United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sunrise, FL, Employer
__________________________________________

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

Docket No. 20-0976
Issued: January 26, 2021

Case Submitted on the Record

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

JURISDICTION
On April 2, 2020 appellant, through her representative, filed a timely appeal from a
February 26, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2

1

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

The record also contains a January 17, 2020 OWCP decision concerning an overpayment of compensation in the
amount of $11,770.11. She has filed a separate appeal from this decision, which will be considered under Docket No.
20-0977.

Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.4
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of an overpayment
of wage-loss compensation in the amount of $48,649.60 for the period January 1, 2012 through
February 3, 2018; and (2) whether it properly required recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
This case has previously been before the Board.5 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 23, 1994 appellant, then a 48-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained stress, anxiety, and depression causally related to
factors of her federal employment. She stopped work on June 24, 1994. OWCP accepted
appellant’s claim for post-traumatic stress disorder (PTSD) and a single episode of moderate-tosevere major depression.6 It paid her wage-loss compensation for total disability.
By decision dated September 30, 1999, OWCP reduced appellant’s wage-loss
compensation as her actual earnings as a modified mail handler effective March 1, 1999 fairly and
reasonably represented her wage-earning capacity.7
The employing establishment subsequently withdrew appellant’s modified position under
the National Reassessment Program (NRP). On April 18, 2011 OWCP modified the
September 30, 1999 decision and paid her wage-loss compensation for total disability on the
periodic rolls beginning April 10, 2011.

3

5 U.S.C. § 8101 et seq.

4

The Board notes that following the February 26, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
5

Docket No. 19-1082 (issued October 29, 2019).

6
By decision dated November 3, 1994, OWCP denied appellant’s claim as she had not established an injury in the
performance of duty. By decision dated December 12, 1995, an OWCP hearing representative found that appellant
had established compensable employment factors. He vacated the November 3, 1994 decision and remanded the case
for development of the medical evidence.
7

In decisions dated 1999 and 2000, OWCP denied appellant’s claim for intermittent wage loss for various periods.

2

On March 28, 2017 SSA provided OWCP with a FERS/SSA dual benefit calculation
worksheet setting forth appellant’s SSA rate with FERS and without FERS commencing
January 2012. Based on this information, OWCP determined that it should have offset $48,649.60
from her wage-loss compensation.
In a preliminary overpayment determination dated February 22, 2018, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $48,649.60
because it had failed to reduce her wage-loss compensation benefits for the period January 1, 2012
through February 3, 2018 by the portion of her SSA benefits that were attributable to federal
service. It further advised her of its preliminary determination that she was at fault in the creation
of the overpayment because she had accepted payments that she knew or reasonably should have
known to be incorrect.
On March 12, 2018 appellant requested a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 14, 2018.
By decision dated November 23, 2018, OWCP’s hearing representative found that a
$48,649.60 overpayment of compensation was created as appellant received wage-loss
compensation from OWCP from January 1, 2012 through February 3, 2016 without an appropriate
offset. She further found that appellant was at fault in the creation of the overpayment and thereby
precluded from waiver of recovery of the overpayment. The hearing representative determined
that the overpayment would be recovered by withholding $450.00 every 28 days from appellant’s
continuing compensation payments.
Appellant appealed to the Board. By decision dated October 29, 2019, the Board affirmed
in part and set aside in part the November 23, 2018 decision.8 The Board found that appellant had
received an overpayment of compensation in the amount of $48,649.00 from January 1, 2012
through February 3, 2018 because she concurrently received wage-loss compensation and SSA
age-related retirement benefits without the appropriate offset. The Board further determined,
however, that she was without fault in the creation of the overpayment and remanded the case for
OWCP to consider waiver of recovery of the overpayment.
On January 10, 2020 OWCP notified appellant of its preliminary determination that she
was without fault in the creation of the overpayment of compensation in the amount of $48,649.80
that had occurred because it failed to offset her SSA age-related retirement benefits from her wageloss compensation from January 1, 2012 through February 3 2018. It provided her with an
overpayment action request form and an overpayment recovery questionnaire (Form OWCP-20).
Additionally, OWCP notified appellant that, within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
In a Form OWCP-20 dated February 9, 2020, appellant advised that she had monthly
income of $3,031.75 and assets of $17.56. She listed monthly expenses of $1,226.44 for a
mortgage, $400.00 for food, $50.00 for clothing, $110.89 for electricity, $57.06 for water and
sewer, $217.86 for telephone, internet and cable, and 61.39 for medical expenses. Appellant also
8

Supra note 4.

3

provided monthly expenses on credit card and loan balances totaling $760.00. She listed expenses
of $247.78 a month for prescriptions, supplements, and eye drops; $75.00 for tire replacement;
$82.64 for car insurance, $35.00 for merchandise, and $66.93 for a cell phone, which yielded total
monthly expenses of $3,390.99.
Appellant submitted documentation supporting the monthly payment amounts for her
mortgage, electricity, water, sewer, internet and cable, credit card, and car care expenses. She
further submitted a bill indicating that she paid around $31.26 per month for a newspaper, and
documentation showing that she paid $34.00 for vehicle service.
Regarding medical expenses, appellant provided the amounts that she paid for vitamin
supplements and eye drops, which totaled $73.28 monthly. She provided photographs of the
vitamin bottles. Appellant also submitted invoices showing the amounts that she paid every 90
days for prescriptions that she received by mail, which totaled $154.98 monthly. She submitted a
dermatologist bill for $193.51, a bill from a diagnostic laboratory for $11.39, and explanation of
benefit forms from her health insurance provider dated January and February 2020 showing that
she owed providers $52.98 and $101.66.
Appellant also listed the things that she needed to have done, but was unable to afford,
included providing food and veterinary care for her animals, getting a haircut, seeing an
ophthalmologist and dentist, and home repairs. She submitted a veterinary bill for $3,744.52 that
was past due and banking statements for November and December 2019. Appellant also provided
a yearly bill for homeowner’s insurance that indicated that it was paid by the mortgagee.
By decision dated February 26, 2020, OWCP denied waiver of recovery of the
overpayment of compensation. It found that she received $1,462.62 every 28 days after OWCP’s
deductions of $450.00 for the current debt and $25.00 per month for separate overpayment, which
it added to her monthly SSA benefits to find total monthly income of $3,153.50. OWCP reviewed
the financial information submitted and determined that appellant had monthly expenses of
$400.00 for food, $50.00 for clothing, $277.00 for electricity, $395.00 for minimum monthly credit
card payments, $122.00 for water, $83.00 for car insurance, $66.00 for a cell phone, $70.00 in car
repairs, $100.00 in monthly medical expenses, and $1,226.00 for a mortgage, which totaled
$2,789.00. It disallowed her homeowner’s insurance, noting that it should be covered in her
mortgage payment and determined that the amount claimed for telephone, cable, and internet was
not reasonable. OWCP further determined that appellant’s credit card bills likely duplicated her
medication copayments, newspaper, clothing, and various other expenses and thus found that these
would not be separately considered. It found that her income exceeded her ordinary and necessary
living expenses by more than the $50.00 allotted amount. OWCP found that appellant had $364.00
in discretionary income, which increased to $418.67 as the repayment amount every 28 days was
$50.00 less than the amount it was currently deducting. It determined that it would recover the
overpayment by deducting $400.00 from her continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is

4

without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”9
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.10 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.11 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.12 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.13
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.15

9

5 U.S.C. § 8129(b).

10

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
11

Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).
12

Supra note 10 at Chapter 6.400.4(a)(2) (September 2018).

13

Id. at Chapter 6.400.4(b)(3).

