United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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W.J., Appellant
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and
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DEPARTMENT OF JUSTICE, BUREAU OF
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PRISONS, Jonesville, VA, Employer
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___________________________________________ )
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1596
Issued: March 5, 2010

Case Submitted on the Record

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from a May 1, 2009 decision of the
Office of Workers’ Compensation Programs’ which affirmed a November 12, 2008 schedule
award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award decision.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of his
left upper extremity for which he received a schedule award.
FACTUAL HISTORY
On January 29, 2007 appellant, then a 40-year-old camp coordinator, slipped on a wet
floor and injured his left knee and left elbow while in the performance of duty.1 She returned to
1

The record reflects that prior to the injury of January 29, 2007; appellant underwent a surgical treatment of the
left shoulder with arthroscopy and labral repair in 2003.

work on January 30, 2007. The Office accepted the claim contusion of the left elbow and
forearm, shoulder, upper arm, knee and lesion of the left ulnar nerve. Appellant’s treating
physician, Dr. John L. Franklin, a Board-certified orthopedic surgeon, performed a left elbow
ulnar nerve transposition on August 9, 2007 which was authorized by the Office. He stopped
work on August 9, 2007 and returned to work on November 26, 2007. On May 14, 2008
appellant underwent a left stellate ganglion block.
On June 12, 2008 appellant completed a Form CA-7 and requested a schedule award. He
submitted a June 10, 2008 report from Dr. Michael P. Feanny, an orthopedic surgeon, who
diagnosed causalgia of the left upper extremity with ulnar and median nerve neuropathy and
carpal tunnel syndrome. Dr. Feanny found that appellant continued to have pain, dysfunction,
numbness, hypersensitivity and stiffness of his left upper extremity. He determined that
appellant’s grip strength was significantly diminished in the left hand as determined by
dynamometer measurement. Dr. Feanny found that grip strength in his left hand of 30 kilograms
as opposed to 65 kilograms on the right for a 50 percent loss of strength. He indicated that
taking into consideration appellant’s causalgia, the presence of chronic median and ulnar
neuropathy, and weakness, appellant had a 50 percent loss of function of his left upper extremity,
or a 12 percent whole body impairment of function. Dr. Feanny opined that appellant’s
condition was permanent.
In a July 3, 2008 report, the Office medical adviser noted that appellant had left ulnar
transposition on August 9, 2007 and a follow-up electromyography scan and nerve conduction
studies revealed left carpal tunnel syndrome and no evidence of radiculopathy and plexopathy.
He noted that Dr. Feanny assigned an impairment value of 50 percent to the left upper extremity
for causalgia; however, it was not an accepted condition and could not be rated for impairment.
The Office medical adviser reviewed the follow-up studies that only showed left carpal tunnel
syndrome, which was not an accepted condition, and there was no triple phase bone scan report
to document causalgia. He explained that the award of 50 percent could not be valid and
recommended a second opinion physician.
On August 13, 2008 the Office referred appellant, a statement of accepted facts, questions
and the medical record to Dr Richard L. Glatzer, a Board-certified orthopedic surgeon.
In a report dated September 6, 2008, Dr. Glatzer reviewed appellant’s history of injury
and medical treatment. On examination he saw no evidence to support the diagnoses of
causalgia or reflex sympathetic dystrophy. Dr. Glatzer noted that appellant’s sensory
abnormality was purely subjective and questionable at best, as it did not follow any discrete
dermatome patterns. He advised that there was no atrophy in either hand, and he questioned the
amount of disuse that appellant had to the left upper extremity. Other than a healed elbow scar,
he could find “no positive objective orthopedic or neurological clinical findings to corroborate”
appellant’s “subjective complaints or for which to state there was any underlying organic
pathology as a basis to those complaints.” He suspected great functional overlay and noted that
appellant’s affect was “flat.” In a form report dated September 4, 2008, Dr. Glatzer provided
findings for the left elbow which included 136 degrees of flexion, 0 degrees of extension, 74
degrees of pronation and 84 degrees of supination. He opined that there was no additional
impairment of the function of the arm due to sensory deficit, pain or loss of strength and
determined that appellant had an impairment of five percent to the left upper extremity.

2

Dr. Glatzer also listed ranges of motion for the shoulder but indicated that this resulted in no
impairment.
In a September 15, 2008 report, Dr. Glatzer advised that the ranges of motion for
appellant were within normal limits. He found that appellant had no impairment to the left upper
extremity, secondary to subjective decrease in range of motion.
In an October 6, 2008 report, the Office medical adviser reviewed appellant’s history of
injury and treatment under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) hereinafter A.M.A., Guides. He noted that the final
assessment by the second opinion physician indicated that there was only a slight loss of motion
of the left elbow and a normal range of motion of the left shoulder. The Office medical adviser
explained that, while Dr. Glatzer noted five percent permanent impairment, this was not correct.
According to Figure 16-34, 136 degrees of lost retention was one percent impairment and 74
degrees of retention or pronation was one percent impairment.2 The Office medical adviser
noted that Dr. Glatzer did not make any other findings that would support additional impairment.
He noted the findings by Dr. Glatzer for the left shoulder and referred to Figures 16-40, 16-43
and 16-46.3 Appellant exhibited 170 degrees of forward elevation, 50 degrees of backward
elevation, 170 degrees of abduction, 46 degrees of adduction, 84 degrees of internal rotation and
90 degrees external rotation. These findings did not yield any impairment. The Office medical
adviser concluded that appellant had two percent impairment to the left arm. He found that
appellant reached maximum medical improvement on September 4, 2008.
On November 12, 2008 the Office granted appellant a schedule award for two percent
impairment of the left arm. The award covered a period of 6.24 weeks from September 4 to
October 17, 2008.
By letter dated November 12, 2009, appellant, through his attorney, requested a hearing,
which was held on March 25, 2009.
In a May 1, 2009 decision, the Office hearing representative affirmed the November 12,
2008 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
2

A.M.A., Guides 472.

