United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Memphis, TN, Employer
__________________________________________

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

Docket No. 16-0754
Issued: October 17, 2016

Case Submitted on the Record

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

JURISDICTION
On March 4, 2016 appellant filed a timely appeal of a December 31, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant sustained a traumatic injury on November 3, 2014 causally
related to the accepted employment incident.
FACTUAL HISTORY
On November 6, 2014 appellant, a 39-year-old paralegal specialist, filed a traumatic
injury claim (Form CA-1), alleging that she sustained an injury on November 3, 2014 when she

1

5 U.S.C. § 8101 et seq.

experienced an anxiety attack and fell to the floor, injuring her head, neck, back, and shoulder.
She stopped work on November 3, 2014.
Appellant asserted in a statement attached to the form that she experienced anxiety after
being involved in a heated conversation with her supervisor, who was verbally abusive and
physically intimidated her, and that she subsequently lost consciousness. She related that she
was walking past her supervisor’s office when her supervisor called her name and told her to
come into her office. The supervisor then told appellant that she understood that appellant was
upset on Friday, and she then asked whether appellant was upset for having to take annual leave
to attend continuing legal education (CLE) training. Appellant related that she replied that she
did not know she had to take annual leave to attend the CLE training, but that she requested
leave, as told. She asserted that her supervisor’s voice became loud and her tone became
extremely harsh. Appellant was then told that she should have known because she attended CLE
last year and was told that she needed to get permission to attend. She related that she told her
supervisor that she remembered that she had to change her leave to administrative leave last year,
and that she now knew the proper procedure and had complied.
Appellant related that her supervisor became enraged and yelled, “leaving to attend a
CLE without permission is like stealing time from the government.” She alleged that when she
again defended her actions her supervisor stood up, moved from behind her desk, hovered over
appellant yelling, “you learned nothing at the CLE that would be helpful to the employing
establishment as a paralegal.” Appellant alleged that she began to cry and her supervisor
screamed, “Why are you crying?” to which appellant responded “I’m a sensitive person.”
When appellant asked her supervisor if she could leave the room and return to her office,
the supervisor moved and stood in front of her office door and blocked the path, refusing to let
appellant exit her office. Appellant alleged that she was standing while her supervisor ranted
that she should not be crying and should not have been upset. She felt threatened and scared for
her safety, she then lost consciousness and passed out and fell down hard on the floor. When
appellant awakened she was lying on the floor with her entire body and head in excruciating
pain. At that point someone called 911 and took her to the hospital in an ambulance. An
incident report submitted with the claim noted that appellant passed out and fell to the floor on
November 3, 2014.
On December 12, 2014 OWCP advised appellant that it required factual and medical
evidence to determine whether she was eligible for compensation benefits. It asked her to submit
a comprehensive report from a treating physician describing her symptoms and the medical
reasons for her condition, with an opinion as to whether her claimed condition was causally
related to her federal employment. OWCP afforded appellant 30 days to submit this evidence.
In a December 19, 2014 statement, appellant’s supervisor rebutted her allegations that she
engaged in abusive conduct which caused appellant to experience anxiety and lose consciousness
on November 3, 2014. She asserted that she was not responsible for appellant’s dropping to the
floor in her office. The supervisor denied that she hovered over appellant, that she moved and
stood in front of her door and blocked appellant’s path, refusing to allow her to exit her office,
and denied that she yelled, shouted and screamed at appellant. She advised that there were three
coworkers who were sitting close to her office who would have overheard her yelling, shouting,

2

and screaming at appellant. The supervisor related that she had asked appellant to appear in her
office to speak with her about three issues concerning her leave and attendance and office
conduct. After discussing these three issues with appellant, appellant asked her supervisor
whether she was finished, and she responded that she was. The supervisor denied appellant’s
assertion that she moved and stood in front of her office door and blocked her path, refusing to
let appellant exit her office. She related that after appellant left her office she heard her fall,
went out to assist her, and then called 911 and waited for paramedics to attend to appellant.
In a January 9, 2015 report, Dr. Henry Stamps, a specialist in internal medicine, noted
that he had been treating appellant since November 5, 2014 for acute stress reaction and
concussion following a syncope episode. He reported that the syncope occurred at work after
appellant had a hostile encounter at work with her immediate supervisor. Dr. Stamps noted that
when he first saw appellant on November 5, 2014 she was having trouble expressing herself
because she was experiencing stress. He reported that she was in severe pain. Dr. Stamps
prescribed pain medication and muscle relaxers. He asserted that appellant returned on
November 11, 2014 because her condition had not greatly improved. Dr. Stamps adjusted her
medication regimen and referred her to physical therapy for neck and back pain. He advised that
despite undergoing physical therapy appellant returned for further treatment on November 25,
2014, as she was still complaining of pain and headaches. Dr. Stamps opined that more leave
time was warranted. He related that appellant had since recovered and had been able to return to
work since December 18, 2014.
By decision dated January 20, 2015, OWCP denied the claim, finding that the alleged
incident occurred in the performance of duty and that appellant had been diagnosed with
syncope, but that appellant failed to submit sufficient medical evidence to establish that the
accepted incident caused her diagnosed condition.
By letter dated September 18, 2015, appellant requested reconsideration of the
January 20, 2015 decision.
In an April 13, 2015 report, received by OWCP on September 29, 2015, Dr. Stamps
advised that, after reviewing appellant’s medical records from her November 3, 2014 emergency
room visit and his November 5, 2014 examination, he had diagnosed appellant with an acute
stress reaction following a syncope in which she suffered a concussion. He reported that on
November 3, 2014 appellant fainted, had an acute stress reaction and fell at work during a hostile
confrontation from her supervisor. Dr. Stamps advised that syncope occurs under fear and
emotional distress; appellant’s laboratory reports hours after she had a hostile confrontation at
work showed that she was still under such stress that her heart rhythms displayed sinus
tachycardia, nonspecific T-wave abnormalities, and an abnormal electrocardiogram upon first
review; appellant also had poor R-wave progression. He opined that these findings revealed an
acute stress reaction which could occur as a result of a hostile confrontation at work and from a
traumatic fall. During the November 25, 2014 visit, Dr. Stamps advised her that her syncope
was due to the acute stress reaction which occurred as a direct result from the hostile
confrontation from her supervisor. He opined that the hostile confrontation placed appellant
under fear and emotional distress which caused her syncope and an acute stress reaction and a
concussion.

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By decision dated December 31, 2015, OWCP denied modification of the January 20,
2015 decision. It found that Dr. Stamp’s reports were not based on an accurate history of injury
as there were inconsistencies of record as to the events of November 3, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that 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, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
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.5 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.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature. The fact that the cause of a particular fall cannot be determined does not establish that
it was due to an idiopathic condition and if the record does not establish a particular fall was due
to an idiopathic condition, it must be considered as merely an unexplained fall, which is covered
under FECA.8
2

5 U.S.C. § 8101 et seq.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

See T.S., Docket No. 26-0113 (issued May 3, 2016).

