United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 13-581
Issued: January 2, 2014

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 January 15, 2013 appellant timely appealed the August 6, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which affirmed the August 30, 2011
wage-earning capacity determination. 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.2
ISSUE
The issue is whether appellant’s actual earnings as a modified motor vehicle operator
(administrative support) fairly and reasonably represented his wage-earning capacity as of
May 2, 2011.
1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its August 6, 2012 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 51-year-old temporary lock and dam operator, has an accepted occupational
disease claim for permanent aggravation of bilateral hip osteoarthritis which arose on or about
September 10, 2009.3 He underwent a left total hip arthroplasty on July 15, 2010. OWCP
authorized the surgery and subsequently paid wage-loss compensation for temporary total
disability.
Effective May 2, 2011, appellant returned to work full time in a temporary modified
motor vehicle operator (administrative support), with no loss in pay. He worked approximately
four months in this position until the temporary appointment expired on August 26, 2011.4
By decision dated August 30, 2011, OWCP found that appellant’s earnings as a motor
vehicle operator (administrative support) fairly and reasonably represented his wage-earning
capacity. It noted that at the time of his injury appellant held a 90-day temporary appointment.
The employing establishment was obliged to offer him at least a 90-day temporary appointment
and his four-month appointment met that obligation. OWCP further noted that appellant had
demonstrated his ability to perform the assigned duties for at least two months, and therefore, the
motor vehicle operator (administrative support) position was considered suitable to the
limitations of his partial disability. Because appellant’s actual weekly earnings ($847.64) met or
exceeded the current wages of his date-of-injury position, OWCP determined that appellant had
no loss of wage-earning capacity (LWEC).5
Appellant requested an oral hearing, which was held on April 12, 2012. In an August 6,
2012 decision, the hearing representative affirmed the August 30, 2011 decision.
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.6 An
employee’s actual earnings generally best reflect his wage-earning capacity.7 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

3

Appellant’s date-of-injury position was a temporary appointment which began on July 5, 2009. He continued to
perform his regular duties as a lock and dam operator until his appointment expired on September 30, 2009.
4

The initial May 2, 2011 appointment was not to exceed July 31, 2011. However, on August 1, 2011 appellant
accepted an extension not to exceed August 27, 2011.
5

Appellant’s hourly pay rate at the time of injury was $20.75.

6

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

7

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

2

capacity.8 Compensation payments are based on the wage-earning capacity determination, and
OWCP’s finding remains undisturbed until properly modified.9
Factors to be considered in determining if a position fairly and reasonably represents the
injured employee’s wage-earning capacity include: (1) whether the kind of appointment and tour
of duty are at least equivalent to those of the date-of-injury job; (2) whether the job is part-time
(unless the claimant was a part-time worker at the time of injury) or sporadic in nature;
(3) whether the job is seasonal in an area where year-round employment is available; and
(4) whether the job is temporary where the claimant’s previous job was permanent.10
Additionally, a makeshift or odd-lot position designed to meet an injured employee’s particular
needs will not be considered representative of one’s wage-earning capacity.11
Assuming the position is both vocationally and medically suitable and conforms to the
above-noted criteria, the position will generally be deemed to represent the employee’s wageearning capacity after he has successfully performed the required duties for at least 60 days.12
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.13 The
burden of proof is on the party seeking modification of the wage-earning capacity
determination.14
ANALYSIS
On April 26, 2011 the employing establishment offered appellant a temporary position as
a modified motor vehicle operator (administrative support). The position description outlined
various duties which included driving one or more types of passenger vehicles, operator
maintenance and administrative duties. The job offer acknowledged that appellant had a 20pound lifting restriction and was precluded from pushing/pulling greater than 20 pounds. His
physical limitations also included no climbing, no kneeling, no squatting and no bending.15
8

Id.

9

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7a (October 2009).
11

A.J., Docket No. 10-619 (issued June 29, 2010) (a makeshift/odd-lot position generally lacks a position
description with specific duties, physical requirements and a work schedule).
12

Supra note 10 at Chapter 2.814.7c(1).

13

Tamra McCauley, 51 ECAB 375, 377 (2000).

14

Id.

15

The physical restrictions were provided by Dr. Daniel P. Holub, a Board-certified orthopedic surgeon, who
performed the July 15, 2010 left total hip arthroplasty. On November 30, 2010 Dr. Holub released appellant to
return to work with the above-noted physical restrictions. On January 10, 2011 he imposed a permanent restriction
of no lifting greater than 45 pounds on an occasional basis.

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Appellant was precluded from driving commercial vehicles while under the influence of his
prescribed narcotic, Vicodin.16 This latter restriction was based on the recommendation of
appellant’s primary care physician at the Milwaukee, WI, Veterans Affairs Medical Center
(VAMC).17 The April 26, 2011 job offer specifically stated: “Driving will be deferred until
further notification from your current medical provider.”
Appellant did not specifically challenge OWCP’s finding that the April 26, 2011 job offer
was suitable to his partially disabled condition. The assigned duties as a modified motor vehicle
operator (administrative support) were consistent with appellant’s documented physical
limitations and the medication-related limitations associated with his prescribed use of Vicodin.
Appellant successfully performed these duties for approximately four months (May 2 to
August 26, 2011), which is further indication that the position fairly and reasonably represented
his wage-earning capacity.
At his April 12, 2012 hearing, appellant argued that the offered position was makeshift
because he was not a driver, but solely an administrative assistant. He testified that he was still
on Vicodin, which prevented him from operating a commercial vehicle. However, appellant’s
ongoing narcotic pain medication did not prevent him from driving his personal vehicle. He
argued that the modified motor vehicle operator position he accepted on April 26, 2011 had been
tailored to his specific needs, and he could not expect to go elsewhere and earn $21.12 per hour
as an administrative assistant.
While the employing establishment’s April 26, 2011 job offer sought to accommodate
appellant’s injury-related limitations, it was not a makeshift position. The employing
establishment found an existing job with a formal position description. The job offer included
details regarding which duties appellant was expected to perform and which ones would be
waived and/or deferred as a result of his injury-related limitations. The written offer also
included specific details regarding pay rate, tour of duty, location and start date. The Board finds
that the April 26, 2011 offer is inconsistent with a makeshift/odd-lot position.18
Appellant also argued that the position was makeshift because he never drove. First, the
April 26, 2011 job offer did not remove driving as part of appellant’s required duties, but merely
deferred that particular duty until further notification from his current medical provider. Second,
according to the formal position description, actual driving only represented 30 percent of the
overall duties, with administrative duties representing 40 percent. While appellant ultimately

