United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rocky Point, NC, Employer
__________________________________________

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

Docket No. 19-0635
Issued: August 23, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 28, 2019 appellant filed a timely appeal from an August 29, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed since the last merit decision dated December 13, 2016 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 3, 2016 appellant, then a 55-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed various bilateral upper extremity
conditions, neck pain, and cervicalgia due to repetitive gripping, pulling, squeezing, and lifting
mail for 19 years while in the performance of duty. She indicated that she first became aware of
her disease and its relationship to factors of her federal employment on July 22, 2016. On the
reverse side of the claim form the employing establishment noted that appellant was last exposed
to the conditions alleged to have caused her disease or illness on May 17, 2016, that she stopped
work on July 22, 2016, and had not yet returned.
In a report dated July 22, 2016, Dr. Joanne Allen, Board-certified in physical medicine and
rehabilitation, reviewed electromyogram (EMG) and nerve conduction velocity (NCV) studies and
diagnosed bilateral carpal tunnel syndrome, neck pain, paresthesias of bilateral upper extremities,
and right shoulder impingement syndrome.
In a development letter dated September 12, 2016, OWCP acknowledged receipt of
appellant’s claim and informed her that additional evidence was necessary to establish her claim.
It provided her a questionnaire for completion and afforded her 30 days to submit the necessary
evidence.
By decision dated December 13, 2016, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish diagnosed medical conditions causally related to
factors of her federal employment.
On July 3, 2018 appellant requested reconsideration of OWCP’s December 13, 2016
decision. She submitted additional evidence with her request including billing statements from
her health insurance company, diagnostic reports dated February 22, 2018, a case copy request
dated April 27, 2018, operative reports noting surgery on May 7, 2018, an illegible return to work
slip, and a referral for physical therapy dated May 22, 2018.
In a narrative report dated April 12, 2018, Dr. Andre Leonard, a Board-certified internist,
related that appellant was first evaluated on January 27, 2015 after a fall at work in
December 2014. He related her physical examination findings regarding her right shoulder and
cervical spine relative to the December 2014 fall and noted that appellant had returned to work on
May 17, 2016 with restrictions.
In a work capacity evaluation (Form OWCP-5c) and duty status report (Form CA-17) dated
May 22, 2018, Dr. Leonard indicated that appellant underwent carpal tunnel surgery on
May 7, 2018. He noted that she was unable to perform her regular duties as a rural carrier, and
could only perform sedentary work. In an attending physician’s report (Form CA-20) of the same

2

date, Dr. Leonard marked the box “yes” when asked whether appellant’s condition was caused or
aggravated by an employment activity.
In a letter dated June 15, 2018, Dr. Leonard noted that appellant had been his patient since
July 31, 2007, and that she suffered from sciatic pain, right shoulder pain, and left hand carpal
tunnel pain. He related that she underwent carpal tunnel surgery on May 7, 2018 on her left wrist.
Dr. Leonard further indicated that appellant’s work restrictions included no grasping, lifting,
pulling greater than two pounds, climbing, and repetitive wrist movements.
By decision dated August 29, 2018, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions.4 OWCP’s
regulations5 establish a one-year time limitation for requesting reconsideration, which begins on
the date of the original OWCP merit decision. A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.6 Timeliness is determined by the
document receipt date, the received date in OWCP’s integrated Federal Employees’ Compensation
System (iFECS).7 Imposition of this one-year filing limitation does not constitute an abuse of
discretion.8
When an application for review is untimely, OWCP undertakes a limited review to
determine whether the application demonstrates clear evidence that OWCP’s final merit decision
was in error.9 OWCP procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s application for review demonstrates “clear evidence of error” on the part of OWCP.10

3

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-0440 (issued March 16, 2009).

4

20 C.F.R. § 10.607(a).

5

V.G., Docket No. 19-0038 (issued June 18, 2019); J.W., Docket No. 18-0703 (issued November 14, 2018); 20
C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).
6

J.W., id.; Robert F. Stone, 57 ECAB 292 (2005).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

S.T., Docket No. 18-0925 (issued June 11, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

C.V., Docket No. 18-0751 (issued February 22, 2019); B.W., Docket No. 10-0323 (issued September 2, 2010);
M.E., 58 ECAB 309 (2007); Leon J. Modrowski, 55 ECAB 196 (2004); Thankamma Mathews, 44 ECAB 765 (1993);
Jesus D. Sanchez, 41 ECAB 964 (1990).
10

See D.G., Docket No. 18-1038 (issued January 23, 2019); Gladys Mercado, 52 ECAB 255 (2001).

3

In this regard, OWCP will limit its focus to a review of how the newly submitted evidence bears
on the prior evidence of record.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.14 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.15 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.16 To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision.17 The Board makes an independent determination of whether
a claimant has demonstrated 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.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations establish a one-year time limit for requesting reconsideration, which
begins on the date of the original merit decision. The most recent merit decision was OWCP’s
December 13, 2016 decision, which denied appellant’s occupational disease claim. OWCP
received her request for reconsideration on July 3, 2018, which was outside the one-year time limit.

11

V.G., supra note 5; see E.P., Docket No. 18-0423 (issued September 11, 2018); Nelson T. Thompson, 43 ECAB
919 (1992).
12
S.T., supra note 8; see C.V., supra note 9; Darletha Coleman, 55 ECAB 143 (2003); Dean D. Beets, 43 ECAB
1153 (1992).
13

S.T., supra note 8; see E.P., supra note 11; Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43
ECAB 227 (1991).
14

V.G., supra note 5; see C.V., supra note 9; Leon J. Modrowski, supra note 9; Jesus D. Sanchez, supra note 9.

15

V.G., supra note 5; see E.P., supra note 11; Leona N. Travis, supra note 13.

16

Supra note 11.

17

D.G., supra note 10; Leon D. Faidley, Jr., 41 ECAB 104 (1989).

18
See C.V., supra note 9; George C. Vernon, 54 ECAB 319 (2003); Gregory Griffin, 41 ECAB 186 (1989), petition
for recon. denied, 41 ECAB 458 (1990).

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Consequently, appellant must demonstrate clear evidence of error by OWCP in denying her claim
for compensation.19
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s
December 13, 2018 merit decision or shift the weight of the evidence of record in her favor.
In support of her reconsideration request, appellant submitted billing statements from her
health insurance company, a diagnostic report dated February 22, 2018, an April 12, 2018
narrative report from Dr. Leonard in which he related appellant’s treatment for a fall at work in
December 2014, a case copy request dated April 27, 2018, operative reports noting surgery on
May 7, 2018, a referral for physical therapy dated May 22, 2018, and various form reports dated
May 22, 2018 detailing appellant’s work restrictions. She has not explained how this evidence
raises a substantial question regarding the correctness of OWCP’s initial decision denying her
claim for bilateral carpal tunnel syndrome.20 This evidence does not offer a rationalized medical
opinion that OWCP’s decision was incorrect and is not of sufficient probative value to shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision.21
OWCP also received a narrative report from Dr. Leonard dated June 15, 2018 in which he
indicated that appellant underwent carpal tunnel surgery on May 7, 2018 and that she had
restrictions regarding grasping, lifting, and pulling. Dr. Leonard also related that she suffered from
sciatic pain, right shoulder pain, and left hand carpal tunnel pain. While this evidence contains
new information, it does not demonstrate that OWCP’s decision was in error at the time that it was
issued.
Clear evidence of error is intended to represent a difficult standard. Even the submission
of a detailed, well-rationalized medical report which, if submitted before the merit decision was
issued, would have required further development, is insufficient to demonstrate clear evidence of
error.22
Appellant has not demonstrated clear evidence of error. The Board finds that the evidence
appellant submitted on reconsideration is insufficient to shift the weight of the evidence in favor
of her claim or raise a substantial question that OWCP erred in its December 13, 2016 decision.
Thus, OWCP properly denied her untimely request for reconsideration.