14

20 C.F.R. § 10.437(a)(b).

15

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

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ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied waiver of recovery of an overpayment of wage-loss compensation in the amount
of $48,649.60 for the period January 1, 2012 through February 3, 2018.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.16
In a Form OWCP-20 dated February 9, 2020, appellant listed monthly income of $3,031.75
and monthly expenses of $3,390.95. OWCP found that it paid her $1,462.62 every 28 days, or
$1,584.50 monthly in compensation, which when added to her SSA income of $1,569.00 yielded
monthly income of $3,153.50. It further noted that appellant had listed assets of $17.56, which is
below the statutorily allowed resource base.17
OWCP determined that appellant owed minimum monthly payments on credit cards of
$395.00 and had monthly expenses of $400.00 for food, $50.00 for clothing, $277.00 for
electricity, $122.00 for water, $83.00 for car insurance, $66.00 for a cell phone, $70.00 for car
repairs, $100.00 for medication expenses, and $1,226.00 for a mortgage, for total monthly
expenses of $2,789.00. It found that the amount that appellant paid for a telephone, cable, and
internet was not reasonable.18 OWCP determined that expenses for items such as some clothing,
medication, newspapers, and miscellaneous other items were likely included in her credit card
expenses. It concluded that appellant’s monthly income exceeded her monthly expenses by
$364.00. OWCP, however, failed to explain exactly what expenses it had disallowed or how it
calculated the amount of the minimum monthly payments that appellant owed for credit cards and
loans. Appellant submitted documentation supporting that she owed minimum monthly payments
for a total minimum monthly payments of $679.23. She further submitted documentation
supporting that she incurred prescription drug expenses of $154.98 a month. OWCP, however,
failed to specifically evaluate these expenses and explain what it was not allowing. Given these
discrepancies, it is unclear whether appellant needs substantially all of her current income to meet
ordinary and necessary living expenses.19
For the above reasons, the case is not in posture regarding whether OWCP properly denied
waiver of recovery of the $48,649.60 overpayment of compensation.20 The case will be remanded
for OWCP to obtain updated financial information and properly determine whether appellant is
16

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

17

Supra note 12.

The Board notes that, since the issuance of OWCP’s February 26, 2020 decision, OWCP’s procedures have been
revised to include basic cable and internet service as ordinary and necessary living expenses. See Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.4(b)(2)(a)
(September 2020).
18

19

See S.D., Docket No. 19-0618 (issued October 29, 2019).

20

Id.

6

entitled to waiver of recovery of the overpayment. Following this and any further development
deemed necessary, it shall issue a de novo decision.21
CONCLUSION
The Board finds that the case is not in posture for decision regarding OWCP’s properly
denied waiver of recovery of an overpayment of wage-loss compensation in the amount of
$48,649.60 for the period January 1, 2012 through February 3, 2018.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 26, 2021
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

21
In light of the Board’s disposition regarding the denial of waiver, the issue of recovery of the overpayment is
moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
TRAINING CENTER, Great Lakes, IL,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-584
Issued: August 23, 2013

Case Submitted on the Record

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

On January 16, 2013 appellant filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) decision dated July 23, 2012. By its July 23, 2012 decision,
OWCP denied appellant’s 1993 claim for a traumatic injury, finding that the medical evidence
was insufficient to establish causal relationship. It noted that, while appellant had filed a claim
for a recurrence of disability, that claim could not be developed as OWCP had not developed his
traumatic injury claim.
The Board has duly considered the matter and notes that on January 7, 2012 appellant
filed a CA-2a, notice of recurrence of disability. By letter dated May 25, 2012, OWCP advised
appellant that his claim was originally received as a simple, uncontroverted case which resulted
in minimal or no time loss from work. It indicated that appellant’s claim was administratively
handled to allow medical payments up to $1,500.00 and the merits of the claim were not
formally adjudicated. However, the Board notes that, in an August 13, 1993 letter, OWCP
accepted appellant’s traumatic injury claim for low back strain and instructed him regarding how
to claim wage-loss compensation. The record reveals that appellant submitted reports from his
treating physician, Dr. L.T. Zabell, that were considered by OWCP in accepting his claim.
Additionally, a Form CA-3 dated August 8, 1993 reveals that appellant stopped work on July 20,
1993 and returned on July 22, 1993 and received continuation of pay from July 20 to 22, 1993.
OWCP did not rescind acceptance of the claim.

OWCP’s procedures require that, in adjudicating the case, the claims examiner must
review and evaluate all material submitted to determine whether the case meets the standards for
a claim under FECA of timeliness, civil employee, fact of injury, performance of duty and causal
relationship.1 The procedures further provide that OWCP must advise a claimant by letter of the
accepted conditions, the date of injury, name of employer and entitlement to continuation of pay
and instructions for filing wage loss.2 The Board notes that OWCP’s August 13, 1993 decision
adjudicated appellant’s claim and found that it met the criteria for claim acceptance. OWCP’s
procedures also address the development of recurrence claims.3 Section 2.1500.4(c) of OWCP’s
procedure manual provides that claims for recurrence require adjudication except when the
claimant is still receiving continuation of pay, the recurrence is for medical care only and the
claim is in open status and neither wage-loss compensation or payment for medical expenses is
claimed at present.4 Appellant’s claim does not fall within the exceptions. Therefore, the Board
finds that OWCP did not conform to its established procedures with regard to adjudicating
appellant’s claim for a recurrence of disability. Because OWCP’s July 23, 2012 decision did not
adjudicate the recurrence claim, the Board finds that OWCP has not fulfilled its responsibility
under its procedures.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 23, 2012 is set aside and the case remanded for a de novo
decision on appellant’s claim for a recurrence of disability.
Issued: August 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board
1

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Acceptances, Chapter 2.806.2 (June 2011).

2

Id.

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500 (October 2009) (sets
forth OWCP procedures for adjudicating recurrence claims).
4

Id. at 2.1500.4(c).

2


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
B.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
_________________________________________

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

Docket No. 14-69
Issued: March 18, 2014

Case Submitted on the Record

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

JURISDICTION
On October 2, 2013 appellant filed a timely appeal from the September 12, 2013 Office
of Workers’ Compensation Programs’ (OWCP) decision denying her 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 this issue.
ISSUE
The issue is whether appellant met her burden of proof to establish that he sustained more
than a two percent permanent impairment to her left lower extremity, for which she received a
schedule award.
FACTUAL HISTORY
On August 30, 2012 appellant, then a 51-year-old rural carrier, injured her left knee in the
performance of duty. She filed a claim for benefits, which OWCP accepted for left knee sprain.
1

5 U.S.C. § 8101 et seq.

OWCP expanded the claim to include exacerbation of medial meniscus tear on the left.
Appellant underwent an authorized left knee arthroscopy, partial medial meniscectomy and
chondroplasty microfracture of the medial femoral condyle on November 2, 2012. She returned
to full duty on December 1, 2012.
In a report dated February 25, 2013, Dr. Randall D. Roush, a Board-certified orthopedic
surgeon and treating physician, noted that appellant was seen for her left knee. He advised that
she was still having pain and could not extend the leg which caused her to limp and tip-toe on
left side when going down hills (front lawns). Dr. Roush recommended anti-inflammatories and
possible cortisone injection and to return as necessary.
In a Form CA-7 dated February 27, 2013, appellant requested a schedule award.
In a letter dated April 1, 2013, OWCP advised appellant that additional medical evidence
was required to make a proper determination regarding any possible permanent impairment.
In a May 28, 2013 report, Dr. Roush noted that he was providing a final rating. He
indicated that appellant had a complex tear of the medial meniscus and a leaking Baker’s cyst.
Dr. Roush explained that she underwent arthroscopic knee surgery with partial medial
meniscectomy, chondroplasty and microfracture of medial femoral condyle. He advised that
appellant made a gradual recovery but she reported that, during the process of delivering mail,
she sometimes had a limp and difficulty with full extension of the knee. There were no
complaints of locking or giving way. Dr. Roush opined that appellant had reached maximum
medical improvement. He referred to the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides) and indicated
that, pursuant to Table 16-3,2 she had five percent impairment of the left lower extremity for a
combined meniscal injury and chondral lesion of the femoral condyle.
In a September 2, 2013 report, OWCP’s medical adviser noted appellant’s history of
injury and treatment and referred to the A.M.A., Guides. He noted that Dr. Roush indicated that
appellant did well following her arthroscopy but occasionally walked with a limp. The medical
adviser also indicated that appellant had pain with full extension and there was no knee effusion.
Dr. Roush’s notes reported that all surgical incisions were healed, the knee was stable to anterior
and posterior stress testing and the McMurray’s test was negative. The medical adviser advised
that Dr. Roush provided a rating of five percent for both the medial femoral condylar lesion and
the meniscus tear. He explained that only the most clinically relevant condition was to be rated,
which in appellant’s case was the meniscal tear. The medical adviser referred to Table 16-33 and
determined that she had two percent impairment for a partial medial meniscectomy. Dr. Roush
considered the net adjustment formula and opined that there would be no change to the rating.
OWCP’s medical adviser indicated that appellant reached maximum medical improvement on
February 25, 2013.

