United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Riverdale, MD, Employer
__________________________________________

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

Docket No. 15-0825
Issued: July 29, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 13, 2015 appellant filed a timely appeal of a September 4, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As the last merit decision
was issued in this case on November 13, 1985, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. § 501.2(c) and 501.3, the Board lacks jurisdiction
over the merits of this case.2
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration of a November 13, 1985 decision was untimely and failed to show clear evidence
of error.

1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. See 20
C.F.R. § 501.3(d)(2) (April 1985).

FACTUAL HISTORY
The case has previously been before the Board on prior appeals. There have been six
traumatic injuries to appellant’s back accepted by OWCP: a lumbar strain on December 19,
1981 (File No. xxxxxx669); acute low back strain, cervical strain, and psychogenic pain disorder
on December 17, 1985 (File No. xxxxxx047); aggravation of degenerative disc disease C5-6 and
C6-7 on May 10, 1988 (File No. xxxxxx048); cervical strain, lumbar strain, and herniated C6-7
disc on November 28, 1988 (File No. xxxxxx4l2); lumbar strain on June 19, 1999 (File No.
xxxxxx644); and aggravation of preexisting cervical spine conditions on November 23, 2005
(File No. xxxxxx89l).3
Since the issue in this case concerns the December 19, 1981 injury, the Board will review
the relevant facts regarding this injury. Appellant alleged that she sustained an injury on
December 19, 1981 when she bent down to lift two trays of mail. As noted above, OWCP
accepted the claim for a lumbar strain. Appellant received compensation for intermittent periods
through September 9, 1982.
In a report dated December 19, 1983, Dr. Fred Nelson, an orthopedic surgeon, indicated
that appellant was seen at the request of the employing establishment. He provided results on
examination, noting contradictory findings. Dr. Nelson stated that appellant had a chronic low
back sprain that was related to the December 19, 1981 injury. In a report dated April 1, 1985, he
provided results on examination. Dr. Nelson stated that appellant had a chronic low back sprain
and her current complaints were probably related to the December 19, 1981 injury. He indicated
that appellant should have a thermogram performed. In a report dated May 30, 1985, Dr. Nelson
reported the results of the thermogram were normal.
By decision dated November 13, 1985, OWCP found that appellant was not entitled to
continuing compensation for wage-loss or medical benefits after September 9, 1982. It noted
that the thermogram was normal and previous tests were within normal limits. By decision dated
April 19, 2000, OWCP denied merit review of the claim.
In a decision dated April 12, 2002, the Board affirmed the April 19, 2000 decision.4 The
Board noted that appellant had returned to work in November 1985, and she argued she should
receive compensation until that time. The Board found that her request for reconsideration was
insufficient to warrant merit review of the claim.
By decision dated November 22, 2006, the Board affirmed OWCP decisions dated
May 27 and January 28, 2005, denying a claimed recurrence of disability commencing
April 2004 causally related to appellant’s cervical condition.5
On February 19, 2009 appellant requested reconsideration of the November 13, 1985
decision. She submitted a March 19, 1984 report from Dr. Bruce Smoller, a Board-certified
3

The master file for all of these claims is File No. xxxxxx047.

4

Docket No. 00-2528 (issued April 22, 2002).

5

Docket No. 06-0263 (issued November 22, 2006).

2

neurologist, who indicated that appellant had sustained a lumbosacral strain on December 19,
1991 and presented now with some recurrence, which must be considered a new episode, and a
retarded depression. Appellant also submitted a portion of a February 11, 1998 report from
Dr. Bahman Sadr, a Board-certified orthopedic surgeon, who noted that appellant had chronic
cervical and lumbar strains related to work injuries on December 19, 1981 and April 1985.
By decision dated July 1, 2009, OWCP found that the reconsideration request was
untimely and failed to show clear evidence of error. In a decision dated June 28, 2010, the Board
found OWCP had properly denied appellant’s request for reconsideration of the November 13,
1985 decision as it was untimely and failed to show clear evidence of error.6 The Board noted
that Dr. Nelson had acknowledged in his December 19, 1983 report that examination results
were contradictory, and his brief opinion as to a chronic back strain related to the 1981 injury
was of diminished probative value. In addition, the Board noted Dr. Smoller had reported in his
March 19, 1984 report that the back strain should have resolved three to four weeks after the
incident. The history of the case as provided in the Board’s prior decisions is incorporated
herein by reference.
In a letter received by OWCP on June 12, 2014, appellant requested reconsideration of
the November 13, 1985 decision arguing there was clear evidence of error. She stated that on
September 27, 1983 an OWCP medical adviser had opined that she could return to regular
duties, but OWCP never informed the employing establishment that she could return to work.
According to appellant, she was sent to Dr. Nelson as a referee physician and a referee should be
given special weight. Appellant argued that she had a chronic condition and should receive
compensation from OWCP. She submitted the second page of a February 11, 1989 report from
Dr. Sadr, and reports dated December 20, 2009, August 13, 2013, and April 11, 2014 from
Dr. Phillip Schneider, an orthopedic surgeon. In the February 11, 1989 report, Dr. Sadr stated
that appellant had chronic cervical and lumbar strains related to the December 19, 1981 and
April 1983 injuries. In the December 20, 2009 report, Dr. Schneider provided results on
examination and diagnosed lumbar herniated nucleus pulposus. He indicated in the August 13,
2013 report that appellant should continue modified duty. In the April 11, 2014 report,
Dr. Schneider diagnosed: cervical HNP, pseudoarthrosis, cervical radiculopathy, herniated
lumbar disc, carpal tunnel syndrome, lumbar spondylosis, and spondylolisthesis. He noted that
appellant reported her job had been abolished and the Department of Labor had “put her on total
disability.” Dr. Schneider reported that “the effects of the work injury have not ceased”
appellant was unable to perform her job.
By decision dated September 4, 2014, OWCP found that appellant’s application for
reconsideration was untimely. It further denied the application without merit review of the
claim, finding that it did not show clear evidence of error by OWCP.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.7 The
6

Docket No. 09-2258 (issued June 28, 2010).

7

5 U.S.C. § 8128(a).

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employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”8
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.9 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.10 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.11 As one such limitation, 20 C.F.R. § 10.607 provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.12 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise and explicit and must manifest on its face that OWCP
committed an error.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.15 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.16 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.17
ANALYSIS
The application for reconsideration in this case was received by OWCP on June 12, 2014
and is untimely as it was received more than one year after issuance of the November 13, 1985

8

20 C.F.R. § 10.605 (2012).

9

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

10

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
11

5 U.S.C. §§ 8101-8193.

12

20 C.F.R. § 10.607 (2012).

13

D.O., Docket No. 08-1057 (issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

14

Annie L. Billingsley, 50 ECAB 210 (1998).

15

Jimmy L. Day, 48 ECAB 0652 (1997).

16

Id.