16

The above-noted restrictions were provided by Dr. Daniel P. Holub, a Board-certified orthopedic surgeon, who
performed the July 15, 2010 left total hip arthroplasty.
17

In a February 10, 2011 letter, Dr. John Hayes advised that appellant should not drive a commercial vehicle
while using narcotics. This restriction was to remain in effect for two months until appellant was reevaluated. On
March 29, 2011 Dr. Hayes advised that appellant would be off Vicodin as of April 22, 2011 and that he had no
future plans of prescribing appellant any narcotics for pain. When appellant subsequently relocated to the St. Louis,
MO area, his local VAMC internist continued to prescribe narcotics for pain management and similarly advised
against appellant operating commercial vehicles. This restriction remained in effect at least through June 24, 2011.
18

See A.J., supra note 11.

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spent most of his time performing administrative duties, this does not retroactively undermine an
otherwise suitable job offer.
The temporary nature of the April 26, 2011 job offer was consistent with appellant’s
date-of-injury job.
He successfully performed the modified motor vehicle operator
(administrative support) position for at least 60 days, and the wages appellant earned beginning
May 2, 2011 met or exceeded the current wages of his date-of-injury job. Accordingly, OWCP
properly determined that appellant had no LWEC.
CONCLUSION
The Board finds that appellant’s actual earnings as a modified motor vehicle operator
(administrative support) fairly and reasonably represented his wage-earning capacity. Based on
his actual weekly earnings ($847.64), there was no loss in wage-earning capacity effective
May 2, 2011.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 2, 2014
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.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Vicksburg, MS,
Employer
__________________________________________

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Appearances:
Clinton Mead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1165
Issued: November 3, 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 May 13, 2016 appellant, through counsel, filed a timely appeal of a March 2, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective February 29, 2016.
On appeal counsel contends that the weight of the medical opinion evidence clearly
establishes that appellant continues to have residuals and disability due his accepted work injury.
FACTUAL HISTORY
On August 5, 2014 appellant, then a 45-year-old seasonal deck hand,3 filed a traumatic
injury claim (Form CA-1) alleging that on August 1, 2014 he sustained cervical and lumbar
strains when his boat capsized as he was assisting with tying off buoys on the Mississippi River.
He explained that he was carried off by the river’s current while he was under the barge, and his
body was struck by the barge while he struggled to free himself. Appellant stopped work on
August 1, 2014. OWCP accepted the claim for lumbar and neck strains and paid appellant wageloss compensation on the supplemental rolls for disability for the period September 29, 2014 to
July 25, 2015.
Following the injury, appellant was under the care of Dr. Dan W. Jackson, a treating
osteopathic physician, Board-certified in family medicine, and Dr. Michael L. Baker, a treating
osteopathic physician specializing in general practice. Diagnoses reportedly due to the August 1,
2014 employment injury included cervical strain, cervicalgia, bilateral shoulder sprains, multiple
contusions including lumbosacral, and multiple psychological problems. Pain and significant
limb problems and neck and cervical radicular, low back, bilateral shoulder, and hip pain were
also reported in treatment notes during the period August 11, 2014 to January 6, 2015. In a
September 23, 2014 treatment note, Dr. Jackson reviewed a magnetic resonance imaging scan
finding it was basically unremarkable. On January 6, 2015 he reported that appellant’s pain was
subjective, but that appellant had decreased range of motion, and pain on passive range of
motion.
On April 23, 2015 appellant came under the care of Dr. Michael Winkelmann, a Boardcertified physiatrist. Dr. Winkelmann provided a history of appellant’s August 1, 2014 work
injury, his medical history, and examination findings. The physical examination findings
included a left knee knot, decreased lumbar flexibility, and pain. Dr. Winkelmann recommended
a left knee MRI scan as he believed there might be meniscal pathology due to the August 1, 2014
work injury. He reported that appellant’s pain might be the result of “analgesic-induced
allodynia.” In an attached work capacity evaluation form (Form OWCP-5c), he concluded that
appellant was disabled from work until a left knee MRI scan and physical therapy were
performed.
In May 15, 2015 treatment notes, Dr. Winkelmann reported left knee pain and clicking,
which he concluded might be a meniscal tear. He reported that appellant’s cervical and shoulder
evaluation was unremarkable.
3

Appellant was employed as a four-month seasonal employee whose last day of work would have been
December 17, 2014.

