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

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

Docket No. 19-1395
Issued: February 6, 2020

Case Submitted on the Record

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

JURISDICTION
On June 10, 2019 appellant filed a timely appeal from a March 28, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision on the issue of recurrence, dated November 29, 2017, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 28, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 25, 2014 appellant, then a 57-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that 14 years of casing, sorting, pulling, and delivering mail while in
the performance of duty caused or aggravated her back condition. She noted that she first realized
her condition and its relation to factors of her federal employment on June 27, 2014. OWCP
accepted the claim for bilateral lumbar radiculopathy and lumbar spondylolisthesis. Appellant
worked in a full-time modified capacity. On April 11, 2017 she began working reduced hours,
based on the April 10, 2017 recommendation of Dr. Christopher P. DeCarlo, a physiatrist.
On April 17 and 30, 2017 appellant filed claims for compensation (Form CA-7) for
disability for the period April 1, 2017 and continuing.
OWCP received a May 12, 2017 report from Dr. DeCarlo and a referral slip for a functional
capacity evaluation (FCE) of appellant’s lumbar spine condition. In the May 12, 2017 report,
Dr. DeCarlo indicated that the reduction of her work hours was due to her continuing complaint
of back pain at the end of her workday.
By decision dated June 15, 2017, OWCP denied appellant’s recurrence claim, finding that
the evidence of record was insufficient to establish that she was disabled due to a material change
or worsening of her accepted employment-related conditions.
On September 1, 2017 appellant requested reconsideration. In support she submitted an
August 16, 2017 report from Dr. DeCarlo and a June 29, 2017 FCE report of a diagnosis of
unspecified sprain of the right shoulder joint. Dr. DeCarlo indicated that the FCE supported that
appellant could only work four hours per workday.
By decision dated November 29, 2017, OWCP denied modification of its June 15, 2017
decision, finding that Dr. DeCarlo’s report did not establish that appellant experienced a return or
an increase in disability due to a change or worsening of her accepted employment-related
conditions. It also indicated that the FCE, which was for testing of a diagnosis of unspecified
sprain of the right shoulder joint, was of little probative value.
On March 2, 2018 appellant requested reconsideration, directing OWCP’s attention to an
attached copy of the FCE, which she noted was for her lower extremities. A copy of the FCE
report was not received. OWCP also received a December 19, 2017 report from Dr. DeCarlo.
By decision dated March 9, 2018, OWCP denied reconsideration of the merits of the claim,
finding that the evidence submitted was cumulative to evidence or documentation already of
record.
OWCP subsequently received additional reports from Dr. DeCarlo dated May 25, July 24,
and October 24, 2018; a previously-submitted June 29, 2017 FCE for the diagnosis of
2

radiculopathy -- lumbosacral region and spondylosis without myelopathy or radiculopathy -lumbosacral region; a March 3, 2018 magnetic resonance imaging scan of the lumbar spine; a
March 21, 2018 electromyogram and nerve conduction velocity study; March 2 and April 13, 2018
reports and a March 2, 2018 duty status report (Form CA-17) from Dr. Omar A. Mora Colon, a
physiatrist; and evidence pertaining to appellant’s request for back surgery.
On February 12, 2019 appellant again requested reconsideration of its November 29, 2017
decision and submitted additional evidence.
In a February 1, 2019 report, Dr. Judith Kraft, a Board-certified family practitioner,
indicated that sufficient medical evidence was provided to support that appellant had a return or
increase of disability due to a change or worsening of her accepted employment-related condition.
She summarized Dr. DeCarlo’s reports of October 11, 2016 and April 10, 2017 and asserted
OWCP erred as the reports contained objective findings other than pain. Specifically, Dr. Kraft
noted that on October 11, 2016 appellant was able to squat about half way before eliciting increase
pain of the low back, but on April 10, 2017 she was not able to squat even a third of the way
without eliciting pain. She also noted that on October 11, 2016 appellant was able to heel-toe walk
without pain over the calf; but on April 10, 2017, she had “slight but of problems” with heel-toe
walking. Dr. Kraft also contended that OWCP erred in stating that the FCE on June 29, 2017 was
for the upper extremities.
In Form CA-17’s dated December 21, 2018 and February 1, 2019, Dr. Kraft noted “no
satchel, no pushcart, bundle by bundle, [and] no overtime” per FCE June 29, 2014.
By decision dated March 28, 2019, OWCP denied appellant’s February 12, 2019
reconsideration request, finding that it was untimely filed and failed to demonstrate clear evidence
of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.4 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).5 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607(a).

5

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

6

E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

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review to determine whether it demonstrates clear evidence of error.7 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to prima facie shift the weight
of the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision.9
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.10 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.11
ANALYSIS
The Board finds that OWCP properly determined that appellant’s February 8, 2019 request
for reconsideration was untimely filed.
The most recent merit decision regarding the denial of appellant’s recurrence claim was
OWCP’s November 29, 2017 decision. As her request for reconsideration was not received by
OWCP until February 12, 2019, more than one year after the November 29, 2017 decision,
pursuant to 20 C.F.R. § 10.607(a), her request for reconsideration was untimely filed.
Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in denying
her claim.12
In the case of William A. Couch,13 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
7

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

8

M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 5 at Chapter
2.1602.5 (February 2016).
9

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

10

5 U.S.C. § 8124(a).

11

20 C.F.R. §10.126.

12

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

13

41 ECAB 548 (1990); see also J.C., Docket No. 15-1666 (issued October 28, 2015).

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before the final decision is issued. While OWCP referenced a February 1, 2019 report from
Dr. Kraft in its March 28, 2019 decision, it did not reference a number of additional reports from
Drs. DeCarlo and Colon, diagnostic studies, or a June 29, 2017 FCE pertaining to appellant’s
lumbar spine. As the Board’s decisions are final as to the subject matter appealed,14 it is crucial
that all evidence relevant to that subject matter which was properly submitted to OWCP prior to
the time of issuance of its final decision be addressed by OWCP.15
For this reason, the case will be remanded to OWCP to enable it to properly consider all
the evidence submitted at the time of the March 28, 2019 decision followed by an appropriate
decision on whether appellant has demonstrated clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. However, the case is not in posture for decision with regard
to whether appellant has demonstrated clear evidence of error.