3

Id. at 476, 477, 479.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6
ANALYSIS
In support of his claim for a schedule award, appellant submitted a report from
Dr. Feanny dated June 10, 2008. Dr. Feanny determined that appellant had 50 percent
impairment of the left arm, or 12 percent whole person impairment. However, this rating does
not conform with the protocols of the A.M.A., Guides. The Board notes that the Act does not
provide for whole person impairments and therefore the calculation of whole person impairment
cannot be used to determine the extent of appellant’s impairment.7 Furthermore, Dr. Feanny did
not refer to any portions of the A.M.A., Guides or explain how he arrived at his determination
for left arm impairment. An opinion which is not based upon the standards adopted by the
Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s impairment.8 Schedule awards are to
be based on the A.M.A., Guides and an estimate of permanent impairment is irrelevant and of
diminished probative value where it is not based on the A.M.A., Guides.9 The report of
Dr. Feanny is therefore insufficient to establish that appellant was entitled to a schedule award
greater than the two percent awarded.
The Office referred appellant for a second opinion examination with Dr. Glatzer who
listed range of motion findings in a September 4, 2008 report. Dr. Glatzer opined that appellant
had an impairment of five percent to the left upper extremity. However, he did not explain how
this impairment rating was obtained pursuant to the A.M.A., Guides. Thus, Dr. Glatzer’s
opinion is insufficient to establish five percent impairment.
The Office then properly referred the medical record to its Office medical adviser who
utilized the findings contained in Dr. Glatzer’s report to rate permanent impairment.10 The
Office medical adviser explained that the range of motion measurements supported two percent
impairment to the left upper extremity. The Board notes that the findings for the left elbow,
according to Figure 16-34, include 136 degrees of lost retention or flexion, which yields one
percent impairment and 74 degrees of retention on pronation which yields one percent
impairment.11 The Office medical adviser noted that there were no other findings to support
6

A.M.A., Guides (5th ed. 2001).

7

See Tommy R. Martin, 56 ECAB 273 (2005).

8

Carl J. Cleary , 57 ECAB 563 (2006).

9

James R. Hill, 57 ECAB 583 (2006).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002) (after obtaining all necessary medical evidence, the file should be routed to the
Office medical adviser for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides, with the Office medical adviser providing rationale for the percentage of impairment specified).
11

A.M.A., Guides 472.

4

impairment. The Board notes, however, that the record reflects left shoulder impairment.
According to Figure 16-40, 170 degrees of forward elevation correlates to one percent
impairment and 50 degrees of backward elevation yields no impairment.12 Referring to Figure
16-43, 170 degrees of abduction and 46 degrees of adduction also yields no impairment.13 Under
Figure 16-46, 84 degrees of internal rotation and 90 degrees external rotation do not yield any
impairment. The Board notes that when the aforementioned values for the elbow and the
shoulder are combined, this yields three percent impairment to the left upper extremity. The
Board finds that appellant has three percent impairment of the left arm.
CONCLUSION
The Board finds that appellant has a three percent permanent impairment of his left arm.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 1, 2009 is affirmed, as modified.
Issued: March 5, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Id. at 476.

13

Id. at 477.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lubbock, TX, Employer
__________________________________________

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

Docket No. 11-445
Issued: October 27, 2011

Case Submitted on the Record

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

JURISDICTION
On December 20, 2010 appellant filed a timely appeal from a November 10, 2010
decision of the Office of Workers’ Compensation Programs (OWCP) denying an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant sustained more than a 50 percent permanent impairment of
the left lower extremity for which he received schedule awards.
FACTUAL HISTORY
On January 3, 1992 appellant, then a 42-year-old letter carrier, injured his left ankle and
knee on the job. He underwent left knee arthroscopic surgery and Baker’s cyst excision on
February 10 and May 4, 1992, respectively. OWCP accepted the claim for left ankle strain and
1

5 U.S.C. § 8101 et seq.

left knee post-traumatic arthritis, Baker’s cyst aggravation and strain and granted a schedule
award for two-percent permanent impairment of the left lower extremity. Appellant
subsequently underwent total left knee replacement on January 13, 2003. By decision dated
November 4, 2004, OWCP granted a schedule award for an additional 48 percent permanent
impairment of the left lower extremity.2
On July 6, 2010 Dr. Gaylon B. Seay, a Board-certified orthopedic surgeon, performed a
total left knee revision of the tibial component. He released appellant to modified duty effective
August 30, 2010.
Appellant filed a claim for an additional schedule award on September 6, 2010. In a
September 28, 2010 report, Dr. Gerald L. Hill, an occupational physician, related that appellant
sustained an injury on January 3, 1992 and thereafter underwent multiple procedures on his left
knee. He added that appellant was presently restored to full-time duty, reassigned to a driving
route and generally “doing well.” On examination of the left knee, Dr. Hill observed an 11-inch
linear anterior scar, full range of motion (ROM) on extension and flexion up to 105 degrees and
insignificant tenderness and effusion.3 Applying Table 16-3 (Knee Regional Grid) on page 511
of the American Medical Association, Guides to the Evaluation of Permanent Impairment4
(hereinafter A.M.A., Guides), he assigned an impairment class Diagnosed Condition (CDX) of 2
with a default grade of C or a 25 percent impairment rating, as the knee exhibited good position,
stability and functionality.5 Citing appellant’s capacity to perform his normal work and the
knee’s range of flexion, Dr. Hill noted grade modifier values of one for Functional History
(GMFH) and one for Physical Examination (GMPE). He found the grade modifier for clinical
studies (GMCS) inapplicable. Using the net adjustment formula of GMFH - CDX + GMPE CDX or (1 - 2) + (1 - 2), Dr. Hill calculated a net adjustment of -2. He concluded that appellant
had a class 2, grade A impairment of the left lower extremity, which amounted to a 21 percent
impairment rating. Dr. Hill listed September 3, 2010 as the date of maximum medical
improvement.
On November 1, 2010 OWCP’s medical adviser reviewed Dr. Hill’s September 28, 2010
report and agreed with Dr. Hill that appellant had a 21 percent impairment rating for the left
lower extremity. Since appellant received prior schedule awards totaling 50 percent for a left
knee condition, he was not entitled to an additional award.

2

Appellant elected to receive the award in a lump-sum settlement.

3

Dr. Hill indicated that appellant experienced right knee symptoms related to a military injury. This condition is
not at issue before the Board.
4

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

5

Dr. Hill pointed out that a specific diagnosis of total knee revision of the tibial component was not included in
the regional grid. Alternatively, he applied the grading scheme associated with a diagnosis of total knee replacement
to determine the impairment rating.

2

By decision dated November 10, 2010, OWCP denied appellant’s claim for a schedule
award, finding that the medical evidence did not establish that he sustained additional
impairment above 50 percent.6
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.7 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the CDX,
which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS. The net
adjustment formula is GMFH - CDX + GMPE - CDX + GMCS - CDX. Evaluators are directed
to provide reasons for their impairment rating choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.9
A claim for an increased schedule award may be based on new exposure or, absent any
new exposure to employment factors, medical evidence indicating that the progression of an
employment-related condition has resulted in a greater permanent impairment than previously
calculated.10 In determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included. Any previous impairment to the member under
consideration is included in calculating the percentage of loss except when the prior impairment
is due to a previous work-related injury, in which case the percentage already paid is subtracted
from the total percentage of impairment.11

6

OWCP originally issued its decision on November 2, 2010.