2

Dr. Winkelmann, in a June 10, 2015 report, noted that appellant continued to have
shoulder, cervical, lower back, knee and hip pain. He noted that at the time of the August 1,
2014 work injury appellant reported cervical and shoulder pain. Based on his examination
findings, Dr. Winkelmann reported right lower extremity, hip, and knee pain with right knee
meniscal clicking. He explained that he asked appellant about the right knee click and appellant
replied that he felt discomfort when his knee was struck by the barge, but his cervical and
shoulder pain was his primary concern. According to Dr. Winkelmann, appellant’s cervical and
lumbar sprains had improved, but his hip and knee discomfort required further evaluation. In
attached OWCP-5c forms dated June 1, July 1 and 8, 2015, Dr. Winkelmann diagnosed neck and
lumbar strains and that appellant was currently disabled from work.
In a July 8, 2015 report, Dr. Winkelmann noted that he had been asked by OWCP to
review the etiology of appellant’s left knee condition. He opined that based on the history
appellant provided of hitting his left knee against the barge and his inability to walk once he was
assisted onto the boat’s deck, that appellant sustained a knee injury. At the time appellant’s
focus was on his cervical and lumbar pain because his knee discomfort was not as significant.
Dr. Winkelmann noted that it was not unusual that, when pain was experienced in multiple areas,
one area may not be as apparent. Physical examination findings clearly showed a left knee
medial aspect knot. Dr. Winkelmann found that the left knee injury contributed to appellant’s
lumbar issues and inability to walk without a limp. Thus, he opined that appellant’s lumbar
condition has been prolonged and exacerbated by the left knee injury and that the cervical
condition had improved. Dr. Winkelmann concluded that the evidence was clear that the
August 1, 2014 employment injury also caused a left knee injury. He opined that appellant was
capable of performing light-duty work with lifting restrictions of no more than 10 to 15 pounds.
On July 22, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Daniel P. Dare, a Board-certified orthopedic surgeon, to determine whether appellant
continued to have residuals and disability due to his accepted August 1, 2014 work injury.
In an August 24, 2015 report, Dr. Dare, based upon a review of the medical evidence,
statement of accepted facts (SOAF), and appellant’s physical examination, diagnosed cervical
and lumbar sprains, and noted right knee pain. Appellant related that his back, neck, and knee,
pain had all improved considerably. Dr. Dare found appellant’s complaints to be nonspecific and
vague. He reported that appellant had been released to return to light-duty work on June 6, 2015,
but that he had not returned to work. Appellant’s cervical, chest and lumbar x-rays were
interpreted as normal. Dr. Dare noted that appellant did not claim of any significant disability.
A physical examination revealed no cervical or lumbar tenderness, normal cervical and lumbar
range of motion, normal upper extremity neurologic examination, some extremity pain
complaints, no bilateral knee effusion or tenderness, no knee instability, and a mild right knee
click. Dr. Dare opined that the accepted lumbar and cervical sprains had resolved without
residuals.
In a September 16, 2015 progress notes, Dr. Winkelmann reported that appellant had
cervical, shoulder, upper trapezius and knee pain. He reiterated his opinion that appellant’s knee
pain was caused by the August 1, 2014 work injury.

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On September 26, 2015 the employing establishment offered appellant a light-duty
sedentary job in a watchman’s shack located on mooring barge. Appellant, however, declined
the position due to his anxiety with being on boats/barges.
On January 4, 2016 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits.
In response to OWCP’s proposal appellant submitted reports dated December 9, 2015
and January 13, 2016 by Dr. Winkelmann. In his December 9, 2015 report, Dr. Winkelmann
reported that appellant was doing well except for significant left knee pain and difficulties with
the knee locking up. Dr. Winkelmann recommended an MRI scan. In a January 13, 2016 report,
he provided examination findings.
By decision dated March 2, 2016, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits effective February 29, 2016. It found the opinion of
Dr. Dare, an OWCP referral physician, that appellant no longer had any residuals or disability
due to the accepted August 1, 2014 injury constituted the weight of the medical opinion
evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to his federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
ANALYSIS
OWCP accepted appellant’s claim for lumbar and neck strains. It terminated appellant’s
wage-loss compensation and medical benefits effective February 29, 2016 based upon Dr. Dare’s
opinion that he no longer had any residuals or disability due to his accepted employment
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

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conditions. The Board finds that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective February 29, 2016.
In an August 24, 2015 report, Dr. Dare noted diagnoses of cervical and lumbar sprains,
but found no cervical or lumbar tenderness, normal cervical and lumbar range of motion, normal
upper extremity neurologic examination, no bilateral knee effusion or tenderness, and no knee
instability. He reported that appellant had no objective symptoms of the cervical or lumbar
sprains. Based on his review of the medical evidence, SOAF, and physical examination,
Dr. Dare concluded that appellant could perform his regular duties with no restrictions and no
further medical treatment was required for the accepted employment injuries.
The Board finds that Dr. Dare’s report represents the weight of the medical evidence and
that OWCP properly relied on his report to terminate appellant’s wage-loss compensation and
medical benefits for the accepted conditions on February 29, 2016. Dr. Dare’s opinion is based
on a proper factual and medical history as he reviewed the SOAF and appellant’s prior medical
treatment. He also related his comprehensive examination findings in support of his opinion that
appellant no longer had any residuals or disability causally related to his accepted lumbar and
neck strains. OWCP therefore met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits based upon the report from Dr. Dare.9
The record also contains reports from Dr. Winkelmann covering the period April 23,
2015 to January 13, 2016. On April 23, 2015 Dr. Winkelmann reported that appellant struck his
left knee under the barge and he diagnosed a possible meniscal condition. He also opined that
appellant’s pain could be attributed to analgesic-induced allodynia. In subsequent reports,
Dr. Winkelmann reported appellant’s complaints of pain involving his bilateral shoulders,
cervical and lumbar aching pain. He later indicated that appellant’s cervical and lumbar sprains
showed improvement. Dr. Winkelmann opined that the evidence was clear that appellant also
sustained a left knee injury as a result of the August 1, 2014 work injury. The Board notes that
OWCP has not accepted a left knee injury as employment related. For conditions not accepted
by OWCP as being employment related, it is the employee’s burden to provide rationalized
medical opinion evidence sufficient to establish causal relationship and is not OWCP’s burden to
disprove such a relationship.10 At the time of the August 1, 2014 work injury appellant did not
allege a left knee injury or state that his knee had been struck by the barge. The Board further
notes that Dr. Winkelmann was not consistent in his reports in relating a left knee injury. In his
June 10, 2015 report, Dr. Winkelmann noted right knee clicking and asked appellant about his
right knee. At that time appellant related that he had struck his right knee on the barge at the
time of the August 1, 2014 work injury. Similarly Dr. Dare noted appellant’s complaints
regarding his right knee, not left knee.
The Board finds that Dr. Winkelmann failed to provide sufficient medical rationale,
based upon a consistent history of injury, explaining the causal relationship between the

9

See F.B., Docket No. 13-2066 (issued March 11, 2014).

10

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).