14

20 C.F.R. § 501.6(d).

15

T.J., Docket No. 14-1854 (issued February 3, 2015); Yvette N. Davis, 55 ECAB 475 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the March 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: February 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Montrose, MN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1890
Issued: December 23, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 22, 2019 appellant filed a timely appeal from a February 8, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 19-1890.1
On February 17, 2015 appellant, then a 62-year-old rural carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on February 13, 2015 she broke her left leg after tripping
on a rock when delivering a parcel while in the performance of duty. She stopped work on the
date of injury.2 OWCP accepted the claim for left lower end femur fracture and subsequently
expanded acceptance of the claim to include permanent aggravation of left knee degenerative joint

1

The Board notes that following the February 8, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2
On February 15, 2019 appellant underwent open left periprosthetic distal femur fracture with intra-articular splint
and left reduction, internal fixation surgery.

disease. It paid appellant wage-loss compensation on the supplemental rolls commencing
March 31, 2015 and on the periodic rolls as of February 7, 2016.
Appellant accepted a modified rural carrier associate job offer on August 21, 2018 for eight
hours of work per day, effective August 27, 2018. The physical requirements of the position
included up to one hour of intermittent standing and walking, up to six hours of sitting, and up to
one hour of intermittent fine manipulation and simple grasping.
On September 20, 2018 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period August 18 to September 14, 2018. On the employer portion of the Form CA-7, T.S.,
an employing establishment human resources specialist, challenged appellant’s entitlement to
46.98 hours of wage-loss compensation for the period August 18 to September 14, 2018. She
checked a box indicating that appellant had returned to work and had gross earnings of $357.76.
However, in a narrative challenge statement, T.S. indicated that appellant accepted the job offer
on August 21, 2018 and was scheduled to return to limited-duty work effective August 27, 2018,
but on August 22, 2018 appellant advised that she was having car trouble and could return to work
on August 28, 2018. She asserted that appellant refused the limited-duty job offer on
August 28, 2018. T.S. also specifically noted that appellant was not entitled to compensation on
August 27, 2018 or after August 29, 2018.
On the attached time analysis form (Form CA-7a) the first date of compensation claimed
was noted as August 24, 2018. On this Form CA-7a appellant indicated that she was not claiming
compensation for August 27 and 28, 2018 as she had worked on those days. The form recorded
appellant’s claim for 64.00 hours of leave without pay (LWOP) for 8 hours of LWOP on
August 24, 29, 30, September 3, 4, 6, and 7, 2018 was crossed out and changed to 25.98 hours of
LWOP based on 1.66 hours of LWOP on August 24 and 29, 2018 and 4.20 hours of LWOP for
August 30, September 3, 4, 6, and 7, 2018. On September 21, 2018 T.S. signed the Form CA-7a
certifying that the time claimed was accurate.
Appellant submitted a September 11, 2018 report by Dr. Peter Sanders, a Board-certified
orthopedic surgeon, in support of her claim for wage-loss compensation due to recurrent disability
from work. Dr. Sanders noted that appellant had returned to work, but was only able to work a
few days due to severe constant pain.
In a development letter dated October 1, 2018, OWCP requested that appellant submit
additional evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to the relationship between her claimed disability and accepted injury. It also
advised her that her physician must provide a report which explains how her claimed disability
from work was due to her original injury. OWCP provided appellant a questionnaire for
completion and afforded her 30 days to submit a response.
Appellant submitted a completed questionnaire asserting that her work restrictions were
not followed, a comfortable chair was not provided, and working two eight-hour days caused
soreness, hip pain, and knee and feet swelling. She also submitted additional medical evidence
and diagnostic tests.

2

By decision dated February 8, 2019, OWCP denied appellant’s claim for recurrence of
disability. It found that she had not submitted medical evidence from a physician, supported by
medical rationale, establishing the causal relationship between her alleged recurrence of disability
and the accepted employment injury. OWCP also advised appellant that the medical evidence of
record was insufficient to establish that she was disabled from work due to a material
change/worsening of her accepted work-related conditions.
The Board, having duly reviewed the case record submitted by OWCP, finds that this case
is not in posture for decision.3
OWCP’s procedures require that, in cases where recurrent disability from work is claimed
within 90 days or less from the first return to duty, the claimant is not required to produce the same
evidence as for a recurrence claimed long after apparent recovery and return to work.4 Therefore,
in cases where recurring disability from work is claimed within 90 days or less from the first return
to duty, the focus is on disability rather than causal relationship.5 The attending physician should
describe the duties which the employee cannot perform and the demonstrated objective medical
findings that form the basis for the renewed disability from work.6
The Board finds that it is unable to determine the applicability of the 90-day return to work
provision since the record is unclear as to whether appellant actually returned to work.
The record contains conflicting evidence from the employing establishment and appellant
as to whether she had actually returned to work.
OWCP procedures provide that it is responsible for requesting evidence which clarifies
factual questions at issue.7 These procedures provide that OWCP should specifically request the
information needed, tailored to the specifics of the individual case.8 Accurate factual information
regarding whether appellant actually returned to the accepted offered limited-duty assignment is
essential to determine whether she sustained a recurrence of total disability within 90 days of a
return to work.9 On remand OWCP shall request that a knowledgeable supervisor or other
employing establishment official furnish documentation, such as an earnings and leave statement,
3

See T.Z., Docket No. 17-0679 (issued May 9, 2019).

4

P.D., Docket No. 19-0763 (issued November 26, 2019); R.W., Docket No. 17-0720 (issued May 21, 2018).

5

K.R., Docket No. 19-0413 (issued August 7, 2019).

6
P.D., supra note 4; A.C., Docket No. 17-0384 (issued September 11, 2017); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013).
7

Id. at Chapter 2.800.4(c)(2) (June 2011).

8
Supra note 6 at Chapter 2.800.5.
December 22, 2016).

See also P.D., supra note 4; V.R., Docket No. 16-1167 (issued

9

See P.H., Docket No. 20-0039 (issued April 23, 2020) (the Board found that accurate information was required to
determine whether a recurrence of disability had occurred due to a withdrawal of light-duty work or worsening of the
accepted condition); K.T., Docket No. 17-0009 (issued October 8, 2019); Y.R., Docket No. 10-1589 (issued
May 19, 2011)

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clarifying if appellant actually returned to work during the time period alleged and was paid for
her labor. It should also request that appellant furnish documentation of any earnings during this
time period, supporting that she returned to work and, thus, whether the wage-loss compensation
claim should be considered based upon the 90-day return to work rule. Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the February 8, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 08-24
Issued: March 13, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 1, 2007 appellant timely appealed the August 16, 2007 merit decision of the
Office of Workers’ Compensation Programs, which granted a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has greater than one percent permanent impairment of the
left upper extremity.
FACTUAL HISTORY
Appellant, a 57-year-old letter carrier, has an accepted occupational disease claim for
bilateral carpal tunnel syndrome, which arose on or about January 12, 2003. She underwent a
left median nerve decompression on January 11, 2006, which the Office authorized. Dr. Julian J.
Lin, a Board-certified neurosurgeon, performed the January 11, 2006 surgery. Appellant was
released to resume her regular duties effective February 24, 2006.

