United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, RIVERHEAD POST
OFFICE, Riverhead, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1128
Issued: December 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 5, 2020 appellant, through counsel, filed a timely appeal from an April 3, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On April 27, 2018 appellant, then a 35-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his hips when they gave way while
walking, causing him to fall while in the performance of duty. He described feeling a “pop” and
a sharp pain in his right hip, as well as sciatic pain in his left hip. Appellant stopped work the
same day.
In April 27, 2018 aftercare instructions, Dr. Michael Parrott, Board-certified in emergency
medicine, diagnosed a strain of the right thigh posterior muscle group fascia and tendon at thigh
level and prescribed medication for his recovery. He advised that appellant remain off work for
five days.
In an April 30, 2018 medical report, Dr. Alexander Finger, a Board-certified orthopedic
surgeon, evaluated appellant’s lower back and right hip. He noted appellant’s history of chronic
back pain, anterior right thigh numbness, as well as a previous magnetic resonance imaging (MRI)
scan, which revealed an L4-5 disc herniation for which he was treated conservatively with physical
therapy. Appellant explained the events of the April 27, 2018 employment incident in which he
was walking and his hip gave out, but he denied a fall or trauma to his hip or lower back. Dr. Finger
referred to a lumbar spine x-ray of even date, which revealed no acute fracture, dislocation, or
bony abnormality and diagnosed a lumbar strain with right lower extremity radicular symptoms.
He advised appellant to begin physical therapy and to remain out of work.
In an April 30, 2018 medical note, Brian Powers, a physician assistant, held appellant off
work until his next evaluation on May 29, 2018.
In a May 1, 2018 letter, the employing establishment controverted appellant’s claim,
arguing that he did not sustain a traumatic injury and that he had not provided medical evidence
establishing causal relationship.
Dr. Finger, in a May 10, 2018 authorization for examination and/or treatment (Form CA16), noted a history of injury that appellant was walking when his leg gave out. He diagnosed a
sprain of the lower spine and checked a box marked “Yes” to indicate his opinion that appellant’s
condition was caused or aggravated by his employment activity. Dr. Finger referred appellant to
physical therapy to treat his pain. In a duty status reports (Form CA-17) of even date, he diagnosed
a lumbar strain due to the April 27, 2018 employment incident and both provided restrictions, but
advised that appellant was unable to work.
In a May 18, 2018 medical report from Anthony Nunziato, a physician assistant, it was
noted that appellant alleged that he had been unable to return to work due to the numbness in his
right leg getting worse. Mr. Nunziato discussed a previous April 12, 2017 work-related injury

2

when he slipped on a faulty step and was thereafter diagnosed with an L4-5 disc herniation.3 He
opined that the April 27, 2018 incident caused an acute exacerbation that was likely related to
appellant’s previous lower back injury. Mr. Nunziato diagnosed other spondylosis of the lumbar
spine with radiculopathy. In a medical note of even date, he noted that appellant attempted to
return to work on May 15, 2018, but was unable to return due to an exacerbation of his symptoms
and held him off work pending a reevaluation.
In a May 21, 2018 Form CA-17 report, Dr. Finger diagnosed a lumbar strain and advised
that appellant was unable to return to work.
Appellant also submitted a position description detailing his duties as a city carrier
assistant.
In a May 31, 2018 development letter, OWCP noted that, when appellant’s claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work. Based
on this criteria, it had administratively approved payment of a limited amount of medical expenses
without formally considering the merits of his claim. However, a formal decision was now
required. OWCP advised appellant of the deficiencies of his claim and instructed him as to the
factual and medical evidence necessary to establish his claim. It provided a factual questionnaire
inquiring about the circumstances surrounding his claimed injury for his completion and requested
that he submit a narrative medical report from his physician, which contained a detailed description
of findings and diagnoses, explaining how the reported incident caused or aggravated his medical
condition. OWCP afforded appellant 30 days to respond.
In an April 27, 2018 medical report, Dr. Parrott observed the history of appellant’s claimed
April 27, 2018 employment injury in which he was walking and heard his right hip “pop,” causing
him to fall while carrying mail. He believed that he aggravated the sciatica on his left side which
may have caused him to fall. Dr. Parrott advised that appellant remain out of work and for him to
follow up with orthopedics.
In a May 30, 2018 medical report, Dr. Thomas Dowling, a Board-certified orthopedic
surgeon, evaluated appellant for lower back pain and right anterior thigh numbness related to the
accepted April 12, 2017 employment injury when he stumbled down a flight of stairs as well as
the claimed April 27, 2018 reoccurrence where he felt a “pop” in his right upper thigh while at
work.4 He diagnosed acute right-sided low back pain with right-sided sciatica and referred
appellant to undergo right lumbar MRI scan for further evaluation. In a Form CA-17 report of
even date, Dr. Dowling diagnosed right sciatica and advised that appellant was unable to work.

3

Appellant previously filed a traumatic injury claim on April 12, 2017 for a back and neck injury related to an
employment incident on the same day in which a brick on a step gave way and caused him to fall under OWCP File
No. xxxxxx398. On May 26, 2017 OWCP accepted his claim for a lumbar sprain, lumbar strain, cervical sprain, and
cervical strain.
4

In a May 29, 2018 letter, appellant requested that his primary physician be changed from Dr. Finger to
Dr. Dowling as his injury was related to the spine and Dr. Dowling, as a spinal specialist, would be better suited to
determine the proper course of treatment.

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On June 11, 2018 OWCP noted that appellant filed a May 20, 2018 notice of recurrence
(Form CA-2a) for medical treatment and wage-loss compensation related to his accepted April 12,
2017 employment injury. Appellant alleged that on April 26, 2018 he performed heavy, repetitive
lifting of mail and newspapers that triggered a flair up of his lower back pain. He also mentioned
the April 27, 2018 employment incident in which he felt a pain in his thigh that caused him to lose
feeling in his leg and fall down. OWCP determined that these incidents constituted a new injury
and converted appellant’s claim to a new occupational disease claim.5
In a development letter dated June 25, 2018, OWCP advised appellant of the factual and
medical deficiencies of the occupational disease claim. It asked him to complete a questionnaire
to provide further details regarding the circumstances of his claimed injury and requested a
narrative medical report from his treating physician, which contained a detailed description of
findings and diagnoses, explaining how his work activities caused, contributed to, or aggravated
his medical conditions. OWCP afforded appellant 30 days to respond.
On July 11, 2018 OWCP received a June 5, 2018 diagnostic report by Dr. Elizabeth Maltin,
a Board-certified radiologist, who noted that she had performed a lumbar spine MRI scan, finding
a mild disc bulge at L4-5.
In a June 26, 2018 medical report, Dr. Dowling noted his review of appellant’s updated
MRI scan and diagnosed acute right-sided low back pain with right-sided sciatica and discogenic
low back pain.
In response to OWCP’s development questionnaire, appellant submitted a July 10, 2018
statement in which he explained that his original back injury occurred on April 12, 2017, for which
he continued to perform at-home exercises and physical therapy. On April 26, 2018 he was
delivering mail on a route he had no previous experience with and was responsible for loading his
truck with mail, parcels, and newspapers for a full route worth of deliveries. Appellant contended
that the high volume of mail, coupled with approximately nine hours of deliveries, greatly
increased the pain and discomfort in his lower back. On April 27, 2018 he was walking to deliver
mail when he stepped with his right foot and felt a “pop” of pain radiating to his upper thigh
followed by a loss of sensation in his right leg. Appellant’s right leg gave way, followed by sciatic
pain in his left leg, which caused him to fall to the ground onto his left shoulder. He attempted to
continue his route, but his leg gave way again. Appellant noted that he was able to catch himself
on a pole before falling again. He then reported the incident to his supervisor and discontinued his
activity. After two weeks of doctor-recommended rest, appellant attempted to return to work, but
continued to lose sensation in his right leg to the point where he almost caused a collision with his
vehicle. He then discontinued work. Appellant clarified that his injury was not a new traumatic
injury and was directly related to his accepted April 12, 2017 employment injury.