2

A.M.A., Guides 509.

3

Id.

2

By decision dated September 12, 2013, OWCP granted appellant a schedule award for
two percent permanent impairment of the left leg. The award covered 5.76 weeks, from
February 25 to April 6, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. For decisions issued after May 1, 2009, the A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.6
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).7 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.9
ANALYSIS
OWCP accepted that appellant sustained left knee sprain. It expanded the claim to
include exacerbation of medial meniscus tear on the left. Appellant underwent left knee
arthroscopy, partial medial meniscectomy and chondroplasty microfracture of the medial femoral
condyle on November 2, 2012.
In support of her claim for a schedule award, appellant submitted a May 28, 2013 report
from Dr. Roush, who indicated that she had a five percent permanent impairment. Dr. Roush
noted that appellant had a complex tear of the medial meniscus and a leaking Baker’s cyst and
that she underwent arthroscopic knee surgery with partial medial meniscectomy, chondroplasty
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

FECA Bulletin No. 09-03 (issued March 15, 2009). A.M.A., Guides (6th ed. 2008).

7

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

8

Id. at 521.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

3

and microfracture of medial femoral condyle. He stated that appellant sometimes had a limp and
difficulty with full extension of the knee. Dr. Roush opined that she had reached maximum
medical improvement. He utilized the A.M.A., Guides and referred to Table 16-3.10 Dr. Roush
indicated that appellant had five percent impairment of the extremity for a combined meniscal
injury and chondral lesion of the femoral condyle. The Board notes that this Table indicates that
the maximum rating for a partial medial or lateral meniscectomy, meniscal tear or meniscal
repair is three percent. There also is no provision for five percent impairment on page 509 for a
chondral lesion of the femoral condyle. A medical opinion is of limited probative value if it
contains a conclusion unsupported by medical rationale.11
Board precedent is well settled that when an attending physician’s report gives an
estimate of impairment but does not address how the estimate was based on the A.M.A., Guides,
OWCP is correct to follow the advice of its medical adviser or consultant where he or she has
properly applied the A.M.A., Guides.12
In a report dated September 2, 2013, OWCP’s medical adviser determined that appellant
reached maximum medical improvement on February 25, 2013 and had two percent impairment
of the left leg. He noted that Table 16-3 at page 509 of the A.M.A., Guides, provided for two
percent leg impairment for a partial medial meniscectomy. Dr. Roush considered grade
modifiers and the net adjustment formula but concluded that the net adjustment formula would
not change the default impairment rating. The medical adviser explained that, while he provided
a rating of five percent for both the medial femoral condylar lesion and the meniscus tear, only
the most clinically relevant condition was to be rated, which in appellant’s case was the meniscal
tear. The Board notes that this is in accord with the A.M.A., Guides, which provides that, if
more than one diagnosis can be used in a region, the one that provides the most clinically
accurate impairment rating should be used.13 There is no current medical report of record
establishing any greater impairment pursuant to the A.M.A., Guides.
On appeal, appellant argued that she should have received a greater impairment based
upon her physician’s findings. However, as noted above, Dr. Roush’s report did not comport
with the A.M.A., Guides.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has
more than two percent impairment of the left lower extremity.
10

Supra note 2.

11

T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

J.Q., 59 ECAB 366 (2008); Laura Heyen, 57 ECAB 435 (2006).

13

A.M.A., Guides 499.

4

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
DEPARTMENT OF ENERGY, NATIONAL
NUCLEAR SECURITY ADMINISTRATION,
Albuquerque, NM, Employer
__________________________________________

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)

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

Docket No. 16-0787
Issued: June 28, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 9, 2016 appellant filed a timely appeal from a January 26, 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.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a work-related injury
because it was untimely filed.
FACTUAL HISTORY
On October 14, 2015 appellant, then a 46-year-old federal agent nuclear materials
courier, filed an occupational disease claim (Form CA-2) alleging that he sustained progressive
1

5 U.S.C. § 8101 et seq.

idiopathic ataxic syndrome due to a January 18, 2011 vehicular accident at work for which he
had previously filed a claim.2 He also claimed that, as a consequence of the progressive
idiopathic ataxic syndrome, he fell at work on June 4, 2012 and injured his left wrist and
forearm.3 Appellant noted on the claim form that he first became aware of his claimed condition
on April 15, 2011 and that he first realized on April 15, 2011 that it was caused or aggravated by
his employment. On the same claim form, appellant’s immediate supervisor indicated that
appellant first reported his claimed injury to her on April 15, 2011.4
In a November 4, 2015 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his claim that he sustained progressive idiopathic ataxic
syndrome due to the January 18, 2011 vehicular accident. On November 4, 2015 it also
requested that the employing establishment provide additional information regarding appellant’s
claim, including any comments from a knowledgeable supervisor on the accuracy of the
statements provided by appellant regarding the claimed injury.
Appellant submitted medical evidence in support of his claim, including an October 1,
2013 report in which Dr. Amanda Deligtisch, an attending Board-certified neurologist, noted that
appellant had reported an almost three-year history of subtle progressive balance difficulty and
speech difficulty.5 In a report dated August 27, 2015, Dr. Christopher M. Gomez, an attending
Board-certified neurologist, noted that appellant reported being healthy until January 2011 when
he was involved in a rollover vehicular accident in which he bumped his head. He indicated that
in approximately April 2012 appellant’s wife reportedly began to notice changes in appellant’s
speech with some slurring, a condition which worsened thereafter. Appellant reported that by
April 2012 he began falling on a regular basis when engaging in the running exercises required
by his job and that in June 2012 he fell and fractured his left wrist. On October 2, 2015
2

On January 19, 2011 appellant filed a traumatic injury claim (Form CA-1) under a separate claim file alleging
that he sustained injury to his head, left shoulder, and left ring finger in a vehicular accident at work on
January 18, 2011. OWCP accepted the occurrence of the January 18, 2011 work-related accident, but found that
appellant did not submit medical evidence establishing a specific medical condition due to the work incident
(OWCP File No. xxxxxx578).
3

On June 4, 2012 appellant filed a traumatic injury claim (Form CA-1) under a separate claim file alleging that
he sustained injury to his left wrist and forearm due to a fall which occurred while exercising on stairs at work on
June 4, 2012. OWCP accepted that appellant sustained closed distal radius and scaphoid fractures of his left wrist,
post-traumatic arthritis of his left wrist, and traumatic arthropathy of his left forearm. On June 14, 2012 appellant
underwent OWCP-authorized internal fixation surgery of the distal radius and scaphoid fractures of his left wrist
(OWCP File No. xxxxxx067).
4

Appellant’s immediate supervisor indicated that appellant stopped work on June 4, 2012 and returned to work
on July 2, 2012. The Board notes that, although appellant filed a claim for an occupational disease, his claim would
be best characterized as a claim for a traumatic injury as his claimed progressive idiopathic ataxic syndrome
condition was alleged to have been caused by events occurring in a single workday, i.e., the vehicular accident that
occurred on January 18, 2011. Under FECA, a traumatic injury refers to injury caused by a specific event or incident
or series of incidents occurring within a single workday or work shift whereas an occupational disease refers to an
injury produced by employment over a period longer than a single workday or work shift. 20 C.F.R. § 10.5(q), (ee);
Brady L. Fowler, 44 ECAB 351 (1992).
5

Dr. Deligtisch also produced reports in 2014 and 2015 which noted that appellant provided a similar medical
history.

