United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 07-1257
Issued: March 26, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN D. KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 11, 2007 merit decision granting him a schedule award for an
additional 10 percent impairment of his left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a 39 percent impairment of the left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On August 12, 1991 appellant filed an occupational disease claim, alleging that he
developed a right foot condition as a result of conditions of his federal employment. The Office
accepted his claim for aggravation of his preexisting right foot conditions, including:
degenerative joint disease; subtaler joint and ankle arthritis; pes planus; posterior tibial tendinitis.

On May 5, 1993 the Office granted appellant a schedule award for a 28 percent impairment of
his right lower extremity.
On September 28, 1995 the Office accepted the conditions of left flat foot and tibia
tendinitis, as a consequential injury. On May 22, 1996 the Office granted appellant a schedule
award for a 29 percent impairment of his left lower extremity. On September 20, 1999 appellant
filed a claim for recurrence, which was accepted for bilateral posterior tibial tendinitis and pes
planus.
On April 1, 2005 the Office accepted the additional conditions of bilateral osteoarthritis
and abnormality of gait. On April 5, 2005 the Office authorized a triple arthrodesis, which was
performed the following day. On August 30, 2005 the Office authorized left fusion of foot bones
and left revision of calf tendon.
Appellant submitted a report dated May 1, 2006 from Dr. Chris Bowers, a podiatrist, who
provided a history of appellant’s employment injury and medical treatment. Dr. Bowers’
neurological examination revealed intact epicritic sensation in the bilateral lower extremities. A
biomechanical evaluation showed that range of motion was approximately 10 percent in ankle
joint dorsiflexion bilaterally; 5 percent in ankle joint plantar flexion bilaterally; and 0 percent in
inversion and eversion in both lower extremities. Dr. Bowers diagnosed degenerative joint
disease and equines deformity of both feet; posterior tibial dysfunction bilaterally; pes planus
bilaterally; and status post triple arthrodesis bilaterally. Referring to page 542 of the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides), he opined that appellant had a 10 percent impairment of each lower extremity
and an 8 percent whole person impairment.
The Office forwarded Dr. Bowers’ May 1, 2006 report, together with a statement of
accepted facts, to an Office medical adviser for review and an opinion as to the nature and degree
of appellant’s permanent impairment. In a report dated July 26, 2006, the medical adviser
referred to page 542 of the A.M.A., Guides, which concerns “Foot (Hindfoot, Midfoot,
Forefoot),” and determined that ankylosis of the foot in a neutral position constituted a
10 percent impairment of the lower extremity. Based upon Dr. Bowers’ findings, he opined that
appellant had sustained a 10 percent impairment of each lower extremity under this section of the
A.M.A., Guides. The medical adviser noted that appellant’s 1996 schedule award was given for
impairment to his left lower extremity due to loss of motion in his ankle. He explained that the
present award represented an additional impairment, as it related to the 2005 triple arthrodesis
procedure. The medical adviser opined that the date of maximum medical improvement was
May 1, 2006.
Appellant submitted a report dated July 21, 2006 from Dr. Byron E. Strain, a Boardcertified physiatrist, who stated that appellant was previously determined to be at maximum
medical improvement and that he was merely providing a second opinion regarding his
impairment rating. Dr. Strain’s examination revealed 5/5 strength; intact sensation to light
touch; 2+ dorsalis pedal pulses; good capillary refill; 2+ deep tendon reflexes at the knees, 0 at
the ankles secondary to fusion; and negative clonus and Babinski signs. At the right ankle,
appellant was fused at approximately 17 degrees of plantar flexion. On the left, he was fused at
approximately 16 degrees of plantar flexion. Inversion and eversion were neutral. Range of

2

motion in the right and left knees was 5 to 100 and 4 to 102 respectively. Referring to the fifth
edition of the A.M.A., Guides, Dr. Strain opined that appellant had a 17 percent right lower
extremity impairment for ankylosis in the plantar flexion and a 17 percent impairment in the left
lower extremity for ankylosis in the plantar flexion. He opined that the date of maximum
medical improvement was May 1, 2006.
The record contains a report of a new patient consultation dated August 22, 2006 from
Dr. Dan E. Jones, a podiatrist. On examination, Dr. Jones found that range of motion in the left
ankle was 4 to 102 degrees. At the right ankle, appellant was fused at approximately 17 degrees
of plantar flexion. Dr. Jones agreed with Dr. Strain’s July 21, 2006 report, in which he opined
that appellant had a 17 percent impairment of each lower extremity.
By decision dated January 11, 2007, the Office granted appellant a schedule award for an
additional 10 percent impairment of his left lower extremity. The period of the award was from
May 1 through November 18, 2006. The Office found that the date of maximum medical
improvement was May 1, 2006.1
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
Before the A.M.A., Guides can be utilized, a description of appellant’s impairment must
be obtained from his physician. In obtaining medical evidence required for a schedule award,
the evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
1

Following the Office’s January 11, 2007 decision, the Office received additional evidence. The Board may not
consider evidence for the first time on appeal which was not before the Office at the time it issued the final decision
in the case. 20 C.F.R. § 501.2(c). The Board notes that the record does not contain a final decision regarding
appellant’s request for an increased schedule award for his right lower extremity. Therefore, the Board does not
have jurisdiction over the merits of this issue. See 20 C.F.R. § 501.2(c) (the Board has jurisdiction to consider and
decide appeals from final decisions; there shall be no appeal with respect to any interlocutory matter disposed of
during the pendency of the case).
2

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

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

5

See supra note 3.

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disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.6
Proceedings under the Act are not adversarial in nature nor is the Office a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence.7 Once the Office has begun an
investigation of a claim, it must pursue the evidence as far as reasonably possible.8 The Office
has an obligation to see that justice is done.9 The Board has stated that, when the Office selects a
physician for an opinion on causal relationship, it has an obligation to secure, if necessary,
clarification of the physician’s report and to have a proper evaluation made.10 Where the Office
referred appellant for a second opinion physician and the report did not adequately address the
relevant issues, the Office should secure a report on the relevant issues.11
ANALYSIS
The Board finds that the case is not in posture for decision. Further development of the
medical evidence is necessary to determine whether appellant has more than a 39 percent left
lower extremity impairment.
Based upon Dr. Bowers’ May 1, 2006 report, the medical adviser opined that appellant
was entitled to a schedule award for an additional 10 percent impairment of his left lower
extremity. He referred to page 542 of the A.M.A., Guides, which provides that the ankylosis in a
neutral position constitutes a 10 percent impairment of the lower extremity. Noting that the 1996
schedule award was given for impairment to appellant’s left lower extremity due to loss of
motion in the ankle, the medical adviser explained that the present award represented an
additional impairment, as it related to the 2005 triple arthrodesis procedure. The Board notes
that Table 17-2 of the A.M.A., Guides, the Cross-Usage Chart, permits the combination of
impairment ratings for range of motion and ankylosis.12 However, the medical adviser did not
explain the basis for his reliance on the provisions of the A.M.A., Guides contained on page 542,
to the exclusion of all other provisions, to calculate appellant’s impairment due to ankylosis.
Dr. Strain stated that appellant was fused on the left at approximately 16 degrees of
plantar flexion. Referring to the fifth edition of the A.M.A., Guides, he opined that appellant had
a 17 percent impairment in the left lower extremity for ankylosis in the plantar flexion. It
6

Robert B. Rozelle, 44 ECAB 616, 618 (1993).

7

John J. Carlone, 41 ECAB 354, 359-60 (1989).

8

Edward Schoening, 41 ECAB 277, 282 (1989).

9

Lourdes Davila, 45 ECAB 139, 143 (1993).

