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

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Appearances:
David W. Covino, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-528
Issued: February 23, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 16, 2008 appellant filed a timely appeal from the June 25, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied her recurrence of
disability claim, and an October 22, 2008 decision which denied further merit review. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability commencing
March 28, 2005 causally related to her August 6, 2002 injury; and (2) whether the Office
properly denied her request for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 6, 2002 appellant, then a 54-year-old mail handler, injured her right shoulder
when lifting a flat box out of a mail cart onto a belt. The Office accepted her claim for right
shoulder strain and paid compensation. Appellant did not stop work. The record establishes that
as of September 3, 2002, her restricted duty assignment was for five hours a day, receiving
wage-loss for the hours she did not work. She was to use one hand only with no lifting over 5
pounds with her right hand and no overhead reaching.

An August 6, 2002 right shoulder x-ray revealed no abnormalities. On September 3,
2002 appellant was treated by Dr. A. Marc Tetro, a Board-certified orthopedic surgeon. In
reports dated through November 18, 2004, he diagnosed right rotator cuff sprain, probable long
head biceps tendinitis tenosynovitis/possible tear, possible labral injury and joint arthrosis. He
recommended conservative treatment and reiterated that appellant could work light duty, five
hours per day with restrictions. An April 28, 2003 magnetic resonance imaging (MRI) scan of
the right shoulder showed moderate acromioclavicular joint degenerative changes and a pattern
consistent with impingement. There was also a large high grade partial thickness undersurface
tear. After conservative treatment failed, Dr. Tetro recommended surgery and continued
restrictions of light-duty work for five hours per day.1 The record reflects that appellant did not
undergo surgery.
On June 9, 2004 appellant underwent a fitness-for-duty examination by Dr. Deborah F.
Miller, a Board-certified internist. She reviewed the reports of Dr. Tetro, noting that appellant
would continue with her present 5 pound restriction on lifting and only five hours of work a day.
Dr. Miller diagnosed right shoulder rotator cuff tendinitis with partial thickness rotator cuff tear
and a history of left ulnar nerve neuropathy due to a non-employment related injury.2
On February 28, 2005, appellant began treatment with Dr. Jerry J. Tracy, III, a Boardcertified orthopedic surgeon. He diagnosed right shoulder rotator cuff tear, acromioclavicular
joint impingement, bursitis, co-morbidity and depression and advised that she was moderately
disabled. On April 14, 2005 report, Dr. Tracy noted that appellant had been off work since
March 28, 2005 due to increased shoulder pain and fibromyalgia. He diagnosed right shoulder
rotator cuff tear/acromioclavicular bursitis in the aftermath of the work injury, co-morbidity and
depression. On April 21, 2005, Dr. Tracy diagnosed shoulder pain, neck cervicalgia, bursitis,
and pain in the low back from a work-related injury. He opined that appellant was totally
disabled and submitted subsequent notes reiterating that she was totally disabled.
The record indicates that the employing establishment began the process of preparing a
proposed modified duty assignment for appellant. A limited duty assignment with proposed
hours and duties was prepared by Maryann Sheehan, a supervisor, and directed to the attention of
Dr. Miller. However, appellant stopped work as of March 27, 2005 and claimed compensation
commencing March 28, 2005. The employing establishment noted that she had been receiving
compensation for partial wage loss but now claimed total disability. On May 3, 2005 appellant
claimed a recurrence of disability commencing March 28, 2005. She noted working limited
duty, five hours per day prior to stopping work on March 28, 2005. The employing
establishment noted that accommodations had been made following the 2002 employment injury.

1

Appellant was examined by Dr. Melvin Brothman, an orthopedic surgeon, on April 22, 2003. He noted the
history of injury and that appellant had performed restricted duty since the date of injury. He found that she could
work five hours a day, advising that she could increase to six hours a day with restrictions on lifting over 20 pounds
and overhead reaching.
2

The record reflects that appellant was released from care by Dr. Tetro as of December 22, 2004 as he was unable
to provide further nonsurgical medical management.

2

An April 1, 2005 prescription note from Dr. Deirdre Bastible, a family practitioner, advised that
appellant would be off work for one month.
In a June 24, 2005 decision, the Office denied appellant’s recurrence of disability claim.
On July 4, 2005 appellant requested reconsideration. She submitted a June 9, 2005 work
capacity evaluation form. Dr. Tracy noted that appellant was off work until evaluation on
August 4, 2005. In a June 27, 2005 note, Dr. Tracy stated that appellant had a recent
exacerbation of right shoulder pain and was treated on June 8, 2005, at which time she was taken
off work. He noted reduced shoulder range of motion with tender points. Dr. Tracy diagnosed
shoulder arthropathy and bursitis, exacerbated and caused by the August 6, 2002 injury. He
advised that appellant would be considered totally disabled until her August 4, 2005 evaluation.
In a June 28, 2005 attending physician’s report, he checked a box “yes” that appellant’s
condition was caused by the August 6, 2002 injury and aggravated by her current work. He also
noted that appellant’s mail handler job involved lifting, carrying and repetitive upper arm use
which caused her condition to worsen. Appellant could not work as of March 28, 2005 due to
increased pain. Dr. Tracey attributed her disability to the accepted work injury.
On August 4, 2005, Dr. Tracy advised that appellant continued to have right shoulder
pain in the anterior deltoid and lateral deltoid regions and requested authorization for injection
treatment. He noted that appellant was also receiving treatment for lumbar disc herniations and
spinal stenosis. In a September 27, 2005, Dr. Tracy stated that following the accepted injury
appellant has returned to her usual work as a mail handler. He reviewed her job description and
stated that she returned to work doing heavy lifting and carrying with reaching and pulling with
her injured right shoulder. Dr. Tracy stated that his reports from 2003 to 2005 showed that
appellant had increasing pain and loss of shoulder motion as she continued her in her work. He
found that her work aggravated the diagnosed torn rotator cuff and shoulder impingement. The
record reflects that appellant retired on disability as of November 23, 2005.
In a May 10, 2006 work capacity evaluation Dr. Eugene J. Gosy, a Board-certified
orthopedic surgeon, found appellant totally disabled. In reports dated September 18, 2006 and
January 18, 2007 Dr. Gosy diagnosed shoulder pain and noted appellant’s disability status was
moderate.
On March 29, 2007 the Office referred appellant for a second opinion examination to
Dr. John Ring, a Board-certified orthopedic surgeon, to determine the nature of any residuals of
her accepted injury. In a May 3, 2007 report, Dr. Ring reviewed appellant’s history of injury and
medical treatment. He diagnosed right shoulder injury causally related to her work beginning
August 6, 2002 and impingement syndrome. Dr. Ring found that appellant had disabling
residuals including range of motion deficits on flexion, extension, adduction, internal and
external rotation. He opined that she could not perform her regular mail handler job due to her
work injury; however, she could perform full-time limited duty with restrictions of no lifting of
the right arm above the chest and no lifting over five pounds.3
3

On September 25, 2007 the Office granted appellant a schedule award for 17 percent impairment of the right
arm.