19

20 C.F.R. § 10.607(b).

20

See P.B., Docket No. 18-0265 (issued September 5, 2018).

21

T.S., Docket No. 19-0056 (issued July 1, 2019).

22

F.A., Docket No. 19-0321 (issued July 5, 2019).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2019
Washington, DC

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

Janice B. Askin, 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
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 14-664
Issued: May 14, 2014

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 February 3, 2014 appellant filed a timely appeal from an October 30, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed between the last merit decision of
January 3, 2013 to the filing of this appeal on February 3, 2014 and pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 27, 2003 appellant, then a 53-year-old postmaster, filed a traumatic injury claim
(Form CA-1) alleging that he sustained multiple injuries on June 14, 2003 when a pickup truck
hit his postal vehicle. OWCP accepted the claim for closed C5-C7 fracture with unspecified
spinal cord injury, left olecranon bursitis, sprain of left knee cruciate ligament, thoracic or
lumbosacral neuritis or radiculitis tear of lateral meniscus of left knee, sprain of right
interphalangeal wrist and lumbosacral spondylosis without myelopathy.
On March 16, 2010 appellant filed a claim for a schedule award (Form CA-7).
By decision dated December 15, 2010, OWCP granted appellant a schedule award claim
for five percent permanent impairment of the right thumb and seven percent permanent
impairment of the left leg.
On January 11, 2011 appellant requested an oral hearing before the Branch of Hearings
and Review.
At the April 7, 2011 hearing, appellant testified that he believed he was entitled to a
greater award. In support of his claim, he submitted a May 5, 2011 report from Dr. James A.
Stuckmeyer, a Board-certified orthopedic surgeon, which provided an impairment rating of the
right upper and left upper extremities.
By decision dated June 21, 2011, the Branch of Hearings and Review vacated the
December 15, 2010 schedule award determination and instructed OWCP to remand the case to a
district medical adviser (DMA) for an opinion on whether appellant sustained a permanent
impairment as a result of his accepted employment-related injuries.
On remand, OWCP routed the case file and Dr. Stuckmeyer’s report to an OWCP
medical adviser.
In an August 3 and 28, 2011 report, the DMA reported that appellant was entitled to the
previously processed 7 percent permanent impairment of the left lower extremity, as well as an
additional 19 percent permanent impairment of the left lower extremity, for a total of 26 percent.
He reported that the right thumb impairment must be rescinded.
By decision dated September 13, 2011, OWCP granted appellant an additional 19 percent
impairment of the left lower extremity.
On April 17, 2012 appellant requested reconsideration of the September 13, 2011
schedule award determination.
In support of his claim for an increased schedule award, appellant submitted a
February 20, 2012 independent medical evaluation from Dr. Ronald Zipper, a Doctor of
Osteopathic Medicine. Based on the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides),2 Dr. Zipper opined that appellant
2

A.M.A., Guides (2009).

2

sustained 57 percent whole person impairment as a result of his June 14, 2004 injury and
provided an impairment rating:
“Combined ratings of the right upper extremity = 38 [percent] RUE, or 23
[percent] WPI; Combined ratings of the left upper extremity = 38 [percent] LUE,
or 23 [percent] WPI; Combined ratings of the right lower extremity = 20 [percent]
RLE, or 8 [percent] WPI; Combined ratings of the left lower extremity 27
[percent] LLE, or 11 [percent] WPI; Combined values of all WPI ratings, using
the Combined Values Chart =57 [percent].
In a May 5, 2012 report, the DMA reviewed Dr. Zipper’s February 20, 2012 report to
determine permanent partial impairment of the left lower extremity. He reported that Dr. Zipper
did not indicate which edition of the A.M.A., Guides was used nor did he identify the tables,
chapters or grade modifiers used to determine his ratings.
By decision dated May 31, 2012, OWCP denied modification of appellant’s schedule
award claim finding that Dr. Zipper’s report did not contain sufficient information to warrant
additional permanent impairment.
On July 13, 2012 appellant requested reconsideration of the May 31, 2012 OWCP
decision and submitted a supplemental report from Dr. Zipper in support of her claim.
In the July 2, 2012 addendum report, Dr. Zipper reported that the DMA did not
accurately review his previous report as he had indicated using the sixth edition of the A.M.A.,
Guides. He stated that the left knee torn posterior cruciate ligament was equivalent to Table
16-2, class 1 with grade modifiers on Table 16-5, Table 16-6 and Table 16-7 which rendered the
net adjustment formula to be grade E for a 13 percent permanent impairment of the left lower
extremity. The lumbar radiculopathy with the residual effect on peripheral nerves, in particular
the sciatic nerve, was based on Table 16-2 which rendered class 1 with a net adjustment formula
of 13 percent left lower extremity impairment. Dr. Zipper concluded that the combined values
equaled 27 percent permanent impairment of the left lower extremity.3
On December 10, 2012 the DMA reviewed Dr. Zipper’s supplemental report and
determined that he failed to accurately and correctly reflect his findings, improperly referenced
use of specific tables, lacked discussion of how grade modifiers were used and did not correctly
process the left lower impairment ratings. He further noted that the ratings offered for the sciatic
nerve of the left knee could not be added. The DMA went on to state that, even if the sciatic
nerve and left knee could be added, the result would not be greater than 26 percent.
By decision dated January 3, 2013, OWCP affirmed the May 31, 2012 decision finding
that appellant was not entitled to an increased schedule award for the left lower extremity. It
noted that the DMA reviewed Dr. Zipper’s supplemental report and found that his findings were
not correctly applied to support an increase in impairment of the left leg.

3

The Board notes that the combined values total 26 percent permanent impairment of the left lower extremity,
not 27 percent as stated by Dr. Zipper.

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On May 14, 2013 appellant requested reconsideration of OWCP’s decision. He argued
that the DMA was incorrect and Dr. Zipper’s reports established a 27 percent permanent
impairment of the left lower extremity. Appellant further argued that the medical evidence
submitted established permanent impairment to various other body parts for which he should
receive schedule awards.
In support of his claim, appellant resubmitted Dr. Zipper’s February 20, 2012 report and
also submitted a new report from him dated April 26, 2013.
In his April 26, 2013 report, Dr. Zipper stated that OWCP requested his calculations
regarding the left lower extremity only for which he found 27 percent permanent impairment.
He repeated the impairment ratings provided in his initial February 20, 2012 report and reiterated
that the DMA paid little attention to his report.
By decision dated October 30, 2013, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.4 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
The Board finds that OWCP properly denied reopening appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his May 14, 2013 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a new and relevant
legal argument. Appellant’s argument was that Dr. Zipper’s report was sufficient to establish a
27 percent permanent impairment of the left lower extremity. Further the DMA’s findings were
incorrect. His simple assertion disagreeing with the DMA’s rating does not warrant merit review
of the claim. The Board notes that the underlying issue in this case is whether appellant has
greater than 26 percent impairment of the left lower extremity for which he received schedule
4

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

5

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

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awards. That is a medical issue which must be addressed with relevant medical evidence.6
Appellant failed to submit new and relevant medical evidence in support of his claim.7
Accompanying his May 14, 2013 reconsideration request, appellant resubmitted
Dr. Zipper’s February 20, 2012 medical report which was previously addressed and evaluated by
OWCP in its May 31, 2012 and January 3, 2013 merit decisions. As the report repeats evidence
already in the case record, it is duplicative and does not constitute relevant and pertinent new
evidence.
Appellant also submitted a new medical report dated April 26, 2013 from Dr. Zipper.
While Dr. Zipper’s April 26, 2013 report is new, his report is essentially identical and repetitive
of his February 20, 2012 and July 2, 2012 reports which were previously considered by OWCP.
It is insufficient to reopen the case for review of the merits of appellant’s claim.8 Material which
is duplicative of that already contained in the case record does not constitute a basis for
reopening a case.9 A claimant may obtain a merit review of an OWCP decision by submitting
new and relevant evidence. In this case, appellant failed to submit any new and relevant
evidence addressing whether he was entitled to an increased schedule award claim for the left
lower extremity.
The Board notes that, on appeal, appellant argued that the medical reports submitted
established permanent impairment to other members of the body. OWCP’s decision on appeal
before the Board addressed permanent impairment of the left lower extremity. There is no other
final decision for permanent impairment in the record. The Board therefore lacks jurisdiction to
address any other issue.10
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.11
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
6

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

7

M.H., Docket No. 13-2051 (issued February 21, 2014).

