United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
REGIONAL FIELD OFFICE, Jackson, MS,
Employer
__________________________________________

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

Docket No. 11-64
Issued: September 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 12, 2010 appellant filed a timely appeal from an August 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. 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 merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective August 29, 2010 on the grounds that her work-related conditions
had ceased without residuals; and (2) whether appellant has established that she sustained an
emotional condition in the performance of duty.
On appeal, counsel asserts that OWCP’s August 23, 2010 decision was contrary to fact
and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before September 30, 2000, appellant, then a 50-year-old
claims examiner/insurance specialist, sustained an aggravation of hypertension due to a stressful
workload and overwork. It also accepted bilateral carpal tunnel syndrome and bilateral trigger
thumbs.2 Appellant received wage-loss compensation for intermittent work absences beginning
on May 18, 2001. She stopped work on July 12, 2002 and did not return. Appellant received
wage-loss compensation for total disability beginning on July 16, 2002.3
From January 2001 to July 2002 appellant’s supervisors submitted September 14 and 16,
2002 statements noting appellant’s concern about her workload and that she was assigned a
mentor. In December 2001 supervisors assigned additional claims as the office was short staffed
during the holiday season. Appellant was unable to process the additional cases.
Dr. Karen Collins, an attending Board-certified family practitioner, submitted reports
from July 1999 to December 2003 diagnosing hypertension aggravated by job stress. She opined
that appellant had been totally disabled since July 2002. Dr. Collins submitted reports through
December 2008 finding appellant’s hypertension unchanged.
Dr. Douglas Gurman, an attending Board-certified hand surgeon, performed a left median
nerve release on May 15, 2003.
On July 19, 2004 appellant filed an occupational disease claim (Form CA-2) alleging that
on or before September 30, 2000, she sustained anxiety and depression due to overwork, as well
as a pattern of harassment and discrimination.
In a July 16, 2004 report, Dr. Krishna Gupta, an attending Board-certified psychiatrist,
diagnosed depressive disorder and adjustment disorder with mixed emotional features. He
checked a box “yes” indicating his support for causal relationship. Dr. Gupta indicated that
appellant was totally disabled for work from July 15, 2002 onward. He referred appellant to Gail
Avery, a counselor, for psychotherapy.4
In a June 12, 2006 statement of accepted facts, OWCP accepted as compensable that
appellant “was required to manage a voluminous workload in addition to her normal assigned
duties, assignments and special tasks within established time frames and constraints.” It found

2

OWCP initially denied the claim by December 18, 2002 decision, vacated on June 4, 2004.

3

The employing establishment terminated appellant on October 17, 2003 due to excessive absenteeism. On
February 16, 2005, the Social Security Administration approved appellant’s application for disability retirement
benefits. On March 22, 2006, appellant elected to receive FECA benefits in lieu of Office of Personnel Management
(OPM) disability retirement benefits effective July 12, 2006. OWCP placed appellant’s case on the periodic rolls
effective July 1, 2006.
4

On July 13, 2005 OWCP obtained a second opinion from Dr. Kurt Bruckmeier, a Board-certified internist, who
found appellant permanently disabled from her date-of-injury job as the accepted aggravation of hypertension had
not resolved.

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that appellant did not establish as factual her allegations of harassment, discrimination and unfair
working conditions.5
On February 8, 2010 OWCP obtained a second opinion from Dr. Benjamin Root, a
Board-certified psychiatrist. It requested that Dr. Root explain whether the accepted work factor
caused or aggravated any psychiatric condition, and whether appellant had continuing residuals
of such condition. Dr. Root reviewed the medical record and statement of accepted facts OWCP
provided for his use. On psychiatric examination, he observed anxious mood with despondency
but found appellant’s responses were within normal limits. Dr. Root diagnosed generalized
anxiety disorder, a history of depression, and a history of adjustment disorder with mixed anxiety
and depressed mood. He opined that the statement of accepted facts and appellant’s responses
on examination demonstrated that the generalized anxiety disorder and hypertension continued to
be related to her federal employment. Dr. Root found appellant unable to perform her date-ofinjury job as anxiety and depression impaired her concentration and problem solving abilities.
He opined that appellant had reached maximum medical improvement but required continued
medication and psychotherapy.
On February 19, 2010 OWCP obtained a second opinion from Dr. Parvesh Goel, a
Board-certified internist, who reviewed the medical record and statement of accepted facts
provided. On examination, Dr. Goel noted muscle atrophy in both hands and obtained a blood
pressure reading of 141/78. He diagnosed hypertension, bilateral carpal tunnel syndrome,
bilateral trigger thumb, anxiety and depression. Dr. Goel opined that appellant’s continuing
hypertension was “likely” or “possibly” caused by labile hypertension that progressed to
essential hypertension. He also stated that appellant did not have hypertension. Dr. Goel found
that appellant’s bilateral carpal tunnel syndrome and trigger thumb remained active. He
commented that he was unaware of appellants’ job duties but that she “should be able to resume
her preinjury position considering hypertension as her only work-related injury.”
In a June 3, 2010 file memorandum, OWCP found that Dr. Root’s opinion should be
disregarded as he did not provide medical rationale and OWCP had not accepted an emotional
condition.
By notice dated June 4, 2010, OWCP advised appellant that it proposed to terminate her
compensation benefits on the grounds that the accepted conditions had ceased without residuals,
based on Dr. Goel’s opinion as the weight of the medical evidence. It afforded her 30 days to
submit additional evidence or argument.
In response, appellant submitted a June 25, 2010 letter reiterating her account of
overwork and harassment, a June 25, 2010 release of records, and Ms. Avery’s June 24, 2010
comments on appellant’s workplace. She also provided an undated letter from Dr. Collins
explaining that appellant had no hypertensive symptoms prior to the accepted workload increase.
Dr. Collins opined that appellant’s hypertension remained disabling.
5

On July 16, 2006 OWCP obtained a second opinion from Dr. Elizabeth Henderson, a Board-certified
psychiatrist, who diagnosed a resolved adjustment disorder with mixed anxiety and depressed mood, caused by the
accepted factors of a heavy workload and overwork. In an April 23, 2007 letter, Dr. Gupta opined that the
adjustment disorder had not resolved as appellant had frequent decompensations when reminded of her limitations.

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By decision dated August 23, 2010, OWCP terminated appellant’s wage loss and medical
compensation benefits on the grounds that the accepted conditions had resolved without
residuals. It found that the new medical evidence submitted did not establish continuing
residuals of the accepted condition. OWCP denied appellant’s emotional condition claimed on
the grounds that she did not submit sufficient medical evidence to establish causal relationship.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.7 The right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability compensation.8 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.9
The fact that OWCP accepts appellant’s claim for a specified period of disability does not
shift the burden of proof to appellant to show that he or she is still disabled. The burden is on
OWCP to demonstrate an absence of employment-related disability during the period subsequent
to the date when compensation is terminated or modified.10 OWCP’s burden includes the
necessity of furnishing rationalized medical opinion evidence based on a proper factual and
medical background.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, bilateral
trigger thumbs and an aggravation of hypertension. Appellant submitted medical evidence
regarding her treatment for hypertension through June 2010 from Dr. Collins, an attending
Board-certified family practitioner, who found appellant’s hypertension was caused by and
continued to be related to the accepted employment factors of a heavy workload and overwork.
She underwent a left median nerve release on May 15, 2003.
On February 19, 2010 OWCP obtained a second opinion from Dr. Goel, a Board-certified
internist, who found a blood pressure reading of 141/78 but stated that appellant did not have
hypertension, or had labile or essential hypertension or both. Dr. Goel noted that he was
unfamiliar with appellant’s job duties. OWCP terminated appellant’s compensation effective
6

Bernadine P. Taylor, 54 ECAB 342 (2003).

7

Id.

8

Roger G. Payne, 55 ECAB 535 (2004).

