United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gretna, LA, Employer
__________________________________________

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

Docket No. 11-1586
Issued: March 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 20, 2011 appellant filed a timely appeal from a December 22, 2010 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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than a 20 percent permanent impairment of
the right lower extremity for which she received a schedule award.
FACTUAL HISTORY
On October 29, 2000 appellant, then a 31-year-old window clerk, filed a Form CA-2 for
an occupational disease for a swollen right knee. OWCP accepted the claim for aggravation of

1

5 U.S.C. § 8101 et seq.

preexisting right knee synovitis and popliteal cyst.2 An August 10, 2009 magnetic resonance
imaging scan obtained by Dr. John M. Vitter, a Board-certified radiologist, exhibited right knee
osteoarthritis, complex lateral meniscal tear, grade 2 linear intrameniscal signal in the posterior
horn of the medial meniscus, grade 1 medial collateral ligament strain, joint effusion and
septated popliteal cyst.3
Appellant filed a claim for a schedule award on October 30, 2009.4 On November 10,
2009 OWCP advised her of the medical evidence needed to establish permanent impairment. On
July 14, 2010 appellant asked that it refer her for an impairment rating.
OWCP referred appellant for a second opinion examination to Dr. Christopher E. Cenac,
a Board-certified orthopedic surgeon. In October 20 and 28, 2010 reports, Dr. Cenac noted
examining appellant on October 20, 2010 and reviewed the statement of accepted facts and
medical file. He observed an antalgic limp, valgus deformity, moderate crepitance and limited
active extension on examination. X-rays confirmed tricompartmental osteoarthritic changes and
a two-millimeter cartilage interval in the lateral compartment. Applying Table 16-3 (Knee
Regional Grid) on page 511 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment5 (hereinafter A.M.A., Guides), Dr. Cenac assigned an impairment class
diagnosed condition (CDX) of two with a default grade of C for right primary knee joint arthritis
involving a two-millimeter cartilage interval. In view of appellant’s antalgic limp as well as
moderate crepitance and deformity, he selected a grade modifier value of 2 for Functional
History (GMFH) and Physical Examination (GMPE), respectively.6 Dr. Cenac also scored 2 for
Clinical Studies (GMCS) based on the cartilage interval.7 Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX) or (2 - 2) + (2 - 2) + (2 - 2), he calculated a
net adjustment of zero. Dr. Cenac concluded that appellant had a class 2, grade C impairment of
the right lower extremity, which amounted to a rating of 20 percent.8
In July 29 and November 1, 2010 reports, Dr. Bertha H. Daniels, a family practitioner,
related that appellant experienced right knee pain. On examination, she observed crepitance,
effusion and medial and lateral tenderness.9
On December 6, 2010 OWCP’s medical adviser evaluated the medical evidence. After
applying the same tables and grading schemes set forth in the A.M.A., Guides, he agreed that
2

Also, on October 22, 2009 OWCP accepted appellant’s claim for a June 21, 2007 recurrence.

3

The foregoing information was incorporated into a July 21, 2010 statement of accepted facts.

4

Appellant retired effective October 31, 2009.

5

A.M.A., Guides (6th ed. 2008).

6

Id. at 516-17, Tables 16-6 and 16-7.

7

Id. at 519, Table 16-8.

8

See infra note 10.

9

Dr. Daniels also noted left knee symptoms. A left knee condition is not presently before the Board.

2

appellant sustained a 20 percent permanent impairment of the right leg.10 The medical adviser
listed October 20, 2010 as the date of maximum medical improvement.
By decision dated December 22, 2010, OWCP granted a schedule award for 20 percent
permanent impairment of the right lower extremity for the period October 20, 2010 to
November 27, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.11 However, FECA does
not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.12
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the CDX,
which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.13
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the accepted
employment injury. The Board has explained that maximum medical improvement means that
the physical condition of the injured member of the body has stabilized and will not improve
further. The determination of whether maximum medical improvement has been reached is
based on the probative medical evidence of record and is usually considered to be the date of the
evaluation by the attending physician which is accepted as definitive by OWCP.14
10

Table 16-8 of the A.M.A., Guides provides that a score for GMCS based on the cartilage interval demonstrated
by x-ray must not be used if the cartilage interval is used initially to determine CDX. A.M.A., Guides, supra note 5,
at 519. OWCP’s medical adviser pointed out that Dr. Cenac had considered appellant’s two-millimeter cartilage
interval in assigning CDX and, therefore, should not have selected a value for GMCS on the same basis. His net
adjustment calculation correctly omitted Dr. Cenac’s GMCS score, which did not ultimately affect the impairment
rating.
11

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

12

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
13

R.V., Docket No. 10-1827 (issued April 1, 2011).

14

Mark A. Holloway, 55 ECAB 321, 325 (2004).

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ANALYSIS
The Board finds that OWCP properly determined appellant’s permanent impairment of
her right leg. OWCP accepted the claim for aggravation of preexisting right knee synovitis and
popliteal cyst. After appellant claimed a schedule award, it referred her to Dr. Cenac for an
impairment evaluation.
In his October 20 and 28, 2010 reports, Dr. Cenac noted appellant’s history and findings
on examination. He advised that x-rays confirmed tricompartmental osteoarthritic changes and a
two-millimeter cartilage interval in the lateral compartment. As noted, Dr. Cenac advised that
under Table 16-3 (Knee Regional Grid) on page 511 of the A.M.A., Guides, appellant had a
default impairment rating of 20 percent of the right leg and that, after applying grade modifiers
to the net adjustment formula, there was no adjustment to the default rating of 20 percent
impairment.
OWCP’s medical adviser reviewed Dr. Cenac’s findings and also applied the appropriate
tables and grading schemes of the A.M.A., Guides. He clearly detailed how he calculated
appellant’s impairment rating and essentially concurred with Dr. Cenac’s rating. As noted, the
A.M.A., Guides classifies the lower extremity impairment by diagnosis, which is then adjusted
by grade modifiers.15 In this case, based on a review of Dr. Cenac’s examination findings, the
medical adviser applied Table 16-3 and assigned a CDX of 2 with a default grade of C for right
primary knee joint arthritis involving a two-millimeter cartilage interval that was confirmed by
x-rays. He then selected a grade modifier value of 2 for both GMFH and GMPE, citing
appellant’s antalgic limp for the former and right knee crepitance and deformity for the latter.
As the net adjustment formula of (GMFH - CDX) + (GMPE - CDX) or (2 - 2) + (2 - 2), yielded
0, the medical adviser found that modification of the default grade was unnecessary and
established that appellant sustained a 20 percent permanent impairment of the right leg. There is
no other medical evidence, in conformance with the A.M.A., Guides, supporting a greater
percentage of impairment.
Appellant contends on appeal that the schedule award should have covered a longer
period of time starting as early as January 2001. When loss of use of a scheduled member or
function of the body is less than 100 percent, the amount of compensation paid is in proportion to
the percentage of loss of use.16 Under FECA, the maximum award for permanent lower
extremity impairment is 288 weeks of compensation.17 Since appellant’s loss was 20 percent,
she was entitled to 20 percent of 288 weeks, which amounted to 57.6 weeks or approximately
403 days. Her schedule award ran from October 20, 2010 to November 27, 2011, which spanned
403 days. Regarding when a schedule award commences, the date of maximum medical
improvement is proper. This date is usually the date of the medical examination that established
the extent of the impairment.18 Here, Dr. Cenac conducted such an examination on
15

R.V., supra note 13.

16

5 U.S.C. § 8107(c)(19).

17

Id. at § 8107(c)(2).

18

See P.C., 58 ECAB 539 (2007); Richard Larry Enders, 48 ECAB 184 (1996).

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October 20, 2010. Thus, OWCP correctly determined both the duration and the beginning of the
period covered by the schedule award. While appellant asserts that her impairment compelled
her to adopt a sedentary lifestyle, factors such as limitations on daily activities have no bearing
on the calculation of a schedule award.19
The Board notes that appellant submitted new evidence after issuance of the
December 22, 2010 decision. The Board lacks jurisdiction to review evidence for the first time
on appeal.20 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 did not sustain more than a 20 percent permanent
impairment of the right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

Kimberly M. Held, 56 ECAB 670 (2005).