5

The Board notes that OWCP has not yet adjudicated whether appellant has met his burden of proof to establish
entitlement to further medical treatment and wage-loss compensation under his accepted employment injury claim in
OWCP File No. xxxxxx398.

4

In a July 5, 2018 Form CA-17, Dr. Dowling diagnosed acute right-sided low back pain
with right-sided sciatica and discogenic low back pain. He recommended that appellant remain
off work.
In a July 11, 2018 letter, the employing establishment indicated that appellant was
medically cleared to return to full-duty work as of October 13, 2017. It detailed his employment
duties in which he was required to lift and carry up to 70 pounds and reasoned that his description
of this work load as “heavy” should be regarded as a normal job duty. The employing
establishment also explained that, upon appellant’s return to work following his April 27, 2018
injury, he was assigned to limited duty and that none of his duties assigned to him since then were
outside of his limited-duty restrictions.
In a July 17, 2018 Form CA-17 report, Dr. Joseph Sanelli, Board-certified in physical
medicine, diagnosed lumbar displacement and lumbar radiculitis and advised that appellant remain
out of work.
By decision dated August 7, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between his
diagnosed medical conditions and the accepted employment events.
OWCP continued to receive evidence. An August 7, 2018 Form CA-17 report by
Dr. Dowling diagnosed lumbar disc displacement and lumbar radiculitis and advised that appellant
remain out of work.
On August 30, 2018 appellant requested an oral hearing before an OWCP hearing
representative.
An oral hearing was held on December 19, 2018. Appellant testified that his injuries on
April 26 and April 27, 2018 were caused by a recurrence of his original April 12, 2017 injury to
his lower back. He re-explained the events of April 26, 2018 and asserted that the extra weight
and duration of his work that day caused him to have issues with his back. The hearing
representative informed appellant of the medical evidence necessary in order to establish causal
relationship. Appellant’s then-representative also requested that the case file for OWCP File No.
xxxxxx398 be combined with his present claim.
In a July 6, 2018 medical report, Dr. Sanelli evaluated appellant for lumbar pain in relation
to the accepted April 12, 2017 employment injury while he was delivering mail. He noted that
appellant had a previous history of pain and was doing fairly well until his April 2017 injury.
Dr. Sanelli diagnosed lumbar disc displacement, lumbar radiculitis, discogenic low back pain,
lumbar myofascial pain syndrome and lumbar facet joint syndrome. He recommended appellant
undergo physical therapy to treat his conditions.
In medical reports dated from August 3, 2018 to January 24, 2019, Dr. Dowling noted his
understanding of the history of the April 12, 2017 and April 27, 2018 employment injuries and
diagnosed lumbar disc displacement, lumbar radiculitis, lumbar facet joint syndrome, discogenic
low back pain, acute right-sided low back pain with right-sided sciatica, and L4-5 herniated
nucleus pulposus. He referred appellant to physical therapy for further treatment of his conditions
and acknowledged that he underwent an epidural steroid injection (ESI) to treat his symptoms, but
5

experienced no benefit. Dr. Dowling explained that the mechanics of his injury with a rotational
flexion/extension moment could sometimes initially appear as a back sprain until further imaging
is obtained and opined that appellant’s right disc herniation was consistent with the right radicular
symptomatology.
By decision dated February 28, 2019, the hearing representative affirmed the August 7,
2018 decision. He also instructed OWCP to combine OWCP File No. xxxxxx398 with the current
claim.
OWCP continued to receive evidence. In a November 12, 2018 diagnostic report,
Dr. Michele Rubin, a Board-certified diagnostic radiologist, performed a computerized
tomography (CT) scan of appellant’s lumbar spine and diagnosed an annular bulge at L4-5,
intraosseous discal herniation at L4-5, vertebral hemangioma of L2 and lumbar hyperlordosis.
In a March 29, 2019 diagnostic report, Dr. Brett Helfner, a Board-certified diagnostic
radiologist, performed a lumbar spine MRI scan and found a stable disc bulge flattening the ventral
thecal sac, as well as mild bilateral foraminal stenosis.
On February 22, 2020 appellant, through counsel, requested reconsideration of OWCP’s
February 28, 2019 decision. Counsel reasoned that the medical evidence from Dr. Dowling,
specifically his January 24, 2019 medical report, was sufficient to establish appellant’s claim. He
asserted that it was OWCP’s duty to assist in the development of the claim and that, had it done
so, a clear and unequivocal causal relationship would be found.
Counsel attached a May 7, 2019 medical note in which Dr. Dowling noted his
disagreement with the district medical adviser’s (DMA) opinion that surgery was not warranted
for appellant’s condition because there was no significant stenosis or instability at the L4-5 level.
He explained that appellant’s symptoms were discogenic in nature and that the request for surgery
was to treat his symptoms and not instability or stenosis.
In a January 8, 2020 narrative medical report, Dr. Dowling noted appellant’s history of
injury in relation to the April 12, 2017 and April 27, 2018 employment incidents as well as his
subsequent medical treatment. He explained that the mechanism of injury to the lumbar spine was
a rotation, flexion, and extension movement that is known as a mechanism for disc injuries that
sometimes appears as a back sprain until further imaging can be obtained. Dr. Dowling diagnosed
discogenic low back pain, right-sided sciatica and a disc herniation at L4-5. He opined that
appellant was restricted with a physical impairment of total temporary and observed that he had
requested to undergo surgery to treat his injury at L4-5. Dr. Dowling concluded that, based on the
history given by appellant, the definite cause of his diagnoses were the April 12, 2017 and April 26,
2018 employment injuries.
By decision dated April 3, 2020, OWCP affirmed the February 28, 2019 decision.

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LEGAL PRECEDENT
An employee seeking benefits under FECA6 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 of FECA, that the claim was timely filed within the applicable time
limitation of FECA,7 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.8 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.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).13
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,

6

Supra note 2.

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
11

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, supra note 10.