10

Steven P. Anderson, 51 ECAB 525, 534 (2000).

11

Robert Kirby, 51 ECAB 474, 476 (2000).

12

A.M.A., Guides 526, Table 17-2.

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appears that Dr. Strain was referring to Table 17-24 at page 541 of the A.M.A., Guides, which
addresses ankle impairment due to ankylosis in plantar flexion or dorsiflexion. Pursuant to Table
17-24, a measurement of plantar flexion between 10 and 19 degrees results in a 17 percent
impairment rating.13 However, Dr. Strain did not explain why he relied on Table 17-24 nor has
he or the Office provided an explanation in the record why his opinion differed from that of the
Office medical adviser.14
Due to the noted deficiencies in the medical evidence of record to clearly support the
schedule award approved by the Office, the Board finds that the case requires further
development by the Office to obtain clarification of the medical evidence.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should undertake further development of the record to determine the degree of left lower
extremity impairment.

13

Id. at 541, Table 17-24.

14

The Board notes that Dr. Jones’ August 22, 2006 report does not contain a finding as to the degree of fusion on
appellant’s left side or an explanation as to how he arrived at his impairment rating. Therefore, his report is of
limited probative value.

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ORDER
IT IS HEREBY ORDERED THAT the January 11, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: March 26, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
FEDERAL JUDICIARY, U.S. PROBATION
OFFICE, Tampa, FL, Employer
__________________________________________

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

Docket No. 14-376
Issued: May 15, 2014

Case Submitted on the Record

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

JURISDICTION
On December 4, 2013 appellant filed a timely appeal from a July 18, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant an attendant’s
allowance pursuant to 5 U.S.C. § 8111 and 5 U.S.C. § 8103.
FACTUAL HISTORY
On June 16, 2008 appellant, a 47-year-old probation officer, injured his ribs, right
shoulder, back and neck when the vehicle he was driving was struck by another motor vehicle.
He filed a claim for benefits on June 19, 2008, which OWCP accepted for a fracture of the right
1

5 U.S.C. § 8101 et seq.

humerus. The claim was subsequently accepted for adhesive capsulitis of the right shoulder;
other affections of the right shoulder region not elsewhere classified; and a closed fracture of
fourth posterior rib on the right. Appellant did not return to work.
In a letter to OWCP dated October 29, 2010, appellant indicated that his wife had been
providing personal care for him as an attendant. He was unable to care for himself due to his
June 2008 work injury. Appellant stated that he had been unsuccessfully requesting information
regarding reimbursement or payment by OWCP for his wife’s services. He asked OWCP to
provide him with the necessary documentation to obtain such reimbursement.
By letter dated December 10, 2010, OWCP advised appellant that it required additional
information from him and his treating physician in order to determine whether he was eligible
for payment of an attendant’s allowance. It stated that 20 C.F.R. § 10.314 allowed payment for
services of an attendant where medical documentation supported that he required assistance to
care for basic personal care needs. OWCP advised that there was no provision for payment of
tasks, such as cooking, laundry, housekeeping, shopping or yard work. On review of the medical
records, it did not appear that appellant was unable to drive or to care for himself the majority of
the time. Further, if such services were approved, payment for such services was limited to
$1,500.00 per month by regulation. OWCP advised that such services must be rendered by a
home health aide, licensed practical nurse or similarly trained individual. It attached a form for
appellant’s treating physician to complete and address the necessity for an attendant.
In a December 22, 2010 letter, appellant requested reimbursement for the services of a
personal attendant, his wife, for various periods from June 16, 2008 to September 27, 2010. He
contended that he could not perform the basic activities of daily living as a result of the
June 2008 work injury. Appellant stated that his injuries and the subsequent treatment rendered
him incapable of driving or getting in and out of his car without his wife’s assistance. He
asserted that he was unable to go to the bathroom, bathe, shave, prepare meals, take medication,
dress himself or perform other aspects of personal hygiene without his wife’s assistance.
Appellant stated that his wife was qualified to serve as an attendant because she had served as a
candy striper at a hospital, volunteered in the geriatric unit at a local hospital, volunteered with
the Red Cross and was a child care teacher’s assistant. His wife’s educational experience
included being a nursing major at Georgia College & State University, nursing pharmacology
and a semester of nursing practicum at a local convalescence facility. Appellant stated that his
wife held an associate degree in education, a B.S. in human services with a concentration in
counseling and victim services. He noted that she had begun coursework in pursuit of her
master’s degree in social work.
By letter dated April 12, 2011, Dr. Mark E. Farmer advised OWCP that he had initially
declined to complete the reimbursement form because appellant did not need any current home
care. After speaking with appellant, such care was needed at the time he underwent surgery in
2008 and for the immediate aftermath of the surgery; although this was not consistent with the
dates indicated on the form. Dr. Farmer asked OWCP to send another form so that he could
complete and submit it with the proper dates supporting the necessity for an attendant.
By decision dated September 1, 2011, OWCP denied appellant’s request for an
attendant’s allowance for the period June 16, 2008 to September 27, 2010 under sections 8103

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and 8111. Although the records he submitted indicated that his wife drove him to and from
medical appointments, this did not meet the statutory criteria for having her reimbursed as an
attendant. While appellant’s wife submitted extensive transcripts and school records, which
purported to show that she had a medical background and training; she failed to establish that she
was certified or had a business license as required to be paid as a qualified attendant. It also
determined that she failed to submit any actual work history in the field.
On February 10, 2012 appellant requested reconsideration of the September 1, 2011
decision.
On November 14, 2011 Dr. Farmer completed the reimbursement form. He had most
recently examined appellant on April 27, 2010 and found a limited range of motion in the right
shoulder with mild tenderness. When asked to explain why appellant’s condition warranted the
services of an attendant, Dr. Farmer stated that, as of July 11, 2008, the date he performed right
shoulder surgery and for the postsurgery period, appellant was unable to use his right arm as
expected. This necessitated additional surgery, which was performed on April 20, 2010.
Appellant was again unable to use his right arm. Dr. Farmer stated that appellant required the
services of an attendant as of July 7, 2008, the date of the initial consultation and preoperative
period of July 11, 2008 to April 19, 2010, a period of 21 months. From April 10 to June 7, 2010,
the second preoperative period which lasted eight weeks, appellant also required an attendant.
Dr. Farmer stated that the actual duties of appellant’s wife, his attendant, included basic nursing
duties, assisting with activities of daily living, dressing, grooming, personal hygiene,
transferring, providing physical therapy due to surgery, providing assistance due to precautions
required by taking prescription narcotics and driving appellant to and from the hospital and
physical therapy appointments.
By decision dated April 9, 2012, OWCP denied modification of the September 1, 2011
decision. It found that appellant did not submit sufficient medical evidence to establish that the
service of an attendant was necessary constantly within the meaning of section 8111 or factual
evidence that the attendant providing these services had the requisite qualifications. OWCP
found that Dr. Farmer’s November 14, 2011 report did not adequately demonstrate that appellant
required the services of an attendant on a constant basis in accordance with the statutory criteria.
Further, it found that appellant’s wife did not establish that she met the criteria for having the
medical or vocational background to be considered as a home health aide, licensed practical
nurse or similarly trained individual.
By letter dated March 31, 2013, appellant requested reconsideration. He submitted
literature regarding nursing programs at John Hopkins University, Valdosta State University and
Georgia College.
By decision dated July 18, 2013, OWCP denied modification of the April 9, 2012
decision.
LEGAL PRECEDENT
FECA provides for an attendant’s allowance under section 8111(a). OWCP may pay an
employee who has been awarded compensation an additional sum of not more than $1,500.00 a

