United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cocoa Beach, FL, Employer
__________________________________________

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

Docket No. 20-1181
Issued: February 11, 2021

Case Submitted on the Record

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

JURISDICTION
On May 12, 2020 appellant filed a timely appeal from December 3, 2019 and April 3, 2020
merit decisions and an April 24, 2020 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted October 14, 2019 employment incident; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 24, 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.

OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 24, 2019 appellant, then a 34-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on October 14, 2019 he suffered brief unconsciousness, a
laceration to the right eyebrow, concussion, and loss of memory after tripping over a curb when
walking inside to clock in for work while in the performance of duty. On the reverse side of the
claim form the employing establishment controverted appellant’s claim, contending that he was
not injured in the performance of duty as he was injured prior to starting his shift. It further asserted
that the injury was caused by appellant’s possible intoxication. Appellant did not stop work.
In a development letter dated October 30, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of factual and
medical evidence needed and provided a questionnaire for his completion. OWCP noted that
documentation had not been received to establish that appellant actually experienced the incident
alleged to have caused injury. It also indicated that medical evidence had not been received, which
supported a medical diagnosis in connection with the alleged employment incident. In a separate
development letter of even date, OWCP requested that the employing establishment provide
additional information, including evidence regarding appellant’s possible intoxication and his tour
of duty. It afforded both parties 30 days to respond.
OWCP subsequently received a request for authorization for a magnetic resonance imaging
(MRI) scan of appellant’s brain from Dr. Gary Weiss, a Board-certified anatomic and clinical
pathologist.
By decision dated December 3, 2019, OWCP accepted that the incident occurred as
alleged, but denied appellant’s claim, finding that the medical evidence of record was insufficient
to establish a medical diagnosis in connection with the accepted October 14, 2019 employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On December 31, 2019 OWCP received appellant’s November 3, 2019 response to the
development questionnaire. Appellant noted that he was not impaired in any way when the injury
occurred. He indicated that he tripped on the sidewalk outside of the employing establishment
before he began his tour of duty. Appellant reported that he fell on his right knee and shoulder
and that he struck his head on the brick wall of the building. He noted that his right eye was cut
open above his eyebrow and that he briefly lost consciousness. Appellant indicated that his
coworker notified the postmaster of the incident. He stated that he stopped work for two days and
that he delayed filing his Form CA-1 because the postmaster informed him that he might not be
eligible to file a claim. Appellant noted that he experienced brief unconsciousness, confusion,
pain, and loss of balance immediately after the employment incident and that he went inside the
employing establishment to wash the blood from his face after the incident. He indicated that he
did not have any similar disability or symptoms prior to the employment incident.

2

In an October 14, 2019 state workers’ compensation form report, Dr. Pierce Arnold, a
Board-certified family practitioner, diagnosed laceration of the right eyebrow and mild concussion.
He checked a box to indicate that the conditions for which treatment was sought were work related.
In an October 24, 2019 form report, Dr. Arnold diagnosed laceration of the right eyebrow.
He indicated that appellant had his sutures removed and that he had reached maximum medical
improvement.
On January 31, 2020 appellant requested reconsideration.
previously submitted medical evidence by fax and mail.

He asserted that he had

By decision dated April 3, 2020, OWCP modified the December 3, 2019 decision, finding
that appellant had established valid medical diagnoses. However, the claim remained denied
because the medical evidence of record was insufficient to establish a causal relationship between
the diagnosed medical conditions and the accepted October 14, 2019 employment incident.
On April 16, 2020 appellant requested reconsideration. In support of his request, he
submitted an October 24, 2019 narrative report from Dr. Arnold who examined appellant and
diagnosed laceration of the right eyebrow. Dr. Arnold noted that the encounter was related to
appellant’s workers’ compensation claim and that his sutures were removed without
complication.3
By decision dated April 24, 2020, OWCP denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty, as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.6 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.7

3

Appellant also resubmitted form reports from Dr. Arnold dated October 14 and 24, 2019.

4

Supra note 1.

5

M.O., Docket No. 19-1398 (issued August 13, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.R., Docket No. 20-0496 (issued August 13, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7
B.M., Docket No. 19-1341 (issued August 12, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.11
OWCP’s procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.12 In clear-cut traumatic
injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement is
sufficient and no rationalized opinion on causal relationship is needed. In all other traumatic injury
claims, a rationalized medical opinion supporting causal relationship is required.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has met his burden of proof to establish a laceration causally
related to the accepted October 14, 2019 employment incident.
In support of his claim, appellant submitted reports dated October 14 and 24, 2019 from
Dr. Arnold. Dr. Arnold diagnosed laceration of the right eyebrow and opined that the condition
was work related. OWCP accepted that the October 14, 2019 employment incident occurred as
alleged, that a medical condition had been diagnosed, and that appellant was injured in the
performance of duty. As noted above, OWCP’s procedures recognize that a claim may be accepted
without a medical report when the condition is a minor one which can be identified on visual
inspection.14 The Board, thus, finds that this evidence is sufficient to meet appellant’s burden of
proof that he sustained a right eyebrow laceration on October 14, 2019.15 Upon return of the case
8

T.J., Docket No. 19-0461 (issued August 11, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

9

D.M., Docket No. 20-0386 (issued August 10, 2020); John J. Carlone, 41 ECAB 354 (1989).

