United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.O., Appellant
and
U.S. POSTAL SERVICE, SOUTH PORTLAND
CARRIER ANNEX, South Portland, ME,
Employer
__________________________________________

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Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0287
Issued: June 1, 2021

Case Submitted on the Record

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

JURISDICTION
On November 21, 2019 appellant, through his representative, filed a timely appeal from an
October 29, 2019 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.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 issuance of the October 29, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 13 percent
permanent impairment of his left upper extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
On August 20, 2004 appellant, then a 37-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained left shoulder rotator cuff tendinitis due to his
federal employment duties. OWCP assigned the claim OWCP File No. xxxxxx724 and accepted
it for left shoulder tendinitis. It authorized diagnostic glenohumeral arthroscopy, debridement of
a partial-thickness rotator cuff tear, and arthroscopic subacromial decompression with
acromioplasty and resection of the distal clavicle, which occurred on November 16, 2004.
Appellant returned to limited-duty work on November 30, 2004. By decision dated October 12,
2006, OWCP granted him a schedule award for 13 percent permanent impairment of his left upper
extremity.
On December 31, 2007 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 24, 2007 he injured his left arm, sustained a ring
finger sprain and fracture below his left thumb, and experienced left elbow and shoulder pain when
he slipped on ice as he climbed back into his truck while in the performance of duty. He stopped
work on December 27, 2007 and returned to work on December 31, 2007. OWCP assigned the
claim OWCP File No. xxxxxx023, and accepted it for left sprain of the proximal interphalangeal
joint of the fourth finger, grade 1 left acromioclavicular (AC) separation, and left wrist
injury/navicular fracture. On April 3, 2008 appellant returned to full-time limited-duty work.
OWCP File Nos. xxxxxx724 and xxxxxxx023 have been administratively combined with the latter
serving as the master file.
On July 30, 2009 appellant filed a claim for an additional schedule award (Form CA-7)
and submitted medical evidence.
After further development of the medical evidence, OWCP, by decision dated February 4,
2010, denied appellant’s claim for an additional schedule award, finding that the weight of the
medical evidence established that he had no more than the previously awarded 13 percent
permanent impairment of his left upper extremity
On January 5, 2012 appellant underwent OWCP-authorized left shoulder arthroscopy,
subacromial decompression, and arthroscopic distal clavicle excision. He returned to full-time
modified-duty work on March 16, 2012.
On May 11, 2012 appellant filed another Form CA-7 for an additional schedule award and
submitted medical evidence in support of his claim.
After further development of the medical evidence, OWCP, by decision dated January 28,
2013, again denied appellant’s schedule award claim, finding that the medical evidence of record
was insufficient to establish he had greater than 13 percent permanent impairment of his left upper
extremity previously awarded.
2

On February 4, 2013 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
On June 24, 2013 OWCP expanded the acceptance of appellant’s claim to include inferior
trunk plexopathy (injury to the brachial plexus).
An OWCP hearing representative, by decision dated July 30, 2013, set aside the
January 28, 2018 decision and remanded the case to OWCP for further development of the medical
evidence regarding the extent of appellant’s left upper extremity permanent impairment.
On remand OWCP continued to develop the medical evidence.
By decision dated January 24, 2014, OWCP continued to deny appellant’s claim for an
additional schedule award, finding that the weight of the medical evidence established that he had
no more than the previously awarded 13 percent permanent impairment of his left upper extremity.
The January 24, 2014 decision was affirmed on November 3, 2014 by an OWCP hearing
representative. By decision dated August 27, 2015, OWCP denied appellant’s request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
OWCP received an August 15, 2017 report by Dr. Frank A. Graf, an attending Boardcertified orthopedic surgeon.4 Dr. Graf reviewed appellant’s medical records and provided
findings on physical examination. He determined that appellant had reached maximum medical
improvement (MMI). Dr. Graf reiterated his prior opinion that appellant had 23 percent permanent
impairment of his left upper extremity.5 He reasoned that his examination documented residuals
of the original employment-related cervical spine, left shoulder, and peripheral nerves injuries with
ongoing permanent impairment. Dr. Graf disagreed with the opinion of an OWCP district medical
adviser (DMA) regarding the use of electromyogram/nerve conduction velocity (EMG/NCV)
studies in rating permanent impairment. He maintained that such studies should not be used rigidly
as they have high specificity when positive, but low sensitivity and did not reflect the multi-focal
nature of the ongoing nerve dysfunction present in appellant at both the spinal nerve root, brachial
plexus, and peripheral nerve.
On September 12, 2017 appellant continued to file a Form CA-7 for an additional schedule
award.
OWCP, by development letter dated September 21, 2017, advised appellant that no medical
evidence had been submitted in support of his schedule award claim. It requested that he submit
a report from his treating physician addressing whether he had reached MMI and evaluating the
4

The Board notes that Dr. Graf previously served as an OWCP referral physician and submitted reports dated
June 5 and July 3, 2012 and October 23 and December 19, 2013. On September 7, 2012 OWCP found a conflict in
the medical opinion evidence between Dr. Graf who opined that appellant had 23 percent permanent impairment of
the left upper extremity and an OWCP DMA who opined that appellant had 12 percent permanent impairment of the
same extremity and referred him for an impartial medical examination.
5
In his June 5 and July 3, 2012 reports, Dr. Graf determined that appellant had 12 percent permanent impairment
of his left upper extremity under the ROM rating method and12 percent permanent impairment of the same extremity
under the diagnosis-based impairment (DBI) rating method based on a diagnoses of neural stretch injuries to the
inferior trunk of the brachial plexus and C8 spinal nerve root. He combined the range of motion (ROM) and DBI
impairment ratings which yielded 23 percent permanent impairment of the left upper extremity.