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month when it finds “that the service of an attendant is necessary constantly because the
employee is totally blind or has lost the use of both hands or both feet or is paralyzed and unable
to walk or because of other disability resulting from injury making him [or her] so helpless as to
require constant attendance.”2
According to 20 C.F.R. § 10.314, in the exercise of discretion afforded by 5 U.S.C.
§ 8111, the cost of providing attendant’s services will be paid by OWCP under 5 U.S.C. § 8103,
for personal care services that have been determined to be medically necessary and are provided
by a home health aide, licensed practical nurse or similarly trained individual. 5 U.S.C.
§ 8103(a) provides for the furnishing of services, appliances and supplies prescribed or
recommended by a qualified physician which OWCP, under authority delegated by the
Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or aid
in lessening the amount of monthly compensation.3 In interpreting section 8103(a), the Board
has recognized that OWCP has broad discretion in approving services provided under FECA to
ensure that an employee recovers from his or her injury to the fullest extent possible in the
shortest amount of time.4 OWCP has administrative discretion in choosing the means to achieve
this goal and the only limitation on its authority is that of reasonableness.5
The Board has held that OWCP may pay an attendant’s allowance upon a finding that a
claimant has established the need of constant care. The claimant is not required to need aroundthe-clock care, he or she has only to have a continually recurring need for assistance in personal
matters. The attendant’s allowance, however, is not intended to pay an attendant for
performance of domestic and housekeeping chores such as cooking, cleaning, doing the laundry
or providing transportation services. It is intended to pay an attendant for assisting a claimant in
his personal needs such as dressing, bathing or using the toilet.6
A claimant bears the burden of proof to establish by competent medical evidence that he
or she requires attendant care within the meaning of FECA.7 An attendant’s allowance is not
granted simply upon the request of a disabled employee or upon the request of his or her
physicians. The need for attendant care must be established by rationalized medical opinion
evidence.8

2

5 U.S.C. § 8111(a).

3

Id. at § 8103(a).

4

Dale E. Jones, 48 ECAB 648, 649 (1997).

5

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
6

Nowling D. Ward, 50 ECAB 496 (1999).

7

Bonnie M. Schreiber, 46 ECAB 989 (1995).

8

Id.

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ANALYSIS
OWCP accepted appellant’s claim for fracture of the right humerus, adhesive capsulitis
of right shoulder; other affections of shoulder region not elsewhere classified, right; and closed
fracture of fourth posterior rib on the right. Appellant asserted that he was entitled to
reimbursement for the services of a personal attendant, his wife, from June 16, 2008 to
September 27, 2010, due to the fact that he could not perform the basic activities of daily living
as a result of his June 2008 work injury.
In an April 12, 2011 letter, Dr. Farmer noted that he initially declined appellant’s request
to support the claim for reimbursement for an attendant’s allowance because he did not believe
that appellant required any home care. He reconsidered the matter after appellant told him that
he needed such care at the time he underwent surgery in 2008 and for the immediate aftermath of
said surgery.
Dr. Farmer subsequently submitted an attendant’s allowance form on
November 14, 2011. As of April 27, 2010, the date of his most recent examination, appellant’s
condition warranted the services of an attendant from July 11, 2008 through June 7, 2010
because he was unable to use his right arm as expected following right shoulder surgery.
Dr. Farmer described the duties of appellant’s wife as an attendant, which included basic nursing
duties, assisting with activities of daily living, dressing, grooming, personal hygiene,
transferring, providing physical therapy due to surgery, providing assistance due to precautions
required by taking prescription narcotics and driving appellant to and from the hospital and
physical therapy appointments. He did not provide any additional explanation or detail.
Dr. Farmer did not discuss appellant’s condition in the weeks following surgery or support why
he was so helpless that he needed constant, recurring assistance for such personal needs as
dressing, bathing or going to the bathroom in accordance with the statutory criteria. He did not
adequately address why such personal care was required for a period of almost two years.
The Board finds that the medical evidence is not sufficient to establish that attendant’s
services were medically necessary. Based on the probative medical evidence of record, OWCP
did not abuse its discretion by denying appellant’s claim for an attendant’s allowance.
Appellant has submitted letters which generally described his wife’s duties as an
attendant and her purported qualifications to serve as such. OWCP properly found that the
evidence was not sufficient to meet the requisite statutory requirements outlined above. In
M.C.,9 the Board found that having provided service to the elderly or treating elderly parents did
not establish that the employee’s sister, housemate or his family were experienced professionals
or trained as home health aides or a licensed practical nurse. While the housemate’s wife was a
medic in the Israeli Army, the Board also found that there was no evidence of record to establish
any training similar to a home health aide or a licensed practical nurse. In this case, appellant
contended that his wife had nursing training. He failed to submit sufficient evidence to establish
that his wife’s training was equivalent to that of a home health aide or a licensed practical nurse.
The Board has reviewed the evidence of record and finds, for the reasons stated, that
OWCP did not abuse its discretion by denying appellant’s request for an attendant’s allowance.
9

Docket No. 09-2314 (issued August 20, 2010).

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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 did not abuse its discretion by denying appellant’s request
for an attendant’s allowance.
ORDER
IT IS HEREBY ORDERED THAT the July 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, 99TH
MEDICAL GROUP, NELLIS AIR FORCE
BASE, NV, Employer
__________________________________________

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

Docket No. 21-1165
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On July 19, 2021 appellant filed a timely appeal from a February 11, 2021 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 27, 2020, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 2

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 of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2015 appellant, then a 63-year-old nurse educator, filed an occupational
disease claim (Form CA-2) alleging that she sustained an aggravation of her degenerative disc
disease due to constant sitting, staring at a computer screen, and inputting data while in the
performance of duty.
In a July 22, 2014 report, Dr. Shirley Rodriguez, an osteopath, recounted appellant’s
complaints of mid-thoracic, left-sided pain medial to the scapular area. She reported physical
examination findings of abnormal edema bilaterally in appellant’s extremities. Dr Rodriguez
assessed hypertension, osteoarthritis, gastroesophageal reflux disease, thoracic region strain, and
venous insufficiency.
In an October 28, 2014 report, Dr. Wesley Johnson, a Board-certified orthopedic surgeon,
recounted that appellant had worked for the employing establishment for a number of years and
complained of chronic pain issues in her neck and back. On physical examination, he noted
tenderness and mild swelling in her left wrist and some tenderness over the tuberosity of her right
shoulder. Dr. Johnson indicated that appellant had a chronic condition that may have been
exacerbated through her primary care.
Appellant resigned from the employing establishment, effective March 13, 2015.
In a letter dated May 12, 2015, the employing establishment controverted appellant’s claim
alleging that she had not submitted medical evidence of the alleged injury. It also noted that she
had previous fall injuries in 2013 and 2014.
In statements dated October 22, 2014 and May 2, 2015, appellant explained that she was
diagnosed with degenerative disc disease before she began working for the employing
establishment in 2012. She reported that she was exposed to constant sitting, staring at screens,
and inputting data at work and experienced painful, cramping hands, eye strain, headaches, and
back pain.
By decision dated June 16, 2015, OWCP denied appellant’s occupational disease claim,
finding that she had not established that her diagnosed thoracic and lumbar spine conditions were
causally related to the accepted factors of her federal employment.

3

Docket No. 18-1280 (issued March 12, 2019).