9

Pamela K. Guesford, 53 ECAB 726 (2002).

10

Raymond W. Behrens, 50 ECAB 221 (1999).

11

Id.

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August 29, 2010 based on Dr. Goel’s opinion. The Board finds that the termination was
improper as there was a conflict of medical opinion between Dr. Goel, for the government, and
Dr. Collins, for appellant.
Dr. Collins stated that appellant’s hypertension was ongoing through June 2010 and
continued to be related to the accepted work factors. Dr. Goel opined both that appellant had and
did not have hypertension, that the condition could be related to undiagnosed preexisting
conditions, and that he was unfamiliar with appellant’s work. The two physicians thus disagree
on the presence and etiology of the accepted condition. Their opinions are fundamentally at
odds.
FECA, at 5 U.S.C. § 8123, states 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. OWCP did not do this. At the
time of the termination, there was an outstanding conflict of medical opinion. The termination
was thus improper as OWCP did not meet its burden of proof in terminating compensation.12
On appeal, counsel asserted that OWCP’s August 23, 2010 decision is “contrary to fact
and law.” As stated, OWCP did not meet its burden of proof in terminating appellant’s
compensation.
LEGAL PRECEDENT -- ISSUE 2
FECA provides for payment of compensation for personal injuries sustained while in the
performance of duty.13 Where disability results from an employee’s reaction to his regular or
specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of FECA.14 To establish entitlement to benefits, a claimant must establish a
factual basis for the claim by supporting the allegations with probative and reliable evidence.15
This burden includes the submission of a detailed description of the employment factors or
conditions which appellant believes caused or adversely affected the condition or conditions for
which compensation is claimed.16
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.17 The Board has held that a variety of work factors are
12

Raymond W. Behrens, supra note 10.

13

5 U.S.C. § 8102(a).

14

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

15

Ruthie M. Evans, 41 ECAB 416 (1990).

16

Effie O. Morris, 44 ECAB 470 (1993).

17

See Norma L. Blank, 43 ECAB 384 (1992).

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compensable under FECA. Among them, overwork is a compensable factor of employment if
appellant submits sufficient evidence to substantiate this allegation.18 If a claimant implicates a
factor of employment, OWCP should then determine whether the evidence of record
substantiates that factor. When the matter asserted is a compensable factor of employment and
the evidence of record establishes the truth of the matter asserted, the Office must base its
decision on an analysis of the medical evidence.19
The Board has held that incidents of discrimination or retaliation by supervisors and
coworkers, if established as occurring and arising from the employee’s performance of his or her
regular duties, could constitute employment factors.20 The issue is whether the claimant has
submitted evidence sufficient under FECA to establish an injury arising in the performance of
duty.21 For discrimination to give rise to a compensable disability under FECA, there must be
probative and reliable evidence that harassment or discrimination did in fact occur.22 Mere
perceptions of harassment, retaliation or discrimination are not compensable under FECA.23
ANALYSIS -- ISSUE 2
Appellant claimed that she sustained anxiety and depression due to overwork, harassment
and discrimination. The Board must initially review whether these alleged incidents and
conditions of employment are covered employment factors under the terms of FECA. Overwork
is a compensable employment factor if substantiated by the evidence.24 In support of her
allegations, appellant submitted supervisory statements confirming that in December 2001,
appellant was assigned additional duties when the office was short staffed, in addition to an
already heavy workload. OWCP accepted as factual that appellant was required to manage a
heavy workload and additional duties under deadlines. The Board finds that appellant has
established her allegations of a heavy workload and overwork as factual and compensable.
Appellant also attributed her condition to a pattern of supervisory harassment and
discrimination. Harassment and discrimination may also be compensable if arising from
assigned duties and corroborated by sufficient evidence.25 However, appellant did not submit

18

Bobbie D. Daly, 53 ECAB 691 (2002); Robert W. Wisenberger, 47 ECAB 406, 408 (1996); Chester R.
Henderson, 42 ECAB 352 (1991); Manuel W. Vetti, 33 ECAB 750 (1982). See Georgia F. Kennedy, 35 ECAB
1151, 1155 (1984) (the Board held that an unusually heavy workload is covered under the Federal Employees’
Compensation Act).
19

Marlon Vera, 54 ECAB 834 (2003).

20

Janice I. Moore, 53 ECAB 777 (2002). See David W. Shirey, 42 ECAB 783 (1991).

21

See Martha L. Cook, 47 ECAB 226 (1995).

22

Janice I. Moore, supra note 20.

23

Kim Nguyen, 53 ECAB 127 (2001).

24

Bobbie D. Daly, supra note 18; Georgia F. Kennedy, supra note 18.

25

Janice I. Moore, supra note 20; Martha L. Cook, supra note 21.

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evidence substantiating any incidents of harassment or discrimination at work. Therefore, she
has not established a compensable factor in this regard.26
As appellant established compensable factors of employment, the Board must examine if
the medical evidence supports that she sustained an emotional condition as a result of those
factors. Dr. Gupta, an attending Board-certified psychiatrist, diagnosed an adjustment disorder
with mixed emotional features. He checked a box “yes” on a July 16, 2004 form report
indicating his support for causal relationship. As this opinion was insufficiently rationalized,27
OWCP obtained a second opinion on February 8, 2010 from Dr. Root, a Board-certified
psychiatrist. OWCP prepared a statement of accepted facts, accepting as factual that appellant
managed a large workload and additional assignments under time constraints.
OWCP asked Dr. Root to determine if appellant sustained a work-related emotional
condition and if such condition had resolved. Dr. Root conducted a psychiatric examination and
diagnosed generalized anxiety disorder with a history of depression and adjustment disorder. He
explained that appellant’s responses, when correlated to the accepted employment factor of
overwork, demonstrated that the generalized anxiety disorder continued to be work related and
disabling. Dr. Root opined that appellant had reached maximum medical improvement and
required continued treatment.
In a June 3, 2010 file memorandum, OWCP stated it would disregard Dr. Root’s opinion
because he did not explain his reasoning. It asked Dr. Root to determine if appellant had a workrelated emotional condition. To discount his opinion because he did exactly as OWCP asked is
contrary to logic. Additionally, Dr. Root provided medical rationale explaining the causal
relationship between the diagnosed anxiety disorder and overwork. His opinion is based on the
complete medical record and statement of accepted facts. It is entitled to the weight of the
medical evidence.28 The evidence establishes that appellant sustained an emotional condition in
the performance of duty due to the accepted employment factor of overwork. OWCP’s
August 23, 2010 decision finding that appellant did not establish a work-related emotional
condition will be reversed.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss and medical
benefits as there was a conflict of medical opinion regarding the presence of continuing injuryrelated residuals. The Board further finds that appellant has established that she sustained an
emotional condition in the performance of duty.

26

Kim Nguyen, supra note 23.

27

Calvin E. King, 51 ECAB 384 (2000) (the Board held that form reports from a physician who checked a yes
box indicating a causal relationship between the claimant’s spinal stenosis and his employment had little probative
value absent supporting rationale and were insufficient to establish causation). Debra S. King, 44 ECAB
203 (1992).
28

Deborah L. Beatty, 54 ECAB 340 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2010 is reversed.
Issued: September 21, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 18-0478
Issued: January 2, 2019

Case Submitted on the Record

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

JURISDICTION
On January 8, 2018 appellant filed a timely appeal from a November 15, 2017 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 to consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on June 12, 2017, as alleged.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the November 15, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” Thus, the Board is precluded from reviewing this additional evidence for the first
time on appeal. See 20 C.F.R. § 501.2(c)(1). Id.

