United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-276
Issued: May 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2013 appellant, through his attorney, filed a timely appeal from July 3
and October 23, 2013 merit decisions of the Office of Workers’ Compensation Programs
(OWCP) denying his claim as untimely filed. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant’s occupational disease claim is barred by the applicable
time limitation provisions of FECA.
FACTUAL HISTORY
On February 27, 2013 appellant, then a 70-year-old pipefitter general foreman, filed an
occupational disease claim alleging that he sustained bilateral hearing loss due to noise exposure
1

5 U.S.C. § 8101 et seq.

at work. He initially became aware of his condition and attributed it to his federal employment
duties on January 1, 1982. Appellant was last exposed to the conditions alleged to have caused
his hearing loss on April 3, 1997, the date that he retired. He indicated that he was only recently
aware that he could file a hearing loss claim.
By letter dated April 3, 2013, OWCP requested that appellant submit additional factual
and medical information, including evidence that he timely provided notice of his alleged injury.
In an April 17, 2013 response, appellant described his history of noise exposure while
working for the employing establishment from 1966 to 1997. He again indicated that he first
related his hearing loss to his work duties in 1982 as it could not “be anything else.” Appellant
submitted a March 16, 2012 audiogram showing moderate-to-severe hearing loss on the right and
high-frequency hearing loss on the left.
The employing establishment obtained audiograms on appellant from March 1960
onward. A March 24, 1978 audiogram revealed moderate-to-severe sensorineural hearing loss
on the right. A July 19, 1978 audiogram showed normal findings for the left ear and moderateto-severe mixed hearing loss of the right ear with a large conductive component. An April 28,
1980 audiogram showed a “sharply downward sloping loss” on the right side. A June 10, 1980
audiogram revealed moderate-to-severe sensorineural hearing loss. Appellant underwent
audiograms dated 1986 to 1997 as part of a hearing conservation program by the employing
establishment.
On March 26, 2013 the employing establishment confirmed that appellant was exposed to
noise during the course of his employment and wore hearing protection. It challenged the
timeliness of the claim.
By decision dated July 3, 2013, OWCP denied appellant’s claim on the grounds that it
was not timely filed.
On July 25, 2010 appellant, through his attorney, requested reconsideration. Counsel
resubmitted audiograms obtained by the employing establishment from 1986 to 1997 and
asserted that the audiograms demonstrated that his employer had actual knowledge of his noiseinduced hearing loss.
In a report dated July 19, 1978, received by OWCP on August 9, 2013, a physician with
the employing establishment indicated that an audiogram obtained that date showed normal
findings on the left and moderate-to-severe hearing loss on the right with a large conductive loss
that would not be occupational. He recommended that appellant be evaluated by a private
physician.
In a statement dated February 10, 2013, appellant related that the audiology department at
the employing establishment issued him earplugs. He noticed his hearing loss two years after he
began work.
In a statement dated April 26, 2013, an audiologist with the employing establishment
reviewed appellant’s history of noise exposure and medical records. He related that hearing
conservation forms indicated that appellant was issued hearing protection in 1961 and was
2

“provide[d] with hearing conservation training.” The audiologist noted that appellant initially
filed a claim for hearing loss in 1978 and that at the time of his preemployment physical he had
right-sided hearing loss. He recommended an evaluation by a Board-certified otolaryngologist,
noting that the hearing loss on the left was below the compensable range and on the right did not
appear occupational in nature. On April 30, 2013 Dr. Ernest L. Fair, who specializes in
occupational medicine, concurred with the recommendation of the audiologist.
By decision dated October 23, 2013, OWCP denied modification of its July 3, 2013
decision. It found that, while appellant participated in a hearing conservation program, he did
not show that the employing establishment had actual knowledge of his claimed injury. OWCP
further determined that he did not file his claim within three years from April 3, 1997, the date of
last exposure.2
On appeal appellant’s attorney argues that his participation in the hearing conservation
program at the employing establishment establishes actual knowledge of his injury. He asserts
that a claim does not need to be filed within three years if the employing establishment had
actual knowledge of the injury.
LEGAL PRECEDENT
Section 8122(a) of FECA3 provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.4 Section 8122(b) provides
that, in latent disability cases, the time limitation does not begin to run until the claimant is
aware, or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.5 The Board has held that,
if an employee continues to be exposed to injurious working conditions after such awareness, the
time limitation begins to run on the last date of this exposure.6 Even if a claim is not timely filed
within the three-year period of limitation, it would still be regarded as timely under section
8122(a)(1) if the immediate superior had actual knowledge of his alleged employment-related
injury within 30 days or written notice of the injury was provided within 30 days pursuant to
section 8119.7 The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death.8 The Board has indicated that an employee need only be
aware of a possible relationship between his “condition” and his employment to commence the