2

Dr. Gomez diagnosed hereditary spinocerebellar ataxia and postconcussive syndrome related to
the January 2011 vehicular accident. He indicated that head trauma was a severe risk factor in
exacerbating underlying spinocerebellar ataxia.6
The employing establishment submitted a position description for appellant’s work as a
federal agent nuclear materials courier and a January 18, 2011 police report of his vehicular
accident on that date which showed that the vehicle in which he was a passenger had rolled over.
In a January 26, 2016 decision, OWCP denied appellant’s claim for a work-related injury
because it was untimely filed. Regarding the basis for the denial, it indicated:
“Your case is denied because the evidence does not support a finding that your
claim was filed within three years of the date of injury or that your immediate
supervisor had actual knowledge within 30 days of the date of injury. The date of
your injury is April 15, 2011. The claim for compensation was filed on
October 14, 2015.”
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.7 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”8
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death, be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed, be in writing, state the
name and address of the employee, state the year, month, day and hour when and the particular
locality where the injury or death occurred, state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause, and be signed by and contain the

6

Dr. Gomez noted that appellant’s ataxia was mild, that he had preserved cognitive function but had mild
incoordination. Appellant also submitted a January 7, 2013 report noting left wrist surgery in June 2012.
7

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

8

5 U.S.C. § 8122(a).

3

address of the individual giving the notice.9 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.10
When a traumatic injury definite in time, place, and circumstances is involved, the time
for giving notice of injury and filing for compensation begins to run at the time of the incident,
even though the employee may not have been aware of the precise nature, seriousness, or
ultimate consequences of his or her injury.11 The Board has found that the statute of limitations
begins to run on the date that the employee actually knows of the possible relationship between
the employee’s condition and his or her employment, or reasonably should have known of the
possible relationship.12
ANALYSIS
On October 14, 2015 appellant filed a claim alleging that he sustained progressive
idiopathic ataxic syndrome due to a January 18, 2011 vehicular accident at work. The Board
finds that the evidence establishes that appellant was aware, or by the exercise of reasonable
diligence should have been aware, of the causal relationship between his employment and the
compensable disability as early as April 15, 2011. Appellant indicated on his October 14, 2015
claim form that he first became aware of his claimed ataxia condition on April 15, 2011 and that
he first realized on April 15, 2011 that it was caused or aggravated by his employment. His
explicit linking of the above-noted January 18, 2011 work-related accident with his development
of progressive idiopathic ataxic syndrome shows that he knew as early as April 15, 2011 of the
possible relationship between them. The Board’s finding that appellant was aware as early as
April 15, 2011 of the possible relationship between his claimed progressive idiopathic ataxic
syndrome and the January 18, 2011 vehicular accident at work is supported by the medical
evidence of record. In a report dated August 27, 2015, Dr. Gomez noted that appellant reported
being healthy until January 2011 when he was involved in a rollover vehicular accident in which
he bumped his head. He indicated that appellant reported that in approximately April 2012 he
began to have changes in his speech with some slurring and that by April 2012 he began falling
on a regular basis.
Appellant did not file his claim for an employment-related emotional condition until
October 14, 2015 and therefore he did not file his claim within the requisite three years of his
awareness of the possible relationship between the implicated employment incident, the
January 18, 2011 vehicular accident, and the claimed medical condition, progressive idiopathic
ataxic syndrome.13

9

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

10

Laura L. Harrison, 52 ECAB 515 (2001).

11

Delmont L. Thompson, 51 ECAB 155 (1999); Emma L. Brooks, 37 ECAB 407, 411 (1986).

12

William A. West, 36 ECAB 525, 528-29 (1985).

13

See supra notes 8, 11, and 12.

4

However, appellant’s claim would still be regarded as timely under section 8122(a)(1) of
FECA if his immediate superior had actual knowledge of the injury within 30 days or under
section 8122(a)(2) if written notice of injury was given to his immediate superior within 30 days
as specified in section 8119.14
The Board notes that there is some evidence of record that appellant’s immediate
supervisor had knowledge of appellant’s claimed injury at the time he was aware of the possible
connection between the condition and work factors. On the claim form submitted on October 14,
2015, appellant’s immediate supervisor indicated that appellant first reported his claimed injury
to her on April 15, 2011.15
Under FECA, although it is the burden of an employee to establish his or her claim,
OWCP also has a responsibility in the development of the factual evidence, particularly when
such evidence is of the character normally obtained from the employing establishment or other
government source.16
Therefore, the case shall be remanded to OWCP for further development regarding the
knowledge of appellant’s immediate supervisor with respect to appellant’s claim that he became
aware in April 2011 that he had sustained an ataxia condition due to the January 18, 2011 workrelated vehicular accident. After carrying out this development, OWCP shall issue a de novo
decision regarding appellant’s claim for a work-related injury.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied appellant’s claim for a work-related injury because it was untimely filed.

14

See supra note 8.

15

This possible knowledge by the supervisor would be within 30 days because, although appellant implicated a
January 18, 2011 work-related accident, he did not realize until April 15, 2011 that he had sustained an ataxia
condition due to that accident. See supra notes 11 and 12.
16

Willie A. Dean, 40 ECAB 1208, 1212 (1989). On November 4, 2015 OWCP requested that the employing
establishment provide additional information regarding appellant’s claim, including any comments from a
knowledgeable supervisor on the accuracy of the statements provided by appellant regarding the claimed injury.
However, the employing establishment did not submit such comments.

5

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: June 28, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT AUDIT AGENCY, Houston, TX,
Employer
__________________________________________

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)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1900
Issued: February 5, 2008

Case Submitted on the Record

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

JURISDICTION
On July 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated December 8 and July 19, 2006 which terminated
her compensation benefits effective August 6, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective August 6, 2006; and (2) whether appellant met her
burden of proof to establish that she had any disability or condition causally related to her
employment after August 6, 2006.
FACTUAL HISTORY
On April 20, 1994 appellant, then a 60-year-old auditor, filed an occupational disease
claim stating that her preexisting rheumatoid arthritis condition was aggravated by factors of her