10

A.R., Docket No. 19-0465 (issued August 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

W.L., Docket No. 19-1581 (issued August 5, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011); Chapter 2.805.3(c) (January 2013). See also M.F., Docket No. 19-0578 (issued January 26, 2021); S.S.,
Docket No. 20-0509 (issued August 18, 2020).
13

Id. at Chapter 2.805.3(d) (January 2013).

14

Supra note 12; see also K.P., Docket No. 18-0350 (issued February 11, 2020); A.P., Docket No. 19-0224 (issued
July 11, 2019).
15

Id.

4

record OWCP shall make payment and/or reimbursement of medical expenses with regard to the
accepted laceration of the right eyebrow.16
The Board further finds, however, that appellant has not established additional conditions
as causally related to the accepted employment injury.
In his October 14 and 24, 2019 form reports, Dr. Arnold also diagnosed a mild concussion.
In an October 14, 2019 state workers’ compensation form report, he checked a box to indicate that
the conditions for which treatment was sought were work related. However, the Board has held
that an opinion on causal relationship with an affirmative check mark, without more, by way of
medical rationale, is insufficient to establish the claim.17 In October 24, 2019 report, Dr. Arnold
noted that he examined appellant and diagnosed laceration of the right eyebrow. He opined that
the encounter was related to appellant’s workers’ compensation claim. However, Dr. Arnold did
not offer medical rationale to explain how or why the accepted employment injury caused or
contributed to appellant’s diagnosed concussion. The Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/disability was related to employment factors.18 As such,
Dr. Arnold’s reports are insufficient to establish additional conditions as causally related to the
accepted employment injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 (a) of FECA19 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.20
To require OWCP to reopen a case for merit review under 5 U.S.C. § 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal

16
See B.C., Docket No. 20-0498 (issued August 27, 2020) (the Board accepted lumbar contusion as causally related
to the accepted employment incident); S.H., Docket No. 20-0113 (issued June 24, 2020) (the Board accepted a right
ankle contusion as causally related to the accepted employment incident); M.A., Docket No. 13-1630 (issued
June 18, 2014).
17

C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued December 31, 2018).

18

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (a report is of limited probative value regarding causal
relationship if it does not contain medical rationale describing the relationship between work factors and a diagnosed
condition/disability).
19

Supra note 1

20

5 U.S.C. § 8128(a).

5

argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.21
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.22 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.23 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration with
regard to his claim that he sustained a concussion causally related to the accepted employment
injury.
Appellant’s April 16, 2020 request for reconsideration did not establish that OWCP
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument not
previously considered by OWCP. Consequently, the Board finds that he is not entitled to a review
of the merits based on either the first or second requirement under 20 C.F.R. § 10.606(b)(3).25
In support of his request, appellant submitted an October 24, 2019 report from Dr. Arnold
who examined him and diagnosed laceration of the right eyebrow. Dr. Arnold noted that the
encounter was related to appellant’s workers’ compensation claim and that his sutures were
removed without complication. Appellant also resubmitted form reports from Dr. Arnold, dated
October 14 and 24, 2019. Providing additional medical evidence that either duplicates or is
substantially similar to evidence of record does not constitute a basis for reopening a case.26 As
appellant did not provide relevant and pertinent new evidence, he is not entitled to a merit based
on the third requirement under 20 C.F.R. § 10.606(b)(3).27

21

20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008)
22

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of its decision for which review is sought. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document
receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b
23

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

24

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

25

Supra note 23.

26

M.O., Docket No. 19-1677 (issued February 25, 2020); Eugene F. Butler, 36 ECAB 393, 398 (1984).

27
S.H., Docket No. 19-1897 (issued April 21, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019);
Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

6

CONCLUSION
The Board finds that appellant has met his burden of proof to establish a laceration causally
related to the accepted October 14, 2019 employment incident. The Board further finds, however,
that appellant has not established that his diagnosed concussion was causally related to the
accepted employment injury and OWCP properly denied appellant’s request for reconsideration
of the merits of his claim with regard to the diagnosed concussion.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2019 and April 3 and 24, 2020
decisions of the Office of Workers’ Compensation Programs are affirmed in part and reversed in
part and the case is remanded for further proceedings consistent with this decision of the Board.28
Issued: February 11, 2021
Washington, DC

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

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

28
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the decision, was no longer
a member of the Board after January 20, 2021.