8

Evidence that repeats of duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case. Eugene F. Butler, 36 ECAB 393 (1984).
9

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

10

20 C.F.R. § 501.2(c); see E.L., 59 ECAB 405 (2008); Linda Beale, 57 ECAB 429 (2006) (the Board’s
jurisdiction extends only to the review of final decisions by OWCP).
11

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

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ORDER
IT IS HEREBY ORDERED THAT the October 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 14, 2014
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

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

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

Docket No. 18-0740
Issued: February 4, 2019

Case Submitted on the Record

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

JURISDICTION
On February 22, 2018 appellant filed a timely appeal from a November 1, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $29,844.09 because she concurrently received Social Security Administration (SSA)
benefits while receiving FECA benefits for the period July 1, 2015 through July 22, 2017;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required repayment of the overpayment by deducting $300.00 every 28 days from
appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 1998 appellant, then a 48-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained bilateral hand, wrist, arm, and shoulder and
neck conditions as a result of her federal employment duties which involved keying on a letter
sorting machine. On April 20, 1998 OWCP accepted the claim for bilateral carpal tunnel
syndrome and cervical radiculopathy. Subsequently, it expanded acceptance of the claim to
include brachial neuritis or radiculitis, displacement of cervical intervertebral disc without
myelopathy, and a brief depressive reaction. OWCP paid appellant wage-loss compensation
benefits on the periodic rolls as of March 21, 2004.
By letter dated September 20, 2013, OWCP explained appellant’s entitlement to
compensation benefits. In an accompanying Form 1049, it also advised her that, since she was
covered under the Federal Employees Retirement System (FERS), OWCP must deduct at least
part of her SSA retirement benefit to which she would be entitled based on age, explaining that a
portion of a FERS benefit was included in SSA retirement benefits. Appellant was therefore
advised to notify OWCP immediately after filing for or receiving SSA retirement benefits.
On EN1032 forms signed by appellant on July 7, 2015, July 6, 2016, and July 3, 2017, she
indicated that she was receiving SSA benefits as part of an annuity for federal service.
On August 3, 2017 SSA forwarded a FERS/SSA dual benefits calculation form to OWCP.
This indicated that appellant had received SSA retirement benefits beginning in July 2015 when
her SSA rate with FERS was $1,685.30 and without FERS $484.20, and that beginning in
December 2016, her SSA rate with FERS was $1,690.30 and without FERS $485.60.
By letter dated August 15, 2017, OWCP notified appellant that, based on information
provided by SSA regarding the amount her SSA benefit was attributable to federal service, her
FECA wage-loss compensation had been adjusted.
On August 16, 2017 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $29,844.09 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that she received from July 1, 2015 through
July 22, 2017 was based on credits earned while working in the Federal Government, and that this
portion of her SSA benefit was a prohibited dual benefit. OWCP found her at fault in the creation
of the overpayment and provided an overpayment action request form and an overpayment
recovery questionnaire (Form OWCP-20) for her completion.2 It informed appellant of the actions
she could take and allotted 30 days for her to respond.
On a September 9, 2017 overpayment action request form, appellant requested a decision
based on the written evidence. She disagreed that the overpayment occurred and with the amount
of the overpayment, and she also requested a waiver of recovery of the overpayment. Appellant
maintained that the overpayment occurred through no fault of her own, indicating that she reported
2

OWCP also requested that appellant submit supporting financial documentation including income tax returns,
bank account statements, bills and cancelled checks, pay slips, and any other records which supported income and
expenses listed.

2

all information required, and that OWCP had taken no action. On an attached overpayment
recovery questionnaire, she noted monthly income of $1,890.97 in FECA benefits and $1,690.00
from SSA, for a total monthly income of $3,584.97, and monthly expenses of $3,925.00 with assets
totaling $66,601.53. Appellant attached limited financial information including dental, optical,
wellness center services, wellness products, chiropractic services, pest control, household repair,
credit card, bank loan, lawn maintenance water, home fuel, and electric service statements. In
attached statements, she contended that repaying the overpayment would cause severe financial
hardship because it would restrict her health care and would jeopardize her ability to stay in her
home. Appellant also contended that it would be against equity and good conscience because
OWCP had failed to act in a timely manner.
By decision dated November 1, 2017, OWCP finalized the preliminary determination of a
$29,844.09 overpayment of compensation. It determined that appellant was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment. After converting
her 28-day FECA compensation to a monthly amount, OWCP determined that her combined
monthly income from FECA and SSA was $3,738.55 and that she had $2,920.77 in current and
ordinary monthly expenses. It set repayment at $300.00 every 28 days from appellant’s continuing
FECA compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay, or
remuneration of any type from the United States.4
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.5 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.6

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018).

6

FECA Bulletin No. 97-09 (February 3, 1997).

3

Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.7 Section 404.409 of SSA regulations provides that for individuals born from 1943 to
1954, full retirement age is 66 years.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $29,844.09.
In its August 3, 2017 decision, OWCP found that an overpayment of compensation had
been created for the period July 1, 2015 through July 22, 2017. The overpayment was based on
the evidence received from SSA with respect to benefits paid to appellant. A claimant cannot
receive both compensation for wage loss and SSA retirement benefits attributable to federal service
for the same period.9 The information provided by SSA indicated that appellant received agebased SSA benefits that were attributable to federal service during the period July 1, 2015 through
July 22, 2017.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with respect
to the specific amount of age-based SSA retirement benefits that were attributable to federal
service. The SSA provided the SSA rate with FERS, and without FERS, for specific periods
commencing July 1, 2015 through July 22, 2017. OWCP provided its calculations for each
relevant period based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period July 1, 2015 through July 22, 2017 and finds that an overpayment of compensation in the
amount of $29,844.09 was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”11 Section 10.438 of OWCP regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
on an overpayment would defeat the purpose of FECA or be against equity and good conscience.

7

20 C.F.R. § 404.310.

8

Id. at § 404.409.

9

Supra notes 5 and 6; see E.K., supra note 5.

10

See D.C., Docket No. 17-0559 (issued June 21, 2018).

11

5 U.S.C. § 8129.

4

Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.12
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP regulations.13
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.14 For waiver under
the “defeat the purpose of FECA standard”, appellant must show that he or she needs substantially
all of his or her current income to meet current ordinary and necessary living expenses, and that
assets do not exceed the resource base.15 An individual is deemed to need substantially all of his
or her current income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00.16
OWCP procedures in effect at the time of the November 1, 2017 decision17 provided that
the assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or dependent plus $960.00 for each additional dependent.18 An
individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, saving
accounts, mutual funds, and certificate of deposits. Nonliquid assets include, but are not limited
to, the fair market value of an owner’s equity in property such as a camper, boat, second home,
and furnishings/supplies.19
Recovery of an overpayment is also considered to be against equity and good conscience
when an individual, in reliance on such payments or on notice that such payments would be made,
gives up a valuable right or changes his or her position for the worse.20 OWCP procedures provide
that, to establish that a valuable right has been relinquished, it must be shown that the right was in
fact valuable, that it cannot be regained and that the action was based chiefly or solely in reliance
12

20 C.F.R. § 10.438.

13

Id. at §§ 10.434-10.437.