2

OWCP indicated that appellant retired on April 3, 1993 rather than April 3, 1997; however, this appears to be a
typographical error.
3

5 U.S.C. § 8101 et seq.

4

Id. at § 8122(a).

5

Id. at § 8122(b).

6

See Linda J. Reeves, 48 ECAB 373 (1997).

7

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

8

Willis E. Bailey, 49 ECAB 509 (1998).

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running of the applicable statute of limitations.9 The Board has also held that a program of
annual audiometric examinations conducted by an employing establishment may constructively
establish actual knowledge of a hearing loss such as to put the immediate supervisor on notice of
an on-the-job injury.10
In interpreting section 8122(a)(1) of FECA, OWCP procedures provide that, if the
employing establishment gives regular physical examinations which might have detected signs
of illness, such as hearing tests, it should be asked whether the results of such tests were positive
for illness and whether the employee was notified of the results.11
ANALYSIS
The Board finds that appellant’s claim was timely filed. As noted above, if an employee
continues to be exposed to injurious working conditions, the time limitation begins to run on the
date of last exposure.12 Appellant ceased to be exposed to work-related noise when he retired on
April 3, 1997. Therefore, the time limitation provisions began to run on that date. As appellant
did not file a claim for hearing loss until February 2013, his claim was filed outside the threeyear time limitation period.13 However, his claim would still be regarded as timely under section
8122(a)(1) of FECA if his immediate supervisor had actual knowledge of the injury within 30
days of his last exposure to the implicated employment factors. To have actual knowledge, the
supervisor must be aware that appellant attributed his hearing loss to an injury sustained in the
performance of duty or to some other factor of employment.14
On appeal appellant’s attorney contends that his supervisor had actual knowledge of his
hearing as he was part of a hearing conservation program. The Board has held that a program of
annual audiometric examinations conducted by an employing establishment in conjunction with
employee testing programs is sufficient to constructively establish actual knowledge of a hearing
loss such as to put the immediate supervisor on notice of an on-the-job injury.15 OWCP’s
procedure manual, interpreting section 8122(a)(1) of FECA states:
“If an agency, in connection with a recognized environmental hazard, has an
employee testing program and a test shows the employee to have positive findings
this should be accepted as constituting actual knowledge. For example, an agency
9

Edward C. Horner, 43 ECAB 834, 840 (1992).

10

See J.B., Docket No. 10-2025 (issued June 17, 2011); Jose Salaz, 41 ECAB 743 (1990).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(c) and 6(c) (March 1993); see also
James A. Sheppard, 55 ECAB 515 (2004).
12

See Larry E. Young, 52 ECAB 264 (2001).

13

5 U.S.C. § 8122(b).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a(3)(b) (March 1993).

15

See Joseph J. Sullivan, 37 ECAB 526 (1986); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.3(c) (March 1993).