7


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

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

Docket No. 13-1990
Issued: February 11, 2014

Case Submitted on the Record

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

JURISDICTION
On August 28, 2013 appellant filed a timely appeal from a June 10, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a 50 percent left lower extremity
impairment and a 31 percent right lower extremity impairment, for which she received schedule
awards.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated June 7, 1999, the
Board reversed OWCP’s termination of appellant’s compensation benefits on the grounds that
1

5 U.S.C. § 8101 et seq.

she refused an offer of suitable work.2 On July 26, 2002 the Board reversed OWCP’s
termination of her compensation based on its finding that she had no further employment-related
disability.3 In a decision dated June 21, 2005, the Board affirmed in part and set aside in part a
July 13, 2004 decision finding that appellant received an overpayment of compensation and
denying waiver of recovery of the overpayment.4 The Board determined that OWCP had
incorrectly offset a portion of the overpayment created due to a failure to properly deduct life
insurance premiums. The Board remanded the case for recalculation of the overpayment but
affirmed the denial of waiver of the recovery of the overpayment. The facts and circumstances
as set forth in the prior decisions are hereby incorporated by reference.
By decision dated November 29, 2006, OWCP terminated appellant’s compensation
effective November 29, 2006 after finding that she refused an offer of suitable work under
5 U.S.C. § 8106(c). In a decision dated March 20, 2007, an OWCP hearing representative
reversed the November 29, 2006 termination decision. She remanded the case for OWCP to
refer appellant for a second opinion examination to determine whether she had residuals of her
accepted employment injury. The hearing representative further noted that it appeared OWCP
had accepted right lower traumatic arthropathy as employment related and instructed OWCP to
have the referral physician clarify the exact right lower extremity condition.
In a report dated July 26, 2007, Dr. James F. Bethea, a Board-certified orthopedic
surgeon and OWCP referral physician, diagnosed status post total right knee replacement and left
knee osteoarthritis after three arthroscopies. He stated, “[Appellant] does have ongoing residuals
in her left knee because of the degenerative arthritis there. The residual at the right knee,
apparently required a total knee replacement done about a year ago.” In an August 7, 2007
supplemental report, Dr. Bethea advised that appellant’s “right lower traumatic arthropathy
condition is resolved because about a year ago she underwent a right total knee replacement.”
Based on Dr. Bethea’s opinion, OWCP expanded acceptance of the claim to include left
knee osteoarthritis.
On June 11, 2010 OWCP referred appellant to Dr. Robert M. Moore, a Board-certified
orthopedic surgeon, for a second opinion examination regarding the extent of an impairment of
the bilateral knees. In a report dated August 5, 2010, Dr. Moore indicated that appellant had
accepted work injuries of the bilateral knees. He discussed her complaints of right and left knee
pain and listed findings on examination. Dr. Moore reviewed x-rays showing advanced
osteoarthritis of the left knee “with complete loss of medial joint cartilage space and extensive
osteophyte formation” and x-rays of the right knee showing a total knee arthroplasty. He
diagnosed advanced osteoarthritis of the left knee and status post right knee arthroplasty due to
2

Docket No. 04-2056 (issued June 21, 2005). OWCP accepted that appellant, then a 34-year-old letter carrier,
sustained left knee sprain, a tear of the left posterior horn meniscus, a left medial meniscal tear and localized
primary osteoarthritis of the left knee on December 2, 1992 in the performance of duty. She stopped work on
December 3, 1992 and did not return.
3

Docket No. 02-159 (issued July 26, 2002); petition for recon. denied, Docket No. 02-159 (issued
January 10, 2003).
4

Docket No. 04-2056 (issued June 21, 2005).

2

osteoarthritis. For the left knee, Dr. Moore identified the diagnosis as class 4 arthritis according
to the knee regional grid set forth at Table 16-3 on page 511 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides),
which yielded a default value of 50 percent. He applied grade modifiers of 3 for functional
history, 2 for physical examination and 4 for clinical studies, to find a total left lower extremity
impairment of 50 percent. For the right knee, Dr. Moore identified the diagnosis as a class 3
total knee replacement according to Table 16-3 on page 511 of the knee regional grid, for a
default value of 37 percent. He applied grade modifiers of 2 for functional history and physical
examination and 1 for clinical studies, to find a final right lower extremity impairment of 31
percent.
In a report dated August 11, 2010, an OWCP medical adviser related that Dr. Moore
provided “a clear and objective review of the knee problems” but found that his impairment
rating was not sufficiently explained. In accompanying impairment worksheets, he applied the
net adjustment formula to Dr. Moore’s findings and determined that appellant had a 50 percent
left lower extremity impairment and 31 percent right lower extremity impairment.
By decision dated March 17, 2011, OWCP granted appellant a schedule award for a 50
percent permanent impairment of the left lower extremity and a 31 percent permanent
impairment of the right lower extremity. The period of the award ran for 233.28 weeks from
February 13, 2011 to August 3, 2015.
On April 15, 2011 appellant requested a review of the written record by an OWCP
hearing representative. Following a preliminary review of the record, in a decision dated
June 27, 2011, OWCP’s hearing representative set aside the March 17, 2011 decision. She noted
that in referring appellant to Dr. Bethea OWCP did not specify what portion of the right leg the
accepted condition of arthropathy was referring to. The hearing representative noted that
OWCP’s medical adviser found Dr. Moore’s grade modifiers insufficiently explained. She
further found that OWCP had not specifically determined whether appellant’s right knee
condition or right knee placement surgeries were causally related to her December 3, 1992 work
injury. The hearing representative remanded the case to OWCP to consider whether appellant
“has submitted sufficient medical evidence to support her right knee condition is related to the
December 3, 1992 work injury either by direct cause or as a consequence of the left knee injury
with subsequent surgeries.” After this determination, she instructed OWCP to prepare an
updated statement of accepted facts and ask Dr. Moore to explain finding of grade modifiers.
OWCP prepared a March 16, 2012 statement of accepted facts listing the accepted
conditions as a left knee sprain, a tear of the left knee posterior horn meniscus and left knee
localized primary osteoarthritis. It indicated that it had not accepted that she sustained a right
knee medial meniscus tear or the right knee arthroplasty in 2006 and revision in 2010 as work
related.
On April 4, 2012 OWCP referred appellant to Dr. Dowse D. Rustin, a Board-certified
orthopedic surgeon, for a second opinion regarding whether appellant sustained traumatic
arthropathy of the right lower leg due to her work injury and, if so, to specify the part of the
lower leg. It further requested an opinion on whether she had residuals of her accepted work
injury. In a report dated April 12, 2012, Dr. Rustin advised that appellant sustained right lower

