United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 14-969
Issued: August 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 24, 2014 appellant, through her attorney, filed a timely appeal from a
January 15, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the decision.
ISSUE
The issue is whether appellant met her burden of proof to establish a permanent
impairment due to the accepted right shoulder and back conditions.
On appeal appellant’s attorney asserts that the January 15, 2014 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In an October 8, 2010 decision, the
Board found that OWCP met its burden of proof to terminate appellant’s compensation benefits
for the accepted orthopedic conditions on August 1, 2008 on the grounds that she had no
employment-related residuals, that she did not establish that she had any continuing
employment-related disability or condition after that date due to these conditions, and that she
did not meet her burden of proof to establish entitlement to disability compensation for the
accepted emotional condition.2 The law and facts of the previous Board decision are
incorporated herein by reference.
On September 22, 2011 appellant’s attorney requested a schedule award. He submitted a
September 2, 2011 report in which Dr. William N. Grant, a Board-certified internist, noted the
history of injury and accepted diagnoses. Counsel reported appellant’s complaints of pain and
paresthesias in the right shoulder, radiating into the arm and painful paresthesias radiating into
both lower extremities. Dr. Grant indicated that appellant was at maximum medical
improvement with a QuickDASH score of 53. Right shoulder examination demonstrated
tenderness to palpation and limited range of motion. On examination of the lumbar spine,
heel/toe and straight leg tests were positive with limited range of motion and diminished deep
tendon reflexes. Dr. Grant referenced Table 15-5, Shoulder Adjustment Grid, of the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides).3 He indicated that appellant had a class 1 upper extremity
impairment and, after applying the net adjustment formula to each individual calculation, advised
that she had 2 percent upper extremity impairment due to the right shoulder sprain, 1 percent
impairment due to right rotator cuff syndrome, and 1 percent impairment due to right shoulder
region disorder; and that under Table 15-20, Brachial Plexus Impairment, she had an additional
13 percent impairment due to peripheral nerve impairment, for a total 17 percent impairment of
the right upper extremity. Dr. Grant further found that, under Table 16-12, Lower Extremity
Peripheral Nerve Impairment, she had a class 2, moderate motor deficit of the sciatic nerve,
applied the net adjustment formula and concluded that appellant had 25 percent impairment of
each lower extremity.
In a November 17, 2011 report, Dr. Nabil F. Angley, an OWCP medical adviser and
Board-certified orthopedic surgeon, reviewed Dr. Grant’s September 2, 2011 report. He
indicated that Dr. Grant’s impairment rating summaries were not clear and did not comport with
all the requirements required by OWCP. Dr. Angley indicated that it would be appropriate to
refer appellant for a second-opinion evaluation.

2

Docket No. 10-249 (issued October 8, 2010). On January 5, 2003 appellant, a transportation security screener,
injured her back and right shoulder lifting luggage. She stopped work that day. OWCP accepted that appellant
sustained employment-related right shoulder sprain and impingement, right rotator cuff tendinitis, and back sprain
and she was placed on the periodic compensation rolls. On November 4, 2003 appellant underwent arthroscopic
repair of labral and rotator cuff tears. The claim was later expanded to include aggravation of lumbar degenerative
disc disease and mood disorder.
3

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

2

In December 2011, OWCP referred appellant to Dr. Emmanuel N. Obianwu, a Boardcertified orthopedic surgeon, for a second opinion evaluation and impairment calculation. In a
December 14, 2011 report, Dr. Obianwu noted his review of the statement of accepted facts and
medical record, and appellant’s complaints of incapacitating problems and constant pain in the
right shoulder and lower back. He provided physical examination findings, noting complaints of
pain on range of motion testing of the right shoulder and a vaguely positive straight leg raising
test on the left. Dr. Obianwu diagnosed mild impingement syndrome with labral tear of the right
shoulder; status post arthroscopy with repair of anterior labral tear and arthroscopic debridement
of partial surface tearing, status post subacromial decompression; and lumbar spondylosis with
involvement, especially of the lower two levels of the lumbar spine. He reviewed the 2003
operative report and objective testing including magnetic resonance imaging (MRI) scan studies
of the right shoulder and lumbar spine. Dr. Obianwu indicated that, based on his findings,
appellant had no residuals remaining in the right shoulder or lower back attributable to the
accepted conditions, noting that she had no neurologic deficits in the lower extremities, and only
degenerative changes on objective studies. He concluded that, because of this, appellant had no
permanent impairment due to the right shoulder and lower back conditions.
In a March 15, 2012 report, Dr. Angley reviewed Dr. Obianwu’s December 14, 2012
report. He advised that, based on Dr. Obianwu’s findings, appellant had no residuals due to the
January 5, 2003 employment injury that would entitle her to a schedule award.
In a May 29, 2013 decision, OWCP denied appellant’s claim for a schedule award
finding that the medical evidence did not show a measurable impairment. Appellant, through her
attorney, timely requested a hearing, that was held on October 25, 2013. Appellant’s attorney
indicated that a new medical report was forthcoming.
In a September 27, 2013 report, Dr. Jessica Glazer Volsky, an osteopath, noted
appellant’s history of injury and her complaint of constant right shoulder and lower back pain
with weakness and numbness of all extremities that limited her activities of daily living.
Examination of the right shoulder demonstrated tenderness to palpation and decreased range of
motion with forward flexion to 100 degrees, extension to 35 degrees, abduction to 80 degrees,
internal rotation to 50 degrees and supination to 40 degrees. Dr. Volsky diagnosed right sprain
of shoulder and upper arm, right disorder of bursae and tendons and other affections of the
shoulder region. She advised that, in accordance with section 15.7 and Table 15-34 of the
A.M.A., Guides, based on range of motion deficits, appellant had 12 percent impairment of the
right upper extremity. Dr. Volsky provided no lower extremity impairment rating.4
In a January 15, 2014 decision, an OWCP hearing representative indicated that
Dr. Volsky did not provide an opinion on causal relationship regarding her findings. She
affirmed the May 20, 2013 decision on the grounds that appellant had not presented evidence
demonstrating that her work injury resulted in a permanent impairment.

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Appellant submitted additional medical evidence that did not include an impairment rating.

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LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).11 The sixth edition of the A.M.A., Guides also provides that under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.
An impairment rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.13 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 385-419.

11

Id. at 411.

12

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
13

Pamela J. Darling, 49 ECAB 286 (1998).

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schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.14
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.15 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009 The Guides Newsletter.16
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.17 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.18
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish a ratable
impairment. The accepted conditions are right shoulder sprain and impingement, right rotator
cuff tendinitis and back sprain. Appellant’s wage-loss compensation and medical benefits for the
orthopedic conditions were terminated on August 1, 2008, and affirmed by the Board on
October 8, 2010.19 The determination that appellant no longer had residuals of the accepted
orthopedic conditions as of August 1, 2008 does not preclude consideration of a schedule award
for any impairment related to her accepted conditions discovered or realized at a later date.20
The record contains three impairment evaluations, one by Dr. Grant, an attending
internist, who concluded that appellant had a total 17 percent right upper extremity impairment
under Table 15-5, for diagnoses of right shoulder sprain, right rotator cuff syndrome, right
shoulder disorder, and peripheral nerve impairment. Section 15.2e of the A.M.A., Guides
indicates that in rating the shoulder under Table 15-5, the evaluator is to choose the most
significant diagnosis and rate only that diagnosis, and use the modifiers for increasing
impairment.21 Dr. Grant did not follow these instructions but rather found impairments due to
14

Thomas J. Engelhart, 50 ECAB 319 (1999).

15

Rozella L. Skinner, 37 ECAB 398 (1986).

16

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides Newsletter is included as Exhibit 4.
17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
18

Peter C. Belkind, 56 ECAB 580 (2005).