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the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted numerous medical reports relating to lumbar
conditions which developed following employment injury in April 2017 and an incident in
April 2018. Those medical reports provide consistent diagnoses relating to the lumbar spine and
indicate that appellant described employment duties requiring him to carry heavy amounts of mail
as well as employment incidents in which he stumbled on steps in April 2017 and experienced a
“pop” in his right hip while delivering mail in April 2018. Dr. Dowling reasoned that the
mechanism of appellant’s lumbar injury was a rotation, flexion, and extension movement and
further explained that a disc injury, such as this one, can sometimes appear as a back sprain until
further imaging can be obtained. He opined that there was a definite causal relationship between
appellant’s diagnoses and the above-mentioned employment incidents.
Accordingly, the Board finds that Dr. Dowling provided an affirmative and rationalized
opinion on causal relationship. Dr. Dowling identified employment factors, which appellant
consistently claimed had precipitated his lumbar conditions, identified physical findings upon
examination and treatment, and provided a rationalized opinion citing to the facts of the case. His
medical evidence therefore raises an uncontroverted inference of causal relationship between his
claimed lumbar conditions and the accepted factors of his federal employment. Further
development of appellant’s claim is therefore required.15
It is well established that, proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
On remand OWCP shall refer appellant, a statement of accepted facts (SOAF), and the
medical evidence of record to a physician in the appropriate field of medicine. The chosen
physician shall provide a rationalized opinion addressing whether the diagnosed lumbar conditions
are causally related to the accepted factors of appellant’s federal employment. If the physician
opines that the diagnosed conditions are not causally related, he or she must provide rationale
explaining the opinion. The physician shall also provide a rationalized opinion as to whether
appellant sustained a recurrence of disability and need for medical treatment in OWCP File No.
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

15

See A.T., Docket No. 19-1972 (issued June 25, 2020); K.T., Docket No 19-1436 (issued February 21, 2020);
John J. Carlone, 41 ECAB 354, 356-57 (1989).
16

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

R.B., Docket No. 18-0162 (issued July 24, 2019); K.P., Docket No. 18-0041 (issued May 24, 2019).

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xxxxxx398. Following this and any other further development as deemed necessary, OWCP shall
issue a de novo decision addressing appellant’s occupational disease claim and claimed recurrence
of disability and need for further medical treatment.18
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 3, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: December 17, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

The Board notes that the employing establishment issued a Form CA-16, dated May 10, 2018. A completed
Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical facility or
physician, when properly executed. The form creates a contractual obligation, which does not involve the employee
directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. See 20 C.F.R.
§ 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

9


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

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Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1635
Issued: May 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 28, 2018 appellant, through his representative, filed a timely appeal from an
August 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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.3
ISSUE
The issue is whether appellant has met his burden of proof to establish more than 10 percent
permanent impairment of his left hand, for which he previously received a schedule award.
FACTUAL HISTORY
On March 12, 2012 appellant, then a 43-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed left thumb pain as a result of 30 years of
repetitive casing and sorting mail as a part of his employment duties. By decision dated March 22,
2012, OWCP accepted the claim for left thumb osteoarthritis.
Appellant sought treatment with Dr. Philip Blazar, a Board-certified orthopedic surgeon.
On June 11, 2012 Dr. Blazar performed an authorized left thumb carpometacarpal arthroplasty
with interposition.
In a July 26, 2017 report, Dr. Frank A. Graf, a Board-certified orthopedic surgeon,
evaluated appellant and provided findings pertaining to his left thumb. With respect to the left
thumb, he diagnosed left thumb basilar degenerative osteoarthritis with diminished pinch and grasp
status post arthroplasty and soft tissue procedure basilar joint of the left thumb. Dr. Graf opined
that appellant’s left thumb carpometacarpal joint had reached maximum medical improvement
(MMI), Dr. Graf determined that there were permanent changes at the left basilar joint of the
thumb. Utilizing Table 15-2, Digit Regional Grid, of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),4 he determined
that carpometacarpal joint instability warranted the default value of 15 percent permanent
impairment of the left thumb.5
On September 12, 2017 appellant filed a claim for a schedule award (Form CA-7).
On September 27, 2017 OWCP routed Dr. Graf’s report and the case file to Dr. Herbert
White Jr., an OWCP district medical adviser (DMA) Board-certified in occupational medicine, for
review and a determination as to whether appellant sustained permanent impairment of his left
thumb and the date of MMI.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the August 17, 2018 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.
4

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

5

Id. at 393, Table 15-2.

2

In an October 1, 2017 report, the DMA discussed findings in the medical records pertaining
to appellant’s left thumb and noted that x-rays dated February 14, 2013 revealed postsurgical
changes of the left thumb carpometacarpal joint. Utilizing Table 15-2, Digit Regional Grid, of the
A.M.A., Guides, he provided a diagnosis-based impairment (DBI) rating based upon a thumb
carpometacarpal arthroplasty.6 The DMA utilized the net adjustment formula to calculate 26
percent permanent impairment of the left thumb.7 He reported that because the joint involved the
hand, the digit impairment would be converted to a hand impairment. In accordance with Table
15-12, the DMA converted the 26 percent digit impairment to 10 percent permanent impairment
of the left hand.8 He further reported that he was unable to render a rating based on the range of
motion (ROM) method because no thumb ROM findings were provided in the medical records.
The DMA explained that Dr. Graf obtained a left digit impairment of 15 percent using the
DBI method with the diagnosis of thumb carpometacarpal instability while he calculated 26
percent impairment using the diagnosis of carpometacarpal arthroplasty. He reported that the
A.M.A., Guides provide that if there is more than one method to rate a particular impairment, the
method producing the higher rating should be used. In this instance, the carpometacarpal
arthroplasty diagnosis produced the higher rating. He concluded that appellant sustained 10
percent permanent impairment of the left hand and that MMI was reached on July 26, 2017, the
date of Dr. Graf’s examination.
On February 6, 2018 OWCP routed the DMA’s October 1, 2017 report to Dr. Graf for
comment pertaining to his left thumb impairment rating. By letter dated April 24, 2018, Dr. Graf
noted review of the DMA’s report and indicated that he had no problems with his calculations.
On June 21, 2018 OWCP routed the case file and referred appellant to Dr. Christopher
Geary, a Board-certified orthopedic surgeon, for a second opinion evaluation and impairment
evaluation of the left thumb using both ROM and DBI methods for evaluating permanent
impairment.
In his July 11, 2018 report, Dr. Geary provided three measurements pertaining to thumb
ROM. He measured interphalangeal flexion at 60 degrees for one percent impairment, extension
at 20 degrees for zero percent impairment, metacarpophalangeal joint flexion at 40 degrees for two
percent impairment, metacarpophalangeal joint extension at 10 degrees for zero percent
impairment, carpometacarpal joint adduction at three centimeters for four percent impairment,
carpometacarpal joint abduction at 40 degrees for two percent impairment, and
metacarpophalangeal opposition at four centimeters for nine percent impairment. This combined
to equal 18 percent permanent impairment based on the ROM method.
Dr. Geary reported that utilizing the DBI method, he would rate the diagnosis of left thumb
carpometacarpal arthritis with subsequent arthroplasty.9 Application of the net adjustment formula
6

Id. at 394, Table 15-2.