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diagnosed left knee condition and the accepted August 1, 2014 employment injury, and thus, his
reports are insufficient to establish causal relationship.11
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as appellant no longer had residuals of the accepted cervical
and lumbar conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective February 29, 2016.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2016 is affirmed.
Issued: November 3, 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

11

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, CAYEY POST
OFFICE, Cayey, PR, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq.
Office of the Solicitor, for the Director

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Docket No. 21-1337
Issued: March 18, 2022

Case Submitted on the Record

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

On September 6, 2021 counsel filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP). The Office of the Clerk of the Appellate Boards assigned
Docket No. 21-1337 to this appeal. 1
The Board has duly considered the matter and recognizes that the current appeal was not
filed by appellant or his authorized representative. Section 501.3(a) of the Board’s Rules of
Procedure provides that a “person adversely affected by a final decision of the Director [of OWCP]
or his or her authorized Representative, may file an appeal of such decision by the Board .”2 The
Board concludes that neither a “person adversely affected” by a final OWCP decision, nor an
“authorized Representative,” has filed an appeal to the Board. As such, there is no valid appeal
before the Board and Docket No. 21-1337 must be dismissed.3 Accordingly,

1

By letter dated October 8, 2021 counsel advised the Board that he did not represent appellant and had inadvertently
filed the current appeal.
2

20 C.F.R. § 501.3(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
3

IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1337 is dismissed.
Issued: March 18, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, COUNTY LINE
ANNEX, Hallandale, FL, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0666
Issued: March 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 22, 2016 appellant, through counsel, filed a timely appeal from an
October 22, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.

1

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

Appellant timely requested an oral argument before the Board, pursuant to 20 C.F.R. § 501.5(b). After
exercising its discretion, by order dated October 7, 2016, the Board denied appellant’s request, finding that the issue
could adequately be addressed in a decision based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 16-0666 (issued October 7, 2016).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established bilateral hip conditions causally related to
factors of his federal employment.
On appeal counsel contends that the substance of a June 25, 2015 medical report
established that appellant’s hip injury was causally related to factors of his federal employment,
but that this report was ignored. He also contends that OWCP’s claims examiner made
inappropriate medical observations.
FACTUAL HISTORY
On July 15, 2015 appellant then a 58-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he suffered an acceleration of osteoarthritis in both hips as a
result of his federal employment duties. He stopped work on March 30, 2015. In an attached
statement, appellant indicated that he first noted lower back pain in early 2009, that the pain
progressed, that he had a left hip replacement in May 25, 2012, and that he was told at that time
that his right hip was showing signs of deterioration. He noted that he had been a letter carrier
since 1981, and that his duties included standing and sorting mail in the morning, which involved
bending, lifting, pivoting, and twisting. Appellant noted that, while he delivered the mail,
constantly entering and exiting his vehicle involved bending, twisting, and lifting trays and tubs
weighing 5 to 20 pounds. He noted that he lifted and delivered packages weighing 5 to 70
pounds while ascending stairs. Appellant stated that these duties were performed on a daily basis
for approximately 8 to 12 hours a day.
The employing establishment controverted his claim. In a letter dated July 29, 2015, it
alleged, inter alia, that causal relationship to employment factors had not been established.
By letter dated August 3, 2015, OWCP informed appellant that the documentation
received was insufficient to support his claim. It explained that further medical evidence was
necessary to support his claim and afforded him 30 days to submit additional evidence.
In response to OWCP’s letter, appellant submitted progress notes from Dr. Kenneth W.
Taylor, a Board-certified orthopedic surgeon. In a February 10, 2011 report, Dr. Taylor noted
onset of pain in the left hip, none in the right hip. He indicated that the onset was gradual.
Dr. Taylor noted that appellant’s left hip was painful to internal and external rotation, and motion
was limited compared to the right hip. He opined that appellant would need a total hip
arthroplasty in the future.
In a February 3, 2011 report, Dr. Zenobia Miro-Berkeley, a Board-certified internist,
diagnosed left hip pain. In a February 25, 2011 follow-up report, she noted that appellant had
left hip arthritis and could need a hip replacement in the future. In an April 18, 2011 report,
Dr. Miro-Berkeley noted that appellant had left hip pain with ambulation. In a September 25,
2011 report, she again noted left hip arthritis.
In a March 27, 2012 report, Dr. Taylor noted that appellant continued to experience pain
in his left hip, that he was limping, and that it was affecting his activities of daily living. He
noted that prior x-rays showed end-stage hip arthritis. Dr. Taylor also indicated in his physical

2

examination findings that appellant’s left leg was .5 centimeters shorter than the right. In a
May 25, 2012 operative report, he noted that he performed a left total hip arthroplasty. In a
September 11, 2014 report, Dr. Taylor noted that he evaluated appellant’s bilateral hip
conditions. He stated that appellant had a left hip replacement in 2012 and was doing reasonably
well. Dr. Taylor noted that appellant’s job involved a significant amount of standing. He
diagnosed degeneration, hip/pelvic region and thigh. Dr. Taylor opined that appellant had
arthritic changes in the right hip and may need to limit work activities. He noted that appellant
would ultimately need right hip arthroplasty.
In reports dated December 8 and 22, 2014, Dr. William B. Wiley, a Board-certified
orthopedic surgeon, noted no significant changes in appellant’s symptoms. He noted that
appellant presented with his chief complaint of pain in his right hip and lower spine. Appellant’s
symptoms were made worse with activity and walking. Dr. Wiley indicated that radiographs of
the involved right hip revealed loss of joint space, osteophyte formation and the acetabulurn and
femoral head, subchondral cyst formation, and sclerosis of subchondral bone all indicative of
degenerative joint disease. Appellant listed his impressions as low back pain with sprain/strain,
lumbar spine, and right hip pain with degenerative joint disease in the hip and pelvis.
In a January 30, 2015 report, Dr. Justin W. Kung, a radiologist, indicated that right hip
imaging taken on June 8, 2014 demonstrated joint space narrowing of the right hip with a joint
space interval of two millimeters He noted that this was consistent with moderate degenerative
change. Dr. Kung also noted a left total hip arthroplasty.
In a June 25, 2015 report, Dr. Jeffrey L. Katzell, an orthopedic surgeon, noted that
appellant’s left hip complaints dated back to 2010, and occurred with walking, squatting,
twisting, and kneeling in the scope of his employment. He discussed appellant’s medical
treatment and listed his job duties. Dr. Katzell noted that his job required that appellant stand for
one to two-and-a half hours, and that he engage in continuous bending, lifting, pivoting, and
twisting, to take mail from one container to another. He stated that appellant had been on routes
that required repetitive motions, climbing in and out of mail vehicles, lifting mail tubs that
weighed 5 to 20 pounds and packages that weighed 5 to 70 pounds, ascending and descending
stairs, uneven surfaces, and hills. Appellant’s duties also required that he squat, twist, and kneel.
Dr. Katzell indicated that appellant performed these activities for 8 and 12 hours a day. He noted
that appellant was currently on sick leave as he was unable to stand. Dr. Katzell performed a
physical examination. He indicated that appellant had both hips replaced, but that his hips were
in poor condition. Dr. Katzell stated that appellant walked with a Trendelenburg gait and had a
very difficult time with single-leg stance. He noted that both of appellant’s hips exhibited
significant motion deficits. Dr. Katzell noted that appellant’s leg lengths were equal. He found
that appellant had a varus deformity to both knees with medial joint line tenderness greater than
retropatellar tenderness. Dr. Katzell noted that he reviewed appellant’s x-rays of both hips,
which showed a fairly advanced arthritic degenerative process. He indicated that appellant had
motion deficits, which had not improved.
Dr. Katzell opined that appellant’s employment-related exposure was a major
contributing factor to his left hip arthritis and ultimate hip replacement with suboptimal outcome,
as well as right hip arthritis with pending surgical intervention. He noted that appellant’s job
required constant and repetitive walking, squatting, stooping, climbing, bending, lifting,
carrying, stair climbing, and twisting activities. Dr. Katzell explained that excessive impact
3