3

In reports dated October 10, 2007 and January 10, 2008, Dr Gosy diagnosed pain in the
shoulder region. A February 8, 2008 work capacity evaluation from Dr. Bastible diagnosed right
arm rotator cuff, spinal stenosis of the lumbar spine and found appellant totally disabled.
On June 11, 2008 the Office noted that it had a copy of the March 21, 2005 limited-duty
job offer and inquired as to the status of the offer. In an undated response, the employing
establishment noted that appellant claimed a recurrence of disability as of March 28, 2005 and,
had never worked at the job. The employing establishment stated that no job offer was made
because she was granted a disability retirement on November 23, 2005.
In a June 25, 2008 decision, the Office denied appellant’s recurrence of disability claim.
It found that the medical evidence was not sufficient to establish total disability for the limited
duty work she had been performing.
On July 26, 2008 appellant requested reconsideration. She contended that she never
received the modified mail handler position job offer. In a July 24, 2008 letter, she noted that
her schedule award was ending and requested placement on the periodic rolls. In statements
dated August 16 to October 23, 2008, she reiterated that she was never offered a modified mail
handler position in March 2005. On September 12, 2008, Dr, Gosy noted limited range of
motion of the right shoulder and diagnosed pain in the shoulder joint region. He advised that
appellant was 50 percent disabled.
In an October 22, 2008 decision, the Office denied appellant’s reconsideration request
finding that it was insufficient to warrant further merit review.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.4
Causal relationship is a medical issue,5 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
4

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

5

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

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supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.6
ANALYSIS
The Office accepted that appellant sustained a right shoulder strain on August 6, 2002.
Thereafter, she performed restricted duty for five hours a day. As of September 3, 2002 she was
to use only one hand with lifting on the right restricted to 5 pounds and no overhead lifting. She
received compensation for the hours she did not work. Through 2004, the reports of Dr. Tetro,
an attending physician, reiterated appellant’s physical restrictions and capacity for part-time
work.
On February 28, 2005 appellant began treatment with Dr. Tracy. The record reveals that
she stopped work on March 28, 2005 and subsequently claimed a recurrence of total disability as
of that date due to her accepted injury. The Board finds that appellant has not submitted
sufficient medical evidence to establish a change in the nature or extent of her accepted condition
or a change in the nature and extent of her limited-duty job requirements.
Dr. Tracy noted on April 14, 2005 that appellant had taken herself off work as of
March 28, 2005. He noted increased shoulder pain, fibromyalgia and depression. Dr. Tracy
diagnosed right shoulder rotator cuff tear/acromioclavicular bursitis, co-morbidity, neck
cervicalgia, low back pain and depression. As of April 21, 2005, he advised that appellant was
totally disabled due to her accepted work injury. The Board notes, however, that Dr. Tracy did
not provide any medical opinion explaining why appellant was unable to continue in her
restricted work with the five pound limitation on use of her right hand and the preclusion of
overhead work. He did not address why appellant was unable to continue in her employment for
five hours a day due to residuals of the accepted right shoulder strain.
In reports dated June 27, 2005, Dr. Tracy reiterated appellant had right shoulder pain with
reduced range of motion. He found, without explanation, that she was totally disabled for work
until further evaluation on August 4, 2005. Again, the physician did not provide any explanation
for his finding of total disability or how hit related to the August 6, 2002 injury. He did not
address why appellant was unable to continue in her restricted duty.
In the September 27, 2005 report, Dr. Tracy noted a history that appellant had returned to
her regular duty as a mail hander following the accepted injury. He noted that she was required
to perform heavy lifting and carrying, with reaching and pulling of the injured right shoulder.
This history, however, does not conform to the evidence of record which reflects that Dr. Tetro
imposed a five pound lifting restriction on use of the right arm and precluded any overhead
work. The medical evidence of treatment from 2002 to 2005 reflects that appellant continued
under the right arm work limitations. No limitations were noted concerning the use of her left
hand. On June 9, 2004, Dr. Miller noted that appellant was continued in 5 hour a day
employment under the restrictions recommended by Dr. Tetro. There is no evidence of appellant
having contended that her work limitations were not honored prior to the time she stopped work
6

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

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in March, 2005. In the September 27, 2005 report, Dr. Tracy noted that he was relying on
appellant’s statements as to her employment duties and those of coworkers that were provided to
for his review. However, the evidence of record does not establish that the employing
establishment changed the nature of the restricted duty appellant had been performing under the
recommendation of Dr. Tetro since 2002.
On appeal, counsel for appellant notes that she was never provided a modified duty job
offer in March of 2005. His contention is supported by the evidence of record which shows that
appellant’s supervisor was in the process of having Dr. Miller review a proposed full-time
modified job offer prior to the time appellant stopped work on March 27, 2005. The employing
establishment acknowledged that a job offer was never made to appellant since she retired in
November, 2005. Whether or not she ever received a modified duty job over, however, is not
determinative of appellant’s recurrence claim, the issue adjudicated by the Office. The Office
did not adjudicate whether she refused an offer of suitable work.7 It is appellant’s burden to
establish that she was unable to continue in her restricted duty assignment due to a change in her
accepted medical condition or that a change was made in her work requirements. Appellant has
failed to substantiate her contention that her work duties did not conform to her medical
restrictions.8 The April 1, 2005 prescription note of Dr. Bastible advised that appellant would be
off work for one month. The physician provided no opinion relating appellant’s disability for
work to the accepted injury. As noted, the reports of Dr. Tracy were initially unrationalized as to
the reasons for appellant’s inability to work as of March 28 2005. After September 27, 2005, his
medical opinion is of reduced probative value as it is based on an erroneous history of
appellant’s employment activities following the accepted injury.
His reports most
contemporaneous with March 28, 2005 do not address appellant’s capacity for work or identify a
particular change in the nature of appellant’s accepted condition which prevented her from
continuing in her light-duty position.9 Additionally, the Board notes that there is no explanation
addressing conditions not accepted in this case, such as cervical cervicalgia, bursitis, low back
pain, fibromyalgia or depression were caused or contributed to by the accepted right shoulder
strain.10 The Office never accepted these conditions as a result of the August 6, 2002 work
injury.11 The Board has found that unrationalized medical opinions on causal relationship are of
diminished probative value.12 Therefore, the evidence is insufficient to establish either a change
7

See 5 U.S.C. § 8106(c).

8

The Board notes that with her request for an appeal, appellant submitted new evidence including witness
statements and an affidavit. However, the Board may not consider new evidence on appeal. See 20 C.F.R.
§ 501.2(c).
9

See Katherine A. Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).

10

See Robert H. St. Onge, 43 ECAB 1169, 1175 (1992).

11

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (for conditions not accepted or
approved by the Office as being due to an employment injury, the claimant bears the burden of proof to establish
that such conditions are causally related to the employment injury through the submission of rationalized medical
evidence).
12

See Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship
are entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

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in the nature of appellant’s injury-related condition or that her restricted duty work was changed
causing her to be totally disabled as of March 28, 2005.
Dr. Gosy’s reports from May 10, 2006 to January 10, 2008 noted appellant’s treatment
for right shoulder pain due to a work injury and found moderate disability. Likewise, work
capacity evaluations from Dr. Bastible dated April 1, 2005 and February 8, 2008, diagnosed right
arm rotator cuff, spinal stenosis of the lumbar spine and noted appellant was permanently and
totally disabled. However, neither physician adequately addressed the issue of appellant’s
incapacity for work as of March 28, 2005. Dr. Bastible also listed diagnoses that are not accepted
by the Office as related to the August 2002 injury.
To further develop the claim, the Office referred appellant to Dr. Ring for a second
opinion. In a May 3, 2007 report, he diagnosed right shoulder injury causally related to her
August 2002 work injury and impingement syndrome. Dr. Ring noted that appellant could not
perform the regular duties of her mail handler job. He found, however, that she could work fulltime at limited duty with restrictions of no lifting of the right arm above the chest and no lifting
more than five pounds. The physical restrictions recommended by Dr. Ring reflect the
restrictions set by Dr. Tetro in 2002. Dr. Ring does not support that appellant was totally
disabled for work as of March 28, 2005.
Appellant contends that the Office erroneously dismissed the September 27, 2005 report
of Dr. Tracy. As noted, however, the report is premised on facts concerning appellant’s work
duties that are not substantiated by the evidence of record. This diminished the probative value
of the physician’s opinion on the issue of disability. Appellant has not met her burden of proof
in establishing that there was a change in the nature or extent of the injury-related condition or a
change in the nature and extent of the restricted duty she performed after her return to work.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Federal Employees’ Compensation Act,13 the Office has the
discretion to reopen a case for review on the merits. The Office must exercise this discretion in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations,14 which provides that a claimant may obtain review of the merits of his or her
written application for reconsideration, including all supporting documents, sets forth arguments
and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.606(b).