7

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

8

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
9

R.V., Docket No. 10-1827 (issued April 1, 2011).

10

P.T., Docket No. 10-666 (issued November 24, 2010); James R. Hentz, 56 ECAB 573 (2005).

11

Carol A. Smart, 57 ECAB 340 (2006). See also 11 Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards & Permanent Disability Claims, Chapter 2.808.7(a)(2) (March 2011).

3

ANALYSIS
Appellant received earlier schedule awards that totaled 50 percent permanent impairment
of the left lower extremity. Following a July 6, 2010 left knee procedure, he filed a claim for an
additional schedule award. OWCP received a September 28, 2010 report from Dr. Hill, who
assigned a 21 percent impairment rating. OWCP’s medical adviser reviewed and adopted
Dr. Hill’s calculations. After subtracting 50 percent, the percentage already paid, from 21
percent, he concluded that appellant was not entitled to an additional schedule award.
The Board finds that Dr. Hill applied the appropriate tables and grading schemes of the
A.M.A., Guides, in determining that appellant currently has 21 percent impairment of the left
leg. The A.M.A., Guides classifies the lower extremity impairment by diagnosis, which is then
adjusted by grade modifiers.12 In this case, Dr. Hill based his impairment analysis on Table 16-3
(Knee Regional Grid). As the grid did not specifically provide for a diagnosis of total knee
revision, he identified total knee replacement as a similar, listed condition to be used as a guide
to the impairment calculation.13 Dr. Hill initially assigned a CDX of two with a default grade of
C as the left knee demonstrated good position, stability and functionality. Thereafter, he
determined that modification of the default grade was proper in light of appellant’s postoperative
history and physical examination. As appellant was restored to full-time duty and doing well
overall, Dr. Hill assessed a value of one for GMFH. Furthermore, since the left knee
demonstrated 105 degree flexion, he assessed a value of 1 for GMPE. Using the net adjustment
formula of GMFH - CDX + GMPE - CDX or (1 - 2) + (1 - 2), Dr. Hill calculated an adjustment
of -2. He therefore concluded that appellant had a class 2, grade A impairment of the left lower
extremity, which was equivalent to a 21 percent impairment rating. Dr. Hill applied the A.M.A.,
Guides and clearly explained how he determined appellant’s impairment rating. Appellant has
not submitted any medical evidence in conformance with the A.M.A., Guides supporting that he
has any greater impairment of his left leg. OWCP’s medical adviser concurred with Dr. Hill’s
rating.
On appeal, asserts that appellant is entitled to a separate award for 21 percent permanent
impairment. As noted, where a claimant has a preexisting impairment to the scheduled member
at issue, such impairment must be included in calculating percentage of loss unless it was work
related, in which case the percentage already paid is deducted.14 The record shows that appellant
received schedule awards for a combined 50 percent permanent impairment of the left lower
extremity. After concurring with Dr. Hill’s rating, OWCP’s medical adviser indicated that the
impairment determined by Dr. Hill was duplicative of impairment for which appellant previously
received a schedule award. Because appellant had already been awarded 50 percent impairment
12

R.V., supra note 9.

13

A.M.A., Guides, supra note 4 at 499.

14

See supra note 11. FECA and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member. Benefits payable under 5 U.S.C. § 8107(c) shall be reduced by
the period of compensation paid under the schedule for an earlier injury if: (1) compensation in both cases is for
impairment of the same member or function or different parts of the same member or function; and (2) the latter
impairment in whole or in part would duplicate the compensation payable for the preexisting impairment. 5 U.S.C.
§ 8108; 20 C.F.R. § 10.404(c).

4

of the left leg, OWCP properly offset the latest rating of 21 percent against his prior schedule
awards and found that he had no additional compensable impairment.
The Board notes that appellant submitted new evidence to OWCP after issuance of the
November 10, 2010 decision. The Board lacks jurisdiction to review evidence for the first time
on appeal.15 Appellant may request an increased schedule award based on evidence of a new
exposure or progression of an employment-related condition resulting in further impairment.
CONCLUSION
The Board finds that appellant did not sustain more than a 50 percent permanent
impairment of the left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 27, 2011
Washington, DC

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

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

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

15

20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Palm Beach, FL, Employer
__________________________________________

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Appearances:
Gary L. Goodrich, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1246
Issued: November 13, 2014

Case Submitted on the Record

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

JURISDICTION
On May 6, 2014 appellant, through her representative, filed a timely appeal from a
February 20, 2014 merit decision and a March 19, 2014 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
the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a recurrence of
disability on September 15, 2011 causally related to the accepted employment injury of
December 18, 1988; and (2) whether OWCP properly denied appellant’s request for
reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 18, 1988 appellant then a 27-year-old clerk, injured her back and left
shoulder while lifting trays of mail and placing them on an optical character reader. OWCP
accepted her claim for sprain of the back and lumbar region. Appellant returned to work light
duty and continued to work until December 31, 2007 when she became disabled from work.
On May 20, 2013 appellant filed a Form CA-2a, notice of recurrence of disability,
asserting that she had a recurrence of disability on September 15, 2011. She noted the date of
her original injury was December 18, 1988 and she had not worked since December 31, 2007.
Appellant indicated that since December 18, 1988 her condition has progressively worsened and
a September 15, 2011 x-ray revealed degenerative arthritis in the lower back and hips which she
believed was related to her December 18, 1988 work injury.
Appellant submitted an x-ray of the right hip and pelvis dated September 15, 2011 which
revealed questionable inflammatory erosion in the right acetabulum and degenerative changes in
the lower lumbar spine. She submitted an undated job summary from 1985 to 2000.
In an August 13, 2013 letter, OWCP advised appellant of the type evidence needed to
establish her recurrence of disability claim. It particularly asked that she submit a physician’s
reasoned opinion addressing the relationship of her claimed condition and specific employment
factors. OWCP requested that appellant submit all of her medical records from her
December 18, 1988 work injury and a copy of the Form CA-1, for the December 18, 1988 injury.
On September 26, 2013 appellant indicated that she worked on an optical character reader
for nine hours a day standing, pulling, bending, twisting and unloading without breaks. She
noted that she developed L3-4 bulging discs, sciatica of the hip and an L5 bulging disc and tear.
Appellant noted that after the December 18, 1988 injury she was offered a rehabilitative job in
the express mail office in June 1989, and on November 2, 1990 she was reassigned to a position
outside her restrictions without her physician’s approval. She indicated that her physician never
returned her to full duty, and in 1994, upon the request of the employing establishment to return
to work full time, she refused and was terminated. Appellant indicated that she had not sustained
any other injuries and was limited in her daily activities. She indicated that she subsequently
worked full time for MetLife for 12 months answering telephones and making changes to
beneficiaries’ policies.
Appellant provided September 25 and October 10, 2013 reports from Dr. Timothy Olson,
a Board-certified internist, who noted a history of chronic low back pain with radiation into the
buttock and posteriorly down the left leg to the foot that began many years ago. Her pain
moderately limited her function. Dr. Olson noted a long-standing work injury for which
appellant was on disability since 1988 and noted it was unclear whether it was a lumbar or a
thoracic injury. He advised that she also had chronic right shoulder issues. A September 15,
2011 right hip x-ray showed possible right acetabulum inflammatory erosion. Dr. Olson noted
findings of intact motor examination, intact leg strength and sensation, mildly antalgic gait,
limited lumbar range of motion, tenderness over the left paralumbar region and positive straight
leg raises. He diagnosed disorder of the muscle, ligament and fascia, right rotator cuff tear,
sciatica, lumbosacral spondylosis, chronic low back pain with lower left extremity radicular
2