20

20 C.F.R. § 501.2(c).

5


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2046
Issued: March 28, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 5, 2006 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated September 21, 2005 and March 28 and June 7, 2006
which denied her claim for a schedule award. 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 appellant met her burden of proof to establish that she has an upper
extremity impairment caused by her accepted back conditions which would entitle her to a
schedule award.
FACTUAL HISTORY
On December 20, 1995 appellant, then a 36-year-old letter carrier, sustained a traumatic
injury when she slipped and fell on ice while in the performance of her federal duties. The claim
was accepted for lumbosacral sprain/strain, neck sprain/strain, dislocation lumbar vertebral, left
intervertebral disc disorders, brachial neuritis or radiculitis and thoracic or lumbosacral neuritis

or radiculitis. Appellant stopped work on December 21, 1995 and returned to a permanent
modified-duty position on November 24, 1997. She came under the care of Dr. William R.
Atkins, Jr., a physiatrist, who performed electromyography (EMG) of the lower extremities on
March 1, August 23 and December 16, 1996 and April 14, 1997. Dr. Atkins interpreted the
studies as abnormal, consistent with ongoing left L5 radiculopathy. Magnetic resonance imaging
(MRI) scan of the cervical spine on March 14, 1996 was normal. Left upper extremity EMG
studies dated March 10 and July 29, 1997, July 19, 1999 and July 17, 2000 were interpreted by
Dr. Atkins as abnormal with ongoing left C5 radiculitis and no evidence of peripheral
polyneuropathy or myopathy. On March 12, 2003 he advised that appellant had reached
maximum medical improvement (MMI) and opined that she could no longer perform the duties
of a mail carrier.
On August 30, 2004 appellant filed a schedule award claim. In a June 10, 2004 report,
Dr. Nicholas Diamond, an osteopath, noted the history of injury and provided findings on
examination. He diagnosed left C5 radiculitis, left L5 radiculitis, lumbar disc syndrome with
central herniated discs at L4-5 and L5-S1, chronic cervical and lumbosacral strain and sprain,
chronic pain syndrome secondary to above and post-traumatic cephalalgia. Dr. Diamond advised
that appellant had reached MMI and, in accordance with the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides),1 had a right upper extremity impairment of 2 percent due to loss of shoulder motion and
a left upper extremity impairment totaling 28 percent due to loss of grip strength, a left C5
sensory deficit and a pain-related impairment. In an August 30, 2004 report, Dr. Atkins advised
that he agreed that appellant had a 2 percent impairment of her right upper extremity and a 28
percent impairment of her left upper extremity. In a September 9, 2004 report, an Office medical
adviser reviewed Dr. Diamond’s report and opined that, pursuant to the A.M.A., Guides,
appellant had a six percent right upper extremity impairment. Appellant retired on disability in
November 2004.
By letter dated December 21, 2004, the Office referred appellant to Dr. Andrew J.
Gelman, a Board-certified orthopedic surgeon.2 In a January 25, 2005 report, Dr. Gelman noted
his review of the medical record, including MRI scans, the history of injury, appellant’s
complaints of pain extending from her neck into her lower back with episodes of left arm and left
leg pain. On examination, he reported mild restrictions in range of motion of the cervical,
thoracic and lumbar spine and found that both shoulders exhibited excellent and symmetric
ranges of motion without evidence of impingement. Dr. Gelman advised that the upper
extremities reflected no objective evidence of strength loss, sensory deficit and/or reflex
deficiency. He stated that examination of the cervical and lumbar spine did not identify any
objective neurological compromise. Dr. Gelman opined that appellant’s symptoms were
exaggerated and that, as there was very little underlying pathology, she had no impairment rating
with regard to the cervical spine. He opined that she had a seven percent impairment of her
lumbar spine based on a normal clinical assessment and the MRI scans.

1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

The Office initially identified Dr. Gelman as a referee examiner, but the Office later determined that he was a
second-opinion physician.

2

The Office determined that a conflict in medical evidence was created between the
opinions of Dr. Diamond and Dr. Gelman. It referred appellant to Dr. John T. Hogan, Boardcertified in orthopedic surgery, for an impartial medical evaluation.3 MRI scan of the cervical
spine on June 2, 2005 demonstrated Chiari I malformation with a small syrinx cavity in the distal
cervical cord.4 In a June 16, 2005 report, Dr. Hogan reviewed the history of injury and medical
record and noted appellant’s complaints of increased pain in her left shoulder girdle area and
partial numbness in both hands and her left foot. He noted the June 2, 2005 MRI scan, advising
that this was not a traumatic condition. Cervical spine and bilateral shoulder examinations
demonstrated full range of motion. Dr. Hogan found tenderness to palpation on the anterior
aspect of the left shoulder suggestive of rotator cuff tendinitis and no evidence of muscular
weakness in either limb. Examination of the left upper and lower extremities demonstrated
diminished sensation in a stocking shape which, he opined, involved all the various dermatomes
and was nonanatomical in its distribution. Dr. Hogan diagnosed symptoms suggestive of mild
chronic sprain of the cervical and lumbosacral spine with reported radiculopathy down the left
upper and left lower extremities without objective physical findings. He concluded that there
was no objective evidence for assigning any type of permanent impairment to any portion of her
body.
By decision dated September 21, 2005, the Office credited the opinion of Dr. Hogan with
the weight of medical opinion and found that appellant was not entitled to a schedule award.
On September 23, 2005 appellant, through counsel, requested a hearing. In a February 7,
2006 report, Dr. David Weiss, an osteopath, noted his review of Dr. Hogan’s report and
disagreed with his conclusions.5 Copies of the July 21, 1997 and July 17, 2000 EMGs were also
submitted. In a statement dated January 30, 2006, appellant described her complaints of pain and
physical limitations. She contended that both Dr. Gelman and Dr. Hogan performed cursory
examinations.
At the hearing held on February 7, 2006,6 counsel advised that appellant was submitting a
separate schedule award claim for her left lower extremity as Dr. Diamond had only provided an
impairment rating for her upper extremities. It was argued that Dr. Hogan made only conclusory
statements and, therefore, his opinion should represent the weight of the medical evidence.
In a March 28, 2006 decision, an Office hearing representative affirmed the
September 21, 2005 decision.

3

Both Dr. Gelman and Dr. Hogan were provided with the medical record, a statement of accepted facts and a set
of questions and were specifically asked to provide an impairment analysis utilizing the fifth edition of the A.M.A.,
Guides.
4

This is defined as a congenital anomaly characterized by prolapse of the cerebellar tonsil into the spinal cord
without elongation of the brain stem. Dorland’s Illustrated Medical Dictionary, 29th edition (2000).
5

Dr. Atkins continued to submit reports describing appellant’s ongoing treatment.

6

Appellant was represented at the hearing by Carolyn Uliase.

3

On May 18, 2006 appellant, through her attorney, requested reconsideration and
submitted a March 21, 2006 report in which Dr. Atkins noted his agreement with Dr. Diamond,
that appellant had a 19 percent left lower extremity impairment. In an April 19, 2006 report,
Dr. Shulim Spektor, a Board-certified physiatrist, noted the history of injury and appellant’s
complaints of radiating neck and low back pain with numbness and headaches. Range of motion
of both upper extremities was full. Cervical and thoracolumbar range of motion was limited. In
a May 31, 2006 report, an Office medical adviser noted his review of appellant’s medical record,
including Dr. Hogan’s report. He opined that Dr. Hogan performed a thorough medical
examination and did not find an objective basis for a ratable impairment. The Office medical
adviser concluded that, based upon Dr. Hogan’s evaluation, appellant did not have an
impairment under the A.M.A., Guides. By decision dated June 7, 2006, the Office denied
modification of the prior decisions.
LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act7 and section 10.404 of
the implementing federal regulations,8 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides9 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.10
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.11 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

A.M.A., Guides, supra note 1.