On December 7, 2006 appellant filed a claim for a schedule award. On January 4, 2007
the Office asked appellant’s surgeon, Dr. Lin, to examine her for purposes of determining the
extent of any permanent impairment due to the accepted employment injury. Dr. Lin referred
appellant for a functional capacity evaluation, which was conducted on February 7, 2007.
In a February 23, 2007 report, Dr. Lin stated that appellant still had some paresthesia in
the left hand, but otherwise there were no new neurosurgical issues with her wrist. On physical
examination, he reported no loss of range of motion, no weakness or atrophy and no loss of
pinch strength. The only reported finding was occasional tingling in the wrist and fingers.
Dr. Lin indicated that appellant reached maximum medical improvement on January 1, 2007.
However, he did not provide an impairment rating.
On March 22, 2007 the Office referred the case record to its district medical adviser,
Dr. Benjamin P. Crane. In a March 30, 2007 report, Dr. Crane found one percent impairment of
the left upper extremity for pain in the distribution of the median nerve. With respect to the right
upper extremity, he found zero percent impairment as there was no mention of right carpal tunnel
syndrome in Dr. Lin’s recent report. According to Dr. Crane, appellant reached maximum
medical improvement on April 11, 2006, three months after her left median nerve
decompression.
On August 16, 2007 appellant received a schedule award for one percent impairment of
the left upper extremity. The award totaled 3.12 weeks of compensation, covering the period
April 11 to May 2, 2006.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act set 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.1 The Act, 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 American Medical
Association, Guides to the Evaluation of Permanent Impairment as the appropriate standard for
evaluating schedule losses.2 Effective February 1, 2001, schedule awards are determined in
accordance with the A.M.A., Guides (5th ed. 2001).3
ANALYSIS
The Office medical adviser assessed the residuals of appellant’s left carpal tunnel
syndrome in accordance with the requirements for determining impairments due to peripheral
1

For a total, or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1) (2000).
2

20 C.F.R. § 10.404 (2007).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

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nerve disorders.4 The first step in the evaluation process is to grade the severity of the sensory
deficit (pain) in accordance with Table 16-10, A.M.A., Guides 482. With respect to appellant’s
left upper extremity, Dr. Crane found a “Grade 4” sensory deficit.5 This classification is
characterized by “[d]istorted superficial tactile sensibility (diminished light touch), with or
without minimal abnormal sensation or pain, that is forgotten during activity” and represents a 1
to 25 percent sensory deficit.6
The next step in the rating process is to identify the maximum upper extremity
impairment value due to sensory deficit or pain for each affected nerve, which in this case was
the median nerve. According to Table 16-15, A.M.A., Guides 492, the maximum percentage
upper extremity impairment due to sensory deficit or pain involving the median nerve (below
mid-forearm) is 39 percent. To determine the upper extremity impairment one multiplies
appellant’s Grade 4 classification (25 percent) by the maximum percentage loss due to sensory
deficit or pain involving the median (39 percent). Applying this formula, appellant has 10
percent impairment for sensory deficit or pain (25 percent x 39 percent) involving the median
nerve. The Office medical adviser mistakenly calculated appellant’s impairment as only one
percent, which the Office relied upon in its August 16, 2007 schedule award.
Other than the above-noted mathematical error, Dr. Crane’s March 30, 2007 impairment
rating is consistent with Dr. Lin’s February 23, 2007 examination findings and conforms to the
A.M.A., Guides (5th ed. 2001). The August 16, 2007 schedule award will be modified to reflect
appellant’s 10 percent permanent impairment of the left upper extremity. Appellant has not
presented any probative medical evidence indicating that she has greater than 10 percent
impairment of the left upper extremity.7
CONCLUSION
The Board finds that appellant has 10 percent permanent impairment of the left upper
extremity.

4

See A.M.A., Guides 480-83, section 16.5.

5

Dr. Crane noted that appellant reported “intermittent left hand numbness.” Dr. Lin described it as “occasional
tingling.”
6

A.M.A., Guides 482, Table 16-10.

7

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the August 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 13, 2008
Washington, DC

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

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

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

4


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

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

Docket No. 17-0460
Issued: June 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 27, 2016 appellant, through counsel, filed a timely appeal from a
November 8, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her right
hand/wrist and elbow conditions are causally related to the accepted factors of her federal
employment.
FACTUAL HISTORY
On October 29, 2014 appellant, a 58-year-old custodian, filed a notice of occupational
disease (Form CA-2) alleging that she sustained carpal tunnel syndrome, which required surgery,
as a result of repetitive arm motions while in the performance of duty. She indicated that she first
became aware of her condition and attributed it to her federal employment on October 21, 2014.
Appellant stopped work on September 24, 2014.
In a narrative statement received by OWCP on November 12, 2014, appellant stated that
she had worked for the employing establishment for 30 years. She previously worked as a cashier,
mail handler, and automation clerk, and currently worked as a custodian. Appellant indicated that
she had tendinitis in her right arm and requested authorization for carpal tunnel surgery. She
reported that she sustained a left shoulder injury in 2012 after being hit by a mobile unit.
Appellant submitted work restrictions from an unidentifiable healthcare provider dated
August 5, 2008 when she was working as a mail processor clerk.
In a November 4, 2014 report, Dr. Eric Walsh, a Board-certified orthopedic surgeon, noted
that appellant was seen for an evaluation and treatment of her right lateral elbow pain. He reported
that appellant was a right-handed custodian and characterized her pain as stiffness, swelling, and
weakness to the lateral aspect of her right elbow. Dr. Walsh noted that appellant had a history of
work-related right elbow tendinitis dating back to February 10, 2006, for which was treated with
injections, therapy, medication, and modified duty. He indicated that appellant’s job duties had
changed to that of a custodian and her symptoms had returned on September 20, 2014 as a result
of using a vacuum. Dr. Walsh diagnosed “right lateral epicondylitis recurrent possible right carpal
tunnel [syndrome]” and recommended rest, ice, and elevation of the effected extremity as needed.
He took appellant off work and referred her for an electromyography and nerve conduction
velocity (EMG/NCV) study for further evaluation of the right wrist and elbow.
In an October 3, 2014 duty status report (Form CA-17), Dr. Walsh diagnosed right tennis
elbow and right carpal tunnel syndrome and took appellant off work.
On October 6, 2014 Dr. Mary Lussier, a Board-certified neurologist, reviewed an
EMG/NCV study from that same day and diagnosed moderate right carpal tunnel syndrome. She
found no sign of ulnar neuropathy, thoracic outlet syndrome, or peripheral polyneuropathy.
Dr. Lussier asserted that appellant reported right elbow pain on September 20, 2014 after she had
increased manual activity at her work in maintenance the week prior, which involved carrying a
new backpack vacuum. Appellant further reported having arthritis and similar symptoms in 2006.
In an October 23, 2014 report, Dr. Walsh saw appellant for a follow-up evaluation and
diagnosed right lateral epicondylitis and right carpal tunnel syndrome. He opined that appellant’s