symptoms, lumbar degenerative disc disease and spondylosis, chronic right shoulder problems
with acute right neck pain, myofascial pain and vocational/disability issues. Dr. Olson noted that
appellant had multiple chronic pain complaints that she reported stemmed from a significant
work injury in 1988. He opined that it was certainly possible that a history of severe trauma
would predispose her to more prominent degenerative changes as she aged. However, Dr. Olson
noted that these types of degenerative changes can to some degree also occur in the normal
course of aging. In an October 10, 2013 report, he noted findings of a magnetic resonance
imaging (MRI) scan of the lumbar spine revealed a disc bulge at L4-5 with an annular tear to the
left of midline with posterior element prominence and mild overall central stenosis with no frank
herniation. Dr. Olson diagnosed lumbar spine disc degeneration, disorder of the muscle,
ligament or fascia, sciatica, chronic low back pain with lower left extremity radicular symptoms,
spondylosis, chronic right shoulder problems with acute neck pain, myofascial pain and
vocational and disability issues. He noted that appellant had multiple chronic pain complaints
that she believed resulted from the 1988 work injury.
In a February 20, 2014 decision, OWCP found that the evidence submitted did not
establish a recurrence of disability causally related to her December 18, 1988 work injury.
In an appeal request form dated March 1, 2014, appellant requested reconsideration. In
an accompanying letter, she indicated that she wished to reopen her claim and noted that she had
incorrectly submitted a Form CA-2a instead of a Form CA-2, notice of occupational disease.
Appellant noted seeking treatment from Dr. Olson on September 25, 2013 and reported lumbar
spine complaints associated with the original injury of December 18, 1988. She disagreed with
the February 20, 2014 decision noting she established that the injury occurred on December 18,
1988 and continued to worsen without an intervening cause. Appellant indicated that the lumbar
strain of December 18, 1988 deteriorated to lumbar degenerative disc disease, spondylosis, an
L4-5 disc bulge and annular tear which resulted in her vocational and disability issues.
Appellant submitted a December 18, 1988 Form CA-1, a September 15, 2011 x-ray, an
October 4, 2013 MRI scan, reports from Dr. Olson dated September 25 and October 10, 2014
and OWCP’s February 20, 2014 decision, all previously of record. She submitted a Form CA-1
filed on November 14, 1990 for right shoulder injuries sustained while casing slips and making
express mail kits. Appellant submitted a May 25, 1993 letter from OWCP setting forth
compensation payments for the December 18, 1988 injury. She also submitted reports from
Dr. Ross G. Stone, a Board-certified orthopedist. On September 16, 1992 Dr. Stone noted
findings of pain in the shoulder and with range of motion of the neck and diagnosed cervical
spine strain, shoulder impingement and chronic pain syndrome. He returned appellant to work
with restrictions. In an October 14, 1992 report, Dr. Stone noted that on December 18, 1988 she
had a cervical and lumbar spine injury with nerve damage to the leg and bulging discs. He noted
diminished range of neck motion and diagnosed continued problems with appellant’s shoulder,
low back and neck. Dr. Stone returned her to work with restrictions. Also submitted was a
May 25, 1993 letter from OWCP to Dr. Stone asking that he address appellant’s disability status.
On March 2, 2014 appellant filed a Form CA-2, notice of occupational disease, asserting
that her December 18, 1988 original injury caused her pain to worsen and development of
repetitive strain injuries, musculoskeletal injuries, lumbar degenerative disc disease, spondylosis,
L4-5 disc bulge and annular tear due to heavy lifting, repetitively, without breaks.

3

In a March 19, 2014 decision, OWCP denied appellant’s request for reconsideration on
the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.2
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.3 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.4
In the absence of rationale, the medical evidence is of diminished probative value.5 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.6
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained sprain of the back/lumbar region. Appellant
returned to light duty and continued to work until December 31, 2007 when she stopped work
completely. On May 20, 2013 she filed a claim for a recurrence of disability. The Board finds
that the medical record lacks a well-reasoned narrative from appellant’s physicians relating her
claimed recurrent disability to her accepted employment injury. Furthermore, appellant has not

2

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
3

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

4

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

5

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

6

Ricky S. Storms, 52 ECAB 349 (2001).

4

presented evidence that the employing establishment either withdrew her light-duty job or altered
the assignment so as to require her to exceed her physical restrictions before she stopped work.
Appellant submitted reports dated September 25 and October 10, 2013 from Dr. Olson
who noted her history of chronic low back pain with radiculopathy. Dr. Olson noted a longstanding work injury for which she was on disability since 1988. However, he stated that it was
unclear whether it was a lumbar or a thoracic injury. Dr. Olson noted findings and offered
diagnoses that included sciatica, chronic low back pain with left leg radicular symptoms, lumbar
degenerative disc disease and spondylosis, chronic right shoulder problems with acute right neck
pain and right rotator cuff tear. He noted that appellant had multiple chronic pain complaints
that she related to her 1988 work injury. Dr. Olson opined that it was certainly possible that a
history of severe trauma would predispose her to more prominent degenerative changes as she
aged but he noted that these types of degenerative changes can occur in the normal course of
aging. He did not specifically address whether appellant had a recurrence of disability on
September 15, 2011 causally related to the accepted employment condition or otherwise provide
medical reasoning explaining why any current condition or disability was due to the accepted
December 18, 1988 work injury. Dr. Olson did not explain how or why any current diagnosed
condition was related to the accepted injury. Rather, he opined that it was “certainly possible”
that a history of severe trauma would predispose appellant to more prominent degenerative
changes as she aged but also advised that these type of degenerative changes can also occur in
the normal course of aging. At best Dr. Olson’s opinion provides only speculative support for
causal relationship as he qualified his support by noting it was “certainly possible” that
appellant’s trauma history would predispose her to degenerative changes.7 He provided no
medical reasoning to support his opinion on causal relationship. Therefore, this report is
insufficient to meet appellant’s burden of proof. The need for rationale is especially important in
a situation where appellant claimed a recurrence of disability on September 15, 2011, where she
stopped working at her job on December 31, 2007. Therefore, these reports are insufficient to
meet appellant’s burden of proof.
Appellant did not otherwise submit medical evidence supporting that she sustained a
recurrence of disability causally related to her December 18, 1988 work injury.
On appeal appellant asserts that her work-related lumbar sprain worsened over the years
as a result of the December 18, 1988 injury. She contends that the lumbar spine MRI scan
showed worsening of the original injury. Appellant noted that her claim was for an occupational
disease claim and not a recurrence of disability.8 However, as noted above, the medical evidence
submitted did not provide a rationalized medical opinion explaining why her claimed recurrent
condition or disability on September 15, 2011 was due to the December 18, 1988 work injury.
There is also no contemporaneous evidence of record establishing such assertions.