3

extent of permanent impairment, if any, in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6
OWCP afforded appellant 30 days to submit the necessary evidence.
By letter dated November 2, 2017, OWCP requested that Dr. Graf provide a medical report
which included an impairment rating in accordance with the sixth edition of the A.M.A., Guides.
It afforded him 30 days to submit the requested evidence.
In response, Dr. Graf related in a November 13, 2017 letter that his prior opinion on
appellant’s permanent impairment was based on the sixth edition of the A.M.A., Guides and his
rating of 23 percent impairment of his left upper extremity remained unchanged.
On January 2, 2018 OWCP referred appellant, together with a statement of accepted facts
(SOAF) and the medical record, to Dr. Lawrence M. Leonard, a Board-certified orthopedic
surgeon, for a second opinion impairment evaluation in accordance with the sixth edition of the
A.M.A., Guides.
On February 12, 2018 OWCP again expanded the acceptance of appellant’s claim to
include injury to brachial plexus.
In a February 27, 2018 letter, Dr. Leonard reviewed appellant’s medical records and noted
examination findings. He diagnosed left shoulder arthrosis and bursitis. Dr. Leonard opined that
appellant had reached MMI on April 26, 2012, the date that Dr. Vincent P. Herzog, an attending
Board-certified physiatrist, opined that appellant could perform regular-duty work and his normal
activities. Utilizing the DBI rating method found at Table 15-5 on page 403 of the A.M.A., Guides,
he noted that appellant had a class of diagnosis (CDX) of 1 for distal clavicle resection. He had a
QuickDASH score of 57.5. Dr. Leonard assigned a grade modifier for functional history (GMFH)
of 2, a grade modifier for physical examination (GMPE) of 2, and a grade modifier for clinical
studies (GMCS) of 2. He applied the net adjustment formula (GMFH - CDX) + (GMPE - CDX)
which resulted in a net adjustment of grade E, 12 percent permanent impairment of the left upper
extremity. Dr. Leonard also utilized the ROM rating method and found that, under Table 15-34
on page 475, 90 degrees of flexion yielded 9 percent permanent impairment, 30 degrees of
extension yielded 1 percent permanent impairment, 95 degrees of abduction yielded 3 percent
permanent impairment, 30 degrees of adduction yielded 3 percent permanent impairment, 80
degrees of internal rotation yielded 0 percent permanent impairment, and 85 degrees of external
rotation yielded 0 percent permanent impairment, totaling 14 percent permanent impairment of the
left upper extremity with a grade modifier 2. He then found that, under Table 15-3, a 14 percent
left upper extremity rating was consistent with a grade 2 modiﬁer, and accordingly no modiﬁcation
of the permanent impairment was indicated. Next, Dr. Leonard utilizing Table 15-36 adjusted the
impairment rating using the grade modifier 2 for GMFH by 1.4 percent (10 percent x 14 percent
or 1.4), 1 percent + 14 percent or 15 percent left upper extremity permanent impairment. He
explained that as the ROM method resulted in a higher rating than the DBI method, the ROM
calculation should be used. Dr. Leonard noted that appellant had previously received a schedule
for 13 percent permanent impairment of his left upper extremity and advised that he was entitled

6

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

4

to an additional schedule award for 2 percent permanent impairment due to his October 2000
employment injury.
On December 11, 2018 OWCP referred the medical evidence and a SOAF to Dr. David J.
Slutsky, a Board-certified orthopedic surgeon serving as a DMA for OWCP, to review the findings
in the February 27, 2018 report by Dr. Leonard and evaluate appellant’s permanent impairment
under the sixth edition of the A.M.A., Guides. In a December 30, 2018 report, the DMA utilized
the DBI rating method under Table 15-5 on page 403 and determined that a CDX of 1 for left distal
clavicle resection represented a class 1 impairment with a default value of 10 percent. He assigned
a GMFH of 3 due to moderate shoulder pain and a QuickDASH score of 57.5, under Table 15-7
on page 406. The DMA assigned a GMPE of 1 due to mild tenderness to palpation posteriorly,
under Table 15-8 on page 408. He assigned a GMCS of 1 due an inconclusive March 15, 2010
magnetic resonance imaging (MRI) scan and x-rays consistent with AC joint separation on
December 27, 2007, under Table 15-9 on page 410. The DMA applied the net adjustment formula
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (2 - 1) = 0, resulting in
a class 1, grade C, 10 percent permanent impairment of the left upper extremity. Additionally, he
utilized the ROM rating method to determine permanent impairment to the left upper extremity
and found that, under Table 15-34 on page 475, 90 degrees of flexion yielded 3 percent permanent
impairment, 30 degrees of extension yielded 1 percent permanent impairment, 95 degrees of
abduction yielded 3 percent permanent impairment, 20 to 30 degrees of adduction yielded 1
percent permanent impairment, 80 degrees of internal rotation yielded 0 percent permanent
impairment, and 85 degrees of external rotation yielded 0 percent permanent impairment, totaling
8 percent permanent impairment of the left upper extremity. The DMA determined that, under
Table 15-36 on page 477, a grade modifier 1 for 12 percent left upper extremity ROM permanent
impairment rating. He found a net modifier of 2 for GMFH under the same table. The DMA
multiplied 10 percent impairment by 8 percent impairment, which totaled .8 percent or 9 percent
permanent impairment of the left upper extremity for loss of ROM. He concluded that appellant
had no additional permanent impairment. The DMA found that he reached MMI on February 27,
2018, the date of Dr. Leonard’s impairment evaluation. He noted discrepancies in Dr. Leonard’s
impairment ratings. The DMA indicated that Dr. Leonard awarded nine percent permanent
impairment for abduction of 95 degrees, but according to Table 15-34, this represented three
percent impairment.
By letter dated January 15, 2019, OWCP requested that Dr. Leonard review the DMA’s
December 30, 2018 findings. In a February 8, 2019 letter, Dr. Leonard agreed with the DMA’s
assessment that he had incorrectly calculated nine percent permanent impairment rating for 95
degrees of abduction. He noted that, according to Table 15-34, the rating should be three percent
permanent impairment for the left upper extremity.
On February 25, 2019 OWCP requested that the DMA review the findings in the
August 15, 2017 report by Dr. Graf. In a March 11, 2019 report, the DMA referenced findings in
Dr. Graf’s July 3, 2012 report in which he found that appellant had 23 percent permanent
impairment of the left upper extremity based on the DBI rating method. He disagreed with
Dr. Graf’s 12 percent left upper extremity permanent impairment rating for a diagnosis of left
distal clavicle resection, noting his determination that appellant had 10 percent left upper extremity
permanent impairment based on such diagnosis under the DBI rating method and he had 9 percent
left upper extremity permanent impairment under the ROM rating method. Further, the DMA
noted that there was no clinical or electrodiagnostic evidence of a lower trunk plexopathy or C8
5

radiculopathy. The DMA indicated that Dr. Graf reported negative diagnostic test results for
carpal tunnel syndrome and did not perform additional diagnostic testing to determine a diagnoses
of cubital tunnel syndrome or assess upper extremity muscle strength. He noted that other
diagnostic test results of record were negative for these conditions. Therefore, the DMA concluded
that there was no clinical basis for the diagnosis of carpal tunnel syndrome, cubital tunnel
syndrome, or a brachial plexopathy based on physical examination. He referenced page 445 of the
A.M.A., Guides to support his opinion. The DMA determined that appellant had zero percent
permanent impairment for the diagnosis of either focal neuropathy or brachial plexopathy. He
disputed Dr. Graf’s rationale for not using EMG/NCV studies as vague and meaningless based on
his above-noted rationale. Additionally, he noted that the whole point behind using the A.M.A.
Guides was to determine an impairment rating was to rigidly adhere to impairment criteria it laid
out.
By decision dated March 28, 2019, OWCP denied appellant’s claim for an additional
schedule award based on the opinion of its DMA.
On April 3, 2019 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review, which was held on August 13, 2019.
By decision dated October 29, 2019, OWCP’s hearing representative affirmed the
March 28, 2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA7 and its implementing regulations8 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.9 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).10 The Board has approved the
use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of
a member of the body for schedule award purposes.11
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See also, Ronald R. Kraynak, 53 ECAB 130 (2001).

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5a (March 2017).
11

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

6

to be rated. With regard to the shoulder, the relevant portion of the arm for the present case,
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.14

12
See A.M.A., Guides (6th ed.) 405-12. Table 15-5 also provides that, if motion loss is present for a claimant with
certain diagnosed conditions, permanent impairment may alternatively be assessed using Section 15.7 (ROM
impairment). Such a ROM assessment stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.
13

FECA Bulletin No. 17-06 (May 8, 2017).