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ANALYSIS
OWCP accepted that an incident occurred on November 3, 2014 and that appellant fell; it
did not accept that she sustained syncope causally related to employment factors. The Board
finds that the case is not in posture for decision.
While OWCP initially found in the January 20, 2015 decision that the incident occurred as
alleged, it also found that the medical evidence of record did not establish that the accepted
incident caused appellant’s diagnosed condition. Appellant thereafter submitted additional reports
from Dr. Stamps which were generally supportive of appellant’s claim. OWCP then denied the
claim finding that Dr. Stamps’ reports were not based on an accurate history of injury as there were
inconsistencies in the record as to the incident of November 3, 2014. It however never made any
findings as to the nature and circumstances of the accepted incident, and did not explain the
inconstancies of record. The Board also notes that OWCP never evaluated whether appellant’s fall
on November 3, 2014 was an idiopathic or unexplained fall.9
Appellant submitted reports from Dr. Stamps, who opined that the syncope occurred at
work after she had a hostile encounter at work with her immediate supervisor. Dr. Stamps noted
that when he first saw appellant on November 5, 2014 she was having trouble expressing herself
because she was experiencing stress. He reported that she was in severe pain, he prescribed pain
medication and muscle relaxers. Dr. Stamps asserted that appellant returned on November 11,
2014 because her condition had not greatly improved. He adjusted her medication regimen and
referred her to physical therapy for neck and back pain. Dr. Stamps advised that despite
undergoing physical therapy appellant returned for further treatment on November 25, 2014, as
she was still complaining of pain and headaches. He opined that more leave time was warranted.
Dr. Stamps related that appellant had since recovered and had been able to return to work since
December 18, 2014. In his April 13, 2015 report, he advised that, after reviewing appellant’s
medical records from her November 3, 2014 emergency room visit and his November 5, 2014
examination, he had diagnosed appellant with an acute stress reaction following a syncope in
which she suffered a concussion. Dr. Stamps reported that on November 3, 2014 appellant
fainted, had an acute stress reaction and fell at work during a hostile confrontation from her
supervisor. He advised that syncope occurs under fear and emotional distress; appellant’s
laboratory reports hours after she had a hostile confrontation at work showed that she was still
under such stress that her heart rhythms displayed sinus tachycardia, nonspecific T-wave
abnormalities, and an abnormal electrocardiogram upon first review; appellant also had poor Rwave progression. Dr. Stamps opined that these findings revealed an acute stress reaction which
could occur as a result of a hostile confrontation at work and from a traumatic fall. During
November 25, 2014 visit, he advised her that her syncope was due to the acute stress reaction
which occurred as a direct result from the hostile confrontation from her supervisor. Dr. Stamps
opined that the hostile confrontation placed appellant under fear and emotional distress which
caused her syncope and an acute stress reaction and a concussion.
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
9

See L.R., Docket No. 15-0255 (issued April 1, 2015).

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shares responsibility in the development of the evidence to see that justice is done.10 While
Dr. Stamp’s reports do not contain sufficient rationale to discharge appellant’s burden of proving
by the weight of the reliable, substantial, and probative evidence that her syncope condition and
were caused by the accepted employment incident, his reports raise an inference of causal
relationship sufficient to require further development of the case record by OWCP.11
If however the cause of the fall cannot be determined or the reason it occurred cannot be
explained, then it is an unexplained fall and any resulting injury would be compensable. The
burden of proof is on OWCP to establish that the fall was idiopathic.12
On return of the case record OWCP shall prepare a statement of accepted facts and refer
appellant to a second opinion physician to determine whether her interaction with her supervisor
on November 3, 2014 caused a syncopal episode, fall and resulting injuries. In the alternative,
the second opinion physician should be asked for an opinion as to whether appellant’s fall was
idiopathic or unexplained in nature. After such further development as necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

William J. Cantrell, 34 ECAB 1223 (1983). See also J.S., Docket No. 13-2022 (issued July 28, 2014).

11

See John J. Carlone, supra note 5; Horace Langhorne, 29 ECAB 820 (1978).

12

Supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the December 31, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this decision.
Issued: October 17, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
Jeffery M. Isrel, for the appellant
Office of Solicitor, for the Director

Docket No. 11-1633
Issued: September 14, 2012

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 July 6, 2011 appellant, through his representative, filed a timely appeal of a June 10,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to modify the May 4, 2011
loss of wage-earning capacity determination.
FACTUAL HISTORY
On March 29, 1995 appellant, then a 49-year-old letter carrier, sustained an injury due to
a motor vehicle accident while in the performance of duty which OWCP accepted for cervical
strain and lumbar strain. On May 5, 1996 he sustained an injury between his shoulder blades, his
1

5 U.S.C. § 8101 et seq.

right arm and right hand while moving a full tray of flats which OWCP accepted for cervical
strain. On April 19, 1997 appellant bent over and pulled a tray of flats when he experienced pain
in his left shoulder and neck. He was restricted from lifting above five pounds for three days
after which he was supposed to be released to regular duty; however, he continued to work with
restrictions. Appellant underwent a C7-T1 fusion surgery on September 2, 1998.
On November 20, 1998 appellant accepted a light-duty position as a modified letter
carrier. According to a Notification of Personnel Action (PS Form 50), she had been working
the position since November 2, 1998. Appellant worked under the following restrictions:
sitting, standing and walking intermittently for four hours in an eight-hour day, lifting up to 20
pounds intermittently for six hours in an eight-hour day, pulling and pushing for two hours per
day, simple grasping intermittently for two hours per day while writing, driving for four hours
per day, twisting, bending, stooping and reaching above the shoulder for two hours per day and
no kneeling or climbing. His duties included: telephone assistance; assisting vehicle operations
maintenance assistant (VOMA); filing; special delivery/Express Mail; clearly accountable
mail/fixed credit; assisting supervisor and customer service with clerical duties; retrieving
vacation hold mail, lobby sweeps, customer assistance; assisting in box section; changing locks
for all stations; accountable mail/parcels, second notices and returns.
By letter dated February 10, 2011, the employing establishment stated that following the
guidelines established by the National Reassessment Process (NRP) it was unable to provide
sufficient work within appellant’s restrictions to allow him to work eight hours a day.
On February 15, 2011 appellant accepted, under protest, a limited-duty position as a letter
carrier. His duties included: Express Mail delivery (Tuesday through Friday) for an average of
three hours a day; passports for an average of two hours a day; delivery of mounted swings for
an average of one hour a day; and lock changes (Monday only) for an average of three hours a
day. The physical requirements of the position included: operation of motor vehicle/sitting,
standing, walking and simple grasping for an average of four hours a day and lifting for an
average of .75 hours a day.
By decision dated May 4, 2011, OWCP found that appellant was employed as a modified
letter carrier effective November 2, 1998 and that this position fairly and reasonably represented
appellant’s wage-earning capacity. It retroactively reduced his compensation benefits to zero.
Appellant filed claims for compensation requesting wage-loss compensation beginning
January 29, 2011 due to NRP. In a letter dated May 9, 2011, OWCP informed him that as a
formal loss of wage-earning capacity decision had been issued, he must meet the criteria to
modify the wage-earning capacity determination to receive compensation benefits.
By letter dated May 26, 2011, appellant, through his representative, alleged that his loss
of wage-earning position was an odd-lot job designed for his needs and was not a regular
position.
By decision dated June 10, 2011, OWCP denied modification of the May 4, 2011 loss of
wage-earning capacity determination.

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LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity.3
Once wage-earning capacity is determined, a modification of such determination is not
warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous. These are the customary criteria for modification, and the
burden of proof is on the party attempting to show that modification of the determination is
warranted.4
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of wageearning capacity decision has been issued, OWCP must develop the evidence to determine
whether a modification of that decision is appropriate.5
ANALYSIS
After OWCP issued its formal loss of wage-earning capacity decision, the employing
establishment reassessed appellant’s rated position under NRP, resulting in a withdrawal of
limited duty and a claim for wage-loss compensation beginning January 29, 2011. OWCP
analyzed the case under the customary criteria for modifying a wage-earning capacity
determination, but did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures
outlined therein for claims, such as this, in which limited-duty positions are withdrawn pursuant
to NRP. Moreover, the May 4, 2011 decision constituted a retroactive wage-earning capacity
determination which, according to FECA Bulletin No. 09-05, should not be made in NRP cases
absent approval from the district director. Such approval is not documented in the record on
appeal.
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.6 To this end, FECA Bulletin No. 09-05 asks OWCP to confirm that the file
2

5 U.S.C. § 8102(a).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
4

See Daniel J. Boesen, 38 ECAB 556 (1987).