3

extremity arthropathy of the knee as a consequence of her December 3, 1992 work injury. He
further found that she had continued disability as a result of her work injury. In a supplemental
report dated May 16, 2012, Dr. Rustin opined that appellant sustained a bilateral ankle condition
due to weight gain.
On May 10, 2012 OWCP expanded acceptance of appellant’s claim to include right knee
arthropathy.
In a letter dated November 18, 2012, appellant requested expansion of her claim to
include left ankle, hip and hand conditions and a schedule award for her right ankle. By letter
dated December 17, 2012, OWCP informed her that the medical evidence did not establish that
she had a greater impairment than that awarded by decision dated March 17, 2011. On
December 17, 2012 appellant requested a review of the written record on the December 17, 2012
letter. On February 1, 2013 OWCP advised her that as the December 17, 2012 letter was not a
final decision, she could not receive a review of the written record based on the correspondence.
On April 12, 2013 an OWCP medical adviser reviewed the record and found no evidence
supporting a “revision of the impairment rating.”
By letter dated April 26, 2013, OWCP referred appellant to Dr. Moore for an impairment
evaluation. In a report dated May 23, 2013, Dr. Moore diagnosed advanced osteoarthritis of the
left knee and right knee pain following a total arthroplasty. For the left knee, he identified the
diagnosis as class 4 knee arthritis with a cartilage interval of zero using Table 16-3 on page 511,
which yielded a default impairment of 50 percent. Dr. Moore applied a grade modifier of 3 for
functional history due to appellant’s use of a walker and brace and a grade modifier of 2 for
physical examination findings of “mild loss of range of motion and moderate palpatory
findings.” He determined that a grade modifier for clinical studies was not applicable as the
cartilage interval finding was used in identifying the diagnosis. Dr. Moore stated, “The grade
modifiers adjust the grade to A, which according to Table 16-3 corresponds to [a] left lower
extremity impairment of 50 percent.”
For the right knee, Dr. Moore used the diagnosis of a class 3 total knee replacement set
forth in Table 16-3 of the knee regional grid, for a default value of 37 percent. He applied a
grade modifier of 2 for functional history based on appellant’s limp and use of a gait aid, and a
grade modifier of 2 for physical examination findings of a “moderate loss of range of motion and
palpatory findings.” Dr. Moore used a grade modifier of 1 for clinical studies based on the
“satisfactory position of prosthetic knee components.” After applying grade modifiers to the
default value, he concluded that appellant had a total right lower extremity impairment of 31
percent.
On June 3, 2013 an OWCP medical adviser reviewed Dr. Moore’s report and noted that
his findings duplicated that of his August 5, 2010 report. He related that based on Dr. Moore’s
impairment rating there was no basis for an increased schedule award.
By decision dated June 10, 2013, OWCP found that appellant had no more than the
previously awarded 50 percent impairment of the left lower extremity and 37 percent impairment
of the right lower extremity.

4

On appeal appellant indicates that Dr. Rustin found that she was totally and permanently
disabled and that she had written OWCP requesting information about obtaining compensation.
She asserted that OWCP failed to rate her right ankle impairment and requested a final decision
on that issue. Appellant requests that the Board decide whether she is entitled to compensation
for total disability and whether she is entitled to a schedule award for the right ankle.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that appellant sustained left knee sprain, a tear of the left posterior horn
meniscus, a left medial meniscal tear, localized primary osteoarthritis of the left knee and right
knee arthropathy due to a December 3, 1992 employment injury. It referred her to Dr. Moore to
determine the extent of any impairment of the knees. In a report dated August 5, 2010,
Dr. Moore diagnosed advanced osteoarthritis of the left knee and status post right total knee
replacement. He interpreted x-rays of the left knee as showing the “complete loss of medial joint
cartilage space.” Dr. Moore found that appellant had 31 percent right knee impairment and a 50
percent left knee impairment. In a decision dated March 17, 2011, OWCP granted her a
schedule award for a 50 percent left lower extremity impairment and a 31 percent right lower
extremity impairment; however, on June 27, 2011 an OWCP hearing representative set aside the
March 17, 2011 schedule award determination. Appellant determined that Dr. Moore had not
sufficiently explained his grade modifiers and further found that the case required further
development regarding whether she sustained a right lower extremity condition causally related
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides 494-531.