14

See supra note 10 at Chapter 2.808.6(f) (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

7

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 13
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.
In his December 30, 2018 report, the DMA properly calculated appellant’s left upper
extremity permanent impairment in accordance with the sixth edition of the A.M.A., Guides based
on the clinical findings of the second opinion physician, Dr. Leonard. Utilizing the DBI rating
method, under Table 15-5, page 403, the DMA found that appellant’s diagnosis of left distal
clavicle resection represented a CDX of 1 with a default value of 10 percent impairment. He
assigned a GMFH of 3 under Table 15-7, page 406, a GMPE of 1 under Table 15-8, page 408, and
a GMCS of 1 under Table 15-9, page 410. The DMA applied the net adjustment formula (GMFH
- CDX) + (GMPE - CDX) + (GMCS - CDX) = (2 - 1) + (2 - 1) + (2 - 1) = 0, yielding a class 1,
grade C, 10 percent permanent impairment of the left upper extremity. Additionally, he utilized
the ROM rating method to determine permanent impairment to the left upper extremity and found
that, under Table 15-34 on page 475, 90 degrees of flexion yielded three percent permanent
impairment, 30 degrees of extension yielded one percent permanent impairment, 95 degrees of
abduction yielded three percent permanent impairment, 20 to 30 degrees of adduction yielded one
percent permanent impairment, 80 degrees of internal rotation yielded zero percent permanent
impairment, and 85 degrees of external rotation yielded zero percent permanent impairment,
totaling eight percent permanent impairment of the left upper extremity. The DMA determined
that, under Table 15-36 on page 477, a grade modifier 1 for 12 percent left upper extremity ROM
permanent impairment rating. He found a net modifier of 2 for GMFH under the same table. The
DMA multiplied 10 percent impairment by 8 percent impairment, which totaled .8 percent or 9
percent permanent impairment of the left upper extremity for loss of ROM. He concluded that
appellant had no additional permanent impairment. The Board finds that the DMA correctly
calculated appellant’s permanent impairment utilizing both the DBI and ROM rating methods to
find that he had no more than 13 percent permanent impairment of his left upper extremity for
which he previously received a schedule award.
The case record contains reports of Dr. Graf, appellant’s attending physician, and
Dr. Leonard, the second opinion physician, which includes higher impairment rating calculations
for the left upper extremity, but the Board finds that their impairment rating analysis are of little
probative value because neither physician properly utilized the standards of the sixth edition of the
A.M.A., Guides.15 The DMA properly identified the deficiencies in both physicians’ impairment
rating analysis. He explained that Dr. Leonard, who opined in his February 27, 2018 report that
appellant had 15 percent left upper extremity permanent impairment based on the ROM rating
method, incorrectly found under Table 15-34 that 95 degrees of abduction yielded nine percent
permanent impairment rather than three percent permanent impairment. Moreover, the Board
notes that Dr. Leonard, in a subsequent report dated February 8, 2019, agreed with the DMA’s
assessment of his incorrect application of appellant’s ROM measurement to Table 15-34.

15
See J.H., Docket No. 19-0395 (issued August 10, 2020); N.A., Docket No. 19-0248 (issued May 17, 2019); James
Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the 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 a claimant’s permanent impairment).

8

In an August 15, 2017 report, Dr. Graf opined that appellant had 12 percent permanent
impairment of his left upper extremity under the ROM rating method and 12 percent permanent
impairment of the same extremity under the DBI rating method based on a diagnosis of neural
stretch injuries to the inferior trunk of the brachial plexus and C8 spinal nerve root. He combined
these impairment ratings which yielded 23 percent permanent impairment of the left upper
extremity. The DMA disagreed with Dr. Graf’s 12 percent left upper extremity permanent
impairment rating for a left distal clavicle resection as he properly determined that appellant had
10 percent left upper extremity permanent impairment based on the distal clavicle resection
diagnosis under the DBI rating method and he had nine percent left upper extremity permanent
impairment under the ROM rating method. Further, the DMA explained that there was no clinical
basis for Dr. Graf’s diagnoses of carpal tunnel syndrome, cubital tunnel syndrome, or a brachial
plexopathy as he reported negative diagnostic test results for carpal tunnel syndrome and did not
perform additional diagnostic testing to determine a diagnosis of cubital tunnel syndrome or assess
upper extremity muscle strength. Additionally, he noted that other diagnostic test results of record
were negative for these conditions. The DMA referenced page 445 of the A.M.A., Guides to
support his opinion and opined that appellant had zero percent permanent impairment for the
diagnosis of either focal neuropathy or brachial plexopathy. He disagreed with Dr. Graf’s rationale
for not using EMG/NCV studies as vague and meaningless based on his above-noted rationale for
the importance of diagnostic testing and the purpose for using the A.M.A. Guides to rate
impairment.
The Board finds that the DMA, Dr. Slutsky, properly applied the A.M.A., Guides to find
that appellant had no more than 13 percent permanent impairment of the left upper extremity, for
which he previously received schedule award compensation. His reports are detailed, well
rationalized, and based on a proper factual background, and thus his opinion represents the weight
of the medical evidence.16 As such, the Board finds that appellant has not met his burden of proof
to establish greater left upper extremity permanent impairment than what was previously awarded.
On appeal appellant’s representative contends that a conflict remains in the medical
opinion evidence and that the case should be remanded for referral of appellant to a referee
physician to resolve the conflict. For the reasons explained above, the Board finds that the
evidence of record is insufficient to establish that appellant has more than 13 percent permanent
impairment of the left upper extremity.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 13
percent permanent impairment of his left upper extremity, for which he previously received a
schedule award.

16

Id.

9

ORDER
IT IS HEREBY ORDERED THAT the October 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Calexico, CA, Employer
__________________________________________