5

FECA Bulletin No. 09-05 (issued August 18, 2009). See also M.A., Docket No. 12-316 (issued July 24, 2012).

6

FECA Bulletin No. 09-05 id.

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contain documentary evidence supporting that the position was an actual bona fide position. It
requires OWCP to review whether a current medical report supports employment-related
disability and establishes that the current need for limited duty or medical treatment is a result of
injury-related residuals and to further develop the evidence from both the claimant and the
employing establishment if the case lacks current medical evidence.7
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.8
If, after development and review by OWCP, the evidence establishes that the wageearning capacity decision was proper and none of the customary criteria for modifying the
determination were met, then OWCP may issue a decision denying modification of the wageearning capacity determination.9
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the June 10, 2011 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate de novo
decision on appellant’s entitlement to wage-loss compensation beginning January 29, 2011.10
CONCLUSION
The Board finds that this case is not in posture for determination on whether appellant
met his burden of proof to modify the May 4, 2011 loss of wage-earning capacity determination.
Further action by OWCP is warranted.

7

Id. at §§ I.A.1-2.

8

Id. at § I.A.3.

9

Id. at § I.A.4.

10

See M.E., Docket No. 11-1416 (issued May 17, 2012).

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ORDER
IT IS HEREBY ORDERED THAT June 10, 2011 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action.
Issued: September 14, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Florence, AZ, Employer
__________________________________________

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

Docket No. 21-1413
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 20, 2021 appellant filed a timely appeal from an April 20, 2021 merit
decision and a May 7, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 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.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award; and
1
The Board notes that, following the May 7, 2021 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

5 U.S.C. § 8101 et seq.

(2) 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
On July 8, 2019 appellant, then a 28-year-old deportation officer, filed a traumatic injury
claim (Form CA-1) alleging that she developed cysts on both wrists on July 5, 2019 during
physical training while in the performance of duty.3 OWCP accepted the claim for bilateral carpal
tunnel syndrome and left wrist ganglion and resulting surgery. It authorized wage-loss
compensation on the supplemental rolls beginning on June 9, 2020. Appellant returned to fulltime light-duty work on July 12, 2020 and full-duty work on September 13, 2020.
On November 25, 2019 appellant underwent electromyogram and nerve conduction
velocity (EMG/NCV) studies of the upper extremities, which exhibited no electrodiagnostic
evidence of neuropathy or radiculopathy.
On December 2, 2019 appellant underwent a magnetic resonance imaging (MRI) scan of
her left wrist, which demonstrated small synovial cyst and capsular defect of the radiocarpal
articulation without vascular involvement, and a tiny partial tear or degeneration of the triangular
fibrocartilage complex.
On June 9, 2020 appellant underwent OWCP-authorized bilateral carpal tunnel surgical
releases and left snuffbox ganglion excision.
On July 29, 2020 appellant underwent an MRI scan of her right wrist due to a right wrist
lump following her carpal tunnel release surgery. This scan demonstrated joint effusion.
In a report dated October 9, 2020, appellant’s attending physician, Dr. Joseph L. Haber, a
Board-certified hand and plastic surgeon, found that she had reached maximum medical
improvement (MMI) with excellent sensation of the digits, a negative Tinel’s sign over the median
nerves, and intact sensation. He reported that appellant had zero percent disability.
On March 9, 2021 appellant filed a claim for (Form CA-7) for a schedule award. By letter
dated March 15, 2021, she noted that she received a response to her Form CA-7, that she would
need to be seen by a doctor for an impairment rating and requested approval to see a different
doctor.
In a March 15, 2021 development letter, OWCP requested that appellant provide an
impairment rating using the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded her 30 days to submit
additional medical evidence in support of her schedule award claim.

3

In her April 11, 2020 response to an OWCP development questionnaire, appellant clarified that her claim was for
an occupational disease developing from June through July 2019.
4

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

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In a March 22, 2021 report, Dr. Haber found that appellant had no permanent impairment.
In a letter of even date, appellant requested an evaluation by another physician.
By decision dated April 20, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body, warranting a schedule award.
On April 25, 2021 appellant requested reconsideration of the April 20, 2021 decision. She
asserted that Dr. Haber failed to consider the fluid in her right wrist, her pain, and her inability to
perform common tasks such as pushups as well as gripping and carrying heavy objects.
By decision dated May 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 5 and its implementing regulations 6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards. 7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in A.M.A.,
Guides, Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying
relevant text.8 In Table 15-23, grade modifier levels (ranging from zero to four) are described for
the categories of test findings, history, and physical findings. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down based on functional scale, an
assessment of impact on daily living activities (QuickDASH).9
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 10 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence, which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.a. (March 2017); Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 449.

9

Id. at 448-49.

10

J.P., Docket No. 21-0801 (issued December 22, 2021); N.S., Docket No. 21-0508 (issued September 22, 2021);
Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

3

which this occurred (date of MMI), describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the A.M.A.,
Guides.11 Its procedures further provide that, if a claimant has not submitted a permanent
impairment evaluation, it should request a detailed report that includes a discussion of how the
impairment rating was calculated. 12 If the claimant does not provide an impairment evaluation
and there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award. 13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedu le award.
OWCP, on March 15, 2021, requested that appellant submit a permanent impairment
evaluation from her physician addressing the extent of any employment-related permanent
impairment using the A.M.A., Guides. Appellant did not, however, submit any medical evidence
establishing permanent impairment.
In his October 9, 2020 report, Dr. Haber found that appellant had reached MMI with
excellent sensation of the digits, a negative Tinel’s sign over the median nerves, and intact
sensation. He did not report any permanent impairment.
As noted above, appellant must submit an evaluation from a physician that includes a
description of impairment 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. 14
As she has not submitted any medical evidence supporting permanent impairment of a scheduled
member or function of the body due to her accepted conditions, the Board finds that she has not
met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

11

Supra note 7 at Chapter 2.808.5 (March 2017).

12

Id. at Chapter 2.808.6a. (March 2017).

13

Id. at Chapter 2.808.6c. (March 2017).

14

See D.J., Docket No. 20-0017 (issued August 31, 2021); B.V., Docket No. 17-0656 (issued March 13, 2018);
C.B., Docket No. 16-0060 (issued February 2, 2016); P.L., Docket No. 13-1592 (issued January 7, 2014).

4

LEGAL PRECEDENT -- ISSUE 2
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 own motion or on application. 15
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
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request fo r reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 1
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).
OWCP previously denied her claim because the medical evidence of record was
insufficient to establish permanent impairment of scheduled member or function of the body,
warranting a schedule award. Thus, the Board must determine if appellant presented sufficient
evidence or argument regarding her schedule award claim to warrant a merit review pursuant to
5 U.S.C. § 8128(a).20
In her April 25, 2021 reconsideration request, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law and did no t advance a new and relevant
15

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).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

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 the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). 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). Chapter 2.1602.4b.
18

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

19

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

20

See S.M., Docket No. 21-0392 (issued August 12, 2012); H.T., Docket No. 20-1318 (issued April 27, 2021).

5

legal argument not previously considered by OWCP. Accordingly, the Board finds that appellant
is not entitled to a review of the merits based on the first and second above -noted requirements
under 20 C.F.R. § 10.606(b)(3).21
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. With her reconsideration request, appellant submitted a
statement noting her disagreement with Dr. Haber’s October 9, 2020 report finding no evidence of
permanent impairment. The underlying issue of the present case is whether appellant has
submitted sufficient medical evidence to establish impairment of scheduled member o r function
of the body. The Board has held that the submission of evidence or argument which does not
address the particular issue involved does not constitute a basis for reopening a case. 22 Thus, she
is not entitled to a review of the merits of her claim based on the third requirement under 20 C.F.R.
§ 10.606(b)(3). 23
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of her claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

21

Supra note 15.