7

Id. at 411.

8

Id. at 421, Table 15-12.

9

Supra note 5.

3

resulted in 26 percent digit impairment. Dr. Geary explained that the DBI method should be used
since it provided a higher rating than the ROM method. He converted the 26 percent left thumb
impairment to 10 percent permanent impairment of the left hand. Dr. Geary concluded that
appellant had reached MMI on the date of Dr. Graf’s examination, July 26, 2017.
By decision dated August 17, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of the left hand. The date of MMI was July 26, 2017. The award
covered a period of 24.4 weeks from July 26, 2017 to January 12, 2018.
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.10 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the American Medical Association, Guides
to the Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.11 As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).12
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).13 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable.15 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.16 Adjustments for functional history may be made if the evaluator determines that the

10

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

11

20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).
13

A.M.A., Guides 383-492.

14

Id. at 411.

15

Id. at 461.

16

Id. at 473.

4

resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.17
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.18 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)19
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”20
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.21
ANALYSIS
The Board finds that the case is not in posture for decision.
Following Dr. Graf’s July 26, 2017 impairment rating, OWCP routed the case file to
Dr. White, serving as a DMA, for an opinion regarding appellant’s permanent impairment of the
left thumb. In his October 1, 2017 report, the DMA related that appellant’s impairment should be

17

Id. at 474.

18

FECA Bulletin No. 17-06 (May 8, 2017).

19

A.M.A., Guides 477.

20

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).
21
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (March 2017).

5

rated for the diagnosis for carpometacarpal arthroplasty.22 He thereafter explained his rating and
concluded that appellant had 26 percent permanent impairment of the left thumb, which converted
to 10 percent impairment of the left hand.23 The DMA properly noted, however, that ROM
findings were not provided to ascertain a ROM rating.
OWCP referred appellant to Dr. Geary for a second opinion evaluation and impairment
rating utilizing both DBI and ROM methods for rating permanent impairment. In his July 11, 2018
report, Dr. Geary properly provided three range of motion measurements in accordance with the
A.M.A., Guides and found that the ROM method would result in 18 percent permanent impairment
of the left digit. He also utilized the DBI rating method and found that appellant sustained 26
percent impairment to the left digit based on the DBI method. Dr. Geary’s report was sufficient
to warrant referral to an OWCP DMA to determine the extent of permanent impairment of
appellant’s left thumb. After obtaining the permanent impairment rating from second opinion
physician, Dr. Geary, based on both ROM and DBI assessments, OWCP should have referred the
case record back to a DMA for his review and findings relative to impairment.24 OWCP
procedures provide that the DMA should verify the calculations of the rating physician and
determine the percentage of impairment according to the sixth edition of the A.M.A., Guides.25
Consequently, the Board finds that further development of the medical evidence is required
to determine the extent of appellant’s permanent impairment for schedule award purposes. The
case will be remanded for Dr. Geary’s report to be routed to the DMA for further development in
accordance with OWCP procedures. After such further development as deemed necessary, it shall
issue a de novo merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

22

Supra note 6.

23

A.M.A., Guides 421, Table 15-12.

24

Supra note 21.

25

See supra note 21; see also J.M., Docket No. 16-0224 (issued May 20, 2016).

6

ORDER
IT IS HEREBY ORDERED THAT the August 17, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 15, 2019
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 15-0569
Issued: August 14, 2015

Case Submitted on the Record

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

JURISDICTION
On January 12, 2015 appellant, through counsel, filed a timely appeal from an
October 10, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment of the left lower
extremity.
FACTUAL HISTORY
This case has previously been before the Board. OWCP accepted that on October 10,
1985 appellant, then a 44-year-old letter carrier, sprained her left ankle when she fell on steps.
Appellant sustained periods of disability from work from October 11 through November 18,
1

5 U.S.C. § 8101 et seq.

1985 at which point she resumed her usual employment. In a decision dated March 6, 1992, the
Board affirmed December 27, 1990 and May 30, 1991 OWCP decisions finding that she had not
established a recurrence of disability beginning April 24, 1990 causally related to her
October 10, 1985 employment injury. The facts and circumstances as set forth in the Board’s
prior decision are hereby incorporated by reference.2
Appellant underwent numerous left foot surgeries. On April 25, 1990 she underwent an
excision of a Morton’s neuroma of the second metatarsal space of the left foot. On August 15,
1990 appellant underwent an excision of a Morton’s neuroma of the third metatarsal space of the
left foot, and on May 1, 1996 she underwent an excision of a stump neuroma of the third
interspace of the left foot with an arthroplasty of the proximal interphalangeal (PIP) joint of the
fourth and fifth digits of the left foot. On July 31, 1991 she underwent surgery on her right foot.
OWCP did not accept any of the surgeries as causally related to the accepted October 10, 1985
employment injury.
In an impairment evaluation dated November 27, 2001, Dr. David Weiss, an osteopath
Board-certified in family practice, diagnosed status post excision of a Morton’s neuroma at the
second and third metatarsal spaces of the left foot, a recurrent stump neuroma at the third
interspace of the left foot, a contracture deformity of the fourth and fifth digits of the left foot,
status post excision of a stump neuroma at the third interspace of the left foot, status post PIP
joint arthroplasty to the fifth digit of the left foot, and an arthoplasty of the metatarsal phalangeal
and PIP joint of the fifth digit of the right foot. Applying the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides), he found that appellant had a 41 percent permanent impairment of the left lower
extremity due to pain and loss of motor strength in dorsiflexion and plantar flexion of the ankle.
On July 21, 2006 utilizing the fifth edition of the A.M.A., Guides an OWCP medical
adviser opined that appellant had a 31 percent permanent impairment of the left lower
extremity.3 On November 1, 2006 OWCP requested that the medical adviser clarify whether the
percentage of impairment was due to the accepted work injury. In a November 12, 2006
response, the medical adviser indicated that he had provided the 31 percent impairment rating
based on his review of Dr. Weiss’ report and his findings regarding reduced ankle motion. He
recommended a second opinion examination if there was an issue regarding the extent of any
employment-related impairment rating.
On March 21, 2008 OWCP referred appellant to Dr. Jatin Ghandi, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated April 15, 2008,
Dr. Ghandi diagnosed a “[l]eft ankle sprain with residual pain and weakness.” He found that
there was a “causal relationship between the accident mentioned above and the current medical
condition….” Dr. Ghandi opined that appellant had a 31 percent permanent impairment of the
left lower extremity under the fifth edition of the A.M.A., Guides for left ankle pain, dorsiflexion
weakness, and plantar flexion weakness. In a supplemental report received on May 30, 2008, he
2

Docket No. 91-1651 (issued March 5, 1992).

3

The medical adviser indicated that appellant had a permanent impairment of the right lower extremity; however,
it appears that this is a typographical error.