10

See Joseph Lawrence, Jr., supra note 1; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
11

Pamela J. Darling, 49 ECAB 286 (1998).

4

impairment originated in the spine.12 An impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized.13
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments such as, loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use, of the member in accordance with the
figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.14
Section 8123(a) of the Act 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.15 When 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 on a proper factual background, must be
given special weight.16 Office procedures indicate that referral to an Office medical adviser is
appropriate when a detailed description of the impairment from a physician is obtained.17
ANALYSIS
The Board finds that appellant has not established that she is entitled to a schedule award
for her upper extremities. The Office found that a conflict had been created regarding
appellant’s degree of impairment between the opinions of appellant’s physician Dr. Diamond
and Dr. Gelman who provided a second opinion evaluation for the Office and referred appellant
to Dr. Hogan for an impartial evaluation.
In situations where 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.18 The Board finds that
12

Thomas J. Engelhart, 50 ECAB 319 (1999). Section 15.12 of the fifth edition of the A.M.A., Guides describes
the method to be used for evaluation of impairment due to sensory and motor loss of the extremities as follows. The
nerves involved are to be first identified. Then, under Tables 15-15 and 15-16, the extent of any sensory and/or
motor loss due to nerve impairment is to be determined, to be followed by determination of maximum impairment
due to nerve dysfunction in Table 15-17 for the upper extremity and Table 15-18 for the lower extremity. The
severity of the sensory or motor deficit is to be multiplied by the maximum value of the relevant nerve. A.M.A.,
Guide, supra note 2 at 423.
13

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

14

Robert V. Disalvatore, 54 ECAB 351 (2003).

15

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

16

Manuel Gill, 52 ECAB 282 (2001).

17

See Thomas J. Fragale, 55 ECAB 619 (2004).

18

Manuel Gill, supra note 16.

5

Dr. Hogan’s well-rationalized opinion is entitled to special weight as it was based on a complete
and accurate factual and medical background. In his June 16, 2005 report, he reported the
history of injury, appellant’s complaints and his review of the medical record including MRI
scans. Dr. Hogan conducted a thorough physical examination and provided detailed physical
and objective findings on examination, advising that bilateral shoulder examinations
demonstrated full range of motion and that, while appellant complained of diminished sensation
in a stocking shape in her left upper extremity, this did not have an anatomic basis. Appellant
submitted a February 7, 2006 report in which Dr. Weiss voiced his disagreement with
Dr. Hogan’s findings. Dr. Weiss, however, did not examine appellant and generally, findings on
examination are needed to justify a physician’s opinion.19 Furthermore, while appellant also
submitted reports from Dr. Atkins and Dr. Spektor, before the A.M.A., Guides, can be utilized, a
description of impairment must be obtained from the claimant’s physician. This description
must be in sufficient detail so that the claims examiner and others reviewing the file will be able
to clearly visualize the impairment with its resulting restrictions and limitations.20 The Board,
therefore, finds that the weight of the medical opinion evidence is represented by the wellrationalized opinion of Dr. Hogan.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she is
entitled to a schedule award of the upper extremities for her accepted back conditions.

19

See generally Laurie S. Swanson, 53 ECAB 517 (2002).

20

Vanessa Young, 55 ECAB 575 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 7 and March 28, 2006 be affirmed.
Issued: March 28, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 13-897
Issued: July 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 5, 2013 appellant filed a timely appeal from the October 29, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied waiver of
recovery of an overpayment. 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 OWCP properly denied waiver of an $18,282.38 overpayment of
compensation.
FACTUAL HISTORY
On December 9, 2010 appellant, then a 52-year-old motor vehicle operator, sustained a
traumatic injury in the performance of duty while climbing on a trailer and strapping down

1

5 U.S.C. § 8101 et seq.

material. OWCP accepted his claim for sprain of the right shoulder and upper arm and a rotator
cuff.
On November 9, 2011 OWCP granted appellant a schedule award for a nine percent
impairment of his right upper extremity due to loss of right shoulder motion.
OWCP later discarded that appellant previously received a schedule award for the same
extremity under another claim number. The record shows that on August 11, 2006 OWCP
issued a schedule award for a 10 percent impairment of appellant’s right upper extremity
resulting from a shoulder injury on June 11, 2005.2
On September 17, 2012 OWCP made a preliminary determination that appellant received
an $18,282.38 overpayment of compensation when he received the November 9, 2011 schedule
award,3 which was duplicative of his previous award. It recommended that he be found not at
fault in creating the overpayment because he was not aware and could not reasonably have been
expected to know that the second schedule award was paid to him incorrectly. OWCP notified
appellant as follows:
“In order for OWCP to consider the question of waiver or to determine a
reasonable method for collection, you must complete and submit the enclosed
Form OWCP-20. Attach supporting documents to Form OWCP-20, including
copies of income tax returns, bank account statements, bills and canceled checks,
pay slips and any other records which support the income and expenses listed.
Under 20 C.F.R. 10.438, failure to submit the requested information within 30
days will result in the denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”
In a decision dated October 29, 2012, OWCP finalized its preliminary findings. It found
that appellant received an $18,282.38 overpayment of compensation. Although OWCP found
him without fault in creating the overpayment, it received no response from him to its
preliminary determination. As appellant did not request waiver or complete the overpayment
recovery questionnaire or otherwise provide the financial information requested within 30 days,
OWCP denied waiver and asked for payment in full.4
On November 11, 2012 after OWCP had issued its final overpayment decision denying
waiver, appellant completed the overpayment recovery questionnaire and submitted supporting
financial documentation. On appeal, he explains that he is seeking waiver or partial waiver, as
recovery would create a severe hardship on him and his wife.

2

OWCP File No. xxxxxx237.

3

The compensation payment history shows that appellant received this amount of schedule compensation from
October 6, 2011 to April 19, 2012.
4

Appellant had returned to full-time limited duty and was not currently receiving monetary compensation.

2

LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.5 Any previous impairment to the member under
consideration is included in calculating the percentage of loss except when the prior impairment
is due to a previous work-related injury (and a schedule award has been granted for such prior
impairment), in which case the percentage already paid is subtracted from the total percentage of
impairment.6
When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary. Failure to submit the requested information within 30 days of
the request shall result in denial of waiver, and no further request for waiver shall be considered
until the requested information is furnished.8
ANALYSIS
The record confirms that on August 11, 2006 OWCP issued a schedule award for a 10
percent impairment of appellant’s right upper extremity resulting from a work injury on
June 11, 2005 under a different claim number. Having already received this schedule award,
appellant was not entitled to a schedule award for his December 9, 2010 work injury unless the
impairment of his right upper extremity was greater than 10 percent, in which case he would
receive the difference.9 As his impairment was nine percent, he was not entitled to an additional
schedule award.
OWCP paid the November 9, 2011 schedule award in error. The record confirms that
appellant received $18,282.38 in compensation as a result of this error. The Board will therefore
affirm the October 29, 2012 decision on the issues of fact and amount of overpayment.
When OWCP issued its preliminary determination on September 17, 2012, it found
appellant without fault. OWCP properly informed him that he was required to complete and
5

5 U.S.C. § 8107.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.0808.7.a(2)(a) (January 2010).
7

5 U.S.C. § 8129(a).

8

20 C.F.R. § 10.438.

9

Otherwise, a claimant could conceivably receive awards for more than a 100 percent loss of the evaluated
member.

3

submit the enclosed overpayment recovery questionnaire and attach supporting financial
documentation to support the income and expenses listed on the questionnaire.
OWCP also properly notified appellant that failure to submit the requested information
within 30 days would result in the denial of waiver. Appellant did not respond within the time
allotted. OWCP received no response from him when it issued its October 29, 2012 decision 42
days later. Under the implementing federal regulations, the failure to submit the requested
information within 30 days of the request “shall result in denial of waiver.” The Board will
therefore affirm OWCP’s October 29, 2012 decision on the issue of waiver.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment, where OWCP decreases later payments of compensation to which the individual is
entitled.10 Collection of the overpayment in this case cannot be made by adjusting later
payments, as appellant is not receiving compensation for wage loss. Therefore, the Board lacks
jurisdiction to review the recovery of the overpayment.
Appellant explains on appeal that he is seeking waiver or partial waiver of the
overpayment. The Board’s review of a case, however, 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.11 The Board cannot review the
overpayment recovery questionnaire and supporting financial documents appellant submitted
after the October 29, 2012 decision. Appellant may make a “further request for waiver” before
OWCP, as provided by regulation.
CONCLUSION
The Board finds that OWCP properly denied waiver of an $18,282.38 overpayment of
compensation.