2

conditions were related to her federal duties, noting that based on her work description “carpal
tunnel syndrome can develop [with] any type of activities over time.” Dr. Walsh noted that the
carpal tunnel syndrome was more symptomatic and problematic at this point and discussed the
possibility of surgical intervention. He advised that appellant would continue in her wrist splint
and “cautioned her against evocative activities.”
In a duty status report (Form CA-17) dated October 21, 2014, Dr. Walsh diagnosed right
carpal tunnel syndrome and took appellant off work.
In a November 20, 2014 statement, appellant’s supervisor indicated that on September 24,
2014 appellant was given an assignment to vacuum with a new backpack vacuum, but she refused
on the basis of a medical condition.
In a December 5, 2014 letter, OWCP advised appellant of the deficiencies of her claim and
afforded her 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted two narrative statements dated December 30, 2014
indicating that her federal employment duties required her to wash floors in the bathrooms and
cafeteria, wring out mops, pick up trash with a hand-held trash squeezer. She stated that these
repetitive motions contributed to her medical conditions. Appellant indicated that, on
September 20, 2014, she was trained on using a backpack vacuum which required a repetitive
motion on the right arm, swinging back and forth with attachment and a 20-pound vacuum on her
back. She stated that when she was “in training with the vac-pac and tugging on the vac sheet”
she felt a pop and pull in her right arm and wrist. Appellant felt pain in her right arm and pins and
needles of pain in her right hand, wrist, and arm.
By decision dated February 10, 2015, OWCP denied the claim, finding that the medical
evidence submitted failed to establish causal relationship between appellant’s conditions and
factors of her federal employment.
On February 18, 2015 counsel requested an oral hearing before OWCP’s Branch of
Hearings and Review.
A telephonic hearing was held before an OWCP hearing representative on
August 25, 2015. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
By decision dated November 2, 2015, the hearing representative affirmed OWCP’s
February 10, 2015 decision, finding that appellant had not established that her right hand and
elbow conditions were causally related to factors of her federal employment.
On October 28, 2016 counsel requested reconsideration and appellant submitted reports
dated February 3 through May 28, 2015 from Dr. Walsh who reiterated his diagnosis of right
carpal tunnel syndrome and indicated that he performed a right carpal tunnel release on
March 4, 2015. In an April 30, 2015 report, Dr. Walsh released appellant to full-time, full-duty
work effective May 11, 2015.

3

In an October 24, 2015 report, Dr. Walsh asserted that appellant’s right carpal tunnel
release surgery was successful and her tennis elbow symptoms also appeared to have improved
significantly, requiring no further treatment. He also reiterated his opinion that appellant’s work
duties as a custodian were causally related to her right carpal tunnel syndrome and right lateral
epicondylitis conditions. Dr. Walsh advised that appellant had no impairment, was not disabled
for work, and had no limitations with regard to the use of her right hand.
By decision dated November 8, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, and that an injury4 was sustained in the performance of duty.
These are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in 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 evidence establishing
that the diagnosed condition is causally related to the employment factors identified by the
employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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.7

3

Supra note 2.

4
OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the accepted
factors of her federal employment caused or aggravated her right hand and elbow conditions.
Appellant identified the factors of employment that she believed caused her condition,
including repetitive motions required to wash floors, wring out mops, pick up trash with a handheld trash squeezer, and use a backpack vacuum in training at work, which OWCP accepted as
factual. However, in order to establish a claim that she sustained an employment-related injury,
she must also submit rationalized medical evidence which explains how her medical condition was
caused or aggravated by the implicated employment factors.8
In his reports, Dr. Walsh diagnosed right lateral epicondylitis and right carpal tunnel
syndrome. He performed a right carpal tunnel release on March 4, 2015. Dr. Walsh reported that
appellant was a right-handed custodian and had a history of work-related right elbow tendinitis
that was dating back to February 10, 2006, which was treated with injections, therapy, medication,
and modified duty. He indicated that appellant’s symptoms had returned on September 20, 2014
as a result of using a vacuum at work. Dr. Walsh opined that appellant’s work duties were causally
related to her right carpal tunnel syndrome and right lateral epicondylitis conditions. He failed to
provide a rationalized opinion explaining how factors of appellant’s federal employment, such as
using a backpack vacuum at work, caused or aggravated her right hand and elbow conditions.
Dr. Walsh noted that appellant’s conditions occurred while she was at work, but such generalized
statements do not establish causal relationship because they merely repeat appellant’s allegations
and are unsupported by adequate medical rationale explaining how her physical activity at work
actually caused or aggravated the diagnosed conditions.9 The Board has held that the mere fact
that appellant’s symptoms arise during a period of employment or produce symptoms revelatory
of an underlying condition does not establish a causal relationship between appellant’s condition
and her employment factors.10 Dr. Walsh failed to provide a rationalized opinion explaining how
factors of appellant’s federal employment, such as washing floors, wringing out mops, picking up
trash with a hand-held trash squeezer, or using a backpack vacuum in training at work, caused or
aggravated her right lateral epicondylitis and right carpal tunnel syndrome. The need for rationale
is particularly important as the evidence indicates that appellant had a preexisting right elbow
condition.11 Thus, the Board finds that Dr. Walsh’s reports are insufficiently rationalized to
establish that appellant’s condition was caused or aggravated by factors of her federal employment.
On October 6, 2014 Dr. Lussier diagnosed moderate right carpal tunnel syndrome. She
asserted that appellant reported right elbow pain on September 20, 2014 after she had carried a
new backpack vacuum at work. Appellant also reported having arthritis and similar symptoms in
2006. The Board finds that Dr. Lussier did not provide sufficient medical rationale explaining
how appellant’s right carpal tunnel syndrome was caused or aggravated by carrying a new
8

See A.C., Docket No. 08-1453 (issued November 18, 2008).

9

See K.W., Docket No. 10-0098 (issued September 10, 2010).

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

J.M., 58 ECAB 478 (2007).

5

backpack vacuum at work. The need for rationale is particularly important as the evidence
indicates that appellant had a preexisting condition.12 Therefore, the Board finds that the report
from Dr. Lussier is insufficient to establish causal relationship.
Appellant submitted work restrictions dated August 5, 2008 when she was working as a
mail processor clerk. This report, however, is from a healthcare provider whose identity cannot
be discerned from the record. Because it cannot be determined whether this evidence is from a
physician as defined in 5 U.S.C. § 8101(2), it does not constitute competent medical evidence.13
As appellant has not submitted any rationalized medical evidence to support her allegation
that she sustained an injury causally related to the accepted employment factors, she has not met
her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
hand/wrist and elbow conditions are causally related to the accepted factors of her federal
employment.

12

Id.

13

R.M., 59 ECAB 690, 693 (2008). See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may
not be considered as probative medical evidence if there is no indication that the person completing the report qualifies
as a physician as defined in 5 U.S.C. § 8101(2) and reports lacking proper identification do not constitute probative
medical evidence).

