United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fayetteville, AR, Employer
__________________________________________

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

Docket No. 15-1779
Issued: November 23, 2015

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 August 25, 2015 appellant filed a timely appeal from a June 1, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an
emotional condition causally related to compensable work factors, and (2) whether OWCP
properly denied appellant’s request for subpoenas.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 16, 2013 appellant, then a 49-year-old social worker, filed an occupational
disease claim (Form CA-2) alleging that he sustained emotional stress “related to discrimination
and [Equal Employment Opportunity (EEO)] claim/process.” By letter dated December 17,
2013, OWCP requested that he submit additional evidence to support his claim for
compensation.
Appellant submitted a statement dated January 24, 2014. He indicated that he had filed
an initial EEO claim in 2011, and his psychiatric condition was related to “multiple cases of
workplace secondary trauma stress, workplace stress, discrimination, stress associated with the
EEO claim, and retaliation related to the EEO claim.” According to appellant, the EEO process
was by its own nature stressful. Appellant discussed his work on an Indian Reservation prior to
his employment with the employing establishment. He alleged that he began work at the
employing establishment in 2003 and worked long hours during a two-week deployment with
evacuees after Hurricane Katrina in 2005. According to appellant, he was the only full-time
therapist in 2006, rarely took lunch breaks, and it was stressful seeing veterans that needed more
care than the clinic could provide. He alleged there was little or no administrative support, and
he received only a fully satisfactory on performance appraisal despite his work efforts. As to the
time following 2006, appellant alleged that he was subject to discrimination and repression.
According to appellant, the employees at the work site were primarily female and he was subject
to discrimination as a male, and never once during the EEO process did he perceive any genuine
concern for his well-being. He referred to evidence from the 2011 EEO claim that included his
closing statement and appeal.
With respect to appellant’s EEO claim, the record contains a decision dated July 5, 2013
from an administrative judge. The decision indicated that appellant had alleged he was
discriminated against on the basis of sex (male) and was subject to a hostile work environment.
The allegations included actions by supervisors from 2007 to 2011. Appellant alleged that
supervisor J.T. had accused appellant on two occasions of losing travel allowances for
employees, failed to solicit his input on projects, criticized appellant in 2009 for failing to tell
patients he had been selected to the position of consult screener, did not offer appellant the
opportunity to volunteer for team leader, and denied appellant an opportunity to attend leadership
training. In addition, appellant alleged that another supervisor gave him a negative reference in
2009 when he applied for another position. The judge addressed each allegation and found
appellant had not established a hostile work environment or discrimination. The decision found:
“Complainant has presented no evidence that any of the incidents were because of his sex.
Complainant failed to prove that he was subjected to conduct sufficiently severe or pervasive to
create a hostile work environment or that any of the [employing establishment’s] actions were
motivated by discrimination.”
As noted by appellant, he submitted his “closing statement” dated January 13, 2013
presenting his arguments in the EEO claim. Appellant indicated that he found the EEO process
to be intimidating. In a September 13, 2013 “appeal” of the EEO decision appellant reviewed his
disagreement with the administrative judge’s decision. Appellant again indicated that the EEO
process was unfair and intimidating. In addition, the record also contains a transcript of an
October 27, 2011 interview with an EEO investigator.

2

In an e-mail from appellant dated December 27, 2013, appellant indicated that he had
filed a second EEO claim in 2013 alleging retaliation for filing the 2011 EEO claim. The
employing establishment submitted a February 12, 2014 letter from a workers’ compensation
specialist arguing appellant had not established compensable work factors.
Appellant submitted a January 23, 2014 statement asserting that his work-related
condition started prior to filing an EEO claim. According to appellant, his condition was due to
accumulated “secondary trauma stress” and workplace stress including discrimination. By letter
dated March 9, 2014, appellant reported that his stress was not solely due to the EEO process,
but “workplace dynamics and work-related stress” led him to filing an EEO claim. He also
submitted a May 9, 2014 letter arguing that employees have difficulty submitting supplemental
evidence because coworkers will respond to employing establishment requests, but not to his
requests for information. Appellant referred to “excessive hours, staffing shortages, toxic work
environment which was exasperated [sic] and compounded by years of ill treatment by
supervision (disparity of treatment, isolating and critical).”
By decision dated June 30, 2014, OWCP denied the claim for compensation. It found
appellant had not established a compensable work factor.
On July 11, 2014 appellant requested an oral hearing before an OWCP hearing
representative, which was held on February 18, 2015. By letter received on August 25, 2014, he
requested that subpoenas be issued for witnesses, including a former supervisor, physicians, and
his spouse. Appellant also referred to EEO hearing transcripts and reports. He also submitted a
letter dated January 22, 2015 again requesting the witnesses be subpoenaed. The hearing
representative advised appellant on January 26, 2015 that the subpoena request was denied. The
hearing representative found appellant had not provided sufficient explanation as to why
subpoenas were necessary with respect to the issue presented. She noted that, if an adverse
decision was issued on the merits, she may appeal all issues of the case, including the subpoena
issue.
At the hearing, appellant alleged that in 2006 he had “879 encounters and 347 unique
veterans.” He alleged that he was treated differently after he filed an EEO claim, and that the
employing establishment would destroy an employee rather than admit making a mistake.
Appellant also reported that in September 2014 he was reprimanded for nodding off in a
meeting.
By decision dated June 1, 2015, the hearing representative affirmed the June 30, 2014
OWCP decision. The hearing representative found that appellant had not established any
compensable work factors with respect to his claim. Regarding the request for subpoenas she
found that appellant failed to provide adequate rationale explaining why the information could
not be obtained by other means or why it was relevant.
LEGAL PRECEDENT -- ISSUE 1
Appellant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he claims compensation was caused or adversely

3

affected by factors of his federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it, but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment, or to hold a particular
position, or to secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties, or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.4
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.5 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.6
ANALYSIS -- ISSUE 1
In the present case, appellant has alleged that he sustained an emotional condition as a
result of his federal employment. The Board finds that while appellant refers to his work in 2005
and 2006, he does not discuss in detail his work duties or allege a reaction to the performance of
his regular or specially assigned duties. Appellant does refer to “excessive hours” in his May 9,
2014 letter, notes a two-week deployment after Hurricane Katrina, and he has alleged that he was
the only therapist for a period of time at the employing establishment.
To the extent that he is alleging a reaction to overwork, he has not established a
compensable work factor. A claimant must provide a detailed allegation and supporting
evidence to establish a compensable work factor based on overwork.7 There is no probative
evidence of record in this regard.

2

Pamela R. Rice, 38 ECAB 838 (1987).

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

6

Margreate Lublin, 44 ECAB 945, 956 (1993).

7

See Sherry L. McFall, 51 ECAB 436 (2000).

4

With respect to a claim for an emotional reaction resulting from discrimination or a
hostile work environment, the record does not support such a claim. The record indicated that
appellant filed an EEO claim for discrimination and a hostile work environment in 2011.
Appellant has expressed his frustration with the EEO “process” of establishing a claim. Stress
resulting from a reaction to the procedures and requirements of an EEO claim, or frustration at a
lack of success with respect to an EEO claim, is not compensable under FECA.8
In the July 5, 2013 EEO decision, the administrative judge makes detailed findings with
respect to appellant’s allegations and finds no basis for finding discrimination by the employing
establishment. The record does not contain probative evidence sufficient to establish
discrimination or a hostile work environment. In the absence of probative evidence, the
allegation of discrimination or hostile work environment is merely a perception of dissatisfaction
with supervisors that does not constitute a compensable work factor.9 The record indicated that
appellant filed another EEO claim alleging retaliation for filing the 2011 EEO claim. The filing
of a claim for retaliation does not establish that the alleged retaliation occurred.10 There must be
probative, supporting evidence to establish harassment in retaliation of filing an EEO claim.11
Again a mere perception of harassment is not a compensable work factor. There is no probative
evidence of record with respect to an allegation of retaliation in this case.
Appellant has alleged error and abuse by the employing establishment with respect to
performance appraisals and reprimands, which are considered administrative or personnel
matters.12 As noted above, unless there is evidence of error or abuse, an administrative or
personnel matter is not a compensable work factor. No evidence of error or abuse on an
administrative or personnel matter was presented. In addition, the alleged incidents of being
criticized by supervisors do not constitute compensable work factors. While the Board has
recognized that a compensable factor may be established based on verbal abuse,13 not every
statement that is uttered in the workplace is sufficient to give rise to a compensable work
factor.14 Even if a raised voice is used, this does not in itself establish verbal abuse.15 No
evidence sufficient to establish a compensable factor based on verbal abuse was presented in this
case.

