss in the left, appellant has a 44.98 percent binaural loss (43.1 x 5 = 215.5 +
54.4 = 269.9 ÷ 6 = 44.98), which is rounded to 45 percent.12 Appellant also submitted a May 16,
2007 audiogram. Assuming the equipment was properly calibrated and the results are accurate,
this latest study is consistent with a binaural hearing loss of 45 percent.
The Board finds that appellant has a 45 percent binaural hearing loss. The Office has
awarded 41 percent impairment. Therefore, appellant is entitled to an additional four percent.

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9

Id.
Id.
Id.
Id.

10

Dr. Rothfeld found a total loss of 205 decibels (35, 50, 55 and 65) with respect to appellant’s right ear.

11

According to Dr. Rothfeld, appellant’s left ear showed a total loss of 225 decibels (40, 50, 65 and 70).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4b(2)(b) (March 2005).

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The March 21, 2008 decision is modified to reflect appellant’s entitlement to a schedule award
for 45 percent binaural hearing loss.
LEGAL PRECEDENT -- ISSUE 2
Any claimant dissatisfied with a decision of the Office shall be afforded an opportunity
for an oral hearing or, in lieu thereof, a review of the written record.13 A request for either an
oral hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought.14 If the request is not made within 30 days, a
claimant is not entitled to a hearing or a review of the written record as a matter of right. Office
regulations further provide that the “claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.”15 Although a
claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority with respect to granting a hearing and the Office must exercise such discretion.16
ANALYSIS -- ISSUE 2
Appellant’s request for an oral hearing was dated and postmarked April 26, 2008, which
is more than 30 days after the Office issued its March 21, 2008 schedule award decision. The
regulations clearly specify that “[t]he hearing request must be sent within 30 days (as determined
by postmark or other carrier’s date marking) of the date of the decision for which a hearing is
sought.”17 Appellant’s request was, therefore, untimely and as such, he was not entitled to an
oral hearing as a matter of right. In its May 27, 2008 decision, the Branch of Hearings & Review
also denied appellant’s request on the grounds that the pertinent issue could be addressed by
requesting reconsideration and submitting additional evidence to the district Office. This is
considered a proper exercise of the hearing representative’s discretionary authority.18 Moreover,
there is no evidence indicating that the Branch of Hearings & Review otherwise abused its
discretion in denying appellant’s request. Accordingly, the Board finds that the Branch of
Hearings & Review properly exercised its discretion in denying appellant’s request for an oral
hearing.
CONCLUSION
Appellant has 45 percent binaural hearing loss. The Board further finds that the Branch
of Hearings & Review properly denied appellant’s April 26, 2008 hearing request.

13

20 C.F.R. § 10.615.

14

20 C.F.R. § 10.616(a).

15

Id.

16

See Herbert C. Holley, 33 ECAB 140 (1981).

17

20 C.F.R. § 10.616(a).

18

Mary B. Moss, 40 ECAB 640, 647 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the May 27, 2008 decision is affirmed and the
March 21, 2008 schedule award decision is affirmed, as modified.
Issued: February 18, 2009
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
__________________________________________
I.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Perth Amboy, NJ, Employer
__________________________________________

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

Docket No. 12-1717
Issued: February 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2012 appellant, through her attorney, filed a timely appeal from a May 14,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
benefits effective October 20, 2011 as she had no further disability due to her August 7, 2010
employment injury; and (2) whether it properly terminated her entitlement to medical benefits.
FACTUAL HISTORY
On August 7, 2010 appellant, then a 33-year-old letter carrier, filed a traumatic injury
claim alleging that on that date she sustained an injury to her head when she was hit by plaster
1

5 U.S.C. § 8101 et seq.

falling from a building. She stopped work on August 7, 2010. OWCP accepted the claim for
cervical radiculitis and paid appellant compensation for total disability beginning
September 24, 2010.
An August 18, 2010 magnetic resonance imaging (MRI) scan study of appellant’s
cervical spine showed “mild multilevel disc bulging with uncovertebral joint hypertrophy at C3C4 and C4-C5 and [a] small left paracentral disc hernation at C4-C5” without significant cord
compression or stenosis. An August 18, 2010 MRI scan study of the right shoulder showed
degenerative changes of the acromioclavicular joint with mild impingement and a suspected
partial tear of the supraspinatus tendon.
In a report dated January 5, 2011, Dr. Peter S. Staats, an attending Board-certified
anesthesiologist, discussed appellant’s complaints of right shoulder pain, migraines, dizziness
and blackouts. He noted that an MRI scan study revealed herniations of the cervical spine.
On January 18, 2011 OWCP referred appellant to Dr. Jerome D. Rosman, a Boardcertified orthopedic surgeon, for a second opinion examination. He reviewed the history of
injury to her head, neck, back and right shoulder when “she was hit on the head by falling
plaster.” Dr. Rosman diagnosed resolved radiculitis of the cervical spine. He opined that
appellant could resume her usual employment. In a February 20, 2011 addendum, Dr. Rosman
advised that she had no further objective findings of any employment-related condition or need
for further medical treatment.
On February 22, 2011 OWCP referred appellant to Dr. Kamran Tabaddor, a Boardcertified neurosurgeon, for a second opinion examination.
In a report dated February 23, 2011, Dr. Staats noted that appellant’s pain due to her
cervical disc herniation was improving and found that she could begin working limited duty.
On March 10, 2011 Dr. Tabaddor discussed appellant’s complaints of headaches, blurred
vision, dizziness and occasional blackouts after being struck on the head on August 7, 2010. He
diagnosed “[d]iffuse musculoskeletal pain following the injury she sustained on August 7, 2010”
without objective findings of a neurological impairment. Dr. Tabaddor found that appellant
could resume limited-duty employment. On April 25, 2011 he clarified that she could work
without restrictions from a neurological standpoint.
In a report dated April 6, 2011, Dr. Staats found that appellant experienced continued
pain in her cervical spine and across the mid back.” He recommended a functional capacity
evaluation and a thoracic facet block. A functional capacity evaluation, performed on April 22,
2011, noted that appellant could perform light work and that her limitations resulted primarily
from deconditioning.
On May 10, 2011 OWCP advised appellant that it proposed to terminate her
compensation and authorization for medical treatment based on the opinions of Drs. Rosman and
Tabbador that she had no residuals of her work injury.
By decision dated May 11, 2011, OWCP terminated her compensation and entitlement to
medical benefits effective that date.
2