22

A.M., Docket No. 20-1417 (issued July 30, 2021); E.J., Docket No. 19-1509 (issued January 9, 2020); M.K.,
Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224-25 (1979).
23

Supra note 15; see T.H., Docket No. 18-1809 (issued May 23, 2019); Johnny L. Wilson, Docket No. 98-2536
(issued February 13, 2001).
24

See D.M., Docket No. 18-1003 (issued July 16, 2020); D.S., Docket No. 18-0353 (issued February 18, 2020);
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

ORDER
IT IS HEREBY ORDERED THAT the April 20 and May 7, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, COLORADOWYOMING PERFORMANCE CLUSTER,
Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 14-1134 &
14-1216
Issued: August 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2014 appellant, through counsel, filed a timely appeal from the
November 22, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
and, on April 18, 2014, she filed a timely appeal from a November 25, 2013 nonmerit decision of
OWCP. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she had
work-related disability for the period April 12, 2005 to August 15, 2008; and (2) whether OWCP
properly refused to reopen appellant’s case for further review of the merits on the grounds that
her September 6, 2013 reconsideration request was untimely filed and failed to demonstrate clear
evidence of error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 10, 2006 appellant then a 50-year-old casual carrier, filed an occupational
disease claim alleging that she sustained internal derangement of her right knee and bilateral
sciatica due to the repetitive duties of her job. She first became aware of her claimed conditions
on March 1, 2005. Appellant stopped work on April 12, 2005 and was terminated from the
employing establishment effective April 14, 2005.2
In a March 1, 2006 report, Dr. Christopher B. Ryan, an attending Board-certified
physiatrist, provided a description of his first examination of appellant. He noted that her
complaints began in late March 2005 or early April 2005 due to her new duties of carrying mail.
Dr. Ryan described the reported April 12, 2005 incident3 and detailed appellant’s employment
duties at K-Mart, which were performed after she stopped working at the employing
establishment on April 12, 2005. He reviewed medical records from 2005 and found that they
showed slight swelling and minimal effusion of the right knee. Dr. Ryan provided a diagnosis of
substantial permanent aggravation of right knee osteoarthritis which was related to the
employment duties appellant described in her Form CA-2.
In an April 3, 2007 report, Dr. Ryan reiterated some of the historical information and
noted that he had reviewed an October 24, 2003 magnetic resonance imaging (MRI) scan study.
It showed significant degenerative changes, bursitis and chondromalacia. Dr. Ryan again
reviewed the 2005 medical records and described the results of a right knee MRI scan study
dated February 15, 2007, which showed moderate osteoarthritis, very significant patellofemoral
joint space loss and chondromalacia.
In an April 3, 2008 report, Dr. Ryan noted that appellant’s walking in the snow at work in
early April 2005 contributed to the aggravation of her right knee condition. He termed the
reported April 12, 2005 incident as the “straw that broke the camels back,” but indicated that her
exposure was over the course of more than one day and therefore was properly classified as an
occupational illness. Dr. Ryan noted that appellant’s physical examination was difficult and
provided little, if any, evidence of the aggravation, but noted that the diagnostic testing from
October 2003 demonstrated convincing objective findings. He stated that osteoarthritis does not
generally resolve and that appellant’s performance of work duties in March and April 2005,
including actions involved in the April 12, 2005 incident, contributed to her degenerative
arthritis.
OWCP found in a July 23, 2008 decision that appellant’s case should be accepted for the
occupational condition of temporary aggravation of right knee osteoarthritis. It later accepted
2

After April 12, 2005 appellant worked for private employers, including K-Mart, where she worked as a sales
clerk.
3

On April 25, 2005 appellant filed a Form CA-1, traumatic injury claim, stating that on April 12, 2005, at 11:00
a.m., her knee tore when going up and down stairs at work. She described the nature of her injury as torn ligament
fibers to the right knee. OWCP denied this traumatic injury claim in decisions dated June 22, 2005, January 19 and
December 11, 2007 and July 23, 2008. It acknowledged that appellant sustained an occupational disease due to her
repetitive work duties prior to April 12, 2005 and the issue of whether she sustained a traumatic work injury on
April 12, 2005 is not currently before the Board.

2

that she sustained a work-related permanent aggravation of right knee osteoarthritis due to her
repetitive job duties, including engaging in extensive walking, prior to stopping work on
April 12, 2005.
By submission of a Form CA-7 dated August 24, 2008, appellant requested compensation
for the period April 12, 2005 through August 15, 2008.
In an October 9, 2008 report, Dr. Ryan indicated that recent x-rays revealed significant
osteophytes and a loss of substantial cartilage that showed a permanent aggravation. He noted
that appellant had been able to work and use her legs vigorously before the occupational
exposure, but indicated that she was now relegated to a sedentary state.
Appellant submitted excerpts from the testimony Dr. Ryan provided at Equal
Employment Opportunity Commission (EEOC) hearings held on April 16 and 17, 2007.
Dr. Ryan testified that, before April 12, 2005, she sustained a permanent aggravation of her right
knee osteoarthritis. He stated that appellant required various work restrictions, including limiting
the amount of carrying, stair climbing, squatting and kneeling she could perform.
In an August 17, 2009 report, Dr. Ryan stated that diagnostic testing revealed end-stage
osteoarthritis, that the effects of the injury had not ceased and that appellant would need a total
knee arthroplasty which would only be considered after significant weight loss. He stated that
her tolerance for walking, standing, kneeling, stooping, squatting and crawling was greatly
limited. Dr. Ryan noted that appellant could walk about a block and that she could not perform
the job she held when she was injured. He anticipated a return to modified work after the
surgery and stated that she could not drive while at work and needed transportation to and from
any work activities.
By decision dated August 16, 2010, OWCP denied appellant’s claim for compensation
for the period April 12, 2005 through August 15, 2008. It noted that she had held several jobs
after being terminated by the employing establishment. Further, the medical evidence which was
contemporaneous with the beginning dates of her claimed disability cited no objective findings
that her work-related condition caused disability for any specific period.
In a February 2, 2011 decision, an OWCP hearing representative affirmed the August 16,
2010 decision. He found that the reports of Dr. Ryan discussed the permanent aggravation of
appellant’s right knee condition, but did not provide a rationalized opinion on specific periods of
work-related disability between April 12, 2005 and August 15, 2008.
In a July 13, 2012 decision,4 the Board affirmed OWCP’s February 2, 2011 decision,
finding that appellant did not meet her burden of proof to establish that she had work-related
disability for the period April 12, 2005 to August 15, 2008. It noted that the medical evidence
from the period immediately following April 12, 2005 was sparse and did not provide objective
evidence or medical reasoning for the claimed period of disability. The Board noted that
Dr. Ryan began serving as appellant’s physician on March 1, 2006 and discussed his reports
dated March 2006 to August 2009. Although Dr. Ryan noted that appellant sustained a
permanent occupational injury prior to April 12, 2005, he did not provide a clear, rationalized
4

Docket No. 11-1747 (issued July 13, 2012).