19

Supra note 2.

20

B.S., Docket No. 09-195 (issued October 9, 2009).

21

A.M.A., Guides, supra note 3 at 390.

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right shoulder sprain, right rotator cuff syndrome, and right shoulder region disorder for two
percent, one percent and one percent respectively which he added for a four percent impairment.
He additionally found 13 percent impairment for peripheral nerve impairment under Table 1520. Under the A.M.A., Guides, peripheral nerve impairments may be combined with diagnosisbased impairments as long as the diagnosis-based impairment does not encompass the nerve
impairment.22 Dr. Grant did not provide an explanation as to why appellant was entitled to a
peripheral nerve impairment for the diagnosed conditions, merely noting on right upper
extremity examination that there was tenderness to palpation of the right deltoid and limited
range of motion. Thus, his report is of limited probative value regarding appellant’s right arm
impairment. Dr. Grant further concluded that under Table 16-12 appellant had 25 percent
impairment of each leg due to a moderate motor deficit caused by sciatic nerve injury. In this
case, however, as noted above, in rating lower extremity impairment caused by a spinal injury,
section 3.700 of OWCP procedures indicate that the proposed tables outlined in a
July/August 2009 The Guides Newsletter are to be used.23 Dr. Grant did not follow guidelines
for determining lower extremity peripheral nerve impairment. He did not utilize the proposed
tables with regard to appellant’s lower extremities. Moreover, Dr. Grant did not provide medical
rationale explaining how the accepted soft tissue injury, lumbar sprain, resulted in bilateral
impairment to the lower extremities.24 His opinion is therefore of diminished probative value
regarding his lower extremity impairment ratings.25
In a September 27, 2013 report, Dr. Volsky, an attending osteopath, rated appellant’s
right upper extremity utilizing the range of motion method. The A.M.A., Guides provides that,
under certain circumstances, range of motion may be selected as an alternative approach in rating
impairment. An impairment rating that is calculated using range of motion may not be combined
with a diagnosis-based impairment and stands alone as a rating.26 Dr. Volsky, who did not
provide an impairment rating for appellant’s lower extremities, indicated that appellant had three
percent impairment due to loss of right shoulder forward flexion, one percent impairment due to
loss of extension, six percent impairment due to loss of abduction, and two percent impairment
due to loss of internal rotation, for a total 12 percent right arm impairment. Section 15.7 of the
A.M.A., Guides provides that diagnosis-based impairment is the method of choice for calculating
impairments, and the range of motion method is to be used principally as a factor in the
adjustment grid modifiers.27 Section 15.7a describes the methodology to be used in assessing
motion and explains that both active and passive measurements are to be provided after a warmup period and that three separate measurements are to be done.28 Dr. Volsky included only one
22

Id. at 419; see C.K., Docket No. 09-2371 (issued August 18, 2010).

23

Supra note 16.

24

See Lela M. Shaw, 51 ECAB 372 (2000).

25

M.W., Docket No. 13-928 (August 15, 2013).

26

A.M.A., Guides, supra note 3 at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated
using range of motion are followed by an asterisk.
27

Id. at 461.

28

Id. at 461-64.

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measurement which she did not identify as active or passive. She also did not provide medical
reasoning to explain why any permanent impairment was causally related to the resolved
accepted conditions.29 Thus, her report is of diminished probative value regarding whether
appellant has a work-related right arm impairment.
Dr. Obianwu, who reviewed the medical record including diagnostic studies, provided a
comprehensive second-opinion evaluation for OWCP. He advised that based on his findings,
appellant had no residuals remaining in the right shoulder or lower back attributable to the
accepted conditions, noting that she had no neurologic deficits in the lower extremities, and only
degenerative changes on objective studies. He concluded that, because appellant had no
measurable residual of the accepted conditions, she had no impairment of the right shoulder or
lower back.
As the reports of Dr. Grant and Dr. Volsky do not comport with the A.M.A., Guides, they
are of diminished probative value and insufficient to establish appellant’s right arm or bilateral
lower extremity impairment causally related to her employment conditions.30 The Board finds
that OWCP was proper in placing the weight of evidence on Dr. Obianwu.
CONCLUSION
The Board finds that appellant did not establish a permanent impairment due to the
accepted right shoulder and back conditions.

29

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to her employment).
30

See M.P., Docket No. 13-2087 (issued April 8, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Manchester, NH, Employer
__________________________________________

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

Docket No. 12-358
Issued: July 11, 2012

Case Submitted on the Record

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

JURISDICTION
On November 30, 2011 appellant filed a timely appeal from August 12 and October 20,
2011 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP) denying
his requests for reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.

1

The last merit decision in this case was the April 4, 2011 hearing representative decision, which denied
authorization for spinal foramina epidural injections. For final adverse OWCP decisions issued prior to
November 19, 2008, a claimant had up to one year to file an appeal. 20 C.F.R. § 501.3(d)(2). For final adverse
decisions of OWCP issued on or after November 19, 2008, a claimant must file an appeal within 180 days of the
decision. 20 C.F.R. § 501.3(e). Because more than 180 days elapsed between the most recent merit decision of
April 4, 2011 to the filing of this appeal on November 30, 2011, the Board lacks jurisdiction to review the merits of
this case.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s May 18 and September 26, 2011
requests for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 20, 2004 appellant, then a 58-year-old pipe fitter leader, filed a traumatic injury
claim alleging that on May 19, 2004 he experienced right shoulder pain and sustained a
contusion to the head when he fell off a ladder. He stopped work and did not return. OWCP
accepted appellant’s claim for right shoulder rotator cuff tear, head contusion, abrasions of the
face, neck strain and right diaphragm paralysis. Appellant received temporary total disability
compensation and underwent right shoulder arthroscopy, open rotator cuff repair, right
thoracotomy and placation of right diaphragm.
On November 6, 2009 OWCP referred appellant to Dr. Joel Saperstein, a Board-certified
orthopedic surgeon, for a second-opinion examination to determine whether he had residuals of
his accepted work-related injuries. In a December 3, 2009 report, Dr. Saperstein reviewed
appellant’s medical history and the statement of accepted facts. Upon examination, he observed
normal heel/toe gait, normal reflexes in the lower extremities and normal straight leg raise.
Examination of the neck revealed full range of motion of the neck in extension, flexion, lateral
rotation and lateral flexion with no significant pain and no subjective complaints of a radicular
component into the left lower arm. Dr. Saperstein found that appellant had residuals of the
May 19, 2004 work-related injury and was not capable of returning to his preinjury job as a pipe
fitter. He opined that the only reason appellant was not able to return to work in his usual
occupation was due to his significant chest problems. Dr. Saperstein stated that appellant could
perform a different job position within work restrictions related to his thoracic condition. He
reported that appellant had reached maximum medical improvement regarding his neck and
shoulder conditions, but he could not address appellant’s chronic shortness of breath and phrenic
nerve problems as he was an orthopedic surgeon. In an attached work capacity evaluation,
Dr. Saperstein authorized appellant to return to work full time with restrictions but noted that his
lung condition should be addressed by an expert in that field.
In a January 11, 2010 report, Dr. Thomas J. Kleeman, a Board-certified orthopedic
surgeon, stated that he had treated appellant for his neck and shoulder pain since his 2004 injury.
He noted that a recent examination questioned the relationship between appellant’s current
symptoms and the 2004 injury, but stated that the medical record revealed that appellant
complained about neck pain for a long time. Dr. Kleeman noted that an x-ray showed
degenerative changes at C5-6 and C6-7 and that a magnetic resonance imaging (MRI) scan
demonstrated a disc protrusion left paracentral at C5-6 and bilateral foraminal narrowing at C6-7.
He conducted an examination and diagnosed cervical herniation with referred pain to the left
scapular area. Dr. Kleeman recommended cervical injections to help with appellant’s scapular
pain and stated that he would keep appellant out of work for now.
In a January 12, 2010 report, Dr. Aron M. Jeffrey, Board-certified in physical medicine
and rehabilitation, noted that appellant was referred to him by Dr. Kleeman. He reviewed
appellant’s history and conducted an examination. Dr. Jeffrey did not observe any atrophy,