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where employees may be exposed to hazardous noise levels may give annual
hearing tests for exposed employees. A hearing loss identified on such a test
would constitute actual knowledge on the part of the agency of a possible work
injury.”16
The record supports that appellant participated in an annual hearing conservation
program as early as 1986 and that the results indicated various levels of hearing loss. As noted,
OWCP procedures provide that, if the employing establishment gives regular physical
examinations which might have detected signs of illness, such as hearing tests, it should be asked
whether the results of such tests were positive for illness and whether the employee was notified
of the results.17 On April 30, 2013 an audiologist with the employing establishment related that
appellant had hearing loss on the right side at the time of his preemployment physical and had
initially claimed hearing loss in 1978. He recommended an evaluation by a private physician. In
a report dated July 19, 1978, a physician found that appellant’s audiogram revealed moderate-tosevere right-sided hearing loss with a large conductive component that would not be
occupational. The physician also recommended a consultation with a private physician.
The Board finds that the evidence of record is sufficient to establish that the employing
establishment had actual knowledge within 30 days of the date of last exposure that appellant
believed that he had hearing loss as a result of his employment duties. While it is not clear
whether appellant’s hearing loss resulted totally from his federal employment, audiograms from
the employing establishment document hearing loss and it appears that the employing
establishment was aware in 1978 that he attributed some of his hearing loss at least in part to
federal employment. Consequently, his claim for compensation for hearing loss was timely
filed.18 The case will be remanded to OWCP for further development to determine if appellant
sustained hearing loss causally related to factors of his federal employment. Following such
further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim was timely filed.

16

Federal (FECA) Procedure Manual, id.

17

Id. at Chapter 2.801.3(c) and 6(c) (March 1993); see also James A. Sheppard, supra note 11.

18

See Gerald A. Preston, 57 ECAB 270 (2005); James A. Sheppard, supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the October 23 and July 3, 2013 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: May 2, 2014
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baton Rouge, LA, Employer
__________________________________________

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

Docket No. 13-2147
Issued: March 18, 2014

Case Submitted on the Record

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

JURISDICTION
On September 25, 2013 appellant filed a timely appeal from a March 26, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the last merit decision dated March 16, 2012 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of his claim, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether the OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
Appellant, a 34-year-old mail carrier, filed a Form CA-2 claim on March 6, 2000 alleging
that she developed a bilateral foot condition causally related to employment factors. OWCP
accepted the claim for bilateral joint derangement, bilateral calcaneal spur, bilateral bunion; and
bilateral plantar fibromatosis and began payment for temporary total disability compensation.
A conflict in the medical evidence developed over whether appellant could return to her
job as a mail carrier. To resolve this conflict, OWCP referred her to Dr. Gordon P. Nutik,
Board-certified in orthopedic surgery and an impartial medical examiner. In a report dated
March 17, 2010, he noted complaints of bilateral foot pain and stated that x-rays of appellant’s
feet were essentially normal. Dr. Nutik advised that she had experienced progressive pain in
both feet since 1996. He stated that appellant had continuing complaints which included
bilateral plantar fasciitis; she underwent a right-sided bunionectomy in 2009 and had residual
subjective complaints at the scar, although she did not appear to have any significant left-sided
bunion disease. Dr. Nutik diagnosed marked flat feet and bilateral accessory naviculars which
were also prone to be symptomatic. He opined that due to her chronic bilateral foot complaints
she could not return to her old job of delivering mail. Dr. Nutik asserted that appellant could
return to an eight-hour job with accommodations made to restrict any climbing and to allow her
to sit during the workday. He indicated that she had a chronic problem and recommended
orthotics and a home program of exercises to maintain range of motion of her feet. OWCP also
received a March 17, 2010 work restriction evaluation from Dr. Nutik in which he recommended
sedentary work and outlined work restrictions including no walking or standing.
Dr. Nutik completed an April 29, 2010 work restriction evaluation in which he included
work restrictions for appellant, including no walking and no standing for more than one hour.
He indicated that she could perform work as long as she was off her feet.
By decision dated March 25, 2011, OWCP advised appellant that it was reducing her
compensation because the weight of the medical evidence showed that she was no longer totally
disabled for work because of her accepted bilateral foot conditions and that the evidence of
record showed that the position of receptionist represented her wage-earning capacity.
On January 23, 2012 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her feet.
By letter dated January 30, 2012, OWCP informed appellant that it required additional
medical evidence in support of her schedule award claim. It asked her to provide a report
containing: (a) a diagnosis upon which the impairment was based, including any related surgery,
and a detailed description of all pertinent objective findings and subjective complaints; (b) a
detailed description of any permanent impairment of the same member or function which
preexisted the injury; and (c) a final rating of the permanent impairment, with a discussion of the
rationale for the calculation based on the applicable criteria and/or tables in the pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition) (A.M.A., Guides). OWCP requested that appellant submit the additional evidence
within 30 days. Appellant did not submit any medical evidence in support of her schedule award
claim.

