United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Norman F. Nivens, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2158
Issued: June 15, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant, through her attorney, filed a timely appeal from a July 23,
2010 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation. Pursuant to the Federal Employees’ Compensation Act1 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 the Office properly terminated appellant’s compensation
effective July 23, 2010 on the grounds that she had no further disability due to her accepted
employment injury; and (2) whether it properly terminated her authorization for medical
treatment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 5, 2006 appellant, then a 43-year-old blind rehabilitation specialist, filed an
occupational disease claim alleging that she sustained a repetitive stress injury to her hands,
arms, neck and upper back after three days of typing. The Office accepted the claim for strains
of the cervical spine and bilateral wrists and bilateral lateral epicondylitis. Appellant worked
part-time modified duty until December 15, 2008, when the employing establishment no longer
had limited-duty work available. The Office paid her compensation for disability on the periodic
rolls beginning March 15, 2009.2
In a report dated January 15, 2010, Dr. Susan Fullemann, an attending physician Boardcertified in family practice, diagnosed cervical sprain, wrist sprain and tennis elbow. She found
that appellant should “stay with her restrictions” and recommended continued chiropractic
treatment.
On March 25, 2010 the Office referred appellant to Dr. Kevin F. Hanley, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated April 23, 2010,
Dr. Hanley reviewed appellant’s history of injury and complaints of pain in the neck, shoulders
and upper extremities. On examination, he found normal range of motion of the shoulders and
elbows, no loss of strength and tenderness of the shoulder and mid-thoracic spine without spasm.
Dr. Hanley further found no upper extremity atrophy and a negative Tinel’s sign. He diagnosed
myofascial syndrome without objective findings. Dr. Hanley listed subjective complaints of pain
in the upper extremities, neck and shoulder with activities such as writing and typing. He stated,
“There are no objective findings and no evidence that [appellant] continues to suffer residuals of
any particular condition that was work related. There may well have been activity-related
discomfort at the time of appellant’s presentation but there are no residual findings at this time.”
Dr. Hanley opined that appellant required no further chiropractic treatment and massage. He
asserted, “It is my belief that because of her propensity towards the development of soft tissue
symptomatology that the simple accommodation of providing voice recognition software would
seem to me to be the better part of valor in managing her condition.” In an accompanying work
restriction evaluation, Dr. Hanley indicated that appellant was unable to return to her usual
employment as she could not perform repetitive typing. He listed work restrictions of sitting,
walking and standing for two hours a day, performing repetitive movements of the wrists and
elbows for two hours a day and pushing, pulling and lifting up to 15 pounds for two hours a day.
By decision dated May 18, 2010, the Office notified appellant of its proposed termination
of her compensation and authorization for medical benefits. It determined that Dr. Hanley’s
opinion constituted the weight of the evidence and established that she had no further
employment-related condition or disability.

2

By decision dated October 23, 2008, the Office terminated appellant’s compensation effective October 22, 2008
after finding that she refused an offer of suitable work. In another decision dated October 23, 2008, it found that she
had not established an employment-related recurrence of disability beginning July 28, 2008. By decision dated
February 24, 2009, the Office vacated its October 23, 2008 termination decision and opened her case for wage-loss
compensation.

2

In a report dated June 3, 2010, Dr. Fullemann diagnosed cervical strain, wrist sprain and
tennis elbow and recommended continued chiropractic adjustment and massage. On June 6,
2010 she attributed appellant’s conditions to repetitive use of her arms at work and related that
she continued to have restrictions on keyboarding less than two to three minutes a day.
Dr. Fullemann opined that appellant required voice recognition software in order to perform her
work.
On July 11, 2010 Dr. Fullemann related that she had treated appellant, who is blind, for
13 years. She noted that she sustained injuries “to her neck, arms and hands from excessive
typing without proper accommodations. As a result of these injuries, [appellant] is severely
limited in her activities of daily living.” Dr. Fullemann opined that the restrictions were
permanent and that she sustained reinjuries when she performed activity in excess of her
limitations.
By decision dated July 23, 2010, the Office terminated appellant’s compensation and
authorization for medical treatment effective July 23, 2010.
On appeal, appellant’s attorney argues that Dr. Hanley’s opinion is insufficiently
rationalized to establish that appellant had no further employment-related disability.3 He
contends that Dr. Hanley found that she continued to have work restrictions. Counsel also
maintains that the record contains a conflict in medical opinion.
LEGAL PRECEDENT -- ISSUES 1 & 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.4 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7

3

Counsel also raised arguments relevant to a prior second opinion examination by Dr. Joel W. Renbaum, a
Board-certified orthopedic surgeon. The Office, however, did not rely on Dr. Renbaum’s opinion in terminating
appellant’s compensation benefits.
4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

7

Id.

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ANALYSIS -- ISSUES 1 & 2
The Office accepted that appellant sustained cervical strain, bilateral wrist strains and
bilateral lateral epicondylitis due to factors of her federal employment. It paid her compensation
for intermittent total disability in 2007 and for total disability beginning March 15, 2009.
The Office terminated appellant’s compensation based on its finding that the opinion of
Dr. Hanley, who provided a second opinion examination, represented the weight of the evidence
and established that she had no further employment-related disability. As argued on appeal,
however, the Board finds that Dr. Hanley’s opinion is insufficient to show that appellant had no
further employment-related condition or disability after July 23, 2010.
In his April 23, 2010 report, Dr. Hanley found normal range of motion and full strength
of the upper extremities. He diagnosed myofasical syndrome and opined that appellant had
subjective complaints of pain in the neck and upper extremities without objective findings.
Dr. Hanley concluded that there was no objective evidence of any work-related condition. He
recommended voice activation software due to appellant’s tendency to develop soft tissue
symptoms. However, in an accompanying work restriction evaluation, Dr. Hanley asserted that
she could not perform her usual employment because she could not repetitively type. He found
that appellant could work for eight hours a day with restrictions of sitting, walking and standing
for two hours a day, using her wrists and elbows repetitively for two hours a day and lifting,
pushing and pulling up to 15 pounds for two hours a day. Dr. Hanley did not explain why he
provided work restrictions prohibiting repetitive use of the upper extremities. While he indicated
that appellant required voice-activated software to prevent further soft tissue injury, it is not clear
whether the work limitations provided in the work restriction evaluation were purely
prophylactic in nature or for residuals of the work injury. Consequently, Dr. Hanley’s report is
insufficiently rationalized to support the Office’s termination of compensation.8
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation and
authorization for medical treatment effective July 23, 2010 on the grounds that she had no further
residuals of her accepted employment injury.

8

The Board has held that a medical opinion not fortified by rationale is of little probative value. See Brenda L.
DuBuque, 55 ECAB 212 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 23, 2010 is reversed.
Issued: June 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Ann Arbor, MI, Employer
__________________________________________

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

Docket No. 17-1875
Issued: January 19, 2018

Case Submitted on the Record

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

JURISDICTION
On September 5, 2017 appellant filed a timely appeal from an April 18, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated November 28, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. § 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its April 18, 2017 decision.
The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its
final decision. Therefore, this additional evidence cannot be considered for the first time on appeal by the Board.
20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