6

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF LABOR, ENERGY
EMPLOYEES OCCUPATIONAL ILLNESS
COMPENSATION PROGRAM, Denver, CO,
Employer
__________________________________________

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

Docket No. 14-1691
Issued: November 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 31, 2014 appellant filed a timely appeal from the May 29, 2014 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 that she sustained an
injury in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a November 25, 2013
decision, the Board affirmed the August 9, 2012 decision of OWCP denying appellant’s claim.
While appellant established that she was exposed to insects or other biting pests on or around
August 18, 2008, there was insufficient medical evidence to establish that she sustained an injury
as a result of the accepted employment condition. The facts of the case as contained in the prior
appeal are incorporated by reference.
By letter dated April 10, 2014, appellant requested reconsideration. She argued that her
physician, Dr. James DeVito, a Board-certified dermatologist, noted that she presented with a
bite on her ankle when he first examined her. Appellant contended that the Board’s decision
indicated that she had some kind of infestation. She submitted additional medical evidence. In a
March 20, 2014 treatment note, Dr. DeVito noted that appellant’s last office visit was six to
seven years prior for an infestation of mites. He noted that she requested a complete report about
the mite infestation. Dr. DeVito examined appellant and determined that there were
acute/subacute eczematous patches and plaques present on the bilateral arms and legs. He
diagnosed dermatitis/eczema due to an unspecified cause.
In an April 1, 2014 report, Dr. DeVito provided a summary of his clinical observation
and assessment of appellant in 2008. He noted that, while she did not sustain an “injury per se,”
she presented to the office on August 18, 2008 for what was an “erythematous papule at her
ankle consistent with an insect bite. No scalp lesions were noted.” Dr. DeVito advised that his
diagnosis on that date was infestation of mites/insects. He noted that the objective findings
supporting his diagnosis were his clinical examination and acumen as a dermatologist.
Dr. DeVito opined that “a rationalized medical opinion on causal relationship is difficult to
determine because there are a number of locations where this infestation could have occurred.”
OWCP also received several treatment notes, some of which are not fully legible. In a
September 11, 2008 treatment note, an unknown healthcare provider advised that appellant
presented crying and believed that she had mites or parasites. The provider noted that appellant
brought a piece of paper with “crud” on it. It was viewed under a microscope and was found
negative for mites or eggs. The treatment notes indicate that three months earlier, appellant
reported bites at work. The records advised that she had possible mites on her body and
indicated animals were presently being treated for mites. Another undated note reported “fleas
everywhere.” There is no legible indication that these notes or records were authored by a
physician.
By decision dated May 29, 2014, OWCP denied modification of its August 9, 2012
decision.

2

Docket No. 13-827 (issued November 25, 2013). On August 18, 2008 appellant filed a traumatic injury claim
alleging she was bitten by fleas at work.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.8
An alleged work incident does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, but the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.9 A consistent history of the injury as reported on medical reports to appellant’s
supervisor and on the notice of injury can also be evidence of the occurrence of the incident.10
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statements in
determining whether a prima facie case has been established.11 Although an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

John J. Carlone, 41 ECAB 354 (1989).

8

Id.

9

Rex A. Lenk, 35 ECAB 253, 255 (1983).

10

Id. at 255-56.

11

Dorothy M. Kelsey, 32 ECAB 998 (1981).

12

Id.

3

ANALYSIS
Appellant alleged that she was bitten by mites or fleas at the employing establishment in
the performance of duty on August 18, 2008 and sustained multiple bites to her body. In the
prior decision, the Board found that she established exposure to insects or other biting pest
occurred on or about August 18, 2008. However, the medical evidence provided by appellant
was insufficient to establish that she sustained injury as a result of the accepted employment
incident.
Appellant submitted a March 20, 2014 treatment note from Dr. DeVito, who noted that
her last office visit was six to seven years earlier for an infestation of mites. Dr. DeVito
diagnosed dermatitis/eczema due to an unspecified cause. This report does not support causal
relationship as he attributed the diagnosed conditions to an unspecified cause.
In an April 1, 2014 report, Dr. DeVito noted that he was providing a summary of his
clinical observation and assessment of appellant in 2008. He advised that she did not sustain an
“injury per se,” when she presented to the office on August 18, 2008 for what was an
“erythematous papule at her ankle consistent with an insect bite. No scalp lesions were noted.”
Dr. DeVito explained that his diagnosis on that date was infestation of mites or insects and the
objective findings supporting his diagnosis were his clinical examination and acumen as a
dermatologist. He opined that “a rationalized medical opinion on causal relationship is difficult
to determine because there are a number of locations where this infestation could have
occurred.” The Board finds that the April 1, 2014 report does not support causal relationship.
Dr. DeVito’s opinion is speculative in nature as he did not attribute appellant’s condition to any
exposure at work. At most it provides equivocal support for causal relationship and is of limited
probative value.13
OWCP also received several treatment records from unknown healthcare providers. The
Board has held that a medical report may not be considered as probative medical evidence if
there is no indication that the person completing the report qualifies as a “physician” as defined
in 5 U.S.C. § 8102(2). The Board has found that reports lacking proper identification do not
constitute probative medical evidence.14 Thus, these treatment notes and records are of no
probative medical value in establishing the claim.
The Board finds that appellant failed to submit rationalized medical evidence to establish
that she sustained an injury caused by the August 18, 2008 employment incident.
On appeal, appellant argued that her physician stated that she had a bug bite the first time
he met with her. She noted that Dr. DeVito indicated that she was diagnosed with an infestation
of mites or an insect bite on her ankle. The Board notes that Dr. DeVito did not provide a clear
or unequivocal opinion on causal relationship.

13

The Board has held that medical opinions which are speculative or equivocal in character have little probative
value. T.M., Docket No. 08-975 (issued February 6, 2009).
14

R.M., 59 ECAB 690 (2008).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 06-1499
Issued: January 30, 2007

Case Submitted on the Record

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

JURISDICTION
On June 19, 2006 appellant filed a timely appeal of the June 7, 2006 merit decision of the
Office of Workers’ Compensation Programs, which denied a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of appellant’s claim
for a schedule award.
ISSUE
The issue is whether appellant is entitled to a schedule award for an employment-related
pulmonary impairment.

FACTUAL HISTORY
Appellant, a 65-year-old retired pipe fitter, has an accepted occupational disease claim for
pulmonary asbestosis (ICD-9/501) with pleural plaques (ICD-9/511).1 He filed a claim for a
schedule award on December 23, 2000. By decision dated February 25, 2004, the Office found
that appellant was not entitled to a schedule award.2 On appeal, the Board set aside the
February 25, 2004 decision and remanded the claim for additional medical development
followed by the issuance of a de novo decision.3
On remand, the Office referred appellant to Dr. Tariq Jamil, a Board-certified internist
specializing in pulmonary disease. Dr. Jamil examined appellant on June 20, 2005, obtained
chest x-rays and administered a pulmonary function study.4 Physical examination of the lungs
revealed bilateral air entry and no rhonchi or wheezes. Dr. Jamil noted a 31-year history of
occupational exposure to asbestos, ending in 1995. He also reported that appellant was an exsmoker, with a history of a ½ pack of cigarettes per day from 1974 to 1984. Dr. Jamil
interpreted the pulmonary function study as normal and he noted that the x-rays showed no acute
pulmonary infiltrates and were otherwise unremarkable. His diagnoses included history of
diabetes mellitus, 31-year history of exposure to asbestos and shortness of breath on exertion.
With respect to the latter diagnosis, Dr. Jamil noted appellant’s prior smoking history and he
indicated the need to rule out chronic obstructive pulmonary disease, bronchial asthma or
bronchitis. Dr. Jamil did not provide an impairment rating, but noted that appellant reached
maximum medical improvement on June 20, 2005.
On September 9, 2005 the Office’s medical adviser, Dr. Charles C. McDonald, reviewed
the medical evidence and found zero percent functional loss of use of bilateral lungs.5 He noted
that appellant’s recent examination showed no evidence of interstitial fibrosis. Dr. McDonald
diagnosed “history of asbestos exposure” and “asbestos-related pleural plaques as a result of
asbestos exposure.” He further noted there was no evidence of asbestosis.