7

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
8
The Board notes that OWCP did not issue a final decision on her new claim for an occupational disease and
therefore the Board does not have jurisdiction over the matter. See 20 C.F.R. § 501.2(c).

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,9
OWCP regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.10 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
OWCP’s February 20, 2014 merit decision denied appellant’s claim for a recurrence of
disability as she failed to provide sufficient evidence to establish a recurrence of disability on
September 15, 2011 causally related to her December 18, 1988 work injury. It denied
appellant’s reconsideration request, without a merit review, and appellant appealed this decision
to the Board.
The issue is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(2),
requiring OWCP to reopen the case for review of the merits of the claim. In her request for
reconsideration, appellant did not identify a specific point of law or show that it was erroneously
applied or interpreted. She did not advance a new and relevant legal argument. In a March 1,
2014 letter, appellant asserted that she incorrectly submitted a Form CA-2a instead of a Form
CA-2, notice of occupational disease. She disagreed with the February 20, 2014 decision noting
that she had established that the injury occurred on December 18, 1988 and continued to worsen
without an intervening cause. Appellant indicated that the lumbar strain of December 18, 1988
deteriorated into her current back diagnoses and caused disability. She noted that after her
December 18, 1988 injury she was moved from a sedentary rehabilitation job to a limited-duty
assignment performing standing, repetitive reaching and stretching which caused further injury.
These general assertions about appellant’s light-duty assignment do not show a legal error by
OWCP or a new and relevant legal argument. They also are not germane to the underlying
medical issue of whether she had a recurrence of disability on September 15, 2011 causally
related to the December 18, 1988 work injury. That is a medical issue which must be addressed
by relevant new medical evidence.12

9

5 U.S.C. § 8128(a).

10

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

11

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

12

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

However, appellant did not submit new and relevant medical evidence. She submitted
certain evidence that was previously of record. Such evidence is not a basis for reopening a
claim as the Board has held that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.13
Appellant also submitted reports from Dr. Stone dated SSeptember 16 and
October 14, 1992. Dr. Stone had treated her for a work-related back injury and diagnosed
cervical spine strain, shoulder impingement and chronic pain syndrome. He returned appellant
to work with restrictions. Although these reports are new to the record, they are not relevant
because they significantly predate the time in which appellant claimed a recurrence of disability
on September 15, 2011. Thus, this evidence was not relevant and insufficient to warrant merit
review. Other factual evidence submitted by appellant included a Form CA-1 filed on
November 14, 1990, a May 25, 1993 letter from OWCP, a May 25, 1993 letter from OWCP to
Dr. Stone and a March 2, 2014 Form CA-2. However, this evidence is irrelevant. The
underlying issue in this case is whether appellant had a recurrence of disability on September 15,
2011 causally related to the December 18, 1988 work injury. None of this evidence is relevant to
that issue. Therefore, this evidence is insufficient to warrant reopening the case for a merit
review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability causally related to her accepted condition. The Board further
finds that OWCP properly denied her request for reconsideration dated March 1, 2014.

13

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).

7

ORDER
IT IS HEREBY ORDERED THAT the March 19 and February 20, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 13, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sun Valley, ID, Employer
__________________________________________

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

Docket No. 11-907
Issued: November 1, 2011

Case Submitted on the Record

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

JURISDICTION
On March 1, 2011 appellant, through her attorney, filed a timely appeal of a January 25,
2011 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant sustained a permanent impairment of her lower extremities
warranting a schedule award.
FACTUAL HISTORY
On September 24, 2003 appellant, then a 50-year-old clerk, filed a notice of traumatic
injury alleging that she injured her low back picking up a package on September 6, 2003 in File
No. xxxxxx603. OWCP accepted her claim for lumbar strain on October 2, 2003.
1

5 U.S.C. § 8101 et seq.

Appellant filed a notice of recurrence of disability on July 10, 2007 alleging that on
September 30, 2006 she experienced a bout of extreme pain, numbness and tingling in her legs
and buttocks. A magnetic resonance imaging (MRI) scan of November 9, 2006 demonstrated
multilevel degenerative disc and facet disease most pronounced at L5-S1 with severe bilateral
neural foraminal stenosis. On December 7, 2006 Dr. Timothy J. Johans, a Board-certified
neurosurgeon, performed an L5-S1 decompressive hemilaminotomy, medial facetectomy and
wide foraminotomy. On March 7, 2007 he performed a second right L5-S1 hemilaminomy,
complete facetectomy and foraminal decompression. Dr. Johans examined appellant on
March 26, 2007 and stated that following the second surgery her numbness had improved, her
pain was much better and strength was normal. He released her to return to light-duty work. In
a note dated July 23, 2007, Dr. Johans stated that appellant reported being pushed over by her
horse in June 2007 and that she hurt her back while trying to pick up her mother-in-law.
By decision dated September 19, 2007, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish a causal relationship between her current disability
and her accepted employment injury.
Appellant filed a traumatic injury claim on October 18, 2007. She alleged that she fell
that day when a cart she was pushing caught the edge of the door hitting her right arm, OWCP
File No. xxxxxx605. Appellant alleged injury to her right arm, elbow, back and shoulders.
X-rays dated October 18, 2007 revealed moderate to advanced degenerative arthritic changes
with no evidence of a superimposed acute injury. The emergency room physician diagnosed
right elbow contusion and hematoma and lumbar contusion and coccygeal contusion on
October 18, 2007. An MRI scan dated October 27, 2007 found right laminectomy defect at
L5-S1 and diffuse annular bulging with possible recurrent disc herniation and severe bilateral
neural foraminal narrowing at the L5-S1 level. Appellant also demonstrated degenerative disc
changes and facet joint changes resulting in mild spinal stenosis at L4-5. OWCP accepted this
claim for contusion of the right elbow and contusion of the back on November 30, 2007.
Appellant requested a schedule award on December 6, 2008 under OWCP File No.
xxxxxx603. In a letter dated January 8, 2009, OWCP requested additional medical information
from appellant regarding her permanent impairment for schedule award purposes. In a report
dated March 6, 2009, Dr. Brian Johns, Board-certified in occupational medicine, noted that
appellant stopped work on January 1, 2008. He opined that appellant had reached maximum
medical improvement. Dr. Johns found evidence of nonorganic contributors to her pain
including positive Waddell signs. He evaluated appellant’s permanent impairment under the
fifth edition of the A.M.A., Guides and found 10 percent impairment of the whole person based
on her back condition.
In a letter dated July 22, 2010, OWCP stated that appellant’s 2007 claim was accepted for
contusion of the right arm and contusion of the back. It noted that Dr. Johns did not describe any
permanent impairment to her extremities.
By decision dated July 22, 2010, OWCP denied appellant’s claims for a schedule award
on the grounds that the medical evidence did not establish permanent impairment to a scheduled
member.

