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

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

Docket No. 21-0332
Issued: September 24, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 7, 2021 appellant filed a timely appeal from a December 11, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a left shoulder
condition causally related to the accepted July 28, 2020 employment incident.
1
The Board notes that, following the December 11, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 29, 2020 appellant, then a 22-year-old postal collection and delivery employee,
filed a traumatic injury claim (Form CA-1) alleging that on July 28, 2020 she popped her left
shoulder when pulling a bundle of mail while in the performance of duty. On the reverse side of
the claim form, her supervisor acknowledged that she was injured in the performance of duty.
In support of her claim, appellant submitted a report dated July 28, 2020 from Dr. Robert
Valley, an emergency medicine specialist, who related that she was pulling a tray of mail and felt
her left shoulder pop. He diagnosed strain of the muscle, fascia, and tendon of the long head of
biceps of the left arm. Dr. Valley also completed a duty status report (Form CA-17) dated July 28,
2020, wherein he noted her diagnosis of left shoulder strain. He related a history of injury that
appellant had lifted a bundle of mail and advised that she could return to work on July 29, 2020
with restrictions.
In a report dated August 3, 2020, Dr. Jeffery Frye, a Board-certified emergency medicine
specialist, related that appellant was seen for regarding left shoulder pain. He noted a diagnosis of
unspecified muscle, fascia and tendon strain at the shoulder and upper arm level and recommended
that she follow-up with a specialist.
In a report dated August 3, 2020, Dr. David R. Sheba, an osteopathic physician specializing
in orthopedic surgery, related a history of a left shoulder condition occurring as a result of lifting
heavy bundles at work. He noted that appellant had a longstanding history of left shoulder issues
and that she had undergone bilateral shoulder arthroscopy in 2019. However, Dr. Sheba opined
that she had an acute injury to the shoulder due to her work injury. He diagnosed left shoulder
pain.
In an x-ray report dated August 3, 2020, Dr. Sheba found no abnormalities in the left
shoulder.
The employing establishment noted that, on the day of appellant’s alleged shoulder injury,
she was seen for her 30-day review, during which she asked if she could shadow a clerk because
she would be unable to perform her current duties for her whole life due to prior shoulder surgeries.
Later that day appellant called in with a shoulder injury.
In a magnetic resonance imaging (MRI) scan report dated August 11, 2020, Dr. Derek
Armfield, a Board-certified diagnostic radiology specialist, noted that appellant had dull left
shoulder pain with limited range of motion after pulling a box at work. He indicated that appellant
had a mild central cuff tendinopathy and bursitis without rotator cuff tear.
On August 21 and October 9, 2020 Dr. Sheba diagnosed appellant with a sprain of left
rotator cuff capsule.
By development letter dated November 5, 2020, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It requested that she submit a
narrative medical report from her attending physician, which included the physician’s opinion
supported by a medical explanation as to how the reported employment incident caused or

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aggravated the claimed injury.
OWCP also provided appellant with a questionnaire for
completion. It afforded her 30 days to submit the necessary evidence.
In a note dated November 11, 2020, Dr. Sheba stated that it was his opinion that appellant’s
injury on July 28, 2020 was the direct result of her work injury. In a progress report November 11,
2020, he related that she was seen for a left shoulder injury that occurred when she lifted heavy
bundles at work. Dr. Sheba also completed a Form CA-17 on November 11, 2020 indicating that
she could return to full-duty work without restrictions on November 12, 2020.
By decision dated December 11, 2020, OWCP accepted that the July 28, 2020 employment
incident occurred, as alleged, but denied appellant’s claim as causal relationship had not been
established between a diagnosed medical condition and the accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged and
that any disability or medical condition for which compensation is claimed is 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence. 7

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

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The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted July 28, 2020 employment incident.
OWCP received reports dated July 28, 2020 from Dr. Valley, a report dated August 3, 2020
from Dr. Frye, and progress reports dated August 21, October 9, and November 11, 2020 from
Dr. Sheba. In these reports, the physicians noted appellant’s history of injury and diagnosed left
shoulder sprain. However, in these reports, the physicians merely noted appellant’s reported
history of injury, rather than offering their own opinions on causation.11 The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 12 As such, these reports are sufficient to
establish appellant’s claim.
In a report dated August 3, 2020, Dr. Sheba noted appellant’s prior history of bilateral
shoulder arthroscopy in 2019 and indicated that she sustained an acute injury on July 28, 2020.
He diagnosed left shoulder pain. The Board has held that pain is a symptom and not a compensable
medical diagnosis.13 This report is, therefore, insufficient to establish appellant’s claim.
OWCP also received a note dated November 11, 2020 from Dr. Sheba wherein he opined
that the appellant’s injury on July 28, 2020 was the direct cause of her condition. While Dr. Sheba
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., Docket No. 19-1301 (issued January 29, 2020); R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See C.G., Docket No. 20-0957 (issued January 27, 2021).

12

L.G., Docket No. 20-0433 (issued August 6, 2020); S.D., Docket No. 20-0413 (July 28, 2020); S.K., Docket No.
20-0102 (issued June 12, 2020). See also L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 171549 (issued July 6, 2018).
13

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

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provided an opinion on the causal relationship, he did not offer any rationale to explain how the
accepted employment incident would have caused appellant’s diagnosed condition. 14 The need
for a rationalized medical opinion was particularly important because appellant had preexisting
left shoulder conditions.15 The Board has held that a medical opinion should offer a medicallysound explanation of how the specific employment incident physiologically caused the diagnosed
condition.16 This report is, therefore, insufficient to establish causal relationship.
Appellant submitted an x-ray report and an MRI scan report. The Board has held that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not address the relationship between the accepted employment factors, and a diagnosed
condition.17 For this reason, these reports are insufficient to meet appellant’s burden of proof.
As there is no rationalized medical evidence of record explaining how appellant’s left
shoulder condition was causally related to the accepted employment incident, the Board finds that
she has not met her burden of proof to establish a diagnosed medical condition causally related to
the accepted July 8, 2020 employment incident.
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 a left shoulder
condition causally related to the accepted July 28, 2020 employment incident.

14
T.W., Docket No. 20-0767 (issued January 13, 2021); see H.A., Docket No. 18-1466 (issued August 23, 2019);
L.R., Docket No. 16-0736 (issued September 2, 2016).
15

Supra note 10 at Chapter 2.805.3e (January 2013). J.G., Docket No. 20-0009 (issued September 28, 2020).

16

G.L., Docket No. 18-1057 (issued April 14, 2020); see also E.B., Docket No. 18-1060 (issued
November 1, 2018).
17

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the December 11, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Suitland, MD, Employer
__________________________________________
Appearances:
Stacey Lehne, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1008
Issued: November 13, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On April 7, 2020 appellant, through counsel, filed a timely appeal from an October 17,
2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards docketed the appeal as No. 20-1008.
On April 5, 2018 appellant, then a 62-year-old program analyst, filed a traumatic injury
claim (Form CA-1) alleging that on March 15, 2018 she twisted her right knee, and bruised her
right index finger when she stepped on loose pavement in the dark and grasped her rolling bag to
avoid falling, while in the performance of duty.
By decision dated October 17, 2018, OWCP denied the claim finding that the medical
evidence of record was insufficient to establish that the claimed medical condition was causally
related to the accepted employment-related incident.