1

Appellant was exposed to asbestos during his 21-year tenure at the employing establishment. He first became
aware of his pulmonary condition on February 8, 1995 and he retired effective February 28, 1995. The Office based
its acceptance of the claim on the December 14, 2000 independent medical evaluation of Dr. Ahsan Qazi, a Boardcertified internist specializing in pulmonary disease.
2

The Office initially denied the schedule award on June 20, 2002. However, on April 25, 2003 an Office hearing
representative set aside the denial and remanded the case for further medical development.
3

Docket No. 04-1034 (issued May 12, 2005). The Board’s May 12, 2005 decision is incorporated herein by
reference.
4

Additional objective studies had been scheduled, but appellant failed to appear for the testing.

5

Dr. McDonald is Board-certified in internal medicine with a subspecialty in pulmonary disease. His
involvement in this case dates back to August 9, 1994, when he initially examined appellant. Dr. McDonald has
also served as an Office consultant and medical adviser in this case. He was on one side of a medical conflict that
was ultimately resolved by Dr. Qazi, who diagnosed pulmonary asbestosis. On the question of appellant’s
entitlement to a schedule award, the Office has referred the case to Dr. McDonald on 4 prior occasions.
Notwithstanding the Office’s acceptance of the claim for pulmonary asbestosis, Dr. McDonald has steadfastly
maintained the position that appellant does not have asbestosis.

2

The Office subsequently received a September 1, 2005 supplemental report from
Dr. Jamil. He interpreted an August 29, 2005 arterial blood gas (ABG) study as normal. In light
of the normal chest x-ray and normal objective studies, Dr. Jamil found that appellant had zero
percent impairment under the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001).6
The Office again referred the case file to its medical adviser, Dr. McDonald. In an
October 30, 2005 report, Dr. McDonald noted the normal results of the August 29, 2005 ABG,
and indicated that his prior opinion remained unchanged. He reiterated that there was no
evidence of “interstitial fibrosis (asbestosis).” Dr. McDonald also explained that appellant’s
asbestos-related pleural plaques did not have any functional affect.
By decision dated November 16, 2005, the Office denied appellant’s claim for a schedule
award. Appellant requested an oral hearing. In a January 31, 2006 decision, the hearing
representative set aside the November 16, 2005 decision and remand the case for additional
medical development.
Another pulmonary function study was administered on March 16, 2006. In a May 12,
2006 report, Dr. Jamil indicated that in view of the mildly decreased forced expiratory volume1
(FEV1) and diffusing capacity (DLCO) on the March 16, 2006 pulmonary function study
appellant had an impairment of 10 to 25 percent under the A.M.A., Guides (5th ed. 2001).
Dr. McDonald reviewed the case file on May 30, 2006 and found no impairment present.
He noted, among other things, that Dr. Jamil did not document an asbestos-related condition in
his latest report. Additionally, while Dr. McDonald acknowledged that the May 30, 2006 DLCO
result was 73 percent of the predicted value, he explained that appellant had a normal diffusing
capacity when corrected for volume of distribution, as represented by the DLCO/VA result.
Thus, he concluded that the most recent spirometry results showed no evidence of impairment.
In a decision dated June 7, 2006, the Office found that appellant was not entitled to a
schedule award.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act and the implementing regulation set 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.7 The Act, 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 American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate

6

Dr. Jamil referenced the A.M.A., Guides 107, Table 5-12.

7

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404 (2006). For total, or 100 percent loss of use of a lung, an employee shall
receive 156 weeks of compensation. 20 C.F.R. § 10.404(a).

3

standard for evaluating schedule losses.8 Effective February 1, 2001, schedule awards are
determined in accordance with the A.M.A., Guides (5th ed. 2001).9
ANALYSIS
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence to see that justice is done.10
Once the Office undertakes development of the record, it must do a complete job in procuring
medical evidence that will resolve the relevant issues in the case.11
The Board finds that the Office medical adviser’s May 30, 2006 report is not probative
for purposes of determining the extent of appellant’s pulmonary impairment. Although
Dr. McDonald concluded that appellant had no impairment, he did not specifically relate his
findings to the A.M.A., Guides (5th ed. 2001).12 In particular, he offered no justification under
the A.M.A., Guides for substituting what appears to be a qualifying DLCO result for what he
characterized as a normal DLCO/VA result. Although Dr. McDonald reported appellant’s total
lung capacity as 7.8 no such result appears on the March 16, 2006 pulmonary function report.13
Lastly, the Board notes that the issue in the present case is not whether appellant has asbestosis.
However, Dr. McDonald continues to offer his opinion on this particular point. And he has
consistently questioned other physicians’ opinions based on their so-called lack of
documentation of asbestosis. Dr. McDonald’s opinion regarding permanent impairment is
premised on his belief that appellant does not have asbestosis and, therefore, does not have any
employment-related impairment because, as he explains, pleural plaques alone do not limit lung
function. While Dr. McDonald may disagree with the diagnosis of asbestosis, as the Office’s
medical adviser he should conduct his review within the framework of the Office’s statement of
accepted facts, which clearly indicates that appellant’s claim has been accepted for employmentrelated pulmonary asbestosis.14
Given the deficiencies in Dr. McDonald’s May 30, 2006 report, the Office should not
have relied on his findings as a basis for denying appellant’s claim for a schedule award.15
8

20 C.F.R. § 10.404 (1999).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003); FECA
Bulletin No. 01-05 (issued January 29, 2001).
10

Horace L. Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell,
34 ECAB 1223 (1983).
11

Richard F. Williams, 55 ECAB 343, 346 (2004).

12

Lela M. Shaw, 51 ECAB 372, 374 (2000).

13

The March 16, 2006 PFS lists appellant’s “TLC” as 7.08.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.7d (April 1993).
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6d (August 2002).