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deformities and clear asymmetry to girth. Range of motion of the neck was limited in side
bending but normal in rotation and flexion. Dr. Jeffrey diagnosed cervical spine pain with
radiation to the left scapula and numbness in the C7 distribution. He noted that he would
administer a cervical epidural as requested.
On January 25, 2010 appellant submitted a request for spinal and foramina epidural
injections. OWCP authorized his request.
In a July 14, 2010 report, Dr. Kleeman stated that appellant had a work-related neck
injury and was temporarily off work until his work capacity could be established. He reported
that appellant needed a permanent set of work restrictions and that he would schedule a
functional capacity evaluation test for this purpose.
On August 4, 2010 OWCP found a conflict in medical opinion between Dr. Saperstein,
the second-opinion examiner, and Dr. Kleeman, appellant’s treating physician, regarding
appellant’s work capacity. It referred him for an impartial medical examination regarding his
residuals of the May 19, 2004 work-related injury.
In a September 28, 2010 report, Dr. Jonathan W. Sobel, a Board-certified orthopedic
surgeon selected as the impartial medical specialist, reviewed appellant’s medical history and
noted that his initial symptoms included right shoulder and neck pain and subsequent right
diaphragm paralysis. He noted that diagnostic studies revealed multiple age-related degenerative
changes in the cervical spine C4 through C7 with various disc bulges and disc osteophyte
complexes consistent with the diagnosis of cervical spondylodegenerative arthropathy. Upon
examination, Dr. Sobel observed that range of motion for forward flexion was such that appellant
was able to touch his knees, extend about 25 degrees and lateral bend 25 degrees. In the seated
position, appellant appeared to have nearly full range of motion of the cervical spine with the
exception of left lateral rotation, which was about 35 degrees. Examination of the right shoulder
revealed external rotation 45 degrees, full abduction and forward flexion. Examination of the
left shoulder revealed markedly reduced range of motion for external rotation, approximately
25 degrees, abduction was 90 degrees, forward flexion 80 degrees and difficulty with full
overhead abduction. Dr. Sobel also observed mild subacromial crepitation and a prominence of
both acromioclavicular (AC) joints. He stated that appellant had right shoulder rotator cuff
repair and phrenic nerve paralysis that was treated with surgery, but also suffered from
progressive age-related arthritis, diabetes and peripheral neuropathy.
Dr. Sobel reported that the medical record did not show that appellant developed cervical
arthritis, herniated disc or other major cervical problems as a result of the 2004 work-related
injuries. He explained that the most recent MRI scan showed some minor changes in the overall
cervical spondyloarthropathy but there was no evidence of acutely herniated disc or chronic
cervical condition related to his accident. Dr. Sobel opined that appellant’s ongoing condition
was probably due to his age and mild-to-moderate cervical degenerative disc disease and that his
shoulder pain reflected an impingement-type syndrome more likely than not due to progressive
type 2 acromion and AC joint subacromial spurring that was clearly not caused by his accident.
He stated that the medical record and appellant’s examination did not support any ongoing
significantly limiting factors due to the May 2004 work-related injury because the present
condition and limitations were related to the aging process. Dr. Sobel concluded that appellant’s

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May 2004 injuries had resolved and that he did not require additional medical treatment. He
found that appellant reached maximum medical improvement regarding his accepted injuries and
reported that his continued physical therapy therapeutic exercises, ultrasound, electrical
stimulation, cervical pneumatic equipment and injections did not appear to be causally required
as a result of his accepted conditions.
On October 19, 2010 appellant requested foramina epidural injections on his left side and
cervical spinal injections.
In a November 17, 2010 addendum, Dr. Sobel stated that he reviewed appellant’s medical
records and noted multiple nonwork-related conditions such as diabetes, hypertension,
pulmonary problems and thyroid problems. He reported that appellant’s right shoulder revealed
some residuals of status post rotator cuff repair, but range of motion and strength appeared good.
Dr. Sobel observed that appellant’s diaphragm and neck sprain appeared to have resolved and
that any residuals were entirely unrelated to appellant’s accepted injuries and probably due to his
degenerative disc disease. He opined that appellant was capable of working limited duty as a
result of his accepted condition but explained that further restrictions were needed for his
unrelated medical conditions.
In a decision dated December 9, 2010, OWCP denied authorization for spinal injections
and foramina epidural injections on the left side based on Dr. Sobel’s September 28, 2010
impartial medical examination. It noted that Dr. Sobel did not attribute appellant’s current
cervical arthritis, herniated disc or other major cervical problems to his accepted 2004 injuries
and explained that his ongoing conditions were due to his age. OWCP found that the injections
were not medically necessary as appellant had no residuals of his work-related injuries.
On December 29, 2010 appellant submitted a request for a review of the written record.
He stated that he had been examined by physicians for 6½ years and questioned how a referee
examiner could spend 15 minutes with him and undermine all his years of treatment. Appellant
resubmitted Dr. Kleeman’s January 11, 2010 report and the September 28, 2010 impartial
medical examination report.
Appellant also resubmitted a September 25, 2006 report by Dr. Dennis Wachs, an
orthopedic surgeon, who described appellant’s May 19, 2004 work-related injury and medical
treatment received for the head, neck and shoulder conditions. Dr. Wachs reported that
appellant’s neck and right shoulder continued to bother him as a result of an aggravation of a
disc. He concluded that appellant’s continued difficulties were related to his May 19, 2004 fall
at work.
In a January 25, 2011 work capacity evaluation report, Dr. Kleeman diagnosed cervical
disc herniation and stated that appellant was able to work eight hours per day with restrictions.
He limited appellant to sitting, walking, standing, reaching, reaching, twisting, bending and
stooping 30 minutes at a time and no more than three hours per day.
In a March 11, 2011 report, Dr. Jeffrey stated that he had treated appellant for neck pain
and explained that he suffered from chronic right C7 radiculopathy, which had been treated in
the past with physical therapy and a C6-7 transforaminal epidural steroid injection. He

4

concluded that, due to appellant’s current symptoms and the C7 radiculopathy, repeating C6-7
transforaminal epidural steroid injection was a medically necessary course of treatment.
By decision dated April 4, 2011, an OWCP hearing representative affirmed the
December 9, 2010 decision denying authorization for epidural and spinal injections. The hearing
representative determined that the weight of the medical evidence rested with Dr. Sobel’s
impartial medical examination report. Appellant’s accepted conditions had resolved and the
epidural injections were not medically warranted.
In a form dated May 18, 2011, appellant submitted a request for reconsideration. He
contended that the impartial medical examiner knew nothing about his case and stated that all he
wanted was relief from his back pain and discomfort. Appellant resubmitted April 2010
diagnostic test results and Dr. Jeffrey’s March 11, 2011 report.
In a decision dated August 12, 2011, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
review under 5 U.S.C. § 8128(a).
In a letter dated September 26, 2011, appellant submitted a request for reconsideration
and resubmitted the September 28, 2010 impartial medical examination and Dr. Kleeman’s
January 11, 2010 report. He also resubmitted July 23, 2004 and March 10, 2005 treatment notes
by Dr. Wachs and a March 18, 2005 report by Dr. Lawrence M. Hoepp, a Board-certified general
surgeon, which noted appellant’s treatment for his pulmonary condition.
In a September 14, 2011 report, Stephen Ellis, a physical therapist, stated that he had
worked with appellant following his May 19, 2004 work-related injury and treated him for his
right shoulder condition. He described appellant’s medical treatment and related that his
shoulder rehabilitation progressed very well. Mr. Ellis reported that they also worked on
appellant’s cervical pain and ongoing problems of pain in the posterior scapular and cervical
region. He opined that all of the above-mentioned issues were directly related to the 2004 injury.
By decision dated October 20, 2011, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant further merit
review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district OWCP.4

3

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).