FACTUAL HISTORY
On June 20, 2017 appellant, then a 33-year-old internal revenue agent, filed a traumatic
injury claim (Form CA-1) alleging that, on June 12, 2017, she injured her back, left arm, left wrist,
left shoulder, and left side of her neck while assisting a delivery person with carrying a file cabinet
at her home. She noted that she was teleworking at the time of the injury and the employing
establishment had ordered the file cabinet to be delivered to her approved telework site. Appellant
did not stop work.
The record contains reports from the period July 17 to October 25, 2017, in which
Dr. Adam Hassan Saby, a specialist in physical medicine and rehabilitation, diagnosed left
trapezius and wrist sprain. Dr. Saby noted that appellant’s injury occurred on June 12, 2017 while
assisting a delivery person with carrying a cabinet sent by the employing establishment into her
home.
In a September 25, 2017 development letter, OWCP informed appellant that when her
claim was initially received it appeared to be a minor injury that resulted in minimal or no lost
time from work and, thus, was being handled administratively with immediate authorization for
payment of medical expenses up to $1,500.00. However, because a claim for wage-loss
compensation was received, the claim was reopened for formal adjudication. OWCP advised
appellant of the type of evidence needed to establish her claim and provided a questionnaire for
her completion. By separate letter dated September 25, 2017, it requested additional information
from the employing establishment regarding whether she was in the performance of duty at the
time of the alleged injury. OWCP afforded appellant and the employing establishment 30 days to
provide the requested information.
In an e-mail dated October 17, 2017, the employing establishment related that appellant
was eligible for telework and that a file cabinet had been ordered to allow her to store files in a
locked and secured space. The file cabinet was paid for by the employing establishment. The
employing establishment related that appellant was “not expected” to assist the delivery person
with carrying the cabinet into her home.
On November 6, 2017 OWCP received appellant’s response to its September 25, 2017
development letter. Appellant stated that she had noted on the file cabinet order form that delivery
to her home would involve stairs. When the delivery person arrived on June 12, 2017, he advised
that carrying the cabinet up the stairs by himself would be difficult. Appellant noted that she asked
whether he would like to reschedule the delivery so he could have a coworker assist him. He then
asked whether anyone was present who could help, but when she answered no, he attempted to
handle the cabinet by himself. While carrying it up the stairs, he requested appellant’s assistance,
which she provided. Near the top of the stairs, the delivery person had difficulty turning the cabinet
around. At this point, the weight of the cabinet increased on appellant and she began to feel weak.
She told the delivery person that she could not hold onto the cabinet much longer. Immediately
following this incident appellant felt sore.
By decision dated November 15, 2017, OWCP denied appellant’s claim, finding that the
claimed June12, 2017 injury did not arise in the performance of duty. It noted that she had not

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responded to its September 25, 2017 development letter. OWCP found that appellant assisting the
delivery person was not within her job duties, nor was she expected to aid the delivery person.
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”5 The phrase
“sustained while in the performance of duty” has been interpreted by the Board to be the equivalent
of the commonly found prerequisite in workers’ compensation law of “arising out of and in the
course of employment.”6 The phrase “in the course of employment” is recognized as relating to
the work situation, and more particularly, relating to elements of time, place, and circumstance.
To arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in the master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of his or her employment or engaged in doing something incidental
thereto.”7 This alone is not sufficient to establish entitlement to benefits for compensability. The
concomitant requirement of an injury “arising out of the employment” must be shown, and this
encompasses not only the work setting, but also a causal concept, the requirement being that the
employment caused the injury.8
OWCP’s procedures address off-premises injuries sustained by workers at home:
“Ordinarily, the protection of [FECA] does not extend to the employee’s home, but
there is an exception when the injury is sustained while the employee is performing
official duties. In situations of this sort, the critical problem is to ascertain whether
at the time of injury the employee was in fact doing something for the employing

3

See R.E., Docket No. 17-0547 (issued November 13, 2018); see also Gary J. Watling, 52 ECAB 278 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

5 U.S.C. § 8102(a).

6

A.K., Docket No. 16-1133 (issued December 19, 2016); Charles Crawford, 40 ECAB 474, 476-77 (1989).

7

D.L., 58 ECAB 667 (2007); Mary Keszler, 38 ECAB 735, 739 (1987).

8
M.T., Docket No. 16-0927 (issued February 13, 2017); Vitaliy Y. Matviiv, 57 ECAB 193 (2005); Eugene G. Chin,
39 ECAB 598 (1988).

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establishment. The official superior should be requested to submit a statement
showing-(a) What directives were given to or what arrangements had been made with
the employee for performing work at home or outside usual working hours;
(b) The particular work the employee was performing when injured; and
(c) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.”9
FECA provides that OWCP shall determine and make findings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim. Since
the Board’s jurisdiction in a case is limited to reviewing that evidence which was before OWCP
at the time of its final decision, it is necessary that OWCP review all evidence submitted by a
claimant and received by OWCP prior to the issuance of its final decision. As the Board’s
decisions are final as to the subject matter appealed, it is crucial that all evidence relevant to that
subject matter, which was properly submitted to OWCP prior to the issuance of the final decision,
be addressed by OWCP.10
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s traumatic injury claim, by decision dated November 15, 2017,
finding that she had not established that her alleged injury occurred in the performance of duty. It
specifically noted that she had not responded to its September 25, 2017 development letter which
requested that she submit additional evidence necessary to establish her claim. The record reveals,
however, that appellant did provide additional factual information by letter dated and received by
OWCP on November 6, 2017. OWCP clearly did not consider that information when it issued its
November 15, 2017 decision denying her claim. The Board has held that evidence received by
OWCP before it issues its decision must be reviewed and considered.11 This case will, therefore,
be remanded for OWCP to consider all of the evidence of record to determine whether appellant’s
alleged injury occurred in the performance of duty. Following this and any necessary further
development, OWCP shall issue a de novo decision.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also S.F., Docket No. 09-2172 (issued August 23, 2010).
10
B.N., Docket No. 17-0787 (issued July 6, 2018); S.P., Docket No. 16-0535 (issued March 23, 2016); William A.
Couch, 41 ECAB 548 (1990).
11

Yvette N. Davis, 55 ECAB 475 (2004) (Possession by OWCP of properly submitted evidence required
consideration of that evidence by OWCP); Linda Johnson, 45 ECAB 439 (1994) (OWCP must review and consider
evidence even if received the same day as the decision denying appellant’s claim).

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CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further action
consistent with this decision of the Board.
Issued: January 2, 2019
Washington, D.C.

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boone, NC, Employer
__________________________________________
Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1533
Issued: April 13, 2011

Case Submitted on the Record

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

On May 18, 2010 appellant filed an application for review of the December 30, 2009
merit decision of the Office of Workers’ Compensation Programs terminating his wage-loss and
medical benefits. The appeal was docketed as number 10-1533.1 Having reviewed the case
record submitted by the Office, the Board finds that this case is not in posture for a decision.
The Office accepted appellant’s August 2, 2006 traumatic injury claim for temporary
aggravation of obstructive sleep apnea and placed appellant on the periodic rolls.2 Appellant’s
treating physician, Dr. Glen R. Liesegang, a Board-certified family practitioner, opined that
appellant was disabled as a result of his accepted condition. The Office’s second opinion
physician, Dr. Gary Schafer, a Board-certified internist, opined that his accepted condition had
1

This case was previously before the Board. In a decision dated September 23, 2010, the Board affirmed May 12
and September 24, 2009 decisions denying his request to expand his claim to include a consequential emotional
condition. Docket No. 10-165 (issued September 23, 2010).
2

On August 2, 2006 appellant, a 53-year-old customer service supervisor, filed a traumatic injury claim alleging
that he experienced stress, sleeplessness, depression and injuries to his head, neck and chest as a result of being
required by the employing establishment to drive long distances for many hours between July 21 and
August 12, 2006. The Office properly developed the claim as an occupational disease claim, as the alleged injury
occurred over a period greater than one day or shift.