1

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

On October 16, 2019 appellant, through her then-counsel, requested reconsideration.
Then-counsel argued that OWCP had not reviewed a previously submitted note from the
employing establishment stating that appellant reported the incident immediately after the injury,
and that OWCP had not reviewed an attached June 27, 2018 treatment note indicating that she
sustained a fracture of her right femur and a lateral meniscus tear of her right knee as a result of
the claimed March 15, 2018 work injury. He further argued that, despite appellant having
preexisting osteonecrosis, the evidence supported that the intervening fall at work was the direct
cause. Then-counsel also argued that a district medical adviser should have reviewed the case to
determine if the early onset of osteonecrosis could have caused a broken femur and a torn meniscus
without the intervening traumatic event. He concluded that the claim should be accepted for an
aggravation of a preexisting condition.
OWCP received a copy of a March 15, 2018 report from a nurse indicating that appellant
presented with a wrenched right knee. It also received a copy of a June 27, 2018 magnetic
resonance imaging (MRI) scan which revealed a closed nondisplaced fracture of the condyle of
the right femur, with routing healing, subsequent encounter; tear of the lateral meniscus of the right
knee, current, unspecified tear type, subsequent encounter; and primary osteoarthritis of the right
knee.
By decision dated October 17, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
The Board finds that this case is not in posture for decision.
Section 8124(a) of FECA provides that OWCP shall determine and make findings of fact
and make an award for or against payment of compensation. Its regulations at 20 C.F.R. § 10.126
provide that the decision of the Director of OWCP shall contain findings of fact and a statement
of reasons. As well, OWCP’s procedures provide that the reasoning behind OWCP’s decision
should be clear enough for the reader to understand the precise defect of the claim and the kind of
evidence which would overcome it.2
In the October 17, 2019 decision, OWCP did not reference or discuss the argument or
evidence submitted after the October 17, 2018 merit decision.3 In its decision, it did not discharge
its responsibility to set forth findings of fact and a clear statement of reasons explaining the
disposition so that appellant could understand the basis for the decision, i.e., why the argument
and evidence had not met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP
to reopen the case for review of the merits of the claim.4 This case must therefore be remanded to
OWCP for an appropriate decision on appellant’s reconsideration request that describes the
evidence submitted on reconsideration and provides detailed reasons for accepting or rejecting the
reconsideration request.

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

3

See R.T., Docket No. 19-0604 (issued September 13, 2019); T.M., Docket No. 17-1609 (issued December 4, 2017).

4

See J.J., Docket No. 11-1958 (issued June 27, 2012).

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Accordingly, the Board will set aside OWCP’s October 17, 2019 decision and remand the
case for OWCP to review the evidence and argument in support of appellant’s reconsideration
request and make findings of fact and provide a statement of reasons for its decision, pursuant to
the standards set forth in section 5 U.S.C. § 8124(a) and 20 C.F.R. § 10.126. After such further
development as OWCP deems necessary, it shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the October 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 13, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF DEFENSE, NATIONAL
GEOSPATIAL INTELLIGENCE AGENCY,
Arnold, MO, Employer
__________________________________________

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

Docket No. 11-550
Issued: January 13, 2012

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 January 3, 2011 appellant filed a timely appeal of the August 3, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic 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 over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a back and right foot injury
in the performance of duty on May 10, 2010, as alleged.
FACTUAL HISTORY
On May 17, 2010 appellant, then a 36-year-old electronic staff officer, filed a traumatic
injury claim alleging that on May 10, 2010 she hurt her lower back and sustained minor bruising
1

5 U.S.C. § 8101 et seq.

on the right side of her right foot when she stepped on a twig on a sidewalk which caused her
right foot to roll. She did not fall to the ground as she caught herself, twisting her lower back.
Appellant stopped work on the date of injury.2
In a May 10, 2010 medical report, Dr. Nestor M. Shust, Board-certified in emergency
medicine, excused appellant from work that day.
In a May 10, 2010 treatment note, Celia Ellington, an employing establishment registered
nurse, obtained a history of the May 10, 2010 incident and addressed the treatment of appellant’s
back pain.
In a May 18, 2010 report, Dr. Gretchen E. Kluesner, a Board-certified internist, excused
appellant from work from May 11 through 18, 2010.
By letter dated May 28, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested medical and factual evidence. OWCP also
requested that the employing establishment provide factual evidence regarding appellant’s claim.
Appellant submitted narrative and witness statements and e-mails written by her and
Nathaniel R. Smith, an employee, describing the May 10, 2010 incident. She also described her
symptoms and medical treatment.
In another report dated May 10, 2010, Dr. Shust obtained a history of the May 10, 2010
incident and appellant’s medical, family and social background. He noted appellant’s complaints
of back pain radiating to her groin area, limited mobility, instability, limping, spasms, swelling
and tenderness. Appellant also had moderate pain and swelling in her right foot. Dr. Shust listed
essentially normal findings on physical and x-ray examination with the exception of lumbar
spine posterior tenderness, paravertebral muscle spasm and bilateral lumbosacral tenderness. He
advised that appellant had low back strain and right lateral mid-foot strain/bruise due to her fall.
On May 20 and 24, 2010 Dr. Kluesner ordered physical therapy to treat appellant’s back
pain. In reports dated May 12 and 20, 2010, she noted that appellant’s complaints of low back
pain and inability to work due to her pain following her fall at work. Dr. Kluesner provided
essentially normal findings on physical examination, noting lumbar spine posterior tenderness,
paravertebral muscle spasm and bilateral lumbosacral tenderness. She diagnosed backache likely
from muscle spasm. In a June 8, 2010 report, Dr. Kluesner obtained a history that appellant
experienced back pain after twisting her right foot at work. She diagnosed back pain and muscle
spasm. Dr. Kluesner advised that the diagnosed conditions were caused by the stated work
incident.
A May 26, 2010 report from Ann Halquist, a physical therapist, addressed the treatment
of appellant’s back pain.

2

Appellant returned to work on May 19, 2010. She did not work a full day due to back pain for which she sought
medical treatment. Appellant returned to work four and one-half hours per day on May 24, 2010 for one week and
planned to return to her regular nine-hour-per-day work schedule commencing the following week.