2

By decision dated March 16, 2012, OWCP found that appellant had no ratable
impairment causally related to her accepted bilateral foot conditions and therefore was not
entitled to a schedule award.
In an October 1, 2012 report, Dr. Qui T. Le, a specialist in podiatry and appellant’s
treating physician, noted that he was treating appellant for bilateral ankle instability, bone spurs
and plantar fasciitis. He advised that appellant was also experiencing bilateral joint
derangement, bilateral calcaneal spurs and bilateral plantar fibromatosis. Dr. Le indicated that he
had prescribed home exercises and orthotics. He opined that the effects of appellant’s work
injury continued, that her condition was not improving and that she was unable to perform work
of any kind.
On March 5, 2013 appellant requested reconsideration.
In a March 5, 2013 letter, appellant advised OWCP that she was experiencing difficulty
obtaining a physician who performed impairment evaluations. She asked OWCP if it could refer
her to a physician who could perform an impairment evaluation in the event the current medical
evidence was not sufficient to establish that she had an impairment in her feet causally related to
her accepted conditions. In support of her request for reconsideration, appellant submitted:
July 2, 2012 letters from the Office of Personnel Management (OPM) indicating that she had
been approved for disability retirement due to chronic pain from her ankles and feet; a copy of
Dr. Nutik’s March 17, 2010 work capacity evaluation form report; a February 25, 2013 letter
from appellant in which she requested a copy of her case file; and a March 19, 2013 letter from
OWCP which discussed election of benefits between OWCP and OPM.
By decision dated March 26, 2013, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by submitting relevant and
pertinent evidence not previously considered by OWCP.3 Evidence that repeats or duplicates
evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.4
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP. She submitted letters regarding her election of benefits. This evidence,
3

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

4

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

3

however, is not pertinent to the issue on appeal; i.e., whether appellant had any permanent
impairment stemming from her accepted bilateral foot conditions. The Board has held that the
submission of evidence which does not address the particular issue involved in the case does not
constitute a basis for reopening the claim.5 OWCP asked appellant to submit a report from a
physician which contained an impairment evaluation indicating that she had permanent
impairment from her accepted bilateral foot conditions; none of the documents she submitted
contained such a report.
The only new medical evidence appellant submitted in support of her request for
reconsideration, which had not been previously reviewed by OWCP, was Dr. Le’s October 1,
2012 report. While Dr. Le noted appellant’s diagnoses in his October 1, 2012 report, he did not
offer an opinion regarding the issues in this case, nor the degree of permanent impairment and
the date of appellant’s maximum medical improvement. In obtaining medical evidence required
for a schedule award, the evaluation made by the attending physician must be in sufficient detail
so that the claims examiner and others reviewing the file will be able to clearly visualize the
impairment with its resulting restrictions and limitations.6
Appellant also resubmitted Dr. Nutik’s March 17, 2010 report. Dr. Nutik’s March 17,
2010 work restriction evaluation stated appellant’s restrictions as of that date, but did not
evaluate the degree of her permanent impairment. As his March 17, 2010 work restriction
evaluation had already been reviewed by OWCP, the resubmission was duplicative.7
Appellant alleged on reconsideration and on appeal that she cannot find a physician who
will perform impairment evaluations. The Board has held however that it remain appellant’s
burden of proof to establish that she sustained permanent impairment.8
The March 5, 2013 reconsideration request failed to show that OWCP erroneously
applied or interpreted a point of law nor did it advance a point of law or fact not previously
considered by OWCP. OWCP did not abuse its discretion in refusing to reopen appellant’s claim
for a review on the merits in its March 26, 2013 decision.
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 OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

5

See David J. McDonald, 50 ECAB 185 (1998).