On May 20, 2011 appellant, through her attorney, requested an oral hearing. Following a
preliminary review, on August 16, 2011, an OWCP hearing representative vacated the May 11,
2011 termination. She found that the record contained a conflict in medical opinion between the
attending physician, Dr. Staats, and OWCP referral physicians, Dr. Rosman and Dr. Tabaddor,
regarding whether appellant had continuing disability due to her work injury.
On September 8, 2011 OWCP referred appellant to Dr. Edward Krisiloff, a Boardcertified orthopedic surgeon, for an impartial medical examination. The record contains an
MEO23 report stating that a referee was scheduled with Dr. Krisiloff. The record also contains a
screen showing that OWCP bypassed Dr. Cornelius Stove, a Board-certified orthopedic surgeon,
as impartial medical examiner because he did not accept OWCP referrals.
In a report dated September 20, 2011, Dr. Krisiloff discussed appellant’s work injury and
reviewed the medical evidence of record. He diagnosed cervical radiculitis due to the
August 2010 work injury. Dr. Krisiloff related:
“I would state that by December 8, 2010 [appellant] had recovered and she was
capable of returning to work. Physical examination at this time shows no
objective findings in the neck, shoulder or back. MRI [scan] evaluation of the
cervical spine after the injury revealed a normal curvature to the spine, which is
indicative of the absence of muscle spasm. [Appellant] did have some bulging of
the discs in her neck which could certainly be physiologic and these were noted
over multiple levels. The disc herniation noted at C4[-]C5 was toward the left
side, where the claimant was not symptomatic. Joint hypertrophy in the neck is
certainly not on the basis of a traumatic injury. The MRI [scan] study of the
shoulder showed degenerative changes in the AC [acromioclavicular] joint, which
is again not related to her accident. There was some increased signal from the
supraspinatus tendon which was interpreted as a possible partial thickness tear.
However, no definite full thickness injury was noted.”
Dr. Krisiloff opined that appellant’s cervical radiculitis had resolved and that she had no
further employment-related disability.
By decision dated October 20, 2011, OWCP terminated appellant’s compensation and
authorization for medical treatment effective that date. It found that Dr. Krisiloff’s opinion
represented the weight of the evidence and showed that she had no residuals of her work injury.
On October 25, 2011 appellant, through her attorney, requested an oral hearing. At the
hearing, held on February 28, 2012, her attorney challenged the selection of Dr. Krisiloff as
impartial medical examiner and argued that his report was not rationalized. Counsel argued that
Dr. Krisiloff did not explain the effect of positive diagnostic evidence of a tear of the
supraspinatus tendon in the right shoulder and a disc herniation at C4-5.
In a report dated February 9, 2012, Dr. Roger Lallemand, Jr., a Board-certified
anesthesiologist, related that he initially treated appellant on August 10, 2010 for back and neck
pain due to an August 7, 2010 employment injury. He diagnosed low back pain, lumbar and
cervical radiculitis and chronic pain syndrome. Dr. Lallemand related that appellant’s neck pain

3

radiating into her hands causing severe pain and numbness and that her back pain at L4-5 and
L5-S1 radiated into her legs from bulging discs. He further noted that she had dizzy spells and
depression. Dr. Lallemand stated:
“The cervical and thoracic spine muscles are closely related and intermingled.
These muscles span the length of both the cervical and thoracic spine.
[Appellant’s] injuries and associated symptoms to her head/neck correlate to her
current injuries to her thoracic spine. As such I am recommending to extend her
disability.”
In a report dated February 13, 2012, Dr. Lallemand discussed appellant’s complaints of
neck and back pain. He diagnosed lumbar radiculitis, cervical radiculitis and myalgia.
By decision dated May 14, 2012, an OWCP hearing representative affirmed the
October 20, 2011 decision.
On appeal appellant’s attorney argued that Dr. Krisiloff was not properly selected as the
impartial medical examiner. He maintains that OWCP did not provide its reason for bypassing
Dr. Stove. Counsel also argues that Dr. Krisiloff did not adequately address the positive
objective findings.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.2 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
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.5 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to 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.6 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving

2

Elaine Sneed, 56 ECAB 373 (2005).

3

Fred Reese, 56 ECAB 568 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

5 U.S.C. § 8123(a).

6

20 C.F.R. § 10.321.

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the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained cervical radiculitis due to an August 7, 2010
employment injury. It paid her compensation for disability beginning September 24, 2010.
OWCP properly determined that a conflict in medical opinion existed between Dr. Staats,
appellant’s attending physician, and Dr. Rosman and Dr. Tabaddor, who provided second
opinion examinations, regarding whether she had continuing employment-related disability. It
referred her to Dr. Krisiloff for an impartial medical examination.
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.8 The Board finds that the opinion of Dr. Krisiloff, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
and based on a proper factual and medical history. Dr. Krisiloff accurately summarized the
relevant medical evidence, provided detailed findings on examination and reached conclusions
about appellant’s condition which comported with his findings.9 In a report dated September 20,
2011, he reviewed the medical evidence of record, including the results of diagnostic studies. On
examination, Dr. Krisiloff found no objective findings of abnormalities of the neck, shoulder or
back. He advised that bulging cervical discs on MRI scan study were physiologic and noted that
an MRI scan study obtained after the injury did not indicate muscle spasm. Dr. Krisiloff further
indicated that the cervical disc hernation at C4-5 was on the left side and that appellant did not
have symptoms on the left side. He advised that degenerative changes in the AC joint on MRI
scan study of the shoulder were not due to the work injury and that while findings showed a
possible partial thickness tear there was no full thickness injury. Dr. Krisiloff concluded that
appellant had no residuals of her cervical radiculitis. He provided rationale for his opinion by
explaining that her examination did not show objective findings of continued radiculitis. As
Dr. Krisiloff’s report is detailed, well rationalized and based on a proper factual background, his
opinion is entitled to the special weight accorded an impartial medical examiner.10 OWCP thus
met its burden of proof to terminate appellant’s compensation benefits for the accepted condition
of cervical radiculitis.
The remaining medical evidence submitted prior to OWCP’s termination of
compensation is insufficient to establish that appellant had any further disability due to her
August 7, 2010 injury. In a report dated February 9, 2012, Dr. Lallemand stated that he treated
appellant on August 10, 2010 for neck and low back pain after an August 7, 2010 work injury.
He diagnosed low back pain, lumbar and cervical radiculitis and chronic pain syndrome.
7

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

8

J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

9

See Manuel Gill, 52 ECAB 282 (2001).