14

Id. at. § 10.436.

15

Id.

16

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).
17

The procedures were revised in September 2018.

18

Supra note 16.

19

Id.

20

20 C.F.R. § 10.437; see G.K., Docket No. 18-0243 (issued August 17, 2018).

5

on the payments or on the notice of payment.21 Donations to charitable causes or gratuitous
transfers of funds to other individuals are not considered relinquishments of valuable rights.22 An
individual must show that he or she made a decision he or she otherwise would not have made in
reliance on the overpaid amount and that this decision resulted in a loss.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered. Repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.24
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because her assets exceed the resource base of $4,800.00, as provided in OWCP
procedures.25 The supporting financial information of record documents assets in excess
of $66,000.00. Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is not necessary to consider
the first prong of the test, i.e., whether her monthly income exceeded her monthly ordinary and
necessary expenses by more than $50.00.26 She did not establish that she was entitled to waiver
on the basis of defeating the purpose of FECA.27
Appellant asserts on appeal that OWCP’s hearing representative did not properly consider
reported expenses. However, as noted above, OWCP need not address whether her monthly
expenses exceeded her monthly income as her assets exceed the resource base of $4,800.00.28
Moreover, the guidelines for determining ordinary and necessary expenses are set forth in OWCP’s
procedures, and the Board finds that OWCP properly calculated such expenses in this case.29

21

Supra note 16 at Chapter 2.600.b(3) (June 2009).

22

20 C.F.R. § 10.437(b)(1) (2011); see R.E., Docket No. 17-1625 (issued July 18, 2018).

23

Id. at § 10.437(b)(2) (2011); see G.K., supra note 20.

24

Id. at § 10.436.

25

Id.

26

Id.

27

See S.H., Docket No. 16-0680 (issued August 4, 2016).

28

Supra note 16.

29

20 C.F.R. § 10.437; see also D.C., Docket No. 17-0559 (issued June 21, 2018).

6

As appellant has not met her burden of proof to establish that recovery of the overpayment
of compensation would defeat the purpose of FECA or be against equity and good conscience, the
Board finds that OWCP did not abuse its discretion in denying waiver of recovery.30
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.31
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize hardship.32
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the relevant factors noted above in setting
a rate of recovery of $300.00 per compensation period, and finds that OWCP’s hearing
representative did not abuse his discretion in setting appellant’s current and ordinary monthly
expenses at $2,920.77 every 28 days.33
The record indicates that appellant’s monthly income of $3,738.55 exceeds her current and
ordinary monthly expenses by approximately $817.00 per month. OWCP therefore did not abuse
its discretion in finding that she should repay the overpayment at the rate of $300.00 per
compensation period.34
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $29,844.09 and that OWCP properly denied waiver of recovery

30

G.K., supra note 20.

31

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

32

Id.

33

Supra note 14.

34

See V.T., Docket No. 18-0628 (issued October 25, 2018).

7

of the overpayment. OWCP also properly required recovery of the overpayment by deducting
$300.00 every 28 days from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 4, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Edmonton Alberta, Canada, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1947
Issued: November 25, 2011

Case Submitted on the Record

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

Appellant filed an application for review of the Office of Workers’ Compensation
Programs’ (OWCP) July 29, 2011 merit decision denying his occupational disease claim. The
appeal was docketed as No. 11-1947. After considering the evidence of record, the Board finds
this case is not in posture for a decision.
The present appeal involves appellant’s May 18, 2011 occupational disease claim (No.
xxxxxx270), in which he alleged that he developed occupational asthma and allergic rhinitis due
to employment-related exposure to jet and diesel fumes, dust and toxins. The record indicates
that on December 21, 2008 appellant filed a similar claim (No. xxxxxx995), which was accepted
for acute episodic allergic bilateral conjunctivitis/rhinitis. The record in the instant case,
however, does not contain any evidence relating to the development of the prior claim.
In support of his claim, appellant submitted medical evidence from his treating physician,
Dr. Jordanka Angelova, a pulmonologist, who opined that his diagnosed allergic rhinitis was
causally related to exposure to fumes at work. He referred OWCP to a second opinion report
from Dr. Benjamin Chiam, a pulmonologist, which was submitted pursuant to his prior claim in
File No. xxxxxx995.1 Noting that he was unable to obtain a copy of Dr. Chiam’s report,
1

Appellant states that Dr. Chiam’s May 6, 2011 second opinion report addresses the same occupational exposure
described in the instant case and concludes that his asthmatic condition resulted from the occupational exposure.

appellant contended that his opinion would establish that he developed asthma as a result of his
exposure to toxins in the workplace.
In its July 29, 2011 decision denying appellant’s claim in this case, OWCP found that the
evidence failed to establish a causal relationship between the claimed exposure and the claimed
conditions. OWCP declined his request to review Dr. Chiam’s report contained in File
No. xxxxxx995, stating that each case file is separate and must be supported individually.
As the allegations contained in File No. xxxxxx995 are substantially the same as those
contained in File No. xxxxxx270, the medical evidence contained in File No. xxxxxx995 will
necessarily bear directly on appellant’s claim for compensation in File No. xxxxxx270. Because
it is essential for the Board to review the medical evidence contained in File No. xxxxxx995 in
order to render a full and fair adjudication of the present appeal, this case will be remanded for
OWCP to consolidate case File Nos. xxxxxx995 and xxxxxx270. Reconstruction of the record
will be followed by a de novo decision on the merits of the claim, in order to protect appellant’s
appeal rights.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 29, 2011 decision be set aside and the case remanded for further development consistent
with this order.2
Issued: November 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

The Board notes that appellant requested oral argument before the Board. Pursuant to 20 C.F.R. § 501.5(a), oral
argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In light of the Board’s ruling, oral
argument is not appropriate in this case. Therefore, appellant’s request for oral argument is denied.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Boston, MA, Employer
__________________________________________