8

Christine C. Bodenheimer, Docket No. 04-1230 (issued September 10, 2004); Derrick A. Lee, Docket No. 030881 (issued August 11, 2003); Eileen P. Corigliano, 45 ECAB 581 (1994).
9

See M.G., Docket No. 14-1538 (issued April 16, 2015).

10

See C.S., 58 ECAB 137 (2006).

11

D.J., Docket No. 15-0060 (issued April 10, 2015).

12

See P.M., Docket No. 14-1625 (issued February 23, 2015) (performance reviews are personnel or
administrative matters); G.C., Docket No. 13-0704 (issued April 4, 2014) (disciplinary actions are administrative or
personnel matters).
13

David W. Shirey, 42 ECAB 783 (1991).

14

David C. Lindsey, Jr., 56 ECAB 263 (2005).

15

Beverly R. Jones, 55 ECAB 411 (2005); Karen K. Levene, 54 ECAB 671 (2003).

5

On appeal, appellant asserts that OWCP did not carefully consider the evidence in his
case. He reiterates his belief that he has an employment-related emotional condition. The Board
has considered the evidence of record and finds, for the reasons discussed, that appellant did not
meet his burden of proof to establish an emotional condition casually related to compensable
work factors.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8126 of FECA provides that the Secretary of Labor, on any matter within her
jurisdiction under this subchapter, may issue subpoenas for and compel the attendance of
witnesses within a radius of 100 miles.16 The implementing regulations provide that a claimant
may request a subpoena, but the decision to grant or deny such a request is within the discretion
of the hearing representative, who may issue subpoenas for the attendance and testimony of
witnesses and for the production of books, records, correspondence, papers, or other relevant
documents. Subpoenas are issued for documents only if they are relevant and cannot be obtained
by other means and for witnesses only where oral testimony is the best way to ascertain the
facts.17 In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.18 Section
10.619(a) of the implementing regulations provide that a claimant may request a subpoena only
as a part of the hearings process and no subpoena will be issued under any other part of the
claims process.
The OWCP hearing representative retains discretion on whether to issue a subpoena. The
function of the Board on appeal is to determine whether there has been an abuse of discretion.19
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable
exercise of judgment or actions taken which are clearly contrary to logic and probable deduction
from established facts.20
ANALYSIS -- ISSUE 2
On appeal, appellant noted that he had been unable to subpoena witnesses that could have
validated and confirmed his reports. The Board finds that the hearing representative properly
denied appellant’s subpoena requests. Appellant did not explain why a subpoena was the best
16

5 U.S.C. § 8126(1).

17

20 C.F.R. § 10.619; Gregorio E. Conde, 52 ECAB 410 (2001).

18

Id.

19

See Gregorio E. Conde, supra note 17.

20

Claudio Vazquez, 52 ECAB 496 (2001).

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method to obtain the evidence in question and why oral testimony was the best way to ascertain
the facts in this case. The hearing representative noted that appellant had not explained the
necessity for subpoena of witnesses in this case. As to documents, appellant had access to and
submitted relevant evidence regarding his EEO claims.
A hearing representative has, as noted above, discretion with respect to a subpoena
request. There is no evidence that the hearing representative abused her discretion in denying
appellant’s request for subpoenas. The Board therefore finds that the hearing representative
properly denied appellant’s subpoena requests.
CONCLUSION
The Board finds appellant did not meet his burden of proof to establish an emotional
condition causally related to compensable work factors. The Board further finds that the OWCP
hearing representative properly denied the subpoena requests.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2015 is affirmed.
Issued: November 23, 2015
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 07-2042
Issued: June 3, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2007 appellant filed a timely appeal from the June 29, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the Office’s nonmerit denial.
ISSUE
The issue is whether the Office properly denied appellant’s May 23, 2007 request for
reconsideration.
FACTUAL HISTORY
On May 27, 1987 appellant, then a 48-year-old mail handler, sustained an injury in the
performance of duty when he pulled a tub and felt a sharp pain in the left side of his back. The

Office accepted his claim for low back strain, chronic pain syndrome and aggravation of
arachnoiditis radiating into both lower extremities.1
On May 21, 1996 appellant filed a claim alleging that his cervical and lumbar stenosis
with radiculopathy was a result of his federal employment. The Office accepted this claim for
aggravation of cervical and lumbar stenosis. It approved an anterior cervical discectomy and
fusion. The Office also approved a decompressive laminectomy at L3-5.2
Appellant claimed a recurrence of disability from April 26 to June 16, 2002. In a
decision dated July 3, 2002, the Office denied his claim on the grounds that there was no medical
evidence to support that he was disabled due to a work-related condition. On January 10, 2003
an Office hearing representative affirmed the denial. The hearing representative found that
appellant failed to submit medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concluded that the alleged disabling condition for the
period in question was causally related to the accepted employment injury and who supported
that conclusion with sound medical reasoning. On March 26 and October 14, 2003 and again on
March 31, 2004 the Office reviewed the merits of appellant’s claim for wage loss and found that
the submitted medical evidence did not establish disability causally related to his accepted
conditions for the period in question.
The statement of appeal rights attached to the Office’s March 31, 2004 decision notified
appellant that he had one year from the date of the decision to request reconsideration:
“If you have additional evidence or legal argument that you believe will establish
your claim, you may request, in writing, that [the Office] reconsider this decision.
The request must be made within one-calendar year of the date of the decision,
clearly state the grounds upon which reconsideration is being requested and be
accompanied by relevant evidence not previously considered. This evidence
might include medical reports, sworn statements, or a legal argument not
previously made, which apply directly to the issue addressed by this decision.”
On October 12, 2004 appellant requested reconsideration of the Office’s March 31, 2004
merit decision.
In a decision dated November 24, 2004, the Office denied this request without reviewing
the merits of appellant’s case. It found that the evidence received after the March 31, 2004
denial of compensation either was not relevant to the issue of his disability from April 26 to
June 16, 2002 or represented previously argued legal positions, which did not require further
merit review.
On July 20, 2006 the Board found that appellant did not meet his burden of proof to
establish any entitlement to an additional schedule award. The Board noted that appellant, who

1

OWCP File No. 09-0311584.

2

OWCP File No. 09-0445451. The Office combined these cases under File No. 09-0311584.

2

was at the time represented by an attorney, did not appeal the Office’s November 24, 2004
nonmerit decision denying reconsideration of his recurrence claim.3
Following the Board’s decision, the Office undertook further development of the
schedule award issue. It obtained a March 6, 2007 second opinion from an orthopedic surgeon
and an April 24, 2007 supplemental report on the nature and extent of appellant’s permanent
impairment.4
On September 26, 2006 appellant noted that the Board had not reviewed the
November 24, 2004 nonmerit decision and advised the Office that he “will be requesting
reconsideration.” On November 27, 2006 he wrote as the subject of his letter “Reconsideration
for wage-loss period April 26, 2002 thru June 16, 2002,” but stated: “What I am requesting is
that when you schedule me to see the doctor [for a rating on permanent impairment], would you
please note in the statement of accepted facts [SOAF] asking the doctor to give his medical
opinion on the wage-loss period given the medical history and the degenerative nature of the
disease/injury being careful to note my job while working for the postal service was medically
unsuited for the type of injury/disease.”
On May 23, 2007 appellant contended that no action was taken on his request for
reconsideration of the wage-loss period April 26 through June 16, 2002:
“If you would go into the case file you will see that I included in the
reconsideration of the increase in the increase in schedule award request. [sic] I
also requested reconsideration of the wage loss period and no action was done and
when I appeal to ECAB it was not acted on, so denying me the right of
reconsideration is wrong since my claim was up at ECAB for over two years. I
directed your attention to decision dated November 24, 2004 that decision clearly
state that each one of those decision would be acted on separately and this was
never done. Since I have undergone and new medical evidence has been
submitted in the intervening period would suggest a through review of the
medical evidence that clearly show a nexus to the wage loss under discussion, so I
request that close scrutiny of the record so a credible decision can be rendered.”
In a decision dated June 29, 2007, the Office denied appellant’s request for
reconsideration without reviewing the merits of his case. It found that his request was untimely
and did not present clear evidence of error in its most recent merit decision of March 31, 2004.