10

See J.M., supra note 8; Katheryn E. Demarsh, 56 ECAB 677 (2005).

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Dr. Lallemand related that appellant’s neck and head symptoms were related to her thoracic
spine injuries. He found that she remained disabled. Dr. Lallemand, however, did not directly
relate appellant’s disability to her accepted employment injury and attributed her disability to a
thoracic spine condition. Consequently, his report is of diminished probative value.
On February 13, 2012 Dr. Lallemand reviewed appellant’s complaints of neck and back
pain and diagnosed lumbar radiculitis, cervical radiculitis and myalgia. As he did not address the
cause of her condition or whether she was disabled from employment, his report is of little
probative value.11
On appeal appellant’s attorney contends that OWCP improperly selected Dr. Krisiloff as
the impartial medical examiner. He argues that it did not provide a reason or bypassing
Dr. Stove. OWCP has an obligation to verify that it selected Dr. Krisiloff in a fair and unbiased
manner.12 The record contains an MEO23 stating that appellant’s referee appointment was
scheduled with Dr. Krisiloff. OWCP further provided a screen shot showing that Dr. Stove was
bypassed because he did not accept its patients. There is no evidence that it improperly bypassed
Dr. Stove.13
The Board further finds that OWCP provided documentation regarding
Dr. Krisiloff’s selection.14
Appellant’s attorney also argues that Dr. Krisiloff did not address the positive findings on
diagnostic studies. Dr. Krisiloff, however, reviewed and discussed the results of the diagnostic
studies.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.15 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.16
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Krisiloff, the impartial medical examiner, who found that appellant had no
11

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of little probative value on the issue of causal
relationship); Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
12

See M.A., Docket No. 07-1344 (issued February 19, 2008).

13

See K.S., Docket No. 12-184 (issued September 11, 2012).

14

Id.

15

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

16

Id.

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residuals of her accepted condition. Dr. Krisiloff explained that, based on his physical
examination and the diagnostic studies, she had no further objective evidence of cervical
radiculitis. As his opinion is detailed and well rationalized, it is entitled to the special weight
accorded an impartial medical examiner and establishes that appellant has no further residuals of
her accepted employment injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
entitlement to medical benefits effective October 20, 2011 as she had no further disability or
condition causally related to her August 7, 2010 employment injury;
ORDER
IT IS HEREBY ORDERED THAT the May 14, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Chamblee, GA, Employer
__________________________________________

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Appearances:
Thomas P. DeBerry, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1569
Issued: February 17, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 1, 2008 nonmerit decision denying her request for merit
review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision. The last merit decision in this case was the Office’s November 21, 2007
decision denying appellant’s traumatic injury claim. Because more than one year has elapsed
between the Office’s last merit decision and the filing of this appeal, the Board lacks jurisdiction
to review the merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On July 19, 2005 appellant, a 52-year-old customer service representative, filed a
traumatic injury claim alleging that she sustained injuries to her ankle, knee, arm and hand on her
way to work. She stated that, after exiting the bus near her workplace, she walked to the
employing establishment, where she fell prior to entering the guard gate.
In a decision dated September 7, 2005, the Office denied appellant’s claim on the
grounds that the evidence did not establish that she sustained an injury in the performance of
duty. On February 21, 2006 appellant requested reconsideration.
The record contains a March 3, 2006 memorandum of conference between the Office
claims examiner and Tonua Johnson of the employing establishment. Ms. Johnson stated that
appellant fell between the Marta bus stop, which was on city property and the employing
establishment guard station, which was in front of the building to which appellant was assigned.
She indicated that the sidewalk on which appellant fell was not owned or operated by the Federal
Government.
By decision dated March 7, 2006, the Office denied modification of its September 7,
2005 decision on the grounds appellant had failed to establish that she was injured in the
performance of duty. It found that the evidence did not establish that she was injured on
property that was owned or operated by the employing establishment.
On April 26, 2006 appellant again requested reconsideration.
decision, the Office denied her request for merit review.

In a May 11, 2006

On September 6, 2007 appellant, through her representative, requested reconsideration,
contending that appellant’s claim should be covered by the proximity rule. The representative
argued that, as employees were encouraged to ride the public transport system, and there was no
bus stop inside the gate house, the premises should be extended constructively to encompass the
area in front of the guard gate where appellant fell.
By decision dated November 21, 2007, the Office denied modification of its previous
decisions. The claims examiner found that appellant had not provided any evidence that the
sidewalk on which she was injured was not also used by other members of the public or that it
was reserved exclusively for employees of her agency for the convenience of her employer.
Therefore, the injury was still considered an ordinary, nonemployment hazard of the journey
itself, shared by all city bus travelers and pedestrians, and did not fall under the “special
circumstances” covered by the proximity rule.
On November 19, 2008 appellant, through her representative, requested reconsideration.
He noted that appellant fell within five feet of the employing establishment’s gate house, which
was used exclusively for employees and persons having business with the employing
establishment. The representative contended that there was no evidence of record supporting the
employing establishment’s assertion that the sidewalk on which appellant fell was not owned or
operated by the Federal Government. He also argued that the property maps submitted in
support of the reconsideration request established that the sidewalk is on property owned by the

2

employing establishment. The representative stated that the area surrounding the employing
establishment was maintained by the Federal Government, by virtue of the fact that other
buildings in the compound are leased by General Services Administration (GSA) to
nongovernment entities.
Appellant submitted Marta bus schedules for the area surrounding the employing
establishment, a parcel map of buildings and streets surrounding the employing establishment
and a satellite map of Chamblee Tucker Road identifying the location of the employing
establishment.
By decision dated December 1, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant merit review. It
found that the representative’s argument was cumulative and the documents submitted in support
of the request were irrelevant.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.2 To be entitled to a merit review of an Office 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.3 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.4 The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.5
ANALYSIS
Appellant’s November 19, 2008 request for reconsideration did not demonstrate that the
Office erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by the Office. Consequently,
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)(2).