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Appearances:
Francis J. Hurley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-598
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On January 10, 2011 appellant filed a timely appeal from a July 20, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation pursuant to
section 8123(d) of FECA on the grounds that she refused to submit to a directed medical
examination.
On appeal her attorney asserts that the notice of appointment was not properly mailed and
there is no presumption that it was received.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 6, 2009 appellant, then a 50-year-old mail handler, was injured while manually
unloading trucks on the loading dock. She stopped work that day. OWCP accepted that
appellant sustained an employment-related left wrist sprain, contusion of the left elbow, a
bilateral shoulder sprain and a thoracolumbar sprain of the back.
By letter dated October 16, 2009, OWCP informed appellant that a medical management
nurse, Joyce DeChristopher, was assigned to facilitate her recovery. Ms. DeChristopher made
numerous attempts to contact appellant by telephone and correspondence. Appellant did not
respond and the nurse visitation case was closed.
On December 1, 2009 OWCP informed appellant that an appointment had been made to
obtain a second opinion evaluation to address the nature of her condition, the extent of disability,
and appropriate treatment. Appellant was informed of her responsibilities, and that her
compensation could be suspended for failure to attend the examination. On December 2, 2009
she was informed by QTC Medical Services, OWCP’s medical scheduler, that an appointment
had been made with Dr. Joel A. Saperstein, a Board-certified orthopedic surgeon, at 10:30 a.m.
on December 14, 2009. Appellant did not attend the scheduled appointment.2
On December 22, 2009 OWCP proposed to suspend appellant’s compensation benefits on
the grounds that she failed to appear for the examination scheduled with Dr. Saperstein on
December 14, 2009. Appellant was informed of the penalty provision of section 8123(d) of
FECA and was given 14 days to provide in writing good cause for her failure to appear. She was
also advised to contact OWCP immediately if she intended to report for a rescheduled
examination.3
By letter dated January 6, 2010, appellant informed OWCP that she did not receive notice
of the appointment. On January 6, 2010 a QTC scheduler informed OWCP that she had called
her to reschedule the missed appointment. Appellant submitted a number of treatment notes and
disability slips from Dr. Olarewaju J. Oladipo, an orthopedic surgeon, dated from December 15,
2009 to June 15, 2010. Dr. Oladipo provided examination findings and diagnosed low back
pain, headache, bilateral elbow pain, upper back pain, left elbow swelling, left wrist pain with
swelling, bilateral foot pain and bilateral leg swelling. He made treatment recommendations and
advised that appellant could not work.
In a January 21, 2010 decision, OWCP finalized the proposed suspension, effective
January 7, 2010. It found that appellant did not attend the appointment scheduled for
December 14, 2009. OWCP acknowledged receipt of her letter stating that she had not received
the appointment notice and informed her that, in the absence of evidence to the contrary, a notice
mailed to an individual in the ordinary course of business was presumed received by that
2

Physical therapy services were discontinued on December 24, 2009 secondary to noncompliance. The physical
therapist noted that appellant stated that she was in too much pain to do physical therapy and would not return.
3

The record contains a second copy of the proposed suspension, dated December 23, 2009, signed by a second
senior claims examiner.

2

individual. OWCP informed appellant that wage-loss compensation would be reinstated after
she attended and fully cooperated with an examination.
On February 10, 2010 appellant, through her attorney, requested a hearing. On
February 19, 2010 counsel called OWCP to inquire about rescheduling the second opinion
evaluation. An appointment with Dr. Saperstein was rescheduled for 9:30 a.m. on April 9, 2010.
Appellant attended the scheduled appointment and her compensation was reinstated effective
that day.
At the May 4, 2010 hearing, appellant’s attorney asserted that she had always been
cooperative with OWCP, and that the record contained conflicting information regarding the
appointment scheduled in December. Appellant testified that she did not receive the
appointment notice. She stated that in December mail was delivered by casual employees who
were not trained and who threw mail away, that it was very common to lose mail, and that first
class mail effectively became second class mail with no delivery priority. Subsequent to the
hearing, appellant’s attorney submitted copies of separate letters dated December 1, 2009
notifying appellant that an appointment would be scheduled, a notice dated December 2, 2009 in
which QTC notified appellant of the appointment scheduled with Dr. Saperstein on
December 14, 2009, and a second QTC appointment letter dated December 3, 2009.
By decision dated July 20, 2010, an OWCP hearing representative affirmed the
January 21, 2009 OWCP decision.4
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.5
The determination of the need for an examination, the type of examination, the choice of locale
and the choice of medical examiners are matters within the province and discretion of OWCP.6
OWCP regulations at section 10.320 provide that a claimant must submit to examination by a
qualified physician as often and at such times and places as OWCP considers reasonably
necessary.7 Section 8123(d) of FECA and section 10.323 of OWCP regulations provide that, if
an employee refuses to submit to or obstructs a directed medical examination, his or her right to
compensation is suspended until the refusal or obstruction ceases.8 OWCP procedures provide
that before OWCP may invoke these provisions, the employee is to be provided a period of 14
days within which to present in writing his or her reasons for the refusal or obstruction.9 If good
4

On July 20, 2011 appellant filed an appeal with the Board of an April 12, 2011 OWCP’s hearing representative
decision. It will be adjudicated separately under Docket No. 11-1789.
5

5 U.S.C. § 8123.

6

J.T., 59 ECAB 293 (2008).

7

20 C.F.R. § 10.320.

8

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14(d) (July 2000); J.T., supra note 6.

3

cause for the refusal or obstruction is not established, entitlement to compensation is suspended
in accordance with section 8123(d) of FECA.10
In the absence of evidence to the contrary, a letter properly addressed and mailed in the
due course of business, such as in the course of OWCP’s daily activities, is presumed to have
arrived at the mailing address in due course. This is known as the mailbox rule.11
ANALYSIS
The Board finds that appellant refused to submit to the scheduled December 14, 2009
second opinion examination with Dr. Saperstein within the meaning of section 8123 of FECA.
OWCP directed appellant to attend a second opinion evaluation with Dr. Saperstein, a Boardcertified orthopedic surgeon. It properly determined that it required an assessment of appellant’s
employment-related condition, medical treatment and continuing disability.
By letter dated December 1, 2009, OWCP informed appellant that a second opinion
evaluation was needed and that her compensation could be suspended if she failed to attend the
examination. On December 2, 2009 appellant was informed that an appointment had been
scheduled with Dr. Saperstein for a second opinion evaluation, at 10:30 a.m. on
December 14, 2009. The notice was sent to her address of record.
Appellant did not attend the December 14, 2009 appointment. In a December 22, 2009
notice, OWCP afforded her 14 days to provide good cause in writing for her failure to attend the
scheduled examination. Appellant was advised of the penalty provision of section 8123(d) of
FECA for failure to attend such an examination.
The Board has recognized OWCP’s responsibility in developing claims.12 Section 8123
authorizes an employee who claims disability as a result of federal employment to undergo a
physical examination as OWCP deems necessary. The determination of the need for an
examination, the type of examination, the choice of locale and the choice of medical examiners
are matters within the province and discretion of OWCP. The only limitation on this authority is
that of reasonableness.13 The referral to an appropriate specialist in appellant’s area at OWCP’s
expense was not unreasonable. In this case, OWCP acted within its discretion by referring
appellant for a second opinion examination to assess residuals and disability related to her
employment-related conditions.
By letter dated January 6, 2010, appellant advised OWCP that she did not receive the
appointment notice. As noted, in the absence of evidence to the contrary, it is presumed that a
notice mailed to an individual in the ordinary course of business was received by that

10

Id.

11

C.T., Docket No. 08-2160 (issued May 7, 2009).

12

Scott R. Walsh, 56 ECAB 353 (2005).

13

20 C.F.R. § 10.320; see J.T., supra note 6.

4

individual.14 Under the mailbox rule, evidence of a properly addressed letter, together with
evidence of proper mailing, may be used to establish receipt.15 The case record contains a
properly addressed copy of the December 2, 2009 letter notifying appellant of the scheduled
medical appointment. While appellant submitted different letters dated December 1, 2009, this is
not sufficient to rebut the presumption of mailing. Her hearing testimony regarding poor
delivery practices during the holiday season is not sufficient to rebut the presumption without
proof of nondelivery.
The Board finds appellant failed to attend the scheduled December 14, 2009 medical
examination and did not provide good cause for her failure within 14 days of OWCP’s
December 22, 2009 notice of proposed suspension. The Board finds that OWCP properly
suspended her compensation benefits effective January 7, 2010.16
The Board notes that section 8123(d) provides that an employee’s right to compensation
is suspended until the refusal or obstruction stops, not when OWCP verifies that a rescheduled
examination has taken place. When the claimant actually reports for examination, payment
retroactive to the date on which the claimant agreed to attend the examination may be made.17
OWCP received notice from appellant’s attorney on February 19, 2010 that she was willing to
attend a rescheduled medical examination, which she attended on April 9, 2010. The suspension
of her wage-loss compensation should have ceased as of February 19, 2010. On return of the
case record to OWCP, it should reinstate her compensation benefits as of February 19, 2010.
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 OWCP properly suspended appellant’s compensation benefits
effective January 7, 2010, as she failed to attend a scheduled medical examination without
showing good cause for her refusal.