resolved and his current underlying sleep apnea condition was unrelated to his employment. The
Office found a conflict in medical opinion between Drs. Liesegang and Schafer as to whether
appellant continued to experience residuals due to the accepted injury and, if so, whether he was
disabled due to those residuals and informed appellant that he would be required to undergo an
impartial medical examination.
The Office initially referred appellant to Dr. David Seales, Board-certified in the fields of
psychiatry and neurology, in order to resolve the conflict in medical opinion. On June 27, 2008
appellant’s representative objected to the selection of Dr. Seales. He contended that, as he was
not certified in sleep medicine, he was not qualified to be a referee physician. After reviewing
the medical records, Dr. Seales declined to serve as an impartial medical specialist, explaining
that he believed appellant would be best served if he saw a doctor who was certified in sleep
medicine.
On August 18, 2008 the Office referred appellant to Dr. Michael S. Dew, a Boardcertified neurologist, for an impartial medical examination and an opinion as to whether
appellant continued to experience residuals due to the accepted injury and, if so, whether he was
disabled due to those residuals. In a letter dated August 21, 2008, appellant’s representative
objected to the selection of Dr. Dew as the referee physician on the grounds that he was not
certified in the area of sleep medicine. He asked that the September 30, 2008 appointment with
Dr. Dew be cancelled and rescheduled with a physician who specialized in the appropriate field.3
In a letter dated September 24, 2008, the claims examiner responded to counsel’s
objections to the selection of Dr. Dew as a referee physician, indicating that Dr. Dew was a
specialist in neurology and was qualified to render a decision in this case. He stated:
“[T]he appointment with Dr. Dew cannot be cancelled; however, upon receipt of
his report, I will request the report be reviewed by our district medical director
(DMD). If it is determined that his report is sufficient and can be considered, our
office will proceed. If not, another referral to the appropriate specialist would be
considered.”
In reports dated October 30, 2008, January 20 and March 18, 2009, Dr. Dew opined that,
while appellant continued to suffer from the symptoms of his preexisting sleep apnea, the
accepted aggravation of the condition was not permanent in nature and had resolved. On
June 26, 2009 Dr. Dew opined that appellant’s underlying sleep disorder would have resolved in
days or weeks after the accepted duty assignment in 2006.
On August 5, 2009 the Office proposed to terminate appellant’s medical and
compensation benefits based upon Dr. Dew’s opinion that his accepted condition had resolved.
In a letter dated September 3, 2009, appellant’s representative objected to the proposed
termination. His contentions included that Dr. Dew was not qualified to serve as the referee
3

Counsel also objected to the selection of Dr. Dew on the grounds that he was more than 80 miles from
appellant’s home. He contended that there were numerous physicians in appellant’s commuting area that were
certified in sleep medicine.

2

physician because he was not a specialist in sleep disorders. Counsel noted that the Office had
failed to seek a report from the district medical director, as it had promised in its September 24,
2008 letter.
In a decision dated September 16, 2009, the Office terminated appellant’s compensation
and medical benefits effective September 27, 2009 based upon Dr. Dew’s referee opinion that
the condition of aggravation of sleep apnea had resolved. The claims examiner stated that there
was no additional need to send the case to the district medical adviser for review, as Dr. Dew
was a specialist in neurology and well qualified to render a determination of disability status.
Appellant, through counsel, requested a review of the written record. By decision dated
December 31, 2009, the Office hearing representative affirmed the September 16, 2009
termination decision, finding that the weight of medical evidence, which was represented by
Dr. Dew’s opinion, established that the accepted condition had resolved.
The Board finds that this case is not in posture for a decision. Further development is
warranted on appellant’s objections to the impartial medical specialist.
If there is disagreement between the physician making an examination for the United
States and a claimant’s treating physician, the Secretary shall appoint a third physician (known
as a referee physician or impartial medical specialist) who shall make an examination.4 A
claimant who asks to participate in selecting the referee physician or who objects to the selected
physician should be requested to provide his or her reason for doing so. The claims examiner is
responsible for evaluating the explanation offered. If the reason is considered acceptable, the
medical management assistant will prepare a list of three specialists, including a candidate from
a minority group if indicated, and ask the claimant to choose one. This is the extent of the
intervention allowed by the claimant in the process of selection or examination. If the reason
offered is not considered valid, a formal denial of the claimant’s request, including appeal rights,
may be issued if requested.5
Unlike the selection of second opinion examining physicians, the selection of referee
physicians is made by a strict rotational system using appropriate medical directories. The
Physicians Directory System (PDS), including physicians listed in the American Board of
Medical Specialties (ABMS) Directory and specialists certified by the American Osteopathic
Association, should be used for this purpose. The services of all available and qualified Boardcertified specialists will be used as far as possible to eliminate any inference of bias or partiality.
This is accomplished by selecting specialists in alphabetical order as listed in the roster chosen
under the specialty and/or subspecialty heading in the appropriate geographic area, and repeating
the process when the list is exhausted.6
4

5 U.S.C. § 8123(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4.b(4) (May 2003).

6

Id. at Chapter 3.500.4.b(1). The PDS is a set of stand-alone software programs designed to support the
scheduling of second opinion and referee examinations. PDS is designed to reduce the amount of time needed to
schedule examinations, ensure consistent rotation among referee physicians and record the information needed to
make prompt payment to physicians. Id. at Chapter 3.500.7.

3

In the instant case, a conflict arose between Dr. Liesegang, appellant’s treating physician,
and Dr. Schafer, the Office’s second opinion physician, on the issue of whether appellant had
continuing work-related residuals and/or disability. Section 8123(a) of the Federal Employees’
Compensation Act therefore required the selection of a third physician to resolve the conflict.
Three days after the Office notified appellant that it had selected Dr. Dew as the impartial
medical specialist and 40 days before the scheduled examination, his representative objected to
the selection. Counsel contended that Dr. Dew was not qualified to serve as the referee
physician on the grounds that he was not certified in the area of sleep medicine. He asked that
the September 30, 2008 appointment with Dr. Dew be cancelled and rescheduled with a
physician who specialized in the appropriate field.7
According to Office procedures, the claims examiner is responsible for evaluating the
explanation offered by a claimant in support of his objection to a selected specialist. However,
the Board has required the Office to explain why the selection was proper, in light of the
claimant’s objections.8 In this case, appellant raised a timely objection to the selected impartial
medical specialist and provided sufficient reason to require the Office to demonstrate that it
properly followed its selection procedures. Based on the fact that Dr. Dew was not a specialist in
sleep disorders, counsel contended that he was not qualified to address the issue at hand. In
response to appellant’s objections, the Office represented that it would forward Dr. Dew’s report
to the DMD for an opinion on its sufficiency and assured him that if it was not considered
sufficient, another referral to the appropriate specialist would be considered. The Office did not,
however, seek an opinion from the DMD or further develop the case in any way. Rather, it flatly
stated that as a neurologist, Dr. Dew was qualified to serve as the referee physician, offering no
explanation as to why the issues in this case would not be more appropriately addressed by a
sleep specialist or a specialist in another field. Such an explanation is particularly called for in
light of Dr. Seales opinion that appellant would be best served if he saw a doctor who was
certified in sleep medicine.
The Board finds that the record does not permit an informed adjudication on whether
Dr. Dew was properly selected to serve as an impartial medical specialist in this case. On
remand, the Office should forward the case to the DMD for review and an opinion as to whether
Dr. Dew was qualified to serve as a referee physician. After such further development as it
deems appropriate, the Office shall issue a merit decision in order to protect appellant’s rights of
appeal.

7

On appeal, counsel reiterated his contention that Dr. Dew was not qualified to serve as referee in this case and
that his office was more than 75 miles from appellant’s home. He also contested the leading nature of the questions
posed to Dr. Dew, as well as the sufficiency of both the second opinion report and the referee report.
8

See M.A., 59 ECAB 355 (2008) (where appellant raised a timely objection and questioned how the impartial
medical specialist could have been properly selected given his recent selection in another case, the Board found that
he had provided sufficient reason to require the Office to demonstrate that it had properly followed its selection
procedures).