3

opinion that she sustained disability due to her employment duties for specific periods between
April 12, 2005 and August 15, 2008.
In a letter dated February 1, 2013, appellant, through counsel, requested reconsideration
of OWCP’s February 2, 2011 decision denying her claim for work-related disability for the
period April 12, 2005 to August 15, 2008.
In an August 29, 2011 report, Dr. Ryan provided a description of his treatment of
appellant’s right knee condition. He noted that appellant worked as a casual carrier up until
April 12, 2005 and then began working for K-Mart on May 11, 2005. Dr. Ryan discussed an
October 24, 2003 MRI scan study of appellant’s right knee which showed bursitis of the tibial
collateral region, advanced chondromalacia of the medial femoral condyle near full thickness,
degenerative changes to the anterior cruciate ligament, mild patellar chondromalacia and
moderate-sized joint effusion. A February 15, 2007 MRI scan study of appellant’s right knee
revealed moderate osteoarthritis, very significant patellofemoral joint space loss and
chondromalacia, proximal medial collateral ligament tear and degenerative changes to the
anterior cruciate ligament. Dr. Ryan stated, “In other words, while significant osteoarthritis was
present in 2003, it had advanced, particularly at the patellofemoral articulation, on the scan of
2007.” He indicated that appellant sustained work-related aggravation of her osteoarthritis prior
to April 12, 2005 and stated:
“Regarding disability, she appears to have been totally disabled between April 12,
2005 and May 11, 2005. Subsequently, she has been partially disabled since that
time. This is based on objective findings noted above. However, with regard to
partial or total disability up to February 28, 2006 related to duties before April 12,
2005, her work permanently accelerated and aggravated her condition before
April 12, 2005, as the degenerative changes demonstrated in 2003 were
permanent. This most probably was caused by the walking, standing, and
squatting that she described in her narratives regarding work duties.
“Regarding the issue of whether [appellant] would have suffered the April 12,
2005 flare-up if she did not already have work-related degenerative arthritis, most
probably she would not have. It seems most likely that the degenerative arthritis
demonstrated on the MRI scan in 2003 made her knee far more vulnerable to
injury than if her knee had been normal.
“Again, with regard to the objective findings which substantiate the claim that she
suffered a worsening of her condition, there was a substantial worsening of the
osteoarthritis that occurred between the scan of 2003 and the scan of 2007.
Correlating this with her clinical course, this aggravation occurred due to work
activity before and on April 12, 2005, to a reasonable degree of medical certainty.
“Regarding the objective findings, they restrict standing and walking insofar as
the joint space has narrowed, and it is far easier to inflame a damaged joint
surface than a healthy one. Chondromalacia involves softening of the cartilage,
and weighting such a joint with softened cartilage more easily breaks down the
cartilage, irritates the underlying tissue (bone), and causes an inflammatory

4

reaction. This inflammatory reaction results in fluid accumulation within the knee
capsule, causing further pain in the joint capsule, and restricting range of motion
by causing a tense effusion in the knee capsule. Standing for long periods of time
puts further pressure on this inflamed joint surface, and causes deep visceral pain
in the knee, as is the case with osteoarthritis.”5
Appellant also submitted reports of Dr. Ryan dated March 29, 2011 to May 30, 2013; an
April 20, 2012 report of Dr. Chris E. Wilkinson, an attending Board-certified orthopedic
surgeon; and an October 1, 2013 report of Dr. Rajesh Bazaz, an attending Board-certified
orthopedic surgeon. Although the reports discussed appellant’s right knee condition, none of the
reports provided an opinion regarding whether appellant had work-related disability for the
period April 12, 2005 to August 15, 2008.6
In a May 1, 2013 decision, OWCP denied appellant’s September 29, 2011
reconsideration request noting that “the request was not valid because the case was already under
review for the same issue” by the Board.7
In an August 29, 2013 letter received on September 6, 2013, appellant, through counsel,
requested reconsideration of OWCP’s May 1, 2013 nonmerit decision denying her
reconsideration request. Counsel argued that appellant’s February 1, 2013 reconsideration
request was improperly denied as untimely. He contended that appellant’s reconsideration
request actually was timely because it was filed within one year of the Board’s July 13, 2012
merit decision.8
In a November 22, 2013 merit decision, OWCP affirmed its prior decisions finding that
appellant did not meet her burden of proof to establish that she had work-related disability for the
period April 12, 2005 to August 15, 2008. It found that Dr. Ryan did not provide adequate
medical rationale with respect to his opinion on appellant’s disability for this period.
In a November 25, 2013 decision, OWCP refused to reopen appellant’s case for further
review of the merits of her claim on the grounds that her September 6, 2013 reconsideration
request was untimely filed and failed to demonstrate clear evidence of error. It found that

5

Dr. Ryan indicated that he did not believe that appellant further aggravated her right knee condition after
stopping work for the employing establishment.
6

The record reflects that appellant underwent OWCP authorized right total knee arthroplasty on October 9, 2013.

7

Appellant filed her appeal with the Board on July 26, 2011 and her reconsideration request was made on
September 26, 2011, while the case was still under review by the Board. See 20 C.F.R. § 501.2 providing that the
Board and OWCP may not exercise simultaneous jurisdiction over the same issue in a case on appeal. See also
Douglas E. Billings, 41 ECAB 880 (1990).
8

The Board notes that OWCP’s May 1, 2013 nonmerit decision actually addressed appellant’s September 29,
2011 reconsideration request. The May 1, 2013 decision did not deny this reconsideration request on the grounds
that it was untimely, but rather denied it on the grounds that the Board and OWCP may not exercise simultaneous
jurisdiction over the same issue in a case on appeal.

5

appellant’s September 6, 2013 reconsideration request was untimely because it was filed more
than a year after the Board’s July 13, 2012 decision.9
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.10 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.11
Whether a particular employment injury causes disability for employment and the
duration of that disability are medical issues, which must be proved by a preponderance of
reliable, probative and substantial medical evidence.12
ANALYSIS -- ISSUE 1
OWCP accepted that appellant suffered a work-related permanent aggravation of right
knee osteoarthritis due to her repetitive job duties, including engaging in extensive walking, prior
to stopping work on April 14, 2005. She stopped work on April 12, 2005 and was terminated
from the employing establishment effective April 14, 2005. By submission of a Form CA-7
dated August 24, 2008, appellant requested compensation for the period April 12, 2005 through
August 15, 2008. In August 16, 2010 and February 2, 2011 decisions, OWCP denied her claim
on the grounds that she did not submit sufficient medical evidence to establish that she had workrelated disability for the period April 12, 2005 to August 15, 2008.
In a July 13, 2012 decision, the Board affirmed OWCP’s February 2, 2011 decision
finding that appellant did not meet her burden of proof to establish that she had work-related
disability for the period April 12, 2005 to August 15, 2008. The Board indicated that Dr. Ryan, a
Board-certified physiatrist, began serving as appellant’s physician on March 1, 2006 and
discussed his reports dated between March 2006 and August 2009. The Board found that
Dr. Ryan did not provide a clear, rationalized opinion that appellant sustained disability due to
her employment duties for specific periods between April 12, 2005 and August 15, 2008.
9

OWCP noted that, in connection with appellant’s timely February 1, 2013 reconsideration request, it had
reopened her claim and issued a November 22, 2013 decision on the merits.
10

J.F., Docket No. 09-1061 (issued November 17, 2009).

11

See E.J., Docket No. 09-1481 (issued February 19, 2010).

12

W.D., Docket No. 09-658 (issued October 22, 2009).