2

On June 29, 2015 appellant requested reconsideration.
In reports dated November 6, 2014 through April 20, 2015, Dr. Rodriguez provided
examination findings and assessed right shoulder pain, cervicalgia, degenerative joint disease,
osteoarthritis, thoracic strain, cervical strain, tenosynovitis of the thumb, and right shoulder
supraspinatus tendon tear.
In a June 12, 2015 attending physician’s report (Form CA-20), Dr. Rodriguez noted
appellant’s history of lumbar degenerative joint disease and diagnosed supraspinatus tendon tear
and degeneration of the cervical, thoracic and lumbar spine. She checked a box marked “Yes”
indicating that the diagnosed conditions were caused or aggravated by appellant’s employment
and explained that appellant worked at a desk job, which placed a strain on her spine, shoulders,
and wrist.
By decision dated September 25, 2015, OWCP denied modification of the June 16, 2015
decision.
On November 20, 2015 appellant requested reconsideration.
Appellant submitted reports dated July 16 through October 29, 2015 from Dr. John M.
Baldauf, a Board-certified orthopedic surgeon, who indicated that he treated her for complaints of
right shoulder pain after a slip and fall injury approximately seven months prior. On initial
examination of the right shoulder, Dr. Baldauf observed positive Neer and Hawkins signs and no
pain or swelling. He diagnosed shoulder impingement syndrome, bilateral shoulder tendinitis, and
bilateral shoulder joint pain.
By decision dated February 9, 2016, OWCP denied modification of the September 25,
2015 decision.
On March 21, 2016 appellant requested reconsideration.
In a May 11, 2016 statement, appellant indicated that she continued to be in pain on a level
of 7 to 10 on most days. She alleged that it was common for a person with mild-to-moderate
degenerative joint disease that was previously not problematic to experience a major exacerbation
of her condition from a sedentary job and a hard fall onto cement.
By decision dated June 17, 2016, OWCP denied modification of the February 9, 2016
decision.
On September 7, 2016 appellant requested reconsideration. She contended that she had
submitted all required medical documents from her physicians. Appellant asserted that her federal
employment temporarily aggravated her preexisting degenerative joint condition and that the
October 2014 fall made the aggravation permanent.
In a February 22, 2016 report, Dr. Archie C. Perry, a Board-certified orthopedic surgeon,
indicated that he treated appellant for complaints of low back pain radiating into her bilateral legs.
He discussed her diagnostic reports and provided examination findings. Dr. Perry diagnosed
lumbar degenerative disc disease, lumbar spinal stenosis, and acquired lumbar spondylolisthesis .

3

In March 16 and 30, 2016 reports, Dr. Baldauf discussed appellant’s history of injury and
provided physical examination findings. He diagnosed right hip joint pain, lumbosacral
degenerative disc disease with radiculopathy, lumbar spinal stenosis, acquired lumbar
spondylolisthesis, and lumbago.
In an April 27, 2016 report, Dr. Willis Y. Wu, Board-certified in anesthesiology and pain
medicine, noted lumbar examination findings of mildly limited range of motion and tenderness in
the lumbosacral junction. He diagnosed lumbar intervertebral disc degeneration, lumbar
radiculopathy, lumbar spondylosis without myelopathy, and hip osteoarthritis. Dr. Wu continued
to treat appellant and provided medical reports dated May 13 and June 23, 2016.
By decision dated April 20, 2018, OWCP denied modification of the June 17, 2016
decision.
Appellant appealed to the Board. By decision dated March 12, 2019, the Board affirmed
OWCP’s April 20, 2018 decision, finding that she had not met her burden of proof to establish
causal relationship between her diagnosed medical conditions and accepted factors of her federal
employment.
On October 7, 2019 appellant requested reconsideration. She submitted various articles
about injuries that result from sitting for long periods of time.
By decision dated May 27, 2020, OWCP denied modification.
On January 22, 2021 appellant requested reconsideration. She indicated that she continued
to have pain and suffering due to sitting for six hours a day on a poorly prepared workstation.
Appellant explained that she was diagnosed with degenerative joint disease in 2000, but her
condition was not problematic until she started to work for the employing establishment. She
asserted that her sedentary job duties temporarily aggravated her degenerative joint disease and
her fall in October 2014 permanently aggravated her condition.
By decision dated February 11, 2021, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

4

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must be received by OWCP within one y ear of the date of
OWCP’s decision for which review is sought. 6 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 7 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With her January 22, 2021 request for reconsideration, appellant submitted a statement
alleging that she did not experience problems with her degenerative joint disease until she began
to work for the employing establishment. She asserted that her sedentary job duties temporarily
aggravated her degenerative joint disease and her fall in October 2014 permanently aggravated her
condition. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor does it show that OWCP erroneously applied or interpreted a specific
point of law. Her argument is substantially similar to that which was previously considered and
discussed in OWCP’s April 20, 2018 decision. 9 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 10

5

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
6

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
7

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

8

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

9

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).
10

20 C.F.R. § 10.606(b)(3)(i) and (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No.
18-1697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).

5

Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 11 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).12
As appellant has not met any of the regulatory requirements under 20 C.F.R.
§ 10.606(b)(3), pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.13
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 11, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

12

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
13

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, SOUTHERN
MARYLAND BULK MAIL CENTER,
Capital Heights, MD, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-985
Issued: December 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 11, 2011 appellant, through his attorney, timely appealed the March 3, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP), which granted a
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has greater than seven percent impairment of each lower
extremity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 61-year-old mail handler, has an accepted claim for cervical radiculitis and
herniated disc, which arose on or about December 27, 1989.2 On April 11, 1990 he underwent
an anterior cervical discectomy with fusion at C4-5. Appellant underwent a similar procedure at
C3-4 on December 3, 2003. He filed a claim for a schedule award (Form CA-7) on May 29,
2009, which OWCP denied by decision dated May 19, 2010.
Counsel subsequently filed a request for reconsideration. Dr. Donald Saltzman, a Boardcertified orthopedic surgeon, examined appellant on November 1, 2010 and diagnosed status post
C3-4 and C4-5 anterior cervical fusion with myelopathy. He found 12 percent impairment of the
upper extremities due to mild sensory and motor deficits at the C5-6 level. As to the lower
extremity, Dr. Saltzman found 15 percent impairment bilaterally due to movement and gait
disorders.3
In a report dated December 10, 2010, Dr. Martin Fritzhand, a Board-certified urologist,
advised that the effects of appellant’s cervical myelopathy on his lower extremities could be
translated to a L4 nerve root impairment, which corresponded to two percent impairment of the
left lower extremity and seven percent impairment of the right lower extremity based on mild
motor and sensory deficits. He also found that appellant had a neurogenic bladder based on his
cervical myelopathy, which represented an additional six percent impairment of each lower
extremity, assuming OWCP recognized such impairment.
In a report dated February 7, 2011, the district medical adviser (DMA),
Dr. Christopher R. Brigham, Board-certified in occupational medicine, found seven percent
impairment of both lower extremities based on station and gait disorders.4
In a decision dated March 3, 2011, OWCP granted a schedule award for seven percent
impairment of each lower extremity in accordance with the DMA’s findings.5
LEGAL PRECEDENT
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.6 FECA,
2

The Board notes that the January 20, 2011 statement of accepted facts incorrectly identified “Lumbar Herniated
Disc” as an accepted condition.
3

Dr. Saltzman apportioned 10 percent impairment to appellant’s cervical condition and 5 percent to lumbar
degenerative changes at L5-S1.
4

Dr. Brigham did not specifically address whether appellant had upper extremity impairment as noted by
Dr. Saltzman.
5

The award was pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2008). OWCP also issued a separate March 3, 2011 decision vacating its May 19, 2010
schedule award decision.
6

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

2

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. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.7 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).8
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or the implementing regulations.9 Neither FECA nor the regulations provide
for the payment of a schedule award for the permanent loss of use of the back/spine or the body
as a whole.10
FECA provides that if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.11 For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.”12 The DMA, acting on behalf of OWCP, may
create a conflict in medical opinion.13
ANALYSIS
The sixth edition of the A.M.A., Guides (2008) provides a specific methodology for
rating spinal nerve extremity impairment.14 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the
spine.15 The impairment is premised on evidence of radiculopathy affecting the upper and/or
lower extremities.16 Dr. Saltzman applied this methodology with respect to the upper extremities
and Dr. Fritzhand applied the same methodology with respect to the lower extremities.
However, Dr. Saltzman and Dr. Brigham, the DMAs applied a different methodology -- station
and gait disorders -- with respect to the lower extremities. OWCP awarded benefits based on
7

20 C.F.R. § 10.404 (2011).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Id. at Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(January 2010).
9

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Id. at § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

12

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

13

20 C.F.R. §10.321(b).

14

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
15

Id.