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

Docket No. 17-1374
Issued: March 19, 2019

Case Submitted on the Record

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

JURISDICTION
On June 5, 2017 appellant filed a timely appeal from a February 23, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 23, 2017 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 establish a back injury
causally related to the accepted July 15, 2016 employment incident.
FACTUAL HISTORY
On July 20, 2016 appellant, then a 44-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that, on July 15, 2016, he injured his lower back in a work-related
training exercise. He explained that he had been participating in a physical techniques role-playing
training scenario when another participant (role player) inadvertently pulled his left foot out from
underneath him. Appellant reported that he subsequently felt a strong pain shooting from his
lumbar area to the base of his neck. He described his injury as a possible severe lower back strain.
Appellant did not stop work.
In a November 2, 2016 initial progress report, Dr. Jean-Jacques Abitbol, a Board-certified
orthopedic surgeon, noted that appellant complained of constant, slight-to-moderate diffuse low
back pain with associated left lower extremity pain. He noted that appellant was injured in a
July 2016 fight simulation when his opponent grabbed his foot and pulled it from underneath him.
Appellant reported experiencing a sudden onset of low back pain. Dr. Abitbol further noted that
appellant immediately reported his injury, but continued working. Appellant had not seen a
physician until “today.” On physical examination of the lumbar spine, Dr. Abitbol noted
tenderness to palpation in the midline lumbar area and lumbosacral junction. He also reported
limitations in lumbar range of motion, most prominently with respect to flexion (20/90 degrees).
Lower extremity neurological examination was normal, bilaterally. Dr. Abitbol diagnosed low
back pain. He recommended physical therapy and a lumbar corset to increase low back stability3
and advised that appellant could return to full-duty work.
In a December 23, 2016 progress report, Dr. Abitbol noted complaints of slight-tomoderate diffuse low back pain without radiculopathy. He advised that appellant’s symptoms
remained unchanged since the last visit. Dr. Abitbol examined him, provided findings, and
indicated that appellant was approved for physical therapy and a low back corset. He advised that
appellant completed his first session of physical therapy and recommended additional therapy and
follow-up in six weeks. Dr. Abitbol noted that, if physical therapy were to fail, he recommended
a lumbar spine magnetic resonance imaging (MRI) scan. He continued to diagnose low back pain,
and noted that appellant could return to full duty.
OWCP also received physical therapy notes dated December 28, 2016.
In a January 23, 2017 development letter, OWCP informed appellant that, when his claim
was initially received, it appeared to be a minor injury resulting in minimal or no lost time from
work. Based on this criteria and because the employing establishment did not controvert the
continuation of pay or the merits of the claim, it had administratively approved payment of a
limited amount of medical expenses. OWCP further informed appellant of the type of evidence
3

OWCP subsequently authorized physical therapy, as well as the requested lumbar corset.

2

needed to support his claim and requested that he respond to an included questionnaire and provide
additional medical evidence. It afforded appellant 30 days to submit the requested information.
OWCP subsequently received another copy of Dr. Abitbol’s December 23, 2016 report, as
well as additional physical therapy treatment records covering the period January 5
through 19, 2017.
By decision dated February 23, 2017, OWCP accepted that the July 15, 2016 employment
incident occurred as alleged, but denied appellant’s claim because he failed to establish a medical
diagnosis in connection with the accepted employment incident. It concluded, therefore, that he
had not met the requirements to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 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.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.9 The second component is whether the employment incident caused a personal
injury.10 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.11

4

Id.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

D.D., Docket No. 18-0648 (issued October 15, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 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.13 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).14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back injury
causally related to the accepted July 15, 2016 employment incident.
The record includes physical therapy treatment records dating from December 28, 2016 to
January 19, 2017. Because physical therapists are not considered a physician as defined under
FECA, this evidence is of no probative value and is insufficient to establish entitlement to FECA
benefits.15
In both his November 2 and December 23, 2016 reports, Dr. Abitbol diagnosed “Low back
pain.” In its January 23, 2017 claim development letter, OWCP properly advised appellant that
pain is a symptom, not a valid medical diagnosis.16 It also afforded appellant an opportunity to
submit a narrative medical report from his physician, which included a medical diagnosis and an
opinion on causal relationship. OWCP subsequently received another copy of Dr. Abitbol’s
December 23, 2016 follow-up progress report, which diagnosed low back pain. The Board has
consistently held that a diagnosis of pain does not constitute a basis of payment for compensation,
as pain is a symptom rather than a specific diagnosis.17 As such, Dr. Abitbol’s November 2 and
December 23, 2016 reports are insufficient to establish a medical diagnosis in connection with the
accepted July 15, 2016 employment incident.
Accordingly, the Board finds that appellant has not met his burden of proof to establish his
traumatic injury claim.

12

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

13

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

14

Id.

15

D.H., Docket No. 18-1159 (issued February 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(Certain healthcare providers such as physician assistants, nurse practitioners, physical therapists, and social workers
are not considered “physician[s]” as defined under FECA. Consequently, their medical findings and/or opinions will
not suffice for purposes of establishing entitlement to FECA benefits).
16

Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
17

Robert Broome, 55 ECAB 339, 342 (2004).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back injury
causally related to the accepted July 15, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., claiming as mother of J.G., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Tulsa, OK, Employer
__________________________________________

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Docket No. 13-2125
Issued: July 25, 2014

Appearances:
Andrew C. Jayne, Esq., for the appellant
Ashkea Herron McAllister, Esq., for the Director

Oral Argument April 23, 2014

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

JURISDICTION
On September 17, 2013 appellant, through counsel, timely appealed the July 22, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
compensation. 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 the claim.
ISSUE
The issue is whether the decedent was an “employee” as defined under 5 U.S.C.
§ 8101(1)(B).
FACTUAL HISTORY
The decedent, J.G., was a 24-year-old undergraduate student when he drowned on
June 15, 2011.2 The Occupational Safety & Health Administration (OSHA) conducted an
1

5 U.S.C. §§ 8101-8193.

2

The decedent attended Langston University in Langston, OK.

investigation, which revealed that at the time of death, he was participating in the employing
establishment’s annual survey of endangered species. The decedent was part of a group of four
volunteers working alongside Daniel Fenner, a biologist, and Christopher “Chris” Tanner,
another employee.3 The decedent and a female volunteer were sampling with a seine net in
shallow water when they unexpectedly slipped into water over their heads.4 Neither of them was
wearing a personal flotation device. She was able to swim to safety. Other group members,
including Mr. Fenner, attempted to rescue the decedent, but to no avail.
A few weeks prior to his death, the decedent signed a volunteer services agreement that
provided in relevant part: “I understand that I will not receive any compensation ... and that
volunteers are NOT considered Federal employees for any purpose other than tort claims and
injury compensation.” The section of the agreement requiring the employing establishment to
provide a brief description of “work to be performed” remained blank.5 The decedent’s
involvement with the FWS was college related.
On June 20, 2011 appellant, the decedent’s mother, filed a claim for compensation by
parent.
On June 29, 2011 OWCP accepted the decedent’s claim for drowning. On July 8, 2011 it
paid the maximum amount allowed under FECA for burial expenses and administrative fees
($1,000.00).6
In a prior appeal, the Board issued a December 19, 2012 order dismissing the appeal as
premature.7 OWCP had not issued a final decision on appellant’s claim under FECA.
In a March 12, 2013 decision, OWCP determined that the decedent was a volunteeremployee covered under FECA.8 It denied appellant’s June 20, 2011 claim for compensation by
parent (Form CA-5b) because the decedent did not have any eligible surviving dependents.

3

The other employee was identified as a Student Temporary Employment Program (STEP) biologist.

4

The group was working in and along the Cimarron River approximately three miles north of Guthrie, OK.
There was an ongoing dredging operation nearby, which OSHA later determined exposed Fish & Wildlife Service
(FWS) employees to the hazards of unexpected deep pools and a shifting/unstable river bed.
5

The form (Optional Form 301A) also included instructions to “Attach the complete job description....”
However, the two-page May 26, 2011 volunteer services agreement submitted to OWCP did not include
attachments.
6

The decedent’s family also received a death gratuity of $8,900.19 directly from FWS.

7

Docket No. 13-37 (issued December 19, 2012).