2

advised that she probably reached maximum medical improvement in 2001. Dr. Ghandi again
found a 31 percent left lower extremity impairment.
OWCP determined that a conflict existed between appellant’s physician, Dr. Weiss, and
an OWCP medical adviser and Dr. Ghandi regarding the extent of permanent impairment. On
September 19, 2008 it referred her to Dr. George Glenn, a Board-certified orthopedic surgeon,
for an impartial medical examination.
In a report dated December 1, 2008, Dr. Glenn advised that appellant had no tenderness
at the sight of her surgeries but had tenderness of the second metatarsal unrelated to her
October 10, 1985 work injury. He opined that her ankle sprain had resolved and that she had no
impairment. Dr. Glenn found no weakness in dorsiflexion or plantar flexion, objective evidence
of pain, or loss of sensation of the toes. He stated:
“[Appellant] did register complaints of pain subjectively, but demonstrated no
objective evidence of tenderness over the operative areas. As a consequence of
all of the above I do not feel that [she] has any residual permanency of
impairment involving the left ankle which can be attributed to the accident of
October 19, 1985. Regardless of the etiology, I also fail to find any residual
evidence of permanency of impairment involving the left foot.”
By letter dated July 28, 2009, OWCP informed appellant that it was now using the sixth
edition of the A.M.A., Guides for schedule awards. On January 3, 2011 it referred her to
Dr. Glenn for another impartial medical examination in accordance with the sixth edition of the
A.M.A., Guides.
In a report dated January 18, 2011, Dr. Glenn measured normal range of motion of both
feet, normal circumference of the calves and ankles bilaterally, and found no ankle tenderness or
tenderness of the ligamentous structures. He noted that appellant “did complain of palpable
tenderness between the first and second metatarsal areas on the left with specifically no
tenderness throughout the other metatarsal head or intermetatarsal areas.” Dr. Glenn found a left
bunion deformity but normal findings on sensory examination with no muscle atrophy or
fasciculation. He advised that his findings were predominately unchanged since the prior
examination. Dr. Glenn noted that OWCP had accepted only a left ankle sprain as work related
and stated, “It is quite clear based upon the prior examination and this current examination that
[appellant] has no objective findings or for that matter any subjective complaints which would be
consistent with that accepted diagnosis.” Citing the foot and ankle regional grid set forth at
Table 16-2 on page 402 of the sixth edition of the A.M.A., Guides, he determined that appellant
had a class 0 impairment as she did not have any “significant objective abnormal findings of
muscle or tendon injury….” Dr. Glenn advised that the pain questionnaire she completed was
not reliable. He opined that appellant reached maximum medical improvement no more than six
months after October 10, 1985.
On August 5, 2012 an OWCP medical adviser reviewed Dr. Glenn’s report and concurred
with his finding that appellant had no impairment of the left lower extremity.

3

By decision dated October 12, 2012, OWCP denied appellant’s claim for a schedule
award. It found that Dr. Glenn’s report as an impartial medical examiner represented the weight
of the medical evidence and established that she had no impairment of the left lower extremity.
On October 22, 2012 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative.
In a report dated October 12, 2012, Dr. Weiss applied the sixth edition of the A.M.A.,
Guides to his November 27, 2001 examination findings.4 He concluded that appellant had a six
percent permanent impairment of the left lower extremity due to loss of range of motion of the
great, second and third toes.
A hearing was held on January 14, 2013. At the hearing, counsel argued that Dr. Glenn
was erroneously selected multiple times to serve as an impartial medical examiner. Counsel also
maintained that Dr. Glenn should address causation.
By decision dated April 11, 2013, an OWCP hearing representative affirmed the
October 12, 2012 decision but modified it to reflect that Dr. Glenn’s opinion was that of an
OWCP referral physician rather than an impartial medical examiner. He determined that at the
time OWCP referred appellant to Dr. Glenn in 2008 there was no conflict in medical opinion
because the 2001 report of Dr. Weiss was stale and unrationalized and thus insufficient to create
a conflict. The hearing representative found that Dr. Glenn’s opinion as a second opinion
examiner represented the weight of the evidence and established that she had no impairment of
the lower extremity. He determined that the updated report from Dr. Weiss dated October 12,
2012 was based on the 2001 examination and was thus stale. The hearing representative also
found that Dr. Weiss did not address the causal relationship between his impairment rating and
the accepted work injury.
In a report dated November 12, 2013, Dr. Weiss discussed appellant’s history of an
October 10, 1985 work injury and multiple left foot surgeries. Regarding her past medical
history, he stated, “Please refer to our prior report dated November 27, 2001.” On examination
of the left foot, Dr. Weiss found tenderness and decreased sensation at the first through third
metatarsal webs and motor strength of 4/5 in dorsiflexion and plantar flexion. He diagnosed a
Morton’s neuroma at the second and third metatarsal space of the left foot status post excisions,
status post excision of a recurrent stump neuroma at the third interspace of the left foot,
contracture deformity of the fourth and fifth left foot digits, status post arthroplasty of the PIP
joint of the fifth digit of the left foot, and residual neuralgia of the first through third web spaces
of the left foot. Dr. Weiss advised that appellant’s October 19, 1985 employment injury and her
work duties caused her subjective complaints and the objective findings. Citing the sixth edition
of the A.M.A., Guides, he determined that appellant had a 13 percent permanent impairment of
the left lower extremity due to loss of range of motion of the left first, second, and third toes at
the metatarsophalangeal joints using Table 16-19 on page 549. Dr. Weiss further found a 3
percent impairment for a left superficial peroneal nerve sensory loss under Table 16-12 on page
534, which he combined with the impairment due to reduced motion to find a 16 percent left
4

Dr. Weiss also evaluated the extent of a right upper extremity impairment.

4

lower extremity impairment. He concluded that appellant reached maximum medical
improvement on November 12, 2013.
On March 25, 2014 appellant’s counsel requested that OWCP respond to his February 26,
2014 reconsideration request. By letter dated June 26, 2014, he submitted the February 26, 2014
reconsideration request to OWCP. Counsel argued that Dr. Weiss’ November 12, 2013 report
represented the weight of the evidence and established that she had a 16 percent permanent
impairment of the left lower extremity.
By decision dated October 10, 2014, OWCP denied modification of its April 11, 2013
decision. It found that Dr. Weiss’ opinion was insufficient to create a conflict or constitute the
weight of the evidence as he did not consider appellant’s medical history after
November 27, 2001.
On appeal appellant’s counsel argues that OWCP should have issued a schedule award
for a 31 percent permanent impairment based on the agreement of the medical adviser and
second opinion physician. He also contends that Dr. Glenn’s opinion was not entitled to special
weight as it did not contain rationale or address whether the three left foot surgeries were due to
the accepted work injury. Counsel maintains that Dr. Glenn’s report is stale and that he did not
provide specific range of motion findings for the ankle. He argues alternatively that Dr. Weiss’
report represents the weight of the evidence or that a conflict exists between Dr. Weiss and
Dr. Glenn.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulation,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