5

to her accepted work injury. Based on the opinion of Dr. Rustin, an OWCP referral physician, it
accepted right knee arthropathy as a consequential injury.
In an impairment evaluation dated May 23, 2013, Dr. Moore diagnosed a right knee total
arthroplasty and advanced left knee osteoarthritis. For the left knee, he identified the diagnosis
of class 4 knee arthritis based on x-ray evidence showing no cartilage interval using Table 16-3
of the A.M.A., Guides, which yielded a default value of 50 percent. Dr. Moore found a grade
modifier of 3 for functional history based on appellant’s use of a walker, a grade modifier of 2
for physical findings of loss of range of motion and that a grade modifier for clinical studies was
not applicable as it was used to identify the diagnosis. He utilized the net adjustment formula,
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (3-4) + (2-4) = -3, which yielded an
adjustment impairment rating of 50 percent for the left lower extremity.
For the right knee, Dr. Moore identified the diagnosis as a class 3 total knee replacement
using the knee regional grid at Table 16-3, which provided a default impairment of 37 percent.
He found a grade modifier of 2 for functional history based on appellant’s use of a gait aid, a
grade modifier of 2 for physical examination due to loss of motion and a grade modifier of 1 for
clinical studies showing a satisfactory result. Using the net adjustment formula, (GMFH-CDX)
+ (GMPE-CDX) + (GMCS-CDX), or (2-3) + (2-3) + (1-3) = -4, for an adjustment impairment
rating of 37 percent of the right lower extremity. An OWCP medical adviser reviewed
Dr. Moore’s report and concurred with his finding. Appellant has submitted no evidence
showing that she has more than a 50 percent left lower extremity impairment and a 31 percent
right lower extremity impairment.
On appeal appellant asserts that Dr. Rustin’s opinion established that she is totally
disabled and requests compensation for disability. Disability for work under section 8105 of
FECA is not a factor included in a schedule award impairment rating under section 8107. A
schedule award is not intended to be compensation for wage loss or potential wage loss and is
made without regard to whether or not there is a loss of wage-earning capacity resulting from the
injury or its effects upon employment or social opportunities.10 Further, the Board’s jurisdiction
is limited to reviewing final adverse decisions of OWCP issued under FECA.11 OWCP has not
issued a final decision regarding any claim for compensation for total disability. Thus, it is not
before the Board at this time.
Appellant also argues that she is entitled to a schedule award for her ankle condition
based on Dr. Rustin’s opinion. OWCP, however, has not accepted that she sustained an ankle
injury as a consequence of her December 3, 1992 work injury. Further, as there is no final
decision on this issue, the Board has no jurisdiction over this matter.12

10

Renee M. Straubinger, 51 ECAB 667 (2000).

11

20 C.F.R. § 501.2(c).

12

Id.

6

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 50 percent left lower extremity
impairment and a 31 percent right lower extremity impairment, for which she received schedule
awards.
ORDER
IT IS HEREBY ORDERED THAT the June 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Antonio, TX, Employer
__________________________________________

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

Docket No. 15-62
Issued: June 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 14, 2014 appellant filed a timely appeal from a June 23, 20141 merit decision
of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal
Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established binaural hearing loss or tinnitus causally
related to his federal employment.
1

Appellant stated that he was appealing an October 2, 2014 OWCP decision. The Board notes, however, that the
record does not contain an adverse final decision issued by OWCP on that date.
2

Appellant filed a timely request for oral argument. By order dated April 23, 2015, the Board, after exercising its
discretion, denied his request on the grounds that his arguments could be adequately addressed in a decision based
on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-62 (issued
April 23, 2015).
3