4

Accordingly, the Office did not properly discharge its responsibilities in developing the record.16
The case is remanded to the Office so that it may refer the claim file to a medical adviser to
ascertain whether appellant has a ratable pulmonary impairment under the A.M.A., Guides (5th
ed. 2001). After the Office has developed the case record to the extent it deems necessary, a de
novo decision shall by issued.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 7, 2006 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this decision.
Issued: January 30, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

Richard F. Williams, supra note 11.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, WATSON
COMMUNITY STATION, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 15-1598
Issued: December 7, 2015

Case Submitted on the Record

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

JURISDICTION
On July 20, 2015 appellant filed a timely appeal from a June 23, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days
elapsed between OWCP’s last merit decision of January 9, 2014 and the filing of this appeal,
pursuant to the Federal Employee’s Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to establish clear evidence of error.
On appeal appellant contends that an employment incident caused her to suffer posttraumatic stress disorder (PTSD).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 2013 appellant, then a 45-year-old city carrier, filed a traumatic injury
claim alleging that on November 9, 2013 she suffered a traumatic emotional condition after
witnessing someone being shot while on her route. In a supporting statement, she explained that
as she was reviewing mail in the back of her truck a man with a head wound came around the
corner and informed her that someone was shooting at him and he asked her to call 911.
Appellant explained that she called 911, that the police arrived within four minutes, and that she
gave a statement to the police as to what she had seen. She submitted witness statements. The
employing establishment controverted the claim, alleging that appellant did not qualify for
continuation of pay because she only assisted the man and did not witness the actual shooting.
In a November 18, 2013 note, Robert Jackson, a physician assistant, found appellant
incapacitated from work from November 18 to December 2, 2013.
In a decision dated January 9, 2014, OWCP denied appellant’s claim. It determined that
although the evidence established that the incident occurred as described, her claim was denied
because she failed to submit any medical evidence establishing a diagnosed medical condition
causally related to the accepted incident.
On January 23, 2014 appellant submitted a report from the physician assistant,
Mr. Jackson, in which he noted that she had been seen for PTSD following the shooting incident
while delivering mail on her assigned route. Mr. Jackson noted that since that episode, even
thinking about that neighborhood caused her to develop fearfulness, palpitations, sweats, and
anxiety. He advised that appellant had been prescribed strong medication to take when she had a
panic attack, but that these medications could affect her judgment and ability to drive safely.
Mr. Jackson noted that she had been working with her counselor to help her cope with her mood
disorder and PTSD, but that she remained fearful and anxious to the point of incapacitation. He
recommended that appellant’s mail route be altered as she had no problems in other areas of her
route.
In a January 23, 2014 medical report, Dr. R. Anthony Moore, a Board-certified
psychiatrist, noted that appellant was delivering mail in a high crime area when she heard shots
fired and saw a man run at her who had been shot in the head. He noted that she subsequently
called 911. Appellant described having panic attacks because of flashbacks and recurrent dreams
since that incident. Dr. Moore diagnosed PTSD secondary to the shooting of November 9, 2013.
He explained that appellant experienced an event that involved death or serious injury or threat
of physical integrity to herself or others and that this met the criteria for PTSD. Dr. Moore noted
that she experienced increased psychological distress in a form of anxiety and panic episodes at
the thought that the event could happen again. He noted detachment and estrangement from
others and periods of hypervigilant and startled reactions.
On February 25, 2014 appellant requested review of the written record by an OWCP
hearing representative. By decision dated March 27, 2014, OWCP denied her request as it was
untimely filed and further noted that the case could be equally well addressed by requesting
reconsideration.

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Following the March 27, 2014 decision, appellant submitted March 2014 communication
from the employing establishment noting that she no longer delivered mail in the area where the
November 9, 2013 incident occurred and was given a new bid job where she was driving less
than three hours a day in a totally different area. Dr. Moore was asked whether she could return
to work. He has found appellant still unable to work due to worsening of her mental state.2 In a
December 12, 2014 note, Dr. Moore continued work restrictions for her due to her condition of
PTSD and noted that she continued to experience marked anxiety and panic when it was close to
nightfall.
In a June 30, 2014 report, Dr. Moore noted that appellant’s symptoms of PTSD were
caused by acts of violence which she saw, heard, and felt on the job. He opined, within a
reasonable degree of medical certainty, that as a direct result of her injury which occurred in the
performance of duty she sustained PTSD.
On March 25, 2015 appellant requested that OWCP reconsider her claim. She also filed
an appeal with the Board on March 27, 2015.3
By decision dated June 23, 2015, OWCP denied her request for reconsideration because
it was untimely filed and found that the evidence submitted failed to establish clear evidence of
error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.4
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5 The one-year
period begins on the date of the original decision. However, a right to reconsideration within one
year accompanies any subsequent merit decision on the issues. This includes any hearing or
review of the written record decision, any denial of modification following reconsideration, any
merit decision by the Board, and any merit decision following action by the Board.6
OWCP, however, may not deny an application for review solely because the application
was untimely filed. When an application for review is untimely filed, it must nevertheless
undertake a limited review to determine whether the application establishes clear evidence of

2

Dr. Moore repeatedly used the year 2015 in this note. However, as the note was received by OWCP on
March 18, 2014, the Board concludes that it was a typographical error and that the year was actually intended to
be 2014.
3

On April 27, 2015 the Board dismissed appellant’s appeal, finding that it was untimely filed. Docket No.
15-965 (issued April 27, 2015).
4

20 C.F.R. § 10.607(a).

5

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

6

D.G., 59 ECAB 455 (2008); see also C.J., Docket No. 12-1570 (issued January 16, 2013).

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error.7 OWCP regulations and procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review shows clear evidence of error on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.14
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for reconsideration. As noted, an application for reconsideration must be received
within one year of the date of OWCP’s decision for which review is sought.15 As appellant’s
request for reconsideration was not received by OWCP until March 25, 2015, more than one year
after issuance of the last merit decision on January 9, 2014, it was untimely.16 Consequently, she
must demonstrate clear evidence of error in OWCP’s January 9, 2014 decision denying her
claim.
7

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

8

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5a (October 2011). OWCP procedures further provide that the term clear evidence of error is intended to
represent a difficult standard. The claimant must present evidence which on its face shows that OWCP made an
error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued, would have created a conflict in medical opinion
requiring further development, is not clear evidence of error. See Chapter 2.1602.3c.
9

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

10

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

11

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

12

See supra note 10.

13

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

14

Leon D. Faidley, Jr., supra note 5.

15

20 C.F.R. § 10.607(a).

16

B.W., Docket No. 15-0892 (issued August 26, 2015).

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OWCP accepted the November 9, 2013 incident. It had denied appellant’s claim,
however, because she had failed to establish that she sustained a diagnosed medical condition
causally related to the accepted employment incident. With her untimely request for
reconsideration appellant submitted additional medical evidence. The Board must make an
independent determination as to whether the evidence submitted established clear evidence of
error in OWCP’s decision denying her claim.17
In support of appellant’s reconsideration request OWCP received a January 3, 2014 letter
from Mr. Jackson, a physician assistant. As the underlying issue is medical in nature,
Mr. Jackson’s reports are of no probative value.18
OWCP also received several reports from Dr. Moore dating from January 23 to
June 30, 2014. While Dr. Moore opined that appellant had PTSD caused by the employment
incident the Board has explained that even a detailed well-rationalized medical report which if
submitted before the denial was issued would have created a conflict in medical opinion
requiring further development, is still not sufficient to establish clear evidence of error.19 The
record evidence must be sufficient to shift the weight of the evidence in favor of appellant. The
January 23 through June 30, 2014 reports from Dr. Moore do not manifest on their face that
OWCP committed an error in denying appellant’s traumatic injury claim and thus are insufficient
to establish clear evidence of error.
CONCLUSION
OWCP properly determined that appellant’s request for reconsideration was untimely
filed pursuant to 20 C.F.R. § 10.607(a) and failed to establish clear evidence of error.