10

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

11

20 C.F.R. § 501.2(c)(1). The Board therefore has no jurisdiction to review new evidence appellant submitted on
appeal.

4

ORDER
IT IS HEREBY ORDERED THAT the October 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, YOSEMITE
NATIONAL PARK, Yosemite, AC, Employer
__________________________________________

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

Docket No. 07-1330
Issued: October 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated January 16, 2007 which denied her request for further
merit review. Because more than one year has elapsed between the last merit decision dated
January 3, 2006 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review in
accordance with section 8128(a) of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On February 15, 2000 appellant, then a 25-year-old seasonal biological science
technician, filed an occupational disease claim alleging that she developed extreme back pain
due to repetitive bending, stooping, squatting and carrying of up to 20 pounds in a backpack for

distance up to one half mile. She first became aware of her condition on July 15, 1999 and first
attributed this condition to her employment on that date. Appellant noted that she had a
preexisting back injury accepted by the Office.
In a report dated November 11, 1999, Dr. Malcolm E. Ghazal, an orthopedic surgeon,
diagnosed L5-S1 disc protrusion on the left with no radicular pain and only occasional left-sided
low back pain. He indicated that appellant could perform her usual and customary duties.
By decision dated August 29, 2000, the Office denied appellant’s claim. Appellant
requested an oral hearing on September 25, 2000. In a report dated September 13, 2000,
Dr. Ghazal provided work restrictions. In an April 26, 2001 decision, the hearing representative
accepted appellant’s claim for aggravation of preexisting disc protrusion. The Office authorized
compensation benefits from November 22, 1999 to February 3, 2000.
The Office authorized a microsurgical discectomy on August 25, 2003. The Office
authorized wage-loss compensation beginning May 28, 2003 and entered appellant on the
periodic rolls on November 4, 2004.
On September 9, 2003 appellant filed a claim requesting wage-loss compensation from
September 16, 2000 to May 27, 2003. She submitted information regarding the periods that she
worked from September 16, 2000 to May 27, 2003 and those during which she was unemployed.
On November 12, 2001 Dr. Ghazal noted that appellant was working in an office position and
that she could continue to work. In a report dated July 13, 2003, Dr. Thomas H. Jones, a Boardcertified neurosurgeon, opined that appellant had an employment-related L5-S1 disc herniation.
He indicated that appellant was disabled for her date-of-injury position. Dr. Jones further opined
that appellant was totally disabled due to this condition since March 2003.
By decision dated September 25, 2003, the Office noted that appellant had claimed
periods of disability which she attributed to her employment-related work restrictions. The
Office denied appellant’s claim for compensation noting that she was capable of working during
the period claimed even though she was unemployed.
Appellant requested an oral hearing on October 22, 2003. She testified at a telephonic
hearing on August 30, 2004.
By decision dated November 24, 2004, the hearing representative denied appellant’s
claim for disability from September 16, 2000 to May 27, 2003. He noted that appellant’s
seasonal position ended November 10, 1999 and that she was not disabled at that time. The
hearing representative found that appellant had not submitted medical evidence to support her
periods of disability during September 16, 2000 to May 23, 2003.
Appellant requested reconsideration on November 22, 2005 and submitted medical
evidence from Dr. Jones dated March 10, 2004 and November 11, 2005. Dr. Jones provided
appellant’s work restrictions on March 10, 2004. On November 11, 2005 he further addressed
her work restrictions as set forth in the March 10, 2004 report.
By decision dated January 3, 2006, the Office reviewed appellant’s claim on the merits
and denied medication of the November 24, 2004 decision.
2

On January 2, 2007 appellant requested reconsideration on the January 3, 2006 decision
denying her claim for compensation from September 16, 2000 to May 27, 2003. She stated that
she planned to submit additional medical evidence in support of her claim from Dr. Jones and
Dr. Ghazal. On December 12, 2005 Dr. Jones indicated that appellant could work in the field of
computer graphics or graphic design. In a note dated April 5, 2006, he indicated that appellant
was currently experiencing recurrent discogenic pain. Appellant resubmitted the March 10, 2004
report from Dr. Jones on September 11, 2006. On August 30, 2006 Dr. Jones completed a work
restriction evaluation.
By decision dated January 16, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits. The Office found that appellant had failed to submit any relevant
new evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,1
the Office’s regulation provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.2 When a claimant fails to meet
one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.3
ANALYSIS
Appellant claimed that she had intermittent periods of disability from September 16,
2000 to May 27, 2003. In its merit decisions dated September 25, 2003, November 24, 2004 and
March 3, 2006, the Office denied appellant’s claim on the basis that she had not submitted
sufficient medical evidence to support her claim for disability for the periods in question. In
support of appellant’s request for reconsideration, she attempted to submit relevant and pertinent
new medical evidence in support of her claim for periods of total disability.
Appellant submitted a report dated December 12, 2005 from Dr. Jones, a Board-certified
neurosurgeon, indicating that he believed that she could perform the duties of graphic designer.
In a note dated April 5, 2006, Dr. Jones indicated that appellant was currently experiencing
recurrent discogenic pain. On August 30, 2006 he completed a work restriction evaluation.
These reports do not address the issue of appellant’s disability during September 16, 2000 to
May 27, 2003, but instead relate to appellant’s ongoing condition and work abilities. As these
reports do not address the central issue in the case, whether appellant was totally disabled during
the period from September 16, 2000 to May 27, 2003, they are not relevant to her claim in this
appeal. As the reports do not constitute relevant and pertinent new evidence, the reports are not
1

5 U.S.C. §§ 8101-8193, § 8128(a).

2

20 C.F.R. § 10.606(b)(2).

3

20 C.F.R. § 10.608(b).

3

sufficient to require the Office to reopen appellant’s claim for consideration of the merits in
accordance with 20 C.F.R. § 10.606(b)(2).
Appellant resubmitted the March 10, 2004 report from Dr. Jones on September 11, 2006.
The Office previously reviewed this report in reaching its January 3, 2006 decision. As the
Office considered this report in reaching a final decision, the March 10, 2004 report is not new
evidence. Section 10.606(b)(2) of the Office’s regulations requires that a claimant submit
relevant and pertinent new evidence in order to mandate a review of the merits of the claim.4
Appellant has failed to submit the necessary relevant and pertinent new evidence which would
require the Office to reopen her claim for review of the merits. Therefore, the Office properly
declined to reopen her claim for merit review.
CONCLUSION
The Board finds that appellant failed to submit the necessary relevant and pertinent new
evidence to require the Office to reopen her claim for consideration of the merits.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, WALNUT HILL POST
OFFICE, Petersburg, VA, Employer
__________________________________________