5

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.6 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.8
ANALYSIS
The Board has no jurisdiction to review the April 4, 2011 decision of the OWCP hearing
representative denying authorization for epidural spinal injections. Appellant did not file a
timely appeal of that decision and it is not before the Board on this appeal. The only decisions
the Board may review are the August 12 and October 20, 2011 nonmerit decisions denying his
requests for reconsideration. The Board finds that OWCP properly denied appellant’s requests
for reconsideration because his requests did not meet any of the requirements for obtaining merit
review.
In support of his requests for reconsideration, appellant resubmitted various medical
records previously of record and reviewed. The submission of evidence which repeats or
duplicates evidence already of record and considered by OWCP does not constitute a basis for
reopening a case and is insufficient to warrant further merit review.9 The September 14, 2011
physical therapy report was also insufficient to warrant further merit review because a physical
therapist is not a physician as defined under FECA.10 The physical therapy reports are not
considered probate medical evidence and are not relevant to the issue on appeal.11 Appellant did
5

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6

Id. at C.F.R. § 10.607(a).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

9

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

10

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. As nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined
by FECA, their medical opinions regarding diagnosis and causal relationship are of no probative medical value.
5 U.S.C. § 8101(2); E.H., Docket No. 08-1862 (issued July 8, 2009); S.E., Docket No. 08-2214 (issued May 6,
2009); see also Roy L. Humphrey, 57 ECAB 238 (2005).
11

C.O., Docket No. 11-562 (issued November 10, 2011).

6

not show that OWCP erroneously applied or interpreted a specific point of law. He did not
advance a relevant legal argument nor submit relevant medical evidence not previously
considered by OWCP. Accordingly, OWCP properly denied appellant’s requests for
reconsideration as he did not meet any of the requirements sufficient to warrant merit review.
On appeal, appellant described his May 19, 2004 injury and related his medical
treatments. He pointed out that he only spent 15 minutes with the impartial medical examiner
who determined that he did not suffer from any residuals of his accepted injury. Appellant’s
assertions, however, do not satisfy any of the criteria necessary to reopen a case for merit review
as they do not show that OWCP erroneously applied a specific point of law nor advance any new
legal argument.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP did not abuse its discretion by denying appellant’s May 18
and September 26, 2011 requests for reconsideration pursuant to 5 U.S.C. § 8128(a).

7

ORDER
IT IS HEREBY ORDERED THAT the October 20 and August 12, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 11, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 08-2111
Issued: May 7, 2009

Case Submitted on the Record

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

JURISDICTION
On July 28, 2008 appellant filed a timely appeal from the June 6, 2008 merit decision of
the Office of Workers’ Compensation Programs’ regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the overpayment
issue.1
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $575.20 during the period July 30 to August 4,
2007; and (2) whether the Office properly found that appellant was at fault in the creation of this
overpayment and therefore not entitled to waiver.

1

The record also contains a February 19, 2008 Office decision regarding a schedule award. As appellant has not
appealed from this decision, the Board will not address the merits of the schedule award.

FACTUAL HISTORY
On January 23, 2007 appellant, then a 32-year-old border patrol agent, sustained injury
when he fell into an irrigation ditch and fractured his left ankle. On January 29, 2007 he had
surgery for a left ankle open reduction and internal fixation of the lateral malleoulus. The Office
accepted appellant’s claim for left ankle fracture. On March 27, 2007 it placed appellant on its
periodic rolls in receipt of compensation every 28 days.
By letter dated April 5, 2007, the Office informed appellant that he would receive
$2,984.37 in gross compensation every 28 days. Appellant was advised that his compensation
would continue so long as the medical evidence supported his inability to work. Additionally, he
was advised that he must “NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU RETURN
TO WORK.” If appellant worked for any portion of the period for which compensation was
received, he was to return the check to the Office or an overpayment of compensation would
result. The record reflects that he received wage-loss compensation through direct deposit.
Appellant returned to work on July 30, 2007.
On April 28, 2008 the Office has made a preliminary finding that appellant received an
overpayment of $575.20 because he returned to work on July 30, 2007 but received
compensation benefits for total disability through August 4, 2007. On an attached April 25, 2008
worksheet, it noted that appellant received gross compensation for the period July 8 to August 4,
2007 in the amount of $2,984.37. The Office deducted $268.60 for health benefits, $14.40 for
basic life insurance and $17.10 for optional life insurance, for a net payment of $2,684.27. It
divided the net payment of $2,684.27 by the 28-day periodic rolls cycle to find appellant’s daily
entitlement of $96.87. The Office multiplied $96.87 by six days of overpayment for the period
July 30 to August 4, 2007 to find an overpayment of $575.20.2 It found that appellant was with
fault in the creation of the overpayment because he accepted a payment for total disability which
he knew or reasonably should have known was incorrect. Appellant was informed of his right to
challenge the amount of the overpayment or request a waiver of the overpayment. If he wished a
waiver of the overpayment, he was specifically directed to submit financial information by
completing an overpayment recovery questionnaire.
On May 20, 2008 appellant submitted a completed overpayment recovery questionnaire.
In a decision dated June 6, 2008, the Office finalized the overpayment in the amount of
$575.20. It further found that appellant was at fault as he knew or should have known that he
was not entitled to dual compensation from the Office and the employing establishment. The
Office directed repayment in full.

2

The Board notes that this amounts to $575.19, which the Office rounded up to $575.20.

2

The record reflects that on July 21, 2008 appellant agreed to repay the overpayment at a
rate of $100.00 per month. On appeal, he contests the Office’s June 6, 2008 decision.3
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.4 A claimant, however, is not entitled to receive
temporary total disability and actual earnings for the same period. Office procedures provide
that an overpayment in compensation is created when a claimant returns to work but continues to
receive wage-loss compensation.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $575.20. The record reflects that he returned to work effective July 30, 2007; however, he
received compensation for temporary total disability through August 4, 2007. As noted,
appellant is not entitled to receive wage-loss compensation for temporary total disability after he
has returned to work and resumed earning his salary.6 Accordingly, an overpayment of
compensation has been created.
The Board notes that the Office records show that appellant received gross compensation
for the period July 8 to August 4, 2007 in the amount of $2,984.37. It indicated that the amount
of $268.60 was deducted for health benefits, $14.40 for basic life insurance and $17.10 for
optional life insurance for a net payment of $2,684.27. The Office divided the net payment of
$2,684.27 by the 28-day periodic rolls cycle to find appellant’s daily entitlement of $96.87,
which when multiplied by 6 days of overpayment for the period July 30 to August 4, 2007,
resulted in an overpayment of $575.20.7
Consequently, appellant received an overpayment of compensation from July 30 through
August 4, 2007 in the amount of $575.20. There is no contrary evidence regarding the fact of
and the amount of the overpayment. The Board will affirm the Office’s finding on the fact and
the amount of the overpayment. Accordingly, appellant received an overpayment, as he returned
to work and continued to receive compensation.
3

Appellant submitted a check dated July 21, 2008 made out to the Office for $100.00. The Clerk of the Board
returned this check to appellant on August 4, 2008 as the Office and the Board are separate agencies within the
Department of Labor. The Board notes that its jurisdiction only extends to reviewing final decisions of the Office
arising under the Act. See 20 C.F.R. § 501.2(c).
4

5 U.S.C. § 8116(a).

5

Danny E. Haley, 56 ECAB 393 (2005). See Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (May 2004).
6

See Neill D. Dewald, 57 ECAB 451 (2006).