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that he has hearing loss with severe ringing in his ears and
that his tinnitus was worse than most due to his history of firearms usage. He further contends
that the decision not to rate tinnitus by itself should be determined on an individual basis as his
tinnitus is worse than the same condition in Juan A. Trevino.4
FACTUAL HISTORY
On April 17, 2012 appellant, then a 54-year-old supervisory special agent, filed an
occupational disease claim alleging that on April 5, 2012 he first became aware of his hearing
loss and first realized that his condition was caused or aggravated by his federal employment. In
an April 17, 2012 narrative statement, he contended that his hearing had been declining for the
past several years and it caused difficulties with his professional and personal life.
Appellant provided a history of his noise exposure while working approximately 31 years
at the employing establishment. In 1981, he started work as a border patrol agent and claimed
that proper ear protection was not available when he had to qualify at a shooting range every
quarter. In 1983, appellant became a customs inspector and was exposed to loud noise from
tractor trailers, buses, other vehicles at a port of entry, and airplanes. He worked as a firearms
instructor from 1985 through April 2005 and he was responsible for qualifying approximately 85
customs inspectors every quarter at a pistol range. In January 1987, appellant became a customs
criminal investigator and continued to qualify agents using various firearms on a quarterly basis.
He did not stop work following the filing of his occupational disease claim.
Appellant submitted an April 6, 2012 annual audiogram.
By letter dated April 27, 2012, OWCP informed appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit factual evidence in support of
his claim. OWCP also requested that the employing establishment respond to appellant’s
allegations and provide a copy of all medical examinations pertaining to his hearing or ear
problems, including any preemployment examinations and audiograms.
In a May 3, 2012 statement, appellant reiterated a history of his employment at the
employing establishment and noted his military service from May 30, 1975 to May 30, 1980. He
related that he was still exposed to hazardous noise at work and that his hearing loss had
worsened. Appellant had no hobbies which exposed him to loud noise.
In a statement also dated May 3, 2012, Scott Torpey, an assistant special agent in charge,
concurred with appellant’s statements and allegations. He related that appellant was exposed to
loud noise from the discharge of various calibers of firearms at close proximity approximately
five hours a day, every three months during firearms qualifications. Appellant was given
government-issued earmuffs. Mr. Torpey related that appellant would continue to be exposed to
loud noise from various weapons during firearms qualification every quarter.
In an April 22, 2012 medical report, Dr. Fred Rosenberg, an osteopath, advised that an
audiogram showed abnormal baseline hearing. He further advised that appellant’s performance
was outside the normal range. Dr. Rosenberg stated that no prior audiograms were available for
4

54 ECAB 358 (2003) (the Board found that, as appellant did not have a ratable hearing loss, he was not entitled
to a schedule award even though he had a percentage of hearing loss due to tinnitus).

2

comparison.
He recommended a complete evaluation of appellant’s hearing by an
otolaryngologist or audiologist.
By letter dated September 20, 2012, OWCP referred appellant, together with a statement
of accepted facts and the medical record, to Dr. William C. Smith, a Board-certified
otolaryngologist, for a second opinion evaluation. In an October 8, 2012 report, Dr. Smith noted
that he evaluated appellant. Regarding appellant’s history, he stated that he did not have any
data about appellant’s hearing at the beginning of his significant noise exposure in federal
civilian employment. An October 8, 2012 audiogram, with an attached calibration certificate,
showed hearing levels at 500, 1,000, 2,000, and 3,000 hertz (Hz) respectively of 100, 105, 95,
and 100 decibels (dB) on the right and 90, 90, 90, and 95 dB on the left. Dr. Smith reported that
the current audiometric findings were unreliable. During his audiological evaluation, appellant
had to be reinstructed several times due to inconsistent responses. He was asked repeatedly to
respond by pressing a button when he heard the beeps, even if they were very soft, barely there,
or sounded like they were very far away. Speech reception testing was performed and appellant
responded at a level well below the level at which he claimed to hear the tones. Dr. Smith stated
that correctly identifying speech was more complicated than responding to pure tones, and, thus,
he should not have been able to respond to speech at a lower level. Other testing also revealed
that hearing was better than reported. Dr. Smith opined that the described workplace exposure
was sufficient as to intensity and duration to have caused sensorineural hearing loss. He set forth
findings on examination and stated that he could not make a diagnosis due to appellant’s
inconsistent responses. Dr. Smith found no symptoms or signs related to either an acoustic
neuroma or Ménière’s disease. He advised that it was at least more likely than not that appellant
had normal or near normal hearing based on his speech reception threshold and word reception
score. Dr. Smith determined that he had reached maximum medical improvement on the date of
his examination. He recommended reevaluation in one month to see if more accurate thresholds
could be obtained. Dr. Smith stated that, if appellant’s evaluation still had poor reliability, it may
be necessary to obtain auditory brainstem response testing with a latency intensity search and
otoacoustic emissions testing.
On October 18, 2012 OWCP’s medical adviser reviewed Dr. Smith’s October 8, 2012
findings. He stated that Dr. Smith’s recommendation for auditory brainstem response testing
should be approved.
On February 6, 2013 appellant underwent auditory testing performed by an audiologist,
who found the test data difficult to analyze because appellant had caffeine approximately one to
two hours before testing. The audiologist noted that caffeine could significantly decrease the
latency of the Wave I, III, V, and I-V interpeak interval.
On March 8, 2013 Dr. Henry Mobley, a Board-certified internist serving as an OWCP
medical adviser, reviewed the audiologist’s February 6, 2013 report. He stated that this report
did not meet OWCP requirements for a probative determination. Dr. Mobley noted that its
regulations dictated that a schedule award for hearing loss be determined by a valid pure tone
audiometry (PTA) and an evaluation by a Board-certified otologist. He noted that it was a
claimant’s responsibility to present a valid physician’s evaluation and audiometry to OWCP.
Dr. Mobley concluded that a probative schedule award could not be determined by an evaluation
that was of questionable validity. He recommended that appellant be asked to submit the
necessary information for a probative determination.
3