8

According to appellant’s counsel, she was not interested in pursuing FECA death benefits. Instead, appellant
wished to pursue a cause of action against FWS for wrongful death under the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2671-2680. Federal civilian employees covered by FECA are prohibited from suing under
FTCA for work-related injuries or death. 5 U.S.C. § 8116(c).

2

By decision dated July 23, 2013, the Branch of Hearings & Review affirmed the
March 12, 2013 decision.
LEGAL PRECEDENT
As defined by FECA, the term “employee” includes “an individual rendering personal
service to the United States similar to the service of a civil officer or employee of the United
States, without pay or for nominal pay, when a statue authorizes the acceptance or use of the
service, or authorizes payment of travel or other expenses of the individual.”9 Determining
whether an unpaid or nominally paid individual is an employee is a two-step process.10 Initially,
the issue is whether the department or agency is authorized by statute to accept or use the service
of the individual.11 The second step is to ascertain whether the services rendered were similar to
the service of a U.S. civil officer or employee.12 When both questions are answered in the
affirmative, an individual is a covered “employee” under FECA.13
ANALYSIS
Appellant’s counsel has not challenged OWCP’s finding that the decedent had no
surviving spouse or any other eligible dependents for purposes of entitlement to compensation.14
Instead, counsel argued that the decedent was not a volunteer-employee, and therefore, should
not be covered under FECA. As noted, an “employee” under FECA includes “an individual
rendering personal service to the United States similar to the service of a civil officer or
employee of the United States, without pay or for nominal pay, when a statue authorizes the
acceptance or use of the service, or authorizes payment of travel or other expenses of the
individual.”15
Appellant conceded that the Department of the Interior, FWS was authorized by statute to
accept “the services of individuals without compensation as volunteers....”16 There is no
evidence of record that the decedent received any remuneration from FWS for the services he
performed on June 15, 2011. As evidenced by the volunteer services agreement signed on
May 26, 2011, he was aware he would not be paid for his services. Accordingly, the Board finds
that the decedent was an unpaid worker, and the FWS was authorized by statute to accept his
services without remuneration.
9

5 U.S.C. § 8101(1)(B).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Civil Employee, Chapter 2.802.9 (June 1995).

11

Id.

12

Id.

13

George Abraham (Anne Abraham), 36 ECAB 194, 196 (1984).

14

See 5 U.S.C. §§ 8102(a), 8133; 20 C.F.R. §§ 10.105, 10.410.

15

5 U.S.C. § 8101(1)(B).

16

16 U.S.C. § 742f(c)(1); P.L., Docket No. 95-616 (November 8, 1978).

3

Appellant’s counsel advanced three arguments as to why the decedent should not be
considered a volunteer-employee under FECA. He argued that FWS neither recruited nor trained
the decedent, which purportedly was in violation of its statutory mandate. Second, counsel
argued that the decedent did not freely volunteer his services, but instead was compelled to work
for FWS as part of his undergraduate studies at Langston University.17 He also argued that the
volunteer services agreement was defective because it did not include a description of the work
to be performed.
As to counsel’s first argument, he noted that the statute authorizing FWS’ acceptance of
volunteer services also provided for the recruitment and training of volunteers. Counsel claimed
that FWS neither recruited nor trained the decedent. Because FWS allegedly did not recruit or
train the decedent, counsel contends that the decedent does not meet the requirements of a
volunteer. The relevant portion of the authorizing statute reads as follows: “The Secretary of the
Interior and the Secretary of Commerce ‘may’ each recruit, train, and accept ... the services of
individuals without compensation as volunteers for, or in aid of programs conducted by either
Secretary through the United States FWS or the National Oceanic and Atmospheric
Administration.”18 A plain reading of the statutory provision provides no support for counsel’s
argument that recruitment and training are prerequisites to the acceptance of “the services of
individuals without compensation as volunteers....”19 Moreover, the statute does not mandate
recruitment, training, and acceptance of volunteers, but merely authorizes these activities. As
noted, the Secretary “may ... recruit, train, and accept ... volunteers....”20 Use of the word “may”
imparts discretion and/or permission, as distinguished from a duty, requirement or obligation.
Consequently, the Board finds that counsel’s first argument is without merit.
Counsel’s second argument pertained to the decedent’s motive for providing service to
FWS without remuneration. He noted that the decedent participated because he needed to fulfil a
college-related requirement.21 Counsel further argued that because the decedent’s participation
was not out of the goodness of his heart, he did not truly volunteer his services to FWS. At oral
argument, he compared the decedent’s involvement with FWS to that of a motorist convicted of
driving while intoxicated (DWI) who must perform court-ordered community service. Counsel
also cited an unpublished decision from the U.S. Court of Appeals for the Fourth Circuit which
held that a state inmate, who was required to work as part of his sentence, was not a “volunteer

17

According to appellant’s counsel, the decedent was not altruistic and did not volunteer at FWS out of the
goodness of his heart.
18

16 U.S.C. § 742f(c)(1).

19

Id.

20

Id. at § 742f(c)(1). The statute further provides that for the purpose of the tort claim provisions of FECA, a
volunteer under this subsection shall be considered a federal employee. Id. at § 742f(c)(4). Additionally, the statue
provides that for the purposes of FECA, relating compensation to federal employees for work injuries, volunteers
under this subsection shall be deemed employees of the United States within the meaning of the term “employees”
as defined in section 8101 of title 5, and the provisions of that subchapter shall apply. Id. at § 742f(c)(5).
21

The Board notes that apart from counsel’s representations, there is scant information in the record regarding the
decedent’s involvement with Langston University or his required course work.

4

worker” as defined under the state’s general insurance policy.22 The absence of coercion was a
determinative factor in addressing the inmate’s “volunteer” status. Based on the nature of his
confinement, the court found that the inmate’s work in the kitchen was anything but voluntary.23
Counsel cited this case for the legal proposition that the decedent must have elected to work of
his own volition in order to be considered a volunteer.
The Board notes that, while Langston University may have required its undergraduates to
participate in science/biology-related internships, there is no evidence that the decedent was
compelled to volunteer at FWS. There is no evidence that FWS coerced the decedent into
participating in the June 15, 2011 seine sampling activities or otherwise restricted his personal
liberties that morning. The decedent was an unpaid worker, who may very well have had an
ancillary motive for providing service to FWS. The Board need not analyze the decedent’s
motives in order to resolve the issue on appeal. The possibility of receiving college credit for his
involvement does not change the nature of the relationship between the decedent and FWS.
Counsel’s third argument regarding the adequacy of the volunteer services agreement is
similarly unpersuasive. He correctly noted that the May 26, 2011 volunteer services agreement
did not include a description of the work to be performed by the decedent. However, an apparent
oversight such as this is not dispositive on the issue of whether an individual is an employee
under FECA. The Board’s primary focus is not whether there was a properly executed volunteer
services agreement; rather, the rights and responsibilities of both the decedent and FWS are
statutorily based. An analysis of their relationship is not contingent on a properly executed
contractual agreement. The question before the Board is whether the record on appeal
establishes that the decedent rendered “personal service to the United States similar to the service
of a civil officer or employee of the United States.” An ostensibly defective volunteer services
agreement executed some three weeks prior to the incident in question does not preclude
consideration of the activities the decedent performed just prior to his death.
The record before the Board establishes that on June 15, 2011 at approximately
11:30 a.m., the decedent was seine sampling in shallow water with another volunteer, both of
whom were part of a six-member group that included at least two employee biologists.
According to OSHA’s September 2011 investigation findings, Mr. Fenner, the team leader had
conducted and participated in annual seining operations on the Cimarron River for the previous
five years. As seining was part of Mr. Fenner’s duties as an FWS biologist, the record
establishes that the decedent, who drowned while seine sampling, provided a “personal service ...
similar to the service of [an] ... employee of the United States.”24
The decedent was an unpaid worker who provided volunteer personal service similar to
the service of a U.S. employee. Moreover, FWS was authorized by statute to accept his services
22