16

Id.

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Dr. Brigham’s finding of a bilateral lower extremity station and gait disorder. Neither the DMA
nor the senior claims examiner offered an explanation why the station and gait disorder
impairment rating pursuant to Table 13-12, A.M.A., Guides 336 (6th ed. 2008) was the
appropriate measure of appellant’s lower extremity impairment under FECA.
The Board finds that the case is not in posture for decision due to an unresolved conflict
in medical opinion. The DMA disagreed with appellant’s physicians, Dr. Fritzhand and
Dr. Saltzman.17 He, acting on behalf of OWCP, may create a conflict in medical opinion.18 For
a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.19 The Board finds the reports of Dr. Brigham, Dr. Fritzhand and Dr. Saltzman of
virtually equal weight and rationale. Because there is an unresolved conflict in medical opinion,
the case will be remanded to OWCP for referral to an impartial medical examiner. On remand,
OWCP should also address whether appellant has an employment-related impairment of the
upper extremities as noted by Dr. Saltzman. After such further development of the case record
as OWCP deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that the case is not in posture for decision.

17

Counsel questioned whether the DMA authored the February 4, 2011 report which bears his signature.
However, he has not submitted evidence to support his contention that the impairment rating was prepared by
someone other than the DMA.
18

20 C.F.R. §10.321(b).

19

Darlene R. Kennedy, supra note 12.

4

ORDER
IT IS HEREBY ORDERED THAT the March 3, 2011 decisions of the Office of
Workers’ Compensation Programs are set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: December 19, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 11-1394
Issued: February 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On May 25, 2011 appellant filed a timely appeal from the May 3, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied increased schedule
awards. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to additional schedule awards for increased
impairment to his upper extremities.
FACTUAL HISTORY
On April 15, 2000 appellant, a 41-year-old mail carrier, filed an occupational disease
claim alleging that the duties of his position, including sorting and delivering mail, caused an
injury in the performance of duty. OWCP accepted his claim for bilateral tennis elbow, bilateral
(wrist) tendinitis and bilateral carpal tunnel syndrome. By decision dated October 2, 2008, it
1

5 U.S.C. § 8101 et seq.

granted appellant schedule awards for 23 percent impairment of each upper extremity. An
OWCP hearing representative affirmed this on March 10, 2009. On July 14, 2009 OWCP
vacated its prior decisions and granted schedule awards for a 25 percent impairment of each
upper extremity.
Appellant filed a claim for an increased award. Dr. Michael E. Batipps, the attending
clinical Board-certified neurologist, offered an impairment rating of nine percent for each upper
extremity due to combined impairments from epicondylitis, wrist tenosynovitis and carpal tunnel
syndrome.
An OWCP medical consultant reviewed Dr. Batipps’ impairment evaluation and
determined that appellant had no more than a three percent impairment of each upper extremity.
In a May 3, 2001 decision, OWCP denied appellant’s claim for an increased schedule
award.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.2 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.3
The burden is upon the employee to establish by evidence that he is entitled to
compensation.4
ANALYSIS
Appellant has the burden to establish that he is entitled to an increased schedule award.
He previously received schedule awards for a 25 percent impairment of each upper extremity.
To meet his burden, appellant must submit an impairment evaluation establishing more than a 25
percent impairment of either upper extremity due to his accepted employment injury.
Appellant has not submitted that evidence. Instead, he submitted an impairment
evaluation from Dr. Batipps showing that he has only a nine percent impairment of each upper
extremity. Dr. Batipps combined impairments from three separate diagnoses. In most cases only
one diagnosis will be appropriate for rating impairment. If a patient has two significant
diagnoses, for instance, rotator cuff tear and biceps tendinitis, the examiner should use the

2

Id. at § 8107.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
4

Harold Hendrix, 1 ECAB 54 (1947).

2

diagnosis with the highest causally-related impairment rating for the impairment calculation.5
This will generally be the more specific diagnosis. Selection of the optimal diagnosis requires
judgment and experience. Typically, one diagnosis will adequately characterize the impairment
and its impact on activities of daily living.6
If a nonkey factor or grade modifier (functional history, physical examination or clinical
study) was used for primary placement in the regional grids, as, for example, x-ray findings in
the case of carpal instability, that same specific finding may not be used again to determine the
grade modifier.7
Appendix 15-B, page 487 of the A.M.A., Guides, provides the criteria for
electrodiagnostic evaluation of entrapment neuropathies. A study result may be considered
abnormal for treatment purposes, but for impairment rating purposes, electrodiagnostic studies
that do not meet the specified criteria are considered normal, and the individual is ether placed in
grade 0 by test findings, and has no impairment or is rated as applicable according to diagnosisbased impairment.8
Even if OWCP were to accept Dr. Batipps’ rating it does not support appellant’s claim
for an increased award. Indeed, it tends to show that the impairment of his upper extremities is
significantly less than the 25 percent for which he has received compensation. Appellant cannot
meet his burden with such evidence. Accordingly, the Board will affirm OWCP’s May 3, 2011
decision denying his claim for an increased schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he is entitled to
increased schedule awards for additional impairment to his upper extremities.

5

A.M.A., Guides 387 (6th ed. 2009).

6

Id. at 389.

7

Id. at 405.

8

Id. at 449; see id. at 438 (Table 15-21, Peripheral Nerve Impairment due to median nerve deficit below the midforearm) and 425 (Table 15-14, Sensory and Motor Severity).

3

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 24, 2012
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VIRGINIA MEDICAL CENTER, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 10-144
Issued: July 27, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 21, 2009 appellant, through his representative, filed a timely appeal of
June 12 and September 25, 2009 decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
bilateral carpal tunnel syndrome causally related to factors of his employment.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated March 19, 2008, the
Board affirmed an August 24, 2007 Office decision that denied appellant’s claim for bilateral
carpal tunnel syndrome. By decision dated December 20, 2006, the Board affirmed an August 4,
2006 Office decision denying his claim. In a March 15, 2006 decision, the Board affirmed