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

Docket No. 12-1972
Issued: January 4, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 27, 2012 appellant, through his attorney, filed a timely appeal of the
August 27, 2012 merit decision of the Office of Workers’ Compensation Programs denying his
recurrence of disability claim. 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 established that he sustained a recurrence of disability
commencing September 11, 2008 causally related to his accepted employment injury.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a January 20, 2011 decision, the
Board affirmed a March 11, 2010 OWCP decision, finding that appellant failed to establish that
he sustained a recurrence of disability commencing September 11, 2008 causally related to his
accepted employment injury. The facts from the Board’s prior decision are hereby incorporated
by reference.3
By letter dated September 21, 2011, appellant, through his attorney, requested
reconsideration and submitted additional evidence.
In medical reports dated February 11, 2011 through April 26, 2012, Dr. Eric G. Dawson,
an attending orthopedic surgeon, listed findings on physical examination and diagnostic testing.
He diagnosed lumbar disc and nerve irritability impingement, chronic low back pain, lumbar
discopathy and neural radiculopathy and possible lumbar disc disease. Dr. Dawson set forth
appellant’s physical restrictions and treatment plan. He related that appellant did not have a
substantial preexisting condition as he was fully functional at his job without inhibition or
inability to carry out functions at the workplace prior to the May 2005 employment injury.
Dr. Dawson advised that appellant had a back condition caused by this injury. He stated
that appellant’s injury was caused by a forced extension against flexion mechanism, the details
of which he discussed in his prior May 8, 2007 report. Appellant had symptoms consistent with
an injury to his lower back, disc structures and nerve endings. He advised that, although
appellant had other injuries, this was the ongoing source of most of his problems. Dr. Dawson
stated that electromyogram (EMG) and nerve conduction velocity (NCV) studies performed by
Dr. Daniel R. Ignacio, a Board-certified physiatrist, showed nerve impingement based on direct
measurement. Because these results had been questioned by the Board, he recommended
additional EMG/NCV testing. Dr. Dawson stated that appellant’s work restrictions, as
demonstrated by photographs in the record, were violated which aggravated and exacerbated his
condition. Despite appellant’s treatment, adherence to his directives for diet, nutrition and
exercise, he had ongoing problems which were clearly present and well documented by hands-on
serial clinical examinations. He further advised that appellant’s prognosis was guarded and
recommended semi-sedentary work.
In a March 4, 2011 report, Dr. Dawson noted appellant’s complaints of pain, spasm and
stiffness in the lower back and numbness, tingling and pain extending down the right leg, but
also unremitting pain in the back. He had not worked for some time. Dr. Dawson listed findings
on physical examination and diagnostic testing. He diagnosed nerve impingement at L4 and L5.
Dr. Dawson advised that appellant’s pain and discomfort were consistent with his mechanism of
2

Docket No. 10-1272 (issued January 20, 2011).

3

On May 19, 2005 appellant, then a 45-year-old letter carrier, filed an occupational disease claim for a lower
back condition. On August 22, 2005 OWCP accepted his claim for lumbar sprain/strain. Appellant returned to
light-duty work. On September 17, 2008 he filed a claim for wage-loss compensation (Form CA-7) from
September 11 through 23, 2008. By letter dated October 3, 2008, appellant stated that his light-duty work did not
change or become more demanding.

2

injury. He stated that examination findings related to appellant’s lumbar disc and legs clearly
showed disc and nerve issues secondary to his injury as there were no other etiologic factors.
In a February 17, 2011 report, Dr. Rashid M. Khan, a Board-certified physiatrist, advised
that EMG/NCV studies showed evidence of right L5-S1 nerve root irritation, radiculitis and
radiculopathy.
An unsigned report dated February 23, 2011, which contained the typed name of
Dr. Timothy J. Greenan, a Board-certified radiologist, provided the results of a magnetic
resonance imaging (MRI) scan of the lumbar spine. The MRI scan showed mild discogenic
disease, spondylosis and a diffuse posterior disc bulge at L1-2, L4-5 and L5-S1. It also showed a
moderate degree of facet joint osteoarthropathy bilaterally at L4-5 and L5-S1. A central
herniated nucleus pulposus was impressing on the ventral aspect of the thecal sac without
definite lateralization at L5-S1. There was no central canal or neural foraminal stenosis. The
conus medullaris appeared unremarkable.
Appellant resubmitted Dr. Dawson’s May 8, 2007 report and a July 12, 2007 lumbar MRI
scan report of Dr. Raymond K. Tu, a Board-certified radiologist, and October 1, 2009 EMG
report of Dr. Ignacio which addressed his lumbar and right leg conditions.
In an August 27, 2012 decision, OWCP denied modification of its denial of appellant’s
recurrence of disability claim. It found that the medical evidence he submitted, particularly,
Dr. Dawson’s February 11, 2011 report, did not provide a rationalized medical opinion sufficient
to establish that the claimed recurrence of disability was causally related to the accepted back
condition.
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that he cannot perform such limited-duty work. As part of this burden, the

4

20 C.F.R. § 10.5(x).

3

employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the limited-duty job requirements.5
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.6
ANALYSIS
The Board finds that appellant has not established a recurrence of total disability
commencing September 11, 2008 that is causally related to the accepted lumbar sprain/strain.
Appellant did not establish that the nature and extent of his injury-related condition changed so
as to prevent him from continuing to perform his limited-duty assignment.
A partially disabled claimant who returns to a light-duty job has the burden of proving
that he or she cannot perform the light duty, if a recurrence of total disability is claimed.7 The
issue of whether an employee has disability from performing a modified position is primarily a
medical question and must be resolved by probative medical evidence.8 A claimant’s burden
includes the necessity of furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports that conclusion with sound medical rationale.
Where no such rationale is present, the medical evidence is of diminished probative value.9
In reports dated February 11 and March 4, 2011, Dr. Dawson found that appellant had a
lumbar condition, namely, nerve impingement at L4 and L5 due to the accepted employment
injury. He stated that examination findings clearly showed disc and nerve issues secondary to
his injury as there were no other etiologic factors. Dr. Dawson further stated that appellant did
not have a substantial preexisting condition as he was fully functional and able to perform his
duties prior to the accepted injury. He advised that appellant’s injury was caused by a forced
extension against flexion mechanism. Dr. Dawson further advised that appellant’s symptoms of
pain and discomfort were consistent with an injury to his lower back, disc structures and nerve
endings. The Board notes that the accepted conditions was a lumbar strain/sprain.10 Dr. Dawson
did not provide sufficient opinion addressing how appellant’s disability commencing
September 11, 2008 was causally related to the accepted employment injury. The Board notes
that OWCP has not accepted appellant’s claim for a disc condition or nerve impingement at L4
5

Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986).

6

James H. Botts, 50 ECAB 265 (1999).

7

See William M. Bailey, 51 ECAB 197 (1999).

8

Cecelia M. Corley, 56 ECAB 662 (2005).

9

Mary A. Ceglia, 55 ECAB 626 (2004).

10

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).

4

and L5. Dr. Dawson’s opinion is insufficiently rationalized as he did not explain how the
accepted sprain/strain caused or contributed to the conditions he diagnosed or disability as of
September 11, 2008.11 His remaining reports did not include a rationalized medical opinion
associating appellant’s diagnosed lumbar disc or nerve conditions with his employment.12
Dr. Dawson’s May 8, 2007 report was previously considered and found insufficient to establish
appellant’s claim. The Board finds that his reports are insufficient to establish appellant’s
recurrence of disability claim.
Dr. Khan’s diagnostic test report found evidence of right L5-S1 nerve root irritation,
radiculitis and radiculopathy. This evidence failed to provide an opinion on causal relationship
between the claimed period of disability and the accepted condition.13 The Board finds,
therefore, that Dr. Khan’s report is insufficient to establish appellant’s claim.
The diagnostic test reports of Drs. Tu and Ignacio were previously considered and found
insufficient to establish appellant’s claim.
The unsigned February 23, 2011 report, which contained the typed name of Dr. Greenan
has no probative value in establishing that appellant sustained a recurrence of disability
commencing September 11, 2008 due to the accepted employment injury. It is well established
that medical evidence lacking proper identification is of no probative medical value.14
The Board finds that the evidence submitted by appellant does not provide adequate
rationale to show a change in the nature or extent of the injury-related condition or a change in
the nature and extent of the limited light-duty requirements which would prohibit him from
performing the limited light-duty position he assumed after he returned to work. Therefore,
appellant did not meet his burden of proof to establish disability as a result of a recurrence.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons stated above, the Board finds that counsel’s argument is not substantiated.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a recurrence of
disability commencing September 11, 2008 causally related to his accepted employment injury.