1

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [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).
2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.607(a).

4

Id. at § 10.608(b).

5

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

In support of her request for reconsideration, appellant submitted Marta bus schedules for
the area surrounding the employing establishment; a parcel map and a satellite map of Chamblee
Tucker Road identifying the location of the employing establishment and gatehouse. The Board
finds that these documents are not relevant to the issue decided by the Office in its November 21,
2007 decision, namely whether the sidewalk on which appellant fell was used by other members
of the public as well as employees of the employing establishment.
Appellant’s representative contends that the maps submitted show that the gatehouse and
adjacent sidewalk were owned by the same entity that owned the employing establishment.
However, ownership is not determinative in this case, as the documents provided do not show
who owns the property. It is entirely possible that the portion of the property on which the
employing establishment is located, including the gate house, was leased to the employing
establishment, but that the driveway and sidewalk outside the gate house were not so leased and,
therefore, were not within its control. As the maps and bus schedules do not purport to establish
exclusive ownership or control by the employing establishment, they are irrelevant.6 Further, as
the Office previously considered evidence regarding the proximity of the gatehouse to the
location of the fall, the documents are also cumulative and duplicative in nature.7 The Board
finds that the documents submitted do not constitute relevant and pertinent new evidence not
previously considered by the Office.8 Therefore, the Office properly determined that this
evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her November 19, 2008 request for reconsideration.
On appeal, counsel argues that appellant was denied due process by the Office’s arbitrary
and capricious denial of her claim. As noted, the Board does not have jurisdiction over the
merits of this case, but rather is limited to an analysis of whether appellant has submitted
sufficient evidence to reopen her case for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

6

Counsel’s argument that coverage should be conferred because the property was leased by GSA for other
federal agencies is without merit. His statement does not constitute evidence in this case; nor would the fact that
GSA leased the property establish that the area was set aside for the exclusive use of the employing establishment
employees.
7

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
8

See Susan A. Filkins, 57 ECAB 630 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the December 1, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 16-1192
Issued: December 6, 2016

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 May 15, 2016 appellant filed a timely appeal from a February 23, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left knee injury
causally related to an accepted January 27, 2015 employment incident.
On appeal appellant contends that he has unpaid medical bills and unpaid sick days and
that he did not receive a letter requesting information until after its submission date.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2015 appellant, then a 52-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 27, 2015 he sustained left knee patellar
tendinitis while walking up and down steps and hills to deliver mail. He stopped work on
January 28, 2015.
Dr. Robert C. Smith, a Board-certified internist, initially treated appellant in the hospital
and indicated in emergency room records dated January 28, 2015 that appellant complained of
left knee pain since yesterday. He also noted that appellant had a work-related left knee injury
and that he “walked a lot.” Upon examination, Dr. Smith observed tenderness in the anterior left
knee. He diagnosed left knee patellar tendinitis.
In a January 28, 2015 diagnostic examination report, Dr. Anil K. Bhardwaj, a Boardcertified anesthesiologist, noted no findings of fracture or significant arthritic changes in
appellant’s left knee.
A patient incident report dated February 2, 2015 indicated that on January 27, 2015
around 3:00 p.m. appellant experienced extreme pain in the left knee when walking up and down
stairs, up and down hills, and across snow covered grass.
Jean Pohlot, a certified nurse practitioner, related in February 2, 2015 examination notes
that appellant had been referred for physical therapy for his left knee tendinitis/sprain. She
related that he could return to work as of February 3, 2015 with restrictions of no excessive
walking greater than 60 minutes on uneven terrain for extended periods of time.
In a February 5, 2015 statement, Mark Mizerak, appellant’s supervisor, controverted
appellant’s claim for workers’ compensation because appellant had just been shadowing a carrier
during his second day of training.
Appellant received medical treatment from Dr. Thomas Brockmeyer, a Board-certified
orthopedic surgeon, who related in a February 9, 2015 narrative report that appellant had just
begun working for the employing establishment and was undergoing training on January 26
and 27, 2015. Dr. Brockmeyer explained that for the previous two weeks appellant had been
engaged in driving tests as part of his training and that on January 26 and 27, 2015 he began
carrying mail up and down hills. Appellant described that towards the end of the first day and on
the second day he developed significant left knee pain. Dr. Brockmeyer reviewed appellant’s
history and conducted an examination. He reported tenderness and soft tissue swelling anterior
to the left knee infrapatellar tendon. Lachman’s and McMurray’s tests were both negative.
Dr. Brockmeyer opined that appellant had left infrapatellar tendinitis from sudden increase in
work activities. He indicated that appellant should be on light duty for two weeks but could
likely return to full duty thereafter.
Ms. Pohlot continued to treat appellant and in progress notes dated February 9 to
March 2, 2015 indicated that appellant had a work-related overuse injury. She related that his
left knee pain had improved since the last visit and that physical therapy was helping.
Ms. Pohlot reported that examination of the lower extremities revealed no swelling, redness, or