federal employment. The Office accepted the claim for aggravation of preexisting rheumatoid
arthritis. Appellant stopped work on August 13, 1994 and did not return. It placed her on the
periodic compensation rolls.
In a November 10, 2005 report, Dr. Cameron B. Jones, an attending Board-certified
internist specializing in rheumatology, advised that appellant was under his care for rheumatoid
arthritis and that she continued to have active disease. He noted evidence of left elbow swelling,
bilateral flexion contractures of the elbows and deformity of her hands. Dr. Jones opined that
she was permanently disabled from performing her regular auditor duties and was unable to
engage in repetitive use of her hands, wrists and elbows which would be required for sedentary
or office work. In follow-up reports, he opined that appellant had continuing signs and
symptoms of rheumatoid arthritis.
On December 6, 2006 the Office referred appellant, together with a statement of accepted
facts and list of questions, to Dr. Kent A. Huston, a Board-certified internist specializing in
rheumatology, for a second opinion examination to determine whether the accepted aggravation
of the preexisting rheumatoid arthritis was still active.
In a February 16, 2006 report, Dr. Huston advised that appellant had seropositive
rheumatoid arthritis limited to her upper extremities which caused significant damage to her
elbows, wrists and hands. He stated that she was functionally limited in upper extremity use
because of the marked damage to her upper extremities, predominately the elbows. Dr. Huston
opined that she was totally disabled and not a candidate for vocational rehabilitation. He stated
that there was no current aggravation of the rheumatoid arthritis that could be attributable to
work and noted that any such aggravation was temporary. Appellant’s current condition was
attributable to her underlying rheumatoid arthritis and not related to her prior work activities.
The Office found a conflict in medical opinion arose between Dr. Jones and Dr. Huston
as to whether the work-related aggravation of rheumatoid arthritis had ceased. On April 4, 2006
it referred appellant, together with a statement of accepted facts and a list of questions, to
Dr. Stephen Ruhlman, a Board-certified internist specializing in rheumatology, for an impartial
medical examination.
In an April 18, 2006 report, Dr. Jones advised that appellant had rheumatoid arthritis with
persistent synovitis of both elbows with evidence of prior joint damage on x-ray and physical
examination involving her hands. He opined that appellant could not return into repetitive work
with her hands without further aggravating her arthritis. Dr. Jones further opined that there was
no way anyone could state with any definitiveness as to what happened 12 years earlier to
determine whether the disease had resolved or left any residual damage.
In a May 1, 2006 report, Dr. Ruhlman noted appellant’s history, her current symptoms
and reported his findings on physical examination. He stated that her subjective complaints
correlated with her objective findings. Dr. Ruhlman opined that she was disabled from any
occupational activity and was not a candidate for vocational rehabilitation due to the significant
destruction of her elbow, wrists and finger joints, which severely limited her activities. He
advised that appellant had active synovitis, as denoted by limitations in joint motion of multiple
upper extremity joints and x-ray changes. Dr. Ruhlman opined that, more likely than not, this

2

would be related to her rheumatoid arthritis condition with natural progression, rather than any
work-related aggravation. Dr. Ruhlman stated that appellant did not have normal joints which
would be the baseline prior to her diagnosis of rheumatoid arthritis. Appellant’s present
condition was consistent for a person who had rheumatoid arthritis for years, especially when
there was inadequate control of the disease. Dr. Ruhlman opined that a work-related aggravation
would have been temporary in nature and resolved years ago. He also noted that, if the joint
damage was considered work related, then this had progressed and would continue to progress.
On May 24, 2006 the Office requested clarification from Dr. Ruhlman concerning his
opinion on whether the work-related aggravation of appellant’s rheumatoid arthritis had ceased.
It noted that her claim was only accepted for aggravation of rheumatoid arthritis not a joint
(damage) condition or aggravation of a joint (damage) condition. In a May 25, 2006 report,
Dr. Ruhlman opined that appellant’s work-related aggravation of rheumatoid arthritis had
ceased. The aggravation caused by her employment likely ceased many years ago. Dr. Ruhlman
noted that appellant currently had no significant flare-up of the arthritis, only joint damage and
explained that a flare-up would be consistent with an aggravation.
On May 31, 2006 the Office issued a notice of proposed termination of appellant’s
compensation benefits. It found that Dr. Ruhlman’s reports established that she no longer had
any residuals or disability due to her accepted work-related condition.
In a June 18, 2006 letter, appellant argued that the aggravation of her rheumatoid arthritis
caused by her work activities caused permanent and irreversible damage to her upper extremity
joints. She noted that Dr. Ruhlman stated that, if her joint damage was considered work
aggravated, then this continued. Appellant did not submit any medical evidence.
By decision dated July 19, 2006, the Office finalized termination of appellant’s
compensation benefits effective August 6, 2006.
On August 11, 2006 appellant requested a review of the written record. In an August 10,
2006 letter, she reiterated that the aggravation of her rheumatoid arthritis caused by her work
activities caused her joint damage. Appellant submitted duplicative copies of medical reports
and materials previously of record. No new medical evidence was submitted.
By decision dated December 8, 2006, an Office hearing representative affirmed the
termination of appellant’s wage loss and medical compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.2 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
1

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

2

Id.

3

evidence based on a proper factual and medical background.3 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.4
ANALYSIS -- ISSUE 1
The Office accepted that an aggravation of preexisting rheumatoid arthritis resulted from
appellant’s federal employment. Dr. Jones advised on November 10, 2005 that she continued to
be disabled from active rheumatoid arthritis and would not be capable of any sedentary work.
The Office referred appellant to Dr. Huston for a second opinion examination. Dr. Huston
conducted a physical examination which revealed upper extremity damage of appellant’s elbows,
wrists and hands. He opined that appellant’s condition and her disability was a result of her
preexisting rheumatoid arthritis condition, which was not due to any prior work activities.
Dr. Huston opined that the work-related aggravation was temporary and that her present
condition was attributable to the degenerative process and not to her prior work activities. The
Office found a conflict in medical opinion between Dr. Jones and Dr. Huston as to whether the
work-related aggravation of rheumatoid arthritis had ceased. It referred appellant to
Dr. Ruhlman for an impartial medical examination to resolve the conflict in medical opinion
evidence.5
In a May 1, 2006 report, Dr. Ruhlman provided an accurate factual and medical
background. He opined that, while the underlying condition of rheumatoid arthritis continued,
any work-related aggravation was temporary in nature and had ceased years ago. Dr. Ruhlman
explained that appellant’s present limitations in multiple upper extremity joints was consistent
for a person who had rheumatoid arthritis for years, especially when there was inadequate
control of the disease. In a May 25, 2006 report, Dr. Ruhlman clarified that appellant’s
aggravation of rheumatoid arthritis had ceased. He reiterated that any aggravation caused by her
employment was temporary and had ceased. Her ongoing limitations were due to the
progressive nature of the underlying disease process.
The Board finds that the Office properly terminated appellant’s wage loss and medical
compensation benefits. The weight of the medical opinion evidence, as represented by the
opinion of Dr. Ruhlman, establishes that appellant no longer has any residuals or disability due
to the accepted aggravation of her underlying rheumatoid arthritis. His report is based on a full
and accurate history and he provided rationale to support his conclusion that the aggravation
caused by her employment had ceased. As the impartial medical specialist, the opinion of
Dr. Ruhlman is entitled to special weight.6 Appellant’s treating physician, Dr. Jones, opined that
3

See Del K. Rykert, 40 ECAB 284 (1988).

4

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

5

See 5 U.S.C. § 8123(a) (if there is a disagreement between the physician making the examination of the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination).
6

See David W. Pickett, 54 ECAB 272 (2002).

4

she continued to be disabled from residuals of her rheumatoid arthritis condition. Dr. Jones’
report reiterated his prior opinion on causal relationship which, the Board notes, gave rise to one
side of the conflict in medical opinion. His opinion is insufficient to overcome the special
weight accorded to Dr. Ruhlman.7
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.8
ANALYSIS -- ISSUE 2
Following the Office’s termination of compensation benefits effective August 6, 2006,
appellant argued that the aggravation of her rheumatoid arthritis caused by her work activities
also caused her irreversible joint damage. However, she did not provided any new medical
evidence to support her assertion. Thus, the Office hearing representative properly found in her
December 8, 2006 decision that appellant had not met her burden of proof to establish that she
continues to suffer from the aggravation of her work-related condition.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss and medical compensation benefits effective August 6, 2006 and that appellant did not meet
her burden of proof in establishing that she had a continuing employment-related condition or
disability after August 6, 2006.

7

See Bernadine P. Taylor, 59 ECAB 342 (2003).