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“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.15
ANALYSIS
Appellant’s request for reconsideration asserted that she was never offered a modified
mail handler position on March 18, 2005 as noted in the Office’s June 25, 2008 decision. She
referenced a supporting affidavit which is not of record. The contention, however, is not relevant
to the issue of whether the Office erroneously applied or interpreted a specific point of law or
relevant legal argument not previously considered. The underlying issue is whether appellant
established a recurrence of total disability as of March 28, 2005. As noted, regardless of whether
a job offer was ever made, appellant was provided light duty consistent with her physician’s
restrictions in 2002 which she performed prior to stopping work. Appellant’s assertions
regarding any possible modified duty offer by the employing establishment does not establish
that the Office erred in applying or interpreting a specific point of law or advance a particular
point of law or fact that the Office had not previously considered.16
By letters dated July 24 and October 23, 2008, appellant noted that her schedule award
was expiring and requested that she be placed on the periodic roll in receipt of wage-loss
compensation for total disability. The materials pertaining to her schedule award are insufficient
to require further merit review as there are not relevant to establishing her recurrence of
disability claim. The Office properly determined that this evidence did not constitute a basis for
further merit review. The September 12, 2008 record from Dr. Gosy noted limited range of
motion of the right shoulder and diagnosed pain in the shoulder joint. However, Dr. Gosy’s
report is duplicative of his prior reports and does not address the issue relevant in this case as the
physician did not discuss the cause of appellant’s disability beginning March 28, 2005.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2).
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of total disability commencing March 28, 2005. The Board also finds that
the Office properly denied her request for reconsideration.

15

20 C.F.R. § 10.608(b).

16

C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008) (evidence or argument that repeats or
duplicates evidence previously of record has no evidentiary value and does not constitute a basis for reopening a
case).

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ORDER
IT IS HEREBY ORDERED THAT the October 22 and June 25, 2008 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: February 23, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, ATLANTA
LOGISTICS DISTRIBUTION CENTER,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 10-795
Issued: November 19, 2010

Case Submitted on the Record

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

JURISDICTION
On February 4, 2010 appellant filed a timely appeal from a September 21, 2009 merit
decision of the Office of Workers’ Compensation Programs, denying his claim for an
employment-related injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty, causally related to factors of his federal employment.
On appeal, appellant contends that the Office pay an outstanding medical bill in the
amount of $349.00 for medical services rendered on December 3, 2008.
FACTUAL HISTORY
On December 23, 2008 appellant, then a 55-year-old postal clerk, filed a traumatic injury
claim (Form CA-1) alleging that during two night shifts on December 1 and 2, 2008 he sustained

injury after his employer placed kerosene and propane heaters in an enclosed dock area. He
alleged that the heaters operated in an area without ventilation and resulted in his exposure to
carbon monoxide, causing a headache, sore throat, tightness in his chest, chest pains, eye
irritation and nausea. On the evening of December 2, 2008, appellant was taken by his
supervisor to Choice Care Clinic, where he was treated for possible carbon monoxide poisoning.
He did not stop work following the incident
In a progress report dated December 2, 2008, Dr. Brian Maziarz, a Board-certified
occupational medicine specialist, treated appellant at Choice Care. He advised that appellant
was alert, not in a state of distress and his vital signs were normal. Dr. Maziarz noted that
appellant had a past medical history of polymyositis, chronic sinus problems, and underwent
bilateral shoulder and colon polyps surgery. He reported that appellant initially presented with
fatigue, sore throat, and eye irritation, and then later complained of chest tightness. Dr. Maziarz
advised that appellant’s ears, eyes and lungs were clear, and other than some mild ejection of the
mucosa from a stuffy nose and mild injection in his throat, there were no other abnormalities.
His assessment of appellant was “probable” carbon monoxide exposure and referred appellant to
the emergency room for further evaluation and treatment. Appellant was placed on an alternate
work status with no heavy exertion. Dr. Maziarz advised appellant to return to the clinic for a
follow up after his evaluation and treatment at the emergency room.
On December 3, 2008 appellant was transported by a local medical vehicle to the
emergency room at Emory University Hospital for chest pain. He was treated with oxygen and
given an electrocardiogram.
On December 3, 2008 Dr. James P. Capes, an emergency room attending physician,
examined appellant. He advised that an electrocardiogram showed no real acute abnormalities,
appellant’s chest x-ray was unremarkable, his cardiac enzymes were normal and a complete
blood count was unremarkable. Dr. Capes reported that all of appellant’s symptoms, including
lightheaded dizziness, headache, some nausea and some chest pain, were resolved during the
visit.
On July 29, 2009 the Office requested submission of medical evidence pertaining to the
treatment of appellant’s alleged injury, including a physician’s report providing medical rationale
as to how the reported work incident caused or aggravated the claimed injury, as well as a secure
diagnosis.
In an August 21, 2009 response, appellant replied that the Choice Care Clinic no longer
had a contract with the employing establishment or employ Dr. Maziarz. He noted that he no
longer experienced symptoms of carbon monoxide exposure and had no reason to seek any
further medical attention after he was removed from the work area.1 Appellant noted that he
considered all of his medical issues to be resolved at that time.

1

Appellant also alleged that the work area was cited for several violations and indicated that it was later torn
down, but provided no evidence in support of these allegations.

2

On August 27, 2009 appellant requested authorization of treatment at Emory University
Hospital emergency department. The Office advised appellant on August 31, 2009 that it was
unable to authorize treatment because the claim was still unadjudicated.
By decision dated September 21, 2009, the Office denied the claim for compensation,
finding that, although the evidence supported that the claimed event(s) occurred, there was no
medical evidence related to the workplace exposure. It found that he did not establish that he
sustained an injury under the Federal Employees’ Compensation Act (the Act).2
LEGAL PRECEDENT
An employee seeking benefits under the Act3 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 the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged,
and that the specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each compensation claim, regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, in other words, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6

2

5 U.S.C. § 8101(5).

3

Id. at §§ 8101-8193.

4

A.D., 58 ECAB 149 (2006). See also Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
5

Id. See also Victor J. Woodhams, 41 ECAB 345 (1989).

6

Roy L. Humphrey, 57 ECAB 238 (2005). See also Victor J. Woodhams, supra note 5; Nathaniel Milton, 37
ECAB 712 (1986).

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ANALYSIS
The Board notes that, although appellant filed a claim for traumatic injury, he attributed
his dizziness and shortness of breath to work over two shifts on December 1 and 2, 2009
following exposure to space heaters in a closed environment. The Office’s federal regulations
define an occupational disease or illness as a condition produced by the work environment over a
period longer than a single workday or shift.7 As appellant alleged illness to work over two
shifts, the Board finds that his claim is one for occupational disease rather than a traumatic
injury.
Appellant was initially taken by his supervisor to a contract health clinic on December 2,
2009 where he was examined by Dr. Maziarz who advised that appellant was alert but presented
with a history of fatigue, eye irritation and chest tightness. Dr. Maziarz obtained a history of
“probable” carbon monoxide exposure. The record reveals that the clinic contacted local
emergency medical services through 911 and appellant was then transported to the emergency
department at Emory University Hospital in the early hours of December 3, 2009, where he was
seen for chest pain. Appellant was treated by Dr. Capes who noted a history of the employer
placing large propane heaters in the work area to keep the employees warm. An
electrocardiogram was obtained which Dr. Capes advised revealed no acute abnormality. Other
laboratory work, including a complete blood count and chest x-ray, were reported as
unremarkable. Although Dr. Capes recommended that appellant be admitted for further testing
in order to rule out cardiac disease, he declined.
The Board finds that the medical reports from Dr. Maziarz and Dr. Capes are not
sufficient to establish appellant’s claim of injury due to the accepted exposure to fumes from
heaters in his work space. Dr. Mariarz provided care but did not list any firm medical diagnosis.8
He noted only “probable” exposure to carbon monoxide.9 In turn, Dr. Capes obtained diagnostic
tests at Emory University Hospital which were reported as negative. He provided a general
impression of “a patient with some kind of fume exposure with chest pain.” This, too, is not a
firm medical diagnosis.10 Moreover, neither physician provided any opinion on causal
relationship. Their reports do not address how the symptoms they treated were caused or
contributed to by appellant’s accepted occupational exposure over the two work shifts. For this
reason, the medical evidence of record is not sufficient to establish appellant’s claim.
The Office, however, did not adjudicate the issue of appellant’s incurred medical
expenses. On appeal, appellant requested payment of a medical bill for services rendered on
December 3, 2008 at Emory University Hospital. Ordinarily, the employing establishment will
authorize treatment of a job-related injury by providing the employee with a properly executed