While working in the kitchen, the inmate injured a noninmate kitchen employee, who sued the jail, et al., for
her work-related injury. The issue before the court was whether the inmate was a “volunteer worker” for insurance
coverage purposes. National Union Fire Insurance Company v. Lambert, 462 F. App’x 299 (4th Cir. 2012).
23

Id. The decision itself noted that unpublished opinions are not binding precedent in the 4th Cir.

24

5 U.S.C. § 8101(1)(B).

5

without remuneration. Accordingly, OWCP properly determined that the decedent was an
employee covered under FECA.
CONCLUSION
The Board finds that the decedent was an “employee” within the meaning of FECA.
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2014
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, HEALTH
SERVICES COMMAND, Fort Knox, KY,
Employer
__________________________________________

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

Docket No. 12-296
Issued: August 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2011 appellant filed a timely appeal from an October 20, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP) which denied her request for an oral
hearing. Because more than 180 days elapsed since the most recent merit decision dated
January 13, 2011 and the filing of this appeal on November 28, 2011, the Board lacks
jurisdiction to review the merits of the claim pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b)(1).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 22, 1993 appellant, then a 39-year-old secretary, injured her right shoulder
when she was struck by a car as she was crossing a pedestrian cross walk at work. She stopped
work on September 22, 1993 and returned to regular duty on January 10, 1994. OWCP accepted
the claim for comminuted fracture of the right proximal humerus and authorized surgery. It later
expanded appellant’s claim to include post-traumatic osteoarthritis of the right glenohumeral
joint, mild acromioclavicular joint arthritis of the right shoulder, chronic thinning of the right
supraspinatus and infraspinatus tendons, malunion of the right proximal humerus and deformity
of the humeral head. On December 14, 1994 OWCP issued her a schedule award for 35 percent
impairment of the right arm and, on April 8, 2010, it granted her a schedule award for an
additional eight percent right arm impairment, finding that she had total right arm impairment of
43 percent.
In an August 24, 2010 report, Dr. Raymond G. Shea, a Board-certified orthopedist and
appellant’s treating physician, prescribed a king size Tempur-Pedic sleep bed. He opined that
appellant had difficulty sleeping due to a total shoulder replacement which prevented her from
lying flat in bed.
On September 24, 2010 OWCP requested Dr. Shea provide a detailed narrative medical
report addressing whether the bed was medically necessary for treatment of the work-related
injury of September 22, 1993. It specifically requested that he address whether the bed would
likely cure, give relief or lessen the degree of disability.
In a report dated November 8, 2010, Dr. Shea noted treating appellant for pain and
stiffness in her shoulder and back. He recommended a magnetic resonance imaging (MRI) scan
of the lumbar spine. In a November 19, 2010 report, Dr. Shea noted appellant’s complaints of
progressive low back pain and opined that her back condition was causally related to her
accepted work injury. Also submitted was a December 20, 2010 MRI scan of the lumbar spine
which revealed degenerative changes.
In a decision dated January 13, 2011, OWCP denied appellant’s request for an orthopedic
mattress. It determined that she failed to provide a report from her treating physician explaining
why the Tempur-Pedic mattress was likely to cure, give relief and reduce the degree or period of
disability.2
On January 27, 2011 OWCP expanded appellant’s claim to include aggravation of
degenerative disc disease of the lumbosacral spine and degenerative disc disease of the cervical
spine, spinal stenosis at L3-4 and L4-5.
In an appeal request form dated September 6, 2011, appellant requested a telephonic oral
hearing. She submitted a September 12, 2011 statement requesting the mattress be authorized
2

Subsequent to this decision, OWCP received a January 11, 2011 report indicating that appellant needed a special
bed due to her work injury. On August 19, 2011 OWCP’s medical adviser opined that the requested mattress was
not medical necessary to treat appellant’s accepted conditions. On August 23, 2011 OWCP provided appellant with
a copy of its January 13, 2011 decision and informed her that, if she disagreed with the decision, she pursue one of
the appeal rights that accompanied the January 13, 2011 decision.

2

and asserting that it was medically necessary to treat her work-related injury.
submitted reports from Dr. Shea dated January 11 to September 1, 2011.

Appellant

In a decision dated October 20, 2011, OWCP denied appellant’s request for an oral
hearing. It found that the request was not timely filed. Appellant was informed that her case had
been considered in relation to the issues involved, and that the request was further denied for the
reason that the issues in this case could be addressed by requesting reconsideration from OWCP
and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on her claim before a representative of the Secretary.”3
Section 10.617 and 10.618 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.4 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6 OWCP’s procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under 5 U.S.C. § 8128(a).7
ANALYSIS
Appellant requested a hearing in an appeal form dated September 6, 2011. As the
hearing request was made more than 30 days after issuance of the January 13, 2011 OWCP
decision, her request for an oral hearing was untimely filed and she is not entitled to an oral
hearing as a matter of right.
OWCP also notified appellant that it had considered the matter in relation to the issue
involved and indicated that additional argument and evidence could be submitted with a request
for reconsideration. OWCP has broad administrative discretion in choosing means to achieve its
general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

7

See R.T., Docket No. 08-408 (issued December 16, 2008); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

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which are contrary to both logic and probable deductions from established facts.8 There is no
indication that OWCP abused its discretion in this case in finding that appellant could further
pursue the matter through the reconsideration process.
Consequently, OWCP properly denied appellant’s request for an oral hearing.
On appeal, appellant asserted that the requested bed should be approved and she
submitted additional medical evidence in support of her assertions. As noted, the Board lacks
jurisdiction to consider the merits of the claim. The Board also cannot consider new evidence
for the first time on appeal.9
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Samuel R. Johnson, 51 ECAB 612 (2000).