2

Counsel requested a telephonic hearing. Appellant testified on November 2, 2010 that
she was not knocked down by her horse or attempt to lift her mother-in-law.
By decision dated January 25, 2011, OWCP’s hearing representative reviewed and
affirmed the July 22, 2010 decision. Appellant failed to submit sufficient medical opinion
evidence to establish permanent impairment of a scheduled member.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of 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 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.4
FECA does not authorize the payment of schedule awards for the permanent impairment
of the whole person.5 Payment is authorized only for the permanent impairment of specified
members, organs or functions of the body.
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.6 Neither FECA nor the implementing federal regulations provide
for the payment of a schedule award for the permanent loss of use of the back or spine.7
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.8
2

5 U.S.C. §§ 8101-8193, 8107.

3

20 C.F.R. § 10.404.

4

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
5

Ernest P. Govednick, 27 ECAB 77 (1975); W.D., Docket No. 10-274 (issued September 3, 2010).

6

William Edwin Muir, 27 ECAB 579 (1976); W.D., supra note 5.

7

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

8

Rozella L. Skinner, 37 ECAB 398 (1986); W.D., supra note 6.

3

ANALYSIS
Appellant has two separate traumatic injury claims accepted for lumbar strain due to the
September 6, 2003 employment injury and the right elbow and contusion of the back due to the
October 18, 2007. She also underwent two back surgeries in late 2006 and early 2007 in the
form of right L5-S1 hemilaminomy and foraminal decompression.
Appellant filed claims for a schedule award under both claims and submitted a report
from Dr. Johns dated March 6, 2009 finding that she has 10 percent impairment of the whole
person due to her diagnosed back conditions. As noted above, she is not entitled to a schedule
award under FECA for either the whole person or the back as neither of these body parts is listed
as a schedule member. There is no medical evidence in the record describing permanent
impairment of a schedule member such as the upper or lower extremities. Without medical
evidence addressing a scheduled member, the Board finds that appellant has not submitted the
necessary medical opinion evidence to establish permanent impairment under FECA and is
therefore not entitled to a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award under
FECA.

4

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LEXINGTON VETERANS ADMINISTRATION
MEDICAL CENTER, Lexington, KY, Employer
__________________________________________

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

Docket No. 10-1250
Issued: December 3, 2010

Case Submitted on the Record

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

JURISDICTION
On March 26, 2010 appellant filed a timely appeal from the September 30, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs. As over 180 days passed since the
last merit decision of December 17, 2008 to the filing of this appeal, the Board lacks jurisdiction
over the merits of appellant’s case.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 5, 2008 appellant, a 46-year-old diagnostic radiology technologist, filed a
traumatic injury claim alleging that on October 24, 2008 she injured her low back while moving
1

See 20 C.F.R. §§ 501.2(c) and 501.3(e).

a patient from a procedure table to a bed. The employing establishment controverted the claim,
noting that appellant returned to work on October 29, 2008 with no medical documentation.
In a November 20, 2008 note, Dr. E. Clark Standiford, Board-certified in family
medicine, diagnosed back pain. He noted that appellant was required to transfer patients three to
four times a day.
In a December 17, 2008 decision, the Office denied appellant’s claim. It accepted that
the October 24, 2008 incident took place as alleged, but found that the medical evidence was
insufficient to establish a firm medical diagnosis related to moving a patient at work.
On September 16, 2009 appellant requested reconsideration. She described her back
condition and reviewed her history of injury. Appellant resubmitted Dr. Standiford’s note.
By report dated January 2, 2009, Dr. Greg R. Wheeler, a Board-certified neurologist,
noted that he first treated appellant that day and that she brought a magnetic resonance imaging
(MRI) scan from 2007 for his review; however, the computer did not allow him to do so. He
noted that he would order a new lumbar MRI scan. Dr. Wheeler obtained a history that appellant
had obtained prior chiropractic treatment and recommended physical therapy. He noted that he
would follow up with her after obtaining the diagnostic studies.
In January 2, 2009 report, Dr. Charles M. Kenney, III, a Board-certified diagnostic
radiologist, related that an MRI scan of appellant’s lumbar spine revealed disc bulging with facet
arthropathy at multiple levels.
In notes dated January 8 and March 5, 2009, Dr. Wheeler diagnosed lumbago,
lumbosacral pain, lumbar spondylothesis, synovial cyst and lower leg pain. He did not address
appellant’s employment history or history of injury.
By decision dated September 30, 2009, the Office denied appellant’s request for
reconsideration finding that the evidence did not address the issue of causal relation.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s 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.3 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.4 When a claimant fails to meet one of the above standards, the
2

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).
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