October 21 and August 5, 2005 Office decisions also denying appellant’s claim. The facts of this
case, as set forth in the prior decisions, are incorporated herein by reference.1
On May 25, 2005 appellant, then a 42-year-old medical technologist, filed an
occupational disease claim alleging that he sustained injury to his hands caused by repetitive
tasks. His duties included entering data into a computer, opening bottles, setting up specimens
and reading culture plates. These tasks involved wrist bending and other stressful hand postures.
Appellant moved a 75-pound gas tank three times a week. He performed these tasks for 11 years
at the employing establishment. Because the staff of medical technologists had been reduced,
appellant experienced increased use of his hands.
A July 3, 2008 disability certificate from Dr. Dale M. Henselmeier advised that appellant
was disabled from July 3 to 6, 2008. No cause for the disability was discussed.
In a June 16, 2009 report, Dr. S. Vic Glogovac, an attending hand surgeon, stated that he
first evaluated appellant on June 13, 2005 for nocturnal paresthesia with numbness involving
both hands. The Phalen’s test for carpal tunnel syndrome was positive. Two-point
discrimination was abnormal. Appellant provided a history that, beginning at work in 2004, he
noticed his hands becoming numb and clumsy. He underwent surgical decompression in both
hands which revealed significant flattening of the median nerve. Appellant’s hand symptoms
improved following surgery. The diagnosis was bilateral carpal tunnel syndrome status post
surgical decompression. Dr. Glogovac noted that there were 10 employees working in the
laboratory in 1993. The number was reduced to three and appellant’s workload increased
significantly. Appellant used his hands frequently and moved gas tanks weighing more than 75
pounds three times a week. He used his hands in a repetitive grasping motion for 14 years in his
job before developing carpal tunnel syndrome. Appellant’s hand numbness and tingling work at
work caused him to seek medical treatment. Dr. Glogovac opined that appellant’s work situation
was the significant aggravating factor that led to his bilateral carpal tunnel syndrome.
By decisions dated June 12 and September 25, 2009, the Office denied appellant’s claim
on the grounds that the medical evidence did not establish that his bilateral carpal tunnel
syndrome was caused or aggravated by his employment.2
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
1

See Docket No. 07-2326 (issued March 19, 2008); Docket No. 06-1999 (issued December 20, 2006); Docket
No. 06-328 (issued March 15, 2006).
2

Subsequent to the September 25, 2009 Office decision, additional evidence was submitted to the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.

2

evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.3 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes, a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment, nor his belief that his condition was aggravated by his employment, is sufficient to
establish causal relationship.5
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained bilateral carpal tunnel syndrome causally related to factors of his employment.
Dr. Glogovac first evaluated appellant on June 13, 2005 for nocturnal paresthesia with
numbness involving both hands. The Phalen’s test for carpal tunnel syndrome was positive.
Two-point discrimination was abnormal. Appellant provided a history that, beginning at work in
2004, he noticed his hands becoming numb and clumsy. He underwent surgical decompression
in both hands which revealed significant flattening of the median nerve. Dr. Glogovac noted that
appellant’s workload increased significantly when the 10 employees working in the laboratory
were reduced to three. Appellant used his hands repetitively and moved gas tanks weighing
more than 75 pounds three times a week. Dr. Glogovac opined that appellant’s work situation
was the significant aggravating factor that led to the development of his bilateral carpal tunnel
syndrome, but he did not provide a well-rationalized opinion on the causal relationship between
the specific work factors and appellant’s bilateral carpal tunnel syndrome.
Dr. Glogovac identified only one specific work factor, moving gas tanks. He noted
appellant’s repetitive hand use, but did not describe the specific nature of the repetitive work
duties involved. Medical reports not containing adequate rationale on causal relationship are of
diminished probative value and are insufficient to meet an employee’s burden of proof.6
Dr. Glogovac’s opinion on causal relationship is not based on a complete and accurate factual
background. He stated that appellant’s work increased significantly when the laboratory staff
was reduced Dr. Glogovac did not identify specific work duties which allegedly increased.
3

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

D.I., 59 ECAB __ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

6

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

3

However, appellant’s supervisor had advised that the number of tests performed was reduced
from 50,000 a year to 20,000 or 30,000 when the staffing level decreased. Dr. Glogovac noted
that appellant moved gas tanks weighing more than 75 pounds three times a week, but appellant
supervisor had advised that gas tanks were moved only twice a week and appellant had not
performed this task in some time. Lacking a complete and accurate factual background and
sufficient medical rationale, Dr. Glogovac’s opinion on causal relationship is of diminished
probative value. Therefore, his report is not sufficient to establish that appellant’s bilateral
carpal tunnel syndrome was causally related to his employment.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that his
bilateral carpal tunnel syndrome is causally related to factors of his employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 25 and June 12, 2009 are affirmed.
Issued: July 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4

Groom, M. Alternate Judge, concurring:
I concur in the finding of the majority that Dr. Glogovac did not provide sufficient
medical opinion to establish that appellant’s carpal tunnel syndrome condition was caused or
contributed to by his federal employment as medical technologist. The reports of record
provided by the physician are largely one page statements that do not provide a detailed history
of appellant’s medical condition, treatment, tests on examination or diagnostic studies.
The decisions of the Board have also critiqued the physician’s opinion on causal relation
with regard to his description of appellant’s work activities and repetitive duties. Here,
Dr. Glogovac is at a disadvantage. The Office has never prepared a statement of accepted facts
delineating the nature or extent of the repetitive duties performed by appellant in his federal
employment. There is no framework provided the physician on which to base his opinion
regarding causal relation.1
Appellant provided the Office with a description of those duties to which he attributes his
medical condition.
The Office requested additional information from the employing
establishment as to the frequency and length of time spent on certain activities during the
workday. On June 27, 2005 appellant’s supervisor noted that 90 percent of his work duties
involved use of the hands and wrists and that staff reductions had reduced the standard employee
breaks. On July 27, 2007 another supervisor disputed appellant’s description of his work duties
stating that she had not personally observed him moving gas cylinder tanks. She acknowledged,
however, that seven employees performed 20,000 to 30,000 tests a year. Previously, 10
employees performed approximately 50,000 tests a year. Having gathered information from the
employer, it is incumbent on the Office to determine the facts in evidence as they pertain to the
duties performed by appellant in his employment and the period of his exposure to such
activities.2

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

1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.809.2(b)
(September 2007).
2

Id. at Chapter 2.809.3. While the employee has the burden of proof to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence and must do so in a fair manner. See Melvin James,
55 ECAB 406 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
D.B., Appellant

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

Docket No. 17-0515
Issued: June 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 9, 2017 appellant filed a timely appeal from a July 27, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment due to her accepted employment injuries, warranting a schedule award.
On appeal appellant asserts that she is permanently disfigured due to the accepted
conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a claim adjudicated under OWCP File No. xxxxxx735, on July 13, 2006 appellant,
then a 42-year-old aircraft sheet-metal mechanic, filed a traumatic injury claim (Form CA-1)
alleging that her job duties of pulling and climbing stairs caused three incisional hernias. OWCP
accepted ventral hernia with gangrene.
On January 3, 2011 appellant filed an occupational disease claim (Form CA-2)
adjudicated under File No. xxxxxx295, alleging that her daily job duties aggravated a recurrent
ventral hernia. Following an initial denial of the claim on March 15, 2011, by decision dated
May 9, 2011, OWCP accepted an additional condition of incisional hernia without obstruction or
gangrene. It expanded the accepted conditions to also include scar conditions and fibrosis of
skin, accepted on October 12, 2012; cellulitis of trunk and nontraumatic compartment syndrome
of abdomen, accepted on January 4, 2013; postoperative peritoneal adhesions, intestinal abscess,
and incisional hernia with obstruction, accepted on June 10, 2013. OWCP also authorized a
hernia repair performed on February 6, 2013.
On February 6, 2013 Dr. Carlos Egas, a Board-certified surgeon, repaired a large
recurrent incarcerated incisional hernia.2 Appellant stopped work that day. OWCP paid her
wage-loss compensation. Appellant then returned to modified duty on April 15, 2013.
On November 26, 2013 appellant filed a schedule award claim (Form CA-7). In support
she submitted an October 21, 2013 report in which Dr. J. Arden Blough, an attending family
physician, described appellant’s medical and surgical history and reviewed medical records. He
noted her complaint of abdominal pain exacerbated with any lifting. Dr. Blough’s physical
examination demonstrated an obviously asymmetrical abdomen with swelling located above the
umbilicus in the midline. There was an approximately eight centimeter (cm) tissue defect near
the umbilicus which was tender and palpable and was only partially reducible, and an 18 cm
vertical scar over the midline of the abdomen involving the umbilicus. Dr. Blough advised that,
in accordance with Table 6-10, Criteria for Rating Impairment Due to Herniation, of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),3 appellant had 20 percent class 3 whole person
impairment due to the employment-related hernia.
OWCP referred the record to Dr. Ronald Blum, an OWCP medical adviser and a Boardcertified orthopedic surgeon, for an impairment rating. In a December 12, 2013 report, Dr. Blum
noted his review of the record, including Dr. Blough’s report. He advised that, while
Dr. Blough’s recommendation seemed correct, a schedule award for abdominal wall and whole
person impairment were precluded by OWCP regulations. Therefore, Dr. Blough could not
recommend impairment in this case.