9

See 20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

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Appearances:
Joanne Marie Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0407
Issued: July 24, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 13, 2018 appellant, through her representative, filed a timely appeal from a
November 20, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed from OWCP’s last merit decision, dated
November 17, 2017, to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of
this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 20, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 15, 2006 she sustained injuries to her right shoulder
and back as a result of a work-related motor vehicle accident. OWCP accepted her claim for neck
strain, right shoulder strain, and right complete rotator cuff tear.3 On December 5, 2007 appellant
underwent OWCP-approved right shoulder arthroscopic surgery.4
By decision dated September 17, 2008, OWCP granted a schedule award for a total of 23
percent permanent impairment of the right upper extremity.5 The award covered a 62.4-week
period from June 17, 2008 through August 27, 2009.
Because the employing establishment was no longer able to accommodate appellant’s work
restrictions, OWCP paid wage-loss compensation for temporary total disability beginning
September 14, 2013. It placed her on the periodic compensation rolls as of December 10, 2013.
Appellant retired from federal service, effective December 31, 2013. OWCP continued to
pay her wage-loss compensation for temporary total disability through February 8, 2014, at which
time she elected to receive a retirement annuity from the Office of Personnel Management.
On June 27, 2014 appellant filed a claim for an increased schedule award (Form CA-7).
Appellant submitted a June 24, 2014 impairment evaluation report by Dr. David Stokes, a
Board-certified orthopedic surgeon. The report noted ROM findings of flexion 120 degrees,
extension 50 degrees, abduction 120 degrees, adduction 40 degrees, internal rotation 70 degrees,
and external rotation 85 degrees. Dr. Stokes referenced Table 15-34 of the sixth edition of the
A.M.A., Guides6 and indicated that appellant had eight percent permanent impairment of the right
upper extremity and five percent permanent whole person impairment.
3

The present claim was assigned OWCP File No. xxxxxx714. Under OWCP File No. xxxxxx696, appellant has
an accepted occupational disease claim for right thumb tendinitis, which arose on or about July 21, 2001. Her claims
have not been administratively combined.
4
Dr. David A. Stokes, a Board-certified orthopedic surgeon, performed a rotator cuff repair, subacromial
decompression, and distal clavicle resection.
5

On October 28, 2004 OWCP previously granted appellant a schedule award for three percent permanent
impairment of the right upper extremity under OWCP File No. xxxxxxx696. The September 17, 2008 schedule award
granted an additional 20 percent permanent impairment based on a combination of impairments due to loss of shoulder
range of motion (ROM) (14 percent) and her December 5, 2007 distal clavicle resection (10 percent). Both the
October 28, 2004 and September 17, 2008 schedule awards were calculated under the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
6

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

2

In a July 9, 2014 report, Dr. Howard P. Hogshead, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), concurred with Dr. Stokes’ determination
of 8 percent right upper extremity permanent impairment according to the ROM methodology and
reported that since appellant was previously awarded 23 percent right upper extremity permanent
impairment, she was not entitled to an additional schedule award.
In a decision dated July 30, 2014, OWCP denied appellant’s claim for an increased
schedule award.
On August 25, 2014 appellant requested a telephonic hearing, which was held on
March 17, 2015.
OWCP received an April 14, 2015 impairment rating report by Dr. Samy F. Bishai, a
Board-certified orthopedic surgeon, who reviewed appellant’s history and conducted an
examination. Dr. Bishai reported ROM testing of her right shoulder of 80 degrees flexion, 10
degrees extension, 80 degrees abduction, 15 degrees adduction, 45 degrees external rotation, and
20 degrees internal rotation. He utilized Table 15-34 and determined that appellant had 24 percent
permanent impairment of the right upper extremity due to his September 15, 2006 employment
injury.
Dr. Bishai noted that she had reached maximum medical improvement on
February 26, 2015.
By decision dated June 3, 2015, an OWCP hearing representative set aside the July 30,
2014 decision and remanded the case for further development finding that appellant had submitted
evidence warranting further medical review. She instructed OWCP to prepare an accurate and
complete statement of accepted facts (SOAF) and refer it, along with appellant’s medical reports,
to another DMA for review as to whether appellant sustained additional permanent impairment as
a result of her September 15, 2006 employment injury.
After further development of the medical evidence, OWCP issued a July 7, 2015 decision
denying appellant’s claim for an increased schedule award.7
Appellant again requested a hearing. By decision dated February 5, 2016, an OWCP
hearing representative set aside the July 7, 2015 decision and remanded the case for OWCP to
obtain a supplemental report from the DMA, explaining why his impairment rating differed from
Dr. Bishai’s.
In a March 23, 2016 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
serving as the DMA, reviewed the SOAF and appellant’s medical records. He utilized Table 155, Shoulder Regional Grid under the sixth edition of the A.M.A., Guides, and determined that she
had 12 percent right upper extremity impairment due to the diagnosis of acromioclavicular joint
injury or disease.

7
In a June 11, 2015 report, a DMA opined that appellant had 23 percent permanent impairment of the right upper
extremity and was not entitled to increased schedule award.

3

By decision dated June 30, 2016, OWCP again denied appellant’s claim for an increased
schedule award based on the March 23, 2016 report of Dr. Berman.
On February 16, 2017 appellant requested reconsideration. She argued that the A.M.A.,
Guides had amended its language in Section 15.2, page 387, and allowed for the use of ROM
methodology as a stand-alone impairment rating for specific diagnoses. Appellant contended that
Dr. Bishai accurately cited the appropriate methodology when he determined that she had 24
percent right upper extremity impairment due to loss of ROM.
OWCP routed appellant’s claim, along with a SOAF and the medical records, to
Dr. Herbert White, Jr., a Board-certified DMA in preventive and occupational medicine. In a
March 14, 2017 report, Dr. White determined that, according to Table 15-5, Shoulder Regional
Grid under the sixth edition of the A.M.A., Guides, she had 12 percent permanent right upper
extremity impairment for diagnosis of distal clavicle resection. He pointed out the inconsistent
findings between Dr. Stokes and Dr. Bishai regarding appellant’s ROM testing. Dr. White
explained that the ROM methodology could not be used since, according to page 407, when there
are inconsistent findings for the upper extremities, the results are considered invalid and the ROM
methodology could not be used to rate impairment.
By decision dated April 6, 2017, OWCP denied modification of its June 30, 2016 decision.
It found that the weight of the medical evidence rested with the March 14, 2017 DMA report.
On July 9, 2017 appellant, through her representative, requested reconsideration.
Appellant’s representative alleged that OWCP did not fully develop the evidence prior to denying
appellant’s request for an increased schedule award based on Dr. Bishai’s April 14, 2015
impairment rating report. She also noted her disagreement with Dr. White’s opinion that the ROM
methodology could not be utilized in this case due to inconsistent ROM findings.
By decision dated November 17, 2017, OWCP denied modification of its April 6, 2017
decision. It indicated that, contrary to appellant’s representative’s arguments, the ROM
methodology was not applicable in this case. OWCP cited page 407 of the sixth edition of the
A.M.A., Guides and noted that “the A.M.A., Guides themselves indicate that ROM should not be
used when inconsistent findings exist.”
On November 8, 2018 appellant, through her representative, requested reconsideration.
Appellant’s representative argued that OWCP’s position regarding inconsistent ROM
measurements was incorrect. She asserted that the A.M.A., Guides provides that, when ROM
measurements are inconsistent, the measurements are negated, not the ROM methodology for
rating impairment. The representative argued that the proper procedure would be referral of the
case for a second-opinion examination.
By decision dated November 20, 2018, OWCP denied further merit review of appellant’s
claim under 5 U.S.C. § 8128(a).