2

tenderness in the left knee. She diagnosed left knee tendinitis and sprain. In a March 2, 2015
note, Ms. Pohlot opined that appellant was able to return to full duty as of March 2, 2015.
Appellant was treated again by Dr. Brockmeyer who noted in a February 23, 2015 report
that appellant’s condition continued to improve. He related that appellant recalled a “steppingin-a-hole episode on the morning of January 27,” but otherwise no other abnormal history. Upon
examination, Dr. Brockmeyer observed no significant synovitis or effusion.
In a letter dated April 10, 2015, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he respond to a questionnaire in order to
substantiate that the January 27, 2015 incident occurred as alleged. Appellant was afforded 30
days to provide additional medical evidence to demonstrate that he sustained a diagnosed
condition as a result of the January 27, 2015 incident. He did not reply to the questionnaire or
submit any additional evidence to the record.
OWCP denied appellant’s claim in a decision dated May 13, 2015. It found that the
factual evidence failed to demonstrate that appellant experienced the January 27, 2015 incident
as he described and that the medical evidence did not establish that he sustained a diagnosed
condition as a result of the alleged incident.
On June 1, 2015 OWCP received appellant’s request for a telephone hearing, before an
OWCP hearing representative. The hearing was held on January 6, 2016. Appellant stated that
on January 27, 2015 he was power walking through the snow when his leg went into a hole and
he wrenched his knee. He indicated that he did not write that description on the Form CA-1
because he was only mimicking what was given him at the hospital and asserted that he
described the employment incident as best he could on the claim form. Appellant explained that
after he wrenched his left knee, it got progressively worse when he delivered mail and had to
walk up and down steps, hills, and across snow. He stated that he had three days of on-the-job
training for delivering mail on January 26, 27, and 28, 2015. Appellant mentioned that he
completed a revised Form CA-1. He described the medical treatment that he received and noted
that he was diagnosed with a knee sprain and tendinitis. Appellant indicated that his left knee
pain had not resolved but the pain was sporadic.
In a handwritten January 20, 2016 statement, appellant explained that he requested that
his supervisor sign a witness statement regarding the January 27, 2015 employment incident. He
also asked his doctor’s office for a narrative medical report and provided them with OWCP’s
development letter. Appellant resubmitted Ms. Pohlot’s progress notes dated February 2 to
March 2, 2015 that were co-signed with an illegible signature.
By decision dated February 23, 2016, an OWCP hearing representative affirmed the
May 13, 2015 denial decision with modification. He determined that the factual evidence
sufficiently supported that the January 27, 2015 employment incident occurred as alleged and
that appellant was diagnosed with left knee infrapatellar tendinitis. However, the hearing
representative denied appellant’s claim because the medical evidence of record was insufficient
to establish that his left knee condition was causally related to the accepted incident.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the 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.11

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

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

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

4

ANALYSIS
Appellant alleged that on January 27, 2015 he sustained a left knee injury when he was in
training to deliver mail, stepped in hole, wrenched his knee, and continued to walk up and down
stairs and hills. OWCP accepted that the January 27, 2015 incident occurred as alleged and that
he was diagnosed with left knee tendinitis. It denied appellant’s claim because the medical
evidence of record failed to establish that his left knee condition was causally related to the
accepted incident. The Board finds that the medical evidence of record is insufficient to
establish that appellant sustained a traumatic injury causally related to the January 27, 2015
employment incident.
Dr. Brockmeyer treated appellant and in reports dated February 9 and 23, 2015 described
that on January 26 and 27, 2015 appellant was carrying mail up and down hills as part of his
training with the employing establishment. He related that appellant began to experience
significant left knee pain toward the end of the first day. Dr. Brockmeyer reviewed appellant’s
history and conducted an examination. He reported tenderness and soft tissue swelling anterior
to the left knee infrapatellar tendon. Dr. Brockmeyer opined that appellant had left infrapatellar
tendinitis from his sudden increase in work activities. In a February 23, 2015 note, he related
that appellant had a “stepping-in-a-hole episode on the morning of January 27” but otherwise, no
other abnormal history. The Board finds that Dr. Brockmeyer’s reports are insufficient to
establish a causal relationship between appellant’s left knee condition and the January 27, 2015
incident. Dr. Brockmeyer initially related appellant’s condition to a sudden increase in work
activities and later described the January 27, 2015 work events. The Board has held that
inconsistent and contradictory reports from the same physician lack probative value and cannot
constitute competent medical evidence.12 An award of compensation may not be based on
surmise, conjecture, speculation or upon appellant’s own belief that there is causal relationship
between his claimed condition and his employment.13 The Board finds that Dr. Brockmeyer did
not provide a rationalized medical explanation as to how any of appellant’s employment
activities on January 27, 2015 would have physiologically caused the diagnosed condition.14
Accordingly, Dr. Brockmeyer’s reports fail to establish causal relationship.
Appellant was also treated in the emergency room. In hospital records dated January 28,
2015, Dr. Smith opined that appellant suffered a work-related left knee injury. He observed
tenderness in the anterior left knee upon examination and diagnosed left knee patellar tendinitis.
Although Dr. Smith described a work-related left knee injury, such generalized statements do not
establish causal relationship.15 The Board has held that a physician must provide a narrative
description of the identified employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to appellant’s diagnosed medical
condition.16 Dr. Smith did not describe the January 27, 2015 employment incident nor did he
12

K.S., Docket No. 11-2071 (issued April 17, 2012); Cleona M. Simmons, 38 ECAB 814 (1987).

13

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

14

See B.B., Docket No. 16-0304 (issued June 1, 2016).

15

See L.M., Docket No. 16-0188 (issued March 24, 2016).

16

John W. Montoya, 54 ECAB 306 (2003).

5

provide a medical opinion on causal relationship. Likewise, in Dr. Anil K. Bhardwaj’s
January 28, 2015 diagnostic examination report, he indicated that he examined appellant for a
work-related left knee injury but provided no additional explanation or description of the
January 27, 2015 incident.17 These reports, therefore, are insufficient to establish appellant’s
claim.
The examination notes dated February 2 to March 2, 2015 by Ms. Pohlot, a nurse
practitioner, are also insufficient to establish appellant’s traumatic injury claim because nurse
practitioners are not considered physicians as defined under FECA and their medical opinions
regarding diagnosis and causal relationship are of no probative medical value.18 While appellant
resubmitted those progress reports co-signed with an ineligible signature, reports that are
unsigned or that bear illegible signatures cannot be considered as probative medical evidence
because they lack proper identification.19 These reports, therefore, are insufficient to establish
appellant’s claim.
On appeal, appellant alleges that he received OWCP’s letter requesting additional
information after the deadline for submission date. The Board notes that the April 10, 2015
development letter was mailed to appellant’s last known address. In the absence of evidence to
the contrary, a letter properly addressed and mailed in the due course of business is presumed to
have arrived at the mailing address in due course. This is known as the mailbox rule.20
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
injury causally related to an accepted January 27, 2015 employment incident.

17

Supra note 14.