By letter dated April 29, 2013, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. John D. Edwards, a Board-certified
otolaryngologist, for another second opinion evaluation. In a May 21, 2013 report, Dr. Edwards
noted that he evaluated appellant to determine whether he had hearing loss secondary to loud
noise exposure during his federal employment. Regarding appellant’s history, he stated that he
did not have any data about appellant’s hearing at the beginning of his significant noise exposure
in federal civilian employment. A May 21, 2013 audiogram, with an attached calibration
certificate, showed hearing levels at 500, 1,000, 2,000, and 3,000 Hz, respectively of 10, 15, 15,
and 20 dB on the right and 10, 15, 15, and 15 dB on the left. Dr. Edwards stated that current
audiometric findings revealed a pure tone average of 14 dB on the left and 15 dB on the right.
Speech reception threshold was 20 dB on the left and 15 dB on the right. The word recognition
score was 100 percent. There was type A tympanogranis with present ipsi lateral and
contralateral reflexes bilaterally. Dr. Edwards advised that the audiogram was within normal
limits. Appellant was above 20 dB at all frequencies on both sides. Dr. Edwards opined that he
had workplace exposure for hearing loss, but he did not have any sensorineural hearing loss
based on current audiometric findings. He set forth findings on examination and found no
medical conditions, such as acoustic neuroma or Ménière’s disease. Dr. Edwards diagnosed
bilateral tinnitus and normal hearing. He noted that appellant denied dizziness or vertigo.
Hearing aids were not recommended.
On August 22, 2013 Dr. Mobley reviewed the statement of accepted facts and
Dr. Edwards’ May 21, 2013 findings. He advised that the date of maximum medical
improvement was May 21, 2013, the date of Dr. Edwards’ examination. Dr. Mobley noted that
the May 21, 2013 PTA was used because it was the most recent, it met all OWCP standards, and
it was an integral part of the evaluation of the consulting otologist. Based on the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment and
Dr. Edwards’s reports, he determined that the calculated binaural hearing loss was zero percent.
Dr. Mobley concluded that there was no measurable hearing loss.
In a September 17, 2013 decision, OWCP denied appellant’s hearing loss claim. It found
that Dr. Edwards’ opinion constituted the weight of the evidence and established that he did not
have hearing loss or tinnitus due to his accepted employment-related noise exposure.
On September 24, 2013 appellant requested an oral hearing before an OWCP hearing
representative.
In a June 23, 2014 decision, the hearing representative affirmed the September 17, 2013
decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA5 has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence,6 including that he or she is an employee within the meaning of FECA and that he or
5

Id.

6

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

she filed his or her claim within the applicable time limitation.7 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10
OWCP procedures set forth requirements for the medical evidence used in evaluating
hearing loss. These include that the employee undergo both audiometric and otologic
examination; that the audiometric testing be performed by an appropriately certified audiologist;
that the otologic examination be performed by an otolaryngologist certified or eligible for
certification by the American Academy of Otolaryngology and that the audiometric and otologic
examination be performed by different individuals as a method of evaluating the reliability of the
findings. Further, all audiological equipment authorized for testing meet the calibration protocol
contained in the accreditation manual of the America Speech and Hearing Association; that the
audiometric test results include both bone conduction and pure tone air conduction thresholds,
speech reception thresholds and monaural discrimination scores. The otolaryngologist’s report is
to include: date and hour of examination, date and hour of employee’s last exposure to load
noise, a rationalized medical opinion regarding the relation of the hearing loss to the
employment-related noise exposure and a statement of the reliability of the tests.11 The
physician should be instructed to conduct additional tests or retests in those cases where the
initial tests were inadequate or there is reason to believe that the claimant is malingering.12

7

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
8

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

9

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

10

See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 345 (1989).

11

Id.

12

Luis M. Villanueva, 54 ECAB 666 (2003). See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Requirements for Medical Reports, Chapter 3.600.8(a) (September 1995).

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ANALYSIS
The record supports that appellant was exposed to occupational noise as a supervisory
special agent. The Board finds, however, that the medical evidence does not establish that his
hearing loss is causally related to the accepted employment-related noise exposure.
The Board finds that the weight of medical opinion is represented by Dr. Edwards,
OWCP second opinion specialist. In his May 21, 2013 report, Dr. Edwards advised that the
audiogram of the same date showed no evidence of sensorineural hearing loss. He found that
appellant had normal hearing. Dr. Edwards stated that, while he had workplace exposure for
hearing loss, he did not have any sensorineural hearing loss based on his current audiometric
findings. He explained that the audiogram was normal and that appellant was above 20 dB at all
frequencies on both sides. The Board finds that Dr. Edwards’ opinion establishes that appellant
did not meet his burden of proof to establish that he sustained hearing loss due to exposure to
noise in the workplace.13 Further, although Dr. Edwards diagnosed bilateral tinnitus, he did not
opine that this condition was caused by appellant’s work-related noise exposure.
The April 6, 2012 audiogram indicated that it was obtained by a registered nurse. This
audiogram is insufficient to establish appellant’s burden of proof as it does not comply with the
requirements set forth under OWCP. It lacks speech testing and bone conduction scores and it
was not prepared or certified as accurate by a physician as defined by FECA. The Board notes
that a registered nurse is not included among the health care professionals recognized as
physicians under FECA.14 The audiogram was not accompanied by a physician’s opinion
addressing how appellant’s employment-related noise exposure caused or aggravated any
hearing loss. It is appellant’s burden to submit a properly prepared and certified audiogram to
OWCP.15 OWCP was not required to rely on this evidence in determining the degree of
appellant’s hearing loss as it failed to constitute competent medical evidence.16
Dr. Rosenberg’s April 22, 2012 report found that appellant had abnormal baseline
hearing. His report, however, offered no opinion regarding the cause of his hearing loss.
Medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.17