17

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

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decision. Appellant must therefore show clear evidence of error by OWCP to require a merit
review of the claim.
This is the second time the Board has reviewed the issue of clear evidence of error. In its
June 28, 2010 decision, the Board noted that Dr. Nelson acknowledged in his December 19,
1983 report there were contradictory examination results. The Board found that his opinion
regarding an alleged employment-related condition was of diminished probative value and there
was no clear evidence of error by OWCP.
In her current reconsideration request, appellant states that Dr. Nelson was a referee
physician.18 However, there is no evidence of record that Dr. Nelson was selected to resolve a
conflict under 5 U.S.C. § 8123(a). As his December 19, 1983 report indicated, the employing
establishment initially requested an examination.
The medical evidence submitted on reconsideration does not establish clear evidence of
error by OWCP. The reports from Dr. Schneider do not discuss the December 19, 1981 injury or
disability after September 9, 1982, causally related to the December 19, 1981 employment
injury. In his April 11, 2014 report, Dr. Schneider refers briefly to the effects of the “work
injury,” without further explanation. As noted in the history of the case, appellant has six
traumatic injuries. Dr. Schneider did not provide probative evidence with respect to the medical
issue presented in the November 13, 1985 OWCP decision. With respect to the February 11,
1998 report from Dr. Sadr, this was previously addressed by the Board in the June 28, 2010
Board decision.
The clear evidence of error standard is, as noted above, a difficult standard to meet. Even
if the evidence could be construed to produce a contrary conclusion, this does not establish clear
evidence or error. The Board finds that OWCP properly denied the untimely application for
reconsideration in this case.
On appeal, appellant states that she believes errors were made in her case and her injury
did not cease on September 9, 1982. She states that Dr. Nelson and Dr. Smoller supported her
claim. The Board has previously addressed the evidence from Dr. Nelson and Dr. Smoller, and
found that these reports do not establish clear evidence of error. Appellant also requests that the
Board review the merits of the claim. As to the November 13, 1985 OWCP decision, appellant’s
application was untimely, and therefore the only issue presented is whether there was clear
evidence of error by OWCP. The merits of appellant’s claims are not before the Board in this
appeal.

18

FECA provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or OWCP medical
adviser, OWCP shall appoint a third physician to make an examination. This is called a referee or impartial
examination and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321.

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CONCLUSION
The Board finds OWCP properly found that appellant’s request for reconsideration was
untimely and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 4, 2014 is affirmed.
Issued: July 29, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1918
Issued: March 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 3, 2014 appellant, through his attorney, filed a timely appeal from a
July 25, 2014 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has a
pulmonary condition caused or aggravated by factors of his federal employment.
On appeal appellant’s attorney asserts that the medical evidence of record establishes that
appellant has pneumoconiosis.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 31, 2013 appellant, then a 63-year-old former boilermaker, filed an
occupational disease claim alleging that work duties in his federal employment caused
occupational pneumoconiosis. He indicated that he first became aware of the disease and its
relationship to his federal employment on November 20, 2012 upon learning his diagnosis. In an
undated statement, appellant indicated that he worked for the employing establishment as a
laborer from 1972 to 1973 and as a boilermaker for intermittent periods beginning on March 8,
1976 to July 25, 1991. He noted a 15- to 16-year history of smoking and claimed exposure to
cement dust and asbestos at the employing establishment. Appellant indicated that from
November 19, 1973 to January 6, 2006 he worked as a contract union employee in paper mills
and power plants, including at the employing establishment plants and as a consultant at an
employing establishment plant for three or four months beginning in 2006.
In support of his claim, appellant submitted a December 31, 2012 report in which
Dr. Glen Baker, Board-certified in internal medicine and pulmonary disease and a certified Breader, noted appellant’s employment history, including approximately 12 years as a federal
employee at the employing establishment where he was exposed to asbestos, coal dust, fly ash,
flue gas, and arsenic fumes. Dr. Baker noted appellant’s 15- to 16-year smoking history and
described his complaints of dyspnea on exertion and symptoms suggestive of sleep apnea.
Lungs were clear to auscultation and percussion on physical examination. Dr. Baker reported
that a November 1, 2012 chest x-ray demonstrated evidence of occupational pneumoconiosis,
category 1/0, consistent with pulmonary asbestosis, and that both pre and post-bronchodilator
pulmonary function studies were normal. He diagnosed occupational pneumoconiosis, category
1/0, based on an abnormal x-ray and a significant history of asbestos exposure, and obstructive
sleep apnea, based on symptoms. Dr. Baker concluded that appellant had no impairment under
Table 5-4 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment. He attached copies of the x-ray interpretation which indicated a 1/0
profusion of small opacities and pleural abnormalities consistent with pneumoconiosis, and the
pulmonary function studies, interpreted as normal.
In letters dated March 1, 2013, OWCP informed appellant of the evidence needed to
support his claim and asked the employing establishment to reply to his allegations by submitting
exposure data and his employment history.
In a February 11, 2013 statement, Mike Bradford, an industrial hygienist at the
employing establishment, provided appellant’s job history, which totaled 14.7 years, at three
different employing establishment facilities. He described current and historical data for coal
dust and asbestos exposure which he maintained was within the Office of Safety and Health
Administration and the Environmental Protection Agency guidelines. A physical examination
report for reemployment dated July 31, 1991 was attached. The signature on the report was
illegible.
In June 2013 OWCP referred appellant, along with a statement of accepted facts, a set of
questions, and the medical record, to Dr. Mohammed K. Shubair, Board-certified in internal
medicine and pulmonary disease, for a second opinion evaluation. In a July 22, 2013 report,
Dr. Shubair noted appellant’s employment and smoking history and his reported symptoms of

2

mild shortness of breath. Lungs were clear to auscultation with no rales, rhonchi, or rubs on
physical examination. Dr. Shubair noted the results of Dr. Baker’s pulmonary function test and
reported that appellant had a new test that day which was normal with no evidence of an
obstructive or restrictive deficit. He opined that appellant’s symptoms were more of
deconditioning than lung disease. Dr. Shubair indicated that appellant was not disabled from a
lung disease but noted that he had had an x-ray that showed some scarring. He stated that he had
not seen the x-ray but “this could possibly be due to asbestos deposits.” In an addendum dated
September 11, 2013, Dr. Shubair indicated that he had reviewed appellant’s pulmonary function
test done on July 22, 2013.
In an addendum report of September 11, 2013, he further stated:
“Of note is also that we have not done any chest x-ray as this has been done
recently, and the x-ray that was done earlier at a different facility was reported by
radiology to show some scarring which could be asbestos deposit as mentioned in
my previous note, however, this did not cause any significant functional
impairment in the lung function.... The evidence that he has been chronically
exposed to the asbestos will be only an x-ray finding; however, that did not impair
his function or his functional status, as well as his pulmonary function test.”
By decision dated October 10, 2013, OWCP denied the claim. It found that appellant had
been exposed to dust but that the medical evidence did not establish that a medical condition was
causally related to the exposure. Appellant, through his attorney, timely requested a hearing, and
submitted an April 21, 2014 x-ray report in which Dr. Matthew A. Vuskovich, Board-certified in
occupational medicine and a B-reader, read the November 1, 2012 x-ray. Dr. Vuskovich
indicated that appellant had 1/1 small opacities and no pleural abnormalities, and that the study
was consistent with pneumoconiosis. At the hearing, held on May 12, 2014, appellant testified
regarding his employment and exposure history. He stated that Dr. Shubair did not perform a
chest x-ray and indicated that he had retired in July 2013. Appellant’s attorney conceded that
appellant had no pulmonary disability but asserted that, based on the x-ray reports, appellant had
established that he had occupational pneumoconiosis.
In correspondence dated June 18, 2014, Mike Patty of the employing establishment
provided comments regarding the hearing transcript and maintained that an x-ray diagnosis by a
B-reader alone was not sufficient for a diagnosis of occupational pneumoconiosis. He attached a
publication from the Centers for Disease Control and Prevention regarding chest radiography.
On July 25, 2014 an OWCP hearing representative affirmed the October 10, 2013
decision, finding that neither Dr. Baker nor Dr. Shubair provided sufficient rationale to explain
that appellant had a lung disease causally related to his federal employment.
LEGAL PRECEDENT
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