6

After the Board’s July 13, 2012 decision, appellant submitted additional medical
evidence in support of her claim. The Board finds that this additional evidence does not
establish that appellant was totally disabled from April 12, 2005 to August 15, 2008. The reports
do not provide sufficient medical opinion.
In an August 29, 2011 report, Dr. Ryan discussed an October 24, 2003 MRI scan study of
appellant’s right knee and a February 15, 2007 MRI scan study of his right knee and noted the
differences in the two reports. He stated, “[W]hile significant osteoarthritis was present in 2003,
it had advanced, particularly at the patellofemoral articulation, on the scan of 2007.” Dr. Ryan
indicated that appellant sustained work-related aggravation of her osteoarthritis prior to April 12,
2005 and stated, “Regarding disability, she appears to have been totally disabled between
April 12 and May 11, 2005. Subsequently, [appellant] has been partially disabled since that
time. This is based on objective findings noted above. However, with regard to partial or total
disability up to February 28, 2006 related to duties before April 12, 2005, [appellant’s] work
permanently accelerated and aggravated her condition before April 12, 2005, as the degenerative
changes demonstrated in 2003 were permanent.” He further noted that the permanent
aggravation of her right knee made her more vulnerable to further injury.
While Dr. Ryan identified a period of disability beginning April 12, 2005, he did not
provide sufficient medical rationale addressing why appellant was totally disabled during the
period April 12, 2005 to August 15, 2008. The mere fact that OWCP accepted a permanent
aggravation of a preexisting condition does not necessarily confer entitlement to disability
compensation as requested. Dr. Ryan suggested that the fact that there were changes in
appellant’s diagnostic testing between 2003 and 2007 showed that her claimed period of
disability was work related. The diagnostic testing does not raise an inference of causal
relationship between a claimed period of disability and employment factors. Dr. Ryan did not
explain why appellant’s right knee condition beginning April 12, 2005 disabled her from all work,
nor did he explain why her condition beginning May 11, 2005 only partially disabled her from
work. He did not provide any notable discussion of physical examination findings that supported
his stated conclusion that appellant had work-related disability beginning April 12, 2005. In
addition, Dr. Ryan did not explain why her ostensible right knee problems beginning and
continuing after April 12, 2005 would not have been solely due to some nonwork-related problem,
such as the natural progression of her underlying degenerative right knee condition.
The additional reports of Dr. Ryan and the April 20, 2012 report of Dr. Wilkinson, an
attending Board-certified orthopedic surgeon; and an October 1, 2013 report of Dr. Bazaz, an
attending Board-certified orthopedic surgeon, do not provide an opinion regarding whether
appellant had work-related disability for the period April 12, 2005 to August 15, 2008.
Therefore, these reports do not establish appellant’s disability claim for this period.
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.

7

LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.13
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.14 OWCP,
however, may not deny an application for review solely on the grounds that the application was
not timely filed. When an application for review is not timely filed, OWCP must nevertheless
undertake a limited review to determine whether the application establishes “clear evidence of
error.”15 Its 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.16
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.17 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.18 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.19 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.20 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.21
OWCP procedures provide that a “decision denying an application for reconsideration
cannot be the subject of another application for reconsideration.” The only review for this type
13

20 C.F.R. § 10.607(a). According to OWCP procedure, the one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also accompanies any
subsequent merit decision on the issues, including any merit decision by the Board. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (October 2011).
14

5 U.S.C. § 2128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

15

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

16

20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.5a (October 2011). OWCP procedure further provides, “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 a
mistake. For example, a claimant provides proof that a schedule award was miscalculated, such as a marriage
certificate showing that the claimant had a dependent but the award was not paid at the augmented rate. 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.”
17

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

18

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

19

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

20

See Leona N. Travis, supra note 18.

21

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

8

of nonmerit decision is an appeal to the Board and OWCP will not entertain a reconsideration
request or a hearing on this decision denying reconsideration.22
ANALYSIS -- ISSUE 2
In its November 25, 2013 decision, OWCP properly determined that appellant filed an
untimely request for reconsideration. Appellant’s reconsideration request was filed on
September 6, 2013, more than one year after the Board’s July 13, 2012 decision which had
affirmed OWCP’s February 2, 2011 decision finding that appellant did not meet her burden of
proof to establish that she had work-related disability for the period April 12, 2005 to
August 15, 2008.23 Therefore, appellant must demonstrate clear evidence of error on the part of
OWCP in issuing its February 2, 2011 decision.
Appellant has not demonstrated clear evidence of error on the part of OWCP in issuing
its February 2, 2011 decision. She did not submit the type of positive, precise and explicit
evidence which manifests on its face that OWCP committed an error. In her untimely
reconsideration request, appellant did not argue the merits of her claim, but rather alleged that
OWCP improperly denied her reconsideration request in a May 1, 2013 nonmerit decision. Such
argument regarding a nonmerit matter would not provide any support that OWCP committed
error with respect to the merit issue of the present case, i.e., whether the medical evidence shows
that appellant had work-related disability for the period April 12, 2005 to August 15, 2008.24 For
these reasons, the evidence submitted by appellant does not raise a substantial question
concerning the correctness of OWCP’s February 2, 2011 regarding her disability claim for the
period April 12, 2005 to August 15, 2008 and OWCP properly determined that appellant did not
show clear evidence of error in that decision.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
work-related disability for the period April 12, 2005 to August 15, 2008. The Board further finds
that OWCP properly refused to reopen appellant’s case for further review of the merits of her
claim on the grounds that her September 6, 2013 reconsideration request was untimely filed and
failed to demonstrate clear evidence of error.

22

20 C.F.R. § 10.608(b).

23

See supra note 13.

24

Moreover, it should be noted that, under OWCP regulations, a decision denying an application for
reconsideration cannot be the subject of another application for reconsideration. See supra note 22.

9

ORDER
IT IS HEREBY ORDERED THAT the November 25 and 22, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 10-1158
Issued: January 18, 2011

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 March 24, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 29, 2009 nonmerit decision denying reconsideration. The
last merit decision of the Office was a September 2, 2009 decision denying his occupational
disease claim. Because more than 180 days elapsed between the most recent merit decision to
the filing of this appeal, the Board lacks jurisdiction to review the merits of this claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 25, 2007 appellant, then a 58-year-old aircraft sheet metal mechanic leader,
filed an occupational disease claim alleging pain in his hip on July 18, 2005 while lifting and
tilting a 75-pound crew door. He indicated that the injury had aggravated an April 29, 1988 back

injury under case number xxxxx816. Appellant first sought treatment and realized his current
condition was related to his work on July 25, 2005. He also filed a recurrence claim under case
number xxxxxx802, date of injury July 18, 2005, but the case was denied.1
By decision dated March 22, 2007, the Office denied the claim finding that the factual
evidence was insufficient to establish that the claimed incident occurred as alleged.
On April 17, 2007 appellant requested reconsideration. In an undated statement, he
described his injury, submitted medical reports dated July 25 and August 24, 2005 and May 14,
2006 from Dr. P. Jeffrey Jarrett, a Board-certified orthopedic surgeon, medical reports dated
May 21, 1990 and October 15, 1993 from Dr. Kim W. Johnston, a Board-certified neurosurgeon
and a July 25, 2005 radiology report.
By decision dated June 22, 2007, the Office modified the prior decision to find that the
implicated employment factors were established but found that the medical evidence did not
establish that the claimed condition was causally related to employment factors.
On April 7, 2008 appellant requested reconsideration. He submitted December 10, 2007
and January 15, 2008 reports from Dr. Jarrett.
By decision dated June 27, 2008, the Office denied modification of its prior decision.
On February 17, 2009 appellant requested reconsideration and submitted medical reports
from Dr. Jarrett dated March 26, 2006 to October 6, 2008. He also submitted a December 20,
2007 magnetic resonance imaging report.
By decision dated April 27, 2009, the Office denied modification of the June 27, 2008
decision.
On July 31, 2009 appellant requested reconsideration. In a June 18, 2009 report,
Dr. Jarrett advised that he had treated appellant for many years for intermittent symptomatic
lumbar disc disease with left-sided radiculopathy. When he examined appellant on July 25,
2005, the pain was coming from appellant’s back not the left hip. Dr. Jarrett stated that imaging
demonstrated evidence of multilevel lumbar disc disease, which he believed accounted for
appellant’s symptoms. He also noted that, during the examination, appellant had reported that on
July 18, 2005 he was awkwardly lifting a C130 crew door which weighed approximately 75
pounds and that was when his symptoms started. Dr. Jarrett noted that appellant also reported
being treated for a previous lumbar injury in 1988. Appellant reported that, since the 1988
injury, he only experienced occasional back pain which he attributed to the 1988 injury.
Dr. Jarrett stated, “[a]lthough it is not reasonable for me to say that the lifting of the C130 crew
door is the sole basis of [appellant’s] lumbar condition, it is, however, my professional medical
opinion that his clinical findings are consistent with an aggravation of his previous injury.”
1

The Office indicated that claim number xxxxxx816 was accepted for a lumbar strain and herniated nucleus
pulpous L5-S1 and the claim was closed after all appropriate benefits were paid. The claim was not accepted for a
degenerative condition. In claim number xxxxxxx802, the Office found that the medical evidence did not establish a
causal relationship between the new work injury and the diagnosed condition. Claim number xxxxxx816 is not
presently before the Board.