2

Office will deny the application for reconsideration without reopening the case for review on the
merits.5
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record does not warrant opening a claim for
further merit review.6 The submission of evidence or argument which does not address the
particular issue involved does not constitute a basis for reopening a case.7 While a reopening of
a case may be predicated solely on a legal premise not previously considered, such reopening is
not required where the legal contention does not have a reasonable color of validity.8
ANALYSIS
On December 17, 2008 the Office denied appellant’s claim for traumatic injury on
October 24, 2008 while moving a patient at work. It accepted the incident happened as alleged,
but denied the claim as the medical evidence was not sufficient to establish causal relation.
Appellant requested reconsideration on September 16, 2009 and submitted additional evidence in
support of her claim. The Board finds that the Office did not abuse its discretion in denying her
request for further merit review.
Appellant’s reconsideration request did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office.9 Therefore, she is not entitled to a review of the merits
of her claim based upon the first and second requirements under section 10.606(b)(2).10
Appellant submitted several reports from Dr. Wheeler, who noted that he first examined
her on January 2, 2009. His office note of that date addressed her prior chiropractic treatment
but did not relate any history of the October 24, 2008 incident in which she transferred a patient
at work. Dr. Wheeler noted that he was unable to review a prior MRI scan of 2007 and
recommended additional diagnostic studies, which he obtained that day through Dr. Kenney. His
subsequent treatment notes failed to obtain or relate any history of the October 24, 2008 incident
accepted in this case. Dr. Wheeler’s medical reports, while new to the record, are not relevant on
the issue of causal relationship. He did not provide any opinion relating that the treatment of
appellant was related to her work as a diagnostic radiologist or, specifically, to the accepted
incident. Appellant’s claim was denied by the Office based on the inadequacy of the medical
5

Id. at § 10.608(b).

6

D.I., 59 ECAB 158 (2007); Eugene F. Butler, 36 ECAB 393, 398 (1984).

7

D.K., 59 ECAB 141 (2007); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

M.E., 58 ECAB 694 (2007); John F. Critz, 44 ECAB 788, 794 (1993).

9

On appeal appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision. 20 C.F.R. § 501.2(c). See J.T., 59
ECAB 293 (2008) (holding the Board’s jurisdiction is limited to reviewing the evidence that was before the Office
at the time of its final decision).
10

20 C.F.R. § 10.606(b)(2)(i) and (ii).

3

evidence to address causal relation. The Board has held that the submission of evidence that
does not address the particular issue involved in a claim does not constitute a basis for reopening
a case for further merit review.11 The reports of Dr. Wheeler are not pertinent to the issue on
which the Office denied appellant’s claim as he did not address causal relationship or provide
any opinion addressing how the October 24, 2008 incident contributed to appellant’s claimed
low back condition.
Appellant also submitted a copy of Dr. Standiford’s October 20, 2008 note, which was
previously of record and reviewed by the Office in its prior decision. It is well established that
the submission of evidence that repeats or duplicates that already of record does not constitute a
basis for reopening a claim for merit review.12
The evidence submitted by appellant did not establish that the Office erroneously applied
or interpreted a specific point of law, advance a relevant legal argument not previously
considered by the Office or constitute relevant and pertinent new evidence not previously
considered. As appellant did not meet any of the regulatory requirements, the Board finds that
the Office properly denied her request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further merit
review of her claim pursuant to 5 U.S.C. § 8128(a).

11

Mary Lou Barragy, 46 ECAB 781 (1995).

12

James W. Scott, 55 ECAB 606, 608 n.4 (2004); Freddie Mosley, 54 ECAB 255 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
SMALL BUSINESS ADMINISTRATION,
LOAN DIVISION, El Paso, TX, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0527
Issued: July 26, 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 January 27, 2016 appellant, through counsel, filed a timely appeal from December 15,
2015 merit decisions 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 met her burden of proof to establish disability from
December 1, 2013 to August 9, 2014, and on June 4 and 16, 2015, causally related to an
October 25, 2012 employment injury.
FACTUAL HISTORY
On October 29, 2012 appellant, then a 45-year-old loan servicing assistant, filed a
traumatic injury claim (Form CA-1) alleging that she sustained injuries to multiple parts of her
body when she fell at work on October 25, 2012. OWCP accepted that appellant sustained a
cervical strain, left hip and thigh sprains, lumbar sprain, disorder of the coccyx, left hip and thigh
contusions, unspecific disorder of the cervical discs, and chronic pain syndrome.3
Appellant received medical treatment from several attending physicians, including
Dr. John M. Dickason, a Board-certified orthopedic surgeon. The reports of record from
October and November 2013 indicate that appellant primarily complained of neck and upper
extremity pain.
Beginning on December 17, 2013 appellant filed several claim for compensation forms
(Form CA-7) alleging disability from December 1, 2013 to February 8, 2014 due to her accepted
work conditions. In support of her disability claim, appellant submitted a December 2, 2013
report in which Dr. Dickason indicated that she could not perform her usual job as she needed to
take 10-minute breaks every two hours.
In a January 9, 2014 report, Dr. Mahe T. Nadeem, an attending Board-certified physical
medicine and rehabilitation physician, indicated that appellant could perform her regular work
“with rest breaks.” In January 17 and February 19, 2014 reports, she diagnosed neck sprain, hip
and thigh sprains, and hip and thigh contusions and noted that appellant could return to work
“with restrictions.”4
By decisions dated February 13 and March 28, 2014, OWCP found that appellant did not
meet her burden of proof to establish disability from December 1, 2013 to February 8, 2014
because she did not submit sufficient medical evidence in support of her claim.
Appellant filed several additional claims for compensation alleging disability between
February 9 and August 9, 2014 due to her accepted work conditions.
In reports dated March 25 and April 21, 2014, Dr. Nadeem diagnosed neck, hip, and
thigh sprains, hip and thigh contusions, and cervical disc disorder. In May 5 and 28, 2014
reports, he added lumbar sprain and disorder of the coccyx to appellant’s diagnoses. In each of
these reports, Dr. Nadeem indicated in the “work status” portion that appellant was on “Full duty
3

Appellant stopped work on October 25, 2012 and returned to work on October 29, 2012 in her usual job.

4

In January 21 and February 18, 2014 letters, OWCP advised appellant about the factual and medical evidence
needed to support her claim.