exerted repeated local stresses which resulted in chronic inflammation, which caused a loss of
proteoglycans which were responsible for cartilage resilience. This loss resulted in a stiffer
material that was more easily damaged by wear and tear. Dr. Katzell noted that published
occupational medicine research had shown that the early onset of osteoarthritis was more often in
heavy labor occupations where premature wearing out of the joints was more common. He noted
that osteoarthritis was no longer considered a natural disease of aging as recent research over the
past 15 years had completely discredited this once prevalent theory. Dr. Katzell concluded that
current medical research supported appellant’s case because he sustained objective, documented
progression of his osteoarthritis during the time period in which he was engaging in the
offending job duties that exerted repeated local stresses, and were contributing factors to the
development and progression of lower extremity arthritis through a process of chronic
inflammation as described.
In a telephone note dated October 22, 2015, OWCP’s claims examiner indicated that she
had called and had spoken with the employing establishment officials to inquire about the route
that appellant was currently working. She noted that she was told most routes did not require
heavy lifting and were drive up and deliver routes. The claims examiner noted that appellant had
worked Route 8104 since November 29, 2007 and that his route did not require him to walk
stairs. Most of appellant’s stops were to buildings with front desk drop-offs or mail slots.
By decision dated October 22, 2015, OWCP denied appellant’s claim. The claims
examiner determined that appellant had experienced the alleged employment factors and that he
had been diagnosed with bilateral arthritis and degenerative joint disease of his hips, but had
failed to provide medical evidence establishing causal relationship between the accepted
employment factors and the accepted medical diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period, that an injury was sustained in the performance of duty as alleged, and
that any disabilities and/or specific conditions for which compensation is claimed are causally
related to the employment injury.4 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.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See S.P., 59 ECAB 184, 188 (2007).

4

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.8
ANALYSIS
OWCP determined that appellant had established the alleged factors of federal
employment, and that he suffered from arthritis and degenerative joint disease in his hips.
However, it further determined that appellant failed to establish causal relationship between the
accepted factors of his federal employment and his diagnosed hip condition. Accordingly,
OWCP denied appellant’s claim. The Board finds that the case is not in posture for decision
Dr. Katzell opined that appellant’s employment-related exposure was a major
contributing factor to his left hip arthritis, ultimate hip replacement, and suboptimal outcome, as
well as his right hip arthritis and pending surgical intervention. He noted that appellant’s job
required constant and repetitive walking, squatting, stooping, climbing, bending, lifting,
carrying, stair climbing, and twisting activities. Dr. Katzell explained that excessive impact
exerted repeated local stresses which resulted in chronic inflammation, which caused a loss of
proteoglycan. He indicated that impact loading and local stresses arising from repetitive motion
activities contributed to the development and progression of lower extremity arthritis.
Although Dr. Katzell’s report does not contain rationale sufficient to completely
discharge appellant’s burden of proof, his report constitutes substantial, uncontradicted evidence
in support of appellant’s claim provides sufficient rationale to require further development of the
case record by OWCP.9
The Board notes initially that the medical reports of Drs. Taylor, Miro-Berkeley, Wiley,
and Kung did not discuss causation. As these physicians did not provide an opinion on
causation, their opinions are insufficient to meet appellant’s burden of proof.10

7

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

8

I.J., 59 ECAB 408 (2008); supra note 5.

9

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978); See also Noreen A.
Gruebel, Docket No. 03-0203 (issued September 22, 2004).
10

See G.M., Docket No. 14-2057 (issued May 12, 2015).

5

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of evidence to see that justice is done.11
On remand OWCP should refer appellant, the case record, and a statement of facts to an
appropriate specialist for an evaluation and a rationalized medical opinion on whether the
accepted factors of his employment caused or contributed to his diagnosed medical conditions.
After such further development of the case record as OWCP deems necessary, a de novo decision
shall be issued.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2015 is set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: March 17, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

William J. Cantrell, 34 ECAB 1223 (1983); see also A.P., Docket No. 14-221 (issued April 15, 2014).

6


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

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

Docket No. 07-1507
Issued: November 6, 2006

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 19, 2007 merit decision denying his claim as untimely filed
and the March 16, 2007 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether the Office properly determined that appellant’s claim for
compensation is barred by the applicable time limitation provisions of the Federal Employees’
Compensation Act; and (2) whether the Office properly refused to reopen his case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 20, 2005 appellant, a 52-year-old retired letter carrier, filed an
occupational disease claim, alleging that he developed carpal tunnel syndrome (CTS) as a result
of performing repetitive job duties. He retired and last worked for the employing establishment,