8

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 8 and July 19, 2006 are affirmed.
Issued: February 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, RIVERTON HEIGHTS )
POST OFFICE, Seattle, WA, Employer
)
__________________________________________ )
W.D., Appellant

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

Docket No. 09-188
Issued: August 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 27, 2008 appellant filed a timely appeal from the September 29, 2008 merit
decision of the Office of Workers’ Compensation Programs, which determined the loss of wageearning capacity attributable to his March 11, 1969 employment injury. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case. The Board has
no jurisdiction to consider evidence that was not before the Office at the time of its
September 29, 2008 final decision.1
ISSUE
The issue is whether the Office properly reduced the compensation payable for
appellant’s March 11, 1969 employment injury.

1

20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 11, 1969 appellant, then a 35-year-old regular carrier, sustained an injury in
the performance of duty when, while unloading onto a raised portion of sidewalk, he stepped
from his truck and turned his right ankle. The Office accepted his claim for right ankle sprain,
right ankle instability and right ankle surgery. Appellant underwent a right ankle arthrotomy
with reconstruction of the lateral ligaments. Following the injury, he was diagnosed with
hypertension, cardiovascular problems with a triple bypass, angina, left knee arthritis and back
problems, none of which were considered work related.
A conflict in medical opinion arose on whether the March 11, 1969 employment injury
continued to totally disable appellant for all work. Appellant’s family physician, Dr. John M.
Ward, considered appellant chronically and completely incapacitated and disabled as a result of
his right ankle. Dr. Edward J. Prostic, an orthopedic surgeon and Office referral physician,
disagreed. He found that, based on the right ankle injury alone, appellant was not totally
disabled for all work. Indeed, Dr. Prostic felt that some people with such an injury could return
to full duties as a letter carrier, with or without an ankle foot orthosis, though patients with
significant loss of motion of the ankle and hind foot would usually have difficulty walking on
uneven surfaces, squatting and kneeling. He suggested that appellant be offered duties that did
not require standing or walking more than 50 minutes per hour with avoidance of more than
minimal climbing, squatting, kneeling or walking over uneven surfaces. Dr. Prostic reported that
no abnormality was noted on multiple x-rays of the right ankle.
Dr. Ward reviewed Dr. Prostic’s report and expressed his disagreement. He stated that
appellant could not walk 50 minutes in an hour. Dr. Ward doubted that appellant could walk five
minutes and x-rays he obtained in 2004 demonstrated not only operative changes, but chronic
degenerative changes in the ankle as a result of the surgery. He concluded that appellant had a
severe torn lateral ligament, which underwent reconstruction with a bad result. Dr. Ward stated
that appellant could not walk, could not stand for prolonged periods and would remain
chronically disabled.
To resolve this conflict, the Office referred appellant, together with medical records and a
statement of accepted facts, to Dr. Corey G. Solman, Jr., a Board-certified orthopedic surgeon,2
who examined appellant on February 6, 2008. Dr. Solman reviewed numerous medical records
on the treatment of appellant’s right ankle, and he obtained an x-ray. He related appellant’s
history in some detail. Dr. Solman noted appellant’s complaints, described his findings on
physical examination and reviewed a magnetic resonance imaging scan from July 25, 2006. He
diagnosed chronic right ankle pain and instability with mild osteoarthritis.
2

The Office initially referred appellant to Dr. Jeff Harsch, but later determined he was not Board-certified and
therefore not qualified to serve as an impartial medical specialist. The Office then referred appellant to Dr. Ernest
Szabados, but his initial opinion lacked supportive objective findings and medical rationale. As Dr. Szabados was
unable to cure those deficiencies in his supplemental report, the Office referred appellant to another impartial
medical specialist, Dr. Solman. See Nathan L. Harrell, 41 ECAB 402 (1990). When the impartial medical
specialist’s statement of clarification or elaboration is not forthcoming or if the specialist is unable to clarify or
elaborate on the original report or if the specialist’s supplemental report is also vague, speculative or lacks rationale,
the Office must submit the case record together with a detailed statement of accepted facts to a second impartial
specialist for a rationalized medical opinion on the issue in question.

2

Dr. Solman discussed the surgical technique of the reconstruction appellant underwent in
1974 and the “overtightened” right ankle that resulted. He noted that, while this could alter the
normal biomechanics of the ankle, the effect would be more noticeable in a heavy labor or
athletic population. Dr. Solman concluded that appellant was likely having pain in the ankle and
would likely have trouble climbing stairs, ladders and traversing uneven ground, but that would
not preclude him 100 percent from all work. He felt appellant could return to some form of
work, with proper rehabilitation and proper bracing, though it would have to be modified to
accommodate him. Dr. Solman described appellant’s limitations and stated that appellant could
perform any form of seated duty full time. In a supplemental report dated April 7, 2008, he
clarified that, in light of the right ankle injury only, without consideration of subsequently
acquired medical conditions, appellant was capable of performing sedentary duty, as defined by
the Department of Labor’s Dictionary of Occupational Titles, for eight hours a day.
Having established that appellant’s March 11, 1969 employment injury no longer totally
disabled him for all employment, and having established the specific work restrictions related to
that injury, the Office referred his case to an Office rehabilitation specialist for the selection of a
position that fit his capabilities in light of his physical limitations, education, age and prior
experience. Based on the medically determinable residuals of the March 11, 1969 employment
injury, and taking into consideration all significant preexisting impairments and pertinent
nonmedical factors, the Office rehabilitation counselor found that appellant was able to perform
the job of telephone solicitor. He noted that appellant met the specific vocational preparation
requirements, and confirmed through the Missouri Department of Economic Development that
the job was being performed in sufficient numbers so as to make it reasonably available to
appellant within his commuting area. According to the Bureau of Labor Statistics, as of
May 2007 in Columbia, Missouri, the entry level weekly wage of such a position was $340.00.
On July 15, 2008 the Office notified appellant that it proposed to reduce his
compensation for wage loss due to the March 11, 1969 employment injury. Appellant disagreed
with this proposal, in large part because other medical conditions prevented him for working
eight hours a day: “I cannot sit from two bad hips and cannot use arms for any period of time
due to arthritis and bursitis caused from falls. I might be able to do 4 hours per day but not at
something I hate. I would prefer all telemarketers were dead. I hate solicitors, period.”
In a decision dated September 29, 2008, the Office reduced the compensation payable for
appellant’s March 11, 1969 employment injury. It acknowledged that subsequently acquired
medical conditions prevented appellant from returning to any gainful employment, but explained
that such disabling medical conditions could not be considered in determining the loss of wageearning capacity caused by the March 11, 1969 employment injury. The Office found that
appellant failed to establish that his cardiac conditions were preexisting or that he had other
disabling injuries as a result of the March 11, 1969 employment injury. It explained that the lack
of current job openings was no evidence that the identified job was not reasonably available.
The Office further explained that appellant’s receipt of a schedule award for permanent physical
impairment was not synonymous with permanent disability for work.

3

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.3
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.4
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 wage-earning capacity. If the actual earnings of the employee do not fairly and
reasonably represent his wage-earning capacity or if the employee has no actual earnings, his
wage-earning capacity as appears reasonable under the circumstances is determined with due
regard to the nature of his injury, the degree of physical impairment, his usual employment, his
age, his qualifications for other employment, the availability of suitable employment and other
factors or circumstances which may affect his wage-earning capacity in his disabled condition.5
When the Office makes a medical determination of partial disability and of the specific
work restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist
for selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles
or otherwise available in the open labor market, that fits the employee’s capabilities in light of
his physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.6
In determining a loss of wage-earning capacity, where the residuals of an injury prevent
an employee from performing his regular duties, the impairments that preexisted the injury, in
addition to the injury-related impairments, must be taken into consideration in the selection of a
job within his work tolerance. It is only subsequently acquired impairments unrelated to the
injury that are excluded from consideration in the determination of the employee’s work
capabilities.7
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.8

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

5

5 U.S.C. § 8115(a).

6

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

7

William H. Woods, 51 ECAB 619 (2000).