2

By decision dated September 2, 2009, the Office denied modification of its prior decision
as causal relationship was not established.
On December 14, 2009 appellant again requested reconsideration. In a December 9,
2009 report, Dr. Jarrett noted his treatment of appellant’s lumbar condition and repeated his
opinion on causal relation to a reasonable degree of medical certainty.”
By decision dated December 29, 2009, the Office denied appellant’s request for
reconsideration of the merits as he had not submitted any new and relevant evidence or argument
with his request.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
Appellant’s December 14, 2009 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under 20 C.F.R. § 10.606(b)(2).
Appellant did not submit relevant and pertinent new evidence not previously considered
by the Office. While Dr. Jarrett’s December 9, 2009 report is new, it is not relevant as the
physician’s opinion on causal relationship reiterated that in his June 18, 2009 report. The Office
previously considered his opinion in the September 2, 2009 decision. Therefore, Dr. Jarrett’s

2

5 U.S.C. § 8128(a). Section 8128(a) of the Act provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.
3

20 C.F.R. § 10.606(b)(2). See R.B., 61 ECAB ___ (Docket No. 09-1241, issued January 14, 2010); Susan A.
Filkins, 57 ECAB 630 (2006).
4

20 C.F.R. § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); D’Wayne Avila, 57
ECAB 642 (2006).
5

20 C.F.R. § 10.608(b). See R.M., 59 ECAB 690 (2008); Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

3

opinion is cumulative and duplicative. It does not constitute a basis for reopening the case for a
merit review.6
On appeal, appellant takes issue with the denial of his claim and asserts that the evidence
is sufficient evidence to warrant acceptance of the claim. As noted, the Board does not have
jurisdiction over the merits of this case. For the reasons stated above, the Office properly denied
appellant’s request for merit review.
CONCLUSION
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under 20 C.F.R.
§ 10.606(b)(2) and properly denied his December 14, 2009 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 29, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2011
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

6

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Orlando, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1127
Issued: January 29, 2019

Case Submitted on the Record

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

JURISDICTION
On May 14, 2018 appellant, through counsel, filed a timely appeal from a March 13, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to modify a February 19, 2010
loss of wage-earning capacity (LWEC) determination, effective April 18, 2011.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
In a claim adjudicated by OWCP under File No. xxxxxx661, OWCP accepted that
appellant, then a 42-year-old customs and border protection officer, was injured in a motor vehicle
accident on February 27, 1990. The accepted injuries were: closed fracture of left rib(s); contusion
of left shoulder and upper arm; closed fracture of right carpal bone; closed fractures of bilateral
tibia and fibula; fractures of phalanges of left third and fourth toes of foot; and tear of medial
meniscus of the right knee. Appellant returned to work following his injury.
In a claim adjudicated under OWCP File No. xxxxxx318, OWCP accepted that on July 24,
2007 appellant sprained his right ankle and the medial collateral ligament of his right knee when
he fell down stairs. It later expanded acceptance of this claim to include aggravation of
degenerative arthritis of the right knee. Appellant subsequently returned to work for intermittent
periods, until he had a total arthroplasty of the right knee on October 31, 2008. OWCP placed him
on the periodic compensation rolls in December 2008.4
In June 2009 OWCP referred appellant for vocational rehabilitation services. Based on
labor market analysis prepared by the vocational rehabilitation specialist, by letter dated January 6,
2010, OWCP proposed to reduce appellant’s entitlement to monetary compensation due to his
ability to earn wages as a telecommunication dispatcher. By decision dated February 19, 2010, it
reduced appellant’s compensation based on his ability to earn wages in the constructed position of
telecommunication dispatcher.5 On October 19, 2009 appellant elected to receive Office of
Personnel Management (OPM) retirement benefits in lieu of FECA benefits, effective
November 30, 2009. OWCP terminated his FECA compensation effective November 30, 2009.
On August 29, 2011 appellant filed a claim for compensation (Form CA-7) for the period
April 18, 2011 to present. By decision dated October 31, 2011, OWCP denied that appellant
sustained a recurrence of disability on April 18, 2011. Appellant requested a hearing. On May 25,

3

Docket No. 16-1237 (issued May 3, 2017).

4
On January 29, 2010 OWCP administratively combined File Nos. xxxxxx661 and xxxxxx318, with the former
serving as the master file.
5

The telecommunication dispatcher position was sedentary and required no climbing, balancing, stooping,
kneeling, crouching, or crawling. On February 25, 2009 Dr. Christopher Mason, appellant’s attending podiatrist,
provided restrictions of 15 minutes per hour standing and walking with pushing, pulling, and lifting limited to 20
pounds and no squatting, kneeling, or climbing.

2

2012 an OWCP hearing representative set aside the October 31, 2011 decision and remanded the
case to OWCP for further development of the medical evidence.
On August 9, 2012 OWCP expanded acceptance of appellant’s claim under OWCP File
No. xxxxxx661 to include the condition of abnormality of gait.
By de novo merit decision dated November 7, 2012, OWCP again denied that appellant
sustained a recurrence of disability on April 18, 2011. The November 7, 2012 decision was
affirmed by an OWCP hearing representative on May 30, 2013.
Appellant, through counsel, requested reconsideration on April 24, 2014 and
December 15, 2014. In merit decisions dated July 23, 2014 and January 14, 2015, OWCP denied
modification of the prior decisions, finding that appellant had not established a recurrence of
disability commencing April 18, 2011.
Appellant, through counsel, again requested reconsideration on May 26, 2015. By merit
decision dated March 21, 2016, OWCP denied modification of its prior decisions.
Appellant subsequently appealed that decision to the Board. By order dated May 3, 2017,
the Board set aside the March 21, 2016 decision, finding that the case was not in posture for
decision because OWCP applied the standard of review for a timely request for reconsideration
rather than the standard for modifying an LWEC determination.6 The Board remanded the case to
OWCP for adjudication under the proper standard.
Medical evidence relevant to appellant’s condition beginning April 18, 2011 included an
October 27, 2011 letter in which Dr. Mason advised that appellant’s antalgic gait caused secondary
and compensatory pain to his knee, hip, and, he suspected, to his low back. In November 14, 2011
reports, Dr. Mason noted injecting appellant’s right ankle. He indicated that appellant could not
climb, or squat, and standing and walking were limited and commented, “continue light duty[,] sit
down only.”
Dr. Richard Steinfield, a Board-certified orthopedic surgeon, provided a second opinion
evaluation on March 6, 2012. Following his examination, he diagnosed history of multiple
traumatic injuries, obesity, Trendelenburg gait, and chronic low back pain. Dr. Steinfield advised
that all accepted work-related conditions under both OWCP File No. xxxxxx661 and OWCP File
No. xxxxxx318 had resolved with no residuals and that appellant’s gait could be suggestive of
degenerative joint disease of the left hip and back problems which were not related to the 1990
injury.
OWCP determined that a conflict in medical opinion had been created regarding the cause
of appellant’s current disability, and gait and back problems, and referred him to Dr. Robert W.
Elkins, Board-certified in orthopedic surgery. In reports dated May 12 and July 18, 2012,
Dr. Elkins diagnosed adhesive capsulitis of the right shoulder with marked limitation of motion,
decreased wrist range of motion, left knee osteoarthritis with prior surgery, and right ankle loss of
dorsiflexion. He advised that, regarding the accepted contusion of the upper arm and shoulder,
6

Docket No. 16-1237 (issued May 3, 2017).