5

ANALYSIS
OWCP accepted that appellant sustained a left ankle sprain on October 10, 1985 when
she fell on steps. Appellant underwent multiple surgeries on her left foot for neuromas. OWCP
did not authorize any of the foot surgeries or find them related to the accepted work injury.
On November 27, 2001 Dr. Weiss diagnosed status post excision of a Morton’s neuroma
at the left second and third metatarsal spaces, a recurrent stump neuroma at the third interspace
of the left foot, a contracture deformity of the fourth and fifth digits of the left foot, status post
excision of a stump neuroma at the third interspace of the left foot, status post PIP joint
arthroplasty to the fifth digit of the left foot, and status post an arthoplasty of the metatarsal
phalangeal, and PIP joint of the fifth digit of the right foot. He applied the fifth edition of the
A.M.A., Guides and advised that appellant had a 41 percent permanent impairment of the left
lower extremity due to loss of motor strength in plantar and dorsiflexion of the ankle and pain.
OWCP, however, uses the sixth edition of the A.M.A., Guides to calculate schedule awards.9
Dr. Weiss’ report was based on the fifth edition of the A.M.A., Guides. A medical opinion not
based on the appropriate edition of the A.M.A., Guides is of diminished probative value in
determining the extent of permanent impairment.10
An OWCP medical adviser reviewed Dr. Weiss’ report and found that appellant had a 31
percent impairment of the left lower extremity. On November 21, 2006 he clarified that his
impairment rating was based on Dr. Weiss’ rating of ankle motion. The medical adviser
recommended a second opinion examination to determine whether the impairment was
employment related.
On April 15, 2008 Dr. Ghandi, an OWCP referral physician, diagnosed left ankle sprain
with pain and weakness and attributed appellant’s current condition to her work injury. He
utilized the fifth edition of the A.M.A., Guides to find a 31 percent lower extremity impairment
due to left ankle pain, weakness in dorsiflexion, and plantar flexion weakness. As in the case of
Dr. Weiss’ November 2001 report, Dr. Ghandi’s opinion, however, is of little probative value as
it was not based on the sixth edition of the A.M.A., Guides. Consequently, his report is
insufficient to establish appellant’s impairment rating.11
OWCP determined that a conflict existed between Dr. Weiss, appellant’s attending
physician, and Dr. Ghandi, an OWCP referral physician, regarding the extent of any permanent
impairment due to the October 10, 1985 work injury. It referred her to Dr. Glenn, a Boardcertified orthopedic surgeon, for an impartial medical examination. Based on Dr. Glenn’s report,
OWCP denied appellant’s schedule award claim.
An OWCP hearing representative
subsequently determined that there was no conflict at the time OWCP referred her to Dr. Glenn
as Dr. Weiss’ report was stale and thus of little probative value. He found, however, that

9

Id.

10

See F.T., Docket No. 14-553 (issued August 11, 2014); Fritz A. Klein, 53 ECAB 642 (2002).

11

See C.J., Docket No. 13-1959 (issued February 6, 2014); J.H., Docket No. 13-732 (issued July 5, 2013).

6

Dr. Glenn’s opinion constituted the weight of the evidence as a referral physician and established
that appellant had no left lower extremity impairment.
The Board finds that Dr. Glenn’s opinion as an OWCP referral physician constitutes the
weight of the medical opinion evidence and establishes that appellant has no permanent
impairment. In a report dated December 1, 2008, Dr. Glenn utilized the fifth edition of the
A.M.A., Guides and determined that she had no left ankle impairment as a result of her accepted
ankle sprain. On January 18, 2011 Dr. Glenn opined that appellant had a normal sensory
examination with no atrophy or loss of motion. He found no objective findings of an ankle
sprain. Applying Table 16-2 on page 402 of the sixth edition of the A.M.A., Guides, Dr. Glenn
advised that appellant had a class 0 impairment based on her lack of objective findings of an
injury to a muscle or tendon. On August 5, 2012 an OWCP medical adviser reviewed and
agreed with Dr. Glenn’s conclusions. The Board finds that Dr. Glenn’s opinion was based on an
appropriate factual and medical history and was sufficiently well rationalized to constitute the
weight of the medical opinion evidence on the issue of appellant’s lower extremity impairment.
Dr. Glenn provided rationale for his opinion by explaining that, based on his findings on two
examinations and her subjective complaints, appellant had no residuals or impairment as a result
of the accepted condition of left ankle sprain. His detailed opinion represents the weight of the
evidence and establishes that appellant is not entitled to a schedule award.12
The remaining evidence is insufficient to establish that appellant sustained a permanent
impairment of the lower extremities. Appellant requested reconsideration and submitted a
November 12, 2013 report from Dr. Weiss, who provided current findings on examination.
Referencing the sixth edition of the A.M.A., Guides, Dr. Weiss opined that she had a 13 percent
permanent impairment due to loss of range of motion of the toes using Table 16-19 on page 549.
He further found a 3 percent impairment due to sensory loss of the left superficial peroneal nerve
under Table 16-12 on page 534, for a combined left lower extremity impairment of 16 percent.
Dr. Weiss, however, referred to his November 27, 2001 report for prior medical history, and thus
his report is based on an incomplete medical history as he did not discuss or review appellant’s
medical history subsequent to 2001. Medical reports based on an inaccurate or incomplete
history of injury are of little probative value.13 Additionally, Dr. Weiss rated appellant for
conditions not accepted by OWCP as employment related. It is appellant’s burden to establish
that she sustained a permanent impairment of a scheduled member as a result of an employment
injury through the submission of rationalized medical evidence.14 While Dr. Weiss generally
found that appellant’s October 1985 work injury caused the objective findings, he did not
provide any rationale for his opinion.15 Such rationale is particularly necessary given the

12

See D.W., Docket No. 13-278 (issued April 15, 2013); J.L., Docket No. 09-1726 (issued June 8, 2010).

13

See Beverly R. Jones, 55 ECAB 411 (2004).

14

See R.J., Docket No. 14-1950 (issued March 23, 2015); Tammy L. Meehan, 53 ECAB 229 (2001).

15

Medical conclusions unsupported by rationale are of diminished probative value. See Jacquelyn L. Oliver, 48
ECAB 232 (1996).