8

Harold S. McGough, 36 ECAB 332 (1984).

4

If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.9 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.10
ANALYSIS
Appellant has submitted a substantial amount of evidence and argument on this appeal.
The Board has reviewed his correspondence, and it appears that he does not fully understand the
conceptual basis upon which the Office was paying compensation for his March 11, 1969
employment injury.
The Act provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty. “Disability” means the incapacity,
because of an employment injury -- in this case, specifically, the March 11, 1969 employment
injury -- to earn the wages the employee was receiving at the time of injury. Because the Office
accepted that appellant sustained a right ankle injury in the performance of duty on March 11,
1969, he is entitled to compensation for any disability, or loss of wage-earning capacity, caused
by the accepted right ankle condition. Once that right ankle condition no longer totally disables
him from all employment, he is no longer entitled to compensation for total disability based on
the March 11, 1969 employment injury. It may be that some later injury or medical condition
renders him totally disabled for any kind of employment, but in such a case, it is not the
March 11, 1969 employment-related right ankle injury that is causing the total disability.
To be clear, the Office understands that appellant’s current overall medical condition
renders him totally incapable of any employment whatsoever, including any employment as a
telephone solicitor. In order to pay him the compensation he is entitled to receive for his
March 11, 1969 employment-related right ankle injury, it must determine how much of his
disability or incapacity to earn wages is a result of that specific injury. To do that, the Office
must determine what employment, if any, he is at least theoretically capable of performing given
only the residuals of his employment-related right ankle injury. So it is no answer for appellant
to point to a totally disabling coronary condition. Based on what happened on March 11, 1969,
when he turned his right ankle at work, he is not entitled to compensation for disability stemming
from his heart problems. Appellant is entitled to compensation only for the amount of disability
or loss of wage-earning capacity that remains from his old employment-related right ankle
injury. That is why the Office and the impartial medical specialist did not and may not consider
whether appellant is also disabled by later injuries to his left ankle or knee or a subsequent
worsening of his coronary condition.
More directly addressing the Office’s September 29, 2008 decision, the Board finds that
the Office properly determined that a conflict arose between appellant’s family physician,
9

5 U.S.C. § 8123(a).

10

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

5

Dr. Ward, and the Office referral physician, Dr. Prostic, on whether appellant remained totally
disabled as a result of his March 11, 1969 employment-related right ankle injury. The Office,
therefore, properly referred appellant to an impartial medical specialist, Dr. Solman, to resolve
the conflict.11
The Office provided Dr. Solman, a Board-certified orthopedic surgeon, with medical
records and a statement of accepted facts so he could base his opinion on a proper medical and
factual background. Dr. Solman reviewed the records, examined appellant and obtained an
x-ray. He provided a reasoned medical opinion that the March 11, 1969 employment-related
right ankle injury no longer totally disabled appellant for all work. Dr. Solman explained that
appellant’s reconstructive surgery in 1974 was typical of the surgical techniques in use at the
time, and left appellant with an “overtightened” ankle. He explained that this could alter the
normal biomechanics of the joint, but that it did not preclude appellant 100 percent from all
work. Indeed, as Dr. Solman clarified, appellant was capable of performing sedentary duty eight
hours a day, at least based on his March 11, 1969 employment-related right ankle injury.
The Board finds that the opinion of the impartial medical specialist, Dr. Solman, is based
on a proper background and is sufficiently well rationalized that it must be accorded special
weight in resolving the conflict between Dr. Ward and Dr. Prostic. Dr. Solman’s opinion
establishes that residuals of the March 11, 1969 employment-related right ankle injury no longer
totally disable appellant for all work. As the Board explained earlier, that means appellant is not
entitled to compensation for total disability based on his employment-related right ankle injury.
The question that arises is how much disability does remain from that injury. To calculate that,
the Office must determine what employment the residuals of that injury would theoretically
allow.
Because the weight of the medical opinion evidence establishes that appellant’s
March 11, 1969 employment injury only partially disables him for work, and because the
impartial medical specialist specified appellant’s work restrictions, the Office properly referred
appellant to its rehabilitation specialist for the selection of a position that fit his capabilities in
light of his physical limitations, education, age and prior experience. The rehabilitation
counselor determined, based on the medically determinable residuals of the March 11, 1969
employment injury, and taking into consideration all significant preexisting impairments and
pertinent nonmedical factors, that appellant was able to perform the job of telephone solicitor, a
sedentary position. The rehabilitation counselor confirmed the entry level pay rate in nearby
Columbia, Missouri, and further confirmed through the Missouri Department of Economic
Development that the job was being performed in sufficient numbers so as to make it reasonably
available to appellant within his commuting area. That was no guarantee there would be many
openings for a telephone solicitor at any particular time, only that there were enough people
performing that job that positions could be expected to open up from time to time, making it
reasonably available in the open market. The point was to establish how much money appellant
could theoretically make in the open market if the only disability he had came from his
March 11, 1969 employment-related right ankle injury.
11

Dr. Harsch was not qualified to act as an impartial medical specialist, and Dr. Szabados offered insufficient
medical rationale to resolve the issued presented to him. This does not mean, as appellant suggests, that their reports
must be excluded from the record or that any reference to their reports will poison the opinion of another physician.

6

Having established that, the Office could then calculate how much disability or loss of
wage-earning capacity remained from the employment-related right ankle injury,
notwithstanding any disability that any later injuries or medical conditions might be causing.
The Board finds that the Office properly applied the principles set forth in Albert C. Shadrick to
determine the loss of wage-earning capacity remaining from the accepted injury. The Office
compared the earnings appellant could theoretically earn as a telephone solicitor, based solely on
his employment-related right ankle injury, to the current pay rate of his date-of-injury position
and found that his wage-earning capacity was 37 percent, entitling him to compensation equal to
63 percent of what he would otherwise receive for total disability.
Appellant disagrees that he can perform the position of telephone solicitor. However, the
rehabilitation specialist is an expert in the field of vocational rehabilitation, and the Office may
rely on his or her opinion as to whether the job is reasonably available and vocationally
suitable.12 The rehabilitation counselor conducted a transferable skills analysis that took into
account many factors, including appellant’s schooling, military service, an analysis of his past
employment, his vocational interests, worker trait profiles and personality reinforcers.
The Board finds that the Office has met its burden of proof to reduce the compensation
payable for appellant’s March 11, 1969 employment injury. The Office gave due regard to
appropriate factors in determining, as appears reasonable under the circumstances, the wageearning capacity allowed by his employment-related right ankle injury, even though later injuries
or medical conditions now totally disable him for all work. The Board will therefore affirm the
Office’s September 29, 2008 decision.
CONCLUSION
The Board finds that the Office properly reduced the compensation payable for
appellant’s March 11, 1969 employment injury.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8.b(2) (December 1995).

7

ORDER
IT IS HEREBY ORDERED THAT the September 29, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
LANGLEY AIR FORCE BASE, VA, Employer
__________________________________________

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

Docket No. 11-2044
Issued: April 10, 2012

Case Submitted on the Record

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

JURISDICTION
On September 13, 2011 appellant timely appealed the March 17, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration of a
September 16, 2010 schedule award. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to the
March 17, 2011 nonmerit decision.2
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. §§ 8101-8193.

Because the latest merit decision was issued on September 16, 2010; more than 180 days prior to the filing of
the instant appeal, the Board does not have jurisdiction over the merits of appellant’s claim for a schedule award.
The Board also notes that he submitted additional evidence with his notice of appeal. Because this evidence was not
submitted to OWCP prior to the issuance of its March 17, 2011 decision, the Board is precluded from considering it
for the first time on appeal. 20 C.F.R. § 501.2(c)(1) (2011).