13

See R.J., Docket No. 11-1644 (issued February 14, 2012); J.L., Docket No. 07-1740 (issued
December 20, 2007).
14

See Vincent Holmes, 53 ECAB 468 (2002). See also Section 8101(2) of FECA which provides that physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2).
15

See R.B., Docket No. 10-1512 (issued March 24, 2011); Robert E. Cullison, 55 ECAB 570 (2004); Vincent
Holmes, supra note 14 (OWCP does not have to review audiograms not certified by a physician and it is the
claimant’s burden to submit a properly certified audiogram for review if he objects to the audiogram selected by
OWCP for determining the degree of hearing loss).
16

Id. See also H.M., Docket No. 13-1061 (issued July 29, 2013); M.T., Docket No. 12-1294 (issued
December 6, 2012).
17

S.E., Docket No. 08-2214 (issued May 6, 2009); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200
(2004); Michael E. Smith, 50 ECAB 313 (1999).

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On appeal, appellant contended that he had hearing loss with severe ringing in his ears
and that his tinnitus was worse than most due to his history of firearms usage. He further
contended that the decision not to rate tinnitus by itself should be determined on an individual
basis as his tinnitus was worse than the same condition in Juan A. Trevino.18 Appellant did not
submit a rationalized medical opinion establishing a causal relationship between his accepted
employment-related noise exposure and his hearing loss. Therefore, he has failed to meet his
burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained binaural hearing
loss or tinnitus causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

18

Supra note 4.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.K., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fitchburg, MA, Employer
__________________________________________

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

Docket No. 07-62
Issued: March 12, 2007

Case Submitted on the Record

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

JURISDICTION
On October 6, 2006 appellant filed a timely appeal from a July 10, 2006 Office of
Workers’ Compensation Programs’ nonmerit decision. Because more than one year has elapsed
between the most recent merit decision of June 27, 2005 and the filing of this appeal, the Board
lacks jurisdiction to review the merits of her claim pursuant to 20 C.F.R. §§ 501(c)(2)
and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 34-year-old data transcriber, injured her right arm on March 9, 1999 while
keying a computer. She filed a claim for benefits on March 11, 1999, which the Office accepted

for right forearm tendinitis and bilateral thoracic outlet syndrome. Appellant has not worked
since April 25, 1999. The Office paid appropriate compensation for temporary total disability.
The Office determined that there was a conflict in the medical evidence and referred
appellant to Dr. Osama A. Al-Masri, Board-certified in orthopedic surgery, for an impartial
medical examination. In a November 8, 2001 report, Dr. Al-Masri stated that appellant appeared
healthy and in no acute pain on examination. He related that appellant’s range of motion showed
no restriction and pain. Dr. Al-Masri found normal strength in the upper extremities, with no
muscle atrophy, sensory deficits or weakness of any major muscle group. He stated that
appellant did not seem to experience any symptoms related to her employment injury.
Dr. Al-Masri did not see any residual problems stemming from her overuse injury, which had
resolved. He advised that there were no objective symptoms to substantiate any type of residual
difficulty. Dr. Al-Masri concluded that appellant could return to any type of employment.
By decision dated October 3, 2002, the Office terminated appellant’s compensation.
By letter dated November 24, 2002, appellant requested an oral hearing, which was held
on June 26, 2003.
By decision dated September 12, 2003, an Office hearing representative affirmed the
October 3, 2002 decision.
In a letter received by the Office on March 28, 2005, appellant requested reconsideration.
By decision dated June 27, 2005, the Office denied modification of the September 12,
2003 Office decision.
By letter dated March 21, 2006, appellant requested reconsideration. Appellant stated in
the letter that “enclosed you will find the appeal request form and ‘relevant new evidence’ that is
needed to appeal this decision.” The Office did not receive any additional evidence from
appellant.
By decision dated July 10, 2006, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by constituting
relevant and pertinent evidence not previously considered by the Office.1 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.2
1

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

2

Howard A. Williams, 45 ECAB 853 (1994).

2

ANALYSIS
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law. She has not advanced a relevant legal argument not
previously considered by the Office. Appellant did not submit any new medical evidence in
connection with her March 21, 2006 reconsideration request which addresses the underlying issue
of whether she is disabled or still has residuals from her accepted condition. Although she stated
in her letter that she was enclosing new, relevant evidence in support of her request, she did not
submit any materials with her letter. Appellant’s reconsideration request failed to show that the
Office erroneously applied or interpreted a point of law nor did it advance a point of law or fact
not previously considered by the Office. The Office did not abuse its discretion in refusing to
reopen appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 10, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 12, 2007
Washington, DC

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

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

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

3