11

See G.A., Docket No. 09-2153 (issued June 10, 2010) (for conditions not accepted by OWCP as being
employment related, it is the employee’s burden to provide rationalized medical evidence sufficient to establish
causal relation, not OWCP’s burden to disprove such relationship).
12

Id.

13

See cases cited, supra note 10.

14

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the August 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Canton, OH, Employer
_________________________________________

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

Docket No. 17-0426
Issued: July 13, 2018

Case Submitted on the Record

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

JURISDICTION
On December 19, 2016 appellant, through counsel, filed a timely appeal from a
November 1, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than 15 percent
permanent impairment of her left lower extremity, for which she previously received schedule
awards.
FACTUAL HISTORY
On March 31, 2005 appellant, then a 29-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained pain in her ankle and tendon due to walking
on a daily basis in the performance of her federal employment duties. She noted that she first
became aware of her claimed condition on March 15, 2005 and of its relation to her federal
employment on March 30, 2005. Appellant did not stop work. However, she was placed on
limited duty to include secretarial duties until April 6, 2005.
Following a July 6, 2005 initial denial of the claim, on March 7, 2006, OWCP vacated the
July 6, 2005 decision and accepted the claim for left posterior tibial tendinitis. It subsequently
expanded the acceptance of the claim to include contracture of tendon sheath on the left, and pain
in the joint, ankle, and foot on the left. The record reflects that appellant underwent left foot
surgery (gastroc recession, osteotomy, and cuneiform navicular effusion) on April 7, 2006.
Appellant wore a cast for approximately six weeks following surgery. She underwent surgical
removal of hardware on June 23, 2006. On April 1, 2006 appellant returned to full-time work with
restrictions and full-time regular-duty work on August 1, 2006. OWCP paid her wage-loss
compensation and medical benefits.
On September 10, 2008 OWCP granted appellant a schedule award for 14 percent
permanent impairment of the left foot. The award covered a period of 28.7 weeks from April 23
to November 9, 2008.
On September 13, 2013 Dr. Leslie P Niehaus, a Board-certified podiatrist, performed left
foot surgery to include arthrodesis of the first metatarsal cuneiform and second metatarsal
cuneiform joints.
On March 21, 2014 appellant filed a claim for an increased schedule award (Form CA-7).
By letter dated March 24, 2014, OWCP advised appellant that it was unable to process her
claim for an increased schedule award as additional information was needed, including verification
from her physician that she had reached maximum medical improvement. It further advised her
to submit medical evidence in support of her claim based on the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 No
additional information was received.
By decision dated April 28, 2014, OWCP denied appellant’s claim for an increased
schedule award.

3

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

2

On May 1, 2014 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
In a May 29, 2014 report, Dr. Catherine Watkins Campbell, Board-certified in
occupational and family medicine, noted appellant’s history of injury and treatment. She examined
appellant and provided findings which included that appellant’s gait was minimally antalgic in
shoes, but it became more antalgic when walking in her bare feet as she had some difficulty getting
her left heel planted on the floor to fully bear weight. Dr. Watkins Campbell determined that active
range of motion of the left foot and ankle measured 30 degrees of plantar flexion, 4 degrees of
dorsiflexion (mild impairment), 14 degrees of eversion and 14 degrees of inversion (mild
impairment). She found variable left foot and ankle tenderness and no identified laxity in the left
foot or ankle. Dr. Watkins Campbell determined that motor strength in the foot was normal.
Additionally, there was no gross varus or valgus deformity of the left ankle or mid-foot.
Dr. Watkins Campbell also explained that the x-ray of the foot from November 14, 2013 showed
that the first metatarsal and big toe were hyper-corrected medially creating a fixed space between
the first and second metatarsal that was greater than normal. She advised that the primary
originating and primary impairing diagnosis in the claim was contracture of left tendon sheath
(Achilles tendon). Dr. Watkins Campbell referred to Table l6-24 under the criteria for
strain/tendinitis or history of a ruptured tendon specifically involving the Achilles tendon. She
explained that the shortening of the Achilles tendon caused the arch of the foot to fall, ultimately
resulting in the loss of the posterior tibial tendon function requiring arthrodesis in the mid-foot and
a calcaneal osteotomy to correct to a mild fixed over correction of a valgus mid-foot deformity (as
evidenced of a widened space between the second toes and metatarsal and an over-corrected medial
displaced first metatarsal and big toe) placing the impairment in class 3. Dr. Watkins Campbell
explained that a physical examination modifier was not utilized in that physical examination
findings were applied to the choice of class in this instance. She noted that a functional modifier
of 2 was chosen based on the data presented in the body of the report. Dr. Watkins Campbell
advised that the aforenoted x-rays reflected a moderate correction of a mid-foot valgus deformity,
a moderate correction of calcaneal valgus deformity and moderate correction of a fallen arch and
as a result, a clinical studies modifier of 1 was chosen. She utilized the net adjustment formula
and determined that appellant had 28 percent left lower extremity permanent impairment.
Dr. Watkins Campbell noted that this was an increase of 14 percent from the previous schedule
award of 14 percent. She determined that maximum medical improvement was reached on
February 11, 2014 as determined by her treating physician, Dr. Niehaus.
By decision dated September 30, 2014, OWCP’s hearing representative set aside the
April 28, 2014 decision, finding that the case was not in posture for decision. The hearing
representative determined that the report from Dr. Watkins Campbell constituted new medical
evidence which should be reviewed by OWCP’s medical adviser for an opinion regarding the
nature and percentage of impairment.
On October 29, 2014 the case was forwarded to an OWCP medical adviser for an updated
calculation of impairment.

4

Id. at 501.

3

In an October 31, 2014 report, OWCP’s medical adviser, Dr. Morley Slutsky, Boardcertified in occupational medicine, indicated that he needed all postoperative notes since the
surgery performed on September 13, 2013 to determine if there was a fixed deformity and or
consistent, significant loss of motion of appellant’s ankle related to the Achilles tendon.
In a December 12, 2014 report, Dr. Slutsky noted that appellant underwent x-rays on
November 14, 2013 and they were a key factor when rating the double foot arthrodesis. He
requested a copy of those x-rays.
In a letter dated January 16, 2015, OWCP requested that appellant provide a copy of the
November 14, 2013 left foot x-rays.
On February 3, 2015 OWCP notified OWCP’s medical adviser that a copy of the x-ray
report was received.
In a February 5, 2015 report, Dr. Slutsky noted the history of injury and treatment. He also
noted that on April 7, 2006 appellant had a gastrocnemius recession, a medially displaced
calcaneal osteotomy, a medial cuneiform navicular fusion, an intermediate cuneiform fusion, and
a medial cuneiform intermediate cuneiform fusion of the left foot. The postoperative diagnoses
included posterior tibial tendinitis, gastrocnemius equines, calcaneal valgus, and degenerative
changes to the cuneiform navicular joint. Dr. Slutsky indicated that on June 23, 2006 appellant’s
left foot was diagnosed with painful internal fixation. On January 22, 2009 appellant underwent
removal of painful hardware of the heel and removal of painful hardware, dorsum of foot. On
September 13, 2013 she had an arthrodesis of the first metatarsal cuneiform and second metatarsal
cuneiform joints. Dr. Slutsky explained that x-rays performed on November 14, 2013
demonstrated no significant mal-alignment (varus or valgus). As a result, appellant was placed
into class 1. Dr. Slutsky indicated that Dr. Watkins Campbell rated appellant for the initial
diagnoses (Achilles tendinitis) which eventually resulted in the fusions mentioned. He explained
that the impairment range for double arthrodesis (no mal-alignment) was in the 7 to 13 percent
range. Dr. Slutsky explained that the impairment for Achilles tendon repair with flexible
deformity and loss of function was in the range of 14 to 18 percent. He indicated that a fixed
deformity would lead to ankylosis (complete absence of motion in plantar flexion which the
Achilles tendon controls), however, Dr. Slutsky explained that, in this case, there was a loss of
motion, but not complete absence of motion. As a result, he rated appellant for flexible deformity
in the Achilles tendon and determined that the impairment rating was 15 percent of the left lower
extremity. Dr. Slutsky opined that May 29, 2014 was the date of maximum medical improvement.
He found that appellant’s condition had stabilized and there was no further treatment planned.
The November 14, 2013 x-ray, read by Dr. Niehaus, revealed findings to include hardware
placement intact with a tarsal plate and an additional headless screw in the first metatarsal
cuneiform joint. He also found good arthrodesis of the multiple joint complex at this time.
Dr. Niehaus also determined that appellant had an old correction of the flatfoot deformity on the
calcaneus and a small amount of degenerative change of the tarsal talar joint. He also found
removal of a previous tibial sesamoid bone on the first metaphalangeal joint and previous fusion
of the navicular cuneiform joints.