3

appellant had moderate adhesive capsulitis and decreased range of motion that was probably posttraumatic arthritis of the shoulder joint. Dr. Elkins found that the closed fracture of ribs had
resolved, and the closed fracture of carpal bones (wrist) had resolved with restricted range of
motion in all modalities. He advised that the fracture of phalanges of the foot had resolved without
residuals, but that the closed fracture of tibia and fibula, and tear of medial meniscus of right knee
had remaining residuals which contributed to his limp. Dr. Elkins also noted that appellant had a
total knee replacement due to aggravation of post-traumatic arthritis, and loss of ankle range of
motion, which also contributed to his limp.
In a report dated April 3, 2013, Dr. Thomas F. Winters, Jr., a Board-certified orthopedist,
noted seeing appellant in follow-up for his right knee. He noted that appellant was also having
significant left knee symptoms and provided restrictions of lifting 20 pounds with limited squatting
and climbing.
In an April 3, 2013 report, Dr. Mason noted that appellant had not been seen since 2011.
He diagnosed severe degenerative changes of the left ankle and performed an injection. In a
treatment note dated September 25, 2013, Dr. Mason indicated that appellant had chronic left ankle
osteoarthritis. In correspondence dated October 7, 2013, he advised that appellant had progressive
traumatic degenerative changes in his left ankle that would ultimately require an ankle joint fusion
or arthroplasty. Dr. Mason saw appellant in follow up on May 23, 2014, noting that he had chronic
pain and discomfort associated with osteoarthritis, significant degenerative changes, and joint
effusion. In an undated report, received by OWCP on December 15, 2014, Dr. Mason noted that
he was mainly involved with treating the accepted conditions of appellant’s lower extremities. He
opined that appellant’s condition was progressive in nature and becoming worse with increased
degenerative changes of the knee and ankle directly related to the 1990 and 2007 employment
injuries. Dr. Mason indicated that appellant had restrictions regarding his ability to walk, climb,
stoop or other use of either extremity due to increasing changes, which caused difficulties in
activities of daily living. He concluded that appellant obviously could not work based on these
restrictions as they would cause additional pain and discomfort.
In an April 20, 2015 witness statement, under direct examination by counsel, Dr. Mason
indicated that the employment injuries caused worsening post-traumatic degenerative changes of
appellant’s left ankle such that at some point he would need either a fusion or joint replacement.
He described current complaints of severe pain and discomfort and opined that, if appellant
worked, it would have to be a sit-down job with minimal ambulation but, in his opinion, appellant
was totally disabled due to the severe pain and discomfort of his left ankle that had existed at least
since 2011.
By decision dated June 20, 2017, OWCP found that the medical evidence of record was
insufficient to warrant modification of the February 19, 2010 LWEC determination.
Appellant, through counsel, again requested reconsideration on December 20, 2017.
In a December 11, 2017 report, Dr. Mason noted that appellant had been a long time
patient. By way of history, he indicated that appellant had other accepted conditions of the
shoulder, arms, knees, and aggravation to degenerative conditions, and other signiﬁcant injuries
that were treated by other physicians. Dr. Mason opined that by 2011 and certainly within a year

4

or two after that, appellant would not have been able to work uninterruptedly at any employment
due to the numerous and very painful injuries he had. He concluded that he believed that appellant
was permanently and totally disabled from his foot and ankle injuries alone, maintaining that it
was absurd to think that an individual who had such injuries could have worked since 2011.
By decision dated March 13, 2018, OWCP denied modification of the February 19, 2010
LWEC determination.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of injury
or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is
entitled to compensation computed on loss of wage-earning capacity.7 A loss of wage-earning
capacity determination is a finding that a specific amount of earnings, either actual earnings or
earnings from a selected/constructed position, represents a claimant’s ability to earn wages.8
Generally, an employee’s actual earnings best reflect his wage-earning capacity.9 Absent evidence
that actual earnings do not fairly and reasonably represent the employee’s wage-earning capacity,
such earnings must be accepted as representative of the individual’s wage-earning capacity.10
Compensation payments are based on these determinations, and OWCP’s finding remains
undisturbed until properly modified.11 Modification of a wage-earning capacity determination is
unwarranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous.12 The burden of proof is on the party seeking modification.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify the February 19,
2010 LWEC determination effective April 18, 2011.
Appellant has not alleged that he had been retrained or otherwise vocationally rehabilitated,
or that the February 19, 2010 LWEC determination was erroneous. He has alleged that his
accepted conditions worsened such that he became totally disabled from all work as a result of the
accepted condition commencing April 18, 2011. Since OWCP found that appellant could perform
7

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

8

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

9

Hayden C. Ross, 55 ECAB 455, 460 (2004).

10

Id.

11

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

12

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2
-- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
13

J.A., Docket No. 17-0236 (issued July 17, 2018); Sue A. Sedgwick, 45 ECAB 211 (1993).

5

the duties of a telecommunication dispatcher, the issue is whether there has been a material change
in his work-related condition that would render him unable to perform those prescribed duties.14
This is primarily a medical question.15 In reviewing the medical evidence of record, the Board
finds that appellant has failed to provide sufficient evidence to establish that a modification of the
February 19, 2010 LWEC determination is warranted.16
In his April 2, 2013 report, Dr. Winters noted seeing appellant in follow-up and provided
lifting restrictions of 20 pounds with limited squatting and climbing. The lifting requirements of
the constructed position of telecommunication dispatcher are 10 pounds occasionally, and
stooping, crouching, crawling, and climbing are never required. Dr. Winters’ report is, therefore,
insufficient to establish that appellant could not perform the position of telecommunication
dispatcher.17
The multiple reports from Dr. Mason commencing October 27, 2011 also do not establish
a material worsening of an accepted condition. His reports do not contain a rationalized opinion
explaining how the residuals of the employment injuries prevented appellant from performing the
duties of telecommunication dispatcher position, commencing April 18, 2011. Dr. Mason
provided examination findings, described the chronicity of appellant’s pain, provided injections,
and opined that appellant was totally disabled. In his most recent report dated December 11, 2017,
he noted additional accepted conditions and indicated that appellant had been his patient for a
number of years.18 Dr. Mason opined that, by 2011, and certainly within a year or two after that,
appellant would not have been able to work uninterruptedly at any employment due to the
numerous and very painful injuries he had. He concluded that he believed that appellant was
permanently and totally disabled from his foot and ankle injuries alone. The Board has held that
medical conclusions unsupported by facts and rationale are of limited probative value.19
Dr. Mason did not explain why appellant was unable to perform the duties of the
telecommunication dispatcher position on which the February 19, 2009 LWEC was based. In fact,
he did not address the telecommunication dispatcher position at all. The Board finds Dr. Mason’s
opinion insufficient to establish a material change in the injury-related conditions such that the
February 19, 2010 LWEC determination should be modified.20
Counsel asserts on appeal that the reports of Dr. Mason were sufficient to establish that
appellant was totally disabled beginning April 18, 2011. The Board, however, finds the medical
evidence of record fails to establish a material worsening of the accepted conditions such that
14

Phillip S. Deering, 47 ECAB 692 (1996).

15

R.S., Docket No. 15-1229 (issued October 2, 2015).

16

See R.L., Docket No. 15-1337 (issued January 27, 2016).

17

See A.N., Docket No. 16-0166 (issued February 1, 2016).

It is unclear if Dr. Mason continues to be appellant’s treating podiatrist. Dr. Mason’s last treatment note of record
is dated May 13, 2014.
18

19

C.B., Docket No. 08-2268 (issued May 22, 2009).

20

B.B., Docket No. 17-1757 (issued March 14, 2018).

6

appellant was precluded from performing his duties as a telecommunication dispatcher
commencing April 11, 2011. Thus, appellant has not met his burden of proof.21
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
February 19, 2010 LWEC should be modified, effective April 18, 2011.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2019
Washington, DC

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

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

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

21

S.J., Docket No. 17-0449 (issued May 7, 2018).

7