ISSUE
The issue is whether OWCP properly denied appellant’s request for review of the written
record before a representative of the Branch of Hearings and Review as the request was untimely
filed under 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On September 20, 2015 appellant, then a 53-year-old practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that on August 26, 2015 he was assisting a patient with
washing and dressing when he felt a pull in his back. He listed his injury as back strain/sciatica.
Appellant stopped work on August 28, 2015 and returned to full-time work with restrictions on
September 28, 2015. On November 4, 2015 OWCP accepted his claim for acute back strain. It
expanded acceptance of appellant’s claim on May 26, 2016 for temporary aggravation of lumbar
degenerative disc disease L3-4 and L4-5 and right-sided L5-S1 herniated disc.
On October 27, 2016 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits as he no longer had any residuals or continuing disability from work
stemming from his August 26, 2015 work injury. On November 28, 2016 it terminated his
benefits, effective the close of business on that date. OWCP provided appellant an appeal
request form to inform him of his appeal rights. This form noted that if he decided to appeal the
decision he must specify which procedure was pursued by checking one of the options on the
form.
In an undated letter, with the subject line “[a]ppeal of the decision to deny
compensation,” received by OWCP on January 4, 2017, appellant discussed the facts of his work
injury and his medical treatment. He requested that the denial of his claim be vacated and that he
be allowed to have necessary treatment or surgery to make him whole again. By response dated
January 5, 2017, OWCP indicated that appellant failed to submit the appeal request form which
allowed him to choose his specific appeal right. It informed him that no development of an
appeal could be initiated until he submitted the form and designated the specific appeal process
he wished to pursue.
In a form dated December 23, 2016 and received by OWCP on January 18, 2017,
appellant requested review of the written record before an OWCP hearing representative.
By decision dated April 18, 2017, OWCP denied appellant’s request for review of the
written record because his request was untimely filed. It also reviewed his request at its
discretion, and determined that the relevant issue could equally well be addressed by requesting
reconsideration and submitting new evidence establishing that he had disabling residuals from
his accepted injury.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
OWCP hearing representative, provides: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of

2

this section is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his or her claim before a representative of the Secretary.3
A hearing is a review of an adverse decision by an OWCP’s hearing representative.
Initially, the claimant can choose between two formats: an oral hearing or a review of the
written record. In addition to the evidence of record, the claimant may submit new evidence to
the hearing representative.4
A request for either an oral hearing or a review of the written record must be sent, in
writing, within 30 days of the date of the decision for which the hearing is sought.5 A claimant is
not entitled to a hearing or a review of the written record if the request is not made within 30
days of the date of the decision.6
OWCP has discretion to grant or deny a request that is made after the 30-day period for
requesting an oral hearing or review of the written record. In such a case, it will so advise the
claimant with reasons.7
ANALYSIS
The Board lacks jurisdiction to review the merits of the underlying issue of whether
OWCP properly terminated appellant’s wage-loss compensation and medical benefits. The
Board’s jurisdiction is strictly limited to determining whether OWCP properly denied his request
for a review of the written record.8
By decision dated November 28, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits. A request for a review of the written record must, as noted
above, be made within 30 days after the date of the issuance of OWCP’s final decision.9 The
Board finds that OWCP properly determined that appellant’s request for review of the written
record was untimely as it was filed more than 30 days after the issuance of OWCP’s decision.
Appellant’s first indication that he was interested in further review of the November 28,
2016 decision was received by OWCP on January 4, 2017. At that time, appellant filed an
undated letter with OWCP indicating that he wished to “appeal” OWCP’s denial of
compensation. The undated document was scanned as received by OWCP on January 4, 2017.

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

5

James Smith, 53 ECAB 188 (2001); 20 C.F.R. § 10.616(a).

6

See R.T., Docket No. 08-0408 (issued December 16, 2008).

7

G.W., Docket No. 10-0782 (issued April 23, 2010).

8

W.L., Docket No. 17-1538 (issued November 15, 2017).

9

20 C.F.R. § 10.616(a).

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This document, even if considered a request for review of the written record, was clearly
untimely filed as it was not made within 30 days of OWCP’s November 28, 2016 decision.
Furthermore, appellant did not request review of the written record in this document. At
the time it issued its November 28, 2016 decision, OWCP sent him an appeal request form, and
clearly informed him that he must specify which procedure he requested by checking one of the
options. In the letter received on January 4, 2014, appellant did not list the option he wished to
pursue. Accordingly, this letter was not an effective request for review of the written record.
After corresponding with OWCP, appellant later submitted an appeal request form
requesting review of the written record. This document was date stamped by OWCP on
January 24, 2017. This document was also not submitted within the 30-day time frame.
Although appellant’s request for a review of the written record before an OWCP hearing
representative was untimely, OWCP has the discretionary authority to grant the request and it
must exercise such discretion.10 In its April 18, 2017 decision, OWCP properly determined that
the issue in this case could equally well be addressed by requesting reconsideration and
submitting evidence not previously considered which established that appellant had disabling
residuals of his accepted injury. The Board has held that the only limitation on OWCP’s
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deductions from established facts.11 In this case, the evidence of record does
not indicate that OWCP abused its discretion by denial of appellant’s request for a review of the
written record.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the written
record under 5 U.S.C. § 8124(b) as untimely filed.

10

Supra note 8; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.2(a) (October 2011).
11

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

12

R.V., Docket No. 17-1286 (December 5, 2007).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2017 is affirmed.
Issued: January 19, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Big Lake, MN, Employer
__________________________________________

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Appearances:
Allen Webb, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0709
Issued: July 21, 2017

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 February 8, 2016 appellant, through counsel, filed a timely appeal of a December 14,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed since the last merit decision on September 28, 2015 to the filing of this
appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits
of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request as it was
untimely filed and failed to demonstrate clear evidence of error.
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.

FACTUAL HISTORY
On April 29, 2015 appellant, then a 53-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging a low back injury in the performance of duty on
September 25, 2013. She indicated on the claim form that she backed into a cart that was level
with her low back. Appellant did not stop work.
On May 8, 2015 OWCP advised appellant that the evidence of record was insufficient to
establish her claim. Appellant was informed that further factual evidence was necessary to
establish that the incident occurred as alleged and that it caused injury. She was afforded 30
days to submit the necessary factual and medical evidence.
The medical evidence received thereafter included a May 21, 2015 form report
(Form CA-20) from Dr. Steven Stulc, an osteopath. Dr. Stulc wrote that one and a half years
earlier appellant was hit by a cart, and he diagnosed lumbar spondylosis and lumbago. He
checked a box marked “yes” indicating that the conditions were causally related to employment.
On May 26, 2015 OWCP received additional statements from appellant wherein she
again described how she was hit by a cart. Appellant provided diagrams of the scene of the
incident.
By decision dated June 12, 2015, OWCP denied the claim for compensation. It accepted
that the incident occurred as alleged, but found that the medical evidence of record was
insufficient to establish the claim.
Appellant requested reconsideration on July 14, 2015. She submitted a June 22, 2015
report from Dr. Stulc, who again reported appellant had injured her back one and a half years ago
when she was hit in the back by a cart. Dr. Stulc reported that a magnetic resonance imaging
(MRI) scan showed disc desiccation at multiple levels and lumbar facet arthropathy at L4-5 and
L5-S1. He wrote that he believed it was a work injury, given appellant’s “historical features.” In
a report dated July 27, 2015, Dr. Stulc indicated that appellant noted improvement with her low
back pain.
By decision dated September 28, 2015, OWCP reviewed the merits of the claim. It found
the evidence of record was insufficient to modify the June 12, 2015 decision, as there was no
rationalized medical evidence.
On September 30, 2016 OWCP received a reconsideration request dated September 26,
2016 from counsel. Appellant submitted a September 22, 2016 report from Dr. Stulc, providing
a history that appellant was struck by a cart on September 24, 2013 that had been pushed by a
coworker. Dr. Stulc reported that appellant denied having back pain prior to the incident. He
opined that given that appellant did not have prior pain, experienced pain following the incident,
and continued with chronic back pain, it was more likely than not the incident at work
precipitated the chronic back pain. Dr. Stulc wrote that in many cases patients could have
degenerative changes that were asymptomatic until an injury occurred.
The record also contains an August 11, 2016 report from Dr. Stulc, received by OWCP
on August 31, 2016. Dr. Stulc reported appellant had right back pain and occasional right leg
2

pain. On November 1, 2016 appellant submitted an October 13, 2016 report from Dr. Stulc
indicating that appellant was treated for low back pain.
OWCP also received a September 25, 2016 report from a physician assistant.
By decision dated December 14, 2016, OWCP found appellant’s reconsideration was
untimely filed. It also found that appellant had failed to demonstrate clear evidence of error in
OWCP’s denial of the claim.
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.2 The
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.”3
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.4 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.5 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA.6 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.7 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.8
To demonstrate 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.9 Evidence
that does not raise a substantial question concerning the correctness of OWCP’s decision is

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (2012).

4

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

5

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.”
6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.607 (2012).