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and that any disability and/or specific condition for which compensation is claimed is causally
related to the employment injury. These are the essential elements of each and every
compensation claim; regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”3 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 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 employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS
The Board finds this case is not in posture for decision regarding whether appellant has
an employment-related pulmonary condition.
Dr. Baker, an attending pulmonologist and B-reader,8 diagnosed occupational
pneumoconiosis, based in part on a November 1, 2012 chest x-ray which the physician indicated
showed had a 1/0 profusion of small opacities and pleural abnormalities consistent with
2

Roy L. Humphrey, 57 ECAB 238 (2005).

3

20 C.F.R. § 10.5(ee).

4

Roy L. Humphrey, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

B-readers are physicians who have passed a proficiency test administered by the National Institute for
Occupational Safety and Health (NIOSH). See 42 C.F.R. § 37.52.

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pneumoconiosis. Pulmonary function studies were interpreted as normal. The November 1,
2012 chest x-ray was also read by Dr. Vuskovich, also a B-reader who advised that appellant had
1/1 small opacities and no pleural abnormalities, which he indicated was consistent with
pneumoconiosis.9
Dr. Shubair, an OWCP referral pulmonologist, evaluated appellant on July 22, 2013.
While he conducted pulmonary function studies, interpreted as normal, he also indicated that
appellant had had an x-ray that showed some scarring. Dr. Shubair stated that he had not seen
the x-ray but “this could possibly be due to asbestos deposits.” In an addendum dated
September 11, 2013, he stated that he had not done a chest x-ray but that one done in a different
facility “was reported to show some scarring which could be asbestos….” He indicated that only
an x-ray would show whether appellant had asbestos scarring.
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10 Once OWCP undertakes development of the
record, it must do a complete job in procuring medical evidence that will resolve the relevant
issues of the case.11 In this case, OWCP accepted that appellant had been exposed to coal dust.
Appellant’s physicians Drs. Baker and Vuskovich advised that he had pneumoconiosis.
Dr. Shubair, OWCP referral physician, indicated that whether appellant had asbestos or other xray findings could only be diagnosed by x-ray. However, he did not x-ray appellant. The
question therefore remains as to whether appellant has an employment-related pulmonary
condition. The case shall therefore be remanded to OWCP. On remand, OWCP shall seek
clarification from Dr. Shubair, to include his interpretation of x-ray findings. The Board also
notes that since Dr. Baker and Dr. Vuskovich are B-readers, OWCP should consider whether it
would be helpful to authorize Dr. Shubair to consult a certified B-reader.12 Following such
further development as OWCP deems necessary, it shall issue a de novo decision on the merits of
appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established an employment-related pulmonary condition.

9

Pneumoconiosis is defined as the deposition of large amounts of dust or other particulate matter in the lungs and
the subsequent tissue reaction. Types range from harmless to destructive conditions and are often named for the
implicated substances including anthracosis, asbestosis, and silicosis. Dorland’s Illustrated Medical Dictionary,
29th edition (2000).
10

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

11

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

12

See S.T., Docket No. 08-1675 (issued May 4, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the July 25, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: March 3, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 14-563
Issued: May 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 6, 2014 appellant filed a timely appeal from a July 15, 2013 merit 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 established that he has more than 15 percent
hearing loss of the right ear; and (2) whether he has sustained a hearing loss in his left ear
causally related to his federal employment.

1

This appeal was received by the Board on January 14, 2014. As the 180th day following July 15, 2013 was
Saturday, January 11, 2014, this appeal would have been timely filed if received on Monday, January 13, 2014. See
20 C.F.R. § 501.3(f)(2). Since the appeal was received on January 14, 2014, the Board accepts the date of postmark,
January 6, 2014 as the date of filing. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 8, 2008 appellant, a 73-year-old mail processing mechanic, filed an occupational
disease claim (Form CA-2), alleging bilateral hearing loss caused by factors of his federal
employment. He worked as a mechanic at the employing establishment since 1982 and was
exposed to loud noise. Appellant repaired various machines. Hearing protection was provided
but not always used. From 1961 to 1981 appellant was on active duty in the U.S. Navy; he
served on board a surface ship and a submarine.
In a July 11, 2008 report, Dr. Richard W. Seaman, a Board-certified otolaryngologist,
evaluated appellant for bilateral sensorineural hearing loss. An audiogram dated July 8, 2012,
with an attached calibration certificate, showed hearing levels of 80, 85, 75, 75 decibels on the
left and 30, 35, 30 and 45 decibels on the right, at 500, 1,000, 2,000 and 3,000 Hertz,
respectively. Based on the audiogram, appellant had a ratable hearing loss of 15 percent in the
right ear due to noise exposure and presbycusis. While Dr. Seaman noted that appellant had
complaints of tinnitus, he found no impairment due to that condition. He recommended hearing
aids for the right ear. Regarding the left ear, Dr. Seaman stated that appellant’s left ear was a
“dead” ear and found that the left-sided hearing loss was not causally related to the noise
exposure.
On September 15, 2009 OWCP accepted the claim for right hearing loss with tinnitus.
On October 11, 2012 Dr. L.I. Weaver, an OWCP medical adviser, reviewed the record.
He related that appellant had noticed a gradual loss of hearing since 1996. Dr. Weaver worked
as a mechanic on all machines. Hearing protection was provided but may not have been used
due to urgent repair needs. The July 8, 2008 audiometry report for Dr. Seaman revealed that the
left ear was a “dead ear,” with a profound hearing loss; no useful speech or word discrimination
and deafness that was not characteristic of a hearing loss due to work-related noise exposure. A
workup for acoustic neuroma was negative and the etiology of the left ear hearing loss was not
identified.
As to the right ear, Dr. Weaver noted that the loss was a combination in excess of that
which would be normally predicted on the basis of presbycusis alone and was likely due to noise
exposure. The extent of loss measured 15 percent as found by Dr. Seaman. Dr. Weaver also
noted appellant’s history of a high-pitched tinnitus that was annoying but did not interfere with
activities of daily living. There was a zero percent (no) impairment under the American Medical
Association, Guides to the Evaluation of Permanent Impairment for tinnitus.
By decision dated July 15, 2013, OWCP granted a schedule award for 15 percent hearing
loss in his right ear and found that he required a hearing aid for the right ear. Appellant did not
establish that his left ear hearing loss was causally related to his federal employment.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hertz, the losses at each
frequency are added up and averaged.7 Then, the fence of 25 decibels is deducted. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.8 The Board has concurred in OWCP’s adoption of this standard for evaluating hearing
loss.9
ANALYSIS -- ISSUE 1
OWCP found that appellant had sustained an employment-related right-sided hearing loss
in accordance with the A.M.A., Guides.10 Dr. Seaman obtained a July 8, 2012 audiogram
showing hearing loss levels of 30, 35, 30 and 45 decibels on the right. The losses were added to
total 140 decibels and then averaged to 35 decibels. The average of 35 decibels was reduced by
the fence of 25 decibels to 10 decibels, which was then multiplied by the factor of 1.5 to equal 15
decibels. Dr. Seaman noted that appellant had tinnitus, but that it did not interfere with his
activities of daily living. The A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.11 The A.M.A., Guides state that, if tinnitus
interferes with activities of daily living, including sleep, reading (and other tasks requiring
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

5

Id.