2

as of December 13, 2013.” On May 30, 2014 he noted that appellant also had chronic pain
syndrome.
In a report dated May 14, 2014, Dr. Nadeem indicated that, upon physical examination on
that date, appellant exhibited limitation of cervical and lumbar range of motion. He noted that,
based on this physical examination, appellant had restrictions of no lifting, carrying, pushing,
and pulling; no sustained grasping/gripping activity; no constant/repetitive wrist and hand
activity; no constant bending, squatting, and twisting; and no prolonged sitting/standing posture.
In a form report dated June 19, 2014, Dr. Mike Shah, an attending Board-certified
physical medicine and rehabilitation physician, listed the date of injury as October 25, 2012 and
indicated that appellant was totally disabled from June 19 to August 19, 2014 and partially
disabled thereafter.
Dr. Shah noted, in reports dated August 4, 2014, that appellant reported pain in her neck
which radiated into her upper extremities. He listed appellant’s accepted conditions in the
present case, indicated that her “injuries are work related,” and noted that she had been totally
incapacitated since June 19, 2014. Dr. Shah recommended keeping appellant off work “to allow
her to get stronger and complete her therapy program.”5
Appellant requested reconsideration of her disability claim and, by decisions dated
October 2 and 14, 2014, OWCP found that appellant did not meet her burden of proof to
establish disability from December 1, 2013 to August 9, 2014 because she did not submit
sufficient medical evidence in support of her claim.6
Appellant submitted several reports, dated between August 22 and September 29, 2014,
in which Dr. Shah diagnosed herniated nucleus pulposus/bulge, brachial neuritis or radiculitis,
thoracic or lumbosacral neuritis or radiculitis, sciatica (neuralgia or neuritis of sciatic nerve),
sprain of unspecified site of knee and leg, carpal tunnel syndrome, neck sprain/strain (whiplash
injury), and lumbar sprain/strain.
Appellant filed a claim for compensation alleging four hours of disability on June 4, 2015
and two hours of disability on June 16, 2015 due to attending doctor’s appointments on those
dates in order to treat her work-related conditions.
In a decision dated December 15, 2015, OWCP found that appellant did not meet her
burden of proof to establish disability from December 1, 2013 to August 9, 2014 because she did
not submit sufficient medical evidence in support of her claim. It indicated that the medical
evidence submitted by appellant did not contain medical rationale.
In another decision of December 15, 2015, OWCP found that appellant did not meet her
burden of proof to establish disability on June 4 and 16, 2015 because she did not submit
5

In a September 25, 2014 report, Dr. Shah discussed the options for treating appellant’s pain, including physical
therapy, medications, and injection therapy.
6

OWCP denied modification of its decisions dated February 13 and March 28, 2014.

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sufficient medical evidence in support of her claim. It indicated that appellant did not show that
she was treated for an accepted work injury on these dates.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.7 In general the term disability under FECA means
incapacity because of injury in employment to earn the wages which the employee was receiving
at the time of such injury.8 This meaning, for brevity, is expressed as disability for work.9
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence. 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.10
ANALYSIS
OWCP accepted that on October 25, 2012 appellant sustained a cervical strain, left hip
and thigh sprains, lumbar sprain, disorder of the coccyx, left hip and thigh contusions, unspecific
disorder of the cervical discs, and chronic pain syndrome.11 Appellant claimed disability from
December 1, 2013 to August 9, 2014, and on June 4 and 16, 2015 due to the accepted conditions
related to her October 25, 2012 employment injury.
The Board finds that appellant did not meet her burden of proof to establish disability
from December 1, 2013 to August 9, 2014, and on June 4 and 16, 2015. Appellant did not
submit sufficient medical evidence to establish her claim.
In support of her disability claim, appellant submitted a December 2, 2013 report in
which Dr. Dickason indicated that she could not perform her usual job as she needed to take 10minute breaks every two hours. In a January 9, 2014 report, Dr. Nadeem indicated that she could
perform her regular work “with rest breaks.” In January 17 and February 19, 2014 reports, he
diagnosed neck sprain, hip and thigh sprains, and hip and thigh contusions and noted that
7

J.F., Docket No. 09-1061 (issued November 17, 2009).

8

See 20 C.F.R. § 10.5(f).

9

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

11

Appellant stopped work on October 25, 2012 and she returned to work on October 29, 2012 in her usual job.

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appellant could return to work “with restriction.” The submission of these reports would not
establish appellant’s claim because none of these reports contain an opinion that appellant had
disability during the claimed period due to the accepted conditions related to her October 25,
2012 injury. The Board has held that medical evidence which does not offer a clear opinion
regarding the cause of an employee’s condition/disability is of limited probative value on the issue
of causal relationship.12
In reports dated March 25 and April 21, 2014, Dr. Nadeem diagnosed neck sprain, hip
and thigh sprains, hip and thigh contusions, and cervical disc disorder. In May 5 and 28, 2014
reports, he added lumbar sprain and disorder of coccyx to appellant’s diagnoses. In each of these
reports, Dr. Nadeem indicated in the “work status” portion that appellant was on “Full duty as of
December 13, 2013.” The submission of these reports do not establish appellant’s claim because
Dr. Nadeem did not indicate any period of disability. In a report dated May 14, 2014,
Dr. Nadeem reported that, upon physical examination on that date, appellant exhibited limitation
of cervical and lumbar range of motion. He noted that, based on this physical examination,
appellant had restrictions of no lifting, carrying, pushing, and pulling; no sustained
grasping/gripping activity; no constant/repetitive wrist and hand activity; no constant bending,
squatting, and twisting; and no prolonged sitting/standing posture. The Board finds that this
report is of limited probative value regarding appellant’s claim for disability because
Dr. Nadeem did not provide any indication that appellant’s need for work restrictions was due to
the accepted work conditions.
In a form report dated June 19, 2014, Dr. Shah listed the date of injury as October 25,
2012 and indicated that appellant was totally disabled from June 19 to August 19, 2014 and
partially disabled thereafter. In a report dated August 4, 2014, he noted that appellant reported
pain in her neck which radiated into her upper extremities. Dr. Shah listed appellant’s accepted
conditions in the present case, indicated that her “injuries are work related,” and noted that she
had been totally incapacitated since June 19, 2014. He recommended keeping appellant off work
“to allow her to get stronger and complete her therapy program.” Although Dr. Shah identified
periods of disability within a portion of the period claimed by appellant and indicated that the
disability was work related, he did not provide a rationalized medical opinion explaining why
this disability was related to the accepted work conditions.13 He did not discuss appellant’s
accepted work conditions in any detail or explain how they could have caused disability for the
denoted period.
The Board notes that in addition to her claim of work-related disability from December 1,
2013 to August 9, 2014, appellant has also alleged four hours of disability on June 4, 2015 and
two hours of disability on June 16, 2015 due to attending doctor’s appointments on those dates in
order to treat her work-related conditions. However, appellant has not established this aspect of
her claim because the evidence of record does not show that she actually attended doctor’s
appointments on those dates in order to treat her work-related conditions.

12

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

13

See supra note 9.

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On appeal, counsel argues that the medical evidence of record establishes appellant’s
disability claim, but the Board has explained why the medical evidence submitted by appellant is
deficient.14
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 did not meet her burden of proof to establish disability
from December 1, 2013 to August 9, 2014, and on June 4 and 16, 2015, causally related to an
October 25, 2012 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2015 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: July 26, 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

14

Counsel suggested that OWCP should have accepted additional work-related conditions, including several
diagnosed by Dr. Shah, but this matter is not currently before the Board.

6