7

20 C.F.R. § 10.5(q). See E.J., 61 ECAB ___ (Docket No. 09-1481, issued February 19, 2010).

8

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

9

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009). The speculative nature of Dr. Maziarz’s
opinion also reduces its probative value. See Kathy Kelley, 55 ECAB 206 (2004).
10

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

4

CA-16.11 Under section 8103 of the Act,12 however, the Office has broad discretionary authority
to approve unauthorized medical care which it finds necessary and reasonable in cases of
emergency or other unusual circumstances.13 The Office may exercise its discretion to authorize
medical care even if a Form CA-16 has not been issued and the claim is subsequently denied.
Payment in such situations is determined on a case-by-case basis.14
Due to complaints of headaches, chest pain, eye irritation and nausea, appellant received
treatment at the employing establishment contract clinic. Subsequently, he was transported to
Emory University Hospital where he received treatment. Appellant’s supervisor verified this on
the claim form. In denying appellant’s claim, the Office failed to consider whether emergency or
otherwise unusual circumstances were present such that reimbursement of medical expenses
would be appropriate in this case. The Board finds that the circumstances of the case warrant
additional development of this issue. The case will be remanded to the Office for further
development, to be followed by the issuance of a de novo decision.
CONCLUSION
The Board finds that appellant did not establish that he sustained an injury in the
performance of duty, causally related to factors of his federal employment. The case is returned
to the Office for adjudication of the issue of reimbursement of medical expenses related to his
treatment on December 3, 2008.

11

Val D. Wynn, 40 ECAB 666 (1989); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3(a)(3) (September 1995).
12

5 U.S.C. § 8103.

13

Val D. Wynn, supra note 11; 20 C.F.R. § 10.304.

14

See Thomas W. Keene, 42 ECAB 623 (1991); see also Federal (FECA) Procedure Manual, supra note 11.

5

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified. The case is remanded for further
development consistent with this decision of the Board.
Issued: November 19, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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)
)
)
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)
)
)

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

Docket No. 07-909
Issued: August 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 19 and November 29, 2006 merit decision denying his
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of total disability on or after June 8, 2005 due to his April 4, 2002 employment injury.
FACTUAL HISTORY
On May 31, 2002 appellant, then a 47-year-old bulk mail clerk, filed a traumatic injury
claim alleging that he sustained an injury when he pulled a heavy mail sack on April 4, 2002. He
stopped work on April 5, 2002. The Office accepted that appellant sustained a herniated disc at
L4-5 and paid appropriate compensation for periods of disability. On September 5, 2003 he

underwent L4-5 laminectomy, facetectomy and discectomy procedures which were authorized
by the Office.
The results of August 3, 2004 magnetic resonance imaging (MRI) scan testing showed
stable postsurgical changes at L4-5 with epidural enhancement along the right lateral aspect of
the dural sac extending toward the right neural foramen compatible with epidural fibrosis, disc
degeneration at L4-5 with Type 1 degenerative end plate changes and a mild annulus bulge at
L4-5 with a small amount of extruded disc material extending three to four millimeters superior
to the disc space and causing only mild indentation of the ventral dural sac and mild
encroachment on the neural foramina.
On April 11, 2005 appellant returned to limited-duty work at the employing
establishment for four hours per day. He stopped work on June 8, 2005 and claimed that he
sustained a recurrence of total disability due to his April 4, 2002 employment injury.
On June 23, 2005 Dr. Keith L. Schaible, an attending Board-certified neurosurgeon,
stated that appellant reported a recent worsening in back pain without “neurological issues” and
he indicated that he was “unable to do work of any type.” The report for July 10, 2005 MRI scan
testing indicated that there had “not been a significant change from the prior study on August 3,
2004” and provided findings similar to those contained in the August 3, 2004 report. On
August 9, 2005 Dr. Schaible noted that appellant reported experiencing increased back and leg
pain beginning in June 2005, particularly upon increased activity. He indicated that recent MRI
scan testing was “not particularly different than the one he had last time.”
In an April 19, 2006 decision, the Office denied appellant’s claim that he sustained a
recurrence of total disability on or after June 8, 2005 due to his April 4, 2002 employment injury.
The Office found that he did not show a change in the nature and extent of his injury-related
condition or a change in the nature and extent of his limited-duty job requirements.
Appellant submitted a May 9, 2006 report in which Dr. Schaible stated that it was not
uncommon for patients with a “good discectomy” to continue to have disc pain and indicated
that he was concerned that he required additional surgical stabilization. Dr. Schaible stated:
“Again, it is my opinion that this is all related to the original injury.”
At a September 19, 2006 hearing before an Office hearing representative, appellant
argued that the reports of Dr. Schaible showed that he could not work after June 8, 2005 due to
his employment injury. After the hearing, he submitted more reports of Dr. Schaible. In a
September 8, 2006 report, Dr. Schaible indicated that appellant continued to report back and leg
pain and indicated that he was a candidate for L4-5 surgery. In a September 14, 2006 report, he
stated that appellant had failed all conservative measures since his surgery and was “totally
disabled indefinitely.”
In a decision dated a finalized November 29, 2006, the Office hearing representative
affirmed the Office’s April 19, 2006 decision.

2

LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a limited-duty position or the medical evidence of
record establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he cannot perform such limited duty. As part of this burden the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.1
ANALYSIS
The Office accepted that appellant sustained a herniated disc at L4-5 on April 4, 2002.
He returned to limited-duty work and then stopped work on June 8, 2005 and claimed that he
sustained a recurrence of total disability due to his April 4, 2002 employment injury. The Board
finds that appellant did not submit sufficient medical evidence to show that he sustained a
recurrence of total disability on or after June 8, 2005 due to his April 4, 2002 employment injury.
In a June 23, 2005 report, Dr. Keith L. Schaible, an attending Board-certified
neurosurgeon, stated that appellant reported a recent worsening in back pain without
“neurological issues” and he indicated that he was “unable to do work of any type.” In an
August 9, 2005 report, he noted that appellant reported experiencing increased back and leg pain
beginning in June 2005, particularly upon increased activity. In a May 9, 2006 report,
Dr. Schaible stated that it was not uncommon for patients with a “good discectomy” to continue
to have disc pain and indicated that he was concerned that appellant required additional surgical
stabilization. He stated: “Again, it is my opinion that this is all related to the original injury.” In
September 8 and 14, 2006 reports, Dr. Schaible continued to indicate that appellant reported
back and leg pain, stated that he was a candidate for L4-5 surgery and noted that he was “totally
disabled indefinitely.”
In these reports, Dr. Schaible posited that appellant continued to have residuals of his
April 4, 2002 employment injury and suggested that this condition disabled him from work
beginning in June 2005. These reports, however, are of limited probative value on the relevant
issue of the present case in that Dr. Schaible did not provide adequate medical rationale in support
of his conclusion on causal relationship.2 He did not describe how the findings on examination and
diagnostic testing showed that appellant’s employment-related back condition had worsened such
that he could not perform his limited-duty work on or after June 8, 2005. In fact, there are almost
no objective examination findings listed in Dr. Schaible’s reports. The report for July 10, 2005
MRI scan testing indicated that there had “not been a significant change from the prior study on
August 3, 2004” and Dr. Schaible acknowledged as much in his August 9, 2005 report.

1

Cynthia M. Judd, 42 ECAB 246, 250 (1990); Terry R. Hedman, 38 ECAB 222, 227 (1986).