on March 1, 1994. Appellant stated that he first realized that his condition was caused or
aggravated by his employment on May 19, 2003. The official supervisor’s report reflects that
appellant first reported the condition to the employing establishment on November 28, 2005.
Appellant submitted an October 31, 2005 report from Dr. Brian K. Ellefsen, a Boardcertified osteopath, specializing in orthopedic surgery, who had been treating appellant for
several years. Dr. Ellefsen stated that appellant worked for the employing establishment for
eight years prior to his retirement on March 1, 1994. Due to bilateral hand complaints and
aching pain, appellant was placed in splints while he slept and worked, full time for a month.
Although his symptoms improved temporarily, they gradually returned overtime and were worse
while he was at work, where he was required to hold magazines and flats in his left arm, while he
sorted them with his right hand. Appellant’s job also required repetitive gripping and prolonged
holding when he delivered mail. Dr. Ellefsen indicated that appellant’s symptoms continued
after he stopped work and have bothered him ever since. He opined that appellant’s bilateral
CTS were caused by his work activities.
On November 30, 2005 the employing establishment controverted appellant’s claim,
contending that he failed to establish that his CTS resulted from employment activities.
Appellant submitted a May 19, 2003 report from Dr. Ellefsen, who diagnosed bilateral
CTS. In a report of a July 8, 2004 nerve conduction study, Dr. Ellefsen stated that the study was
consistent with a mild median neuropathy at both wrists and was suggestive of a right-sided
C8 and T1 radiculopathy; a right brachial plexopathy; or a right proximal median neuropathy.
In a November 28, 2005 statement, appellant indicated that in late 1989 and 1990, his
hands started to cramp up and “go numb” at different times of the day and especially at night.
After he retired in 1994, his hands stopped hurting all the time, but he was still unable to grasp
“real hard” and his hands still “went numb” at night. Appellant stated that Dr. Ellefsen informed
him the previous fall that he had CTS in both hands. He alleged that both his wrists and hands
were affected by his repetitive job duties at the employing establishment, which included
throwing flats and holding batches of letters in the left hand while placing them in slots with the
right hand. Appellant indicated that he was required to wear braces on both hands and wrists in
March 1990, both at home and at work, for numbness. He stated: “At the time, I didn’t know
that was the start of carpal tunnel.”
By decision dated December 13, 2005, the Office denied appellant’s claim on the
grounds that it was not timely filed. It advised him that the date of injury was the date of his last
occupational exposure, namely March 1, 1994, the date of his retirement and that he should have
been aware of a relationship between his employment and the claimed condition by that date. As
appellant’s claim was filed on November 20, 2005, more than 11 years after the date of injury,
the Office found that it was untimely filed. It further found that there was no evidence that his
supervisor had actual knowledge of his condition within 30 days.
On November 10, 2006 appellant requested reconsideration, contending that he was first
aware that he had CTS on May 19, 2003, when he received the diagnosis from Dr. Ellefsen. He
stated that he experienced wrist pain during his employment, but that after wearing wrist braces
for a month, “the problem went away.” After he retired in 1994, his hands “would hurt some the

2

first of the mourning (sic), but stopped hurting altogether after a short while.” Appellant “didn’t
think anything of it,” until several years later, when the pain and numbness returned and
worsened and he began to drop things. He contended that his treating physicians did not
diagnose CTS while he was working at the employing establishment, noting that the condition
was not widely known at that time. The record contains laboratory test results for the period
November 4, 2004 through January 7, 2005.
By decision dated January 19, 2007, the Office denied modification of its December 13,
2005 decision. The Office found that the statement submitted in support of appellant’s request
for reconsideration showed that he was reasonably aware that he had sustained a work-related
condition at the time he retired.
On March 11, 2007 appellant submitted an appeal request form requesting
reconsideration of the Office’s January 19, 2007 decision. No documents were submitted in
support of his request.
By decision dated March 16, 2007, the Office denied appellant’s request for merit review
on the grounds that his request neither raised substantive legal questions nor included new and
relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
In cases of injury on or after September 7, 1974, section 8122(a) of the Act1 provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within
30 days. The knowledge must be such as to put the immediate superior
reasonably on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”2
Section 8119 provides that a notice of injury or death shall: be given within 30 days after
the injury or death; be given to the immediate superior of the employee by personal delivery or
by depositing it in the mail properly stamped and addressed; be in writing; state the name and
address of the employee; state the year, month, day and hour when and the particular locality
where, the injury or death occurred; state the cause and nature of the injury or, in the case of
death, the employment factors believed to be the cause; and be signed by and contain the address

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8122(a).

3

of the individual giving the notice.3 Actual knowledge and written notice of injury under section
8119 serve to satisfy the statutory period for filing an original claim for compensation.4
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability. The
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.5 In order to establish that a supervisor had
actual knowledge, an employee must show not only that the immediate superior knew that he or
she was injured, but also knew or reasonably should have known that it was an on-the-job
injury.6
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
should have been aware that he has a condition which has been adversely affected by factors of
his federal employment, such awareness is competent to start the limitation period even though
the employee does not know the precise nature of the impairment or whether the ultimate result
of such affect would be temporary or permanent.7 Where the employee continues in the same
employment after he reasonably should have been aware that he has a condition which has been
adversely affected by factors of federal employment,8 the time limitation begins to run on the
date of the last exposure to the implicated factors.9 The requirement to file a claim within three
years is the claimant’s burden and not that of the employing establishment.10
ANALYSIS -- ISSUE 1
The Board finds that appellant did not timely file a claim for compensation under the Act.
Although he was last exposed to repetitive working conditions on March 1, 1994, when he
retired, appellant alleged on his CA-2 form that he first became aware that his condition was
caused by his employment on May 19, 2003. The evidence of record, however, establishes that
he knew or reasonably should have known of the relationship between his carpal tunnel
condition and factors of his employment at the time of his last exposure. Appellant’s statements
confirm his awareness that his work activities were responsible for his bilateral wrist condition
3

5 U.S.C. § 8119; Larry E. Young, 52 ECAB 264 (2001).

4

Laura L. Harrison, 52 ECAB 515 (2001).

5

Delmont L. Thompson, 51 ECAB 155 (1999).

6

5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

7

Larry E. Young, supra note 3.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993); see James A.
Sheppard, 55 ECAB 515 (2004).
9

Id.

10

Debra Young Bruce, 52 ECAB 315 (2001).