4

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 30, 2009 decision be set aside and the case remanded for further development
consistent with this order of the Board.
Issued: April 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


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

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

Docket No. 08-1882
Issued: January 27, 2009

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 June 26, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated September 21, 2007 and March 20, 2008. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determinations in this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he has more
than a 3 percent impairment of the right upper extremity and a 15 percent impairment of the right
lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On October 26, 2001 appellant, then a 43-year-old postal clerk, sustained an
employment-related right wrist sprain and right knee contusion and sprain when he tripped over
a mail tub at work. He sustained a recurrence of disability on April 4, 2003 and underwent right
knee arthroscopy on September 17, 2003.

On February 14, 2007 appellant filed a schedule award claim. In a November 16, 2006
report, Dr. Nicholas Diamond, an osteopath, provided examination findings and an impairment
rating, who noted the history of injury, his review of medical records and appellant’s complaints
of daily right wrist and right knee and ankle pain. He stated that appellant reported difficulties
with prolonged standing and prolonged walking. Physical examination of the right wrist
demonstrated tenderness over the palmar aspect, normal range of motion and negative Tinel,
Phalen, carpal compression, TFCC load, Watson and Finkelstein tests. Right hand grip strength
was diminished. The right knee showed tenderness, diminished range of motion. Examination
of the right ankle demonstrated normal range of motion. Motor strength in dorsiflexion and
plantar flexion were rated 4+/5 and gastrocnemius and quadriceps musculature strength was 4 to
4+/5 on the right.
Dr. Diamond diagnosed post-traumatic right knee cystic lesion, status post diagnostic
arthroscopy of the right knee, post-traumatic right wrist chronic strain and sprain and right and
left foot plantar fasciitis. He advised that, under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),1 appellant
had a 20 percent right upper extremity impairment due to loss of grip strength and a 3 percent
pain-related impairment, for a total 23 percent right upper extremity impairment. Dr. Diamond
found that appellant had a 12 percent right lower extremity impairment due to loss of quadriceps
strength in knee extension, a 17 percent impairment due to loss of gastrocnemius strength, a
12 percent impairment due to loss of right ankle dorsiflexion and a 3 percent pain-related
impairment. He combined the lower extremity impairments for a total 31 percent right lower
extremity impairment.
On February 12, 2007 the Office referred the medical record to an Office medical
adviser. The memorandum indicated that back and hip conditions were accepted as employment
related. In a February 24, 2007 report, the Office medical adviser stated that maximum medical
improvement was reached on November 16, 2006 and noted that a right upper extremity
condition was not reported as accepted. He determined that, under the A.M.A., Guides,
appellant had 12 percent impairment for quadriceps weakness and an additional 3 percent for
pain for a total 15 percent impairment of the right lower extremity. On June 6, 2007 the Office
again referred the record to the Office medical adviser, including the right wrist accepted
condition. In a June 19, 2007 report, the Office medical adviser found that the weakness of the
gastrocnemius, dorsiflexion and grip strength deficit could not be considered in the presence of a
pain-related impairment. He agreed with Dr. Diamond’s estimate that appellant had a three
percent right upper extremity impairment due to pain.
By decision dated September 21, 2007, appellant was granted schedule awards for a
3 percent right upper extremity impairment and a 15 percent right lower extremity impairment,
to run for 52.56 weeks from November 16, 2006 to November 18, 2007.
On October 3, 2007 appellant, through his attorney, requested a hearing. At the hearing,
held on January 16, 2008, appellant testified that he was right-handed. He described the
employment injury, the subsequent knee surgery and the current condition of his right upper and
1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

lower extremities, stating that he had discomfort and was limited in daily activities because he
had difficulty opening jars and doing some chores that required hammering. Appellant also
testified that he did not think the pay rate used for his schedule award was correct. In March 20,
2008 decision, an Office hearing representative affirmed the September 21, 2007 schedule award
decision but remanded the case to the Office on the issue of the applicable pay rate.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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., Guides4 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.5
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.6 Office procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
detail to include, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent description of the impairment and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for opinion concerning the nature and percentage of
impairment and the Office medical adviser should provide rationale for the percentage of
impairment specified.7
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

A.M.A., Guides, supra note 1.

5

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
6

Tammy L. Meehan, 53 ECAB 229 (2001).

7

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

3

figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.8 Chapter 16 of the fifth edition of the A.M.A., Guides
provides the framework for assessing upper extremity impairments9 and Chapter 17 provides the
framework for assessing lower extremity impairments.10
Section 18.3b provides that pain-related impairment should not be used if the condition
can be adequately rated under another section of the A.M.A., Guides. Office procedures provide
that, if the conventional impairment adequately encompasses the burden produced by pain, the
formal impairment rating is determined by the appropriate section of the A.M.A., Guides.
Section 18.3d provides guidance on how a pain-related impairment should be rated, noting that
an award of up to three percent whole person impairment may be granted if pain increases the
burden of the employee’s condition.11
ANALYSIS
The Board finds that appellant does not have more than three percent right upper
extremity impairment. On November 16, 2006 Dr. Diamond advised that appellant had a 20
percent impairment due to loss of grip strength. The A.M.A., Guides do not encourage the use of
grip strength as an impairment rating because strength measurements are functional tests
influenced by subjective factors that are difficult to control and the A.M.A., Guides, for the most
part, is based on anatomic impairment. Only in rare cases should grip strength be used and only
when it represents an impairing factor that has not been otherwise considered adequately.12 It is
the responsibility of the evaluating physician to explain in writing why a particular method in
determining an impairment rating was chosen.13 In this case, Dr. Diamond did not offer any
explanation as to why loss of grip strength was the best method for determining the extent of
impairment of appellant’s right arm. Appellant therefore is not entitled to an impairment rating
for diminished grip strength of the right upper extremity.
Both Dr. Diamond and the Office medical adviser agreed that appellant had a three
percent impairment right upper extremity under Figure 18-1 of the A.M.A., Guides. The fifth
edition of the A.M.A., Guides allows for an impairment percentage to be increased by up to three
percent for pain by using Chapter 18, which provides a qualitative method for evaluating
impairment due to chronic pain.14 If an individual appears to have a pain-related impairment that
has increased the burden on his or her condition slightly, the examiner may increase the
8

Robert V. Disalvatore, 54 ECAB 351 (2003).

9

A.M.A., Guides, supra note 1 at 433-521.

10

Id. at 523-564.

11

Id. at 573, 588; see Richard B. Myles, 54 ECAB 379 (2003).

12

Id. at 507; Cerita J. Slusher, 56 ECAB 532 (2005).

13

Tara L. Hein, 56 ECAB 431 (2005).

14

A.M.A., Guides, supra note 1 at 573.