6

Federal (FECA) Procedure Manual, Part 3 -- Schedule Awards, Special Determinations, Chapter 2.700.4.b
(January 2010).
7

Id.

8

Id.

9

See Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).
10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002); Frantz Ghassan, 57 ECAB 349 (2006).
11

See A.M.A., Guides 249.

3

concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may
be added to a measurable hearing impairment.12 Dr. Seaman concluded that appellant was not
entitled to an additional award for tinnitus, as it did not interfere with his activities of daily
living. The weight of medical opinion establishes that appellant had 15 percent right-sided
hearing loss. The district medical adviser reviewed Dr. Seaman’s reports on October 11, 2012.
Dr. Weaver agreed that appellant had 15 percent right-sided hearing loss, which was
employment related. There is no medical evidence of record to establish more than 15 percent
right-sided hearing loss. OWCP properly granted appellant a schedule award for this amount.
LEGAL PRECEDENT -- ISSUE 2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13
ANALYSIS -- ISSUE 2
It is not disputed that appellant sustained a hearing loss in his left ear. The issue is
whether his hearing loss was caused or aggravated by exposure to noise in his employing
establishment.
Dr. Seaman provided a thorough examination and a reasoned opinion explaining how the
findings on examination and testing were not due to the noise in appellant’s employment. He
explained that appellant’s left ear was a “dead” ear and was not causally related to the history of
occupational noise exposure. Dr. Weaver concurred with this opinion. The Board finds that
Dr. Seaman’s report represents the weight of the evidence. The Board also notes that appellant
has not submitted any medical evidence that relates his left-sided hearing loss to noise exposure
in his federal employment. The Board finds that under these circumstances OWCP did not abuse
its discretion under section 8103(a) by denying authorization for a hearing aid for the left ear.
On appeal, appellant contends that he sustained a hearing loss causally related to noise
exposure at his federal employment and that therefore he is entitled to a schedule award for the
left ear. As noted, the medical evidence of record does not substantiate that his left-sided hearing
loss was employment related.

12

See Robert E. Cullison, 55 ECAB 570 (2004); R.H., Docket No. 10-2139 (issued July 13, 2011).

13

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

4

CONCLUSION
The Board finds that OWCP properly granted appellant a schedule award for 15 percent
permanent impairment of the right ear and that appellant did not meet his burden of proof to
establish that his left-sided sensorineural hearing loss was causally related to his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, MAIL PROCESSING
ANNEX, Orlando, FL, Employer
__________________________________________

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

Docket No. 19-0724
Issued: September 5, 2019

Case Submitted on the Record

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

JURISDICTION
On February 18, 2019 appellant, through counsel, filed a timely appeal from a
December 19, 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.3

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.

3
The Board notes that following the December 19, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include the additional condition of degenerative arthritis of the right knee as a
consequence of the accepted November 8, 2011 employment injury.
FACTUAL HISTORY
On November 9, 2011 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 8, 2011 he injured his lower back, neck, legs, arms,
shoulders, and wrists when he pushed a wire cage full of mail while in the performance of duty.
He stopped work on November 8, 2011. OWCP initially accepted the claim for neck sprain,
lumbar sprain, and left knee/leg sprain. Beginning January 23, 2012, it paid appellant wage-loss
compensation on the supplemental rolls. Effective February 12, 2012, OWCP placed him on the
periodic compensation rolls. In July 2012, it expanded appellant’s claim to include aggravation of
left knee arthritis.4 OWCP also authorized a December 17, 2012 total left knee arthroplasty.
By decision dated June 17, 2013, OWCP terminated medical benefits with respect to
appellant’s accepted cervical and lumbar conditions. However, appellant remained eligible for
medical benefits with respect to his left knee. He also continued to receive wage-loss
compensation on the periodic rolls.
In an August 22, 2013 letter and report, Dr. Samy F. Bishai, a Board-certified orthopedic
surgeon, noted that appellant was recovering well from his total left knee replacement surgery and
was unable to return to any type of work, including sedentary employment, due to instability in his
left knee. He also reported that appellant had developed a “consequential injury in his right knee
joint secondary to the problems he had with his left knee joint.”5 Dr. Bishai explained that
appellant had been walking with a very bad left knee joint for a prolonged period and was putting
most of his weight on the right leg and knee in order to avoid putting weight on the left knee. Upon
examination of appellant’s right knee, he reported tenderness overlying the joint line and
tenderness overlying the patella. Range of motion revealed extension of approximately 180
degrees and flexion to approximately 90 degrees. Dr. Bishai reported right knee diagnoses,
including degenerative arthritis of the left knee joint and status postop arthroscopic surgery of the
right knee joint for meniscus tear problems.
A September 3, 2013 right knee magnetic resonance imaging (MRI) scan revealed joint
effusion, degenerative cysts, tears of the lateral and medial meniscus, and diffuse osteophyte
formation throughout the knee joint.
In a December 17, 2013 letter and report, Dr. Bishai continued to opine that appellant
sustained a consequential right knee injury because he had to put more weight on his right lower
extremity to take pressure off his accepted left knee employment injury. He reported right knee
examination findings of tenderness overlying the joint line both medially and laterally and
tenderness overlying the patella. Dr. Bishai explained: “For all the time [appellant] suffered from
his left knee condition, his right knee was having more weight bearing than normal to compensate
4

Appellant had previously undergone a December 2009 left knee arthroscopy to repair a torn medial meniscus.

5

On December 4, 2008 appellant underwent right knee arthroscopy to repair a torn medial meniscus.