7

See supra note 2.

3

LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act provides that adjustment or recovery by the United States may
not be made when incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.8 No waiver of an overpayment is possible if the claimant is at fault in creating
the overpayment.9
On the issue of fault, 20 C.F.R. § 10.433(a) provides in pertinent part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
(2) Failed to provide information which the individual knew or should
have known to be material; or
(3) Accepted a payment which the individual knew or should have been
expected to know was incorrect.”10
With respect to whether an individual is without fault, 20 C.F.R. § 10.433(b) of the
Office’s regulations provides in relevant part:
“(b) Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”11
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit, which involve a series of payments over several
months with clear knowledge that the payments were incorrect.12 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or

8

5 U.S.C. § 8129(b).

9

Gregg B. Manston, 45 ECAB 344 (1994).

10

See Kenneth E. Rush, 51 ECAB 116 (1999).

11

20 C.F.R. § 10.433(b).

12

See Karen K. Dixon, 56 ECAB 145 (2004).

4

notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.13
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. It determined that appellant was at fault in creating the overpayment of
$575.20 based on its finding that he knew or should have known that the payments received by
direct deposit from July 30 through August 4, 2007 were not proper because he had returned to
work. Even if the overpayment resulted from negligence on the part of the Office, this does not
excuse the employee from accepting payment which he knew or should have known that he was
not entitled.14 Appellant was apprised by letter dated April 5, 2007 that he must “NOTIFY THIS
OFFICE IMMEDIATELY WHEN YOU RETURN TO WORK.” The Office also indicated that,
if appellant worked for any portion of the period for which compensation was received, appellant
must return the check to it or an overpayment of compensation would result.
The record reflects that appellant received a direct deposit on August 4, 2007 in the gross
amount of $2,984.37 containing the portion of the overpayment covering the period July 30
through August 4, 2007. The Board has held that an employee who receives payment from the
Office in the form of direct deposit may not be at fault the first time incorrect funds are deposited
into his account, as the acceptance of the resulting overpayment lacks the requisite knowledge.15
The Board has found a claimant to be at fault in cases where he or she is receiving compensation
checks through direct deposit which involve a series of payments over several months with clear
knowledge that the payments were incorrect.16 It is not appropriate to make a finding that a
claimant has accepted an overpayment through direct deposit until such time as a reasonable
person would have been aware that an overpayment has occurred. This awareness may be
established either through documentation such as a bank statement or notification from the
Office or where a reasonable period of time has passed during which a claimant could have
reviewed independent confirmation of the incorrect payment.17
The Board finds that appellant was without fault in creating the overpayment. While he
accepted the overpayment by gaining control of the funds deposited into his bank account, he did
not know that he would receive an incorrect payment on that day.18 Unlike the situation where a
claimant receives a physical check and is aware of the amount of the payment before depositing
it into his account, appellant was not on notice of the amount of the payment until after it was
deposited electronically into his account.19 There is no evidence of record in this case to show
13

See K.H., Docket No. 06-191 (issued October 30, 2006). See Tammy Craven, 57 ECAB 689 (2006).

14

See Russell E. Wageneck, 46 ECAB 653 (1995).

15

See Karen K. Dixon, supra note 12.

16

Id.

17

Id.

18

See Tammy Craven, supra note 13.

19

Id.

5

that appellant was aware that he had accepted an incorrect payment by direct deposit for the
compensation payment that included the period July 30 through August 4, 2007. A finding of no
fault does not mean, however, that the claimant may keep the money, only that the Office must
consider his eligibility for waiver for this period. The case will be remanded to the Office to
determine whether he is entitled to waiver of the overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation during the period July 30 through August 4, 2007 in the amount of
$575.20. The Board further finds that appellant was without fault in the creation of the
overpayment for the period July 30 through August 4, 2007.
ORDER
IT IS HEREBY ORDERED THAT the June 6, 2008 decision of the Office of Workers’
Compensation Programs is affirmed, in part, and set aside, in part and the case remanded for
further proceedings consistent with this opinion of the Board.
Issued: May 7, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 11-182
Issued: September 12, 2011

Case Submitted on the Record

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

JURISDICTION
On October 29, 2010 appellant filed a timely appeal from a July 1, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) concerning her schedule award claim.
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 claim.
ISSUE
The issue is whether appellant established that she has any permanent impairment of the
right upper extremity causally related to her accepted employment-related conditions.
FACTUAL HISTORY
On October 20, 1999 appellant, then a 37-year-old mail handler, was struck by a
container when a jeep towing a line of containers crossed the pathway of a cable-tow line pulling
containers, which caused the container to careen out of control. OWCP accepted the conditions
1

5 U.S.C. §§ 8101-8193.

of right wrist sprain; contusion of chest wall; left hip contusion and right knee sprain. Appellant
returned to full-time limited duty on February 16, 2000.2 OWCP paid benefits, including a
recurrence of total disability of November 10, 1999 and left knee surgery on July 11, 2005.
Appellant underwent a right carpal tunnel release in the 1980s for a nonwork-related condition.3
A May 16, 2006 electromyogram (EMG) test showed denervation of L5-S1, left side
greater than right side.
On November 17, 2007 Dr. Ernesto Tolentino, a Board-certified orthopedic surgeon,
performed an impartial medical examination of appellant regarding the nature and extent of her
work-related condition. He found evidence of prior surgery with regard to examination of the
upper extremities, including the elbow and wrist. Full range of motion of all digits, as well as
the wrist itself, were found. On the right distal phalanges of the second through fourth fingers,
Dr. Tolentino noted questionable hypesthesia with the rest of the hand essentially normal.
Palpation of the volar aspect of the wrist elicited some discomfort in the area of both median
nerves, which had prior surgical intervention. With respect to the right upper extremity,
Dr. Tolentino diagnosed status post sprain of the right shoulder and right upper extremity
resolved as well as status post sprain of right upper extremity, hand and wrist. He opined that
conditions that affected the cervical spine, the right upper extremity and the left wrist had
resolved. The remaining residuals affecting appellant’s left and right knees were found to be
permanent and directly related to the October 20, 1999 work injury.
In a February 27, 2008 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
noted appellant’s complaints included pain in the volar aspect of the right hand up to the elbow.
He recommended EMG and nerve conduction studies (NCS) of both upper extremities. Progress
reports on appellant’s other conditions, mainly her knees, were submitted.
On January 29, 2009 appellant requested a schedule award for both her left leg and right
arm. In a September 25, 2008 report, Dr. Arthur Becan, an orthopedic surgeon, noted the history
of injury, reviewed available medical records and set forth his examination findings. He
diagnosed the following right arm conditions: chronic strain and sprain to the right wrist; posttraumatic carpal tunnel syndrome to the right hand; and post-traumatic de Quervain’s disease to
the right wrist. Under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Becan opined that appellant had 36
percent right arm impairment. Copies of appellant’s QuickDASH scores for the right arm were
provided.
In a November 25, 2008 letter, Dr. Filippone noted that he agreed with Dr. Becan’s 36
percent impairment rating of the right upper extremity.

2

On October 28, 2008 OWCP found that her earnings as a modified mail handler fairly and reasonably
represented her wage-earning capacity and reduced her wage-loss compensation to zero.
3

Under claim number xxxxxx919, appellant has an accepted left wrist injury with a date of injury of
December 29, 2004, for which she underwent left carpal tunnel release on August 29, 2006.