14

C.T., supra note 11.

15

Joseph R. Giallanza, 55 ECAB 186 (2003).

16

J.T., supra note 6.

17

Sharon Handy, 57 ECAB 446 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the July 20, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed as modified.
Issued: September 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 08-2010
Issued: April 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2008 appellant, through his attorney, filed a timely appeal from a
February 13, 2008 merit decision of the Office of Workers’ Compensation Programs denying his
occupational disease claim. 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 sustained a bilateral arm condition causally related to
factors of his federal employment.
FACTUAL HISTORY
On October 30, 2006 appellant, then a 48-year-old heavy mobile equipment mechanic,
filed an occupational disease claim alleging that he injured his right and left arm using a jack
hammer in the course of his federal employment. He did not stop work. Appellant became
aware of his condition on October 4, 2006.

By letter dated November 13, 2006, the Office requested additional factual and medical
information, including a detailed medical report from his attending physician addressing the
causal relationship between any diagnosed condition and the identified employment factors.
Appellant submitted clinic notes from the employing establishment dated March 11, 1998
through October 25, 2005. The clinic notes established that he sustained an injury to his left
hand in March 1998 and an injury to his left shoulder in April 1998. In June 1998, appellant
injured a finger on his left hand. In a report dated May 10, 1999, Dr. Jeffrey T. DeHaan, a
Board-certified orthopedic surgeon, noted that appellant had undergone rotator cuff surgery on
the left arm. On March 13, 2000 a physician at the employing establishment’s clinic indicated
that he had surgery on his right wrist and also required a follow-up on his shoulder. On June 26,
2000 appellant received treatment at the clinic for an injury to a finger on his left hand. On
August 25, 2003 he sought treatment at the employing establishment’s clinic for a pulled right
arm. Dr. Patricio Andres, who specializes in family practice, diagnosed a right biceps strain and
found that appellant should work with restrictions for four days. On October 25, 2005 he
provided follow-up care for the index finger of the left hand.
On November 9, 2005 George T. Lawless, a physician’s assistant working for the
employing establishment, treated appellant for a hand contusion sustained at work while using
hand tools.
In a report dated January 25, 2006, Dr. Andres noted a history of “mid-joint swelling of
[the] left index finger” and counseled him “regarding job hazards in accordance with job duties.”
In a report dated October 16, 2006, Carroll E. McDonough, a physician’s assistant,
evaluated appellant for right and left arm pain after he used an air hammer and air gun. He
diagnosed a right wrist and left upper limb sprain and noted that appellant sustained physical
trauma at work. Mr. McDonough referred him to a medical officer.
By decision dated January 11, 2007, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish a diagnosed condition due to the identified
employment factors. It noted that it had accepted that he sustained a traumatic injury to his
shoulder in 1988 under file number xxxxxx986.
On January 10, 2007 Dr. DeHaan evaluated appellant for problems with his bilateral
shoulders and upper extremities. He stated, “[Appellant] was working in Kuwait using his arms
quite a bit and noticed that he started having quite a bit of difficulty with his arms, primarily with
pain around the shoulder region, but also both his hands and arms going numb on him.”
Dr. DeHaan noted that appellant attributed his condition to his use of “whatever working devices
he uses….” A handwritten note on the report indicated that appellant was using a jackhammer
“and [the] vibration hurt him.” Dr. DeHaan found that x-rays suggested “some rotator cuff
pathology” and referred him for further diagnostic studies.1

1

On March 23, 2007 appellant underwent a diagnostic arthroscopy with labral debridement and a subacromial
decompression of the right upper extremity. On August 9, 2007 Dr. Chris Alkire, a Board-certified orthopedic
surgeon, provided follow-up care after a left carpal tunnel release.

2

On October 24, 2007 appellant requested reconsideration.
By decision dated
February 13, 2008, the Office modified its January 11, 2007 decision to reflect that he
established fact of injury but denied the claim as the medical evidence failed to show causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 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.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.4
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;5 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;6 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.7
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.8 The
opinion of the physician must be based on a complete factual and medical background of the

2

5 U.S.C. §§ 8101-8193.

3

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Michael R. Shaffer, 55 ECAB 386 (2004).

6

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

7

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

8

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

3

claimant,9 must be one of reasonable medical certainty10 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.11
ANALYSIS
Appellant attributed his bilateral arm condition to working with a jackhammer in the
course of his federal employment. The Office accepted the occurrence of the claimed
employment factors. The issue, therefore, is whether the medical evidence establishes a causal
relationship between the claimed conditions and the identified employment factors.12
Appellant submitted notes from the employing establishment’s clinic dated 1998 to 2005.
The clinic notes support that he sustained various traumatic injuries but fail to address the
relevant issue of whether he sustained a bilateral arm condition due to the identified work
factors.
Mr. Lawless, a physician’s assistant, treated appellant on November 9, 2005 for a hand
contusion. On October 16, 2006 Mr. McDonough, a physician’s assistant, evaluated appellant
for right and left arm pain after using an air hammer and air gun. The reports of a physician’s
assistant are entitled to no medical weight as a physician’s assistant is not a “physician” as
defined by section 8101(2) of the Act.13
On January 10, 2007 Dr. DeHaan evaluated appellant for problems with his bilateral
shoulders and upper extremities. He stated, “[Appellant] was working in Kuwait using his arms
quite a bit and noticed that he started having quite a bit of difficulty with his arms, primarily with
pain around the shoulder region, but also both his hands and arms going numb on him.”
Dr. DeHaan noted that he attributed his condition to his use of “whatever working devices he
uses….” A note on the report indicated that appellant used a jackhammer and was injured from
the vibration. Dr. DeHaan did not, however, provide a diagnosis or specifically relate appellant’s
bilateral arm symptoms to the identified employment factor of using a jackhammer while
working for the employing establishment. Without a firm diagnosis and an opinion on causal
relationship supported by medical rationale, his report is of little probative value.14
9

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

10

John W. Montoya, 54 ECAB 306 (2003).

11

Judy C. Rogers, 54 ECAB 693 (2003).

12

In its February 13, 2008 decision, the Office indicated that it was modifying its prior decision to show that
appellant had established fact of injury but not a causal relationship between the diagnosed condition and work
factors. The Board notes, however, that to establish fact of injury in an occupational disease claim appellant must
show that he experienced the identified employment factors and that the factors resulted in a diagnosed condition.
See Gregory J. Reser, 57 ECAB 277 (2005).
13

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

14

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).

4

An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed condition and his
employment.15 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by him as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.16 He failed to submit such evidence and therefore failed to
discharge his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained a bilateral arm
condition causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 13, 2008 is affirmed.
Issued: April 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

Patricia J. Glenn, 53 ECAB 159 (2001).