2

for the left knee condition so [appellant] developed symptoms in his right knee joint … this is a
classic case of consequential injury.” He requested that appellant’s right knee condition be
accepted as a consequential injury.
In a December 20, 2013 report, Dr. Sean M. McFadden, a Board-certified orthopedic
surgeon, noted that he evaluated appellant for complaints of continued and progressive right knee
pain over the prior year.6 Examination of appellant’s right knee demonstrated positive pain on
palpation along the medial joint space and osteophyte formation of the medial femoral condyle
and medial tibial plateau. Dr. McFadden related that a right knee x-ray revealed end-stage arthritis
of the medial joint space. He recommended partial right knee replacement surgery. In reports
dated September 22 and November 24, 2015, Dr. McFadden continued to evaluate appellant for
his right knee symptoms and recommend surgery.
On April 1, 2014 OWCP referred appellant along with the statement of accepted facts
(SOAF) and the medical record to Dr. Brian Leung, a Board-certified orthopedic surgeon for a
second opinion examination, to determine the status of appellant’s left knee condition and whether
his right knee condition was consequential to his accepted left knee injury. In a May 9, 2014
report, Dr. Leung noted his review of the SOAF and related that appellant’s claim was accepted
for neck strain, lumbar strain, and aggravation of left knee osteoarthritis. He related that
appellant’s left knee was doing well after a total knee replacement surgery, but he now complained
of severe right knee pain. Upon examination of appellant’s right knee, Dr. Leung observed pain
over the medial joint space and on McMurray testing. Range of motion demonstrated full
extension and 120 degrees flexion. Dr. Leung indicated that diagnostic testing of appellant’s right
knee revealed predominantly medial compartment, patellofemoral osteoarthritis, joint space
narrowing, subchondral sclerosis, and osteophyte formation. He diagnosed right knee
osteoarthritis, moderately severe with joint space narrowing. Dr. Leung opined that appellant’s
right knee injury was degenerative and not related to his left knee injury. He reported that appellant
was capable of returning to light-duty work and completed a work capacity evaluation form
providing restrictions.
Dr. Bishai continued to treat appellant. In reports dated August 27 and October 1, 2014,
he related appellant’s complaints of left hip, back, and right knee pain. Dr. Bishai reported
examination findings of tenderness overlying the right knee joint line both medially and laterally
and some effusion in the joint. He opined that appellant continued to have significant problems as
a result of a consequential right knee injury.
In August 2015, appellant underwent a left total hip arthroplasty.
In a September 28, 2016 letter, appellant’s then-representative, requested that OWCP add
appellant’s right knee degenerative arthritis to his claim as a consequential injury.
In reports dated March 24, April 27, and July 19, 2016, Dr. Bishai continued to opine that
appellant suffered a consequential right knee injury due to his left knee injury. He explained that
while appellant was suffering from his left knee injury and receiving treatment, he was putting
most of his weight on his right lower extremity, which affected his right knee and caused appellant
to develop degenerative arthritis of the right knee joint. Dr. Bishai reported that this was a “case
6

Dr. McFadden performed a December 2009 left knee arthroscopy, the December 2012 left total knee arthroplasty,
as well as a December 4, 2008 right knee arthroscopy.

3

of consequential injury from overuse of the right lower extremity and right knee joint.” He
continued to provide right knee examination findings and diagnosed status post-arthroscopic
surgery of the right knee joint.
In an October 5, 2016 report, Dr. McFadden related appellant’s complaints of severe right
knee pain limiting his normal daily activities. He noted examination findings and diagnosed right
knee end-stage arthritis and status post left total knee arthroplasty. Dr. McFadden opined that
appellant had a consequential injury to the right knee that occurred as a result of his left knee
injury. He recommended right total knee replacement surgery.
On April 26, 2017 OWCP determined that a conflict in medical opinion existed between
Dr. McFadden, appellant’s treating physician, and Dr. Leung, OWCP’s referral physician,
regarding whether appellant sustained a consequential right knee injury causally related to his
accepted left knee injury. It referred him to Dr. Robert Elkins, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In a July 26, 2017 report, Dr. Elkins reviewed the SOAF and appellant’s medical records.
He noted the November 8, 2011 employment injury and that appellant’s claim was accepted for
left knee, neck, and lumbar sprain, and aggravation of left knee osteoarthritis. Dr. Elkins noted
that no significant references had been made to appellant’s right knee problems other than his right
knee surgery in 2008. He reported right knee examination findings of tenderness over the medial
joint line and negative drawer. McMurray’s, Lachman’s, and Homan’s signs were negative.
Range of motion testing revealed flexion of 4 to 98 degrees and slight crepitus at 45 degrees.
Dr. Elkins diagnosed status post left hip replacement, not related, status post left total knee
replacement with good result, right degenerative arthritic changes and loss of range of motion, and
neck and back chronic problems.
In response to OWCP’s questions, Dr. Elkins noted that appellant had degenerative arthritis
in the right knee. He opined that appellant’s right knee end-stage arthritis was not a consequential
injury. Dr. Elkins explained that appellant underwent right knee surgery in 2008 for moderately
advanced arthritis and other conditions, which supported a preexisting problem. He also related
that appellant’s history showed that he had not complained of much right knee pain until after his
total knee replacement surgery. Dr. Elkins noted that a 2013 right knee MRI scan showed a
continuation of the 2008 problem. He concluded that appellant had an “independent osteoarthritis
of the right knee” which occurred before the current injury.
In a September 27, 2017 report, Dr. Mark A. Seldes, a Board-certified family practitioner,
related that he evaluated appellant for complaints of moderate-to-severe right knee pain. He
reported that the right knee was a consequential injury from the original November 8, 2011
employment injury. Dr. Seldes explained that appellant “overloaded his right lower extremity and
the right knee essentially took the brunt of all the work and stress needed to allow him to stand and
walk.” Upon examination of appellant’s right knee, he observed moderate tenderness overlying
the joint line both medially and laterally and moderate swelling over the joint due to moderate
effusion medially. Range of motion testing showed flexion to 95 degrees with pain and moderate
crepitus and popping over the patellar area while performing flexion and extension maneuvers.
Dr. Seldes noted various diagnosed conditions, including status post arthroscopic surgery of the
right knee joint for meniscal tear and degenerative arthritis of the right knee as a consequential
injury to the left knee condition.

4

By decision dated October 20, 2017, OWCP denied expansion of appellant’s claim to
include a consequential right knee injury. It found that the special weight of the medical evidence
rested with Dr. Elkins’ July 26, 2017 impartial medical report, which determined that appellant’s
right knee condition was not a consequential injury.
On February 6, 2018 appellant, through his then representative, requested reconsideration
of the October 20, 2017 decision.
OWCP subsequently received several reports from Dr. Seldes dated October 25, 2017 to
April 12, 2018. Dr. Seldes provided examination findings similar to his previous report and
opined that appellant’s right knee condition was a consequential injury to the left knee. He
reported that appellant had to “overload his right lower extremity” during his recovery and
rehabilitation for his accepted left knee injury. Dr. Seldes related that before appellant had left
total knee replacement on December 17, 2012 he had to ambulate for two years using his dominant
knee on the right side, and that after the surgery appellant continued to use his right knee to
ambulate. He further explained that appellant had a consequential right knee injury “due to bearing
the weight and the stress of the right knee secondary to his left knee injury.” Dr. Seldes continued
to request that appellant’s claim be updated to include degenerative arthritis of the right knee.
Appellant submitted an October 24, 2017 report by Dr. McFadden in which he requested
that OWCP approve appellant’s claim for a consequential right knee injury so that appellant could
proceed with surgery. Dr. McFadden indicated that he had documented over the past two years
the progression of right knee arthritis and the fact that the condition was work related. He noted
that appellant had progression of the arthritis as noted on x-rays, loss of function, and progression
of pain.
OWCP also received additional diagnostic testing. A January 24, 2018 right knee x-ray
showed osteoarthritis worse in the medial and patellofemoral compartments with small joint
effusion. A right knee MRI scan revealed osteoarthritis with full-thickness cartilage loss in the
medial compartment and moderate cartilage loss in the patellofemoral compartment and mild
cartilage loss in the lateral compartment, associated joint effusion and mild synovitis, and complex
multidirectional tear of the posterior horn and body of the medial meniscus.
By decision dated May 16, 2018, OWCP denied modification of the October 20, 2017
decision.
On July 30, 2018 appellant, through his representative, requested reconsideration.
OWCP received medical reports from Dr. Seldes dated May 10 to December 12, 2018.
Dr. Seldes continued to request that appellant’s right knee osteoarthritis be accepted as a
consequential injury so that appellant could undergo total right knee replacement surgery. He
reiterated that, while appellant received treatment for his work-related left knee injury, the right
knee “took the brunt of the weight bearing for the body” as appellant was unable to use his left
knee during rehabilitation. Dr. Seldes reported right knee examination findings of moderate
tenderness to palpation over the medial and lateral joint line and moderate swelling in the joint line
due to effusion. He noted diagnoses related to appellant’s right knee of status post-arthroscopic
surgery of the right knee joint for meniscal tear and severe right knee degenerative arthritis.
By decision dated December 19, 2018, OWCP denied modification of the May 16, 2018
decision.
5

LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).10
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to a claimant’s own intentional misconduct.11 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.12
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.13 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.14
Where OWCP has referred the case to an impartial medical examiner to resolve the conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well reasoned and based upon a
proper factual background, must be given special weight.15

7

R.J., Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

Id.

11

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation
10-1 (2006).
12

Susanne W. Underwood (Randall L. Underwood), 53 ECAB 139, 141 n.7 (2001).

13
5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
14

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

15

V.K., Docket No. 18-1005 (issued February 1, 2019); Gary R. Sieber, 57 ECAB 414, 416 (2006).

6

ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
his claim to include the additional condition of degenerative arthritis of the right knee as a
consequence of the accepted November 8, 2011 employment injury.
The Board finds that OWCP properly determined that a conflict in medical opinion existed
between Dr. McFadden, appellant’s treating physician, and Dr. Leung, the second opinion
examiner, on the issue of whether appellant sustained a consequential right knee injury due to his
accepted November 8, 2011 employment injury. Accordingly, OWCP referred appellant to
Dr. Elkins for an impartial medical examination and an opinion to resolve the conflict.16
In a July 26, 2017 report, Dr. Elkins reviewed the medical record, the SOAF, and noted the
November 8, 2011 employment injury along with appellant’s accepted conditions of left knee,
neck, and lumbar sprain, and left knee osteoarthritis. He reported right knee examination findings
of tenderness over the medial joint line and negative drawer. Dr. Elkins diagnosed status post left
hip replacement, not related, status post left total knee replacement with good result, right
degenerative arthritic changes and loss of range of motion, and neck and back chronic problems.
He reported that appellant’s right knee condition was degenerative in nature and that there was no
evidence to establish that appellant’s employment caused or contributed to his degenerative right
knee condition. Dr. Elkins opined that appellant’s right knee end-stage arthritis was not a
consequential injury.
The Board finds that the report of Dr. Elkins is sufficient to carry the special weight of
medical opinion evidence and establishes that appellant did not sustain a consequential right knee
injury due to the accepted November 8, 2011 employment injury.17 Dr. Elkins accurately
described the employment injury and noted his review of the medical record, including the SOAF.
He performed a thorough, clinical examination and provided findings on examination. Dr. Elkins
opined that appellant’s right knee condition was degenerative in nature and was present before the
employment injury. He explained that appellant had a preexisting right knee problem and had a
history of right knee symptoms. Dr. Elkins concluded that there was no evidence to establish that
appellant’s right knee osteoarthritis was consequential to the accepted November 8, 2011 left knee
injury. Where OWCP has referred the case to an impartial medical examiner to resolve the conflict
in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned and based
upon a proper factual background, must be given special weight.18 Accordingly, the Board finds
that OWCP properly accorded the special weight of medical evidence to Dr. Elkins as the impartial
medical examiner.
The medical evidence submitted subsequent to Dr. Elkins’ impartial medical report is
insufficient to overcome the special weight. In reports dated September 27, 2017 to December 12,
2018, Dr. Seldes noted his disagreement with Dr. Elkins’ July 26, 2017 opinion and explained that
appellant had a consequential injury due to bearing the weight and stress on his right knee. The
Board finds that Dr. Seldes’ reports are insufficient to establish expansion of appellant’s claim as
16

Supra notes 12 and 13.

17

See G.M., Docket No. 18-1710 (issued June 3, 2019); M.M., Docket No. 16-1655 (issued April 4, 2018).

18

Supra note 14.

7

they do not contain sufficient explanation, based on medical rationale, of how appellant’s right
knee osteoarthritis resulted from his accepted left knee condition and/or authorized surgery.19
Dr. Seldes did not provide a pathophysiological explanation as to how excessive weight bearing
on appellant’s right knee caused or contributed to his right knee arthritis.20 The need for
rationalized medical evidence is particularly important in light of appellant’s preexisting right knee
meniscal tear and arthroscopy.21 The Board finds, therefore, that Dr. Seldes’ reports are
insufficient to meet appellant’s burden of proof or to create a new conflict.
OWCP also received an October 24, 2017 report by Dr. McFadden. This report is also
insufficient to overcome the special weight afforded to Dr. Elkins, as the impartial medical
examiner, because reports from a physician who was on one side of a medical conflict that an
impartial specialist resolved are, generally, insufficient to overcome the weight accorded to the
report of the impartial medical examiner or to create a new conflict.22
As the medical evidence of record is insufficient to establish consequential right knee
osteoarthritis causally related to his accepted left knee injury, the Board finds that appellant has
not met his burden of proof.23
On appeal counsel argues that OWCP’s decision ignores dual and proximate causation. As
explained above, Dr. Elkins provided a well-rationalized opinion based on a complete factual
background, SOAF, review of the medical record, and physical examination findings that
appellant’s right knee osteoarthritis was not causally related to his accepted left knee employment
injury. Accordingly, Dr. Elkins’ medical opinion was sufficient to carry the special weight of
medical evidence and he resolved the conflict.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not me his burden of proof to expand the acceptance of
his claim to include the additional condition of degenerative arthritis of the right knee as a
consequence of the accepted November 8, 2011 employment injury.

19

Medical evidence that states a condition, but does not offer any rationalized medical explanation regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship. D.H., Docket No.
17-1913 (issued December 13, 2018); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB
149 (2006).
20

D.F., Docket No. 19-0067 (issued May 3, 2019); D.W., Docket No. 13-1873 (issued March 13, 2014).

21

W.S., Docket No. 17-1769 (issued July 26, 2018); S.W., Docket No. 08-2538 (issued May 21, 2009).

22

I.J., 59 ECAB 408, 414 (2008).

23

See A.T., Docket No. 18-1717 (issued May 10, 2019).