2

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

3

Dr. Schaible’s opinion on appellant’s back condition appears to be mostly based on
appellant’s own reporting of subjective symptoms. However, the Board has held that the fact that a
condition manifests itself or worsens during a period of employment3 or that work activities
produce symptoms revelatory of an underlying condition4 does not raise an inference of causal
relationship between a claimed condition and employment factors. Dr. Schaible indicated that
appellant’s L4-5 disc might have destabilized after his surgery but he did not present diagnostic
findings to support this assertion or explain how such a process could have constituted a
recurrence of his employment-related condition.
For these reasons, appellant did not show a change in the nature and extent of his injuryrelated condition. He also did not allege or show a change in the nature and extent of his limitedduty job requirements. The Office, therefore, properly denied his recurrence of disability claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability on or after June 8, 2005 due to his April 4, 2002
employment injury.

3

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

4

Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 29 and April 19, 2006 decisions are affirmed.
Issued: August 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hartly, DE, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1618
Issued: May 23, 2017

Case Submitted on the Record

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

JURISDICTION
On August 8, 2016 appellant, through counsel, filed a timely appeal from an April 29,
2016 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.
ISSUE
The issue is whether appellant has more than one percent permanent impairment of the
right upper extremity, for which she previously received a schedule award.

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.

FACTUAL HISTORY
On August 16, 2004 appellant, then a 39-year-old postmaster, filed a traumatic injury
claim (Form CA-1) alleging that on July 1, 2004 she developed right arm pain, swelling, and
carpal tunnel syndrome. She stopped work on July 8, 2004 and worked intermittently thereafter.
On April 27, 2005 OWCP accepted aggravation of right arm lymphedema and later expanded her
claim to include right carpal tunnel syndrome, complex regional pain syndrome/myofascial pain
syndrome and thoracic outlet syndrome.
Appellant was treated by Dr. Joel M. Rutenberg, a neurologist, from August 31, 2004 to
February 16, 2015, for right arm pain and digit numbness. Her history was significant for breast
cancer in 2002 with two excisional biopsies and radiation therapy to the right breast. Appellant
reported swelling of the right arm diffusely. Dr. Rutenberg diagnosed lymphedema in the right
arm related to radiation therapy for breast cancer, and lower trunk radiation-induced brachial
plexopathy due to radiation therapy. He opined that appellant had not sustained a specific injury,
but was forced to do work which exceeded her limitations set by other physicians which
aggravated her pain syndrome.
On March 28, 2006 appellant filed a claim for recurrence of disability (Form CA-2a)
alleging that on March 10, 2006 she had pain and swelling of her right shoulder while
performing her duties. She stopped work on March 12, 2006. Appellant later submitted a
May 5, 2006 report from Dr. Rutenberg who treated her for right arm discomfort, intermittent
swelling, numbness of the hand and arm provoked by repetitive movements, lifting, and
prolonged driving. Dr. Rutenberg diagnosed mild radiation-induced brachial plexopathy
associated with median neuropathy at the wrist, possible superimposed mild complex regional
pain syndrome, and myofascial pain syndrome. On June 15, 2006 OWCP denied appellant’s
claim for a recurrence of disability. Appellant requested a hearing and on August 16, 2006 an
OWCP hearing representative set aside the June 15, 2006 decision and instructed OWCP to
develop the recurrence claim as a claim for new occupational disease. OWCP developed this
under File No. xxxxxx494.3
In decisions dated December 11, 2006, August 13, 2007, June 13, 2008, and December 7,
2009, OWCP denied appellant’s claim for compensation under File No. xxxxxx494. Appellant
appealed to the Board and in an order dated August 5, 2009, the Board set aside the June 13,
2008 decision and remanded the claim to OWCP to combine File Nos. xxxxxx209 and
xxxxxx494 and issue a merit decision.4
In a January 9, 2013 decision, OWCP changed the accepted conditions to include
temporary aggravation of the right arm lymphedema resolved, temporary aggravation of right
carpal tunnel syndrome resolved, temporary aggravation of complex regional pain syndrome
resolved, and temporary aggravation of thoracic outlet syndrome, resolved. It based its decision
on the opinion of Dr. Zohar Stark, a second opinion Board-certified orthopedic surgeon, who
concluded the aggravation of her medical conditions resolved when she stopped wearing a
shoulder harness at work.
3

Appellant was separated from employment on March 9, 2007.

4

Docket No. 08-2529 (issued August 5, 2009).

2

On March 26, 2014 appellant filed a claim for a schedule award (Form CA-7). She
submitted an August 20, 2013 report from Dr. David Weiss, an osteopath, who provided an
impairment rating under the American Medical Association, Guides to the Evaluation of
Permanent Impairment5 (A.M.A., Guides). Dr. Weiss advised that appellant had reached
maximum medical improvement (MMI) on August 20, 2013. Appellant’s history was significant
for right breast cancer and a right lumpectomy with radiation. Dr. Weiss diagnosed cumulative
and repetitive trauma disorder superimposed upon preexisting breast cancer diagnosed in 2002,
occupational cervical spine syndrome, aggravation of preexisting brachial plexopathy secondary
to radiation therapy, right carpal tunnel syndrome, complex regional pain syndrome to the right
arm, cumulative and repetitive trauma disorder with aggravation of preexisting lymphedema of
the right arm, and subsequent motor vehicle accident in 2008 with aggravation of cervical spine
pathology and right arm pathology. He noted that the duties of her employment were the
competent producing factor for her subjective and objective findings. Dr. Weiss evaluated carpal
tunnel syndrome at the right medial nerve at the wrist under Table 15-23, page 449 of the
A.M.A., Guides and opined that appellant had six percent permanent impairment of the right
arm. For right brachial plexus of the upper trunk (C5 and C6), he calculated 19 percent right arm
permanent impairment. For right brachial plexus of the middle trunk (C7), Dr. Weiss determined
right upper extremity permanent impairment of three percent. For motor strength deficit for the
right biceps (C5 and C6), he found right arm permanent impairment of 25 percent. For motor
strength deficit for the right triceps (C7), Dr. Weiss calculated nine percent permanent
impairment of the right arm. He noted a final combined right upper extremity permanent
impairment of 49 percent.
On December 12, 2013 Dr. Rutenberg reviewed Dr. Weiss’ report of August 20, 2013
and agreed with his finding that appellant had 49 percent permanent impairment of the right
upper extremity.
In a January 17, 2014 report, an OWCP medical adviser reviewed Dr. Weiss’ report and
noted that he had found deficits with upper extremity motor weakness and sensory deficit which
were a significant variance from other physician’s findings on physical examination. The
medical adviser recommended a second opinion referral.
On April 8, 2014 OWCP referred appellant to Dr. Stephen F. Penny, a Board-certified
neurologist, for a second opinion regarding whether she had permanent impairment attributable
to her accepted conditions. In a June 11, 2014 report, Dr. Penny noted that appellant’s history
was significant for brachial plexopathy, breast cancer, carpal tunnel syndrome, hypertension, and
recurrent major depression. Appellant’s surgical history included a breast biopsy and lymph
node removal. Current symptoms included pain and swelling in the right arm, specifically the
right shoulder as well as in the right forearm, wrist, and thumb, difficulty lifting the right arm,
and pain radiating down her right arm to the forearm and wrist. Dr. Penny noted findings of pain
with passive range of motion (ROM) of the right shoulder above 70 degrees, pain with internal
and external rotation of the right shoulder, pain with passive ROM of the right wrist, tenderness
over the right lateral epicondyle, Tinel’s sign at the right wrist, full right elbow ROM, and full
right wrist ROM. He noted that assessment of right arm strength was difficult due to
submaximal effort caused by pain, but appeared to be 4+/5 in proximal and distal muscles,
5