4

prior to his retirement on March 1, 1994. On November 28, 2005 he stated that, in late 1989 and
1990, his hands started to cramp up and “go numb” at different times of the day and especially at
night; that both of his wrists and hands were affected by his repetitive job duties at the
employing establishment, which included throwing flats and holding batches of letters in the left
hand while placing them in slots with the right hand; and that he was required to wear braces on
both hands and wrists in March 1990, both at home and at work, for numbness. On
November 10, 2006 appellant stated that he experienced wrist pain during his employment, but
that after wearing wrist braces for a month, “the problem went away.” After he retired in 1994,
his hands would hurt some the first of the morning, but stopped hurting after a short while.
Reports from appellant’s physician indicate that he suffered from his wrist condition,
which was later diagnosed as CTS, during the period of his employment and that he was aware
that his employment activities were responsible for the condition. Dr. Ellefsen stated that, during
the eight years he worked for the employing establishment, appellant experienced bilateral hand
complaints and aching pain and was placed in splints while he slept and worked, full time for a
month. Although his symptoms improved temporarily, they gradually returned overtime and
were worse while he was at work, where he was required to hold magazines and flats in his left
arm, while he sorted them with his right hand. Dr. Ellefsen noted that his job also required
repetitive gripping and prolonged holding when he delivered mail. He indicated that appellant’s
symptoms continued after he stopped work and have bothered him ever since.
Appellant alleged that he was not aware that he had CTS until May 19, 2003, when he
received a diagnosis from Dr. Ellefsen. He argued that, although he had wrist complaints for
which he was required to wear wrist braces, he “didn’t know that was the start of carpal tunnel.”
These allegations are not sufficient to establish that appellant was unaware of his condition by
the time he retired on March 1, 1994. As the Board has previously noted, when an employee
becomes aware or reasonably should have become aware, that he has a condition which has been
adversely affected by factors of his employment, such awareness is competent to start the
running of the time limitations period, even though he does not know the precise nature of the
impairment, or whether the ultimate result of such adverse effect would be temporary or
permanent.11 In discussing the degree of knowledge required by the employee prior to filing a
claim, the Board has emphasized that he need only be aware of a possible relationship between
his condition and his employment to commence the statute of limitations. The Board has not
required that appellant have definitive evidence of a condition and causal relationship on the date
the claim is filed.12 Appellant experienced and was treated for substantial pain and numbness in
his wrists during his period of employment, which he attributed to his repetitive work activities.
Although he may have had some doubt as to a definitive diagnosis, the Board finds that he knew

11

See Edward Lewis Maslowski, 42 ECAB 839 (1991); see also Percy E. Rouse, 26 ECAB 214 (1974).

12

See Edward Lewis Maslowski, supra note 11. See also William A. West, 36 ECAB 525 (1985).

5

or reasonably should have known, of a relationship between his condition and his employment
by the date of his last exposure on March 1, 2004.13
For reasons stated above, the evidence establishes that appellant should have known of a
causal relationship between his wrist condition and his employment before he stopped working.
Therefore, the time limitations began to run on March 1, 1994, appellant’s last day of work and
exposure to the implicated employment factors. Since appellant did not file a claim until
November 20, 2005, his claim was filed outside the three-year limitation period.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
his immediate supervisor had actual knowledge of the injury within 30 days of his last exposure
to the implicated employment factors on March 1, 1994.14 Additionally, the claim would be
deemed timely if written notice of injury had been provided within 30 days pursuant to 5 U.S.C.
§ 8119.15 In the instant case, there is no indication that appellant provided written notice of
injury prior to November 20, 2005, the date he filed his claim or that his immediate supervisor
had actual knowledge of his wrist condition.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,16 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,17 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, set forth arguments and contain evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by [the
Office]; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[the Office].”

13

Cf. Willie Wade, Docket No. 03-425 (issued April 4, 2003) (where appellant experienced only minor symptoms
of wrist pain during his period of employment and the medical evidence did not show that his condition was such
that he was aware or should have been aware of a possible employment related cause for his condition at that time,
the Board found that it was reasonable that he would not relate his claimed upper extremity condition to his
employment at that time).
14

Larry E. Young, supra note 3. See Federal (FECA) Procedure manual, Part 2 -- Claims, Time, Chapter 2.801.3
(March 1993).
15

5 U.S.C. §§ 8122(a).

16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.606(b).

6

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.18
ANALYSIS -- ISSUE 2
Appellant’s March 11, 2007 request for reconsideration, encompassed in an appeal
request form, 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 section
10.606(b)(2).
As noted above, appellant did not submit any new evidence with his reconsideration
request. Therefore, he did not meet the third requirement listed in section 10.606(b) by
submitting relevant and pertinent new evidence not previously considered by the Office.
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 section
10.606(b)(2) and properly denied his March 11, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office properly determined that appellant’s claim for
compensation is barred by the applicable time limitation provisions of the Act. The Board
further finds that the Office properly refused to reopen his case for further review of the merits of
his claim under 5 U.S.C. § 8128(a).

18

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the March 16 and January 19, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 6, 2006
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 14-1640
Issued: December 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2014 appellant filed a timely appeal from a June 3, 2014 merit decision and a
July 10, 2014 nonmerit 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 review the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a 25 percent impairment of his right
lower extremity, for which he previously received a schedule award; and (2) whether OWCP
properly denied a review of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 1, 2006 appellant, then a 47-year-old carrier, sustained a traumatic injury in the
performance of duty when he failed to notice a step down on the sidewalk and twisted his right
knee. OWCP accepted his claim for a right medial meniscus tear.
In June 2006, appellant underwent a partial medial meniscectomy. In December 2006, he
underwent a medial unicompartmental arthroplasty.
On May 29, 2007 OWCP issued a schedule award for a 25 percent impairment of
appellant’s right lower extremity.
In January 2013, appellant underwent a total knee arthroplasty with a postoperative
diagnosis of failed unicompartmental arthroplasty, right knee.
Appellant filed a claim for an additional schedule award in February 2014.
Dr. E. Jean Dabezies, Jr., the attending Board-certified orthopedic surgeon, examined
appellant in January 2014, one year after his total knee arthroplasty. Appellant’s pain scale was
zero, but he indicated that his knee ached on and off and that walking “too much” was an
aggravating factor, while resting gave relief. On examination, gait and station were normal, as
was general joint mobility and strength. Dr. Dabezies interpreted radiographic findings. He
offered the following summary: “[Appellant] is doing well post total knee arthroplasty at one
year. Follow-up in another year for routine follow-up with x-rays.”
Dr. Dabezies offered an impairment rating on April 21, 2014. He believed that appellant
had a good result from his total knee arthroscopy. Based on the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001), Dr. Dabezies found that
appellant had a 50 percent impairment of the right lower extremity.2
An OWCP medical adviser reviewed Dr. Dabezies’ evaluation and found that it was not
referenced or explained in any way. He noted that appellant was doing well with a pain scale of
zero. Applying Table 16-3, page 511 of the A.M.A., Guides (6th ed. 2009), the medical adviser
found that appellant’s good result represented a 25 percent impairment of the right lower
extremity.
In a decision dated June 3, 2014, OWCP denied appellant’s claim for an additional
schedule award, as he had already received an award for a 25 percent impairment of his right
lower extremity.
On July 7, 2014 OWCP received appellant’s request for reconsideration. Appellant
submitted a copy of Dr. Dabezies’ April 21, 2014 impairment rating and advised that
Dr. Dabezies would have a conference call with OWCP to discuss how he came up with his
findings. He added that he was okay when he received his schedule award in 2007, but the
partial knee replacement failed, and he required a total knee replacement. Appellant indicated
2