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In a June 3, 2010 report, Dr. Shaukat A. Thanawalla, a Board-certified internist, noted
appellant’s complaint of back pain radiating down her bilateral legs which became numb. He
listed essentially normal findings on physical examination of the back and legs, with the
exception of a limp.
In a May 10, 2010 e-mail, Danny E. Johns, an employing establishment safety inspector,
stated that appellant related to him that she hurt her back while walking to work. Appellant’s
right foot turned which caused her to lose her balance and twist her back. She stated that there
was sap and a twig on the sidewalk. Mr. Johns inspected the accident scene and discovered a
small piece of mulch and a twig on the sidewalk. In a June 15, 2010 letter, Christina R. Stortz,
an injury compensation specialist, stated that the property where the accident occurred was
owned by the military and used for the sole purpose of the employing establishment’s
employees. It was a secured facility and no one without a specified badge could gain entry.
In an August 3, 2010 decision, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that she sustained a back and right foot injury causally related
to the accepted May 10, 2010 employment incident.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within applicable time limitation;
that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.7
In order to meet her burden of proof to establish the fact that she sustained an injury in the

3

Following the issuance of OWCP’s August 3, 2010 decision, OWCP received additional evidence. The Board
may not consider evidence for the first time on appeal which was not before OWCP at the time it issued the final
decision in the case. 20 C.F.R. § 501.2(c).
4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 5.
7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

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performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.8
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.9 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.10 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.11
ANALYSIS
OWCP accepted that appellant tripped over a twig on a sidewalk on May 10, 2010 while
working as an electronic staff officer. The Board finds that this case is not in posture for
decision as to whether appellant’s claimed back and right foot conditions were caused or
aggravated by the accepted employment incident.
In reports dated May 10, 2010, Dr. Shust listed his findings on physical examination of
the lumbar spine and right foot which included lumbar spine posterior tenderness, paravertebral
muscle spasm, bilateral lumbosacral tenderness, moderate pain and swelling in appellant’s right
foot. He found that appellant sustained low back strain and right lateral mid-foot strain/bruise
due to the May 10, 2010 employment incident. Dr. Shust excused her from work that day.
The Board notes that, while Dr. Shust’s reports of record are not completely rationalized,
they are consistent in finding that appellant sustained the diagnosed back and right foot
conditions, because of the May 10, 2010 incident. These reports are not contradicted by any
substantial medical or factual evidence of record.12 While the reports are not sufficient to meet
appellant’s burden of proof to establish her claim, they raise an inference of causal relationship
between her claimed conditions and the May 10, 2010 employment incident.13
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of establishing entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.14
8

Linda S. Jackson, 49 ECAB 486 (1998).

9

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

11

Charles E. Evans, 48 ECAB 692 (1997).

12

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

13

Id.; see also John J. Carlone, supra note 9.

14

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002);
Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

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On remand, OWCP should refer appellant, together with the case record and a statement
of accepted facts, for examination by an appropriate specialist and a rationalized medical opinion
as to whether her low back strain and right lateral mid-foot strain/bruise were causally related to
the May 10, 2010 employment incident. After such further development as it deems necessary, it
shall issue an appropriate decision concerning appellant’s claim and medical treatment.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
established that she sustained a back and right foot injury in the performance of duty on May 10,
2010, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: January 13, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Laredo, TX, Employer
__________________________________________

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

Docket No. 17-1400
Issued: November 1, 2017

Case Submitted on the Record

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

JURISDICTION
On June 12, 2017 appellant, filed a timely appeal from a January 20, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof to establish ratable hearing loss,
warranting a schedule award.
FACTUAL HISTORY
On June 14, 2016 appellant, then a 49-year-old customs and border patrol supervisor,
filed an occupational disease claim (Form CA-2) alleging that exposure to vehicle engine,
1

5 U.S.C. § 8101 et seq.

generator, and mobile track x-ray units in confined areas on or before June 2, 2016 caused
bilateral sensorineural hearing loss. He used earplugs and earmuffs. Appellant did not stop
work.
Appellant submitted annual employing establishment audiograms obtained as part of a
hearing conservation program. A March 17, 2011 employing establishment audiogram
demonstrated decibel losses at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) in
the right ear of 10, 0, 0, and 35, respectively. Testing at the same frequency levels for the left ear
revealed decibel losses of 15, 5, 10, and 25, respectively.
In a May 24, 2011 report, Dr. F. Rosenberg, an osteopathic physician consulting to the
employing establishment, noted that a recent audiogram was abnormal, indicating moderate
bilateral hearing loss.
An October 18, 2012 employing establishment audiogram demonstrated decibel losses at
the frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the right ear of 5, 10, 0, and 30,
respectively. Testing at the same frequency levels for the left ear revealed decibel losses of 5, 0,
10, and 25, respectively.
Appellant also submitted two audiograms from Dr. Celina T. Oliveira-Montoya, an
attending Doctor of Audiology. A February 16, 2014 audiogram showed decibel losses at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the right ear of 25, 25, 25, and 40,
respectively. Testing at the same frequency levels for the left ear revealed decibel losses of 20,
20, 20, and 30, respectively. A June 2, 2016 audiogram demonstrated decibel losses at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the right ear of 25, 20, 20, and 40,
respectively. Testing at the same frequency levels for the left ear revealed decibel losses of 25,
20, 20, and 40, respectively. Dr. Oliveira-Montoya did not indicate when appellant was last
exposed to hazardous noise prior to the audiograms.
The employing establishment submitted a June 14, 2016 letter confirming appellant’s
account of daily exposure to “loud noises deriving from tractor trailer traffic, tractor cabs,
motors, transmissions screeching, brake screeching, forklift noises, loud bangs at the dock,”
buses, and private vehicles while performing his inspection duties. Appellant provided a July 5,
2016 statement listing hazardous noise exposures while employed as an agent with the
employing establishment beginning in June 1997. In addition to noise from vehicles and
equipment, he noted exposure to firearms noise during periodic requalification training.
On November 28, 2016 OWCP obtained a second opinion from Dr. Paul W. Loeffler, a
Board-certified otolaryngologist, who reviewed the medical record and statement of accepted
facts. A November 28, 2016 audiogram performed for Dr. Loeffler showed decibel losses at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz in the right ear of 10, 15, 20, and 50,
respectively. Testing at the same frequency levels for the left ear revealed decibel losses of 20,
20, 20, and 30, respectively. Tympanometry was within normal limits. Dr. Loeffler noted
appellant’s complaints of bilateral tinnitus interfering with sleep. He diagnosed bilateral
sensorineural hearing loss attributable to occupational noise exposure and recommended hearing
aids.

2

On December 21, 2016 OWCP accepted bilateral sensorineural hearing loss, causally
related to appellant’s hazardous noise exposure at work.
On December 21, 2016 OWCP requested that a district medical adviser (DMA) review
the record and a statement of accepted facts to determine whether appellant sustained ratable
hearing loss in either ear, according to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 On January 1, 2017 the
DMA opined that appellant attained maximum medical improvement (MMI) as of November 28,
2016, the date of Dr. Loeffler’s audiogram. He totaled the 500, 1,000, 2,000, and 3,000 Hz
decibel losses for the right ear of 10, 15, 20, and 50 decibels to equal 95. For the left ear, the
DMA added the decibel losses of 20, 20, 20, and 30, respectively, totaling 90 decibels. For the
right ear, he averaged the losses to determine that appellant had an average hearing loss of 23.75
decibels. The DMA then subtracted the fence of 25 decibels and multiplied the balance by 1.5,
resulting in zero percent right ear monaural hearing loss. For the left ear, he added the decibel
losses and divided by four to obtain an average loss of 22.5 decibels. After subtracting a fence of
25 decibels, the DMA multiplied the remaining balance by 1.5 to calculate zero percent left ear
monaural hearing loss. He, therefore, opined that appellant had zero percent binaural hearing
loss and noted that he was not entitled to five percent award for tinnitus, as an award for tinnitus
could not be added to zero percent hearing loss. The DMA recommended bilateral hearing aids.
On January 9, 2017 appellant claimed a schedule award (Form CA-7).
By decision dated January 20, 2017, OWCP denied appellant’s schedule award claim,
finding that the medical evidence of record did not establish ratable hearing loss. It accorded
Dr. Loeffler the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body.3 FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by OWCP for evaluating schedule losses and the Board has concurred in such
adoption.4

2

6th ed. 2009.