6

See Vanessa Young, 55 ECAB 575 (2004).

7

See F.R., 58 ECAB 607 (2007).

8

See D.W., Docket No. 13-1387 (issued January 6, 2014).

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ORDER
IT IS HEREBY ORDERED THAT the March 26, 2013 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 18, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE ARMY,
Fort George Mead, MD, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1607
Issued: June 20, 2017

Case Submitted on the Record

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

JURISDICTION
On August 2, 2016 appellant, through counsel, filed a timely appeal from a May 24, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.3

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
3

5 U.S.C. § 8101 et seq.

Appellant’s application for review seeks to appeal a July 15, 2016 OWCP decision. The record, however, does
not contain a July 15, 2016 OWCP decision. The most recent adverse OWCP decision over which the Board may
take jurisdiction is dated May 24, 2016. See 20 C.F.R. §§ 501.2(c) and 501.3.

ISSUE
The issue is whether appellant has met her burden of proof to establish continuing
disability or medical residuals commencing January 31, 2013, causally related to the accepted
employment injury.
On appeal counsel contends that the February 19, 2016 report of Dr. Harris G. Tuttle, a
Board-certified orthopedic surgeon, is sufficient to require OWCP to reinstate compensation
benefits.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On January 23, 1991 appellant, then a 39-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that she developed left hand and arm pain due to typing in the
performance of duty. On August 16, 1991 OWCP accepted her claim for left hand sprain.
Appellant stopped work and filed claims for wage-loss compensation (Form CA-7) for disability
from work beginning July 27, 1992. She underwent a right de Quervain’s release on
February 5, 1993. On July 26, 1993 OWCP expanded acceptance of the claim to include right
carpal tunnel syndrome. On April 14, 1994 the claim was again expanded to include left elbow
extensor tendinitis. On August 11, 1994 the employing establishment noted that it did not have a
position available within appellant’s medical restrictions.
Appellant underwent a right carpal tunnel release on June 25, 1999. By decision dated
April 27, 2000, OWCP terminated her wage-loss compensation and medical benefits. Appellant
requested reconsideration and, on June 7, 2000, OWCP declined to reopen her claim for
consideration of the merits. She appealed to the Board. In a January 31, 2001 order,4 the Board
granted a motion filed by the Director of OWCP to set aside the April 27 and June 7, 2000
decisions and remand the case to consider all the medical evidence submitted prior to the
April 27, 2000 decision.
On April 11, 2001 appellant underwent a second surgical decompression of the right
median nerve due to incomplete release of the transverse carpal ligament and severe scarring
both externally and within the median nerve. At that time, she exhibited severe internal fibrosis
and scarring within the right median nerve with neuroma formation and scarring causing
pressure on the palmar cutaneous branch of the right median nerve, as a well as chronic synovitis
of the flexor tendons within the carpal canal. Appellant underwent left median and ulnar nerve
decompression on May 25, 2001. OWCP entered her on the periodic rolls on April 17, 2001.
By decision dated January 29, 2009, OWCP terminated appellant’s wage-loss
compensation and medical benefits. Finding that the weight of the medical evidence rested with
the second impartial medical examiner’s report dated June 24, 2008. Appellant appealed to the
4

Docket No. 00-2309 (issued January 31, 2001).