Table 17-33, page 547.

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that nursing his right knee had started wearing out his left knee. He blamed the employing
establishment for exceeding his doctor’s release for sedentary work only. Having had three
surgeries, appellant stated that “the pain and suffering of the last seven years should count for
something.”
In a decision dated July 10, 2014, OWCP denied appellant’s reconsideration request. It
found that the evidence submitted was repetitious and previously considered. Further, appellant
did not set forth any legal argument and did not show that OWCP erroneously applied or
interpreted a specific point of law.
On appeal, appellant points to his three surgeries, which caused pain from 2006 to 2013.
LEGAL PRECEDENT -- ISSUE 1
The burden is upon the employee to establish by evidence that he is entitled to
compensation.3
The schedule award provision of FECA4 and the implementing regulations5 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.6
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.7 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.8
ANALYSIS -- ISSUE 1
In 2007, OWCP granted a schedule award for a 25 percent impairment of appellant’s
right lower extremity. Appellant now claims an additional schedule award. The question for
determination, therefore, is whether he has established that he currently has more than a 25
percent impairment of his right lower extremity.

3

Harold Hendrix, 1 ECAB 54 (1947).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Supra note 5; Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).

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Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant regional diagnosis, then by selecting
the class of the impairment (no objective problem, mild problem, moderate problem, severe
problem, very severe problem approaching total function loss), which will provide a default
impairment rating. This may be adjusted slightly based on functional history, physical
examination and clinical studies.9
Table 16-3, the Knee Regional Grid, shows the impairment values for a total knee
replacement on page 511. A good result is characterized by good position, stability, and
functionality. This is indicative of a moderate problem and has a default impairment value of 25
percent. Indeed, 25 percent is the highest rating anyone can receive for a good result. A fair
result is characterized by fair position, mild instability and/or mild motion deficit. It is indicative
of a severe problem and has a default impairment value of 37 percent.
Dr. Dabezies, the attending orthopedic surgeon, did not apply the sixth edition of the
A.M.A., Guides. It is apparent that he applied the older fifth edition, in which a fair result from a
total knee replacement, determined by an involved point system, represented a 50 percent
impairment of the lower extremity. A rating not based on the proper edition of the A.M.A.,
Guides is of little probative value.10 Because Dr. Dabezies did not follow the protocols of the
applicable sixth edition of the A.M.A., Guides, his impairment rating has little, if any, probative
value in determining the extent of appellant’s impairment. In other words, his rating does not
support that appellant has had only a fair result from his total knee arthroplasty.
The medical adviser noted that Dr. Dabezies had examined appellant one year after
surgery and found that he was doing well. Appellant’s pain scale was zero. Rather,
Dr. Dabezies found gait and station were normal, as were general mobility and strength. For this
reason, the examination does not demonstrates a good result under Table 16-3, page 511.
As the medical evidence does not show that appellant has more than a 25 percent
impairment of his right lower extremity, for which he previously received a schedule award, the
Board finds that he has not met his burden of proof to establish additional impairment. The
Board will, therefore, affirm OWCP’s June 3, 2014 decision denying an additional schedule
award.
On appeal, appellant points to his three surgeries, which caused a lot of pain from 2006
to 2013. The rating he received for permanent physical impairment under Table 16-3 makes
allowance for most of the functional losses accompanying pain.11 To the extent that injuryrelated pain caused disability for work, appellant received compensation for the resulting wage
loss.

9

A.M.A., Guides 497.

10

James Kennedy, Jr., 40 ECAB 620, 627 (1989) (an opinion that is not based upon standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses is of little probative value in determining
the extent of permanent impairment).
11

A.M.A., Guides 25 (Pain and Suffering).

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Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.12 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (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.13
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.14 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.15
ANALYSIS -- ISSUE 2
OWCP received appellant’s reconsideration request within one year of its June 3, 2014
decision, which was the most recent merit decision in his case. Appellant’s request is therefore
timely. The question for determination is whether that request met at least one of the standards
for obtaining a merit review of his case.
Appellant’s request did not show that OWCP erroneously applied or interpreted a specific
point of law. The request did not advance a relevant legal argument not previously considered
by OWCP. Appellant simply informed OWCP that Dr. Dabezies was willing to discuss his
rating in a conference call. He added that nursing his right knee had affected his left knee, that
the employing establishment exceeded his limitations, and that he had suffered with pain for
seven years. None of these things represented a legal argument relevant to OWCP’s denial of an
additional schedule award. Further, the request did not contain evidence that constituted relevant
and pertinent new evidence not previously considered by OWCP. Appellant submitted a copy of
Dr. Dabezies’ April 21, 2014 report, which of course was previously submitted and considered.

12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606.

14

Id. at § 10.607(a).

15

Id. at § 10.608.

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Accordingly, as appellant’s reconsideration request did not meet any of the requirements
for reopening his case, the Board finds that OWCP properly denied a merit review. The Board
will affirm its July 10, 2014 decision.
CONCLUSION
The Board finds that appellant has not met his burden to establish more than a 25 percent
impairment of his right lower extremity, for which he previously received a schedule award. The
Board also finds that OWCP properly denied appellant’s reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the July 10 and June 3, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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