4

percentage up to three percent15 and a formal assessment must be performed in accordance with
Chapter 18.16 However, neither Dr. Diamond nor the Office medical adviser addressed why
appellant’s pain-related impairment could not be adequately addressed under Chapter 16.
Consequently, there is no probative evidence showing that he had more than the three percent
impairment of the right upper extremity.
Regarding the right lower extremity, Dr. Diamond advised that, under Table 17-8 of the
A.M.A., Guides, appellant had a 12 percent right lower extremity impairment due to loss of
quadriceps strength in knee extension, a 17 percent impairment due to loss of gastrocnemius
strength and a 12 percent impairment due to loss of right ankle dorsiflexion. Table 17-8 provides
guidance for rating impairments due to lower extremity weakness. Dr. Diamond found that
appellant had a Grade 4 quadriceps strength rating for knee extension and thus, in accordance
with Table 17-8, a 12 percent impairment due to knee extension weakness. However, he did not
explain his award of a 17 percent impairment due to gastrocnemius weakness under Table 17-8
because he did not identify the muscle group involved. While Dr. Diamond identified a Grade 4
right ankle dorsiflexion for an additional 12 percent impairment, appellant’s claim was not
accepted for any employment-related ankle injury. It is well established that, in determining
entitlement to a schedule award, preexisting impairment to the schedule member is to be
included.17 The record in this case, however, does not indicate that appellant had any preexisting
ankle condition. Appellant therefore has not established that he is entitled to a 12 percent right
lower extremity impairment for ankle dorsiflexion.
Again, both Dr. Diamond and the Office medical adviser found that appellant had a three
percent pain-related impairment right lower extremity under Figure 18-1 of the A.M.A., Guides.
As noted neither physician provided a formal pain-related impairment in accordance with
Chapter 18. The evidence therefore does not establish that appellant is entitled to an increased
right lower extremity award due to pain. Consequently, there is no probative evidence showing
that he had more than a 15 percent impairment of the right lower extremity.
On appeal, appellant’s attorney argues that a conflict in medical opinion exists between
Dr. Diamond and the Office medical adviser. As noted Dr. Diamond’s impairment evaluation
was not made in accordance with the A.M.A., Guides. Similarly, the report of the medical
adviser was not fully explained.18 This reduces the medical evidence of reduced probative value.
CONCLUSION
The Board finds that appellant did not establish that he has more than a 3 percent
impairment of the right upper extremity and a 15 percent impairment of the right lower extremity
for which he received a schedule award.

15

T.H., 58 ECAB ____ (Docket No. 06-1500, issued January 31, 2007).

16

Supra note 14.

17

Michael C. Milner, 53 ECAB 446 (2002).

18

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

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 20, 2008 and September 21, 2007 are affirmed.19
Issued: January 27, 2009
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

19

The Board notes that the Office has not issued a final decision with regard to the schedule award pay rate. The
Board has jurisdiction to consider and decide appeals from final decisions of the Office. There shall be no appeal
with respect to any interlocutory matter disposed of during the pendency of the case. 20 C.F.R. § 501.2(c);
Jennifer A. Guillary, 57 ECAB 485 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HICKAM AIR FORCE BASE, HI, Employer
__________________________________________

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

Docket No. 08-1684
Issued: May 20, 2009

Case Submitted on the Record

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

JURISDICTION
On June 2, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated May 22, 2008. Pursuant to 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 nine percent impairment of each of his
upper extremities for which he received schedule awards.
FACTUAL HISTORY
On May 23, 2001 appellant, then a 48-year-old mechanic, filed a traumatic injury claim
alleging that on May 1, 2001 he was walking down some steps and fell at the bottom step
injuring his right hand, shoulder and knee. The Office initially denied appellant’s claim on
September 12, 2001. Appellant requested an oral hearing. By decision dated July 21, 2002, the
hearing representative accepted appellant’s claim for right knee meniscus tear due to the
employment injury. In a letter dated August 27, 2002, the Office informed appellant that his

claim had been accepted for right knee meniscal tear and repair. Appellant underwent a right
knee arthroscopy and partial medial meniscectomy with excision of super medial plica on
October 18, 2002.1 The Office authorized left knee surgery on March 6, 2004. On May 18,
2004 appellant underwent an arthroscopy and partial medial meniscectomy. The Office accepted
that appellant sustained bilateral knee medial cartilage tear with repairs and left knee strain.
On December 7, 2006 appellant requested a schedule award.2 He again requested a
schedule award on October 15, 2007. In a note dated November 2, 2007, appellant’s attending
physician, Dr. Ronald Gackle, Board-certified in preventative medicine, diagnosed bilateral knee
pain and bilateral groin tenderness and opined that appellant had reached maximum medical
improvement. The Office requested additional medical opinion evidence from Dr. Gackle by
letter dated January 10, 2008. It referred appellant for a second opinion on April 15, 2008 to
determine his permanent impairment for schedule award purposes.
In a report dated May 1, 2008, Dr. Bernard M. Porter, Board-certified in physical
medicine and rehabilitation, noted appellant’s history of injury and findings on examination. He
noted that appellant had atrophy of both thighs measuring 46 centimeters (cm) on the right and
47 cm on the left. Manual muscle testing revealed weakness of both quadriceps. Dr. Porter
found that both of appellant’s knees demonstrated full range of motion with pain and laxity of
the anterior cruciate ligament. He examined x-rays of appellant’s knee in standing weightbearing position which revealed bilateral loss of the medial joint compartment joint space of
approximately 50 percent. The Office referred this report to the district medical adviser on
May 9, 2008.
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, reviewed the evidence of
record on May 16, 2008 and found that appellant had two percent impairment bilaterally due to
the partial medial meniscectomies. He also found that appellant had mild degenerative joint
disease resulting in seven percent impairment. Dr. Harris combined these figures to reach an
impairment rating of nine percent impairment of each lower extremity. He found that appellant
had reached maximum medical improvement on July 6, 2005.
By decision dated May 22, 2008, the Office granted appellant schedule awards for nine
percent impairment of each of his lower extremities.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
1

Appellant has a separate claim number xxxxxx210 due to an injury on July 12, 1999 which was accepted for
right wrist strain, right hand tenosynovitis, trigger finger and bilateral carpal tunnel syndrome.
2

Appellant received a schedule award for 24 percent impairment of each of his upper extremities on July 18,
2005 in claim number xxxxxx210.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

2

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,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.6
ANALYSIS
The Office accepted appellant’s claim for bilateral meniscal tears and surgeries.
Appellant’s attending physician, Dr. Gackle, Board-certified in preventative medicine, opined
that appellant had reached maximum medical improvement beginning in November 2007.
However, he failed to provide detailed findings or any rating impairment. The Office referred
appellant to Dr. Porter, Board-certified in physical medicine and rehabilitation for a second
opinion evaluation. In his May 1, 2008 report, Dr. Porter reported thigh atrophy, weakness of
the quadriceps and loss of medial joint compartment space based on standing x-rays. Dr. Harris,
a Board-certified orthopedic surgeon, and Office medical adviser, reviewed this report on
May 16, 2008 and found that appellant had two percent impairment7 bilaterally due to his partial
medial meniscectomies in accordance with the A.M.A., Guides. He reviewed Dr. Porter’s
finding that appellant had 50 percent loss of joint space in the knees based on standing x-rays
and concluded that appellant had a cartilage interval of three millimeters or 7 percent impairment
due to mild degenerative joint disease as demonstrated by x-ray.8 Dr. Harris properly combined
these impairment ratings to reach a total of nine percent impairment of each lower extremity.9
Dr. Harris provided the only correlation of physical findings with the appropriate sections
of the A.M.A., Guides, and he properly applied the A.M.A., Guides to reach his impairment
rating. As there is no other medical evidence establishing more than nine percent impairment of
appellant’s lower extremities, the Office properly granted appellant schedule awards based on
this impairment rating.
CONCLUSION
The Board finds that the medical evidence in the record does not establish that appellant
has more than nine percent impairment of each of his lower extremities for which he has
received a schedule award.
5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
7

A.M.A., Guides 446-47, Table 17-33.

8

Id. at 544, Table 17-31.

9

Id. at 526, Table 17-2.