16

Robert Broome, 55 ECAB 339 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, Lakehurst, NJ,
Employer
__________________________________________

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

Docket No. 17-1355
Issued: December 14, 2018

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 June 9, 2017 appellant, through counsel, filed a timely appeal from a May 15, 2017
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 recurrence of
disability, commencing January 1, 2016, causally related to his accepted January 26, 2000
employment injury.
FACTUAL HISTORY
On February 1, 2000 appellant, then a 38-year-old material handler, filed a traumatic injury
claim (Form CA-1) alleging that his “right arm pulled out” on January 26, 2000 while picking up
a pallet not knowing it was frozen to the ground. OWCP accepted the claim for right
acromioclavicular (AC) sprain and adhesive capsulitis of shoulder. It also accepted appellant’s
claims for recurrences of total disability on December 3, 2002 and March 15 and 22, 2010.
Appellant returned to full-time, full-duty work at this date-of-injury position, effective
August 25, 2010.3 On February 4, 2016 counsel submitted a letter indicating that appellant’s right
elbow condition had worsened and attached a January 12, 2016 report from Dr. Brian M. Katt, a
Board-certified orthopedic surgeon, who indicated that appellant started having posterior elbow
discomfort and that a magnetic resonance imaging (MRI) scan from October 2014 showed a partial
triceps tendon tear.
In an April 26, 2016 letter, counsel claimed that appellant had sustained a recurrence of his
medical condition and submitted a March 17, 2016 report from Dr. Carrie Edelman, a Boardcertified rheumatologist, who diagnosed palindromic rheumatism and gout. Dr. Edelman further
indicated that appellant had pain, swelling, and decreased range of motion in his dominant limb
and that he could no longer use his right elbow to do this job due to the inflammation and tissue
damage that precluded lifting and moving.
By letter dated May 10, 2016, OWCP advised counsel that appellant’s case was inactive
and a notice of recurrence (Form CA-2a) could be submitted for case status review.
In a letter dated May 18, 2016, counsel requested additional right elbow surgery and
resubmitted his previous submitted letter of February 4, 2016, Dr. Katt’s January 12, 2016 report,
and a surgical report indicating that appellant had undergone a right elbow arthrotomy and repair
of triceps tendon on April 28, 2010.
By letter dated May 24, 2016, OWCP again advised counsel that appellant’s case had an
inactive status and a notice of recurrence could be submitted for case status review.
On April 7, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging that on
January 1, 2016 he sustained a recurrence of his January 26, 2000 employment injury. He stated
that, since his initial operation, his elbow was never 100 percent and it was “ok until stress was
placed on area that was operated on was vacuuming a dirty area.” Appellant checked the box on
the form that he was claiming “time loss from work.” The reverse side of the CA-2a revealed that

3
OWCP granted appellant a schedule award for 18 percent permanent impairment of the right upper extremity.
The award ran for 56.16 weeks for the period April 16, 2012 to May 14, 2013.

2

appellant stopped work on January 5, 2016. Appellant’s supervisor indicated that appellant was
scheduled to return to work on January 16, 2016.
In a September 6, 2016 development letter, OWCP advised appellant of the deficiencies of
his recurrence claim and afforded him 30 days to submit additional medical evidence and respond
to its inquiries.
In response, counsel submitted a letter dated September 21, 2016 and appellant submitted
a narrative statement reiterating the factual history of the claim.
By decision dated October 7, 2016, OWCP denied appellant’s recurrence claim because
the medical evidence of record failed to establish a recurrence of disability commencing January 1,
2016 causally related to his accepted January 26, 2000 employment injury. It explained that
appellant did not establish that he was “disabled/further disabled due to a material
change/worsening of your accepted work-related conditions.”
Appellant submitted a right elbow MRI scan dated October 9, 2014, which demonstrated
lateral triceps insertional tendinopathy with partial tear and underlying marrow edema, minimal
olecranon bursitis, and mild chronic arthritis of the ulnar trochlear joint.
In an October 17, 2016 letter, counsel reiterated appellant’s claim for a recurrence and
submitted a September 30, 2016 report from Dr. Edelman who reiterated her medical diagnoses
and continued to opine that appellant was unable to perform any core or noncore duties.
On October 18, 2016 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In a February 23, 2017 report, Dr. Lance A. Markbreiter, a Board-certified orthopedic
surgeon, diagnosed edema within the posterior margin of the distal humerus, with a fluid
collection, a partial tear involving the triceps tendon, bursitis, and marrow edema and tendinopathy
associated with the tear. He opined that appellant’s current elbow pathology/injury was causally
related to the original injury. Dr. Markbreiter concluded that appellant had undergone appropriate
surgery, but the injury was permanent, it progressed, and had retorn. He recommended further
intervention, including reconstructive surgery.
A hearing was held before an OWCP hearing representative on February 28, 2017.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
In response, counsel submitted a March 28, 2017 report from Dr. Edelman who reiterated
her previous reports and opined that appellant’s chronic changes had nothing to do with his gout.
By decision dated May 15, 2017, OWCP’s hearing representative affirmed the prior
decision.

3

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness.4 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties, or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed the employee’s established
physical limitations.5
When an employee who is disabled from the job he or she had when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he or she 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 to show that he or she cannot perform such limited-duty work. 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.6 This burden includes the
necessity of furnishing evidence from a qualified physician who concludes, on the basis of a
complete and accurate factual and medical history, that the disabling condition is causally related
to the employment injury. The medical evidence must demonstrate that the claimed recurrence
was caused, precipitated, accelerated, or aggravated by the accepted injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9

4

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

5

Id.

6

See A.M., Docket No. 09-1895 (issued April 23, 2010).

7

See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.2 (January 2013).
8

See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

See I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing January 1, 2016, causally related to his accepted January 26, 2000
employment injury.
In his February 23, 2017 report, Dr. Markbreiter diagnosed edema within the posterior
margin of the distal humerus, with a fluid collection, a partial tear involving the triceps tendon,
bursitis, and marrow edema and tendinopathy associated with the tear. He opined that appellant’s
current elbow pathology/injury was causally related to the original injury. Dr. Markbreiter
concluded that appellant had undergone appropriate surgery, but the lifting injury was permanent,
it progressed, and had retorn. The Board finds that Dr. Markbreiter failed to provide sufficient
medical rationale explaining how appellant’s symptoms beginning on January 1, 2016 were
causally related to the January 26, 2000 work injury, without an intervening injury or new
exposure.10 More specifically, Dr. Markbreiter failed to explain how the “vacuuming a dirty area”
incident appellant described on the claim form was not an intervening injury.11 Thus, the Board
finds this evidence insufficient to establish that appellant sustained a recurrence of his accepted
medical condition.
In her reports, Dr. Edelman diagnosed palindromic rheumatism and gout and indicated that
appellant had pain, swelling, and decreased range of motion in his dominant limb. She opined that
he could no longer use his right elbow to do this job due to the inflammation and tissue damage
that precluded lifting and moving. Dr. Edelman further opined that appellant’s chronic changes
had nothing to do with his gout. The Board finds that Dr. Edelman failed to provide sufficient
medical rationale explaining how appellant’s symptoms beginning on January 1, 2016 were
causally related to the January 26, 2000 employment injury, without an intervening injury or new
exposure.12 Similar to Dr. Markbreiter above, Dr. Edelman failed to specifically explain how
“vacuuming a dirty area” incident was not an intervening injury. Thus, the Board finds that
Dr. Edelman’s reports are not sufficient to establish that appellant sustained a recurrence of his
accepted medical condition.
The other medical reports of record are of limited probative value on the issue of a
recurrence of disability because they do not specifically address whether appellant’s disability
beginning January 1, 2016 was attributable to his accepted work injury.13
The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish a causal connection between the alleged recurrence of his medical condition and the
accepted employment injury.14 Appellant had the burden of submitting sufficient medical
10

D.C., Docket No. 16-1143 (issued February 13, 2017).

11

L.C., Docket No. 17-1788 (issued September 19, 2018).

12

Supra note 10.

13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

C.W., Docket No. 16-1320 (issued March 23, 2017).