2

Appellant previously had surgical repair of multiple incisional hernias on May 24, 2006, laparoscopic pelvic
adhesiolysis on October 1, 2009, and repair of multiple recurrent abdominal wall hernias on December 9, 2009.
3

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

2

In correspondence dated January 13, 2014, OWCP informed appellant that, based on the
opinion of its medical adviser, her schedule award claim was not payable at the present. A copy
of Dr. Blum’s report was attached.
Appellant submitted an April 29, 2014 report from Dr. Donald E. Adams, a Boardcertified physiatrist. Dr. Adams noted that appellant had an extensive medical and surgical
history regarding work-related hernias, and that she had a current complaint of abdominal pain
and discomfort with prolonged standing. He advised that she reported some difficulty with
activities of daily living and in self-care. Dr. Adams provided physical examination findings
noting that the abdomen was asymmetric with a large scar extending from the epigastric region
down to the suprapubic region, and multiple laparoscopic incisions and an approximately
grapefruit sized ventral hernia that was reducible. He noted the accepted conditions and advised
that, in accordance with Table 6-10 of the sixth edition of the A.M.A., Guides, appellant had
class 3 or 16 percent whole person impairment due to severe signs and symptoms interfering
with activities of daily living and a reducible protrusion defect.
Dr. Blum again reviewed the record, including Dr. Adams’ report. He advised that, while
Dr. Adams’ evaluation appeared correct, a schedule award for the abdominal wall and whole
person were precluded by OWCP regulations and, therefore, he could not recommend
impairment in this case.
By decision dated July 28, 2014, and after a reconsideration request, of an August 4,
2014 decision, OWCP denied appellant’s claim for a schedule award. In each decision it noted
that the medical evidence submitted failed to support permanent impairment of a member or
function of the body covered under section 8107 of FECA or section 10.404 of OWCP
regulations.
Appellant requested reconsideration on November 18, 2014. She described her surgical
history and maintained that she still had daily pain and needed pain medication.4
In a merit decision dated May 12, 2015, OWCP denied modification of the prior decision.
It noted that both Dr. Blough and Dr. Adams based their impairment findings on the whole
person and the abdominal wall. OWCP again explained that the abdominal wall was not a
scheduled member and whole person impairment was precluded under FECA.
Appellant again requested reconsideration on February 2, 2016.
In a merit decision dated March 16, 2016, OWCP denied modification of its prior
decisions, noting that appellant had not submitted any medical evidence that supported
permanent loss or loss of use to a member or function of the body listed in section 8107 of FECA
or section 10.404 of OWCP regulations.

4

Dr. Blough submitted additional progress notes. He did not provide an impairment evaluation. On
November 25, 2014 Dr. Blough contended that appellant’s work-related condition caused consequential depression
and anxiety. Dr. Egas also submitted follow-up reports but did not provide an impairment evaluation.

3

Appellant again requested reconsideration on July 12, 2016. She submitted a June 28,
2016 impairment rating in which Dr. Adams noted that abdominal examination showed small
incisions consistent with laparoscopy, a large, curving scar that extended for 25 cm, and a
softball-sized hernia in the hypogastric region. Dr. Adams indicated that Table 8-3 of the
A.M.A., Guides, directed that scars should be evaluated under Table 8-2 for rating permanent
impairment due to skin disorders. He advised that, under Table 8-2, appellant had class 1
impairment with a default value of five percent permanent impairment due to the abdominal scar.
In a merit decision dated July 27, 2016, OWCP denied modification of its prior decisions.
It noted that, although a schedule award could be paid for impairment to the skin, as appellant
did not have an accepted skin condition and did not have disfigurement of the face, head, or
neck, she did not have impairment under FECA.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of any employment injury.5
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
Chapter 8 of the sixth edition is to be utilized in assessing skin impairment.10
A schedule award is not payable for the loss or loss of use, of a member or function of the
body not specifically listed in FECA and its implementing regulations.11 OWCP issued the
revised implementing federal regulations effective August 29, 2011. The new regulations
provide that, pursuant to the authority provided by 5 U.S.C. § 8107(c)(22), skin was added to the

5

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

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Supra note 3 at 159-82.

11

J.W., 59 ECAB 308 (2008).

4

list of scheduled members for which FECA provides compensation for loss. A schedule award
for the skin may be paid for injuries sustained on or after September 11, 2001.12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
The Board finds this case is not in posture for decision with respect to OWCP’s finding
regarding permanent impairment of the skin.
The Board finds that, in denying entitlement to a schedule award in its July 27, 2016
decision, OWCP incorrectly indicated that appellant did not have an accepted skin condition.
Scar conditions and fibrosis of skin were accepted on October 12, 2012. OWCP also authorized
surgery for appellant’s accepted conditions. On August 29, 2011 OWCP’s regulations were
revised to include skin in the list of scheduled members for which FECA provides compensation
for loss. A schedule award for the skin may be paid for injuries, such as appellant’s, sustained
on or after September 11, 2001.14
On remand OWCP’s medical adviser should be asked provide an opinion regarding
whether the accepted skin conditions would entitle appellant to a schedule award under Chapter
8 of the A.M.A., Guides and, if so, to provide an impairment rating. After this and further
development deemed necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds this case is not in posture for decision.

12

Supra note 7.

13

See Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.808.6(f) (February 2013).

14

20 C.F.R. § 10.404.

5

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: June 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Buffalo, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1467
Issued: October 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 2, 2016 appellant, through counsel, filed a timely appeal from two January 20,
2016 merit decisions 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.