4

On July 22, 2015 OWCP requested that Dr. Watkins Campbell review the opinion and
calculations provided by Dr. Slutsky, its medical adviser. However, no response was received
from Dr. Watkins Campbell. In a letter dated August 11, 2015, counsel indicated that Dr. Watkins
Campbell was unable to provide a medical opinion. He requested that OWCP proceed with the
schedule award determination.5
On January 28, 2016 OWCP requested an updated opinion from an OWCP medical
adviser. It noted that it was unclear whether Dr. Slutsky was aware of appellant’s prior schedule
award.
In a January 28, 2016 report, OWCP’s medical adviser, Dr. Michael M. Katz, a Boardcertified orthopedic surgeon, noted that Dr. Slutsky’s February 5, 2015 report was correct. He
explained that Dr. Slutsky believed that fixed deformity did not exist, and instead determined an
impairment rating of 15 percent on the basis of Achilles tendon loss of specific tendon function
and flexible deformity. Dr. Katz concurred that appellant was entitled to a schedule award in the
amount of 15 percent to the left lower extremity. He explained that, in the prior report, Dr. Slutsky
was unaware of a prior schedule award under the claim in the amount of 10 percent to the left
lower extremity (foot/ankle). Dr. Katz opined that 15 percent subtracted from the prior award,
resulted in an additional impairment of 5 percent permanent impairment of the left lower extremity.
By decision dated February 22, 2016, OWCP granted appellant a schedule award for an
additional five percent permanent impairment of the left lower extremity. The award covered a
period of 14.4 weeks from April 24 to August 2, 2014.
On March 1, 2016 appellant, through counsel, requested a telephonic hearing, which was
held before an OWCP hearing representative on September 22, 2016. During the hearing,
appellant noted that she was working her full route with restrictions “just for street time.” Counsel
argued that the impairment ratings differed and were based on a fixed (vs. flexible) deformity.
Furthermore, he argued that Dr. Watkins Campbell actually examined appellant while OWCP’s
medical adviser did not examine her. Counsel questioned how loss of tendon function would not
result in a deformity that is fixed. Appellant also explained that her arch had collapsed and her
heel had been cut off and moved forward to create an arch and her Achilles tendon lengthened.
There had been a fusion at the ankle with screws and staples. A subsequent procedure was
described as an additional fusion where a plate and four screws were used. Appellant indicated
that she had to wear a pad in the tongue of her left shoe to offset the effects of friction from one of
the screws.
By decision dated November 1, 2016, OWCP’s hearing representative affirmed the
February 22, 2016 decision, finding that there was no evidence of greater permanent impairment
than that which was previously awarded.

5
Counsel again requested that OWCP render an opinion on the schedule award in letters dated October 14 and
December 2, 2015.

5

LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 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.8 For decisions issued after
May 1, 2009, the sixth edition of the A.M.A., Guides is used.9 The sixth edition of the A.M.A.,
Guides provides a diagnosis-based method of evaluation utilizing the World Health Organization’s
International Classification of Functioning, Disability and Health (ICF).10
In addressing lower extremity impairment, the sixth edition requires identifying the
impairment Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).11 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.
Section 8123(a) of FECA which 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 and resolve the conflict of
medical evidence.13
ANALYSIS
The Board finds that this case is not in posture for decision.

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

A.M.A., Guides, page 3, section 1.3, ICF: A Contemporary Model of Disablement.

11

Id. at 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

12

Id. at 521.

13

5 U.S.C. § 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

6

OWCP accepted appellant’s claim for left posterior tibial tendinitis. It subsequently
expanded the acceptance of the claim to include contracture of tendon sheath on the left, and pain
in the joint, ankle, and foot on the left. The record reflects that appellant underwent left foot
surgery (gastroc recession, osteotomy, and cuneiform navicular effusion) on April 7, 2006. She
wore a cast for approximately six weeks following surgery. Appellant underwent surgical removal
of hardware on June 23, 2006. On September 10, 2008 OWCP granted her a schedule award for
14 percent permanent impairment of the left lower extremity. Thereafter, appellant filed a claim
for an increased schedule award and furnished a May 29, 2014 report from Dr. Watkins Campbell
citing various tables in the A.M.A., Guides and calculating an impairment rating of 28 percent
permanent impairment of the left lower extremity.
Alternatively, the reports from OWCP’s medical advisers, including the January 28, 2016
report, conflict with the findings of Dr. Watkins Campbell. Appellant’s impairment to the left
ankle region, was selected by the treating and OWCP’s physicians as the most impairing diagnosis.
All physicians selected Achilles tendinitis. However, the crux of disagreement arose with regard
to whether appellant had a fixed or flexible deformity. For example, the treating physician,
Dr. Watkins Campbell, opined that appellant had a fixed deformity, while Dr. Slutsky opined that
it was a flexible deformity. While OWCP asked for an opinion from Dr. Watkins Campbell to
review Dr. Slutsky’s report, counsel for appellant advised that a new opinion could not be obtained
and to proceed with the schedule award. Dr. Slutsky indicated that a fixed deformity would lead
to a complete absence of motion in plantar flexion which the Achilles tendon controlled. He
explained that there was not a complete absence of motion, and thus, appellant was rated at a
flexible deformity in the Achilles tendon. However, the Board notes that Dr. Watkins Campbell
explained that a contracture of the left tendon sheath, Achilles tendon, would be rated under Table
16-2,14 criteria for strain/tendinitis or history of a ruptured tendon specifically involving the
Achilles tendon. She explained that the shortening of the Achilles tendon caused the arch of the
foot to fall ultimately resulting in the loss of the posterior tibial tendon function requiring
arthrodesis in the mid foot and a calcaneal osteotomy to correct to a mild fixed over correction of
a valgus mid-foot deformity (as evidenced of a widened space between the second toes and
metatarsal and an over corrected medial displaced first metatarsal and big toe) placing the
impairment in class 3. Dr. Watkins Campbell also indicated that there was no identified laxity in
the left foot or ankle. The Board notes that no laxity suggests no motion or a fixed deformity. It
is unclear how OWCP’s medical adviser, Dr. Slutsky, as confirmed by Dr. Katz, found this
meaning based upon these findings. Furthermore, in Table 16-2, with regard to fixed deformity,
it notes fixed deformity and loss of specific tendon function. There is no specification that it must
be 100 percent and it is unclear how Dr. Slutsky reached this conclusion.15 As such, there is a
conflict in medical opinion regarding the explanations for loss of specific tendon function and
referral to an impartial medical examiner is warranted.

14

Supra note 4.

15

Id.