5

evidence to document the need for further medical treatment for his accepted employment-related
condition.15 He did not submit such evidence as required and failed to establish a need for
continuing medical treatment.16
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 his burden of proof to establish a recurrence of
disability commencing January 1, 2016, causally related to his accepted January 26, 2000
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 15, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 14, 2018
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

15

O.H., Docket No. 15-0778 (issued June 25, 2015).

16

See J.F., 58 ECAB 331 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD &
SAFETY INSPECTION SERVICE, Fresno, CA,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0143
Issued: July 19, 2018

Case Submitted on the Record

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

JURISDICTION
On October 25, 2017 appellant, through counsel, filed a timely appeal from an August 22,
2017 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 to consider the merits of the 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 met his burden of proof to establish more than 11 percent
permanent impairment of his left upper extremity, for which he previously received a schedule
award.
On appeal, counsel argues that OWCP improperly combined two separate body parts when
denying his claim for an increased schedule award.
FACTUAL HISTORY
On November 16, 2007 appellant, then a 49-year-old consumer safety inspector, filed a
traumatic injury claim (Form CA-1) alleging that on that date, he pulled or tore a muscle in his left
inner arm elbow joint when adjusting a mirror while in the performance of duty. Under File No.
xxxxxx289 OWCP accepted his claim for left distal bicep rupture and enthesopathy of elbow
region. Appellant underwent a reconstruction with an achilles tendon allograft on April 2, 2008.
OWCP paid him wage-loss compensation from March 9 through September 27, 2008 on the
supplemental rolls.
Appellant also filed a traumatic injury claim (Form CA-1) on February 22, 2010 in OWCP
File No. xxxxxx024 for an injury to his left thumb and hand. That case was accepted by OWCP
for rupture of flexor tendons on left hand and wrist, sprain of the left hand, and basal joint arthritis
of the left thumb.
On June 14, 2013 OWCP issued appellant a schedule award for 11 percent impairment of
his left upper extremity, based upon his left thumb impairment. The award ran for 34.32 weeks.
In a letter dated July 26, 2016, counsel requested a schedule award, and forwarded a June 8,
2016 report by Dr. Michael E. Hebrard, a Board-certified physiatrist. Dr. Hebrard listed
appellant’s diagnoses as left biceps tendon rupture and enthesopathy of the left elbow region. He
opined that appellant reached maximum medical improvement (MMI) on June 8, 2016.
Dr. Hebrard further opined that appellant had seven percent permanent impairment of his left upper
extremity for the rupture of the left bicep tendon with residual deficits. He explained that pursuant,
to the Elbow Regional Grid found in Table 15-4 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 appellant’s
left bicep tendon rupture was a class 1 impairment. Dr. Hebrard found grade modifiers for physical
examination as 3 (based on three centimeters of atrophy on the left with pain), and a functional
history modifier 3 (for pain with less than normal activity). He found that this yielded a net
adjustment of plus two, which gave appellant a class 1, grade E impairment, which equaled seven
percent permanent impairment of the left upper extremity for rupture of the left bicep tendons with
residual function deficits.
On September 22, 2016 OWCP referred appellant’s file to OWCP’s medical adviser. In a
report dated October 3, 2016, the medical adviser listed appellant’s diagnosis as status post repair
of ruptured distal bicep tendon, 2007. The medical adviser found that appellant had seven percent
3

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

2

permanent impairment of the left upper extremity resulting from the employment injury of
November 16, 2007. However, as appellant had already received a prior schedule award for 11
percent permanent impairment of the left upper extremity, the medical adviser determined that
there had been no increase in his left upper extremity permanent impairment.
By decision dated November 17, 2016, OWCP denied appellant’s request for a schedule
award as it determined that the evidence of record was insufficient to establish additional
permanent impairment of his left upper extremity beyond that which was previously awarded.
By letter dated November 23, 2016, appellant, through counsel, requested a telephone
hearing before an OWCP hearing representative. During the hearing, held on June 8, 2017,
counsel noted that the prior award for 11 percent permanent impairment of the left upper extremity
did not involve the elbow. He contended that there was no logical reason why the previous award
would preclude appellant from obtaining an award for an injury to his bicep, and that he deserved
an additional schedule award for seven percent permanent impairment of his left upper extremity.
By decision dated August 22, 2017, OWCP’s hearing representative affirmed the
November 17, 2016 decision. The hearing representative stated that, pursuant to OWCP
procedures, the prior rating due to a work-related impairment is subtracted from the total
percentage of impairment.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.5 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ, shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A., issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.

4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of an arm, an employee shall receive 312 weeks compensation. 5 U.S.C. § 8107(c)(1).

6

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A., Guides,
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.8
The sixth edition requires identifying 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).9 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).
It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
cases is for impairment of the same member or function or different part of the same member or
function or different parts of the same member or function; and (2) the latter impairment in whole
or in part would duplicate the compensation payable for the preexisting impairment.10
ANALYSIS
The Board finds that this case is not in posture for decision.
The issue is whether appellant has met his burden of proof to establish more than 11 percent
permanent impairment of the left upper extremity, for which he previously received a schedule
award.
The Board has found that OWCP had inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of the diagnosis-based impairment (DBI)
or range of motion (ROM) methodologies when assessing the extent of permanent impairment for
schedule award purposes.11 The purpose of the use of uniform standards is to ensure consistent
results and to ensure equal justice under the law to all claimants.12 In T.H., the Board concluded
that OWCP physicians were at odds over the proper methodology for rating upper extremity
impairment, having observed attending physicians, evaluating physicians, second opinion
physicians, impartial medical examiners, and district medical advisers use both DBI and ROM
methodologies interchangeably without any consistent basis. Furthermore, the Board observed
7

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 2.808.5(a) (March 2017).
8

Isidoro Rivera, 12 ECAB 348 (1961); see also C.H., Docket No. 17-1439 (issued February 15, 2018).

9

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

10

20 C.F.R. § 10.404(d); see T.S., Docket No. 16-1406 (issued August 9, 2017); T.S., Docket No. 09-1308 (issued
December 22, 2009).
11

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

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

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that physicians interchangeably cited to language in the first printing or the second printing when
justifying use of either ROM or DBI methodology. Because OWCP’s own physicians were
inconsistent in the application of the A.M.A., Guides, the Board found that OWCP could no longer
ensure consistent results and equal justice under the law for all claimants.13
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the decision. Utilizing a consistent method
for calculating permanent impairment for upper extremities applied uniformly14 and after such
other development as may be deemed necessary, OWCP shall issue a de novo decision on
appellant’s claim for an upper extremity schedule award.
Furthermore, although OWCP informed its medical adviser of appellant’s prior award, the
medical adviser did not provide an opinion explaining how the current permanent impairment
duplicated the prior impairment to the left upper extremity and its relationship to the prior schedule
award.15 Rather, the medical adviser simply noted that appellant previously received a schedule
award for 11 percent loss of use of the left upper extremity and that the 7 percent impairment found
by Dr. Hebrard was less than the 11 percent previously awarded. The Board notes that the prior
award for 11 percent permanent impairment was based on his left thumb impairment, whereas the
current claim for a schedule award is based on left distal bicep rupture.
Accordingly, the case will be remanded to OWCP to properly resolve the issue presented.
After such further development as deemed necessary, it shall issue a de novo decision on all aspects
of appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Supra note 11.

14

See FECA Bulletin No. 17-0006 (issued May 8, 2017).

15

See J.S., Docket No. 15-1252 (issued January 19, 2016) (simply comparing the prior percentage of impairment
awarded to the current impairment for the same member is not sufficient); J.K., Docket No. 16-1361 (issued
April 18, 2017) (medical evidence must clearly explain how the current permanent impairment duplicated the prior
impairment).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 22, 2017 is set aside and the case is remanded for further proceedings
consistent with this decision.
Issued: July 19, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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