FACTUAL HISTORY
On March 2, 2005 appellant, then a 51-year-old maintenance mechanic, injured his left
shoulder in the performance of duty. OWCP initially accepted the claim for shoulder
sprain/strain. It subsequently authorized left rotator cuff repair, which he underwent on
January 12, 2006.3 Appellant received appropriate wage-loss compensation and he returned to
work on July 11, 2006.
On August 3, 2010 appellant filed a claim for a schedule award (Form CA-7). His
surgeon, Dr. Coleman, had referred him for a functional capacity evaluation (FCE), which was
performed on September 9, 2009 by Wayne MacMasters, a physical therapist, who found 11
percent upper extremity impairment for loss of motion in the shoulder. Dr. Coleman reviewed
and signed the rating on September 28, 2009, noting that the 11 percent figure “seems
reasonable.” However, this rating was derived under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2001), which was no longer
applicable for schedule award purposes.4
In a report dated September 14, 2010, the district medical adviser (DMA), Dr. Craig M.
Uejo, reviewed the record and applied the sixth edition of the A.M.A., Guides (2008).5 He found
that appellant had four percent impairment of the left upper extremity. Rather than rate appellant
on loss of shoulder motion, Dr. Uejo provided a diagnosis-based impairment (DBI) rating under
Table 15-5 (Shoulder Regional Grid), A.M.A., Guides 403 (6th ed. 2008).6 The rating was based
on the diagnosis of a rotator cuff injury, full-thickness tear.
By decision dated September 16, 2011, OWCP granted a schedule award for four percent
impairment of the left upper extremity. The award covered a period of 12.48 weeks from
August 18 to November 13, 2009.
On February 26, 2011 appellant requested reconsideration, which OWCP received on
March 7, 2011. He submitted April 12, 2005 and February 2, 2007 left shoulder magnetic
resonance imaging (MRI) scans and Dr. Coleman’s treatment records from April 5, 2005 to
September 28, 2009, including the January 12, 2006 operative report. All of the medical records
OWCP received on March 7, 2011 were previously of record.
3

Dr. Martin R. Coleman, a Board-certified orthopedic surgeon, performed appellant’s January 12, 2006 surgery,
which also included arthroscopic decompression, distal clavicle resection and superior labrum anterior-posterior
(SLAP) repair.
4

Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of the A.M.A.,
Guides (2008). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit
1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
5

Dr. Uejo is Board-certified in preventive medicine and occupational medicine.

6

Dr. Uejo questioned the reliability of Mr. MacMasters’ evaluation primarily because he was not a physician and
because his September 9, 2009 measurements for shoulder range of motion (ROM) were inconsistent with
Dr. Coleman’s August 19, 2009 examination findings, which noted that appellant’s shoulder showed “basically full
range of motion.”

2

By decision dated March 17, 2011, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
OWCP has the discretion to reopen a case for review on the merits.7 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.8
When an application for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.9
ANALYSIS
Appellant’s February 26, 2011 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by OWCP.
Appellant merely requested that OWCP reexamine his records or send him for another
evaluation, if necessary. He also indicated that he had a painful cyst in his left upper extremity
and did not want to undergo additional surgery. Lastly, appellant commented about the cost and
inconvenience associated with having to repurchase his sick leave once OWCP accepted his
claim. While his comments and concerns are duly noted, his February 26, 2011 request for
reconsideration did not delineate the type of arguments that would warrant further merit review
of his schedule award claim. Therefore, appellant is not entitled to a review of the merits based
on the first and second above-noted requirements under section 10.606(b)(2).10
Appellant also failed to submit any “relevant and pertinent new evidence” with his
February 26, 2011 request for reconsideration. As noted, all of the evidence that accompanied
his request was previously of record. Submitting additional evidence that repeats or duplicates
information already in the record does not constitute a basis for reopening a claim.11 Appellant
did not provide any new medical evidence that might arguably impact the prior schedule award
decision.12 Consequently, he is not entitled to a review of the merits based on the third
requirement under section 10.606(b)(2).13
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.608(b).

10

Id. at § 10.606(b)(2)(i) and (ii).

11

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

12

Appellant may submit additional medical evidence in support of an increased schedule award to OWCP, at any
time.
13

20 C.F.R. § 10.606(b)(2)(iii).

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s February 26, 2011 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BAY PINES MEDICAL CENTER,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 07-897
Issued: July 18, 2007

Case Submitted on the Record

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

JURISDICTION
On February 14, 2007 appellant filed a timely appeal from a January 19, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has established that she sustained a right arm or wrist
condition due to factors of her federal employment.
FACTUAL HISTORY
On October 24, 2006 appellant, then a 47-year-old housekeeping aid, filed an
occupational disease claim alleging that she sustained tightness and tingling in her lower arm due
to “making boxes daily.” She did not stop work. In a statement accompanying her claim,

appellant described her work making and emptying boxes. Her lower arm and hand began
tingling and she informed her superiors.
In a statement dated October 16, 2006, the employing establishment verified that
appellant’s duties included unfolding, taping and placing a red bag into biological hazard boxes.
When the boxes became full, she placed them into a biological hazard container and wheeled the
boxes to the loading dock. Appellant notified management that her right hand felt numb on
July 26, 2006.
In a report dated July 31, 2006, Dr. Kenneth A. Neifeld, a Board-certified internist, noted
that appellant experienced “some tingling in her hand while making boxes” during her work at
the employing establishment. He listed findings of “slight tenderness to palpation and range of
motion of the right wrist.” Dr. Neifeld diagnosed probable early carpal tunnel syndrome and
opined that she should restrict her wrist movement for one month and wear a wrist strap.
By letter dated November 1, 2006, the Office informed appellant that the evidence was
currently insufficient to establish her claim and requested additional factual and medical
information, including a detailed medical report addressing the results of objective tests and the
causal relationship of any diagnosed condition to factors of her federal employment. In a
response received December 4, 2006, appellant described her employment duties and her
development of a hand and wrist problem. She also submitted an accident report describing the
incident as occurring when her right hand and lower forearm began tingling when she made
boxes.
In a decision dated January 19, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to establish that she sustained a medical condition
causally related to the accepted work factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
1

5 U.S.C. §§ 8101-8193.

2

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

2

presence or existence of the disease or condition for which compensation is claimed;4 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,8 must be one of reasonable medical certainty9 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10
ANALYSIS
Appellant attributed her right lower arm and hand condition to making and moving
boxes. The employing establishment confirmed that she performed these duties and the Office
accepted the occurrence of the claimed employment factors. The issue, therefore, is whether the
medical evidence establishes a causal relationship between the claimed conditions and the
identified employment factors.
On July 31, 2006 Dr. Neifeld described appellant’s complaints of tingling in her hand
which she attributed to making boxes at work. He diagnosed probable early carpal tunnel
syndrome and listed restrictions for the wrist. Dr. Neifeld did not, however, address the cause of
the diagnosed condition of probable carpal tunnel syndrome. Medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.11 Further, Dr. Neifeld’s diagnosis of “probable” carpal
tunnel syndrome is speculative in nature and entitled to little weight.12

4

Michael R. Shaffer, 55 ECAB 386 (2004).

5

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

7

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

Conrad Hightower, supra note 7.

12

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

3

An award of compensation may not be based on surmise, conjecture or speculation of
upon appellant’s own belief that there is a causal relationship between her claimed condition and
her employment.13 Appellant must submit a physician’s report in which the physician reviews
those factors of employment identified as causing her condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.14 She failed to submit adequate medical evidence and therefore
failed to discharge her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained a right arm or wrist
condition due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2007 is affirmed.
Issued: July 18, 2007
Washington, DC

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

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

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

13

Patricia J. Glenn, 53 ECAB 159 (2001).

14

Robert Broome, 55 ECAB 339 (2004).

4