3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

See id.; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

3

OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 The otolaryngologist’s report is to include: date and hour of examination;
date and hour of employee’s last exposure to loud noise; a rationalized medical opinion
regarding the relation of the hearing loss to the employment-related noise exposure; and a
statement of the reliability of the tests.6 Using the frequencies of 500, 1,000, 2,000, and 3,000
cycles per second (cps) the losses at each frequency are added up and averaged.7 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The
binaural loss is determined by calculating the loss in each ear using the formula for monaural
loss; the lesser loss is multiplied by five, then added to the greater loss and the total is divided by
six to arrive at the amount of the binaural hearing loss.9 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.10
The A.M.A., Guides state that, if tinnitus interferes with activities of daily living,
including sleep, reading (and other tasks requiring concentration), enjoyment of quiet recreation,
and emotional well being, up to five percent may be added to a measurable binaural hearing
impairment.11
ANALYSIS
The Board finds that appellant has not established ratable hearing loss warranting a
schedule award.
Appellant submitted a June 2, 2016 audiogram from Dr. Oliveira-Montoya, an attending
Doctor of Audiology. Testing at 500, 1,000, 2,000, and 3,000 Hz in the right ear revealed
decibel losses of 25, 20, 20, and 40, respectively totaling 105 decibels. Testing at 500, 1,000,
2,000, and 3,000 Hz in the left ear revealed decibel losses of 25, 20, 20, and 40, respectively,
totaling 105 decibels. However, as Dr. Oliveira-Montoya did not indicate when appellant was
last exposed to hazardous noise prior to the audiogram, the results are of diminished reliability.12

5

A.M.A., Guides, (6th ed. 2008) 250. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.5a (February 2013).
6

R.M., Docket No. 15-0062 (issued June 11, 2015); see I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams,
41 ECAB 345 (1989).
7

Id.

8

Id.

9

Id.

10

P.D., Docket No. 15-1173 (issued September 2, 2015); C.C., Docket No. 11-731 (issued October 11, 2011).

11

A.M.A., Guides 249 (6th ed. 2009).

12

R.M., supra note 6. An audiologist is not included among the list of healthcare professionals recognized as a
“physician” under 5 U.S.C. § 8101(2) and thus cannot be considered to be a qualified physician. Leon Thomas, 52
ECAB 202 (2001); see also Thomas Lee Cox, 54 ECAB 509 (2003).

4

OWCP obtained a second opinion from Dr. Loeffler, a Board-certified otolaryngologist,
who obtained an audiogram on November 28, 2016 which recorded frequency levels at the 500,
1,000, 2,000, and 3,000 Hz and revealed decibel losses of 10, 15, 20, and 50, respectively in the
right ear for a total decibel loss of 95. On the left, test results at the frequencies of 500, 1,000,
2,000, and 3,000 Hz revealed decibel losses of 20, 20, 20, and 30 decibels, respectively, for a
total of 90 decibels.
FECA procedures relating to the evaluation of schedule awards provide that the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percent of
impairment.13
On January 1, 2017 the DMA utilized the decibel losses found by Dr. Loeffler with
regard to hearing loss as found on the November 28, 2016 audiogram. He determined that
appellant had reached MMI as of the date of this audiogram. The DMA found that he had zero
percent binaural hearing loss. He properly applied OWCP standardized procedures to
Dr. Loeffler’s audiogram which recorded frequency levels at the 500, 1,000, 2,000, and 3,000 Hz
and revealed decibel losses of 10, 15, 20, and 50, respectively in the right ear for a total decibel
loss of 95. The DMA then followed established procedures and divided this total by four which
resulted in an average loss of 23.75 decibels and subtracted the fence of 25 decibels to equal zero
decibels. He then multiplied this by the established factor of 1.5 to result in zero percent
monaural hearing loss for the right ear. The DMA then properly followed the same procedure on
the left, noting that the test results at the frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed
decibel losses of 20, 20, 20, and 30 decibels, respectively, for a total of 90 decibels. He divided
this by four, for an average hearing loss of 22.5 decibels, subtracted the fence of 25 decibels to
equal zero decibels, and multiplied this by the established factor of 1.5, for zero percent
monaural hearing loss for the left ear. The DMA found that appellant had no ratable hearing
loss, and noted correctly that appellant was not entitled to a schedule award for tinnitus as he had
no ratable hearing loss.14
Thus, the Board finds that the DMA applied the proper standards to the November 28,
2016 audiogram, finding zero percent binaural hearing loss. Appellant has not submitted any
medical report establishing a percentage of hearing loss which would refute the opinion of
Dr. Loeffler and the DMA. He has, therefore, failed to meet his burden of proof to establish a
permanent, ratable hearing loss.
On appeal appellant contends that he sustained ratable hearing loss due to the accepted
exposures. As explained above, the medical evidence of record does not establish ratable

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6e (February 2013).
14

A.M.A., Guides 249 (6th ed. 2009).

5

hearing loss. Appellant has not submitted any probative medical evidence establishing that he is
entitled to a schedule award.15
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established ratable hearing loss, warranting a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 20, 2017 is affirmed.
Issued: November 1, 2017
Washington, DC

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

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

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

15

The Board notes that evidence from appellant’s audiologist is not a basis for a schedule award as it was not
from a physician or certified by a physician. See supra note 11. See also Joshua A. Holmes, 42 ECAB 231, 236
(1990) (OWCP does not have to review audiograms not certified by a physician and it is the claimant’s burden to
submit a properly certified audiogram for review if he objects to the audiogram selected by OWCP for determining
the degree of hearing loss).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Magna, UT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1986
Issued: March 18, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 15, 2014 appellant filed a timely appeal of an August 14, 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a traumatic injury on April 30, 2014 in the performance of duty.
FACTUAL HISTORY
On May 2, 2014 appellant, then a 52-year-old clerk, filed a traumatic injury claim
alleging that on April 30, 2014 she was throwing bundles of mail when her right elbow began to
hurt. She continued to work and, by the following morning, Thursday, she could not move her
1