3

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2009
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Murfreesboro, TN, Employer
__________________________________________

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

Docket No. 14-407
Issued: May 2, 2014

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 12, 2013 appellant filed a timely appeal from a July 17, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the nonmerit decision by OWCP.
The last merit decision of record was OWCP’s May 20, 2013 decision. Because more than 180
days elapsed from the last merit decision to the filing of this appeal, the Board lacks jurisdiction
to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 4, 1998 appellant, then a 51-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on March 3, 1998 he sustained a right shoulder injury after he
was knocked to the floor by a patient. OWCP accepted his claim for right rotator cuff tear, right
shoulder strain and right rotator cuff repair.
By decision dated August 1, 2002, OWCP granted appellant a schedule award for 12
percent permanent impairment of the right arm.3
On March 6, 2013 appellant filed a claim for an additional schedule award (Form CA-7)
under this claim, No. xxxxxx624. He submitted a December 5, 2012 functional capacity
evaluation (FCE) from CORA Rehabilitation Clinic.
OWCP routed the December 5, 2012 evaluation and case file to a district medical adviser
(DMA) for review and a determination on whether appellant sustained greater permanent
impairment and the date of maximum medical improvement.
In reports dated April 18 and May 10, 2013, Dr. H.P. Hogshead, a medical adviser, used
the findings from the FCE to rate seven percent impairment of the right arm. Because appellant
had previously received an award for 17 percent impairment of the right arm, he was not entitled
to an additional schedule award. The date of maximum medical improvement was noted as
December 5, 2012.
By decision dated May 20, 2013, OWCP denied appellant’s schedule award claim,
finding that he did not establish greater impairment of the right arm. It noted that he had
previously been rated at 17 percent right arm impairment and the medical adviser found 7
percent right arm impairment.
By letter dated June 27, 2013, appellant requested reconsideration of the schedule award
determination stating that his right shoulder condition had worsened. He submitted billing
statements from CORA Rehabilitation Clinic dated November 26, 2012 to March 15, 2013.

3

The Board notes that appellant had a prior work-related right arm injury for which he was awarded five percent
permanent impairment of the right arm on June 22, 1983, claim No. xxxxxx103. The August 1, 2002 decision noted
that appellant sustained 17 percent permanent impairment of the right arm and deducted the 5 percent already
received for a total 12 percent permanent impairment of the right arm.

2

By decision dated July 17, 2013, OWCP denied appellant’s request for reconsideration
finding that he did not raise any substantive legal questions or submit new and relevant
evidence.4
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.5 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.6
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented 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 his
June 27, 2013 application for reconsideration, appellant did not contend that OWCP erroneously
applied or interpreted a specific point of law. He did not advance a new and relevant legal
argument. Appellant stated that his right shoulder injury had worsened. The underlying issue in
this case is whether he established additional impairment of the right arm. That is a medical
issue which must be addressed by relevant medical evidence.7 The only evidence received were
billing statements from CORA Rehabilitation Clinic. This evidence is irrelevant to the issue as it
does not address permanent impairment. A claimant may obtain a merit review of an OWCP
decision by submitting new and relevant evidence. In this case, appellant failed to submit any
new and relevant medical evidence addressing whether to establish greater impairment to his
right arm.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific point
4

The Board notes that appellant submitted additional evidence after OWCP rendered its July 17, 2013 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
5

D.K., 59 ECAB 141 (2007).

6

K.H., 59 ECAB 495 (2008).

7

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

3

of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.8
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2014
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

8

Sherry A. Hunt, 49 ECAB 467 (1998).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Honolulu, HI, Employer
__________________________________________

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Appearances:
Elbridge Smith, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1301
Issued: December 15, 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 25, 20162 appellant, through counsel, filed a timely appeal of a November 27,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed since the last merit decision on August 28, 2014, to the filing of this

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 27, 2015, the date of OWCP’s last decision, is May
25, 2016. Since using June 6, 2016, the date the appeal was received by the Clerk of the Appellate Boards would
result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is May 25, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances of the case
as presented in the prior appeal are incorporated herein by reference. The relevant facts are as
follows.
On April 21, 2011 appellant, then a 63-year-old health systems specialist, filed an
occupational disease claim (Form CA-2) alleging stress and aggravation from a preexisting
diabetes condition as a result of adverse working conditions. In a narrative statement, he alleged
that commencing in August 2008 he had been stripped of all meaningful work assignments by
his supervisors and given only limited and menial tasks to perform that were not commensurate
with his position. Appellant also alleged that he had been prevented from having any meaningful
interaction with coworkers, making him feel as if he were in solitary confinement. He also
alleged that he had been placed in a noisy work area and the employing establishment had
refused his requests for accommodation. Appellant stopped work as of November 23, 2010.
In a November 16, 2011 letter, the employing establishment responded to an OWCP
request for information. It controverted appellant’s allegations and submitted witness statements
regarding various incidents involving appellant, who had a history of conflict with his coworkers
and supervisors. The employing establishment asserted that it made a good faith effort to engage
appellant in meaningful duties, but was unsuccessful due to appellant’s behavior and personality
traits.
By decision dated December 20, 2011, OWCP denied appellant’s claim for
compensation. It found that he had not established any compensable work factors.
Counsel requested reconsideration by letter dated December 12, 2012. He argued that
appellant was reacting to requirements of his work: (1) that he remain on the premises without
being assigned any work for most of the time; and (2) that he not interact or socialize with
coworkers.
In a decision dated April 8, 2013, OWCP denied appellant’s reconsideration request. It
found that he did not meet the requirements for merit review of the claim.
3

5 U.S.C. § 8101 et seq.

4

Appellant timely requested an oral argument before the Board. By order dated November 4, 2016, the Board
exercised its discretion and denied the request, finding the issue presented could be addressed based on review of the
case record. Order Denying Oral Argument, Docket No. 16-1301 (issued November 4, 2016).
5

Docket No. 14-0018 (issued June 24, 2014).

2

Appellant appealed to the Board. On appeal the Board remanded the case for a merit
review. The Board found that appellant had raised a new and relevant legal argument, and
therefore was entitled to a merit review.
6

By decision dated August 28, 2014, OWCP reviewed the merits and denied modification.
It found the assignment and monitoring of work duties was an administrative function, and no
evidence of error or abuse was established. As to requiring appellant not to interact with any
other employee, OWCP found this was vague and not supported by the record. It indicated that
the employing establishment had explained that limitations had been placed on appellant to
minimize disruptions and this was a reasonable managerial action.
On September 3, 2015 OWCP received an August 28, 2015 letter from appellant’s
counsel requesting reconsideration. Counsel again argued that appellant was reacting to an
actual assigned duty -- of doing little or no work. In addition, he argued that OWCP had
improperly ignored medical evidence. Counsel indicated that he was submitting testimony from
treating physicians and a social worker, as well as from a supervisor, Dr. Carethers.
The evidence submitted on reconsideration consists of partial transcripts from a U.S.
District Court case, with appellant as plaintiff and the employing establishment as defendant.
The transcript records are dated May 5 to 7, and 11, 2015, and include testimony from
physicians, psychologists, and a social worker regarding appellant’s treatment. The testimony
from a Dr. Carethers indicated that appellant reported having no work was causing him stress,
and after January 2013 appellant was assigned more complex work.
By decision dated November 27, 2015, OWCP found the reconsideration request was
untimely filed. It denied the reconsideration request without merit review, finding it did not
demonstrate clear evidence of error by OWCP.
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.7 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.”8
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.9 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.10 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
6

Id.

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.605 (2012).

9

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

10

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.”

3

§ 8128(a) of FECA.11 As one such limitation, 20 C.F.R. § 10.607 provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.12 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. The
evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.13
To demonstrate clear evidence of error, 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.14 Evidence
that does not raise a substantial question concerning the correctness of OWCP’s decision is
insufficient to demonstrate clear evidence of error.15 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.16 A determination of
whether the claimant has demonstrated clear evidence of error entails a limited review of how
the evidence submitted with the reconsideration request bears on the evidence previously of
record.17
ANALYSIS
In the present case, the last decision on the merits was dated August 28, 2014. As noted
above, a timely reconsideration request must be received by OWCP within one year of the merit
decision. Timeliness is determined by the document receipt date of the reconsideration request
(the received date in the Integrated Federal Employees Compensation System (iFECS).18 If the
request for reconsideration has a document received date greater than one year, the request must
be considered untimely.19 Although the reconsideration request was dated August 28, 2015, it
was not received until September 3, 2015. It was therefore untimely with respect to the
August 28, 2014 OWCP decision.
As an untimely reconsideration request, appellant must demonstrate clear evidence of
error by OWCP. The Board finds that the reconsideration request and the evidence do not
demonstrate clear evidence of error in this case.