8

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2019
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 13-184
Issued: April 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On November 2, 2012 appellant filed a timely appeal from May 21 and October 17, 2012
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a back injury in the
performance of duty on March 17, 2012.
FACTUAL HISTORY
On March 21, 2012 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim alleging that on March 17, 2012 she ruptured a disc in her lower back after picking up
Delivery Point Sequencing Mail. She stopped work and returned to full duty on April 12, 2012.
1

5 U.S.C. § 8101 et seq.

The employing establishment controverted appellant’s claim based on fact of injury and causal
relationship.
On April 16, 2012 OWCP advised appellant that the evidence submitted was insufficient
to establish her claim. It requested additional factual evidence to establish that she experienced
the incident alleged to have caused her injury and a medical report, which included dates of
examination and treatment, history of injury, description of findings, a medical diagnosis and an
opinion, supported by medical rationale, explaining how the alleged employment incident caused
or aggravated her medical condition.
In an April 13, 2012 duty status report, a chiropractor with an illegible signature noted
that appellant was a letter carrier who experienced pain in her lumbar area when she picked up
Delivery Point Sequencing Mail. Appellant was authorized to return to full duty.
In an April 18, 2012 report, Dr. Jarrett Armstrong, a chiropractor, recommended
appellant be evaluated by Dr. Robert Myles, a Board-certified orthopedic surgeon, due to her
limited results and continued pain in the lumbar and sacroiliac regions.
Appellant submitted requests for absences from the employing establishment for the
period March 17 to 31 and April 7 to 20, 2012.
In a decision dated May 21, 2012, OWCP denied appellant’s claim finding insufficient
evidence to establish fact of injury. It determined that she did not provide sufficient evidence to
establish that the March 17, 2012 incident occurred as alleged and that she sustained any
diagnosed condition as a result of the alleged incident.
On June 20, 2012 appellant requested a review of the written record.
In an undated handwritten statement, appellant stated that she tried to contact various
physicians but they were out of business and that she was waiting until June 2012 to see the
referred physician. She noted that she would do anything that OWCP asked her to do and that
she wanted to fix her back as soon as possible so she could return to work.
Dr. Ronald L. Chio, a Board-certified internist, in a May 24, 2012 report, stated that he
was unable to examine appellant because his office did not accept workers’ compensation cases.
In a June 6, 2012 report, Dr. Les Benson, a Board-certified psychiatrist and neurologist,
noted appellant’s complaints of a low back injury at work. He explained that she picked up
Delivery Point Sequencing Mail to place it in case when she felt a pop in her back. Appellant
was initially just uncomfortable, but the pain quickly worsened until she could not bear the pain.
She tried to work the next week, but went home because of intense pain. Dr. Benson reviewed
appellant’s history and conducted an examination. He observed decreased range of motion of
the spine and palpable spasm. Straight leg raise testing was positive. Dr. Benson diagnosed
lumbar strain and intervertebral disc disease (IVD) of the lumbar spine. He opined with
reasonable medical certainty that the injuries appellant suffered on March 17, 2012 were the
result of the performance of her duties while working as a letter carrier for the employing
establishment. Dr. Benson concluded that appellant’s lumbar injury was a direct result of when
she picked up Delivery Point Sequencing Mail and felt a pop in her low back.
2

In nearly identical reports dated from June 19 to October 2, 2012, Dr. Benson noted that
appellant was treated for an injury sustained while working for the employing establishment. He
diagnosed lumbar sprain/strain and lumbar disc disease. Upon examination, Dr. Benson
observed decreased range of motion and inability to tolerate walking and standing. He opined
that appellant was totally disabled from June 6 to November 6, 2012 when she would be
evaluated for further care.
In a June 30, 2012 magnetic resonance imaging (MRI) scan report, Dr. Paul Marsh, a
radiologist, noted severe scoliotic curvature of the lumbar spine and severe facet arthropathy
especially rightward at T10-11. He also observed diffuse disc bulge and slight foraminal
narrowing at the L1-2, mild facet arthropathy and mild diffuse disc bulge at L2-3, moderate to
severe facet arthropathy and diffuse disc bulge at L4-5 and moderate to severe facet arthropathy
and mild diffuse disc bulge at L5-S1.
The employing establishment again controverted appellant’s claim, by statement of
September 4, 2012, finding that she had been off work since April 10, 2012 and continued to be
diagnosed with lumbar sprain/strain, which should have resolved. It noted that the diagnosis of
lumbar IVD was more conducive with an occupational disease claim and not a traumatic injury.
The employing establishment reported that no medical evidence was provided to establish that
appellant’s condition was caused by her federal employment.
By decision dated October 17, 2012, an OWCP hearing representative affirmed the
May 21, 2012 denial decision finding insufficient evidence to establish that she sustained any
injury as a result of the alleged March 17, 2012 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence3
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. 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.6 Second, the employee must submit

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

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evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7
An employee has the burden of establishing the occurrence of an injury at the time, place
and in the manner alleged, by a preponderance of the reliable, probative and substantial
evidence. An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action. An employee has not met his or her burden of proof establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.8
The employee must also submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9 Whether an
employee sustained an injury in the performance of duty requires the submission of rationalized
medical opinion evidence.10 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11 The
weight of the medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion.12
ANALYSIS
Appellant alleged that she sustained a back injury on March 17, 2012 when she picked up
Delivery Point Sequence Mail at work.13 She stopped work and filed a traumatic injury claim on
March 21, 2012. By decisions dated May 21 and October 17, 2012, OWCP denied appellant’s
claim finding insufficient evidence to establish fact of injury.

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

D.B., 58 ECAB 464, 466-67 (2007).

9

J.Z., 58 ECAB 529 (2007).

10

Id.; Paul E. Thams, 56 ECAB 503 (2005).

11

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

12

James Mack, 43 ECAB 321 (1991).

13

“[Direct point sequence]” denotes presorted mail.

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OWCP found that the evidence was not sufficient to establish the March 17, 2012
employment incident. The Board finds, however, that the evidence is sufficient to establish the
March 17, 2012 work incident. The record reflects that appellant’s subsequent course of action
following the alleged employment incident is consistent with her statement describing the
March 17, 2012 incident. Appellant stopped work immediately on March 17, 2012 after the
employment incident occurred and filed a traumatic injury claim a few days later on
March 21, 2012. She did not return to work until April 12, 2012. As previously noted, an
employee’s statement regarding the occurrence of an employment incident is of great probative
force and will stand unless refuted by strong or persuasive evidence. There is no evidence in the
record, such as inconsistent statements, late notification of injury or failure to obtain medical
treatment, to refute appellant’s description of the March 17, 2012 incident.14 The fact that
Dr. Benson parrotted what she stated is not evidence of the incident. Accordingly, the Board
finds that appellant has established the March 17, 2012 employment incident.15
Although appellant has established that, the March 17, 2012 incident occurred, she also
bears the burden of proof to establish that the employment incident caused a personal injury.16
Appellant submitted nearly identical reports by Dr. Benson dated June 19 to
October 2, 2012. In his June 6, 2012 report, Dr. Benson reviewed her history and related that on
March 17, 2012 she picked up mail at work and felt a pop in her low back. Upon examination,
he observed decreased range of motion of the spine and noted positive straight leg raise testing.
Dr. Benson diagnosed lumbar strain and disc disease of the lumbar spine. He opined that the
injuries appellant suffered on March 17, 2012 were the result of the “performance of her duties
while working as a letter carrier for the employing establishment.” Although Dr. Benson
provides an accurate history of injury and a firm, medical diagnosis, his conclusion regarding
causal relationship is insufficient to establish appellant’s claim because he does not explain, with
medical rationale, how picking up mail at work caused her lumbar sprain and lumbar spine disc
disease. The Board has held that medical evidence that states a conclusion but does not offer any
rationalized medical explanation regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.17 Thus, Dr. Benson’s opinion is insufficient
to establish causal relationship.
Appellant also submitted a May 24, 2012 report by Dr. Chio and a June 30, 2012 MRI
scan report by Dr. Marsh. While both physicians noted appellant’s back injury, neither provided
an opinion on the cause of the injury. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.18 These reports, therefore, are also insufficient to meet
appellant’s burden of proof.
14

Supra note 8.