18

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005). Section 8102(2) of FECA provides that the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law.
19

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

20

See James A. Gray, 54 ECAB 277 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2016
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kearny, NJ,
Employer
__________________________________________

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

Docket No. 12-1084
Issued: October 22, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 20, 2012 appellant, through her attorney, filed a timely appeal from a
December 7, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent right arm impairment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated February 27, 2003,
the Board set aside OWCP decisions dated August 1 and March 20, 2002 and remanded the case

1

5 U.S.C. § 8101 et seq.

for further development.2 The Board found that appellant had submitted sufficient evidence
between her diagnosed carpal tunnel syndrome and repetitive work activity. On January 12,
2005 OWCP accepted the claim for bilateral carpal tunnel syndrome.
In a report dated August 28, 2008, Dr. Arthur Becan, an orthopedic surgeon, opined that
under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) appellant had a 46 percent permanent impairment to
the right arm and a 52 percent impairment to the left arm. OWCP referred the case to OWCP’s
medical adviser for review. In a report dated March 9, 2009, the medical adviser opined that the
ratings by Dr. Becan seemed way out of proportion to an examination performed by Dr. Marc
Urquhart, a Board-certified orthopedic surgeon, in a second opinion evaluation on
December 13, 2006.3
OWCP found that a conflict in medical opinion was created.4 Appellant was referred to
Dr. Andrew Carollo, a Board-certified orthopedic surgeon, selected as the impartial medical
referee. In a report dated November 25, 2009, Dr. Carollo reviewed a history and provided
results on examination. He opined that appellant’s carpal tunnel syndrome had resolved and she
had no permanent impairment. OWCP’s medical adviser submitted a January 12, 2010 report
noting Dr. Carollo’s findings. He agreed that appellant did not have a permanent impairment to
the arms.
By decision dated March 2, 2010, OWCP determined that appellant was not entitled to a
schedule award. Appellant requested a hearing before an OWCP hearing representative, and
submitted a June 21, 2010 report from Dr. Becan, who indicated that he was updating his
impairment rating based on the sixth edition of the A.M.A., Guides. Dr. Becan found that she
had a seven percent bilateral arm impairment, based on Table 15-23 of the A.M.A., Guides.
In a decision dated September 8, 2010, OWCP’s hearing representative set aside the
March 2, 2010 decision. The hearing representative found the case should be referred to an
OWCP medical adviser for review. In a report dated October 3, 2010, the medical adviser stated
that Dr. Becan’s report was based on his August 28, 2008 examination, while Dr. Carollo was a
later examination and appellant had no residuals of the employment injury.
By decision dated November 15, 2010, OWCP determined that appellant was not entitled
to a schedule award. Appellant requested a hearing before an OWCP hearing representative. In
a decision dated March 8, 2011, the hearing representative set aside the November 15, 2010
decision. The hearing representative found that there had been no conflict in medical opinion at
the time of the referral to Dr. Carollo, but a conflict arose between Dr. Becan and Dr. Carollo.
The case was remanded for resolution of the conflict.
2

Docket No. 03-183 (issued March 27, 2003).

3

Dr. Urquhart did not provide an opinion as to a permanent impairment in the December 13, 2006 report.

4

FECA provides that, if there is a 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 the
examination. 5 U.S.C. § 8123(a). 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. 20 C.F.R. § 10.321 (1999).

2

OWCP referred appellant to Dr. Michael Wujciak, a Board-certified orthopedic surgeon
selected as a referee physician. In a report dated May 24, 2011, Dr. Wujciak provided a history
and results on examination. He diagnosed status post carpal tunnel syndrome with minimal
residual impairment on the right and no residual impairment on the left. Dr. Wujciak referred to
Table 15-23 and for the right arm found grade modifiers of “0 to 1” for test findings, “1 to 2” for
history, with 0 for physical findings. He stated that this “leads to a total grade modifier of 1 to 3
and essentially a grade modifier of 1 leading to a determination of right upper extremity
impairment of 1.” For the left arm, Dr. Wujciak found no permanent impairment. He opined
that the date of maximum medical improvement was July 10, 2006, when appellant was returned
to full duty.
In a report dated June 9, 2011, an OWCP medical adviser noted that Dr. Wujciak found a
grade modifier of 0 for test findings and physical findings. He used a grade modifier of 2 for
history and stated that there was no functional score. According to the medical adviser, the
default value was two percent and the date of maximum medical improvement was
July 10, 2006.
By decision dated June 24, 2011, OWCP issued a schedule award for a two percent
permanent impairment to the right arm. The period of the award was 6.24 weeks commencing
July 10, 2006.
Appellant requested a hearing before an OWCP hearing representative, which was held
on October 12, 2011.
By decision dated December 7, 2011, OWCP’s hearing representative affirmed the
June 24, 2011 decision.5 The hearing representative found that OWCP’s medical adviser
represented the weight of the evidence.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.6 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.7 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.8
5

The Board notes that OWCP issued an October 25, 2011 decision with respect to a left arm impairment.
Appellant has pursued appeal rights with respect to this decision and the issue is not before the Board on this appeal.
6

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
7

A. George Lampo, 45 ECAB 441 (1994).

8

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

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Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.10
ANALYSIS
OWCP initially found a conflict under 5 U.S.C. § 8123(a)11 in the medical evidence prior
to the referral to Dr. Carollo. As properly noted by OWCP’s hearing representative in the
March 8, 2011 decision, there was no conflict with respect to permanent impairment. The
medical adviser noted only that Dr. Becan’s findings seemed “out of proportion” to the findings
of a report over two years earlier from a second opinion physician, Dr. Urquhart. Neither the
medical adviser nor Dr. Urquhart provided an opinion as to permanent impairment. Therefore
there was no disagreement with Dr. Becan on the issue. Dr. Carollo was therefore a second
opinion physician.12
Dr. Becan found that appellant had a seven percent arm impairment, while Dr. Carollo
found she did not have an employment-related permanent impairment. To resolve the conflict
between Dr. Becan and Dr. Carollo as to a permanent impairment under the sixth edition of the
A.M.A., Guides, Dr. Wujciak was selected as a referee physician. The Board notes that
Dr. Wujciak did not provide a rationalized medical opinion resolving the issue. Dr. Wujciak
referred to grade modifiers of “0 to 1” and “1 to 2” in applying Table 15-23, without further
explanation. There is no provision under Table 15-23 for a range of grade modifiers.
Dr. Wujciak must choose one of the four grade modifiers for test findings, history and physical
findings.13 Based on those findings, a final grade modifier is determined. In addition, a
functional scale is applied to the final grade modifier to determine the impairment. Dr. Wujciak
did not provide a functional scale modification or any explanation on this issue.
OWCP referred the evidence to the medical adviser, and the hearing representative found
that the medical adviser represented the weight of the medical evidence. When the case is
referred to a referee physician to resolve a conflict, it is the referee, not the medical adviser, who
must resolve the conflict.14 As the Board noted in C.K., the weight of the evidence cannot rest

9

A.M.A., Guides 448-450.