ISSUES
The issues are: (1) whether OWCP properly rescinded acceptance of a recurrence of
disability for the period April 29 through November 28, 2014; and (2) whether appellant had
established a recurrence of disability on April 29, 2014.
On appeal counsel asserts that OWCP improperly issued the January 20, 2016 decision
because on December 5, 2014 appellant timely requested reconsideration of OWCP’s
December 17, 2013 merit decision that denied modification of its March 18, 2013 suitable work
termination. He asserts that, as OWCP based its conclusions in the January 20, 2016 decisions
on its March 18, 2013 suitable work termination, these decisions were improperly issued.
FACTUAL HISTORY
On December 7, 2011 OWCP accepted appellant’s traumatic injury claim (Form CA-1)
for a left sprain of shoulder and rotator cuff, which occurred on November 15, 2011.
Dr. Donald P. Douglas, a Board-certified orthopedic surgeon, performed authorized arthroscopic
debridement of the left shoulder on May 22, 2012. Appellant remained off work following the
surgery. OWCP paid wage-loss compensation.
On January 15, 2013 the employing establishment offered appellant a secretary
(automation) position, based on the restrictions provided by Dr. Robert Ungerer, a Boardcertified orthopedic surgeon and OWCP referral physician who examined her on February 15
and December 19, 2012.
By letter dated January 15, 2013, OWCP advised appellant that the position offered was
suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of FECA, her entitlement to wage-loss or
schedule award compensation would be terminated. She was given 30 days to respond.
Appellant refused the offered position on January 28, 2013, stating that she was disabled
due to the employment injury. On February 1, 2013 she disagreed with the proposed
termination. By letter dated February 19, 2013, OWCP advised appellant that her reasons for
refusing the offered position were not valid. Appellant was given an additional 15 days to
accept. In medical reports dated February 25, 2013, Dr. Douglas noted that she continued to
have left shoulder pain and limited motion. He advised that appellant was totally disabled. She
did not accept the position.
By decision dated March 18, 2013, OWCP terminated appellant’s wage-loss
compensation and schedule award benefits pursuant to section 8106(c) of FECA, effective
March 15, 2013.
Appellant requested reconsideration on October 24, 2013. She submitted additional
reports from Dr. Douglas dated April 8 to October 16, 2013 in which he diagnosed chronic left
shoulder pain and adhesive capsulitis and advised that she was totally disabled. On June 10,
2013 Dr. Douglas requested authorization for additional surgery.

2

In a merit decision dated December 17, 2013, OWCP denied modification of the
March 18, 2013 decision.
OWCP authorized additional surgery, and on April 29, 2014 Dr. Douglas performed
arthroscopic manipulation of left shoulder for adhesive capsulitis. On July 31, 2014 it accepted
appellant’s claim for a recurrence of disability (Form CA-2a) beginning April 29, 2014. OWCP
paid appellant wage-loss compensation beginning that day.3
On December 5, 2014 appellant, through counsel, requested reconsideration of the
December 17, 2013 decision. He asserted that the position offered appellant was not suitable,
based on the medical evidence, and that OWCP had not accepted all compensable injuries caused
by the November 15, 2011 employment injury. Counsel also submitted a February 21, 2014
report in which Dr. Douglas reiterated his request for surgery due to arthrofibrosis/scarring of the
shoulder.
By decision dated February 9, 2015, OWCP found that appellant was not entitled to
wage-loss compensation for the period December 1, 2014 and continuing. It noted that the
March 18, 2013 termination decision remained in effect and she had erroneously been paid
compensation for the period April 29 through November 28, 2014. In separate correspondence
dated February 9, 2015, OWCP issued a preliminary finding that an $18,366.83 overpayment of
compensation had been created because appellant received compensation for the period April 29
through November 28, 2014 to which she was not entitled because her entitlement to wage-loss
benefits had been terminated in March 2013.
Appellant requested a prerecoupment hearing with OWCP’s Branch of Hearings and
Review and, by decision dated September 4, 2015, an OWCP hearing representative remanded
the case to OWCP because it had not properly rescinded acceptance of the recurrence of
disability which formed the basis of the overpayment.
On December 8, 2015 OWCP issued a notice of proposed rescission of acceptance of the
recurrence of disability for which appellant was paid compensation for the period April 29
through November 28, 2014. It found that the July 31, 2014 decision had been issued in error
because her entitlement to wage-loss and schedule award compensation benefits had been
terminated by decision dated March 18, 2013 based on her refusal to accept suitable
employment. OWCP finalized the rescission on January 20, 2016. In a separate January 20,
2016 decision, it denied appellant’s claim for a recurrence of disability beginning April 29, 2014
and continuing through November 28, 2014.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or application.4 The Board has
3

The employing establishment noted that appellant had not worked since May 2012, and that OWCP had issued a
March 17, 2013 decision terminating her entitlement to monetary compensation because she refused an offer of
suitable work.
4

5 U.S.C. § 8128; see M.E., 58 ECAB 694 (2007).

3

upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under
section 8128 of FECA.5 The power to annul an award, however, is not an arbitrary one and an
award for compensation can only be set aside in the manner provided by the compensation
statute.6
Once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, it later decides that it
erroneously accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is
required to provide a clear explanation of the rationale for rescission.7
OWCP regulations provide that a timely reconsideration request must be received by it
within one year of the date of OWCP’s decision for which review is sought.8 A timely request
for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or arguments that meets at least one of the standards described in section
10.606(b)(3) of its regulations.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
The basis for each OWCP decision issued by OWCP subsequent to its acceptance of the
April 29, 2014 recurrence of disability flows from its March 18, 2013 decision in which
appellant’s entitlement to wage-loss and schedule award compensation was terminated in
accordance with section 8106(c) of FECA because she failed to accept suitable employment. In
a merit decision dated December 17, 2013, OWCP denied modification of the March 18, 2013
decision. The record before the Board in this case indicates that appellant, through counsel,
timely requested reconsideration of the December 17, 2013 decision on December 5, 2014. The
record before the Board does not contain an OWCP decision responsive to this request.
The next OWCP decision of record is the February 9, 2015 merit decision in which
OWCP found that appellant was not entitled to wage-loss compensation for the period
December 1, 2014 and continuing. On that date it also issued a preliminary overpayment
decision finding an overpayment of compensation because appellant had received $18,366.83 in
FECA compensation in error for the period April 29 through November 28, 2014, after her
entitlement to wage-loss compensation had been terminated. The preliminary overpayment
decision was remanded to OWCP by its Branch of Hearings and Review on September 4, 2015.
The hearing representative noted that OWCP had not properly rescinded acceptance of the
April 29, 2014 recurrence of disability which formed the basis of the overpayment. On
5

S.R., Docket No. 14-1313 (issued January 22, 2015).

6

See Cary S. Brenner, 20 C.F.R. § 10.610.

7

See S.R., Docket No. 09-2332 (issued August 16, 2010).

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.608(a).

4

December 8, 2015 OWCP issued a notice of proposed rescission of its acceptance of the
April 29, 2014 recurrence of disability. It finalized the rescission by decision dated
January 20, 2016. In a separate January 20, 2016 decision, OWCP denied appellant’s claim for a
recurrence of disability beginning April 29, 2014.
Proceedings under FECA are not adversarial in nature. OWCP shares in the
responsibility to develop the evidence and has an obligation to see that justice is done.10 The
January 20, 2016 decisions at issue in this case flowed from OWCP’s March 18, 2013 suitable
work termination decision that was affirmed in a December 17, 2013 merit decision. Appellant,
through counsel, had timely filed a reconsideration request from the December 17, 2013
decision. In the December 5, 2014 reconsideration request, counsel made cogent legal
arguments and submitted additional medical evidence.
The Board has long held that OWCP shall review all evidence submitted by a claimant
and received by OWCP prior to issuance of its decision.11 OWCP procedures also provide that a
final decision on a reconsideration request must be issued, and the goal for issuing such decision
is 90 days from receipt of the request.12
In the case Kenneth E. Harris, the Board held that OWCP issued a decision in error, as
there was an outstanding request for reconsideration which remained unadjudicated.13 In the
case at hand, it was improper for OWCP to issue further decisions, including the January 20,
2016 decisions before the Board in the present appeal, without addressing the arguments and
evidence submitted with appellant’s December 5, 2014 reconsideration request.14 Thus, this case
must be remanded to OWCP to issue an appropriate decision on her December 5, 2014
reconsideration request before addressing rescission or a recurrence of disability.
In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

P.K., Docket No. 08-2551 (issued June 2, 2009).

11

See Kenneth R. Love, 50 ECAB 193 (1998).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2.b (October 2011).

13

54 ECAB 502 (2003).

14

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2016 decisions of the Office of
Workers’ Compensation Programs are set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: October 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6