8

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

9

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

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insufficient to demonstrate clear evidence of error.10 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion.11 A determination of
whether the claimant has demonstrated clear evidence of error entails a limited review of how
the evidence submitted with the reconsideration request bears on the evidence previously of
record.12
The claimant must present evidence which on its face shows that OWCP made an error
(for example, proof that a schedule award was miscalculated). Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error. The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP.13
ANALYSIS
OWCP denied appellant’s claim for a back injury on September 25, 2013. The last
decision on the merits of the claim was dated September 28, 2015. Appellant had one year to
timely request reconsideration. Pursuant to 20 C.F.R. § 10.607, as noted above, the application
for reconsideration must be received by OWCP within one year of September 28, 2015 to be
considered timely. According to OWCP procedures, the date received is determined by the
document received date in the Integrated Federal Employees’ Compensation System (iFECS).14
In this case the date received in iFECS was Friday, September 30, 2016. Since this is more than
one year after the September 28, 2015 merit decision, it is an untimely reconsideration request.
As the reconsideration request was untimely, appellant is not entitled to a merit review
unless she demonstrates clear evidence in OWCP’s decision denying her claim. In this case
appellant submitted a September 22, 2016 report from Dr. Stulc, who opined that appellant had
suffered an employment-related back injury from the September 2013 employment incident
when she was struck by a cart. Dr. Stulc refers to a lack of symptoms prior to the incident, but
the Board has held that an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury, but symptomatic after it, is not
sufficient, without supporting rationale, to establish causal relationship.15 Moreover, even if the
medical evidence included a detailed, well-rationalized medical report which, if submitted before
10

Jimmy L. Day, 48 ECAB 652 (1997).

11

Id.

12

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

13

See C.B., Docket No. 16-0008 (issued February 19, 2016); B.C., Docket No. 15-0550 (issued
January 28, 2016).
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011). This
section provides that for decisions prior to August 29, 2011, the application for reconsideration must be mailed
within one year.
15

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996) (because the employee is symptomatic after an injury
is not sufficient to establish causal relationship without supporting rationale).

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the denial was issued, could have created a conflict in medical opinion requiring further
development, it is not clear evidence of error.16 The September 22, 2016 report does not shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.
Appellant submitted reports dated August 11 and October 13, 2016, which do not address
the underlying medical issue. Also, the report from a physician assistant does not constitute
competent medical evidence as a physician assistant is not considered a physician under 5 U.S.C.
§ 8101(2).17 This evidence does not shift the weight of the evidence in favor of the claimant and
raise a substantial question as to the correctness of OWCP’s decision.
The Board accordingly finds that appellant has failed to demonstrate clear evidence of
error in this case. Appellant is therefore not entitled to a merit review of her claim.
In finding that appellant failed to demonstrate clear evidence of error, OWCP writes in
the December 14, 2016 decision that new medical evidence is not used to determine error, and
establishing error in the prior decision can only be based on evidence that was before OWCP at
the time of the prior decision. As discussed above, even rationalized medical evidence that could
have created a conflict is insufficient to demonstrate clear evidence of error. But clear evidence
of error may be demonstrated by evidence that was not before OWCP at the time of the merit
decision. The evidence submitted with an untimely reconsideration request must relate to the
issue presented and the evidence that was before OWCP at the time of the prior decision.18 In
the present case, the underlying issue was a medical issue, and appellant has not demonstrated
clear evidence of error by OWCP.
On appeal counsel argues that OWCP did not properly review the September 22, 2016
report from Dr. Stulc. OWCP did indicate that it had received the September 22, 2016 report in
the December 14, 2016 decision. For the reasons discussed above, the report is insufficient to
demonstrate clear evidence of error.
CONCLUSION
The Board finds appellant’s reconsideration request was untimely filed and failed to
demonstrate clear evidence of error.

16

Supra note 13.

17

George H. Clark, 56 ECAB 162 (2004).

18

Supra note 12. In A.B., Docket No. 10-1070 (issued March 8, 2011), for example, claimant submitted new
evidence with an untimely reconsideration request, including an Equal Employment Opportunity (EEO) decision
relating to her allegations of error by the employing establishment. The Board found clear evidence of error was
established.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 14, 2016 is affirmed.
Issued: July 21, 2017
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
__________________________________________
A.S., claiming as widow of, M.S., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

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Appearances:
John F. Dillon, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-768
Issued: August 7, 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 February 13, 2013 appellant, through counsel, filed a timely appeal of a January 18,
2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
death benefits. 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 has met her burden of proof to establish that the
employee’s death was causally related to exposure to asbestos at work.
FACTUAL HISTORY
On November 12, 2010 the employee, then a 77-year-old asbestosis worker, filed an
occupational disease claim alleging that on April 7, 2009 he first became aware of his chronic
1

5 U.S.C. § 8101 et seq.

obstructive pulmonary disease and asbestosis and its relationship to his federal employment. He
retired from the employing establishment on June 3, 1988. On June 1, 2011 OWCP accepted the
employee’s claim for asbestosis.
The employee died on January 23, 2011 and on April 6, 2011 appellant filed a claim for
compensation (Form CA-5) due to the death of her husband. Appellant attributed his death to
congestive heart failure/asbestosis due to his work exposure to asbestosis and submitted a copy
of the death certificate. The death certificate listed the date of death as January 23, 2011 and the
cause of death as cardiac secondary to congestive heart failure. Winston Walker, a nurse, was
listed on the certificate as the person who pronounced the employee’s death. Derek Turnage, the
coroner, was the person deciding the cause of death based on his investigation. Appellant also
submitted a death certificate for the employee’s first wife who died on May 1, 2006, a marriage
certificate for the employee and appellant, and an itemized list of funeral expenses.
In a May 18, 2011 report, OWCP’s medical adviser reviewed the evidence of record and
concluded that the employee’s death was due to nonemployment-related factors. The medical
adviser noted that the death certificate listed the cause of death as cardiac arrest secondary to
congestive heart failure. Based on the death certificate and medical evidence of record, he
concluded that the employee’s work-related asbestosis was not a cause of the employee’s death.
In a June 14, 2011 attending physician’s form, Dr. Ghulam Arain, an attending Boardcertified internist, attributed the employee’s death to cardiac arrest and congestive heart failure.
He listed asbestosis, chronic obstructive pulmonary disease (COPD), heart disease and prostate
cancer as contributing causes of the employee’s death. In support of this conclusion, Dr. Arain
stated that the underlying asbestosis and chronic pulmonary obstructive disease were the main
cause of the employee’s gradual decline.
On December 1, 2011 OWCP advised appellant regarding the evidence required to
establish her survivor’s claim. It informed her that the evidence currently in the record was
insufficient to establish her claim.
In a March 27, 2012 report, Dr. Arain stated that he reviewed the medical records for the
employee from Highland Community Hospital and noted that he had treated the employee
several times during his admittance to the hospital. He related that the death certificate was
prepared by a coroner, who was not a medical person, who did not have all of the relevant
information on the employee when pronouncing his death. At the time of the employee’s death,
he had significant lung disease with x-ray findings consistent with asbestosis and
echocardiogram findings consistent with pulmonary hypertension. Dr. Arain related that in
elderly patients with multiple medical problems that it is sometimes difficult to list one cause of
death. In the case of the employee, Dr. Arain opined that his declining health and asbestosis
were a significant cause of the complications causing the chronic obstructive pulmonary disease
and cardiac disease.
By decision dated January 18, 2013, OWCP denied appellant’s claim for survivor
benefits. It found that the employee’s death was not caused or aggravated by his accepted workrelated asbestosis.