3

See Docket No. 05-1125 (issued July 20, 2006). Even if appellant, through his attorney, had appealed the
Office’s November 24, 2004 nonmerit decision, the Board could not have addressed the merits of his recurrence
claim as his appeal was not filed within one year of the Office’s March 31, 2004 decision, which was the most
recent merit decision on the issue.
4

Appellant filed the present appeal before the Office issued any further decision on the schedule award issue.
That issue is not before this Board. See 20 C.F.R. § 501.2(c).

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on request. The Secretary, in
accordance with the facts found on review may-(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”5
The Office, through regulations, has imposed limitations on the exercise of its discretion
under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that a request for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought. The Office will consider an untimely request only if the request demonstrates clear
evidence of error on the part of the Office in its most recent merit decision. The request must
establish, on its face, that such decision was erroneous.6
The term “clear evidence of error” is intended to represent a difficult standard.7 If clear
evidence of error has not been presented, the Office should deny the request by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.8
ANALYSIS
The Office’s March 31, 2004 decision is the most recent merit decision on appellant’s
claim for a recurrence of disability from April 26 through June 16, 2002. The Office properly
notified him that he had one-calendar year from the date of that decision, or until March 31,
2005, to request reconsideration. Appellant made a timely request on October 12, 2004, which
the Office denied. He did not make another request for reconsideration on this issue until
May 23, 2007.9 The standard of review, therefore, is whether appellant’s untimely request
presents clear evidence of error in the Office’s March 31, 2004 decision denying his recurrence
claim.

5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.607 (1999).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

8

Id. at Chapter 2.1602.3.d(1).

9

Appellant’s November 27, 2006 letter is more accurately considered a request for the Office to further develop
the medical evidence on the issue of recurrence, and not a request for the Office to reconsider its March 31, 2004
decision.

4

Nothing in appellant’s May 23, 2007 request for reconsideration shows, on its face, that
the Office’s March 31, 2004 decision was clearly erroneous. Each time the Office denied his
claim for wage loss from April 26 through June 16, 2002, it explained the deficiencies in the
medical evidence he submitted. The Board notes that appellant did not submit any medical
evidence in support of his May 23, 2007 request. Appellant contends that he sustained disability
from April 26 through June 16, 2002 causally related to his accepted employment injuries.
However, the issue of disability for work is an issue that must be resolved by competent medical
evidence.10 The Office’s further development of the medical evidence on the issue of his
permanent impairment has no bearing on his claim that he sustained a recurrence of disability for
work beginning April 26, 2002. Appellant’s contentions to the contrary, the Board finds that the
evidence does not raise a substantial question concerning the correctness of the Office’s decision.
Because appellant’s May 23, 2007 request for reconsideration is untimely and fails to
demonstrate clear evidence of error in the Office’s March 31, 2004 decision, the Board will
affirm the Office’s June 29, 2007 decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s May 23, 2007 request for
reconsideration. Appellant’s request is untimely and does not establish clear evidence of error in
the Office’s denial of his claim of recurrence.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 3, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

See Maxine J. Sanders, 46 ECAB 835 (1995).

5


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

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

Docket No. 14-1460
Issued: January 2, 2015

Case Submitted on the Record

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

JURISDICTION
On June 16, 2014 appellant filed a timely appeal from a June 5, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for an increased
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has more than a 21 percent permanent impairment of each
upper extremity for which he received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In an order dated June 2, 2003, the
Board granted the Director’s motion to set aside an October 29, 2001 decision and remand the
1
2

5 U.S.C. § 8101 et seq.

The record also contains a June 16, 2014 OWCP decision denying authorization for a cane. Appellant has not
appealed this decision and thus it is not before the Board at this time. See 20 C.F.R. § 501.2(c).

case for additional development of the medical evidence regarding the extent of appellant’s
permanent impairment of the right upper extremity.3 On August 1, 2003 the Board reversed a
January 17, 2002 loss of wage-earning capacity determination.4
In a decision dated
November 22, 2005, the Board set aside February 4 and November 5, 2004 decisions granting
appellant a schedule award for a nine percent right upper extremity impairment.5 The Board
found that OWCP failed to obtain a supplemental medical report addressing the extent of his
permanent impairment as recommended by an OWCP medical adviser. By decision dated
October 19, 2006, the Board affirmed in part and set aside in part a February 1, 2006 decision
finding that appellant had a 13 percent permanent impairment of the left upper extremity,6 and
remanded the case for further development on the extent of any permanent impairment of the
right upper extremity. In an order dated December 31, 2007, the Board affirmed in part and set
aside in part January 12 and May 23, 2007 decisions granting appellant a schedule award for a 13
percent left upper extremity and offsetting compensation from the schedule award to recover an
amount paid to him in error for his right upper extremity.7 The Board found that OWCP did not
sufficiently explain its finding that he received an overpayment which should be recovered by
withholding a portion of his schedule award. By decision dated December 12, 2008, the Board
set aside June 25, 2007 and March 14, 2008 decisions finding that appellant received an
overpayment of compensation because OWCP erroneously paid him a schedule award for more
than a nine percent permanent impairment of the right upper extremity.8 The Board determined
that OWCP did not properly adjudicate the extent of his permanent impairment of the right upper
extremity and remanded the case for further development of the medical evidence.
In a decision dated April 4, 2011, the Board set aside an April 19, 2010 OWCP decision,
finding that appellant had no more than a nine percent permanent impairment of the right upper
extremity.9 It determined that neither the second opinion physician nor the medical adviser
appropriately rated his impairment of the extremity resulting from a spinal nerve impairment
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides) (6th ed. 2009). The Board remanded the case for
OWCP to obtain a medical opinion regarding the extent of his right upper extremity impairment
consistent with the July/August 2009 edition of The Guides Newsletter. In an Order Remanding
Case dated August 24, 2012, the Board set aside a November 30, 2011 decision granting
3

Order Granting Remand and Cancelling Oral Argument, Docket No. 02-1225 (issued June 2, 2003). On
March 19, 1999 appellant, then a 48-year-old mail handler, filed an occupational disease claim alleging that he
sustained a back condition due to factors of his federal employment. OWCP accepted the claim for an acceleration
of cervical spine disease. He underwent bilateral posterior foraminotomies at C3-4 and C4-5 on January 27, 1999
and an anterior discectomy and fusion at C6-7 on July 2, 1999. Appellant further underwent bilateral
foraminotomies and fusion at C4-5, C5-6 and C6-7 on December 10, 2004.
4

Docket No. 02-1072 (issued August 1, 2003).

5

Docket No. 05-1726 (issued November 22, 2005).

6

Docket No. 06-122 (issued October 19, 2006).

7

Order Remanding Case, Docket No. 07-1753 (issued December 31, 2007).

8

Docket No. 08-1247 (issued December 12, 2008).

9

Docket No. 10-1562 (issued April 4, 2011).