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

3

decreased light touch sensation in the entire right arm. Dr. Penny opined that appellant had
developed a radiation induced right brachial plexopathy related to her treatment for breast cancer
and lymphedema. He indicated that musculoskeletal pain involving the shoulder and upper arm
and regional pain syndrome contributed to her ongoing symptoms. Dr. Penny noted that
appellant had evidence of mild carpal tunnel syndrome by electromyogram (EMG). He noted
that appellant had reached maximal medical improvement.
Dr. Penny agreed with
Dr. Rutenberg’s finding that appellant had 49 percent impairment of the right upper extremity.
In a September 19, 2014 report, an OWCP medical adviser reviewed Dr. Penney’s report.
He indicated that Dr. Penny had provided nonspecific findings of a brachial plexus lesion and
4+/5 right arm strength, but did not mention what muscles were impacted, what nerves
innervated, or how this related to the brachial plexus. He further noted that Dr. Penny had
agreed with the 49 percent right arm permanent impairment by Dr. Weiss. However, he had not
performed a rating examination with calculations. Dr. Penny was asked to perform his own
calculations, based upon his own clinical findings, but he failed to do so. The medical adviser
recommended that OWCP refer appellant to another second opinion physician with complete
documentation of all clinical findings and calculations.
On October 7, 2014 OWCP advised appellant that the second opinion report from
Dr. Penny failed to contain an independently derived impairment rating consistent with the
A.M.A., Guides, as requested and the medical adviser recommended appellant be sent for
another second opinion evaluation to determine impairment.
In letters dated October 15 and 20, 2014, counsel indicated that the OWCP referral
physician, Dr. Penny, agreed with Dr. Weiss’ impairment determination and therefore appellant
should be granted a schedule award for 49 percent permanent impairment of the right upper
extremity.
On April 8, 2014 OWCP referred appellant for a new second opinion examination with
Dr. Willie E. Thompson, a Board-certified physiatrist, for a determination of whether appellant
had permanent impairment due to her accepted conditions. In an October 21, 2014 report,
Dr. Thompson noted that the underlying etiology of appellant’s complaints related to the
mastectomy performed in 2002 with residuals of chronic lymphedema. He noted other accepted
conditions included aggravation of right upper extremity lymphedema, right carpal tunnel
syndrome, right complex regional pain syndrome with myofascial pain, and right thoracic outlet
syndrome. Dr. Thompson noted that under the A.M.A., Guides there was no diagnosis for
persistent aggravation of the chronic lymphedema to the right arm and, therefore, the impairment
rating for a chronic lymphedema was zero percent. He advised that there was no clinical
evidence to support a diagnosis of complex regional pain syndrome and myofascial pain.
Dr. Thompson noted examination revealed normal appearing skin, there was no discoloration or
alteration in the overall appearance of the skin with normal motion throughout. With regard to
complex regional pain syndrome, pursuant to table 15-26, page 454, the class was zero which
resulted in no impairment. Dr. Thompson indicated that the Allen’s test was normal and there
was no evidence of any residuals of thoracic outlet syndrome. With regard to brachial plexus
impairment, pursuant to Table 15-20, page 434 of the A.M.A., Guides, appellant was a class zero
for no impairment. For entrapment neuropathy resulting in carpal tunnel syndrome,
Dr. Thompson referenced Table 15-23, page 449 of A.M.A., Guides, and appellant was a grade 1
modifier for an impairment rating of one percent for the right upper extremity.
4

OWCP requested that Dr. Thompson provide clarification of his impairment rating and
provide clinical findings and test results considered in reaching his conclusion.
In a November 24, 2014 supplemental report, Dr. Thompson noted that appellant had an
abnormal EMG and nerve conduction velocity (NCV) studies documenting carpal tunnel
syndrome. He advised that, pursuant to the A.M.A., Guides, entrapment neuropathy, Table 1523, page 449, appellant was a grade modifier 1 based on conduction delay in the EMG/NCV
studies with mild intermittent symptoms and essentially normal examination as it relates to
entrapment neuropathy. Dr. Thompson noted this resulted in an upper extremity impairment
rating of one percent. He indicated that, under Table 15-18, carpal tunnel syndrome, pages 449
and 450, of the A.M.A., Guides, appellant was a grade modifier 1 as test findings on EMG/NCV
studies were abnormal, her history revealed mild intermittent symptoms, but her examination
was essentially within normal limits.
On March 31, 2015 OWCP referred appellant’s file with a statement of accepted facts to
an OWCP medical adviser. The referral letter indicated that the accepted conditions were
temporary aggravation of the right arm lymphedema resolved, temporary aggravation of right
carpal tunnel syndrome resolved, temporary aggravation of complex regional pain syndrome
resolved, and temporary aggravation of thoracic outlet syndrome, resolved.
In a March 31, 2015 report, an OWCP medical adviser reviewed the medical evidence
including Dr. Thompson’s reports dated October 21 and November 24, 2014 and concurred in
his findings. He noted that the date of MMI was October 21, 2014.
In a decision dated August 21, 2015, OWCP granted appellant a schedule award for one
percent permanent impairment of the right hand. On November 18, 2015 it reissued the
August 21, 2015 decision. The period of the award was from October 21 to November 7, 2014
for 2.44 weeks of compensation.
On December 3, 2015 counsel requested an oral hearing, which was held on
March 4, 2016. He asserted that OWCP referred appellant to Dr. Penny for an impairment rating
and, in his report dated June 11, 2014, he concurred with Dr. Weiss’ rating of 49 percent
impairment, but he failed to reference the sixth edition of the A.M.A., Guides. Counsel noted
that, instead of requesting clarification from Dr. Penny, OWCP referred appellant to another
second opinion physician, Dr. Thompson. After Dr. Thompson issued his report on October 21,
2014, OWCP subsequently wrote to Dr. Thompson for clarification and he provided a
November 24, 2014 addendum. However, it did not explain why it sought clarification from
Dr. Thompson, but not from Dr. Penny. Counsel further expressed disagreement with the
statement of accepted facts. He indicated that appellant’s claim was accepted for aggravation of
right arm lymphedema, right carpal tunnel syndrome, complex regional pain syndrome/
myofascial pain syndrome, and thoracic outlet syndrome under File No. xxxxxx209 and
temporary aggravation of the same conditions under File No. xxxxxx494. Counsel indicated that
OWCP’s referral letter to the medical adviser noted appellant’s claim was only accepted for
temporary aggravation of right arm lymphedema resolved, temporary aggravation of right carpal
tunnel syndrome resolved, temporary aggravation of complex regional pain syndrome/
myofascial pain syndrome resolved, and temporary aggravation of thoracic outlet syndrome
resolved, which was erroneous and resulted in a calculation of a rating less than representative of
appellant’s actual impairment. He noted that appellant’s preexisting state must be factored into
5

the schedule award calculation. Counsel also noted that appellant’s award was erroneously
based on one percent impairment of the hand which resulted in a lower award while the medical
adviser calculated a rating based on one percent impairment of the right arm.
In an April 29, 2016 decision, the hearing representative affirmed, as modified, the
November 18, 2015 decision, finding that appellant’s one percent permanent impairment was to
the arm rather than the right hand.6
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing federal regulations8 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.9 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.10
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment for the 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) +

6

On September 30, 2016 OWCP issued a decision which granted appellant a schedule award for one percent
permanent impairment to the right upper extremity less the prior one percent impairment to the right hand issued on
November 18, 2015. This decision, however, is null and void as the Board and OWCP may not simultaneously have
jurisdiction over the same case. OWCP may not issue a decision regarding the same issue on appeal before the
Board, in this instance, a schedule award for right upper extremity impairment. See Russell E. Lerman, 43 ECAB
770, 772 (1992); Douglas E. Billings, 41 ECAB 880 (1990).
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
11

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 (February2013).
12

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
13

Id. at 385-419.