10

Id.

11

Supra note 4.

12

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

13

A.M.A., Guides 449, Table 15-23.

14

See W.C., Docket No. 11-659 (issued March 22, 2012); R.C., Docket No. 11-1523 (issued February 3, 2012);
Thomas J. Fragale, 55 ECAB 619 (2004).

4

with any physician other than the referee physician.15 The medical adviser may verify and
confirm correct application of the A.M.A., Guides, but cannot resolve a conflict.16
In this case, OWCP should have advised Dr. Wujciak of the deficiencies in his report and
requested a supplemental report. The case will be remanded to OWCP for proper resolution of
the conflict. After such further development as OWCP deems necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and must be remanded to OWCP
for further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 7, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: October 22, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

15

Docket No. 11-2094 (issued July 2, 2012); Charles H. Miller, Docket No. 93-2000 (issued March 22, 1995).

16

L.R., Docket No. 11-1397 (issued January 6, 2012).

5


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

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

Docket No. 09-1217
Issued: March 22, 2010

Case Submitted on the Record

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

JURISDICTION
On April 6, 2009 appellant, through her representative, filed a timely appeal from the
March 19, 2009 nonmerit decision of the Office of Workers’ Compensation Programs, which
denied her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the Office’s March 19, 2009 decision.
ISSUE
The issue is whether the Office properly denied appellant’s March 1, 2009 request for
reconsideration.
FACTUAL HISTORY
On the prior appeal,1 the Board found that the Office properly terminated appellant’s
compensation for the accepted medical conditions of left hand contusion, left wrist sprain and
reflex sympathetic dystrophy (RSD). The Board found that the May 12, 2007 opinion of
1

Docket No. 08-1461 (issued December 17, 2008).

Dr. Gerald S. Steiman, a Board-certified neurologist and Office referral physician, stood as the
weight of the medical opinion evidence. Dr. Steiman explained in detail that appellant exhibited
none of the 11 objective criteria of RSD, as stated in the American Medical Association, Guides
to the Evaluation of Permanent Impairment (5th ed. 2001).
The Board further found that subsequently submitted medical evidence from appellant’s
physicians was of diminished or little probative value because it either did not diagnose RSD or
did not adequately explain what current findings supported such a diagnosis or how appellant
met the objective criteria for a formal diagnosis of RSD.2
On March 1, 2009 appellant requested reconsideration. She submitted the January 21,
2009 report of Dr. Ann M. McLean, an osteopath, who related appellant’s history of injury and
current complaints. Dr. McLean stated that she did have Dr. Steiman’s report, indicating
appellant did not have RSD. After describing her findings on physical examination, she reported
an impression of left upper extremity pain. “I would agree that based on today’s examination
that this does not meet criteria for [RSD]. Etiologies could include cervical radiculopathy or
compressive neuropathy of the left upper extremity or soft tissue injury causing pain, although
that would be unusual for the pain to continue since 1999.” Dr. McLean recommended a
magnetic resonance imaging (MRI) scan of the cervical spine to evaluate for an etiology. She
stated that she was going to schedule an electromyogram (EMG), and if that workup was
negative, she would consider a bone scan for further evaluation of RSD. Finally, Dr. McLean
stated that she would like to review appellant’s records, especially the previous workup,
including EMG, MRI scan and a previous neurologic examination in which RSD was diagnosed.
“I am uncertain if she initially had RSD symptoms or signs at the time of that diagnosis.”
In a decision dated March 19, 2009, the Office denied appellant’s request for
reconsideration. It found Dr. McLean’s report to be cumulative and repetitive of earlier medical
opinions stating that appellant no longer had RSD. The Office therefore considered the report as
presenting no new evidence.
LEGAL PRECEDENT
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.3 The employee shall exercise this right through a request to
the district Office.4
An employee (or representative) seeking reconsideration should send the request for
reconsideration to the address as instructed by the Office in the final decision. The request for
reconsideration, including all supporting documents, must be in writing and must set forth
2

The facts of this case, as set out in the Board’s prior decision, are hereby incorporated by reference. On
December 7, 1999 appellant, a casual clerk, sustained a traumatic injury when her left hand was caught between two
pie carts. The Office accepted her claim for left hand contusion, left wrist sprain and RSD. Appellant received
compensation for temporary total disability on the periodic rolls.
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605.

2

arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.5
A request for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.6 The one-year period begins on the date of the original
decision. However, a right to reconsideration within one year accompanies any subsequent merit
decision on the issues. This includes any hearing or review of the written record decision, any
denial of modification following reconsideration, any merit decision by the Board and any merit
decision following action by the Board, but does not include prerecoupment hearing decisions.7
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence or argument that meets at least one of the three standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the request
for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
Appellant made her March 1, 2009 request for reconsideration within one year of the
Board’s December 17, 2008 merit decision affirming the Office’s termination of compensation.
Her request is therefore timely. The question is whether appellant’s request meets at least one of
the three criteria for obtaining a merit review of her case.
In her March 1, 2009 request for reconsideration, appellant did not attempt to show that
the Office erroneously applied or interpreted a specific point of law, nor did she advance a
relevant legal argument not previously considered by the Office. Instead, she submitted a
January 21, 2009 report from Dr. McLean, an osteopath. The question therefore becomes
whether this evidence constitutes relevant and pertinent new evidence not previously considered
by the Office.
Dr. McLean agreed with Dr. Steiman that appellant did not meet the criteria for RSD.
This only reinforced Dr. Steiman’s opinion and the Office’s termination of compensation for
RSD. So the Office was right that Dr. McLean’s opinion offered nothing new. Dr. McLean
speculated what might be causing appellant’s pain and recommended further studies and a
review of her record. But this in no way supports that appellant continues to suffer from a firmly
diagnosed medical condition causally related to the December 7, 1999 incident at work.

5

Id. at § 10.606.