5 U.S.C. § 8101 et seq.

arm. Appellant provided a duty status report dated May 2, 2014 completed by the employing
establishment with a typewritten date of injury of May 2, 2014. The handwritten history
indicated that she injured her right elbow while throwing bundles of mail on Wednesday.
Carol Rasmussen, a nurse practitioner, diagnosed lateral epicondylitis and indicated that
appellant’s oral history corresponded to the form. Appellant found right elbow pain and reduced
range of motion. Ms. Rasmussen recommended light duty with no lifting. In a separate form
dated May 20, 2014, with a typewritten date of injury of June 2, 2014, a physician’s assistant
released appellant to return to work on June 2, 2014.
On June 10, 2014 the employing establishment disputed appellant’s claim noting that
there was no medical evidence signed by a physician and that she was released to return to full
duty on June 2, 2014.
OWCP requested additional factual and medical evidence in a letter dated July 10, 2014.
Specifically, it requested that appellant provide additional factual evidence substantiating the
employment events and medical evidence of a diagnosed condition resulting from the injury
from a physician. OWCP requested that she complete an attached questionnaire and informed
her that neither a nurse practitioner nor a physician’s assistant was considered a physician for the
purposes of FECA.
Dr. Peter R. Silvero, a Board-certified orthopedic surgeon, examined appellant on
July 25, 2014 and stated that she sustained a right arm injury on April 28, 2014. He stated that
she was lifting heavy bundles of mail on that date and that, the next morning, her right elbow
was very sore. Dr. Silvero diagnosed right elbow lateral epicondylitis due to heavy lifting at the
employing establishment. He provided work restrictions of no lifting more than five pounds
with her right hand and no pushing or pulling with her right hand. Dr. Silvero further
recommended that appellant have a 15-minute break every hour or be limited to six hours of
work a day. He completed a form report dated July 25, 2014 and repeated his restrictions. This
form was completed in part by the employing establishment and indicated that appellant’s date of
injury as May 2, 2014.
By decision dated August 14, 2014, OWCP denied appellant’s traumatic injury claim
finding that she had not submitted sufficient factual evidence to establish that the employment
incident occurred as alleged. It noted that she did not respond to the request for additional
necessary information and that there was conflicting evidence regarding the date of injury.
LEGAL PRECEDENT
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”2 In order to
determine whether an employee actually sustained an injury in the performance of duty, OWCP
begins with an analysis of whether fact of injury has been established. Generally, fact of injury
consists of two components which must be considered in conjunction with one another. The first
2

20 C.F.R. § 10.5(ee).

2

component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred.3 The second component is whether the employment incident
caused a personal injury and generally can be established only by medical evidence.
With respect to the first component of fact of injury, the employee has the burden of
establishing the occurrence of an injury at the time, place, and in the manner alleged, by a
preponderance of the reliable, probative and substantial evidence. An injury does not have to be
confirmed by eyewitnesses in order to establish the fact that an employee sustained an injury in
the performance of duty, but the employee’s statements must be consistent with the surrounding
facts and circumstances and her subsequent course of action. An employee has not met his or
her burden of proof of establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim. Such
circumstances as late notification of injury, lack of confirmation of injury, continuing to work
without apparent difficulty following the alleged injury and failure to obtain medical treatment
may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in determining
whether a prima facie case has been established. However, an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.4
ANALYSIS
Appellant filed a claim on May 2, 2014 and alleged that on April 30, 2014 she injured her
right elbow throwing mail in the performance of duty. She asserted that her elbow began to hurt
performing this duty and that, the following morning, she could not move her arm. The
employing establishment provided her with a series of duty status reports completed with
typewritten dates of injury including May 2 and June 2, 2014. Appellant consistently reported
her injury occurring on Wednesday, April 30, 3014 to her medical providers and on her claim
form. She also consistently stated that she had increased arm pain on Thursday, May 1, 2014.
The Board finds that appellant has provided sufficient factual evidence in support of her claim
that she injured her right elbow on April 30, 2014 while throwing bundles of mail in the
performance of duty. Appellant’s statements are consistent with the surrounding facts and
circumstances and her subsequent course of action. The only inconsistencies in the evidence
arise from the employing establishment’s selection of May 2 or June 2, 2014 as the date of injury
on the duty status forms that it completed. Appellant provided timely notification of injury to the
employing establishment and OWCP, sought treatment with medical providers and stopped work
shortly after her employment incident. The Board finds that the weight of the evidence
establishes that the employment incident occurred as alleged and that her statement has not been
refuted by strong or persuasive evidence.
However, the Board finds that appellant has not submitted the necessary medical
evidence to establish a causal relationship between her accepted employment event of throwing
bundles of mail on May 30, 2014 and her diagnosed right lateral epicondylitis. The only medical

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

D.B., 58 ECAB 464, 466-67 (2007).

3

evidence in the record is the July 25, 2014 report from Dr. Silvero.5 While Dr. Silvero provides
an opinion that appellant’s diagnosed lateral epicondylitis was due to her employment activities,
stating that her right elbow lateral epicondylitis was due to heavy lifting at the employing
establishment, this opinion is not sufficiently rationalized to establish her claim. There is no
factual evidence in the record regarding the weight of the bundles of mail which appellant threw
and whether these bundles were in fact heavy. Appellant also failed to indicate the number of
bundles she processed on April 30, 2014. Furthermore, Dr. Silvero did not provide the necessary
medical rationale to establish how and why lifting bundles of mail in the performance of duty
would result in right lateral epicondylitis on April 30, 2014. A medical report is of limited
probative value on a given medical question if it is unsupported by medical rationale.6 Medical
rationale includes a physician’s detailed opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment activity.
The opinion of the physician must be based on a complete factual and medical background of the
claim, must be one of reasonable medical certainty, and must be supported by medical reasoning
explaining the nature of the relationship between the diagnosed condition and specific
employment activity or factors identified by the claimant.7
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 established the first element of a traumatic injury
claim, that the employment incident occurred on April 30, 2014. The Board further finds that
she has not submitted the necessary detailed medical opinion evidence to establish that the
April 30, 2014 incident resulted in a medical condition.

5

The Board notes that neither Ms. Rasmussen, a nurse practitioner, nor the physician assistant who released
appellant to work are physicians for the purposes of FECA and their reports cannot constitute medical evidence. See
5 U.S.C. § 8101(2); K.C., Docket No. 14-757 (issued August 4, 2014); Vickey C. Randell, 51 ECAB 357 (2000)
(regarding physical therapists); Lyle E. Dayberry, 49 ECAB 369 (1998) (regarding physician’s assistants).
6

T.F., 58 ECAB 128 (2006).

7

A.D., 58 ECAB 149 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 18, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1742
Issued: March 18, 2011

Case Submitted on the Record

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

JURISDICTION
On June 17, 2010 appellant filed a timely appeal from the May 14, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
this nonmerit decision. The last merit decision of record was the Office’s July 10, 1995 decision
denying appellant’s claim as he was not a federal employee. Because more than one year
elapsed from the last merit decision to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits on the grounds that his request was untimely filed and failed to establish
clear evidence of error.
1

For final adverse decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to the
Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008, a
claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