2

LEGAL PRECEDENT
FECA provides that the United States shall pay compensation for disability or death of an
employee resulting from personal injury sustained while in the performance of duty.2
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background, showing causal
relationship. The opinion of the physician must be one of reasonable medical certainty and must
be supported by medical rationale.3
Section 8123(a) of FECA4 provides that, if there is 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 an examination.5 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 an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination.6
ANALYSIS
Appellant claimed that the employee’s death on January 23, 2011 was causally related to
his federal employment as his accepted condition of asbestosis caused or contributed to his
death. By decision dated January 18, 2013, OWCP relied upon the May 18, 2011 medical
adviser’s report when it denied appellant’s claim for survivor benefits. The Board finds that
there is a conflict in medical opinion between the medical adviser and Dr. Arain, for appellant,
on the issue of whether the employee’s death was causally related to his federal employment.
In a May 18, 2011 report, the medical adviser reviewed the employee’s medical record
and the death certificate. He concluded that the employee’s death was not caused or aggravated
by his accepted condition of asbestosis. In support of this conclusion, the medical adviser relied
upon the cause of death listed in the death certificate and the medical evidence he reviewed.
Dr. Arain an attending Board-certified internist, based upon a review of the medical
evidence and his treatment of the employee, concluded that the employee’s asbestosis was a
contributing cause of his death. He also noted that the death certificate was not issued by a
medical person when listing the cause of death. Dr. Arain also explained how the exposure to
asbestosis and pulmonary hypertension aggravated the employee’s congestive heart failure and,
2

5 U.S.C. § 8133.

3

L.R. (E.R.), 58 ECAB 369 (2007); Viola Stanko (Charles Stanko), 56 ECAB 436 (2005).

4

5 U.S.C. § 8123(a).

5

J.J., Docket No. 09-27 (issued February 10, 2009); F.R., 58 ECAB 607 (2007); Darlene R. Kennedy, 57 ECAB
414 (2006).
6

20 C.F.R. § 10.321.

3

thus, contributed to his death. He stated that x-rays revealed significant lung disease evincing
asbestosis and echocardiogram findings consistent with pulmonary hypertension and found that
the employee’s declining health and asbestosis significantly caused complications resulting in
COPD and cardiac disease.
Due to the unresolved conflict in the medical evidence between the medical adviser and
Dr. Arain, the Board will set aside OWCP’s decision and remand the case for referral of the
employee’s record to an impartial medical specialist to resolve the conflict. After such further
development of the record as it deems necessary, OWCP shall issue a de novo decision on
whether the employee’s death on January 23, 2011 was causally related to the accepted
employment condition of asbestosis.
CONCLUSION
The Board finds the case is not in posture for a decision due to an unresolved conflict in
medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 18, 2013 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: August 7, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Texarkana, TX,
Employer
__________________________________________

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Appearances:
James R. Linehan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-399
Issued: November 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 26, 2008 merit decision terminating his compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
January 24, 2006 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
In mid 2001, the Office accepted that appellant, then a 48-year-old preservation servicer,
sustained several conditions due to his repetitive work duties, including tenosynovitis of his left
hand and wrist and the bilateral conditions of carpal tunnel syndrome, brachial neuritis, shoulder

and arm sprains and wrist enthesopathy.1 In March 2002, it accepted that he sustained lumbago
due to walking on cement and standing for a significant portion of his workday. Appellant began
working in jobs for the employing establishment which did not require lifting more than 20
pounds or repetitively moving his arms. He stopped work for various periods and received
appropriate disability compensation.
In August 2002, the Office referred appellant to Ronald W. Anderson, Ph.D., a clinical
psychologist. In a September 20, 2002 report, Dr. Anderson obtained testing which showed that
appellant has a full-scale intelligence quotient of 66 which placed him in the mild mental
retardation range. He stated that appellant appeared to be functionally illiterate, performed
arithmetic at a second grade level and generally had poor learning ability. Dr. Anderson advised
that appellant would not be able to perform tasks of a technical nature or which required a long
series of detailed steps.
On May 17, 2004 appellant returned to work for the employing establishment in a lightduty position. He fell at work on that same date and the Office accepted that he sustained a
lumbar strain/sprain, cervical strain/sprain and bilateral knee contusions. Appellant stopped
work on May 17, 2004. Dr. Dehaan determined that he was totally disabled from work. The
Office paid compensation for total disability.
In an August 10, 2004 report, Dr. Robert Chouteau, an osteopath and Board-certified
orthopedic surgeon serving as an Office referral physician, stated that appellant continued to
suffer from residuals of his April 21, 2000 employment injury. He found bilateral median nerve
neuropathy and a right leg radiculopathy. Dr. Chouteau arranged for appellant to participate in a
functional capacity evaluation which showed the ability to perform “sedentary” work and
obtained electromyogram (EMG) and nerve conduction velocity (NCV) tests which showed
evidence of bilateral median radiculopathies at the wrist or carpal tunnel syndrome (moderate on
the right and mild on the left), bilateral ulnar neuropathies at the elbows, and a right S1
radiculopathy. He found that appellant could work eight hours per day with restrictions,
including lifting no more than 10 pounds, engaging in repetitive wrist or elbow motions for no
more than one hour per day, and lifting, pulling, pushing, reaching (including above the
shoulder), bending, twisting and kneeling for no more than two hours per day.
The Office determined that there was a conflict in the medical evidence between
Dr. Dehaan and Dr. Chouteau regarding appellant’s ability to work and referred him to
Dr. David R. Willhoite, a Board-certified orthopedic surgeon, for an impartial medical
examination.
On December 6, 2004 Dr. Willhoite stated that on examination the cervical spine
revealed no tenderness to palpation in the cervical region, but there was mild restriction of the
1

Appellant was working at the Red River Army Depot in Texarkana at the time of his injury. The preservation
servicer job involved preparing vehicles for shipment and storage. Appellant had to lift up to 70 pounds and
repetitively use his arms while performing such tasks as sanding, greasing, changing oil and replacing fuel cells. On
December 14, 2001 Dr. Jeffrey T. Dehaan, an attending Board-certified orthopedic surgeon, performed left carpal
tunnel release surgery which was authorized by the Office.

2

cervical spine in all directions which he felt was voluntary. There was a negative Tinel’s sign
and negative Phalen’s test bilaterally and two-point discrimination was normal in both hands.
Examination of appellant’s lumbar spine revealed no tenderness to palpation in the lumbar
region, but he would only forward flex to approximately 60 degrees. Dr. Willhoite indicated that
there were no motor or sensory deficits in the lower extremities. He diagnosed cervical strain,
post left carnal tunnel release and lumbosacral strain with no evidence of any internal
derangement of the knees and no evidence of any type of residual problem affecting both
shoulders. Dr. Willhoite advised that appellant’s condition relating to the April 21, 2000 work
injury had resolved, including his bilateral carpal tunnel syndrome and bilateral shoulder and
upper arm sprains. He could not find any objective evidence on examination and diagnostic
testing that appellant had any residual problems and characterized his examination as being
“basically normal.” Dr. Willhoite stated that appellant’s complaints far outweighed his findings
on physical examination and determined that he could perform his date-of-injury job.
In a February 9, 2005 report, Dr. Dehaan stated that he had been treating appellant for
chronic lower back problems, neurological problems in his lower extremities and bilateral carpal
tunnel syndrome. He indicated that appellant could not return to the workforce due to the
medications he had to take for these conditions.
The Office requested that Dr. Willhoite provide clarification of his December 6, 2004
report. It asked him to comment on the relevance of several documents of record, including the
August 10, 2004 report of Dr. Chouteau and the functional capacity evaluation and EMG and
NCV studies from August 2004. In a May 5, 2005 supplemental report, Dr. Willhoite stated that
he had reviewed additional evidence, including EMG and NCV studies of the upper and lower
extremities which were obtained by Dr. Chouteau in August 2004 and a functional capacity
evaluation performed in August 2004. He indicated that the testing showed that appellant had
bilateral carpal syndrome and a right S1 radiculopathy. In response to a question regarding
appellant’s ability to work, Dr. Willhoite stated:
“After reviewing the additional medical evidence, I feel that [appellant] still has
some problem related to his work conditions and that he is most likely not able to
perform full duties as a preservation officer. The functional capacity evaluation
revealed that [appellant] was functioning at a sedentary level and I feel this is
most likely so.”
In a May 5, 2005 work restrictions form, Dr. Willhoite stated that appellant could work
eight hours per day and lift up to 10 pounds. He could perform the following activities for two
hours per day: walk, stand, reach (including above the shoulders), twist, engage in repetitive
wrist and elbow motion, push, pull, lift, squat, kneel and climb.
In June 2005, appellant was referred to an Office-sponsored vocational rehabilitation
program. In October 2005, the rehabilitation counselor closed the file because rehabilitation was