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Board and by decision dated December 30, 20095 the Board reversed the January 29, 2009
decision, finding that there was a second conflict between her physician, Dr. James E. Lowe, a
Board-certified orthopedic surgeon, and Dr. Robert Elkins, a Board-certified orthopedic surgeon
and prior impartial medical examiner, on the issue of whether she had any continuing disability
or medical residuals as a result of her accepted employment injuries. The Board further found
that OWCP had not resolved this conflict as the physician utilized as the impartial medical
examiner had not been properly selected.
By decision dated March 25, 2011, OWCP again terminated appellant’s wage-loss
compensation and medical benefits, finding that the weight of the medical evidence of record
was represented by the January 13, 2011 report of second opinion physician, Dr. Edward
Mulcahy, a Board-certified orthopedic surgeon, who opined that she had no disability or
residuals as a result of her accepted employment injuries. Appellant appealed to the Board and
in its December 9, 2011 decision6 the Board reversed the December 9, 2011 decision, finding an
unresolved conflict of medical opinion evidence between appellant’s physician, Dr. Lowe, and
physicians for OWCP Dr. Mulcahy and Dr. Elkins, a Board-certified orthopedic surgeon.
In a letter dated January 23, 2012, OWCP referred appellant, a statement of accepted
facts and a list of questions to Dr. William D. Schaefer, a Board-certified orthopedic surgeon for
an impartial medical examination. In a February 15, 2012 report, Dr. Schaefer reviewed the
statement of accepted facts and the medical record. He performed a physical examination and
found well-healed scars in the right arm with full range of motion and normal strength.
Dr. Schaefer reported normal sensation. He noted appellant’s report of inconsistent pain with
grip and extension of the wrist. On the left Dr. Schaefer found full range of motion, normal
strength, and sensation. He diagnosed chronic pain syndrome and listed appellant’s surgeries.
Dr. Schaefer noted that appellant had a normal physical examination of both arms. He
concluded that her left wrist strain, left elbow tendinitis, and right carpal tunnel syndrome had
resolved. Dr. Schaefer noted that appellant was physically capable of performing her duties of
secretary, but might require some activity modification to avoid repetitive activity. He noted that
she had no residuals from her January 14, 1991 work injury and no evidence of triggering digits.
Dr. Schaefer repeated that appellant could work with restrictions against repetitive motion. In a
February 5, 2012 work capacity evaluation, he noted that repetitive motion would likely cause
her symptoms to worsen. Dr. Schaefer restricted appellant to two hours each of repetitive wrist
and elbow movements. He advised, “[Appellant] does appear to have a chronic pain disorder
although the accepted conditions have reached maximal medical improvement and there is no
clinical evidence of residual symptoms. This pain disorder may limit her ability to perform
repetitive tasks.”
On May 7, 2012 OWCP requested that Dr. Schaefer provide a supplemental report
regarding appellant’s work restrictions. It specifically asked whether the work restrictions were
due to the January 14, 1991 work injury or preventative measures. Dr. Schaefer responded on
June 6, 2012, opining that appellant’s work-related injuries had resolved, but that she would
benefit from preventative work restrictions.
5

Docket No. 09-0892 (issued December 30, 2009).

6

Docket No. 11-1134 (issued December 9, 2011).