Appellant contends on appeal that he was a federal employee at the time of the alleged
injury.
FACTUAL HISTORY
On April 8, 1994 appellant, then a 32-year-old mailroom worker, filed a traumatic injury
claim alleging that, on October 26, 1991, while employed as a temporary mailroom worker, he
sustained injuries to his low back and upper right arm while moving mailbags. The employing
establishment subsequently controverted the claim. In a May 5, 1994 memorandum, a human
resource specialist advised that appellant had never been hired as an employee of the employing
establishment. An investigation was made to determine whether appellant sustained an injury
while taking a strength and stamina test for a job, but that the investigation found no
documentation that appellant took the test or was employed for the Federal Government.
Appellant completed the portion of the claim form for the employing establishment by answering
most of the questions as non applicable.
By decision dated June 7, 1994, the Office denied appellant’s claim finding that he had
not established that he was a federal employee at the time of the alleged injury.
By letter received by the Office, on September 8, 1994, appellant requested a hearing. In
a September 30, 1994 decision, the Office denied his request for a hearing as it was untimely
filed.
On June 5, 1995 appellant requested reconsideration. He submitted a page from an
unidentified text that discussed workers’ compensation law involving tryouts for employment.
By decision dated July 10, 1995, the Office denied modification of the June 7, 1994
decision.
On August 24, 2005 appellant requested review of his case by the Board. By order dated
October 3, 2005, the Board dismissed the appeal, finding that it was not timely filed.2
By letter received by the Office, on May 4, 2010, appellant requested reconsideration.
He submitted the page from an unidentified book discussing workers’ compensation and tryouts
for employment.
In a May 14, 2010 decision, the Office denied appellant’s request for reconsideration as it
was not timely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.3 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the
2

Docket No. 05-1761 (issued October 3, 2005).

3

20 C.F.R. § 10.607(a).

2

discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.5 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise a
substantial question as to the correctness of the Office decision.12
ANALYSIS
The Board notes that the most recent merit decision was the July 10, 1995 Office decision
that denied modification of a June 7, 1994 decision denying appellant’s claim because he did not
establish that he was a federal employee. Appellant filed his request for reconsideration on
May 4, 2010, some 14 years after the last merit decision. As his request was filed over one year

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3d (January 2004).
7

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

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See Leona D. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

12

Leon D. Faidley, Jr., supra note 4.

3

after the decision from which he requested reconsideration, the Board finds that his request was
not timely filed.
The Office properly proceeded to review appellant’s request under the clear evidence of
error standard and determined that he had not established clear evidence of error. The only
evidence submitted with appellant’s request for reconsideration was a page from an unidentified
book discussing workers’ compensation law and tryouts for employment. This document is not
new evidence and was previously considered by the Office in the July 10, 1995 merit decision.
The employing establishment noted that it had no record of appellant ever applying for a job and
there was no documentation that he ever took the strength test. Accordingly, appellant has not
submitted sufficient evidence to establish that the Office’s denial of his claim was clearly
erroneous or that raises a substantial question as to the correctness of the Office’s determination.
The term clear evidence of error is intended to represent a difficult standard.13
The Board finds that appellant has not submitted evidence sufficient to shift the weight of
evidence in favor of his claim or raise a substantial question that the Office erred in denying his
claim.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

13

D.O., Docket No. 08-1057 (issued June 23, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 14, 2010 is affirmed.
Issued: March 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 10-301
Issued: September 14, 2010

Case Submitted on the Record

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

JURISDICTION
On November 13, 2009 appellant filed a timely appeal from an August 14, 2009 decision
of the Office of Workers’ Compensation Programs regarding his schedule award claim.
Pursuant to 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 has more than seven percent permanent impairment of the
right upper extremity for which he received a schedule award.
FACTUAL HISTORY
On July 20, 2007 appellant, then a 30-year-old part-time flexible clerk, filed a traumatic
injury claim alleging that on July 6, 2007 he injured his right shoulder when he was moving a
coin bin at work. The Office accepted his claim for sprain of the right shoulder and right rotator
cuff syndrome and authorized arthroscopic surgery which was performed on December 19, 2007.
Appellant did not stop work.

Appellant was initially treated from July 20, 2007 to May 28, 2008, by Dr. Bruce M.
Hairston, a physiatrist, who diagnosed right shoulder rotator cuff injury and impairment
syndrome and recommended modified duty. He came under the treatment of Dr. Raymond
Weiand, a Board-certified orthopedist, from August 6 to December 19, 2007. Dr. Weiand
diagnosed a work-related trapezial rhomboid strain and sprain of the right shoulder and
recommended conservative treatment. He noted that a magnetic resonance imaging (MRI) scan
of the right shoulder revealed subacromial impingement secondary to degenerative change at the
acromioclavicular joint, supra and infraspinatus tendinosis, rule out tear and degeneration of the
anterosuperior labrum. On December 19, 2007 Dr. Weiand performed an arthroscopic
debridement of intra-articular rotator cuff tear, arthroscopically-assisted repair of a superior
labral tear from anterior to posterior (“SLAP”) of the right shoulder and arthroscopic
acromioplasty of the right shoulder. He diagnosed intra-articular partial rotator cuff tear of the
supraspinatus, glenoid labral SLAP tear of the right shoulder and impingement syndrome with
subacromial bursitis.
On February 12, 2008 Dr. Weiand noted that appellant was progressing well
postoperatively with marked improvement with range of motion and strength. In a work
capacity evaluation dated March 7, 2008, he returned appellant to work full time with
restrictions. On March 21, 2008 Dr. Weiand advised that appellant had reached maximum
medical improvement and could return to his preinjury position.
On September 30, 2008 appellant filed a claim for a schedule award. He submitted a
June 19, 2008 report from Dr. Nicholas Diamond, an osteopath, who noted that appellant reached
maximum medical improvement on June 19, 2008. Dr. Diamond stated that right shoulder
examination revealed well-healed portal arthroscopy scars, focal acromioclavicular point
tenderness, tenderness over the right trapezial region, anterior cuff, posterior cuff and rhomboid.
He noted forward elevation of 165 degrees, abduction of 145 degrees, adduction of 70 degrees,
internal rotation of 70 degrees, and external rotation of 90 degrees. Grip strength testing via
Jamar hand dynamometer revealed 52 kilograms (kg) of force strength for the right and 63.25 kg
on the left. Dr. Diamond diagnosed status post right shoulder partial rotator cuff tear and glenoid
labral tear, post-traumatic subacromial impingement of the right shoulder, status post
arthroscopic surgery with debridement of rotator cuff tear, status post arthroscopically-assisted
repair of the labral tear of the right shoulder and status post arthroscopic acromioplasty of the
right shoulder. He noted that, based on the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment,1 appellant had 17 percent impairment of the
right arm. Dr. Diamond noted abduction of 145 degrees for 2 percent impairment;2 adduction of
70 degrees for a 0 percent impairment;3 flexion of 165 degrees for a 1 percent impairment;4
internal rotation of 70 degrees for a 1 percent impairment;5 external rotation of 90 degrees for a 0
1

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

2

Id. at 477, Figure 16-43.

3

Id.

4

Id. at 476, Figure 16-40.

5

Id. at 479, Figure 16-46.