6

(GMCS - CDX).14 The grade modifiers are used on the net adjustment formula described above
to calculate a net adjustment. The final impairment grade is determined by adjusting the grade
up or down the default value C, by the calculated net adjustment.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical consultant for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with OWCP’s medical
consultant providing rationale for the percentage of impairment specified.16
OWCP procedures further provide that, when an OWCP medical adviser, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether.17
ANALYSIS
Appellant’s claim was accepted by OWCP for aggravation of right arm lymphedema,
right carpal tunnel syndrome, complex regional pain syndrome/myofascial pain syndrome, and
thoracic outlet syndrome. It was later accepted for temporary aggravation of the right arm
lymphedema resolved, temporary aggravation of right carpal tunnel syndrome resolved,
temporary aggravation of complex regional pain syndrome resolved, and temporary aggravation
of thoracic outlet syndrome, resolved.
On March 26, 2014 appellant filed a claim for a schedule award and submitted an
August 20, 2013 report from Dr. Weiss, who found 49 percent permanent impairment of the right
upper extremity under the A.M.A., Guides. Appellant’s treating physician, Dr. Rutenberg,
concurred in Dr. Weiss’ impairment rating.
On April 8, 2014 OWCP referred appellant for a second opinion to Dr. Penny who
reviewed appellant’s medical history and performed a physical examination on June 11, 2014.
Dr. Penny noted findings of pain with passive ROM of the right shoulder and with internal and
external rotation, pain with passive ROM of the right wrist, tenderness over the right lateral
epicondyle, right arm strength was 4+/5 in proximal and distal muscles, decreased light touch
sensation in the entire right arm compared to the left arm with normal left upper extremity
strength. Dr. Penny noted that appellant had evidence of mild carpal tunnel syndrome. He
agreed with Dr. Weiss’ findings that appellant had 49 percent impairment of the right arm.
OWCP procedures provide that if a second opinion report is equivocal, lacks rationale, or
fails to address the specific medical issues, the claims examiner should seek clarification or

14

Id. at 411.

15

Id. at 387.

16

See supra note 11 at Chapter 2.808.6(f) (February 2013).

17

Id. at Chapter 2.809.4. See also A.C., Docket No. 07-2423 (issued May 15, 2008).

7

further rationale from that physician.18 It is required to seek clarification from the second
opinion physician and request a supplemental report to clarify inadequacies in the initial report.19
Only if the second opinion physician does not respond or does not provide a sufficient response
after being asked should the claims examiner request scheduling with another physician.20
Following the receipt of Dr. Penny’s report, OWCP determined that he provided
nonspecific findings on examination and failed to adequately explain his impairment rating.
However, it did not request a supplemental report from Dr. Penny and did not further develop the
issue of whether appellant sustained permanent impairment of the right upper extremity causally
related to her employment injuries. Rather, OWCP referred appellant to another second opinion
physician. The Board finds that OWCP failed to properly develop the medical evidence in
keeping with its procedures.
As noted, OWCP subsequently referred appellant to Dr. Thompson for another second
opinion evaluation regarding appellant’s claim for a schedule award for the right upper extremity
due to her work injuries. In an October 21, 2014 report, Dr. Thompson opined that appellant had
one percent permanent impairment of the right upper extremity for carpal tunnel syndrome under
the A.M.A., Guides. OWCP requested that Dr. Thompson clarify his impairment rating and, in a
supplemental report dated November 24, 2014, Dr. Thompson again found that appellant had one
percent permanent impairment of the right arm. On March 31, 2015 an OWCP medical adviser
concurred in Dr. Thompson’s impairment rating.
The Board finds that OWCP failed to adequately develop the medical evidence submitted
by Dr. Penny, the initial second opinion physician. Because of this, OWCP has not adequately
developed appellant’s claim and has not properly determined appellant’s entitlement to a
schedule award.21 It is well established that proceedings under FECA are not adversarial in
nature and that while the claimant has the burden of proof to establish entitlement to
compensation, OWCP shares responsibility in the development of evidence. OWCP has an
obligation to see that justice is done.22 As it failed to follow its procedures to request a
supplemental report from Dr. Penny, OWCP cannot rely on Dr. Thompson’s second opinion
report to determine appellant’s entitlement to a schedule award.23
The Board further finds that OWCP’s medical adviser’s March 31, 2015 report is also of
diminished probative value as the SOAF which OWCP provided to the medical adviser was
incomplete. It is well established that a physician’s opinion must be based on a complete and
accurate factual and medical background. When OWCP has accepted an employment condition
as occurring in the performance of duty, the physician must base his opinion on the accepted
18

G.C., Docket No. 16-1109 (issued December 7, 2016); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Developing and Evaluating Medical Evidence, Chapter 2.810.9(j) (June 2015).
19

Id., see also Ayanle A. Hashi, 56 ECAB 234 (2004).

20

Supra note 17.

21

See G.C., supra note 17.

22

John J. Carlone, 41 ECAB 354, 358-360 (1989).

23

Supra note 17.

8

facts.24 On April 27, 2005 it accepted aggravation of right arm lymphedema and later expanded
her claim to included right carpal tunnel syndrome, complex regional pain syndrome/myofascial
pain syndrome, and thoracic outlet syndrome. On January 9, 2013 OWCP accepted temporary
aggravation of the right arm lymphedema resolved, temporary aggravation of right carpal tunnel
syndrome resolved, temporary aggravation of complex regional pain syndrome resolved, and
temporary aggravation of thoracic outlet syndrome, resolved, in claim number xxxxxx494 which
was doubled with the current claim. As it had accepted the conditions of right carpal tunnel
syndrome, complex regional pain syndrome/myofascial pain syndrome, and thoracic outlet
syndrome, and they were not accurately included in the SOAF, the medical adviser’s opinion
was based on an inaccurate SOAF.25 The Board has held that the accepted conditions must be
included in a SOAF and that when a physician renders a medical opinion based on an incomplete
or inaccurate history or does not use the SOAF as the framework in forming his or her opinion,
the probative value of the opinion is diminished.26
On remand OWCP should amend its SOAF to include all accepted conditions and refer
the case back to Dr. Penny for a supplemental report to address the inadequacies in the original
report. Following this and any necessary further development, OWCP shall issue a de novo
decision.27
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 the case is not in posture for decision.

24

V.C., Docket No. 14-1912 (issued September 22, 2015).

25

See A.R., Docket No. 11-692 (issued November 18, 2011); Willa M. Frazier, 55 ECAB 379 (2004); supra note
11 at Chapter 3.600.3 (October 1990).
26

See S.P., Docket No. 14-1053 (issued October 2, 2014).

27

See T.H., Docket No. 14-0943 (issued November 25, 2016).

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 29, 2016 is set aside and the case remanded for further
proceedings consistent with this decision.
Issued: May 23, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1982
Issued: July 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) April 21, 2010 decision denying her request for
reconsideration on the grounds it was not timely filed and failed to establish clear evidence of
error. Because more than one year has elapsed between OWCP’s last merit decision, August 8,
2006, regarding the issue raised by appellant and the filing of this appeal, the Board lacks
jurisdiction to review the merits of the claim pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On October 29, 2000 appellant, then a 39-year-old mail processor, filed an occupational
disease claim for symptoms in her wrists, elbows and arms which she attributed to lifting heavy
trays while processing mail eight hours a day. OWCP accepted the claim for bilateral carpal
tunnel syndrome and paid appropriate benefits. Appellant underwent carpal tunnel release
surgery for the left wrist on June 21, 2001 and right wrist on November 28, 2001. By decision
dated August 28, 2002, OWCP awarded her a schedule award for 11 percent permanent
impairment of the right arm and 8 percent permanent impairment of the left arm. By decision
dated October 9, 2002, it determined that appellant’s modified clerk employment effective
June 7, 2002 fairly and reasonably represented her wage-earning capacity. OWCP found that as
her actual wages met or exceeded the job held when injured, no loss of wages occurred.
In 2006, appellant was reassigned to a new duty station at the Atlanta Processing and
Distribution Center facility due to reorganization and downsizing at the employing
establishment. The employing establishment noted that while the drive to the Atlanta facility
was more than her driving limitation of 10 miles, public transportation was available that could
transport her to her duty station. Appellant refused the new position alleging the commute to
that facility violated her work restrictions. She stopped work February 16, 2006 and filed wageloss claims for the period beginning June 10, 2006.
In an August 3, 2006 decision, OWCP denied appellant’s claim for wage-loss
compensation for the period June 10 to 16, 2006. In an August 8, 2006 decision, it denied her
claim for wage-loss compensation for the period June 17 to 23, 2006.
On October 10, 2007 appellant’s claim was expanded to include bilateral epicondylitis.
OWCP authorized surgery, which was performed on October 24, 2007. Compensation benefits
for wage loss for the period October 24 through November 8, 2007 was paid.
In May 24, 2007 and February 21, 2008 decisions, OWCP denied appellant’s claims for
wage-loss benefits for the period September 30 to December 22, 2006.3 However, by decision
dated February 2, 2009, it vacated the previous decisions and granted her wage-loss claim for the
period September 30 through December 22, 2006.
On December 29, 2009 appellant requested that her claim for wage loss for the period
June 10 to September 27, 2006 be paid in light of OWCP’s February 2, 2009 decision. In a
January 28, 2010 letter, OWCP informed her that compensation for the period June 10 to
September 27, 2006 had been processed. The record reflects that appellant received a
compensation check on February 13, 2009 for the period September 30 to December 22, 2006.
On March 23, 2010 appellant requested reconsideration of the denial of her wage-loss
claims for the period June 10 through 23, 2006. She indicated that her absence from work during
the claimed period was due to neglect from her attending physician in reference to diagnosis and
treatment. Appellant stated that, while her treating physician was not properly treating her, he
3

By decision dated June 19, 2008, OWCP awarded an additional four percent left arm impairment and six percent
right arm impairment.