2

appellant an increased schedule award.10 It noted that OWCP had referred appellant to
Dr. Michael D. Plooster, a Board-certified orthopedic surgeon, for a second opinion examination.
The Board found, however, that Dr. Plooster and the medical adviser did not apply The Guides
Newsletter in determining appellant’s impairment caused by the injury to his cervical spine. On
March 3, 2014 the Board set aside an April 24, 2013 decision finding that he had a total of a 21
percent permanent impairment of each upper extremity due to cervical radiculopathy.11 It found
that the medical adviser had not applied The Guides Newsletter in reaching his impairment rating
and remanded the case for OWCP to obtain an opinion on the extent of appellant’s impairment in
accordance with the sixth edition. The facts and circumstances as set forth in the prior decisions
and orders are hereby incorporated by reference. The medical evidence set forth in the prior
decisions relevant to the present appeal will be briefly summarized.
In a report dated July 28, 2009, Dr. Kenneth H. Yuska, a Board-certified orthopedic
surgeon and OWCP referral physician, found that appellant had weakness of the right long finger
flexors and small muscle due to a motor deficit at C6-7 and a probable partial sensory loss in the
left hand “not entirely physiologic.” Using the sixth edition of the A.M.A., Guides, he found that
appellant had a 25 percent whole person impairment due to radiculopathy at multiple levels.
Dr. Yuska stated, “[Appellant’s] condition is a mild motor radiculopathy of the right hand, and a
left sensory radiculopathy which, although at multiple levels, does not strictly correlate to the
surgery involved.”
In a supplemental report dated February 24, 2010, Dr. Yuska indicated that Chapter 15 of
the A.M.A., Guides did not provide a rating for radicular pain and thus found that appellant had
no upper extremity impairment.
In a report dated July 13, 2011, Dr. Plooster noted that appellant’s upper extremity
impairment originated in the spine. On examination he found “marked hypesthesia of the left
upper extremity from the elbow distalward,” absent brachial radialis, biceps and triceps reflexes
in the bilateral extremities, and loss of sensation of the right index finger and thumb.
Dr. Plooster further found a positive Tinel’s sign on both sides of the neck. He advised that
appellant had permanent disability due to his employment injury, including “pain, numbness in
both upper extremities, loss of manual dexterity in his right hand, and loss of motion in his
neck.” Dr. Plooster questioned how to rate an upper extremity impairment originating in the
spine using the sixth edition of the A.M.A., Guides. He selected the diagnosis of brachial plexus
using Table 15-20 on page 434 to find a 20 percent left upper extremity impairment and a 13
percent right upper extremity impairment.
Electrodiagnostic testing performed on January 21, 2014 revealed bilateral mild carpal
tunnel syndrome and chronic cervical radiculopathy on the left at C6 and C7.
On April 21, 2014 an OWCP medical adviser reviewed the evidence of record, in
particular the July 28, 2009 and February 24, 2010 reports from Dr. Yuska and the July 13, 2011
report from Dr. Plooster. He indicated that OWCP authorized posterior foraminotomies on the
right at C3-4 and bilaterally at C4-5 and an anterior discectomy and fusion at C5-6 and C6-7.
10

Order Remanding Case, Docket No. 12-661 (issued August 24, 2012).

11

Docket No. 13-1703 (issued March 3, 2014).

3

Appellant also underwent a nonwork-related fusion at C3 to C7. The medical adviser noted that
Dr. Yuska found an inconsistent sensory examination and weakness at C6 and C7 of the right
hand, which was consistent with Dr. Plooster’s finding. Citing The Guides Newsletter, he
identified the diagnosis as grade 1 right C6 and C7 radiculopathy with mild motor deficits. The
medical adviser applied a grade 1 modifier for functional history due to pain with strenuous
activity and no modifier for clinical studies based on electrodiagnostic studies conducted
January 21, 2014 of mild radiculopathy on the left rather than right side. He determined that a
grade modifier for physical examination was not applicable as it was used to identify the
diagnosis. Applying the net adjustment formula, the medical adviser found no adjustment. He
concluded that appellant had a 5 percent impairment due to a motor deficit at C6 and a 5 percent
impairment due to a motor deficit at C7, for a total right upper extremity impairment of 10
percent. The medical adviser found “no evidence to suggest a left upper extremity impairment.”
By decision dated June 5, 2014, OWCP found that appellant had no more than the
previously awarded 21 percent permanent impairment of each upper extremity.
On appeal, appellant argues that he incurred financial difficulties due to actions by
OWCP. He requested compensation for leave used and for leave without pay taken from the
date of his initial surgery until he stopped work in 2001. Appellant asserts that he could have
worked longer if the employing establishment had provided him with limited duty.
LEGAL PRECEDENT
The schedule award provision of FECA,12 and its implementing federal regulations,13 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.14 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.15
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that FECA allows ratings for
extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to
rating spinal nerve impairments.16 OWCP has adopted this approach for rating impairment to the

12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

14

Id. at § 10.404(a).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
16

Id. at Chapter 3.700, Exhibit 4 (January 2010); see R.M., Docket No. 12-1811 (issued March 14, 2013).

4

upper or lower extremities caused by a spinal injury.17 The impairment is premised on evidence
of radiculopathy affecting the upper and/or lower extremities.18
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.19 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.20 Once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner.21
ANALYSIS
The Board remanded the case for OWCP to evaluate the extent of appellant’s permanent
impairment consistent with the provisions of The Guides Newsletter. On remand, an OWCP
medical adviser reviewed the evidence of record, in particular the July 28, 2009 and February 24,
2010 reports from Dr. Yuska and the July 13, 2011 report from Dr. Plooster. Based on their
reports, he opined that appellant had a 10 percent permanent impairment of the right upper
extremity and no impairment of the left upper extremity.
The Board finds that the case is not in posture for decision regarding the extent of
appellant’s permanent impairment of each upper extremity. The medical adviser related that
Dr. Yuska found weakness at C6 and C7 of the right hand and an inconsistent sensory
examination. He noted that Dr. Plooster confirmed the finding of weakness of the right hand.
The medical adviser identified the diagnosis as a mild motor deficit at C6 and C7 on the right,
which yielded a default value of five percent under the provisions of The Guides Newsletter.
The medical adviser found no alteration from the default value after applying grade modifiers.
Dr. Plooster, however, determined that appellant had absent biceps, triceps, and brachial radialis
reflexes and pain, and numbness in the bilateral upper extremities due to his employment injury.
The medical adviser did not provide a rating due to sensory loss or explain why he did not accept
Dr. Plooster’s finding that appellant had a sensory impairment of the bilateral upper extremities
other than to note that the prior OWCP referral physician, Dr. Yuska, found an inconsistent
sensory examination. He further found that there was no evidence showing any permanent
impairment of the left upper extremity even though electrodiagnostic testing dated January 21,
2014 revealed chronic cervical radiculopathy on the left at C6 and C7. Consequently, the
medical adviser’s opinion is insufficient to establish the extent of appellant’s permanent
impairment of the bilateral upper extremities.
Given the length of time since the last impairment evaluation by Dr. Plooster in 2011, on
remand OWCP should refer appellant for another impairment evaluation to determine the extent
of his bilateral upper extremity impairment. After such further development as deemed
17

Id.

18

Id.

19

Jimmy A. Hammons, 51 ECAB 219 (1999).

20

20 C.F.R. § 10.121.

21

Melvin James, 55 ECAB 406 (2004).

5

necessary, OWCP shall issue a de novo decision regarding the extent of any upper extremity
impairment.
On appeal, appellant requests compensation for time lost from the time of his first
surgery until he stopped working in 2001. OWCP, however, did not adjudicate the issue of
disability from work in its June 5, 2014 schedule award decision and thus is not an issue
presently before the Board.22 Appellant further contends that OWCP caused him to sustain
financial losses and that the employing establishment should have provided him with limited
duty. The Board’s jurisdiction, however, is limited to reviewing final adverse decisions of
OWCP issued under FECA.23
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT decision of the Office of Workers’ Compensation
Programs dated June 5, 2014 is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: January 2, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

22

See 20 C.F.R. § 501.2(c).

23

Id. at §§ 501.2(c) and 501.3(a) and see supra note 1.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1365
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 16, 2021 appellant through counsel, filed a timely appeal from an
August 16, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-1365.
In a letter dated February 10, 2022, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel ’s request f or the
withdrawal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the withdrawal of the appeal is
granted. The appeal docketed as No. 21-1365 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Scotch Plains, NJ, Employer
__________________________________________
Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 09-2234
Issued: August 31, 2010