3

determined not to be feasible. He stated, “The work-related disability is too severe for
employment and is unlikely to improve.”2
On November 3, 2005 the employing establishment offered appellant a position as a
woodworker. The position involves making and repairing small and medium boxes, crates,
pallets, and other similar items based upon specific instructions and complete construction plans.
This process requires using carpentry squares to align corners and simple joints, measuring
correct dimensions, cutting boards or sheets of wood to specified lengths and using a variety of
common assembly procedures and work sequences to band, bolt, screw, or otherwise fasten parts
together using existing jigs, templates, models, or guides. The woodworker position requires
knowledge of a limited range of woodworking techniques and processes, skill in basic layout
procedures for repetitive assignments, knowledge of a limited variety of frequently used wood
and wood substitute materials and knowledge of frequently used types and sizes of hardware. It
requires the ability to use a variety of basic assembly and fastening procedures to measure, cut,
nail, staple, band, screw, bolt, and join wood framing boards, panes, sheets and parts used in
making and repairing containers. The woodworker must have skill in the use of common hand
and power tools such as drills, hammers, circular saws, banding equipment, pneumatic nailers
and drill presses to cut, drill, band and assemble work products. The woodworker position
requires the performance of each of the following activities for about two hours per day:
standing, bending, stooping, reaching, moving the arms and lifting, carrying and using tools and
materials weighing up to 10 pounds.
In a November 18, 2005 letter, the Office advised appellant of its determination that the
woodworker position offered by the employing establishment was suitable. On November 3,
2005 the employing establishment confirmed that the position was still available to appellant.
The Office noted that Dr. Willhoite’s medical opinion showed that appellant could perform the
position. It informed appellant that his compensation would be terminated if he did not accept
the woodworker position or provide good cause for not doing so within 30 days of the date of the
letter.
In a December 13, 2005 letter, appellant advised the employing establishment that he was
declining the offered woodworker position because cramping in his hands made it impossible for
him to hold tools. He indicated that he had constant back and knee pain.
In a January 5, 2006 letter, the Office advised appellant that his reasons for not accepting
the position offered by the employing establishment were unjustified. It advised him that his
compensation would be terminated if he did not accept the position within 15 days of the date of
the letter.
In a January 24, 2006 decision, the Office terminated appellant’s compensation effective
January 24, 2006 on the grounds that he refused an offer of suitable work. In a November 1,
2006 letter, appellant’s attorney argued that appellant was not physically or vocationally able to
2

On January 10, 2006 appellant’s rehabilitation counselor stated, “On October 11, 2005 and October 12, 2005 I
received and reviewed a job offer for this [injured worker]. I sent the job offer back to the employer with my
recommendations. I received a [Form] OWCP-3 … on or about October 30, 2005 instructing me to close this file as
the case had been determined as not feasible. I have not heard anything else on this file.

4

work as a woodworker. He indicated that appellant still suffered from serious work-related
residuals which prevented him from performing repetitive work with his upper extremities and
asserted that his limited mental faculties prevented him from performing the complicated tasks
required by the job. In an August 26, 2008 decision, the Office affirmed its January 24, 2006
decision.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who-- ... (2) refuses or neglects to work after suitable work
is offered ... is not entitled to compensation.”3 However, to justify such termination, the Office
must show that the work offered was suitable.4 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.5
Section 8123(a) of the Act provides in pertinent part: “If there is 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 an examination.”6 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.7 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.8
ANALYSIS
In mid 2001, the Office accepted that appellant sustained several conditions due to his
repetitive work duties including tenosynovitis of his left hand and wrist and the bilateral
conditions of carpal tunnel syndrome, brachial neuritis, shoulder and arm sprains and wrist
enthesopathy. On December 14, 2001 appellant underwent left carpal tunnel release surgery
which was authorized by the Office. In March 2002, the Office accepted that he sustained
lumbago due to standing and walking. On May 17, 2004 appellant fell at work and the Office
accepted that he sustained a lumbar strain/sprain, cervical strain/sprain and bilateral knee
contusions.

3

5 U.S.C. § 8106(c)(2).

4

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

5

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

6

5 U.S.C. § 8123(a).

7

William C. Bush, 40 ECAB 1064, 1075 (1989).

8

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

5

The Office terminated appellant’s compensation effective January 24, 2006 on the
grounds that he refused an offer of suitable work, a position as a woodworker. The position
involves making and repairing small and medium boxes, crates, pallets, and other similar items
based upon specific instructions and complete construction plans. This process requires using
carpentry squares to align corners and simple joints, measuring correct dimensions, cutting
boards or sheets of wood to specified lengths and using a variety of common assembly
procedures and work sequences to band, bolt, screw, or otherwise fasten parts together using
existing jigs, templates, models, or guides. The woodworker position requires the performance
of each of the following activities for about two hours per day: standing, bending, stooping,
reaching, moving the arms and lifting, carrying and using tools and materials weighing up to 10
pounds. The Office based its determination that appellant was physically able to perform the
position on the opinion of Dr. Willhoite, a Board-certified orthopedic surgeon who served as an
impartial medical specialist.
The Office properly determined that there was a conflict in the medical opinion between
Dr. Dehaan, an attending Board-certified orthopedic surgeon and Dr. Chouteau, a Board-certified
orthopedic surgeon acting as an Office referral physician, regarding appellant’s ability to work.9
In order to resolve the conflict, the Office properly referred appellant, pursuant to section
8123(a) of the Act, to Dr. Willhoite for an impartial medical examination and an opinion on the
matter.
The Board finds that the opinion of Dr. Willhoite is not sufficiently well rationalized to
constitute the weight of the medical evidence with respect to appellant’s ability to work and,
therefore, the Office did not present sufficient medical evidence to show that appellant was
physically capable of performing the woodworker position. In a May 5, 2005 report,
Dr. Willhoite stated that he had reviewed EMG and NCV studies of the upper and lower
extremities which were obtained by Dr. Chouteau in August 2004 and a functional capacity
evaluation performed in August 2004. He indicated that the testing showed that appellant had
bilateral carpal tunnel syndrome and a right S1 radiculopathy. In response to a question
regarding appellant’s ability to work, Dr. Willhoite stated, “I feel that [appellant] still has some
problem related to his work conditions and that he is most likely not able to perform full duties
as a preservation officer.10 The functional capacity evaluation revealed that [appellant] was
functioning at a sedentary level and I feel this is most likely so.” In a May 5, 2005 work
restrictions form, Dr. Willhoite stated that appellant could work eight hours per day and lift up to
10 pounds. Appellant could perform the following activities for two hours per day: walk, stand,
reach (including above the shoulders), twist, engage in repetitive wrist and elbow motion, push,
pull, lift, squat, kneel and climb.
Dr. Willhoite did not provide sufficient explanation for why he felt that appellant’s
physical condition allowed him to perform the level of work that he recommended in his May 5,
9

In several May 2004 reports, Dr. Dehaan determined that appellant was totally disabled from work. In contrast,
Dr. Chouteau determined on August 10, 2004 that appellant could work eight hours per day with restrictions, such as
lifting no more than 10 pounds and engaging in repetitive wrist or elbow motions for no more than one hour per day.
10

Appellant’s date-of-injury job as a preservation officer had required him to lift up to 70 pounds and repetitively
use his arms while performing such tasks as sanding, greasing, changing oil and replacing fuel cells.