11

Supra note 3.

12

20 C.F.R. § 10.607 (2012).

13

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

14

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

15

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

16

Id.

17

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

18

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

19

T.E., Docket No. 16-0574 (issued August 18, 2016).

4

In the merit decision, OWCP found that appellant had not established compensable work
factors. Appellant had alleged that he had an emotional condition from what he felt was a job
requirement: that he perform little or no work. OWCP found that work assignments, and the
monitoring and direction of such assignments, were administrative functions and no error or
abuse was established.
The reconsideration request does not demonstrate clear evidence of error by OWCP. On
reconsideration appellant again argued that he felt there was a compensable work factor, but he
did not clearly demonstrate evidence of error. OWCP found that he had reacted to administrative
actions of the employing establishment, and correctly noted that such actions are compensable
only if error or abuse is shown.20
The nonmedical evidence submitted on reconsideration does not demonstrate clear
evidence of error. The term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error.
Evidence such as a detailed, well-rationalized report, which if submitted prior to OWCP’s denial,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error and would not require a review of a case.21 The brief portion of May 2015
transcripts from a supervisor, Dr. Carethers, indicated only that appellant had reported he was
feeling stressed from a lack of work. The transcripts from medical providers also do not
demonstrate clear evidence of error. A medical issue is only presented once a compensable work
factor is established.22
On appeal counsel again argues that appellant established a compensable work factor
based on lack of work. As indicated above, it is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.23
Appellant’s reconsideration request was untimely filed and failed to demonstrate clear
evidence of error by OWCP. OWCP properly declined to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to demonstrate clear evidence of error.

20

The Board has found that an administrative or personnel matter may be a factor of employment where the
evidence discloses error or abuse by the employing establishment. See Michael Thomas Plante, 44 ECAB 510
(1993); Kathleen D. Walker, 42 ECAB 603 (1991).
21

J.S., supra note 17; James R. Mirra, 56 ECAB 738 (2005); supra note 14.

22

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

23

Supra note 15.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 27, 2015 is affirmed.
Issued: December 15, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 09-1196
Issued: November 17, 2009

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 2, 2009 appellant, through his attorney, filed a timely appeal of the June 30,
2008 merit decision of the Office of Workers’ Compensation Programs and the February 6, 2009
Office hearing representative’s merit decision, respectively, denying his claim for wage-loss
compensation. Pursuant to 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 is entitled to wage-loss compensation for disability from
December 4, 2007 to February 2, 2008 due to his accepted employment-related injuries.
FACTUAL HISTORY
On January 10, 2008 appellant, then a 62-year-old transportation security officer, filed a
traumatic injury claim alleging that on December 2, 2007 he experienced severe pain in his upper
back radiating down his left arm to below the elbow and lesser pain in his right shoulder as a
result of moving a chair on wheels and a stripped station or closed sign, and reaching into a

storage bin. He stopped work on December 22, 2007.1 By letter dated February 20, 2008, the
Office accepted appellant’s claim for cervical and thoracic sprains.
On February 27, 2008 appellant filed claims for wage-loss compensation for the period
December 4, 2007 to February 2, 2008. Time analysis forms indicated that he was off work
during the claimed period. In an undated narrative statement, appellant described his
employment-related and nonemployment-related accidents covering the period 1953 to
December 22, 2007. An undated disability certificate of a physician whose signature is illegible
stated that appellant could return to full-duty work on December 26, 2007. A December 28,
2007 disability certificate of Dr. David Nahali, a chiropractor, advised that appellant was unable
to work until January 3, 2008 due to an automobile accident. In a January 4, 2008 disability
certificate, he reported that appellant was unable to work until further notice. A December 31,
2007 disability certificate of Dr. Christopher C. Lingan, Board-certified in emergency medicine,
advised that appellant could return to light-duty work as of January 3, 2008. In a January 16,
2008 disability certificate, Dr. Mark Ott, a chiropractor, stated that appellant was unable to work.
By letter dated April 28, 2008, the Office advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit medical evidence establishing
he was totally disabled from December 4, 2007 to February 2, 2008 due to his accepted
December 2, 2007 employment injuries. Appellant was afforded 30 days to submit the requested
evidence. He did not respond.
By decision dated June 30, 2008, the Office denied appellant’s claim for wage-loss
compensation for the period December 4, 2007 to February 2, 2008. It found the evidence
insufficient to establish that he was totally disabled due to his accepted December 2, 2007
employment-related injuries. In a July 8, 2008 letter, appellant, through counsel, requested a
telephonic hearing before an Office hearing representative.
By decision dated February 6, 2009, an Office hearing representative affirmed the
June 30, 2008 decision. He found the evidence insufficient to establish that appellant was
disabled from December 4, 2007 to February 2, 2008 due to his accepted employment injuries.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.2 For each period of
disability claimed, the employee has the burden of establishing that he was disabled for work as
a result of the accepted employment injury.3 Whether a particular injury causes an employee to
become disabled for work and the duration of that disability are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.4 The fact that a
1

In a February 20, 2008 decision, the Office denied appellant’s claim for continuation of pay.

2

See Prince E. Wallace, 52 ECAB 357 (2001).

3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Gary J. Watling, 52 ECAB 278 (2001).

2

condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.5 The Board will not require the Office to pay
compensation for disability in the absence of medical evidence directly addressing the specific
dates of disability for which compensation is claimed. To do so would essentially allow an
employee to self-certify his disability and entitlement to compensation.6
ANALYSIS
The Office accepted that appellant sustained cervical and thoracic sprains while in the
performance of duty on December 2, 2007. Appellant sought compensation for wage loss,
contending that he was totally disabled from December 4, 2007 to February 2, 2008. He has the
burden of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between the claimed disability and the accepted conditions.7 The Board finds that
appellant did not submit sufficient medical evidence to establish employment-related disability
for the period claimed due to his accepted injuries.
The Board finds that Dr. Nahali’s and Dr. Ott’s disability certificates are insufficient to
establish appellant’s claim. The term “physician” under 8101(2) of the Act includes
chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist.8 Neither Dr. Nahali nor Dr. Ott diagnosed a spinal subluxation based on x-ray.
Therefore, their disability certificates are of no probative medical value.9
Dr. Lingan’s December 31, 2007 disability certificate advised that appellant could return
to light-duty work as of January 3, 2007. However, he did not address the issue of whether
appellant’s total disability during the claimed period was causally related to his accepted
December 2, 2007 employment injuries. The Board finds, therefore, that Dr. Lingan’s disability
certificate is insufficient to establish appellant’s claim.
The undated disability certificate, which contained an illegible signature, does not
constitute probative medical evidence as this evidence lacks any indication that it was completed
by a physician.10
Appellant has failed to submit rationalized medical evidence establishing that his
disability during the period December 4, 2007 to February 2, 2008 resulted from the residuals of
his accepted employment-related cervical and thoracic sprains.

5

Manuel Garcia, 37 ECAB 767 (1986).

6

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Alfredo Rodriguez, 47 ECAB 437 (1996).

8

5 U.S.C. § 8101(2); see Paul Foster, 56 ECAB 208 (2004).

9

See Michelle Salazar, 54 ECAB 523 (2003).

10

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

3

CONCLUSION
The Board finds that appellant has not met his burden to establish entitlement to wageloss compensation for total disability from December 4, 2007 to February 2, 2008 due to his
accepted employment-related injuries.
ORDER
IT IS HEREBY ORDERED THAT the February 6, 2009 and June 30, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 17, 2009
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

4