Case Submitted on the Record

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

On September 8, 2009 appellant filed for review of a March 11, 2009 decision of the
Office of Workers’ Compensation Programs that denied her request for reconsideration. The
appeal was docket as No. 09-2234.
The Board has duly considered the matter and notes that appellant’s claim was initially
accepted by the Office for a dorsal and lumbosacral strain when she fell at work on
March 6, 2006. She received continuation of pay through May 10, 2006 following which the
Office denied her claims for compensation. The most recent Office merit decision regarding
appellant’s claim for compensation was August 21, 2006. Appellant, through her attorney,
sought reconsideration on March 10, 2008 and submitted additional medical evidence.
Thereafter, on February 24, 2009 the Office accepted that appellant sustained a herniated lumbar
disc with lumbosacral radiculopathy. The acceptance appears based on the reports of appellant’s
treating orthopedic surgeon, Dr. Allan D. Tiedrich. While advising appellant of the acceptance
of her claim, the Office did not set forth any findings of fact or statement of reasons as to
appellant’s claim for disability compensation. Rather, on March 11, 2009 it denied appellant’s
reconsideration request finding it was not timely filed and did not establish clear evidence of
error. It is readily obvious that on February 24, 2009 the Office reopened the merits of
appellant’s claim under section 8128(a) and accepted that she sustained a herniated disc with

radiculopathy.1 Having done so, it was error for the Office to deny reconsideration of her claim
for disability compensation related to her back condition on March 11, 2009. The Office
received evidence into the record from appellant’s physician who advised as to her back
condition and addressed periods of disability related thereto. It is incumbent on the Office to
further develop the period of disability related to appellant’s accepted back conditions. The
February 24, 2009 determination of the Office does not make adequate factual findings with
regard to the issue. For this reason, the March 11, 2009 decision will be set aside and the case
remanded for further development to be followed by an appropriate decision.
IT IS HEREBY ORDERED THAT the March 11, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
conforming to this order of the Board.
Issued: August 31, 2010
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

1

The Board has upheld the Office’s authority to reopen a claim at any time on its own motion under 5 U.S.C.
§ 8128(a) and, where support by the evidence, set aside or modify a prior decision or issue a new decision. See
Amelia S. Jefferson, 57 ECAB 183 (2005).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
MOBILITY COMMAND, CHARLESTON AIR
FORCE BASE, SC, Employer
__________________________________________
Appearances:
Bradley R. Marshall, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-943
Issued: September 13, 2012

Case Submitted on the Record

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

On March 21, 2012 appellant timely filed an application for review from the October 5,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) denying his request
for modification of an OWCP wage-earning capacity determination dated February 7, 2005. The
Board assigned Docket No. 12-943.
OWCP accepted that on July 24, 2001 appellant, then a 46-year-old fabric worker,
sustained a work-related herniated disc at L5-S1. At the time of his July 24, 2001 work injury,
he was working on a full-time basis for the employing establishment.1 On August 16, 2004
appellant returned to a light-duty position for the employing establishment and he began working
six hours per day for a total of 30 hours per week.2 In a February 7, 2005 decision, OWCP
reduced his compensation based on its determination that his actual earnings in this position
fairly and reasonably represented his wage-earning capacity. Appellant stopped work on
March 23, 2010 and requested modification of OWCP’s February 7, 2005 wage-earning capacity
1
2

Appellant worked in this job for 40 hours per week.

Appellant initially returned to work for four hours per day, five days per week, but he later increased his work
hours to six hours per day, five days per week.

determination. In an October 5, 2011 decision, OWCP denied appellant’s request for
modification of its February 7, 2005 wage-earning capacity determination.
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 Section 8115(a) of FECA provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings if his actual earnings fairly and reasonably represent his wageCompensation payments are based on the wage-earning capacity
earning capacity.4
determination and it remains undisturbed until properly modified.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
OWCP’s procedure manual provides that the factors to be considered in determining
whether the claimant’s work fairly and reasonably represented his wage-earning capacity include
the kind of appointment and the tour of duty. The manual states that reemployment may not be
considered suitable when the actual earning job is part time, unless the claimant was a part-time
worker at the time of injury.8
OWCP found that appellant’s actual earnings in part-time reemployment as modified
fabric worker for 30 hours per week fairly and reasonably represented his wage-earning capacity.
Appellant was a full-time worker at the time of his July 24, 2001 work injury as he was working
40 hours per week. As the above-noted procedure makes clear, the Director of OWCP has
determined that, when the tour of duty is not at least equivalent to that of the job held at the time
of injury, OWCP will not consider the reemployment suitable for a wage-earning capacity
determination. The Board finds, therefore, that OWCP abused its discretion in determining
appellant’s wage-earning capacity based on a part-time position.9 The Board will reverse
OWCP’s October 5, 2011 decision.
3

See Katherine T. Kreger, 55 ECAB 633 (2004); 5 U.S.C. § 8115 (regarding determination of wage-earning
capacity).
4

See 5 U.S.C. § 8115.

5

See id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

6

Sharon C. Clement, 55 ECAB 552 (2004).

7

T.M., Docket No. 08-975 (issued February 6, 2009); Tamra McCauley, 51 ECAB 375, 377 (2000).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
9

O.V., Docket No. 11-98 (issued September 30, 2011); S.M., Docket No. 10-2382 (issued September 28, 2011).

2

ORDER
IT IS HEREBY ORDERED THAT the October 5, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF DEFENSE, MISSILE
DEFENSE AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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

Docket No. 13-1905
Issued: April 8, 2014

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 August 14, 2013 appellant filed a timely appeal from a July 15, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for a
prerecoupment hearing.1 Because more than 180 days elapsed from the most recent merit
decision dated January 16, 2013 and pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.

1

The Board notes that appellant timely requested an oral argument before the Board. By letter dated
December 12, 2013, the Clerk of the Board requested that appellant submit the issues to be argued, as well as the
reasons why oral argument was necessary and advised that oral arguments were only held in Washington, DC.
Appellant was asked to confirm his request for oral argument. He did not respond to this request. Accordingly, the
Board in its discretion has proceeded to adjudicate the appeal as submitted on the record.
2

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that OWCP erred in denying his request for a
prerecoupment hearing as he had previously timely filed a request.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.
FACTUAL HISTORY
On May 7, 2010 appellant, then a 43-year-old auditor, alleged that on October 11, 2009
while he was in Iraq and performing physical fitness he felt a pop in his back and his left arm
went numb immediately. OWCP accepted the claim for upper infraspinatus arm and shoulder
sprains, neck sprain and C5-6, C6-7 herniated discs (left forminal) with left C-7 cervical
radiculopathy. It placed appellant on the periodic rolls for temporary total disability effective
July 5, 2011. OWCP authorized cervical surgery which was performed on July 27, 2011.
Appellant returned to full-duty modified work on June 20, 2012 with no loss of wages.
On October 3, 2012 OWCP informed appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $16,606.33, because he was paid in
error for the period June 20 through August 25, 2012. It found that appellant was at fault in the
creation of the overpayment as he accepted payments he knew or should have known were
incorrect. Appellant was asked to complete an enclosed overpayment recovery questionnaire
and submit supporting financial documents. Additionally, OWCP notified him that, within 30
days of the date of the letter, he could request a telephone conference, a final decision based on
the written evidence or a prerecoupment hearing.
On October 29, 2012 appellant requested a prerecoupment telephonic hearing before an
OWCP hearing representative.
By decision dated January 16, 2013, an OWCP hearing representative vacated the
October 3, 2012 preliminary overpayment determination and remanded the case as she was
unable to determine whether the calculations were correct. She found that the record contained
no evidence as to appellant’s actual earnings upon his return to work.
On May 12, 2013 OWCP informed appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $16,606.33, from June 20 through
August 25, 2012, after he returned to work without wage loss. It found that appellant was
without fault in the creation of the overpayment in the amount of $2,726.41 for the period
June 20 to 30, 2012, but was at fault for the remaining amount of $13,879.92 from July 1 to
August 25, 2012. OWCP informed appellant that he had been found at fault in the creation of
the overpayment for the period July 1 to August 25, 2012 as he accepted payments he knew or
should have known were incorrect. It requested that appellant complete the enclosed
overpayment recovery questionnaire and submit supporting financial documents. Additionally,
OWCP notified him that, within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence or a prerecoupment hearing.

2

On June 26, 2013 OWCP received appellant’s undated request for a prerecoupment
hearing. The postmark on the attached envelope was June 20, 2013.
By decision dated July 15, 2013, OWCP denied appellant’s request for a prerecoupment
hearing as untimely.
LEGAL PRECEDENT
OWCP regulations on the recovery of overpayments provide that, before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fault and the right to request waiver of the overpayment.3 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.4
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right
to a hearing.5 The only right to a review of a final overpayment decision is to the Board.6 The
hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment decision.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely. OWCP notified him of its preliminary determination that he received an
overpayment of compensation in a letter dated May 17, 2013. It informed appellant that he could
request a telephone conference, a prerecoupment hearing or a final decision based on the written
evidence within 30 days of the date of the letter. OWCP’s implementing regulations are specific
as to the 30-day time limitation in which to request a prerecoupment hearing. Appellant’s
request for a prerecoupment hearing was postmarked June 20, 2013 more than 30 days after
OWCP’s notification of overpayment dated May 17, 2013. As provided in OWCP regulations,
his hearing request was therefore untimely and he waived his right to a prerecoupment hearing.8
On appeal, appellant contended that he had filed a timely request for a prerecoupment
hearing on October 29, 2012. The record establishes, however, that an OWCP hearing
representative set aside the October 3, 2012 preliminary overpayment determination. The case
was remanded for further development of the overpayment determination. After development of
the evidence, OWCP issued a new preliminary determination of overpayment on May 17, 2013.
It provided appellant with notification as to a prerecoupment hearing and the necessity to make a
request within 30 days. As noted, OWCP regulations are clear that any request for a hearing
3

20 C.F.R. § 10.431; see also A.G., 58 ECAB 625 (2007).

4

Id. at § 10.432.