6

2005 work restrictions form. He appeared to have based his recommendations, at least in part,
on the August 2004 functional capacity evaluation as interpreted by Dr. Chouteau on
August 10, 2004. Dr. Chouteau had recommended that appellant could only engage in repetitive
wrist and elbow motion for one hour per day. However, Dr. Willhoite did not adequately
address why appellant could engage in repetitive wrist and elbow motion to a greater extent, i.e.,
for two hours per day. He did not explain how appellant’s bilateral median and ulnar
neuropathies would allow him to perform the fine hand manipulation and arm motion required
by the woodworker position.
Moreover, the Board notes that it has not been shown that appellant has the vocational
ability to perform the woodworker position. The description of the woodworker position notes
under the “Skill and Knowledge” section that the job requires knowledge of a limited range of
woodworking techniques and processes, skill in basic layout procedures for repetitive
assignments, knowledge of a limited variety of frequently used wood and wood substitute
materials and knowledge of frequently used types and sizes of hardware. The job requires the
ability to use a variety of basic assembly and fastening procedures to measure, cut, nail, staple,
band, screw, bolt and join wood framing boards, panes, sheets and parts used in making and
repairing containers. The woodworker must have skill in the use of common hand and power
tools such as drills, hammers, circular saws, banding equipment, pneumatic nailers and drill
presses to cut, drill, band and assemble work products.
There is no evidence in the record that appellant has any of these woodworking skills
which are apparent prerequisites for the woodworker position. There is no indication that
appellant could obtain these skills through on-the-job training. He participated in a vocational
rehabilitation program, but no rehabilitation counselor provided an opinion that he could perform
the woodworker position.11 In addition, it appears that appellant’s apparent limited mental
faculties might prevent him from having the ability to perform the fairly complicated tasks
required by the woodworker position. In September 2002, the Office referred appellant to
Dr. Anderson, a clinical psychologist, who indicated that appellant has a full-scale intelligence
quotient of 66 which placed him in the mild mental retardation range. Dr. Anderson stated that
appellant appeared to be functionally illiterate, performed arithmetic at a second grade level and
generally had poor learning ability. He provided an opinion that appellant would not be able to
perform tasks of a technical nature or which required a long series of detailed steps. The Office
did not provide any discussion of how appellant could perform the woodworker position in light
of these apparent limitations.
Therefore, the Office did not meet its burden of proof to show that the woodworker
position offered by the employing establishment was suitable and it improperly terminated
appellant’s compensation effective January 24, 2006 on the grounds that he refused an offer of
suitable work.

11

In October 2005, appellant’s rehabilitation counselor at the time closed his file because rehabilitation was
determined not to be feasible. He stated, “The work-related disability is too severe for employment and is unlikely
to improve.”

7

CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation effective
January 24, 2006 on the grounds that he refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 26, 2008 decision is reversed.
Issued: November 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Seattle, WA, Employer
__________________________________________

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

Docket No. 13-2136
Issued: February 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 25, 2013 appellant filed a timely appeal from a January 3, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration.1 Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.

1

The last merit decision in this case was the October 23, 2009 OWCP decision, which denied her occupational
disease claim. For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year
to file an appeal. 20 C.F.R. § 501.3(d)(2). For final adverse decisions of OWCP issued on or after November 19,
2008, a claimant must file an appeal within 180 days of the decision. 20 C.F.R. § 501.3(e). Because more than 180
days has elapsed between the most recent merit decision dated October 23, 2009 to the filing of this appeal on
April 25, 2013, the Board lacks jurisdiction to review the merits of this case.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits on the grounds that her request for reconsideration was not timely filed and
did not establish clear evidence of error.
FACTUAL HISTORY
On September 2, 2009 appellant, then a 57-year-old rating veterans’ service (RVS)
representative, filed an occupational disease claim alleging that she developed bilateral carpal
tunnel syndrome and arthritis as a result of daily typing, carrying heavy files, fingering through
records and pushing carts with heavy files at work.
By letter dated September 22, 2009, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional evidence to establish that she
performed the work duties described and that she sustained a diagnosed condition as a result of
her employment. OWCP sent a similar development letter to the employing establishment.
In a September 28, 2009 statement, the employing establishment described appellant’s
duties as a RVS representative as typing for one third of the workday, reviewing files and
looking up reference materials online for another third of the workday and spending time in
training sessions and meetings for the remaining third of the workday. It stated that all
employees had an ergonomic chair and desk and carts to assist them with carrying files.
In a decision dated October 23, 2009, OWCP denied appellant’s claim finding
insufficient medical evidence to establish that she sustained a diagnosed medical condition as a
result of factors of her employment.
In a letter dated October 27, 2009, appellant stated that she was responding to OWCP’s
September 22, 2009 letter. She related that she had pain and stiffness in her hands for many
years and was diagnosed with arthritis of the hands in 1998 and carpal tunnel syndrome in 2002.
Appellant stated that she had worked various sedentary jobs that required typing and use of
hands to complete her work. Her current job involved typing, fingering through files for
reviews, pushing carts of files and writing ratings daily. Appellant reported that her hands and
wrist were very stiff and sore by the end of the day and sometimes they stayed sore for several
days. She stated that she had these symptoms for several years but they had gotten worse with
the typing and fingering of files daily. Appellant noted that she did not have any hobbies or
outside activities where she used her hands except for an occasional e-mail or bill payment. She
reported that she was also filing a claim for stress due to aggravation of fibromyalgia due to the
stress of the job. Appellant stated that she had to schedule appointments to get the additional
medical information and requested additional time to submit the medical evidence.
In an undated letter received on November 7, 2012, appellant requested reconsideration
for claim No. xxxxxx752 and No. xxxxxx978. She alleged that she was also filing for permanent
impairment and aggravation of her disabilities due to continued stress created by a hostile work
environment and provided examples of what she believed constituted a hostile work
environment. Regarding her occupational disease claim for carpal tunnel syndrome and arthritis,

2

appellant explained that her hands would swell and get very sore and numb while working with
files and typing at work. She stated that she had no other outside activity of repetitive action of
her hands and did not have any other hobbies or activities that required repetitive action of her
hands. Appellant noted that she was attaching all medical documents and supporting evidence.
Appellant submitted various employee health progress notes dated from March 23, 2009
to April 19, 2012 addressing her medical treatment for memory loss, sleep problems, depression,
other mental health concerns, fibromyalgia, neck pain, left ulnar neuropathy and right knee and
lumbar osteoarthritis. Appellant related that she was under considerable stress at work and
believed that this played a large role in her complaints.
In an August 30, 2010 report, Dr. Hee Yon Sohng, a Board-certified internist, noted that
he treated appellant for chronic and severe arthritis of her hands, wrists and knees and for carpal
tunnel syndrome in both hands. He related that appellant used wrist splints but still experienced
numbness and coldness in both hands after prolonged typing. Dr. Yon Sohng opined that the
physical demands of appellant’s position as a veterans’ service representative rater were
exacerbating her medical conditions and advised that she avoid engaging in activities that were
taxing on her hands and wrists, such as typing.
In September 17 and October 12, 2010 reports, Dr. Gai Li, a psychiatrist, stated that he
had treated appellant since February 2007 for depression and anxiety and described the medical
treatment she received. He reported that appellant’s symptoms and neuropsychological test
results may suggest that she was not suited for the position of veterans’ service representative
rater. Dr. Li also noted that because of her depression and anxiety disorder, appellant may be
more vulnerable to stressful working environments. He explained that if appellant continued to
work as a rater she be provided with modifications such as working in a quiet environment at
home to reduce distractions and put her in a less stressful environment.
In a September 27, 2011 report, Dr. Lauren Beste, a Board-certified internist, stated that
appellant suffered from Sjogren syndrome, carpal tunnel syndrome and fibromyalgia among
other ailments. She noted that appellant was currently employed as a veterans’ service
representative rater, but requested reassignment to a position that did not involve extensive
exertion, especially lifting, due to her carpal tunnel syndrome.
Appellant submitted an August 7, 2012 letter from the employing establishment
acknowledging her complaint for harassment and hostile work environment and an October 16,
2012 notice of partial acceptance of her Equal Employment Opportunity (EEO) complaint.
By decision dated January 3, 2013, OWCP denied appellant’s request for reconsideration
as untimely filed and failing to establish clear evidence of error. It determined that the most
recent merit decision on record was the October 23, 2009 decision denying appellant’s
occupational disease claim. Because appellant filed for reconsideration on November 7, 2012,
more than one year after the October 23, 2009 decision, her claim was untimely filed. OWCP
further determined that the evidence submitted after the last merit decision was insufficient to
establish clear evidence of error.