2

percent impairment;6 10 percent impairment for right shoulder resection arthroplasty7 and 3
percent for pain.8
The Office referred Dr. Diamond’s report and the case record to the Office medical
adviser who, in a November 1, 2008 report, found that appellant had seven percent impairment
of the right upper extremity. The Office medical adviser noted that Dr. Diamond properly
determined that appellant had seven percent impairment for range of motion deficits for
abduction, flexion and internal rotation. He disagreed with Dr. Diamond’s finding that appellant
had 10 percent impairment for right shoulder resection arthroplasty and referenced Dr. Weiand’s
December 19, 2007 operative report which indicated that he performed an acromioplasty and not
a resection arthroplasty of the acromioclavicular joint. The medical adviser noted that an
acromioplasty is technically a resection of a portion of the acromion and not a resection
arthroplasty of the acromioclavicular joint. He explained that appellant’s procedure clearly did
not qualify as a resection arthroplasty because the joint was not resected but, instead, the
undersurface of the acromion was removed to provide for more room for the rotator cuff
musculature. The medical adviser noted that in accordance with the fifth edition of the A.M.A.,
Guides,9 appellant had seven percent impairment for range of motion deficit for the right
shoulder.
By decision dated January 13, 2009, the Office granted appellant a schedule award for
seven percent permanent impairment of the right upper extremity. The period of the award is
from June 19 to November 18, 2008.
On January 20, 2009 appellant requested an oral hearing which was held on
May 27, 2009.
In a decision dated August 14, 2009, the hearing representative affirmed the Office
decision dated January 13, 2009.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulations11 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
6

Id.

7

Id. at 506, Figure 16-27.

8

Id. at 574, Figure 18-1.

9

Id.

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

3

uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS
On appeal, appellant believes that he is entitled to a greater impairment rating. The
Office accepted his claim for sprain of the right shoulder and right rotator cuff syndrome and
authorized arthroscopic surgery which was performed on December 19, 2007. It awarded
appellant seven percent permanent impairment of the right upper extremity on January 13, 2009.
The Board has carefully reviewed Dr. Diamond’s report dated June 19, 2008 which
determined appellant’s right upper extremity impairment and notes that, while the doctor
determined that appellant sustained a 17 percent permanent impairment of the right upper
extremities, it is not clear how he came to this conclusion in accordance with the relevant
standards of the A.M.A., Guides.12
With regard to the right upper extremity, Dr. Diamond correctly calculated range of
motion deficits for abduction of 145 degrees for two percent impairment;13 adduction of 70
degrees for a zero percent impairment;14 flexion of 165 degrees for a one percent impairment;15
internal rotation of 70 degrees for a one percent impairment;16 and external rotation of 90
degrees for a zero percent impairment.17 The Office medical adviser, in his November 1, 2008
report, concurred with Dr. Diamond regarding impairment due to lost range of shoulder motion.
Dr. Diamond further calculated 10 percent impairment for right shoulder resection arthroplasty.18
However, as noted by the Office medical adviser, a review of the December 19, 2007 operative
report indicates that Dr. Weiand performed arthroscopic acromioplasty of the right shoulder and
did not perform a resection arthroplasty. Dr. Diamond did not explain why Dr. Weiand’s
surgical procedure qualified as a right shoulder resection arthroplasty. The medical adviser
explained that appellant’s procedure clearly did not qualify as a resection arthroplasty because
the joint was not resected but, instead, the undersurface of the acromion was removed to provide
for more room for the rotator cuff musculature. Therefore, appellant would not be entitled to 10
percent impairment for a resection arthroplasty as provided by Dr. Diamond.19 The Board
further notes that Dr. Diamond and the Office medical adviser provided three percent for pain
12

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

13

A.M.A., Guides, 477, Figure 16-43.

14

Id.

15

Id. at 476, Figure 16-40.

16

Id. at 479, Figure 16-46.

17

Id.

18

Id. at 506, Figure 16-27.

19

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

4

under Chapter 18 of the A.M.A., Guides20 but the Board has held that physicians should not use
Chapter 18 to rate pain-related impairments for any condition that can be adequately rated on the
basis of the body and organ impairment systems given in other chapters of the A.M.A., Guides.21
The A.M.A., Guides explain that the impairment ratings in the body organ system chapters make
allowance for expected accompanying pain.22 Neither Dr. Diamond nor the Office medical
adviser explained why the pain rating under Chapter 18 would be appropriate in light of the
cautionary language of the A.M.A., Guides.
Consequently, the medical evidence in conformance with the A.M.A., Guides supports
that appellant has four percent impairment of the right arm due to loss of range of motion. As
the Office has awarded a schedule award for seven percent impairment of the right arm, the
Board finds that appellant has no greater impairment than that for which he has already received
a schedule award. There is no medical evidence before the Board, conforming with the A.M.A.,
Guides, that supports any greater impairment of the right upper extremity.
On appeal appellant, through his attorney, asserts that there is a medical conflict between
Dr. Weiss, who found that appellant had 17 percent impairment to the right upper extremity and
the Office medical adviser who determined that appellant had seven percent impairment of the
right upper extremity.23 A simple disagreement between two physicians does not, of itself,
establish a conflict. To constitute a conflict of medical opinion, the opposing physicians’ reports
must be of virtually equal weight and rationale.24 However, Dr. Diamond, in a report dated
June 19, 2008, failed to adequately explain pursuant to the A.M.A., Guides how he determined
this degree of impairment. As noted above, he attributed 10 percent impairment to a resection
arthroplasty of the right shoulder; however, the medical evidence does not indicate that this
procedure was performed. Additionally, Dr. Diamond provided three percent for pain under
Chapter 18 of the A.M.A., Guides; however, as noted above Chapter 18 is not to be used to rate
pain-related impairments for any condition that can be adequately rated in other chapters of the
A.M.A., Guides.
CONCLUSION
The Board finds that appellant has no more than seven percent permanent impairment of
the right upper extremity for which he has received a schedule award.

20

Id. at 574, Figure 18-1.

21

Id. at 571. See Frantz Ghassan, 57 ECAB 349 (2006); Linda Beale, 57 ECAB 429 (2006).

22

A.M.A., Guides 20. See B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

23

See 5 U.S.C. § 8123(a).

24

John D. Jackson, 55 ECAB 465 (2004); Cleopatra McDougall-Saddler, 47 ECAB 480 (1996); Adrienne L.
Wintrip, 38 ECAB 373, 378-79 (1987).

5

ORDER
IT IS HEREBY ORDERED THAT that the August 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: September 14, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Haven, CT, Employer
__________________________________________