2

On February 20, 2009 OWCP’s medical adviser reviewed the medical evidence,
including Dr. Becan’s September 25, 2008 report. He opined that appellant reached maximum
medical improvement on September 25, 2008. Based on Dr. Becan’s findings and the A.M.A.,
Guides, right arm impairment could not be accepted because the condition of carpal tunnel
syndrome was never accepted, only a right wrist sprain. OWCP’s medical adviser noted that
while appellant had right carpal tunnel release prior to the accepted work injury of December 20,
1999, Dr. Becan made no reference to it in his report and the treating surgeon never mentioned
the right wrist in any of his reports.
In a March 11, 2010 report, Dr. Filippone reexamined appellant’s right arm and
performed EMG and NCS studies. He stated that the EMG and NCS studies indicated that a
mild right carpal tunnel syndrome that was not present on June 6, 2008 studies.
In an April 12, 2010 letter, OWCP informed appellant that the medical evidence was
insufficient to support that her right carpal tunnel syndrome was causally related to the accepted
injury of October 20, 1999. It noted that a right wrist sprain was accepted as a result of the
October 20, 1999 work incident and her right carpal tunnel release in the late 1980s or early
1990s was nonwork related. OWCP requested a medical report from appellant’s treating
physician, including a rationalized medical opinion on the causal relationship, if any, between
the work injury and the condition for which she was now being treated. It also requested factual
and medical evidence pertaining to appellant’s preexisting carpal tunnel syndrome.
In a May 5, 2010 letter, appellant’s attorney submitted an impairment rating from
Dr. Becan under the sixth edition of the A.M.A., Guides. He requested OWCP issue a decision
for a right upper extremity schedule award. In a September 25, 2008 report revised on April 27,
2010, Dr. Becan utilized the sixth edition of the A.M.A., Guides and opined that appellant had
six percent right upper extremity impairment.
In a May 6, 2010 letter, appellant stated that she had right carpal tunnel release surgery in
the 1980’s and had no symptoms following the surgery until she injured her wrist in the
October 20, 1999 work injury.
In a May 10, 2010 report, Dr. Filippone opined that appellant’s right carpal tunnel
syndrome was causally related to the repetitive nature of her federal job. He noted that she
worked limited duty in rewrap of small parcels and that there was a history of a prior right carpal
tunnel release in the 1980s. Dr. Filippone advised that the June 6, 2008 EMG/NCS studies of the
bilateral upper extremities provided evidence of a right C5-C6 cervical radiculopathy only. Due
to appellant’s persistent progression of symptoms, he performed an EMG/NCS study of the right
upper extremity on March 11, 2010, which revealed evidence of mild right carpal tunnel
syndrome, which was not present on the previous studies of June 6, 2008. Dr. Filippone opined
that, given appellant’s history, the EMG/NCS study results and clinical presentation, it was well
within reasonable medical probability that her carpal tunnel syndrome was directly the result of
the repetitive nature of her federal work. Additional progress reports were submitted.
By decision dated July 1, 2010, OWCP found that appellant did not establish impairment
of the right upper extremity due to her accepted injury.

3

LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence; thus 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 his or her employment injury
entitling him or her to a schedule award.4 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between her current condition and the
employment injury.5 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.6
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.7 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.8 Schedule
awards are payable for permanent impairments caused by the accepted employment injury and
preexisting impairments of the scheduled members.9
ANALYSIS
Appellant previously underwent right carpal tunnel release in the 1980s. She claimed
that the October 20, 1999 work injury aggravated her preexisting condition. Appellant requested
OWCP to accept right carpal tunnel and issue a schedule award. With regard to her right upper
extremity, OWCP only accepted a right wrist sprain as resulting from the October 20, 1999 work
injury.
In a May 10, 2010 report, Dr. Filippone, appellant’s treating physician, opined that
appellant’s right carpal tunnel syndrome was causally related to the repetitive nature of her
federal employment. He noted that she worked limited duty in rewrap of small parcels and that
there was a history of a right carpal tunnel release in the 1980s. Dr. Filippone also noted that the
presence of mild right carpal tunnel syndrome on the March 11, 2010 EMG/NCS studies, which
was not present on the previous studies of June 6, 2008. In this case, OWCP has not accepted a
right carpal tunnel syndrome. While Dr. Filippone offered an opinion on causal relationship, he
did not provide a reason explaining why either the accepted right wrist sprain of October 20,
1999 or appellant’s limited duties in the rewrapping of small parcels aggravated her preexisting
4

See D.H., 58 ECAB 358 (2007); Veronica Williams, 56 ECAB 367 (2005).

5

Manuel Gill, 52 ECAB 282 (2001).

6

Yvonne R. McGinnis, 50 ECAB 272 (1999).

7

Thomas P. Lavin, 57 ECAB 353 (2006).

8

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

9

Peter C. Belkind, 56 ECAB 580 (2005).

4

right carpal tunnel condition or caused a new right carpal tunnel condition. Thus, his report is of
limited probative value.
Dr. Becan’s reports are also of limited probative value. He bases his right arm
impairment rating on the nonaccepted right carpal tunnel condition. However, since Dr. Becan’s
did not provide an explanation on how appellant’s impairment was related to the accepted
condition or other work factors, his report is of limited probative value. There is no other recent
medical evidence explaining how appellant’s right carpal tunnel syndrome was caused or
aggravated by her employment.
On appeal, appellant’s attorney argues that the medical evidence confirms appellant
suffered an aggravation of the preexisting right carpal tunnel syndrome and thus established
permanent injury to the right arm. However, as explained above, the medical evidence of record
is insufficient to support causal relationship and thus there is no entitlement to a schedule award.
Appellant has not met her burden of proof to expand her claim to include a right carpal
tunnel condition or establish entitlement to a schedule award because she has not submitted
evidence that her accepted right wrist sprain caused a permanent impairment or that her
preexisting or current right carpal tunnel condition was caused or aggravated by her current
employment duties.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
carpal tunnel condition was aggravated by the October 20, 1999 injury or her employment duties.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 1, 2010 is affirmed.
Issued: September 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 16-1841
Issued: March 3, 2017

Case Submitted on the Record

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

JURISDICTION
On September 16, 2016 appellant filed a timely appeal from a May 16, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated March 3, 2016, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 16, 2016 nonmerit decision, OWCP received additional evidence.
Appellant also submitted new evidence with her appeal to the Board. The Board, however, may only review
evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