3

LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.3
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.4 The oneyear period begins on the date of the original decision. However, a right to reconsideration
within one year accompanies any subsequent merit decision on the issues. This includes any
hearing or review of the written record decision, any denial of modification following
reconsideration, any merit decision by the Board and any merit decision following action by the
Board.5
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nonetheless undertake a limited review of the evidence previously of record to determine
whether the new evidence demonstrates clear evidence of error.6 In this regard, OWCP will limit
its focus to a review of how the newly submitted evidence bears on the prior evidence of record.7
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that it improperly denied merit review in the face of
such evidence.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
decided by OWCP. The evidence must be positive, precise and explicit, and it must manifest on
its face that OWCP committed an error.9 Evidence that does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to establish clear evidence of
error.10 It is not enough merely to show that the evidence could be construed so as to produce a
contrary conclusion.11 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.12
3

20 C.F.R. § 10.607(a).

4

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

5

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

6

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

7

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

8

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

9

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

10

Jimmy L. Day, 48 ECAB 652 (1997).

11

Id.

12

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

4

ANALYSIS
The only decision before the Board on this appeal is that of OWCP dated January 3, 2013
which denied further merit review of appellant’s case on the merits because the request for
reconsideration was not timely filed and did not show clear evidence of error.
In its January 3, 2013 decision, OWCP found that appellant’s request for reconsideration,
received on November 7, 2012, was untimely filed and failed to present clear evidence of error.
The Board finds that OWCP properly determined that appellant failed to file a timely application
for review. OWCP issued its most recent merit decision in this case on October 23, 2009, and it
received appellant’s request for reconsideration on November 7, 2012. Thus, the request was
outside the one-year time limit.13 Accordingly, appellant must demonstrate clear evidence of
error by OWCP in denying her occupational disease claim.
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s
October 23, 2009 decision or shift the weight of the evidence of record in her favor. OWCP
denied appellant’s occupational disease claim on the grounds that she did not submit sufficient
medical evidence to establish that she sustained a diagnosed medical condition as a result of
factors of her employment.
Along with her request for reconsideration appellant submitted various medical reports
not previously reviewed by OWCP. She provided employee health progress notes dated from
March 23, 2009 to April 19, 2012 regarding her medical treatment for memory loss, sleep
problems, depression, other mental health concerns, fibromyalgia, neck pain, left ulnar
neuropathy, and right knee and lumbar osteoarthritis. In an August 30, 2010 report, Dr. Sohng
treated appellant for chronic and severe arthritis of her hands, wrists, and knees and carpal tunnel
syndrome. He opined that the physical demands of appellant’s position as a veterans’ service
representative rater were exacerbating her medical conditions. In September 17 and October 12,
2010 reports, Dr. Li, related appellant’s history for depression and anxiety and noted that
appellant worked as a veterans’ service representative rater. In a September 27, 2011 report,
Dr. Beste stated that appellant suffered from Sjogren syndrome, carpal tunnel syndrome, and
fibromyalgia among other ailments and noted that appellant was currently employed as a
veterans’ service representative rater. While these medical reports are generally supportive of
appellant’s occupational disease claim, they do not establish clear error on the part of OWCP.14
Appellant also submitted an August 7, 2012 letter from the employing establishment
acknowledging her complaint for harassment and hostile work environment and an October 16,
2012 Notice of Partial Acceptance of her EEO complaint. This evidence, however, is not
relevant to the medical issue of causal relationship and is insufficient to establish clear evidence
13

See Federal (FECA) Procedure Manual, Part 2 -- Reconsiderations, Time Limitations, Chapter 2.1602(e)(6)
(August 2011). For decisions issued on or after August 29, 2011, there is still a one-year time limit for requesting
reconsideration. The one-year period begins on the date of the original decision, and the application for
reconsideration must be received by OWCP within one year of the date of its decision for which review is sought.
14

Supra note 11.

5

of error. This evidence also fails to raise a substantial question concerning the correctness of
OWCP’s decision.
On appeal, appellant alleges that the employing establishment did not submit the medical
evidence she gave them with her claim and that OWCP erred because it failed to ensure that the
employing establishment followed the law by submitting the evidence in their possession. The
Board has held that the regulatory language unequivocally sets a one-year time limitation for
filing reconsideration requests and does not indicate that a late filing may be excused by
extenuating circumstances such as dependence on others to navigate the workers’ compensation
process.15 The Board further notes that in a letter dated September 22, 2009 OWCP requested
additional medical evidence from appellant to establish that she sustained a diagnosed condition
as a result of her work duties and advised appellant to submit such medical evidence to OWCP.
Appellant, however, did not respond to OWCP’s development letter until after the October 23,
2009 merit decision.
To establish clear evidence of error, it is not sufficient merely to establish that the
evidence could be construed so as to produce a contrary conclusion. The term clear evidence of
error is intended to represent a difficult standard. None of the evidence submitted manifests on
its face that OWCP committed an error in denying appellant’s occupational disease claim.
Appellant has not otherwise submitted evidence of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s October 23, 2009 decision. Thus, the
evidence is insufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

15

D.S., Docket No. 12-919 (issued August 23, 2012); B.F., Docket No. 11-1181 (issued December 8, 2011). See
also 20 C.F.R. § 10.607.

6

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1071
Issued: January 4, 2021

Case Submitted on the Record

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

JURISDICTION
On April 20, 2020 appellant filed a timely appeal from November 15, 2019 and April 1,
2020 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 1, 2020 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.

FACTUAL HISTORY
On June 3, 2007 appellant, then a 51-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that he had pain in the groin, upper leg and lower back when lifting a rest bar on
June 1, 2007, while in the performance of duty. OWCP accepted the claim for sprain of the left
groin, sprain of the left thigh, and sprain of the back, lumbar region. Appellant did not immediately
stop work. OWCP paid wage-loss compensation on the supplemental rolls from August 12
through 31, 2007 and on the periodic rolls from September 2 through October 27, 2007.
On March 5, 2016 appellant filed a claim for a schedule award (Form CA-7).
In support of his claim, appellant submitted reports from Dr. Scott Stoll, a Board-certified
physiatrist, dated March 24 and July 28, 2016, who performed left S1 and right S1 transforaminal
epidural corticosteroid injections and diagnosed radicular low back pain, spondylosis, and facet
syndrome. In reports dated April 11 through August 22, 2016, he was treated for low back pain.
Dr. Stoll noted findings of bilateral lumbar paraspinal and gluteal region tenderness, decreased left
and right lateral bending, diminished bilateral reflexes of 2/4 in all major groups, negative bilateral
straight leg raise tests and intact sensation in the lower extremities. He diagnosed lumbago,
lumbosacral radiculopathy at L5, neck pain, myofascial pain syndrome, low back pain, and
sacroiliitis.
On October 12, 2016 appellant was treated by Dr. Troy Wood, a Board-certified
physiatrist, who diagnosed chronic bilateral low back pain without sciatica, neck pain, thoracic
spine pain, and myofascial pain syndrome. Dr. Wood performed a trigger point injection and
recommended physical therapy.
In a November 15, 2016 development letter, OWCP requested that appellant submit a
report from his attending physician, which addressed whether he had reached maximum medical
improvement (MMI) and, if so, to evaluate permanent impairment in accordance with the standards
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3 It afforded him 30 days to submit the necessary evidence.
Appellant submitted a November 29, 2016 report from Dr. Wood who reevaluated
appellant for low back and cervical pain. Dr. Wood diagnosed chronic bilateral low back pain
without sciatica, neck pain, thoracic spine pain, and myofascial pain syndrome. He performed a
trigger point injection and recommended physical therapy. In a report dated December 2, 2016,
Dr. Wood opined that appellant had not yet reached MMI. Appellant presented on November 29,
2016 with continued pain in the upper back, mid back, low back, and surrounding the thigh and
buttocks regions. He reported that physical therapy reduced symptoms and overall improved
functioning. Dr. Wood noted that appellant continued to receive injections into the trochanteric
bursa, S1 joints, and myofascial trigger points as recently as October 2016, which provided benefit
and relief of symptoms. He diagnosed lumbago, myofascial pain syndrome, chronic lumbago with
bilateral radiculopathy, sacroiliitis, thoracic back pain, cervicalgia, gluteus maximus and medius
myofascial pain and tendinopathy. Dr. Wood noted current subjective and objective findings and
3