5

Id.; see also L.C., 59 ECAB 569 (2008); Willie C. Howard, 55 ECAB 564 (2004).

6

20 C.F.R. § 10.440(b).

7

Id.; see also Philip G. Feland, 48 ECAB 485 (1997).

8

H.K., Docket No. 11-543 (issued November 25, 2011); James B. Moses, 52 ECAB 465 (2001); Earl D. Long, 50
ECAB 464 (1999).

3

must be made within 30 days of the preliminary determination.9 Accordingly, it properly denied
his request for a prerecoupment hearing as it was not timely.10 Appellant also presented
arguments regarding the date he received the May 17, 2013 preliminary notice of overpayment,
incorrect information and the lack of page numbering. None of these arguments is relevant to
the timeliness of his request. He did not establish any error on the part of OWCP in denying his
request for a prerecoupment hearing.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 15, 2013 is affirmed.
Issued: April 8, 2014
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

9

20 C.F.R. § 10.432.

10

Supra note 8

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
NATIONAL GUARD, Schenectady, NY,
Employer
__________________________________________

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

Docket No. 16-0715
Issued: August 11, 2016

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 February 29, 2016 appellant filed a timely appeal from a February 9, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to rescind its acceptance of
appellant’s recurrence of disability claim; and (2) whether appellant met his burden of proof to
establish a recurrence of disability beginning September 20, 2006 causally related to his accepted
employment condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 3, 1996 appellant, then a 46-year-old aircraft mechanic foreman, sustained a
back injury while moving lockers at work. He stopped work on January 8, 1996 and worked
intermittently before returning to full duty on October 5, 1998.
An initial magnetic resonance imaging (MRI) scan of the lumbosacral spine revealed a
large central and left paracentral disc herniation at the L4-5 level and degenerative disc disease
from the L2-3 through the L5-S1 levels. OWCP accepted the claim for sprain of the lumbosacral
spine and subsequently accepted displacement of a lumbar intervertebral disc without
myelopathy. It authorized an August 14, 1996 left L4-5 hemilaminectomy and microdiscectomy,
performed by Dr. Frank Genovese, a Board-certified neurological surgeon.
In an April 12, 2002 proposed notice of indefinite suspension, the employing
establishment proposed an indefinite suspension for conduct unbecoming of a National Guard
technician and abuse of government property. Effective September 12, 2002, it terminated
appellant’s employment.
The record indicated that appellant was incarcerated from
November 17, 2003 until September 5, 2006 for reasons unrelated to his compensation claim.
In a September 25, 2006 report, Dr. Peter Diamond, an osteopath Board-certified in
family medicine, advised that appellant had a workers’ compensation-related lumbar disc
disease. Examination revealed weakness in the left leg, positive straight leg raise at 45 degrees,
no muscular atrophy, normal pulses, and decreased range of motion of the lumbar spine.
Dr. Diamond recommended physical therapy.
In an April 13, 2007 notice of recurrence (Form CA-2a), appellant alleged a recurrence
on September 20, 2006. He stated that he never fully recovered from his work injury and that it
worsened over time, which prevented him from working and limited his activity. Appellant
stated that he was playing with his grandkids when he felt a sharp low back pain and a loss of
strength in his low back and left leg that caused him to fall. He explained that he had numbness
and pain in his toes, pain in his low back radiating down his left leg, and sharp pain in his left
buttock.
In a July 10, 2007 report, Dr. Genovese advised that appellant progressively complained
of low back difficulty and intermittent flare ups. He noted that appellant was out of work since
2002 when he was suspended from the employing establishment. On examination Dr. Genovese
noted positive single leg raise, inability to heel walk on the left, 4/5 strength in the left
dorsiflexor halluces longus, and decreased pinprick from the ankle down on the left.
In an August 27, 2007 report, Dr. Paul Salerno, a Board-certified physiatrist, advised that
appellant was injured in a January 3, 1996 work-related accident. He noted that appellant
worked until 2002, but had since been unemployed due to his back condition. Dr. Salerno
opined that it was clear that appellant was unable to return to his prior level of function as an
aircraft mechanic.

2

In a September 14, 2007 report, Dr. Diamond advised that he wrote a note indicating that
appellant had been unable to work for the past two years because of his lumbar disc disease. He
opined that appellant was permanently unable to work.
On January 8, 2008 Dr. Diamond advised that appellant was experiencing left foot
weakness, chronic low back pain, lumbar disc disease with L4-5, L5-S1 radiculopathy
bilaterally, and foot drop worse on the left. He opined that appellant was permanently and totally
disabled and that he placed him in an out-of-work status since April 2002. In a January 14, 2008
work capacity evaluation, Dr. Diamond advised that appellant was unable to return to his dateof-injury position. He noted that appellant had chronic low back pain and left foot weakness.
In a claim for compensation (Form CA-7) dated June 24, 2008, appellant requested
compensation from April 10, 2002 to the present.
By letter dated June 26, 2008, appellant’s representative at the time advised that
Dr. Diamond placed appellant on total disability from work beginning April 10, 2002 and that
appellant never recovered enough to return to work. He noted that appellant was incarcerated
from September 7, 2003 through September 7, 2006 and that this claim fell under 20 C.F.R.
§ 10.18.
By letter dated May 5, 2009, the employing establishment controverted appellant’s claim.
It explained that he was working full duty since October 5, 1998 when he was suspended without
pay in April 2002 after being indicted on felony charges. The employing establishment
explained that appellant was subsequently terminated as his criminal conduct had a nexus to his
federal employment. It contended that he was not entitled to compensation and that he either
materially misrepresented facts to OWCP or concealed material facts.
By letter dated February 4, 2010, OWCP informed appellant of the evidence needed to
establish recurrence and instructed him to submit a notice of recurrence (Form CA-2a).
In a February 18, 2010 notice of recurrence (Form CA-2a), appellant claimed that he
sustained a recurrence of disability on September 20, 2006. He indicated that he was playing
with his grandchildren when he felt a sharp pain in his lower back, which caused him to fall.
Appellant noted that he never fully recovered after his original injury and his condition worsened
which prevented him from working.
In a February 23, 2010 report, Dr. Diamond advised that appellant had a work injury in
January 1996, which resulted in a back injury and a consequential chronic left foot drop which
caused frequent tripping and falling. On examination he noted that appellant had difficulty
straight leg raising on the left past 30 degrees, obvious left foot drop with an absent ankle jerk on
the left, and diminished range of motion of the lumbosacral spine. Dr. Diamond assessed
chronic left foot drop as a result of delayed treatment for a herniated nucleus pulposus at L4-5
and L5-S1. He opined that appellant was permanently disabled without any expected
improvement.
In a March 1, 2010 statement, appellant detailed the history of his injury and treatment.
He noted that Dr. Diamond found that he was disabled for work in March 2002. Appellant
asserted that Dr. Diamond had not released him to work since that time.
3