On appeal appellant contends that she has provided new medical evidence establishing
permanent impairment.
FACTUAL HISTORY
On December 19, 2013 appellant, then a 47-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed a left ankle condition due to continuous
standing and sitting. OWCP accepted the claim for left ankle sprain and left ankle/foot
osteoarthritis, and paid wage-loss compensation for intermittent periods from December 19,
2013 to July 15, 2015.
On January 4 and 21, and February 22, 2016 appellant filed claims for a schedule award
(Form CA-7).
In a letter dated January 27, 2016, OWCP informed appellant that the evidence of record
was insufficient to establish her claim for a schedule award as her treating physician found that
she had not yet reached maximum medical improvement. It advised appellant to provide a
medical report from a physician providing an impairment rating using the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009) (hereinafter
A.M.A., Guides).
In May 30, 2008 treatment notes, Dr. David R. Richardson, a Board-certified orthopedic
surgeon, observed that appellant was beginning to have some left posterior tibial tendinitis. He
recommended a functional capacity evaluation to determine work restrictions.
In a September 10, 2015 report, Dr. Richardson diagnosed left posterior tibial tendinitis
and right posterior tibial insufficiency. He provided a history of illness and physical examination
findings. Dr. Richardson reported bilateral pes planus, tenderness on palpation over her bilateral
distal posterior tibial tendon inserts and over the ankle lateral aspect distal to the lateral
malleolus, and inability to perform bilateral single limb heel rise.
In treatment notes and reports dated October 5, December 14, 2015, and February 15,
2016, Dr. Richardson diagnosed left posterior tibial tendinitis and right posterior tibial
insufficiency and provided examination findings and work restrictions.
By decision dated March 3, 2016, OWCP denied appellant’s request for a schedule
award. It found the medical evidence of record failed to establish permanent impairment of a
scheduled member.
Subsequent to the denial of appellant’s schedule award claim, OWCP received a copy of
a December 14, 2015 report from Dr. Richardson, in which he diagnosed left posterior tibial
tendinitis and right posterior tibial insufficiency and provided examination findings.
On May 2, 2016 OWCP received appellant’s request for reconsideration. By decision
dated May 16, 2016, it denied her request for reconsideration, finding that Dr. Richardson’s
December 14, 2015 report was duplicative and previously considered in its March 3, 2015
decision.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that 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.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant’s application for review must be received by OWCP within one
year of the date of that decision.5 When a claimant fails to meet one of the above standards,
OWCP will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
On May 2, 2016 appellant requested reconsideration of the March 3, 2016 decision that
denied her claim for a schedule award. The underlying issue on reconsideration is medical in
nature, whether appellant established a permanent impairment of a scheduled member.
Appellant’s April 3, 2016 request for reconsideration neither alleged, nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. She did not identify a
specific point of law or show that it was erroneously applied or interpreted. Additionally,
appellant did not advance a relevant legal argument not previously considered by OWCP.
Consequently, she is not entitled to a review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(3).7
The Board further finds that appellant did not submit any relevant or pertinent new
evidence not previously considered. Appellant resubmitted a treatment note dated December 14,
2015 from Dr. Richardson which diagnosed left posterior tibial tendinitis and right posterior
tibial insufficiency and provided examination findings. However, the Board has held that
evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.8 As the December 14, 2015 treatment note
had been previously submitted to the record on February 29, 2016 and considered by OWCP in

3

Section 8128(a) of FECA provides that the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.
4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

20 C.F.R. § 10.607(a).

6

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

20 C.F.R. § 10.606(b)(3).

8

James W. Scott, 55 ECAB 606 (2004).

3

its decision dated May 3, 2016, it is duplicative and does not constitute relevant and pertinent
new evidence.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3), as appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal appellant argues that she has submitted new medical evidence establishing
permanent impairment. As discussed above, the Board can only review evidence that was before
OWCP prior to its May 16, 2016 decision.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits under 5 U.S.C. § 8128(a).

9

See L.T., Docket No. 09-1798 (issued August 5, 2010); D.K., 59 ECAB 141 (2007); D’Wayne Avila, 57 ECAB
642 (2006).
10

Supra note 2.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2016 is affirmed.
Issued: March 3, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Augusta, SC, Employer
__________________________________________

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

Docket No. 13-1671
Issued: December 24, 2013

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 July 3, 2013 appellant, through her attorney, filed a timely appeal from the May 30,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
her injury claim. 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 this merit decision.
ISSUE
The issue is whether appellant established that the August 24, 2012 work incident caused
an injury.
FACTUAL HISTORY
On October 10, 2012 appellant, then a 58-year-old sales/service distribution associate,
filed a traumatic injury claim alleging that she sustained a neck injury in the performance of duty
on August 24, 2012. She was helping a customer with a large package weighing approximately
1

5 U.S.C. § 8101 et seq.

15 pounds. Appellant picked up the package, turned and felt excruciating pain run down from
her neck to her right arm, which caused her to drop the package.
A September 6, 2012 magnetic resonance imaging (MRI) scan study of appellant’s
cervical spine showed severe multilevel degenerative disc disease with facet osteoarthritic
changes causing moderate narrowing of the spinal canal from C3-4 through C6-7, most
pronounced at C4-6. There was relatively severe bilateral neural foraminal narrowing at multiple
levels and a reversal of the normal cervical lordosis likely related to severe degenerative
changes.
A September 6, 2012 MRI scan of the right shoulder showed findings suggestive of prior
right shoulder repair with no evident of full-thickness retear seen. Changes at the
acromioclavicular joint possibly represented a combination of prior decompression and
degenerative changes. There was degeneration of the superior labrum without discrete tear and
minimal degenerative changes of the glenohumeral joint.
On September 10, 2012 Dr. Douglas E. Holford, a Board-certified orthopedic surgeon,
stated that the type of job appellant held, which involved repetitive activities “side to side and
raise it up,” aggravated the cervical spine along with the tendinopathy.
OWCP notified appellant on October 16, 2012 that the documentation it received was
insufficient to support her claim because no diagnosis was provided of any condition resulting
from the claimed incident. It asked her to submit, among other things, her physician’s opinion,
supported by a medical explanation, as to how the August 24, 2012 work incident caused or
aggravated a diagnosed medical condition. OWCP advised that this medical evidence was
crucial to appellant’s claim.
Appellant responded on September 10, 2012 that her neck, right shoulder and right arm
were affected by the incident. She had two previous rotator cuff surgeries, one in 1998 and the
other in 2007. After her surgeries, appellant was no longer able to deliver mail, so she accepted
a clerk assignment, where she remained on the window. On August 24, 2012 she received a
large package from a customer. It weighed about 15 pounds. When appellant removed the
package from the weight scale, she felt a sharp, excruciating pain run from her neck through her
right arm. It felt like she had pulled something in her neck. The following day appellant was
unable to move her head or right arm.
Appellant submitted medical documents pertaining to a previous right rotator cuff repair
and cervical spondylosis. She submitted an October 12, 2012 duty status report from
Dr. Holford indicating a diagnosis of radiculopathy. Appellant also submitted documents
relating to a previous injury claim.
In a December 3, 2012 decision, OWCP denied appellant’s injury claim. It found that the
August 24, 2012 work incident occurred as alleged, but the medical evidence of record failed to
establish causal relationship. The evidence did not include appellant’s physician’s medically
reasoned opinion on any cause-and-effect relationship between the accepted work incident and
the diagnosed cervical condition.

2

On March 14, 2013 Dr. Holford described what happened at work on August 24, 2012:
while lifting a box, appellant felt pain in her right shoulder and neck and began to have problems
with paresthesia and lifting her arm. He noted x-ray findings and stated that she was diagnosed
with rotator cuff tendinitis and cervical disc disease. Dr. Holford described imaging findings and
the results of electrodiagnostic testing, which showed no evidence of radiculopathy but which
did indicate right carpal tunnel syndrome, moderate to severe. He described appellant’s
treatment and opined: “To a reasonable degree of medical certainty, I feel that the repetitive
movements and lifting packages, which her job requires, has aggravated the degenerative disc in
her cervical spine and the degenerative joint disease of the right shoulder and the right carpal
tunnel syndrome.”
In a May 30, 2013 decision, OWCP’s hearing representative affirmed the December 3,
2012 denial of appellant’s claim. She found that, although Dr. Holford provided a history of the
August 24, 2012 incident and a diagnosis of cervical degenerative disc disease, he failed to
provide sufficient medical rationale for his stated conclusion.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS
OWCP accepted that the August 24, 2012 work incident occurred as alleged. Appellant
experienced the lifting incident at the time, place and in the manner alleged. The question that
2

Id. at § 8102(a).

3

John J. Carlone, 41 ECAB 354 (1989).