6

Id. at § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.b(1) (January 2004)
(emphasis deleted).
8

20 C.F.R. § 10.608.

3

The Board therefore finds that the evidence appellant submitted to support her request for
reconsideration does not constitute relevant and pertinent new evidence not previously
considered by the Office. Because appellant’s request did not meet at least one of the three
criteria for obtaining a merit review of her case, the Board finds that the Office properly denied
appellant’s request for reconsideration. The Board affirms the Office’s March 19, 2009 decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s March 1, 2009 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0157
Issued: April 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 31, 2016 appellant, through counsel, filed a timely appeal from an August 25,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days have elapsed since the last merit decision, dated September 26, 2008, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly found appellant’s reconsideration request was
untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On January 14, 2005 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right knee in the performance of duty on
January 4, 2005, when her right leg buckled. OWCP accepted the claim for contusion and
sprain/strain of the right knee and leg. Appellant stopped work and received wage-loss
compensation commencing February 22, 2005.
In addition to the present case, the record indicates that appellant had five prior claims.
The claims are: (1) a December 15, 1988 claim accepted for neck and right shoulder sprain
OWCP File No. xxxxxx989; (2) a June 24, 1993 claim accepted for left shoulder and arm strain
while delivering mail OWCP File No. xxxxxx409; (3) a June 5, 1996 slip on ice, accepted for
right elbow and right shoulder sprain, and cervical myalgia OWCP File No. xxxxxx963; (4) a
March 2, 2001 claim accepted for left carpal tunnel syndrome OWCP File No. xxxxxx447; and
(5) a July 31, 2001 claim accepted for right shoulder sprain OWCP File No. xxxxxx868.
On May 14, 2008 OWCP referred appellant for a second opinion examination with
Dr. Jeffrey Larkin, a Board-certified orthopedic surgeon. Dr. Larkin was provided with the
statement of accepted facts (SOAF) for the current and prior claims.
In a report dated June 17, 2008, Dr. Larkin provided a history, review of medical records,
and results on examination. He diagnosed cervical spondylosis, most pronounced at C6-7, with
bilateral neuroforaminal encroachment present at C5-6 and changes of degenerative disc disease
most pronounced at C6-7. Dr. Larkin opined that all the work-related conditions had resolved.
He reported that appellant had restriction of motion of the cervical spine and pain that radiated
into the upper extremities to the shoulders, but the present symptomology was due to underlying
degenerative disease, not a work-related condition.
In a letter dated August 26, 2008, OWCP advised appellant that it proposed to terminate
compensation based on the June 17, 2008 report from Dr. Larkin. It listed the current claim
number as well as the five claims noted above. By decision dated September 26, 2008, OWCP
terminated compensation for wage-loss and medical benefits effective September 28, 2008, as it
found the weight of the evidence was represented by Dr. Larkin.
On August 22, 2016 appellant, through counsel, requested reconsideration. He argued
that Dr. Larkin had found cervical degenerative disc disease was a preexisting condition, without
providing rationale. Counsel asserted that Dr. Larkin had failed to refer to schedule awards for
permanent impairment of the upper extremities that were noted in the SOAF. He therefore
concluded that Dr. Larkin’s report was incomplete and clearly erroneous.

2

By decision dated August 25, 2016, OWCP found that the reconsideration request was
untimely filed. In addition, it found that appellant had failed to demonstrate clear evidence of
error and was therefore not entitled to a merit decision.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.3 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”4
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.5 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.6 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.7 As one such limitation, an application for reconsideration must be mailed
within one year of the date of OWCP’s decision for which review is sought.8 OWCP will
consider an untimely application only if the application demonstrates clear evidence of error on
the part of OWCP in its most recent merit decision.
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.10 The evidence submitted must not
only be of sufficient probative value to create a conflicting medical opinion or establish a clear
procedural error, but must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.11
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.12 It is not enough merely to show that
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.605 (2012).

5

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

Under section 8128 of FECA, “[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.”
7

5 U.S.C. §§ 8101-8193.

8

For decisions before August 29, 2011, a claimant had one year to mail a reconsideration request. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). 20 C.F.R.
§ 10.607 (2012).
9

Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

11

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

12

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

3

the evidence could be construed so as to produce a contrary conclusion.13 A determination of
whether the claimant has established clear evidence of error entails a limited review of how the
evidence submitted with the reconsideration request bears on the evidence previously of record.14
ANALYSIS
The last merit decision in this claim was dated September 26, 2008. In that decision,
OWCP terminated compensation for wage-loss and medical benefits. Appellant’s request for
reconsideration was dated August 22, 2016. Since this is more than one year after the
September 26, 2008 decision, it was untimely filed. As an untimely reconsideration request,
appellant must demonstrate clear evidence of error by OWCP in order to receive a merit review
of the claim.
Appellant did not submit additional evidence in support of the reconsideration request.
Counsel argued that Dr. Larkin’s report was of diminished probative value and insufficient to
terminate compensation. He asserted that Dr. Larkin failed to explain why he opined that the
cervical degenerative condition was preexisting, since appellant had prior accepted cervical
injuries, including a 1996 injury. Dr. Larkin was provided a detailed medical and factual
background which correctly noted that OWCP has never accepted a cervical degenerative
condition as employment related. As noted above, even if the evidence could be construed to
reach a different conclusion, this is not clear evidence of error.15 Counsel also refers to prior
schedule awards not mentioned by Dr. Larkin. The issue presented was not for a rating of
permanent impairment. Dr. Larkin was provided a proper background and opined in his June 17,
2008 report that appellant did not have residuals of a condition causally related to the accepted
January 4, 2005 employment injury.
The arguments provided on reconsideration fail to demonstrate clear evidence of error.16
The Board accordingly finds that OWCP properly denied merit review of the claim.
On appeal, counsel reiterates the argument that Dr. Larkin’s report was not well
rationalized and was insufficient to terminate compensation. The issue presented was whether
appellant demonstrated clear evidence of error and, for the reasons discussed, appellant has
failed to demonstrate clear evidence of error in this case.
CONCLUSION
The Board finds that OWCP properly found appellant’s reconsideration request was
untimely and failed to show clear evidence of error.

13

Id.

14

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

15

Supra note 12.

16

See S.G., Docket No. 14-1893 (issued January 7, 2015); see also G.C., Docket No. 16-0681 (issued
October 18, 2016).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 25, 2016 is affirmed.
Issued: April 24, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5