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

Docket No. 18-0458
Issued: October 2, 2018

Case Submitted on the Record

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

JURISDICTION
On January 2, 2018 appellant filed a timely appeal from a December 5, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision, dated April 3, 2017, 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 of his claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its December 5, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was of record at the time of OWCP’s final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 12, 2017 appellant, then a 57-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on January 7, 2017, he injured his knees and lower back when
he slipped and fell on ice in front of an apartment building while delivering mail. He stopped work
on January 8, 2017.
Appellant was initially treated in urgent care by Dr. Mary Ann Demetrius, an internist, who
related in a January 9, 2017 note that appellant was examined for a work-related left and right knee
injury and some low back pain after he slipped on snow on January 7, 2017. Dr. Demetrius
requested that appellant be excused from work for the rest of the week.
A January 12, 2017 duty status report (Form CA-17) by Miriam Vitale, a physician
assistant, noted a diagnosis of left knee sprain. Ms. Vitale advised that appellant could work parttime (four hours), limited duty.
On January 17, 2017 appellant returned to work.
By letter dated March 1, 2017, OWCP requested that appellant respond to an attached
development questionnaire and submit additional medical evidence in order to establish his claim.
It afforded appellant 30 days to submit the requested information.
In a February 27, 2017 duty status report, Ms. Vitale again noted that appellant could work
part time (six hours) with restrictions. She noted low back pain - 4/10 and diagnosed left knee
sprain.
By decision dated April 3, 2017, OWCP denied appellant’s traumatic injury claim.
Although appellant established that the January 7, 2017 incident occurred as alleged, OWCP found
that he failed to establish the medical component of fact of injury. It explained that a physician
assistant was not considered a physician under FECA. OWCP further explained that
Dr. Demetrius’ notations of “pain” and “injury” did not constitute a medical diagnosis in
connection with the accepted events.
On November 20, 2017 appellant requested reconsideration. He noted that he had a signed
note from a medical doctor, but no additional evidence was included with the request. Appellant
also explained that he was a disabled veteran who had post-traumatic stress disorder (PTSD) and,
therefore, was “not as quick or understanding” as he used to be.
By decision dated December 5, 2017, OWCP denied further merit review of appellant’s
claim under 5 U.S.C. § 8128(a). It found that appellant’s reconsideration request neither raised
substantive legal questions nor included new and relevant evidence sufficient to warrant further
merit review of his claim.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
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.4
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 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.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s November 20, 2017 request for
reconsideration as it was insufficient to warrant merit review under 5 U.S.C. § 8128(a).
Appellant has not shown that OWCP erroneously applied or interpreted a specific point of
law, he has not advanced a relevant legal argument not previously considered by OWCP, and
appellant has not submitted relevant and pertinent new evidence not previously considered by
OWCP.
On November 20, 2017 appellant requested reconsideration of OWCP’s April 3, 2017
decision denying his traumatic injury claim. Along with his reconsideration request, he provided
a handwritten statement, which related that he had a doctor’s note and explained that he was a
disabled veteran with PTSD. The Board notes that OWCP denied appellant’s traumatic injury
claim because of insufficient medical evidence to establish a diagnosis in connection with the
accepted January 7, 2017 employment incident. As the underlying issue in this case was a medical
issue, it must be addressed by pertinent new and relevant medical evidence.8 Appellant’s statement
is irrelevant to the issue of causal relationship in this case. As the Board has held, the submission
of evidence or argument which does not address the particular issue involved does not constitute
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. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

20 C.F.R. § 10.607(a).

6

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

7

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

8

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

3

a basis for reopening a case.9 Accordingly, the Board finds that appellant did not provide OWCP
with any evidence which has met the requirements of 20 C.F.R. § 10.606(b)(3) sufficient to require
further merit review of his claim. Therefore, OWCP properly denied his request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 2, 2018
Washington, DC

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

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

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

9

See E.G., Docket No. 18-270 (issued August 24, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984); Edward
Matthew Diekemper, 31 ECAB 224, 225 (1979).
10
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.Y., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRUBTION CENTER,
Rochester, NY, Employer
__________________________________________

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

Docket No. 11-97
Issued: October 24, 2011

Case Submitted on the Record

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

JURISDICTION
On October 14, 2010 appellant filed a timely appeal of the September 17, 2010 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has permanent impairment of his right shoulder,
warranting a schedule award.
FACTUAL HISTORY
OWCP accepted that on September 12, 2008 appellant, then a 43-year-old mail handler,
sustained a right rotator cuff and right bicep strains as a result of pulling a tray. It authorized
1

5 U.S.C. § 8101 et seq.

acromioplasty with biceps tenodesis which was performed on May 8, 2009 by Dr. Mark J.
Stenclik, an attending Board-certified orthopedic surgeon. On July 9, 2009 OWCP accepted that
appellant sustained a recurrence of disability on May 2, 2009 causally related to his
September 12, 2008 employment injuries.2
In a June 21, 2010 medical report, Dr. Stenclik advised that appellant had diminished
range of motion of his right shoulder. Appellant had an excellent recovery postacromioplasty
with biceps tenodesis. Dr. Stenclik found that appellant had 25 percent loss of use of his right
shoulder which included 15 percent impairment due to the bicep tenotomy and 10 percent for
loss of internal and external range of motion. He made no reference to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
By letter dated July 15, 2010, OWCP informed appellant that, effective May 1, 2009, all
permanent impairment determinations were to be completed in accordance with the sixth edition
of the A.M.A., Guides.3 It asked that he submit a medical report in accordance with the sixth
edition. In the same letter, OWCP asked that Dr. Stenclik provide an impairment evaluation in
accordance with the sixth edition. Appellant was allotted 30 days to submit the requested
evidence. He did not respond.
In a September 17, 2010 decision, OWCP denied appellant’s claim, finding that the
medical evidence was insufficient to establish permanent impairment to a scheduled member.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.4
A claimant seeking a schedule award therefore has the burden of establishing that his accepted
employment injury caused permanent impairment of a scheduled member, organ or function of
the body.5
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. However, neither FECA nor the regulations specify the
2

The Board notes that it appears OWCP inadvertently stated that the accepted recurrence of disability occurred
on May 8, 2009 rather than May 2, 2009 as indicated in appellant’s claim form. It later referenced May 2, 2009 as
the recurrence date in a telephone discussion with appellant.
3

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

4

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

5

E.g., Russell E. Grove, 14 ECAB 288 (1963) (where medical reports from the attending physicians showed that
the only leg impairment was due to arthritis of the knees, which was not injury related, the claimant failed to meet
his burden of proof to establish entitlement to a schedule award).
6

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

7

20 C.F.R. § 10.404.

2

manner in which the percentage of impairment shall be determined. For consistent results and to
ensure equal justice for all claimants, OWCP adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.8 For
OWCP decisions issued on or after May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed.
2009) is used for evaluating permanent impairment.9
ANALYSIS
OWCP accepted appellant’s claim for right rotator cuff and right bicep strains. It
authorized arthroscopic surgery to treat the accepted conditions. Appellant later claimed
entitlement to a schedule award due to his accepted conditions. In a September 17, 2010
decision, OWCP denied appellant’s claim for a schedule award. The Board finds that appellant
has not met his burden of proof to establish that he sustained permanent impairment to a
scheduled member due to his accepted conditions.
In a June 21, 2010 report, Dr. Stenclik found that appellant had 25 percent impairment of
his right shoulder which included 15 percent impairment due to the bicep tenotomy and 10
percent impairment for diminished range of motion. However, Dr. Stenclik failed to explain
how he arrived at his impairment ratings based on appellant’s accepted conditions.10 He did not
refer to any edition of the A.M.A., Guides or the specific tables or figures he applied to support
his ratings. The Board finds, therefore, that Dr. Stenclik’s opinion is of diminished probative
value in determining the extent of appellant’s permanent impairment.
There is no other relevant medical evidence of record. Although OWCP advised
appellant of the need for a report consistent with the sixth edition of the A.M.A., Guides, the
deficiencies in his claim on July 15, 2010 and allotted him 30 days in which to submit the
requisite evidence, he did not respond. Thus, the Board finds that OWCP properly denied his
schedule award claim.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that he is entitled to a schedule
award for his right shoulder.

8

Supra note 5.

9

Id.

10

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

3

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4