7

Section 8123(a) of FECA 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.”16
The Board will thus remand the case for referral to an impartial medical specialist for an
opinion regarding the extent of appellant’s left lower extremity permanent impairment. After such
further development as deemed necessary, OWCP shall issue a de novo decision on the extent of
appellant’s left lower extremity permanent impairment.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: July 13, 2018
Washington, DC

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

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

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

16
Supra note 13; see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45 ECAB
207, 210 (1993).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, Virginia Beach, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0552
Issued: November 23, 2021

Case Submitted on the Record

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

JURISDICTION
On February 16, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 As more
than 180 days has elapsed from the last merit decision, dated August 12, 2019, to the filing of this

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from August 20, 2020, the date of OWCP’s decision, was
February 16, 2021. Since using February 22, 2021, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is February 16, 2021, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).

appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case. 4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 29, 2017 appellant, then a 58-year-old park ranger, filed an occupational disease
claim (Form CA-2) alleging that she developed mold-induced asthma, tachycardia palpitations,
flu-like symptoms, and poor brain function due to her workplace exposure to a leaking air
conditioning unit, which caused black mold to form on the furniture, floors, walls, drapes, and
other interior spaces of her small workstation. She indicated that she first became aware of her
condition and its relation to her federal employment on June 6, 2017. Appellant stopped work on
June 8, 2017.
In a July 25, 2017 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the factual and medical evidence
needed and provided a questionnaire for her completion. In a separate development letter of even
date, OWCP requested that the employing establishment provide additional information including
comments from a knowledgeable supervisor and an explanation of appellant’s work activities and
exposure. It afforded both parties 30 days to submit the necessary evidence.
In a report dated August 7, 2017, Dr. Murali Sharath, a Board-certified internist, diagnosed
upper respiratory symptoms and asthma.
In an August 24, 2017 response to OWCP’s development questionnaire, the employing
establishment indicated that there were dark spots on the wall and floor of appellant’s duty station
that had not been clinically identified. It noted that she worked in a fee booth that was
approximately 10 feet square and was required to frequently open a service window to converse
with visitors. The employing establishment found that appellant was exposed to moisture issues
due to air conditioning unit drainage issues with resulting dark spots on the floor, wall, curtain,
and chair within her workspace. It noted that it did not have the final resu lts of studies to determine
the presence and species of mold within appellant’s duty station.
An August 30, 2017 indoor environmental assessment of appellant’s workspace found
mold due to elevated humidity and chronic added moisture from the a ir conditioner leak. The
molds identified included aspergillus/penicillium and cladosporium amplified inside the
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 20, 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.

2

workspace when compared to outdoor air, while stachybotrys was growing beneath the air
conditioner. The study noted that there were no national standards for the number of fungal spores
that may be present in an indoor environment, but that it was widely accepted that indoor air quality
should not exceed the number and types of mold that are present outdoors at any given time. It
further noted that the molds found were the most common indoor allergens. The study noted that
aspergillus/penicillium contained common allergens and may cause hypersensitivity pneumonitis
as well as producing mycotoxins, which may be associated with disease in humans. It further
noted that cladosporium was a common allergen producing more than 10 allergenic antigens and
a common cause of hypersensitivity pneumonitis. The study reported that stachybotrys chartarum
produced potent tricothecene mycotoxins, which could suppress the immune system affecting the
lymphoid tissue and the bone marrow. The mycotoxin was also reported to be a liver and kidney
carcinogen.
On September 2, 2017 appellant provided a narrative statement addressing her exposure to
an improperly installed air conditioner unit with drainage indoors behind the walls. Due to the
water condensation, mold formed on the furniture, floors, and equipment. Appellant attributed her
asthma, heart palpitations, and anxiety to this exposure.
By decision dated December 29, 2017, OWCP denied appellant’s occupational disease
claim, finding that she failed to provide medical evidence establishing causal relationship between
her diagnosed conditions and her accepted employment exposures. On January 25, 2018 appellant,
through counsel, requested a telephonic hearing from a representative of OWCP’s Branch of
Hearings and Review.
In a May 14, 2018 note, Bee Valvo, a family nurse practitioner, provided diagnoses of
additional conditions. A telephonic hearing was held on July 9, 2018.
By decision dated September 20, 2018, OWCP’s hearing representative affirmed OWCP’s
December 29, 2017 decision.
On January 11, 2019 appellant informed OWCP that she had her right kidney removed due
to carcinoma and attributed this condition to mold exposure. She also noted that she had
experienced a heart attack, been diagnosed with small airway disease, and irritable bowel
symptoms.
In an attending physician’s report (Form CA-20) dated January 17, 2017, Dr. M. Azam
Khan, a Board-certified surgeon, noted appellant’s history of exposure to mold from April 2
through October 31, 2017. He reported that she developed cancer of the right kidney in
August 2018 and experienced stroke, seizures, and heart arrhythmia. Dr. Khan noted that
appellant’s asthma was aggravated and she developed airway disease. He diagnosed autoimmune
disease of the digestive tract. Dr. Khan indicated by checking a box marked “Yes” that he believed
that her condition was caused or aggravated by employment, but added “Maybe.” He
recommended that appellant be evaluated by a physician specializing in environmental exposure
to mold.
On July 17, 2019 appellant, through counsel, requested recon sideration of the
September 20, 2018 decision and submitted a report from Dr. Lynese L. Lawson, an osteopath

3

specializing in family medicine, as well as excerpts from medical publications. In the July 10,
2019 report, Dr. Lawson noted her symptoms of seizures, hair loss, a mass on her right kidney,
shortness of breath, brain fog, nightmares, small airway disease, autoimmune disease, significantly
impaired cognitive thinking, and myocardial infarction. She asserted that appellant had not
experienced these health issues prior to her employment exposure to mold while working as a
federal ranger. Dr. Lawson found that her symptoms were consistent with chronic inflammatory
response syndrome (CIRS), an illness induced and worsened by exposure to molds. She opined
that it was more probable than not that appellant’s diagnosed CIRS was directly caused by the
exposure to toxic mold at her former place of employment as a forest ranger.
By decision dated August 12, 2019, OWCP denied modification of its prior decisions,
finding that appellant had not provided rationalized medical opinion evidence supporting causal
relationship between her accepted employment exposures and her diagnosed conditions.5
On February 18, 2020 appellant requested reconsideration of the August 12, 2019 decision
and summarized publications addressing toxic mold exposure. She also submitted a series of
medical publications, articles, and studies addressing sick building syndrome, damp indoor spaces,
and resulting bacteria, mold, and fungal exposure.
In a January 5, 2020 report, Dr. Lawson repeated her diagnosis of CIRS and again opined
that it was more probable than not that appellant’s diagnosed CIRS was directly caused by the
exposure to toxic mold at her former place of employment.
By decision dated August 20, 2020, OWCP denied appellant’s request for reconsideration
of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), finding that her request for
reconsideration neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application. 6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7

5

On October 1, 2019 the Office of Personnel Management approved appellant’s application for disability retirement
due to atrial fibrillation a nd CIRS.
6

5 U.S.C. § 8128(a); L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
7

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

4

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 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. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s February 18, 2020 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that it did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant has not provided relevant and pertinent new evidence
not previously considered.
In support of her reconsideration request, appellant submitted a January 5, 2020 report from
Dr. Lawson repeating her diagnosis of CIRS and opining that this condition was caused by the
exposure to toxic mold at her former place of employment. This report was duplicative and
cumulative of Dr. Lawson’s July 10, 2019 report. Evidence which repeats or duplicates evidence
already of record has no evidentiary value and does not constitute a basis for reopening a case. 11
Appellant also submitted excerpts of medical publications, studies, and reports. The Board
has held that excerpts of publications medical or otherwise are of no evidentiary value in
establishing a claim as they are of general application and are not determinative as to whether
specific conditions or disability were the result of the employment. This material has probative
value only to the extent that it is interpreted and cited by a physician rendering an opinio n on the
causal relationship between a condition and specified employment injury. 12 As appellant did not
8

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.
9

Id. at § 10.608(a); see also J.R., Docket No. 20-0887 (issued May 26, 2021); M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); A.G., Docket No 19-0113 (issued July 12, 2019).

11

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005).
12

I.M., Docket No. 19-1189 (issued November 16, 2020); C.S., Docket No. 14-1994 (issued June 26, 2015); D.C.,
Docket No. 13-1713 (issued November 20, 2013); Harlan L. Soeten, 38 ECAB 566, 567 (1987).

5

submit a physician’s opinion interpreting the medical publications, she failed to submit relevant
and pertinent new medical evidence. OWCP is not required to review a claimant’s claim on the
merits when the evidence or argument submitted on reconsideration does not address the particular
issue involved. 13
Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

13

I.M., id.; J.F., Docket No. 16-1233 (issued November 23, 2016); Edward Matthew Diekemper, 31 ECAB 22425 (1979).

6