2

gave objective medical rationale for her inability to commute. She indicated that the diagnostic
evidence of ulnar neuropathy was first documented on the July 19, 2006 nerve conduction study
which Dr. Amy Lang, a Board-certified psychiatrist, performed and which Dr. Craig Weil, her
attending physician and Board-certified orthopedic surgeon, had documented symptoms in 2005,
but did not diagnose her. Appellant noted treatment and evaluations in 2007 and in the years
following showed that the ulnar neuropathy was still present and had worsened. She stated the
facts explaining those circumstances were already part of the record and alleged her condition
had worsened overtime due to the delay of diagnoses and treatment. Appellant alleged that, at
the time compensation was requested, she was unable to commute to the workplace due to the
worsening of her condition as she had severe tendinitis, swelling and chronic pain in her
forearms and elbows. She stated that Dr. Weil had documented her symptoms and clinical
findings a year and seven months prior to her wage-loss request. Appellant noted that the basis
of her reconsideration request was the same as her absence from June 24 to September 27, 2006,
which was granted.4 No new evidence was received.
By decision dated April 21, 2010, OWCP denied appellant’s March 23, 2010 request for
reconsideration on the grounds that it was not timely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee may obtain this relief through a request to OWCP. The request, along with the
supporting statements and evidence, is called the application for reconsideration.5 To be entitled
to a merit review of an OWCP decision denying or terminating a benefit, a claimant must file his
or her application for review within one year of the date of that decision.6 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.7
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that OWCP will
consider an untimely application only if it demonstrates clear evidence of error by OWCP in its
most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by OWCP. The evidence must be positive,
precise and explicit and must manifest on its face that OWCP committed an error.8 The term
“clear evidence of error” is intended to represent a difficult standard. The claimant must present
4

The record reflects appellant received disability compensation for the period June 24 through
September 27, 2006.
5

20 C.F.R. § 10.605.

6

Id. at § 10.607(a).

7

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989); E.R., Docket No. 09-599 (issued June 3, 2009).

8

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman,
55 ECAB 143 (2003); D.O., Docket No. 08-1057 (issued June 23, 2009).

3

evidence which on its face shows that OWCP made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to OWCP’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.9 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of OWCP
such that OWCP abused its discretion in denying merit review in the face of such evidence.10
ANALYSIS
The Board finds that OWCP properly determined appellant’s application for review was
untimely. OWCP’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original OWCP decision.11 However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.12 The
last merit decision in this case regarding the issue raised by appellant were OWCP’s August 3
and 8, 2006 decisions, which denied compensation for wage loss for the period June 10
through 23, 2006. As appellant’s March 23, 2010 letter requesting reconsideration was
submitted more than one year after the last merit decision of record, it was untimely.
As appellant’s request were filed more than one year after OWCP’s August 3 and 8, 2006
decisions, she must demonstrate clear evidence of error on the issue which was decided by
OWCP. The term clear evidence of error is intended to represent a difficult standard.13
Appellant’s request would have to establish on its face that OWCP’s denial of wage-loss
compensation for the period June 10 through 23, 2006 was erroneous.14 It cannot be a matter of
opinion; it must be a matter of proof.15
The Board finds that appellant’s request for reconsideration does not establish clear
evidence of error. OWCP denied her claim for compensation for wage loss during the period
June 10 through 23, 2006 for the accepted conditions of bilateral carpal tunnel syndrome. In her
March 23, 2010 letter, appellant claimed her inability to report to work was due to the worsening
of her condition and her inability to commute to the workplace. She indicated that the medical
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).
James R. Mirra, 56 ECAB 738 (2005); see E.R., supra note 7.
10

S.D., 58 ECAB 713 (2007); Alberta Dukes, 56 ECAB 247 (2005); see W.G., Docket No. 08-2340 (issued
June 22, 2009).
11

D.E., 59 ECAB 438 (2008); Robert G. Burns, 57 ECAB 657 (2006).

12

D.G., 59 ECAB 455 (2008); Veletta C. Coleman, 48 ECAB 765 (1993).

13

Joseph R. Santos, 57 ECAB 554 (2006); D.L., Docket No. 08-1057 (issued June 23, 2009).

14

Although a wage-earning capacity decision was in place when appellant claimed compensation for the
underlying period at issue, this did not preclude OWCP from considering a limited period of employment-related
disability without a formal modification of the wage-earning capacity determination. See C.W., Docket No. 07-1816
(issued January 16, 2009).
15

See D.M., Docket No. 10-988 (issued November 26, 2010).

4

evidence of record supported that Dr. Weil first reported the symptoms of her ulnar neuropathy
in 2005 but the condition was documented on July 19, 2006 nerve conduction studies by
Dr. Lang, who also referred to medical evidence of record from 2007, which supported that the
ulnar neuropathy had worsened. A review of the medical evidence on file reflects Dr. Weil’s
March 29, 2005 report supports appellant was suffering from “chronic pain and tendinitis” in
both arms approximately two years prior to OWCP’s acceptance of the bilateral epicondylitis
condition. Dr. Lang, in her December 4, 2006 medical note, advised that appellant’s tendinitis
was present but remained undiagnosed until magnetic resonance imaging scan studies were
recently done. She further opined that the tendinitis condition related directly to work activities
and appellant’s current claim. Earlier reports from Dr. Lang indicated that appellant was
disabled due to the tendinitis. In his January 23, 2007 report, Dr. Jeffrey Klugman, a Boardcertified orthopedic surgeon, indicated that he believed her carpometacarpal synovitis had been
somewhat prolonged. While these reports showed evidence of an ulnar neuropathy, they do not
support that appellant was disabled for work during the period claimed due to the accepted
condition of bilateral carpal tunnel syndrome. Furthermore, the reports from her various
physicians in 2007 or later do not address the period of claimed disability. They are not
sufficient to raise a substantial question as to the correctness of OWCP’s decision and, thus, do
not substantiate clear evidence of error.16 While appellant stated that she was unable to commute
to the workplace due to a worsening of her condition, there is no medical evidence supporting
this at the time OWCP’s decisions were rendered. Thus, the Board finds that she failed to
demonstrate clear evidence of error.
Appellant has not established that OWCP improperly denied her request for further
review of the merits of her claim. Although she, on appeal, asserts that there is sufficient
evidence to support her claim at the time of her original request, the Board finds that there is
insufficient evidence to establish clear evidence of error. As noted, clear evidence of error is
intended to represent a difficult standard. The arguments and evidence submitted by appellant in
support of her March 23, 2010 request for reconsideration do not shift the weight of the evidence
in her favor or raise a substantial question as to the correctness of OWCP’s April 21, 2010
decision. The Board therefore finds that they are insufficient to demonstrate clear evidence of
error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s reconsideration request
was not timely filed and failed to present clear evidence of error.

16

Thankamma Mathews, 44 ECAB 764 (1993).

5

ORDER
IT IS HEREBY ORDERED THAT the April 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6