By letter dated May 11, 2001, OWCP informed appellant of the deficiencies in his
recurrence of disability claim.
Subsequently, several progress notes from Dr. Diamond were submitted. A progress note
with a handwritten annotation dated April 10, 2002 noted that appellant had an onset of severe
low back pain the day prior which radiated to the left leg and caused him to fall while walking.
It indicated that he would be kept out of work, subject to change and referred him to physical
therapy. Another progress note dated May 21, 2002 advised that appellant was out of work
without pay. It indicated that he related that he felt betrayed by his employing establishment for
placing him out of work without due process. In a September 14, 2007 note, Dr. Diamond
opined that appellant was permanently disabled.
In a June 1, 2010 statement, appellant advised that he worked a part-time nonfederal
position beginning in May or June 2002 for a couple of months. He contended that his physician
released him to work this position because it involved sitting, answering the telephone, and some
walking.
In a June 10, 2010 letter, the employing establishment controverted appellant’s claim
noting that his incarceration records indicated that he injured his left shoulder getting out of a
bunk bed and injured his right ankle injury secondary to running. It asserted that these records
showed that he ran four miles and did 400 sit-ups per day. The employing establishment also
contended that medical reports noting that appellant was unemployed due to his back condition
were incorrect, as appellant was in fact unemployed due to his felony conviction.
By decision dated September 9, 2010, OWCP denied appellant’s recurrence claim finding
that factual and medical evidence provided did not establish that his work stoppage or inability to
work was caused by a spontaneous worsening of his work-related injury. It further found that
injuries sustained while incarcerated were intervening causes to his current condition.
In a September 27, 2010 report, Dr. Diamond opined that the work-related injury led to
appellant’s condition and that it would only deteriorate over time. He also explained that the
physical activity that appellant performed while incarcerated was encouraged to allow him to
maintain his back health.
In a November 18, 2010 report, Dr. Diamond disputed medical records from appellant’s
incarceration. He noted that the nurse misinterpreted back stretches to be sit-ups and noted that
the four-mile run described in the report was actually four miles of walking. Dr. Diamond
reiterated that appellant’s condition was causally related to the work injury.
By letter dated March 8, 2011, appellant’s then representative, requested reconsideration.
He reiterated that Dr. Diamond found appellant totally disabled for work as of April 10, 2002,
prior to his suspension and subsequent termination.
In an April 21, 2011 report, Dr. Salerno detailed the history of the injury and treatment.
He noted that appellant had a moderate partial disability and indicated that he was unable to
return to his prior level of function due to the bending, twisting, and lifting requirement of that
position. However, Dr. Salerno noted that appellant was capable of performing a sedentary
full-time positon.
4

By decision dated June 15, 2011, OWCP rescinded its September 9, 2010 decision and
accepted appellant’s September 20, 2006 recurrence claim finding that the factual evidence and
argument provided by appellant’s then representative was sufficient to establish that he did not
suffer an intervening injury during his incarceration and that the injury sustained on
September 20, 2006 could not be considered to have broken the chain of causation.
Appellant continued submitting medical evidence from Dr. Salerno noting his status.
Thereafter, appellant submitted claims for compensation requesting intermittent wageloss compensation beginning April 10, 2002. On May 23, 2012 OWCP advised him that it could
not process his claims for compensation because it had not received the back page of the form
signed by the employing establishment. On July 3, 2012, the employing establishment stated
that it could not sign appellant’s Form CA-7 as it contained material misrepresentations. It
asserted that he was not eligible for compensation because of his removal for cause. The
employing establishment continued to refuse to sign its portion of the CA-7 form.
On September 24, 2012 OWCP advised appellant that it had only accepted his recurrence
claim beginning September 20, 2006 and that his entitlement to benefits could begin only on that
date. It asked that he resubmit a Form CA-7 and indicate receipt of any benefits from the Office
of Personnel Management.
Appellant resubmitted a Form CA-7 on September 28, 2012, claiming wage-loss
compensation from September 20, 2006 to September 28, 2012. On September 13 and 29, 2012
he elected FECA benefits.
On October 8, 2014 OWCP issued a notice of proposed rescission of the acceptance of
appellant’s recurrence beginning September 20, 2006.
In an October 27, 2014 statement, appellant’s then representative, disagreed with the
proposed rescission. He contended that in an April 10, 2002 report, Dr. Diamond placed
appellant on sick leave until May 13, 2002 and that based on the physician’s report appellant did
not report to work. The representative noted several other inaccuracies in the notice of proposed
rescission.
In a May 15, 2015 decision, OWCP rescinded the June 15, 2011 acceptance of
appellant’s September 20, 2006 claim for recurrence of disability finding that the employing
establishment submitted evidence that established that he was not entitled to compensation. It
explained that he was removed from his position with cause in September 2002 and because he
was not employed as of September 20, 2006 there was no recurrence of disability.
In another May 15, 2015 decision, OWCP denied appellant’s recurrence of disability
claim finding that, as he was not employed as of September 20, 2006, there was no recurrence of
disability at that time.
By letter dated July 15, 2015, appellant, through his representative, requested
reconsideration arguing that the claims examiner was incorrect in finding that a claimant must be
employed as a federal employee at the time of submitting a notice of recurrence.

5

In an October 8, 2015 letter, the employing establishment reiterated its contention that
appellant was not entitled to compensation as his work stoppage was due to reasons unrelated to
his accepted employment injury.
Appellant was given the opportunity to respond to the employing establishment’s
comment. He, through his representative at the time, contended in a December 28, 2015 letter
that the employing establishment’s response indicated that only portions of FECA law,
regulations, and case law was used in the evaluation of his claim of recurrence. Several medical
reports were submitted which provided the current status of appellant’s condition.
By decision dated February 9, 2016, OWCP denied modification of its previous
decisions.
LEGAL PRECEDENT ISSUE 1
Pursuant to section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his or her own motion or on application.2 The
Board has upheld OWCP’s authority under this section to reopen a claim at any time on its own
motion and, where supported by the evidence, set aside or modify a prior decision and issue a
new decision.3 The Board has noted, however, that the power to annul an award is not arbitrary
and that an award for compensation can only be set aside in the manner provided by the
compensation statute.4
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. Once OWCP
accepts a claim, it has the burden of justifying termination or modification of compensation
benefits. This also holds true where OWCP later decides that it erroneously accepted a claim.5
OWCP bears the burden of justifying rescission of acceptance on the basis of new
evidence, legal argument and/or rationale.6 Probative and substantial positive evidence7 or
sufficient legal argument8 must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission.9

2

5 U.S.C. § 8128.

3

See John W. Graves, 52 ECAB 160, 161 (2000). See 20 C.F.R. § 10.610.

4

Delphia Y. Jackson, 55 ECAB 373 (2004).

5

See V.C., 59 ECAB 137 (2007).

6

See John W. Graves, supra note 3; Alice M. Roberts, 42 ECAB 747, 753 (1991).

7

See Michael W. Hicks, 50 ECAB 325, 329 (1999).

8

See, e.g., Beth A. Quimby, 41 ECAB 683, 688-89 (1990).

9

See supra note 5.

6

ANALYSIS ISSUE 1
Appellant alleged that he sustained a recurrence of disability on September 20, 2006. On
June 15, 2011 OWCP accepted his recurrence of disability claim. On October 8, 2014 it
proposed rescinding the acceptance of appellant’s claim and the rescission was made final in a
May 15, 2015 decision.
The Board finds that OWCP did not present sufficient evidence to meet its burden of
proof to rescind its acceptance of appellant’s recurrence of disability claim. In its May 15, 2015
decision, OWCP explained that appellant was removed from his position with cause in
September 2002 and that he could not have sustained a recurrence of disability on September 20,
2006 as he was not employed at that time. This is incorrect. In cases where employment has in
fact been terminated for misconduct and disability is subsequently claimed, the Board has noted
that in general the term disability under FECA means incapacity because of injury in
employment to earn the wage which the employee was receiving at the time of such injury.10
Disability can be established despite termination for cause if medical evidence is submitted to
establish that the claimant could not work due to the accepted work injury for a given period
after the termination.11 The Board has held that, even if a claimant were terminated for
misconduct, disability benefits would be payable if the evidence of record established that the
claimant was unable to work at some point thereafter due to a work-related disabling condition.12
OWCP focused on the fact that appellant was terminated for cause and that he was not
employed as of September 20, 2006. Instead, it should have analyzed whether medical evidence
established that he sustained a spontaneous change in a medical condition which resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.13 For these reasons, the Board finds that OWCP erred in rescinding its
acceptance of appellant’s recurrence of disability claim.
Given the Board’s holding with respect to the first issue presented it is not necessary to
address the second issue.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of
appellant’s recurrence of disability claim.

10

Ralph Dennis Flanagan, Docket No. 94-1569 (issued May 28, 1996).

11

Id.