7

numerous medical procedures appellant has undergone on her left foot that have not been
accepted by OWCP as employment related.
On appeal appellant’s counsel argues that OWCP should have issued a schedule award
for a 31 percent permanent impairment based on the agreement of the medical adviser and
second opinion physician. However, OWCP medical adviser found that OWCP should develop
the evidence to determine whether the 31 percent impairment rating resulted from the accepted
work injury. Further, the rating by Dr. Ghandi was based on the fifth edition of the A.M.A.,
Guides, and thus is not probative to the issue of the extent of any permanent impairment under
the sixth edition of the A.M.A., Guides.
Counsel also contends that Dr. Glenn’s opinion was not entitled to the weight of the
evidence as he did not provide rationale or address whether the three left foot surgeries were due
to the accepted work injury. OWCP, however, did not authorize the ankle surgeries. As
discussed, it is appellant’s burden to establish that the condition is causally related to the
employment injury through the submission of rationalized medical evidence.16
Counsel additionally argues that Dr. Glenn did not provide specific range of motion
findings for the ankle. Dr. Glenn found, however, that appellant had no loss of motion for
dorsiflexion, plantar flexion, eversion, and inversion. He clearly found that she had no
impairment due to loss of motion. Counsel further contends that Dr. Glenn’s report is stale;
however, he provided an impairment rating based on current findings in January 2011 at which
time he found that appellant had no objective findings of the accepted work injury.
Counsel maintains that either Dr. Weiss’ report represents the weight of the evidence or a
conflict exists between Dr. Weiss and Dr. Glenn. As discussed, however, Dr. Weiss’ report is of
reduced probative value as he did not rely on a complete medical history or support his causation
finding with medical rationale. Instead, he rated appellant for loss of range of motion of the toes
and sensory loss of the peroneal nerve, conditions not accepted as work related. A schedule
award can only be paid for a condition related to an employment injury.17 The claimant has the
burden of proving that the condition for which a schedule award is sought is causally related to
her employment.18 Dr. Weiss’ rating is not based on the accepted condition and is thus of little
probative value.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established a permanent impairment of the left
lower extremity.
16

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

17

See J.S., Docket No. 13-2132 (issued July 23, 2014).

18

See Veronica Williams, 56 ECAB 367 (2005).

8

ORDER
IT IS HEREBY ORDERED THAT the October 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, OFFICE OF
INSPECTOR GENERAL, Arlington, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1023
Issued: October 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 18, 2016 appellant filed a timely appeal of a March 11, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her left carpal
tunnel syndrome is causally related to factors of her federal employment.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On January 6, 2016 appellant, then a 54-year-old hotline analyst, filed an occupational
disease claim (Form CA-2) alleging that on December 10, 2015 she first realized that her carpal
tunnel condition was employment related. He did not stop working.
In an undated statement, appellant described the various positions she held at the
employing establishment along with a brief description of the duties of the positions. She
alleged that her duties in her position as hotline analyst required repetitive typing eight hours per
day, five days per week. Appellant reported that her prior positions of investigative technician
and word processing operator also required repetitive typing for eight hours per day, five days
per week. The audit technician position required three hours of typing per day, five days per
week. Appellant’s work as a technician required repetitive movement of the wrists, hand, and
fingers sorting and opening mail eight hours per day, five days per week.
In a February 3, 2016 letter, OWCP informed appellant that the evidence of record was
insufficient to establish her claim as a medical report with a diagnosis and opinion regarding
causal relationship had not been submitted. Appellant was advised of the medical and factual
evidence needed and she was afforded 30 days to submit such evidence, including a wellrationalized opinion from her physician regarding the cause of her condition. OWCP also
requested that the employing establishment provide treatment notes if appellant had been treated
at an employing establishment medical facility.
In response to OWCP’s request for additional evidence, appellant submitted a January 21,
2016 physical therapy report, a December 28, 2015 electromyograph (EMG) test, and the
following medical reports.
In a December 28, 2015 consultation report, Dr. Subhash K. Shah, an examining
physician, diagnosed neuropathy, left carpal tunnel syndrome, and left cubital syndrome. He
provided physical examination findings and reviewed an EMG.
A November 30, 2015 treatment note by Dr. Jean Lee, a treating physician, indicated that
appellant had been seen in the emergency room for right index finger cut sustained last
Thursday. Appellant reported numbness in her left hand except for the thumb due to increased
use. Dr. Lee reported a negative Tinel’s sign and a positive left Phalen’s sign. She noted that
appellant’s work involved a lot of typing and opined that appellant most likely had carpal tunnel
syndrome.
In a December 10, 2015 prescription note, Dr. Lee diagnosed carpal tunnel syndrome,
provided work restrictions, and prescribed a wrist splint. She opined that appellant’s carpal
tunnel condition could be aggravated by typing.
In a treatment note dated January 5, 2016 and electronically signed on January 7, 2016,
Dr. Lee reported cubital and carpal tunnel syndrome based on EMG results. Diagnoses included
left ulnar nerve lesion, left carpal tunnel syndrome, low back pain, lumbar spinal stenosis, skin
anesthesia, hypertrichosis, lumbar spine scoliosis, and postprocedural hypothyroidism. In a

2

February 8, 2016 addendum, Dr. Lee provided work restrictions for appellant. She referred
appellant for physical therapy and to Dr. William Heller, a Board-certified orthopedic surgeon.
A January 19, 2016 office visit report diagnosed probable mild bilateral cubital tunnel
syndrome, provided physical examination findings, and noted results from recent EMG tests.
Dr. Heller is listed as the provider, but the report indicates that it was electronically signed by
L.A.M., a transcriptionist.3
In February 8, 2016 treatment notes, Dr. Lee discussed appellant’s complaints and her
request to have the physician attribute her carpal tunnel syndrome to typing at work.
By decision dated March 11, 2016, OWCP denied appellant’s claim as it found the
medical evidence insufficient to establish a causal relationship between the diagnosed carpal
tunnel condition and the accepted work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability 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 or an occupational disease.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
3

There is no evidence that Dr. Heller signed the report.

4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).

3

whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant alleged, and it is undisputed, that her work duties involved significant amounts
of typing and repetitive hand movements five days per week. OWCP denied her claim, finding
there was insufficient medical evidence to establish that her diagnosed carpal tunnel condition
had been caused or aggravated by her work duties. The Board finds that appellant failed to meet
her burden of proof to establish that her left carpal tunnel syndrome is causally related to factors
of her federal employment.
In a December 28, 2015 consultation report, Dr. Shah, an examining physician, provided
diagnoses, physical examination findings, and findings from an EMG. However, he offered no
opinion on the causal relation of appellant’s condition to her federal employment. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11 Thus, this report is
insufficient to support appellant’s claim.
In a November 30, 2015 treatment note, Dr. Lee diagnosed left hand numbness and
indicated that it was most likely carpal tunnel. She noted that appellant’s work involved a lot of
typing, but offered no medical explanation regarding causal relationship. In a December 10,
2015 prescription note, Dr. Lee diagnosed carpal tunnel syndrome, which she opined could be
aggravated by appellant’s typing. The Board has held that medical opinions which are
speculative or equivocal are of diminished probative value.12 Furthermore, a mere conclusion
without the necessary rationale explaining how and why the physician believes that appellant’s
work activities could result in the diagnosed condition is insufficient to meet appellant’s burden
of proof.13 Dr. Lee, in a treatment note dated January 5, 2016 and electronically signed on
January 7, 2016, diagnosed left carpal tunnel syndrome and left ulnar lesion among other
conditions. In her February 8, 2016 treatment note, she discussed appellant’s complaints and
appellant’s request to provide an opinion that attributed her carpal tunnel syndrome to her typing
at work. Dr. Lee offered no opinion regarding the cause of appellant’s left carpal tunnel
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Jaja K.
Asaramo, 55 ECAB 200 (2004).
12

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related, or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
13

See Beverly A. Spencer, 55 ECAB 501 (2004).