17

See D.G., Docket No. 08-137 (April 14, 2008).

18

See George H. Clark, 56 ECAB 162 (2004); a physician assistant is not a physician as defined by FECA at
5 U.S.C. § 8101(2) and any report from such individual does not constitute competent medical evidence.
19

D.G., 59 ECAB 455 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2015 is affirmed.
Issued: December 7, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, St. Cloud, MN, Employer
__________________________________________

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

Docket No. 09-603
Issued: September 29, 2009

Case Submitted on the Record

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

JURISDICTION
On December 31, 2008 appellant filed a timely appeal from the October 21, 2008
decision of the Office of Workers’ Compensation Programs denying a schedule award. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to a schedule award pursuant to 5 U.S.C. § 8107
for a permanent impairment to his lungs.
FACTUAL HISTORY
On June 21, 2007 appellant, then a 72-year-old former pipe fitter and boiler plant
operator, filed an occupational claim (Form CA-2) alleging that he sustained asbestosis as a
result of his federal employment. The reverse of the claim form indicated that he had retired in
1997.

The Office referred appellant to Dr. Thomas Mulrooney, a pulmonary specialist, for an
opinion as to causal relationship between a pulmonary condition and his federal employment. In
a report dated January 25, 2008, Dr. Mulrooney provided a history and results on examination.
He stated that the pulmonary function measurements showed normal values for lung volumes,
with “a slight reduction (65 percent of predicted) in diffusion capacity.” The pulmonary function
test dated January 16, 2008 showed forced vital capacity (FVC) of 4.29, forced expiratory
volume in first second (FEV1) of 3.08 and 18.58 diffused capacity for carbon monoxide (Dco).
Dr. Mulrooney opined that appellant had asbestosis causally related to his federal employment.
Based on his report, the Office accepted asbestosis.
On February 12, 2008 appellant filed a claim for a schedule award. In a letter dated
March 10, 2008, the Office requested that he submit medical evidence as to a permanent
impairment under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). In a report dated May 1, 2008, Dr. Mulrooney noted that “the
diffusing capacity is at the lower end of the normal range.”1 He opined that, “No whole-body
impairment exists under applicable criteria in “A.M.A., Guides to disability”. This decision is
based on the normal measurements of pulmonary function and the applicable tables that are
published in the A.M.A., Guides.”
In a report dated August 27, 2008, an Office medical adviser reviewed the medical
evidence. He noted a slight reduction in diffusion capacity. The Office medical adviser stated
that there was no anatomical loss of the lung or significant decrease in pulmonary function and
therefore appellant was a Class 1 with no lung impairment.
By decision dated October 21, 2008, the Office determined that appellant was not entitled
to a schedule award. It found that the medical evidence did not show impairment to the lungs.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing federal regulations,3 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. 5 U.S.C. § 8107 provides that, if there is permanent disability involving
the loss or loss of use of a member or function of the body, the claimant is entitled to a schedule
award for the permanent impairment of the scheduled member or function.4 Neither the Act nor
the regulations specify the manner in which the percentage of impairment for a schedule award
shall be determined. For consistent results and to ensure equal justice for all claimants the Office
1

It appears that Dr. Mulrooney was acting as an attending physician, he indicated that appellant was referred by
another attending physician, Dr. Gary Strandemo, Board-certified in family practice.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid, additional members of the body
are found at 20 C.F.R. § 10.404(a).

2

has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of
February 1, 2001, the 5th edition of the A.M.A., Guides was to be used to calculate schedule
awards.6
Chapter 5 of the fifth edition of the A.M.A., Guides provides that permanent impairment
of the lungs is determined on the basis of pulmonary function tests, i.e., the FVC and the one
second FEV1, the ratio between FEV1 and FVC and Dco. The values for predicted and observed
normal values for FEV1, FVC and Dco are found in Tables 5-2a through 5-7b.7 The A.M.A.,
Guides provides a table consisting of four classes of respiratory impairment based on a
comparison of observed values for certain ventilatory function measures and their respective
predicted values.8 For Classes 2 through 4, the appropriate class of impairment is determined by
whether the observed values fall alternatively within identified standards for FVC, FEV1, Dco or
maximum oxygen consumption (VO2Max). For each of the FVC, FEV1 and Dco results, an
observed result will be placed within Class 2, 3 or 4 if it falls within a specified percentage of the
predicted value for the observed person. For example, a person is within a Class 2 impairment,
equaling 10 to 25 percent impairment of the whole person, if the FVC, FEV1 or Dco is above 60
percent of the predicted value and less than the lower limit of normal.9 Section 5.10 of the
A.M.A., Guides advises that at least one of the criteria must be fulfilled to provide an individual
with an impairment rating.
Office procedures state that impairment to the lungs should be evaluated in accordance
with the A.M.A., Guides, insofar as possible, noting that the percentage of whole man
impairment will be multiplied by 312 weeks (twice the award for loss of function of one lung) to
obtain the number of weeks payable; all such awards will be based on the loss of use of both
lungs.10
ANALYSIS
The Office denied a schedule award for impairment to the lungs on the grounds that the
medical evidence did not establish an impairment under the A.M.A., Guides. As part of the
development of the case, a pulmonary function test was performed on January 16, 2008. With
regard to Dco, the diffusing capacity for carbon monoxide, the reported result was 18.58.
Dr. Mulrooney noted a diffusion capacity of 65 percent of predicted and referred to the diffusion
capacity as being “at the lower end” of the normal range. The Office medical adviser generally
noted a “slight reduction” in diffusing capacity without further explanation. Neither physician
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 01-05 (January 29, 2001).

7

A.M.A, Guides 95-100. The pulmonary function tables are based on gender, age and height and contain
predicted normal and predicted lower limit of normal values.
8

Id. at 107, Table 5-12.

9

Id. at 107.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a)(1) (August 2002).

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specifically discussed Tables 5-12 and 5-6b in this regard. Under Table 5-6b, the predicted
lower limit of normal diffusing capacity for a 72-year-old male with a height of 170 centimeters
(cm) Dr. Mulrooney reported appellant’s height as 67 inches in his January 25, 2008 report was
20.1.11 As noted above, according to Table 5-12, a Dco of less than the lower limit of normal
and more than 60 percent of predicted normal is a Class 2 impairment (10 to 25 percent).
The medical evidence does not adequately address the issue or explain why appellant did
not have an impairment under Tables 5-12 and 5-6b based on the reported Dco results. The case
will be remanded to the Office for additional development. On remand, the Office should secure
medical evidence with a rationalized medical opinion regarding a permanent impairment under
the A.M.A., Guides for respiratory disorders. After such further development as the Office
deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case must be remanded to the Office for further development of
the medical evidence regarding a permanent impairment to the lungs.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2008 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 29, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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In his May 1, 2008 report, Dr. Mulrooney reported appellant was 69 inches tall or 175.3 centimeters. The
predicted lower limit of normal diffusing capacity for a 72-year-old man whose height is 176 cm. is 22.5.

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