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

2

opined that appellant should continue to receive treatment to improve function and symptoms. He
again opined that he had not reached MMI.
By decision dated December 19, 2016, OWCP denied appellant’s claim for a schedule
award, finding that the medical evidence of record was insufficient to establish that all of his
conditions were at MMI.
OWCP continued to receive evidence. In reports dated February 1, April 17, May 23,
August 24, and November 2, 2017 and January 29 and March 28, 2018, Dr. Wood diagnosed
chronic bilateral low back pain, bilateral sciatica, neck pain, myofascial pain syndrome, lumbar
facet syndrome, and sacroiliitis. On April 17, 2017 he noted that appellant reported a flare-up of
symptoms of bilateral shoulder pain and low back pain. Dr. Wood performed a series of trigger
point injections on April 17, May 23, August 24, and November 2, 2017, and March 28, 2018. On
June 15, 2017 he performed bilateral S1 transforaminal epidural steroid injections and diagnosed
radicular low back pain and lumbar degenerative disc disease with radiculopathy.
Dr. Wood continued to treat appellant on August 7, October 16, December 18, 2018,
March 19, June 11 and July 2, 2019 for chronic bilateral low back pain without sciatica, lumbago,
myofascial pain syndrome, neck pain, and thoracic spine pain. He continued to perform trigger
point injections.
On August 8, 2019 appellant filed a claim for a schedule award (Form CA-7). In support
of his claim, he submitted a July 22, 2019 letter from Dr. Wood, who reported first treating
appellant in October 2016 for a low back injury, which occurred on June 1, 2007. Dr. Wood
provided treatment modalities including physical therapy, intermittent epidural injections, trigger
point injections, and oral medications. He indicated that appellant reached MMI in treatment for
his low back injury and he did not expect appellant to obtain further pain relief or improved
functional status. Dr. Wood opined that appellant had a consistent and chronic level of disability
associated with the back injury, which was not expected to improve with further medical
interventions. He noted recent subjective findings of achy pain ranging from 6-7/10 in the low
back, left thigh, sacral area, S1 joint, and numbness in the bilateral buttocks. Dr. Wood noted
objective findings of tenderness of bilateral lumbar paraspinal muscles and the bilateral gluteal
regions, decreased lumbar range of motion, intact reflexes, sensation, and manual motor testing of
the lower extremities.
In an August 12, 2019 development letter, OWCP requested that appellant submit an
impairment evaluation from his attending physician addressing whether he had reached MMI and
evaluating the extent of permanent impairment, if any, in accordance with the sixth edition of the
A.M.A., Guides.4 It afforded him 30 days to submit the necessary evidence.
On August 1 and October 15, 2019 Dr. Wood performed bilateral L5 transforaminal
epidural steroid injections and diagnosed radicular low back pain and lumbar degenerative disc
disease with radiculopathy. On August 13, 2019 appellant reported 50 percent improvement in his

4

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

3

pain symptoms. Dr. Wood diagnosed chronic bilateral low back pain without sciatica, lumbago,
myofascial pain syndrome, and neck pain.
By decision dated November 15, 2019, OWCP denied appellant’s claim for a schedule
award, finding that the medical evidence of record was insufficient to establish permanent
impairment of a scheduled member or function of the body.
On January 2, 2020 appellant requested reconsideration.
On December 26, 2019 Dr. Wood performed a bilateral L4 transforaminal epidural steroid
injection and diagnosed radicular low back pain and lumbar degenerative disc disease with
radiculopathy. On January 7, 2020 he performed a thoracolumbar trigger point injection and
diagnosed lumbago, thoracic spine pain, and spondylosis of the lumbar spine.
By decision dated April 1, 2020, OWCP denied modification of the November 15, 2019
decision.5
LEGAL PRECEDENT
The schedule award provisions of FECA and its implementing regulations 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.6 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.7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 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.9
Neither FECA nor its implementing regulations provide for a schedule award for
impairment to the back or to the body as a whole.10 Furthermore, the back is specifically excluded
The Board notes that OWCP’s April 1, 2020 decision references a January 2, 2020 decision; however, there is no
January 2, 2020 decision found in the record. The appropriate subject of modification was the November 15, 2019
merit decision.
5

6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(March 2017).
9

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

10
K.Y., Docket No. 18-0730 (issued August 21, 2019); L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59
ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

4

from the definition of organ under FECA.11 The sixth edition of the A.M.A., Guides does not
provide a separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that, FECA allows ratings for extremities and precludes ratings for the spine, The
Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) (The Guides Newsletter)offers an approach to rating spinal nerve impairments
consistent with sixth edition methodology. For peripheral nerve impairments to the upper or lower
extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides Newsletter
is to be applied.12 The Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.13
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.14 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence which
shows that the impairment has reached a permanent and fixed state and indicates that the date on
which this occurred MMI, describes the impairment in sufficient detail so that it can be visualized
on review, and computes the percentage of impairment in accordance with the A.M.A., Guides.15
Its procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated.16 If the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
Appellant provided a July 22, 2019 letter from Dr. Wood, who indicated that appellant
reached MMI in treatment for his low back injury and he had no expectation that he would obtain
further pain relief or improved functional status. Dr. Wood opined that appellant had a consistent
and chronic level of disability associated with the back injury, which was not expected to improve
with further medical interventions. Similarly, in reports dated August 1, 2019 through January 7,
11

See 5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48
ECAB 572 (1997).
12

Supra note 8 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

13

E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

14

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

15

Supra note 8 at Chapter 2.808.5 (March 2017).

16

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

17

Id.

5

2020, he performed a series of epidural steroid and trigger point injections and diagnosed lumbago,
thoracic spine pain, and spondylosis of the lumbar spine. Although Dr. Wood stated that appellant
had “a consistent and chronic level of disability associated with the back injury,” he failed to
provide a rating of permanent impairment to a scheduled member or function of the body pursuant
to the A.M.A., Guides. As such, Dr. Wood’s report is insufficient to establish entitlement to a
schedule award.18
OWCP’s procedures provide that, to support a schedule award, the file must contain
medical evidence which shows that the impairment has reached a permanent and fixed state,
indicates the date on which this occurred, describes the impairment in sufficient detail so that it
can be visualized on review, and computes the percentage of permanent impairment in accordance
with the A.M.A., Guides.19 Although OWCP requested a medical opinion establishing the extent
of appellant’s permanent impairment, the evidence submitted does not contain an impairment
rating in accordance with the A.M.A., Guides. Therefore, Dr. Wood’s reports are insufficient to
establish permanent impairment of a scheduled member or function of the body causally related
to appellant’s accepted employment injury.20
The Board finds, therefore, the medical evidence of record does not establish permanent
impairment of a scheduled member or function of the body, in accordance with either the sixth
edition of the A.M.A., Guides or The Guides Newsletter, appellant has not met his burden of proof
to establish his schedule award claim.21
On appeal appellant argues that Dr. Wood’s medical reports are sufficient to establish his
schedule award claim. As noted above, there is no current medical evidence of record confirming
that appellant has reached MMI with respect to all of his accepted conditions and no supporting
rating of permanent impairment of a scheduled member or function of the body pursuant to the
A.M.A., Guides.22
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 permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

18

See T.D., Docket No. 17-1495 (issued January 4, 2018).

19

Supra note 14.

20

See M.G., Docket No. 19-0823 (issued September 17, 2019); see also M.M., Docket No. 18-0292 (issued
July 9, 2018).
21

See E.D., Docket No. 19-1562 (issued March 3, 2020); I.R., Docket No. 16-1796 (issued January 13, 2017); P.L.,
Docket No. 13-1592 (issued January 7, 2014).
22

Supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2020 and November 15, 2019 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 4, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7