4

syndrome and left ulnar lesion or appellant’s complaints in either report. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.14 Dr. Lee’s reports are insufficient to discharge
appellant’s burden of proof as they do not present a rationalized medical opinion regarding
causal relationship.
The remaining evidence submitted by appellant is insufficient to establish causal
relationship. The diagnostic test fails to provide an opinion addressing the causal relationship of
appellant’s condition.15
The unsigned January 19, 2016 office visit report is also of no probative value as there is
no indication of who prepared those reports. The Board has held that incomplete medical reports
not containing a signature do not constitute probative medical evidence.16 Similarly, the
January 21, 2016 physical therapy report is of no probative value, as the Board has held that
physical therapists are not considered physicians as defined under FECA.17 Thus, this evidence
is therefore of no probative medical value.
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 carpal tunnel
syndrome causally related to factors of her federal employment.

14

See supra note 11.

15

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).
16

See R.M., 59 ECAB 690, 693 (2008); Merton J. Sills, 39 ECAB 571, 575 (1988).

17

See 5 U.S.C. § 8101(2). See Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000) (a medical issue such as causal relationship can only be resolved through the
submission of probative medical evidence from a physician).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 11, 2016 is affirmed.
Issued: October 11, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Birmingham, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-150
Issued: July 25, 2011

Case Submitted on the Record

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

JURISDICTION
On October 25, 2010 appellant filed a timely appeal from an April 23, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for a
hearing by the Branch of Hearings and Review. Pursuant to the Federal Employees’
Compensation Act and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
nonmerit decision by OWCP. The last merit decision of record was OWCP’s July 29, 2009
decision. Because more than 180 days has elapsed between the last merit decision and the filing
of this appeal on October 25, 2010, the Board lacks jurisdiction to review the merits of this case.1
ISSUE
The issue on appeal is whether OWCP properly denied appellant’s request for an oral
hearing as untimely.

1

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

FACTUAL HISTORY
On June 16, 2009 appellant, then a 33-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on June 5, 2009 she sustained “some sort of attack” which
resulted in chest pains, shortness of breath and headaches. She identified the nature of her injury
as heart, chest, lungs and nerves. Appellant stopped work that same date and was treated in the
emergency room. She returned to work the following day.
By letter dated June 23, 2009, the employing establishment controverted the claim stating
that appellant was not in the performance of duty. In support of its challenge, it submitted a
witness statement from James B. Putman, a customer service supervisor, who described the
events leading to appellant’s traumatic injury claim.
Appellant submitted a March 16, 2009 prescription note and duty status report from
Dr. Thomas D. Harper, Board-certified in family medicine.
By letter dated June 26, 2009, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and asked that she respond to the provided questions within 30 days.
Appellant submitted a June 18, 2009 medical report from a Dr. Thomas A. Leaf and
medical reports dated June 8 to 30, 2009 from Dr. Harper.
By decision dated July 29, 2009, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that the injury was causally related to the established
June 5, 2009 employment incident.
Appellant submitted a number of additional documents including a May 8, 2009 narrative
statement, a July 22, 2009 12-page narrative statement attached to OWCP’s July 26, 2009
development letter which was signed and dated by her, additional medical reports, an April 17,
2009 U.S. Postal Service decision for appellant’s grievance, a June 24, 2009 Family and Medical
Leave Act Designation Notice and witness statements.
On March 31, 2010 appellant requested an oral hearing before OWCP’s hearing
examiner.
By decision dated April 23, 2010, the Branch of Hearings and Review denied appellant’s
request for a review of the written record finding that her request was not made within 30 days of
the July 29, 2009 OWCP decision. The Branch of Hearings and Review further determined that
the issue in the case could equally well be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered which establishes that her condition was
causally related to factors of her federal employment.
LEGAL PRECEDENT
A claimant for compensation not satisfied with a decision by OWCP is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his

2

claim before a representative of the Secretary.2 According to 20 C.F.R. § 10.615, a claimant
shall be afforded a choice of an oral hearing or a review of the written record.3 The regulations
provide that a request for a hearing or review of the written record must be made within 30 days
as determined by the postmark or other carrier’s date marking, of the date of the decision.4 A
claimant is not entitled to a hearing or a review of the written record as a matter of right if the
request is not made within 30 days of the date of OWCP’s decision.5 OWCP has discretion,
however, to grant or deny a request that is made after this 30-day period.6 In such a case, it will
determine whether to grant a discretionary hearing and, if not, will so advise the claimant with
reasons.7
ANALYSIS
In the present case, appellant requested an oral hearing on March 31, 2010 and OWCP
found that the reconsideration request was postmarked on that same date. Her request was made
more than 30 days after the date of issuance of OWCP’s prior decision dated July 29, 2009.
Therefore, OWCP properly found in its April 23, 2010 decision that appellant was not entitled to
an oral hearing or examination of the written record as a matter of right because her request for
an oral hearing was not made within 30 days of its July 29, 2009 decision.8
The Board has held that a request for reconsideration need not be on any particular form
but must be in writing, identify the decision and the specific issues for which reconsideration is
being requested and be accompanied by relevant and pertinent new evidence or argument not
previously considered.9 Appellant submitted a number of documents on July 30, 2009. This
submission included a narrative statement dated May 8 and July 22, 2009. Both statements
predated the July 29, 2009 OWCP decision and thus, made no reference to a reconsideration
request.10 In the instant case, appellant did not submit a written request for an oral hearing by
August 28, 2009, 30 calendar days from OWCP’s July 29, 2009 decision. Because her request
was postmarked March 31, 2010, it is untimely.

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

See James Smith, 53 ECAB 188 (2001).

6

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

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602 (May 1991).

9

Vincente P. Taimanglo, 45 ECAB 504 (1984); Darrell Stovall, Docket No. 99-2562 (issued March 14, 2001).
See Federal Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1601.2(a) (May 1996).
10

The Board notes that the record did not yet contain a final merit decision regarding appellant’s claim. Thus,
there could be no appeal with respect to any interlocutory matter disposed of during the pendency of the case.

3

Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority with respect to granting the request and it must exercise such
discretion.11 In its April 23, 2010 decision, OWCP properly exercised its discretion by stating
that it had considered the matter and had denied appellant’s request for an oral hearing because
the issue of causal relationship could be addressed through a reconsideration application. The
Board has held that the only limitation on OWCP’s authority is reasonableness and an abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.12 In this case, the evidence of record does not indicate that OWCP abused its
discretion in its denial of appellant’s request for an oral hearing.
On appeal, appellant contends that she has provided extensive documentation and proof
that her condition was a result of the work-related event. As noted, the Board does not have
jurisdiction over the merits of this case and therefore will not review evidence submitted by
appellant.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office within one year of OWCP’s last merit decision of July 29, 2009,
pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s March 31, 2010 request for an
oral hearing.

11

See Cora L. Falcon, 43 ECAB 915 (1992).

12

Daniel J. Perea, 42 ECAB 214, 221 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 23, 2010 is affirmed.
Issued: July 25, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5