12

V.M., Docket No. 16-62 (issued May 18, 2016).

13

20 C.F.R. § 10.5(x).

7

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 11, 2016
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, NEW ORLEANS
INTERNATIONAL AIRPORT,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 11-505
Issued: November 22, 2011

Case Submitted on the Record

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

JURISDICTION
On December 27, 2010 appellant, through her attorney, filed a timely appeal of the
November 16, 2010 schedule award decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this schedule award
case.
ISSUE
The issue is whether appellant is entitled to a schedule award for permanent impairment
of her right arm.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel contends that OWCP’s November 16, 2010 decision is contrary to
fact and law.
FACTUAL HISTORY
OWCP accepted that on September 19, 2006 appellant, then a 31-year-old transportation
security screener, sustained a strain of the right shoulder rotator cuff as a result of lifting a bag
onto a baggage belt. Appellant underwent manipulation and arthroscopy of the right shoulder
with subacromial decompression on May 1, 2007 which was performed by Dr. Gordon P. Nutik,
an attending Board-certified orthopedic surgeon.
On June 12, 2009 appellant filed a claim for a schedule award. In a January 25, 2008
medical report, Dr. Nutik provided his findings on physical examination of the right shoulder and
advised that she had reached maximum medical improvement. He discharged appellant from his
medical care and stated that she could return to her regular work duties.
By letter dated June 25, 2009, OWCP requested that Dr. Nutik submit a medical report
that included a finding that appellant had attained maximum medical improvement and provided
a detailed description of the impairment and a schedule award rating according to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).2 Dr. Nutik did not respond.
On December 21, 2009 OWCP referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Christopher E. Cenac, a Board-certified orthopedic surgeon,
for a second opinion.
In a January 19, 2010 report, Dr. Cenac reviewed a history of the employment injury and
appellant’s medical treatment. Appellant complained about occasional discomfort in her right
shoulder associated with activities. On physical examination, Dr. Cenac reported healed
arthroscopic portals on the right shoulder. Appellant had full and unrestricted actively passive
motion of the right shoulder, elbow and wrist. There was no crepitation or evidence of a click.
Appellant was right handed and grip strength testing was symmetrical with a dynamometer.
Shoulder strength was 5/5 and equal bilaterally. There was no point tenderness noted about the
right shoulder. There was no atrophy of either shoulder girdle. Reflex testing was normal in
both upper extremities. There were no sensory deficits to pinprick or light touch in the upper
extremities. Dr. Cenac reviewed appellant’s medical record and stated that a November 2, 2009
electromyogram/nerve conduction study of the right arm was normal. A June 19, 2008 magnetic
resonance imaging (MRI) scan study only revealed decompression surgery residual
diagnostically. No structural injury was identified.
Dr. Cenac found no objective evidence of orthopedic mechanical dysfunction or
neurological deficits in the right upper extremity causally related to the September 19, 2006
employment incident. He agreed with Dr. Nutik’s finding that appellant had reached maximum
medical improvement on January 25, 2008 and that she could be released to return to her prior
2

On March 15, 2009 the Director issued FECA Bulletin No. 09-03 advising that the sixth edition of the A.M.A.,
Guides would be made applicable to rating impairment effective May 1, 2009.

2

occupation without impairment or physical limitations. Dr. Cenac concluded that no anatomical
impairment was found.
On April 8, 2010 Dr. Ronald Blurn, an OWCP medical adviser, reviewed Dr. Cenac’s
January 19, 2010 findings.
He determined that appellant reached maximum medical
improvement on January 25, 2008. Dr. Blurn noted Dr. Cenac’s findings of no objective
evidence of orthopedic mechanical dysfunction or neurologic deficits in the right upper extremity
related the accepted employment injury and no impairment. He agreed that appellant did not
have any permanent impairment of her right upper extremity under the sixth edition of the
A.M.A., Guides.
In an April 30, 2010 decision, OWCP denied appellant’s schedule award claim. It found
that the medical evidence established that appellant did not have any employment-related
impairment of the right upper extremity.
By letter dated May 6, 2010, appellant, through her attorney, requested a telephone
hearing.
In a November 16, 2010 decision, OWCP’s hearing representative affirmed the April 30,
2010 decision. She found that the weight of the medical evidence rested with Dr. Blurn’s
April 8, 2010 opinion, which was based on the findings and conclusions of Dr. Cenac.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 Effective May 1, 2009,
OWCP adopted the sixth edition of the A.M.A., Guides7 as the appropriate edition for all awards
issued after that date.8

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Ausbon N. Johnson, 50 ECAB 304 (1999).

6

Supra note 2.

7

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

8

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).

3

A claimant seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.9
A claimant seeking a schedule award, therefore, has the burden of establishing that her accepted
employment injury caused permanent impairment of a scheduled member, organ or function of
the body.10
ANALYSIS
OWCP accepted appellant’s claim for a strain of the right shoulder rotator cuff resulting
from her September 19, 2006 employment injury. Appellant contends that she is entitled to a
schedule award for permanent impairment to her right arm. The Board finds, however, that she
has not established that she has sustained any permanent impairment to her right upper extremity
due to her employment-related right shoulder condition.
Dr. Nutik, an attending physician, found that appellant had reached maximum medical
improvement on January 25, 2008 with regards to her accepted right shoulder condition.
However, he did not address the issue of employment-related impairment under the sixth edition
of the A.M.A., Guides as requested by OWCP in its June 25, 2009 developmental letter. The
Board finds, therefore, that his report is of diminished probative value.
OWCP subsequently referred appellant for a second opinion examination with Dr. Cenac,
who opined that appellant did not have any impairment causally related to the September 19,
2006 employment injury and that she had reached maximum medical improvement on
January 25, 2008 and could return to her regular work duties without impairment or physical
limitations. Dr. Cenac reviewed a history of the accepted condition and appellant’s medical
treatment. He noted her current complaint of occasional discomfort in the right shoulder
associated with activities. Dr. Cenac reported normal findings on physical examination of the
bilateral shoulders and right elbow and wrist. He stated that the right shoulder, elbow and wrist
had full and unrestricted actively passive motion. Dr. Cenac found no crepitation or evidence of
a click. He noted that appellant was right handed and found that grip strength testing with a
dynamometer was symmetrical. Dr. Cenac advised that shoulder strength was 5/5 and equal
bilaterally. He found no point tenderness about the right shoulder or atrophy of either shoulder
girdle. Dr. Cenac stated that reflex testing was normal and there were no sensory deficits to
pinprick or light touch in the upper extremities. He reviewed diagnostic test results and found
that they were essentially normal with the exception of the June 19, 2008 MRI scan study which
only revealed decompression surgery residual diagnostically. Dr. Cenac further concluded that
there was no objective evidence of orthopedic mechanical dysfunction or neurological deficits in
the right upper extremity causally related to the accepted condition. He concluded that no
anatomical impairment was applicable. On April 8, 2010 Dr. Blurn, OWCP’s medical adviser,
reviewed Dr. Cenac’s findings and concurred with his conclusion that appellant did not have any
impairment of the right upper extremity due to the September 19, 2006 employment-related
condition.

9

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

10

See Annette M. Dent, 44 ECAB 403 (1993).

4

The Board finds that Dr. Cenac’s opinion is sufficiently well rationalized and based upon
a proper factual and medical background. Dr. Cenac’s report was of sufficient detail such that
others reviewing the file could clearly visualize the impairment.11 The weight of the medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.12 Dr. Cenac fully discussed the history of injury and related his comprehensive
examination findings in support of his opinion that appellant did not have any permanent
impairment causally related to her accepted condition. Dr. Blurn, OWCP’s medical adviser
properly applied the A.M.A., Guides to Dr. Cenac’s report to find that there was no basis for
permanent impairment of the right arm causally related to appellant’s accepted right shoulder
rotator cuff strain. Therefore, appellant is not entitled to a schedule award.
On appeal, appellant contended that OWCP’s decision was contrary to fact and law. For
reasons stated above, the Board finds that the weight of the medical evidence does not establish
any entitlement to a schedule award.
CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award
for permanent impairment of her right upper extremity, causally related to the September 19,
2006 employment injury.

11

See Robert B. Rozelle, 44 ECAB 616 (1993).

12

See Ann C. Leanza, 48 ECAB 115 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2011
Washington, DC

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

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

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

6