4

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.10 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.11 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.12
ANALYSIS
The Board finds that OWCP erroneously denied reconsideration of the merits of appellant’s
claim.
In her November 8, 2018 reconsideration request, appellant’s representative argued that
OWCP’s determination that the ROM methodology could not be used due to inconsistent ROM
findings between Dr. Stokes and Dr. Bishai was incorrect. She contended that the A.M.A., Guides
provides that, if ROM findings were inconsistent, then the measurements were negated, but not
the ROM methodology. Furthermore, appellant’s representative also argued that proper procedure
for inconsistent ROM findings would be referral to a second-opinion examiner.
The Board finds that appellant has shown that OWCP erroneously applied or interpreted a
specific point of law. In its most recent merit decision dated November 17, 2017, OWCP cited to
page 407 of the sixth edition of the A.M.A., Guides for support of its determination that the ROM
methodology should not be used for rating impairment when inconsistent findings exist. The
Board notes that Section 15.3b, page 407, of the A.M.A., Guides13 explains how an evaluator
should apply grade modifiers based on physical examination when determining permanent
impairment for the upper extremities utilizing the diagnosis-based impairment method. It then
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
10

Id. at § 10.607(a).

11

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

12

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

13

A.M.A., Guides (6th ed. 2009), at 407, Section 15.3b.

5

refers to Section 15.7 for Range of Motion Impairment and notes the specific parameters for how
to measure ROM for the upper extremity. Section 15.3b further provides: “If multiple previous
evaluations have been documented and there is inconsistency in a rating class between the findings
of 2 observers, or in the findings on separate occasions by the same observer, the results are
considered invalid and cannot be used to rate impairment.”
The Board finds that appellant has shown that OWCP erroneously applied the A.M.A.,
Guides when it determined that the ROM methodology could not be utilized due to inconsistent
findings. Thus, OWCP should have referred her case for further development. According to
FECA Bulletin No. 17-06,14 if the medical evidence of record is insufficient for the DMA to render
a rating on ROM where allowed, the DMA should advise as to the medical necessary to complete
the rating. As appellant has shown that OWCP erroneously applied or interpreted a specific point
of law, she was entitled to further merit review of her increased schedule award claim.15
Thus, the Board will remand the case to OWCP to properly consider appellant’s claim.
Following such further development as deemed necessary it shall issue an appropriate merit
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued July 26, 2018); FECA
Bulletin No. 17-06 (May 8, 2017).
15

See J.A., Docket No. 17-1306 (issued March 20, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2018 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion.
Issued: July 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Olean, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1194
Issued: August 27, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 12, 2013 appellant filed a timely appeal from an October 16, 2012 nonmerit
decision denying his request for reconsideration. As more than 180 days has elapsed between
the last merit decision of July 20, 2011 and the filing of this appeal, the Board lacks jurisdiction
to review the merits of the claim pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As using April 18, 2013,
the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the
postmark is considered the date of filing. The date of the U.S. Postal Service postmark is April 12, 2013, which
renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

FACTUAL HISTORY
On July 15, 2008 appellant, then a 51-year-old painter, filed a traumatic injury claim
alleging that on May 27, 2008 he sustained injuries from a static electrical shock. OWCP
accepted the claim for electrocution and the nonfatal effects of electric current in the bilateral
upper extremities.
By decision dated April 27, 2010, OWCP denied appellant’s request for authorization for
physical therapy after September 11, 2009. It found that the opinion of Dr. Patrick Hughes, a
Board-certified neurologist and OWCP referral physician, represented the weight of the evidence
and established that he had not sustained carpal tunnel syndrome due to the May 27, 2008 work
injury and that further physical therapy was not necessary.
In a decision dated September 23, 2010, an OWCP hearing representative vacated the
April 27, 2010 decision. She found that a conflict existed between Dr. Hughes and Dr. Peter
Terhaar, appellant’s attending osteopath, regarding whether appellant sustained carpal tunnel
syndrome due to his electric shock and whether further physical therapy was warranted due to
his accepted employment injury.
By decision dated January 25, 2011, OWCP denied appellant’s request for authorization
for additional physical therapy. It determined that the opinion of Dr. M. Reza Samie, a Boardcertified neurologist and impartial medical examiner, established that he had not sustained carpal
tunnel syndrome or cervical radiculopathy due to his May 27, 2008 employment injury. OWCP
further found that Dr. Samie’s opinion supported that appellant had no further need for medical
treatment, including physical therapy, at the current time.
In a decision dated July 20, 2011, an OWCP hearing representative affirmed the
January 25, 2011 decision. She found that the weight of the medical evidence established that
appellant did not require further physical therapy due to his accepted work injury.
On July 16, 2012 appellant, through his attorney, requested reconsideration. In support
of the request, he submitted a report from Jamie R. Williams, Ph.D., bioengineering. Counsel
asserted that Dr. Williams’ report explained how the May 27, 2008 incident caused additional
injuries.
In a report dated May 14, 2012, Dr. Williams, a biomedical engineer, attributed
appellant’s nerve damage of the bilateral hands and wrists and exacerbation of a preexisting
cervical spine condition to the May 27, 2008 electric shock.
By decision dated October 16, 2012, OWCP denied appellant’s request for
reconsideration after finding that he had not submitted evidence or raised an argument sufficient
to warrant reopening his claim for further merit review under section 8128.

2

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 must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.7 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.8 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.9
ANALYSIS
OWCP issued a January 25, 2011 merit decision denying appellant’s request for physical
therapy and expansion of his claim to include a cervical condition and bilateral carpal tunnel
syndrome. In a July 20, 2011 decision, a hearing representative affirmed the January 25, 2011
decision. On July 16, 2012 appellant requested reconsideration of the July 20, 2011 decision.
As noted above, the Board does not have jurisdiction over the July 20, 2011 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his July 16, 2012 request for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law. He did not identify a specific point of law or show
that it was erroneously applied or interpreted. Appellant did not advance a new and relevant
legal argument. His attorney argued that the May 14, 2012 report from Dr. Williams, a
biomechanical engineer, established that he sustained carpal tunnel syndrome and required
3

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides 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.”
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

8

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

9

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

3

physical therapy due to his May 27, 2008 work injury. The underlying issue in this case,
expansion of the claim and the need for further medical treatment, is a medical issue which must
be addressed by relevant medical evidence.10 Dr. Williams is not a medical doctor but instead an
engineer and thus not qualified to provide medical evidence.11 A claimant may be entitled to a
merit review by submitting pertinent new and relevant evidence, but appellant did not submit any
pertinent new and relevant medical evidence in this case. As discussed, the May 14, 2012 report
from Dr. Williams is of no probative value on the medical issue in this case. Consequently, it is
not relevant to the issue at hand.12
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).

10

See Bobbie F. Cowart, 55 ECAB 746 (2004).

11

See 5 U.S.C. § 8101(2); see also Martin B. Garter, 27 ECAB 485 (1976).

12

The Board has held that the submission of evidence that is not relevant to the particular issue involved in a case
does not constitute a basis for reopening the claim; see Bonnie A. Contreras, 57 ECAB 364 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 27, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5