15

See M.H., 59 ECAB 461 (2008).

16

Supra note 7.

17

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

18

C.B., Docket No. 09-2027 (issued May 12, 2010); Id.

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The additional medical evidence is from a chiropractor. Section 8101(2) of FECA
provides that the term physician includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct
subluxation as demonstrated by x-ray to exist.19 As none of the reports contain a diagnosis of
spinal subluxation based on an x-ray, the chiropractor is not considered a physician under FECA
and her opinions are of no probative valuable.
On appeal, appellant alleges that OWCP’s decision erred in fact of law in regard to 5
U.S.C. § 8122, but she does not otherwise explain how the decision was erroneous. Because the
record does not contain probative medical evidence establishing that her back condition was
causally related to the March 17, 2012 employment incident, the Board finds that she did not
meet her burden of proof to establish her claim. Causal relationship is a medical issue that can
only be shown by reasoned medical opinion evidence that is supported by medical rationale.20
Appellant has not provided such evidence in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her back
condition was causally related to the March 17, 2012 employment incident.

19

5 U.S.C. § 8101(2); see also E.W., Docket No. 09-6 (issued February 17, 2009); George E. Williams, 44 ECAB
530 (1993).
20

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the October 17 and May 21, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed as modified.
Issued: April 15, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cedar Rapids, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-579
Issued: January 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 14, 2013 appellant filed a timely appeal of a July 18, 2012 decision of the
Office of Workers’ Compensation Programs, denying his application for reconsideration without
merit review of the claim.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 July 18, 2012 nonmerit
decision. Since more than 180 days has elapsed between the last merit decision on
November 11, 2011 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

1

See Order Granting Petition for Recon. (issued November 6, 2013). The Board found that appellant’s appeal
was filed by January 14, 2013, making it timely with respect to the July 18, 2012 OWCP decision.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 1, 2008 appellant, then a 46-year-old letter carrier, filed an occupational
claim (Form CA-2) alleging that he sustained a right foot condition causally related to walking in
his federal employment. OWCP accepted the claim for right ankle and tarsus enthesopathy, and
crossover hammertoe of the right second toe. Appellant underwent right ankle surgery on
January 7, 2009 and February 17, 2010.
Appellant submitted a claim for compensation (Form CA-7) indicating that he was
claiming a schedule award. OWCP referred appellant to Dr. Farid Manshadi, a Board-certified
physiatrist, for evaluation. In a report dated May 31, 2011, Dr. Manshadi provided a history and
results on examination. With respect to a permanent impairment, he opined that appellant had a
two percent right leg impairment under the American Medical Associations, Guides to the
Evaluation of Permanent Impairment (sixth edition) due to loss of range of motion in the third
toe. Dr. Manshadi also indicated that appellant had a 16 percent right leg impairment based on
application of the ankle regional grid under the A.M.A., Guides.
In a report dated June 19, 2011, OWCP’s medical adviser stated that appellant had
received a schedule award for a five percent right leg impairment from a prior claim. The
medical adviser indicated that the file should be made available for review.
By report dated June 23, 2011, OWCP’s medical adviser stated that the prior award was
for a right knee condition. The medical adviser opined that Dr. Manshadi had found an 18
percent right leg impairment. As to permanent impairment, the medical adviser combined the 18
percent with the 5 percent from the prior award for a 22 percent impairment, then subtracted 5
percent for a 17 percent leg impairment. In a report dated July 10, 2011, the medical adviser
stated that he was mistaken and that Dr. Manshadi had found a 16 percent right leg impairment.
The medical adviser opined that appellant had a 15 percent right leg impairment after combining
and then subtracting the 5 percent from the prior award.
By decision dated July 25, 2011, OWCP issued a schedule award for a 15 percent right
leg impairment. By decision dated November 10, 2011, an OWCP hearing representative
affirmed the July 25, 2011 decision.
Appellant requested reconsideration and submitted an April 17, 2012 report from
Dr. Manshadi, who stated that the total right leg impairment was 18 percent.
By decision dated July 18, 2012, OWCP found that the application for reconsideration
was insufficient to warrant a merit review of the claim. It found that Dr. Manshadi reiterated his
opinion for the second and third toes from his prior report. In addition, OWCP found that a third
toe condition had not been accepted as employment related.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).

2

submitting a written application for reconsideration that sets forth arguments and contains
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 evidence not previously considered by OWCP.”4 20 C.F.R.
§ 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(2) will be denied by OWCP without review of the
merits of the claim.5
ANALYSIS
In the present case, appellant submitted on reconsideration an April 17, 2012 report from
Dr. Manshadi with respect to a right leg permanent impairment. Dr. Manshadi had been selected
as a second opinion physician and had previously submitted a May 31, 2011 report. In the
April 17, 2012 report, Dr. Manshadi stated that appellant had an 18 percent right leg impairment
based on his prior examination.
OWCP found that Dr. Manshadi’s April 17, 2012 report was repetitive as he had
previously discussed a 16 percent impairment based on the regional grid and a 2 percent
impairment based on loss of motion for the third toe. But Dr. Manshadi had not specifically
opined that the impairment for the right leg was 18 percent in his prior report. And clearly there
was some confusion with respect to Dr. Manshadi’s findings, as the medical adviser had initially
stated that the impairment was 18 percent and then found, without clear explanation, that the
impairment from Dr. Manshadi’s evaluation was 16 percent.
The brief statement in the July 18, 2012 decision that OWCP had not accepted a third toe
injury does not render the April 17, 2012 report irrelevant or cumulative. The issue of causal
relationship between an impairment and the employment injury is a medical issue that must be
resolved by the medical evidence. Moreover, the issue presented is not whether Dr. Manshadi’s
report was sufficient to establish a greater impairment, but only whether it was new, relevant and
pertinent evidence to the schedule award issue.
The Board finds that Dr. Manshadi’s April 17, 2012 report was new and relevant
evidence. Pursuant to 20 C.F.R. § 10.606(b)(2)(iii), appellant was entitled to a review of the
merits of the claim. On return of the case record OWCP should issue a proper decision on the
merits of the schedule award claim.6

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

6

A proper decision must clarify the impairment calculation with respect to the prior award. The Board has held
that a current impairment is reduced by a prior schedule award if: (1) the impairments are to the same member or
function, and (2) the latter impairment in whole or in part would duplicate the compensation payable for the
preexisting impairment. T.S., Docket No. 09-1308 (issued December 22, 2009); 20 C.F.R. § 10.404(c). The prior
award was apparently based on a right knee impairment, and no explanation was provided as to why the current
impairment to the right foot and ankle duplicated the prior impairment. See P.H., Docket No. 12-418 (issued
July 10, 2012). If there is no duplication then there is no basis for considering the prior award in determining the
current impairment.

3

CONCLUSION
The Board finds that appellant’s application for reconsideration was sufficient to warrant
a merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the July 18, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: January 2, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4