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

remains is whether removing a package from the weight scale that day caused an injury. This is
a medical question.
Dr. Holford related a basic history of injury that is not inconsistent with appellant’s
account: on August 24, 2012 she lifted a box and felt pain in her right shoulder and neck and
began to have problems with paresthesia and lifting her arm. His conclusion was that repetitive
movements and lifting packages had aggravated the degenerative disc in her cervical spine, the
degenerative joint disease in her right shoulder and her right carpal tunnel syndrome.
Appellant’s claim, however, alleges an injury from a specific incident on
August 24, 2012. Dr. Holford did not discuss the mechanism of that injury. He did not explain
from an anatomical or orthopedic point of view how the biomechanics of the accepted incident
pathophysiologically affected appellant’s cervical degenerative disc disease or her right shoulder
degenerative joint disease or her right carpal tunnel syndrome. Dr. Holford brief notes do not
relate a full history of appellant’s cervical or shoulder conditions. He did not explain how
clinical studies, objective physical findings or other reliable evidence confirmed an aggravation.
Dr. Holford did not explain whether the nature of any aggravation was tempory, eventually
leaving appellant in her preexisting baseline state or whether the incident caused a material
change to her underlying degenerative condition. Due to these deficiencies, the Board finds that
the opinion of Dr. Holford is not sufficient to establish appellant’s claim of injury.
Medical conclusions unsupported by rationale are of little probative value.8 The Board
finds that Dr. Holford’s opinion is broadly supportive of appellant’s injury claim insufficient to
establish the critical element of causal relationship. It does not offer sound medical reasoning to
establish that the August 24, 2012 work incident caused an injury. Accordingly, the Board finds
that appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
August 24, 2012 work incident caused an injury.

8

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954). See generally
Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value of medical opinions).

4

ORDER
IT IS HEREBY ORDERED THAT the May 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 24, 2013
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALEXANDRIA HEALTH CARE SYSTEM,
Pineville, LA, Employer
__________________________________________

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

Docket No. 12-832
Issued: August 8, 2012

Case Submitted on the Record

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

JURISDICTION
On March 5, 2012 appellant, through his attorney, filed a timely appeal from a
December 21, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant timely filed his claim for an occupational disease.
FACTUAL HISTORY
On March 21, 2011 appellant, then 49 years of age and a former social work associate
and addiction therapist, filed a Form CA-2, an occupational disease claim. He alleged that he
sustained bilateral carpal tunnel syndrome as a result of his past duties, namely typing, writing
1

5 U.S.C. § 8101 et seq.

and driving. Appellant became aware of his condition and its relationship to his employment on
November 16, 2004.2 He resigned effective December 22, 2006.
Appellant provided medical records for the period November 11, 2004 to
January 4, 2006. In a November 16, 2004 progress note, Dr. Lelia Ruth F. Angel, an employing
establishment physician and a Board-certified internist, diagnosed cervical and lumbar strains.3
The employing establishment’s workers’ compensation specialist submitted documents to
OWCP on May 2, 2011. She stated that the employing establishment had no medical
documentation regarding the claimed carpal tunnel syndrome and that she had no knowledge of
appellant’s claim.
OWCP informed appellant in a May 10, 2011 letter that additional evidence was needed
to establish his claim. It gave him 30 days to submit additional evidence. OWCP also requested
that the employing establishment provide comments on the claim.
In a May 19, 2010 letter, the employing establishment’s workers’ compensation specialist
stated that she answered the questions on appellant’s occupational disease claim form because
appellant’s supervisor no longer worked for the employing establishment. She reiterated that she
had no prior knowledge of the claim and also asserted that the claim was not timely filed. In a
June 16, 2011 letter of controversion, the employing establishment contended that appellant did
not file his occupational disease claim within three years of his resignation date.
By decision dated June 21, 2011, OWCP denied appellant’s claim on the grounds that it
was not timely filed.
Counsel requested a telephonic hearing, which was held on October 6, 2011. Appellant
testified that he was diagnosed with bilateral carpal tunnel syndrome as early as December 2004,
informed his supervisor and has since received medical treatment for the condition.4
On December 21, 2011 OWCP’s hearing representative affirmed the June 21, 2011
decision.

2

Appellant previously filed a claim pertaining to a November 16, 2004 motor vehicle accident, which was
accepted for peripheral vertigo, neck and lumbar sprains, and aggravation of cervical intervertebral disc disorder
with myelopathy. However, his contention that he sustained carpal tunnel syndrome as a consequence of these
accepted injuries was denied by OWCP. OWCP File No. xxxxxx684. This claim regarding the motor vehicle
accident is not presently before the Board.
3

The medical histories contained in these records referenced the November 16, 2004 employment incident. See
id. Employing establishment health records also did not reference carpal tunnel syndrome that appellant attributed
to his day-to-day job duties.
4

A September 15, 2011 note from Dr. Stephen D. Rice, a Board-certified diagnostic radiologist, indicated that
appellant received right C7 selective nerve root block.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
Section 8122(a) of FECA provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.7 In cases of latent disability,
the time for filing a claim does not begin to run until the employee has a compensable disability
and is aware, or reasonably should have been aware, of the causal relationship between the
disability and the employment.8 If the claim is not filed within three years, compensation may
still be allowed if notice of injury was given within 30 days or the employing establishment had
actual knowledge of the injury or death within 30 days after occurrence. This knowledge may
consist of written records or verbal notification. An entry into an employee’s medical record
may also satisfy this requirement if it is sufficient to place the employing establishment on notice
of a possible work-related injury or disease.9
ANALYSIS
The case record shows that appellant resigned from his position on December 22, 2006.
He subsequently filed an occupational disease claim for bilateral carpal tunnel syndrome on
March 21, 2011, indicating in a Form CA-2 that he became aware of the condition and its
relationship to his employment on November 16, 2004.10
The Board has held that the time for filing an occupational disease claim begins to run
when the employee first becomes aware, or reasonably should have been aware, of a possible
relationship between the alleged condition and federal employment, even if he or she does not
know the precise nature of the impairment or whether the ultimate result of such adverse effect
would be temporary or permanent. Where the employee continues in the same employment after

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

5 U.S.C. § 8122(a).

8

20 C.F.R. § 10.100(c) & 10.101(c). See also 5 U.S.C. § 8122(b).

9

20 C.F.R. § 10.100(b)(1). See also 5 U.S.C. § 8122(a).

10

This appeal does not involve any allegations regarding injuries alleged in claim number xxxxxx684. See supra
note 2.

3

such awareness, the limitations period begins to run on the date of his or her last exposure to the
implicated factors.11
In this case, appellant stated that he initially became aware of his bilateral carpal tunnel
syndrome on November 16, 2004. The limitations period commenced on December 22, 2006
because he continued to work for the employing establishment until this date. Nonetheless,
appellant filed his occupational disease claim on March 21, 2011, more than four years after he
resigned. In addition, while he alleged that he reported the condition to his supervisor in or
around December 2004, the case record does not contain evidence demonstrating that an
immediate superior either had actual knowledge of or received written or verbal notification
about bilateral carpal tunnel syndrome and its relationship to appellant’s work within 30 days of
its occurrence.12 Evidence from the employing establishment advised that appellant’s supervisor
no longer worked for the employing establishment and that it had no knowledge of the claimed
condition.13 Therefore, appellant did not file a timely claim.
Counsel contends on appeal that the December 21, 2011 decision is contrary to fact and
law. The Board has already addressed the deficiencies of the claim. Appellant may submit new
evidence or argument as part of a formal written request for reconsideration to OWCP within one
year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through
10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty.

11

Larry E. Young, 52 ECAB 264, 266 (2001).

12

For actual knowledge of a supervisor to be regarded as timely filing, an employee must show not only that the
immediate superior knew that he was injured, but also knew or reasonably should have known that it was an on-thejob injury. Duet Brinson, 52 ECAB 168 (2000).
13

Health records provided by the employing establishment also make no mention of the claimed work-related
carpal tunnel syndrome that appellant attributed to his work duties. See supra note 3.

4

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2011 decision of Office of
Workers’ Compensation Programs be affirmed.
Issued: August 8, 2012
Washington, DC

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

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

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

5