3

On June 19, 2012 OWCP requested that Dr. Schaefer provide an additional supplemental
report whether appellant’s accepted conditions caused a trigger finger condition. On July 12,
2012 Dr. Schaefer responded opining that her accepted work-related conditions did not cause a
trigger finger.
On December 26, 2012 OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Schaefer’s reports. In a January 31, 2013
decision, it finalized the termination. Appellant appealed the Board on February 11, 2013. By
decision dated May 21, 2013, the Board found that OWCP met its burden of proof to terminate
her wage-loss compensation and medical benefits, effective January 31, 2013, based on the
reports of Dr. Schaefer.7
On September 4, 2013 appellant requested reconsideration. She disagreed with
Dr. Schaefer’s findings and conclusions and alleged that her conditions of carpal tunnel and
severe tendinitis were ongoing. In support of her request, appellant submitted a note dated
July 29, 2013 from Dr. Tuttle. Dr. Tuttle noted her history of wrist pain for 22 years due to her
federal job duties, which included of repetitive keyboarding, stamping, and punching. He
performed a physical examination and found swelling in both wrists. Dr. Tuttle noted that
appellant was experiencing fairly diffuse upper extremity pain bilaterally and recommended a
magnetic resonance imaging (MRI) scan. Appellant underwent a right wrist arthrogram and
MRI scan on August 12, 2013 which demonstrated moderate tenosynovitis.
By decision dated September 23, 2013, OWCP denied modification of its January 31,
2013 termination decision.
On January 22, 2014 appellant again requested reconsideration. She resubmitted her
disagreement with Dr. Schaefer’s findings. Appellant submitted a January 8, 2014 note from
Dr. Tuttle. In this note, Dr. Tuttle reported subtle dorsal swelling, weak grip strength, and
minimally positive carpal compression, Tinel’s sign, and Phalen’s test. He opined that
appellant’s carpal tunnel syndrome had recurred and noted that this condition was due to her
work activities. Dr. Tuttle also diagnosed stenosing tenosynovitis.
By decision dated June 11, 2014, OWCP denied modification of the termination decision,
finding that the report from Dr. Tuttle was not sufficient to establish an ongoing work-related
condition.
Appellant again requested reconsideration on June 19, 2014 and argued that Dr. Tuttle
was the weight of the medical evidence. Dr. Tuttle performed a right carpal tunnel release on
April 17, 2014 with median nerve neurolysis and application of a nerve tube conduit due to
recurrent carpal tunnel syndrome with median nerve incarcerated scar tissue. He noted that
appellant’s electromyogram (EMG) and nerve conduction velocity (NCV) studies confirmed
persistent carpal tunnel syndrome. Dr. Tuttle reported finding considerable scar tissue encasing
the median nerve which he dissected.

7

Docket No. 13-0744 (issued May 21, 2013).

4

OWCP issued a decision on July 2, 2014 denying modification of its prior decision. It
noted that Dr. Tuttle’s operative report did not establish that appellant’s accepted employmentrelated condition of right carpal tunnel syndrome had recurred or that the condition was ongoing
from January 31, 2013. OWCP explained what evidence was required to establish a recurrence
of disability and requested that she submit a Form CA-2a if she believed that she had a
recurrence of her accepted carpal tunnel syndrome.
On March 19, 2015 appellant, through counsel, again requested reconsideration. Counsel
provided additional medical records from Dr. Tuttle. In a note dated August 28, 2013, Dr. Tuttle
reviewed appellant’s MRI scan and found fairly severe right wrist pain which “may be due to
chronic repetitive use of the right wrist.” He noted that she might also have a differential
diagnosis of rheumatoid arthritis. In a note dated September 4, 2013, Dr. Tuttle recommended
examination by a rheumatologist and provided a work restriction of no repetitive use of
appellant’s hands at work. On December 18, 2013 he found that she experienced severe pain in
all fingers in both hands. Dr. Tuttle noted that appellant had undergone bilateral carpal tunnel
releases, but felt that her symptoms had recurred. He opined that her carpal tunnel syndrome
was due to repetitive use of her hands at her place of employment. Dr. Tuttle noted appellant’s
concurrent diagnosis of rheumatoid arthritis. He found that she was totally disabled and
recommended carpal tunnel injections.
In a March 5, 2014 report, Dr. Tuttle found that appellant symptoms of bilateral hand
pain with numbness and tingling of the thumb, index, and middle fingers, was consistent with
carpal tunnel syndrome. He noted that her EMG and NCV studies supported this diagnosis.
Dr. Tuttle also found that appellant’s symptoms improved with carpal tunnel injections and did
not improve with her anti-rheumatic drugs. He recommended repeat carpal tunnel surgical
release. In a July 2, 2014 note, Dr. Tuttle opined that the repetitive activity of appellant’s hands
at work was the likely cause of her bilateral carpal tunnel syndrome. On October 15, 2014 he
reported that she had fallen on her left hand and sustained a trapezial ridge fracture. Dr. Tuttle
performed a left revision carpal tunnel release on July 22, 2014.
In a February 4, 2015 note, Dr. Tuttle described the scar tissue noted in appellant’s left
wrist on September 28, 2014. Appellant had significant scar tissue with the intercarpal tunnel
adherent to the median nerve. Dr. Tuttle opined, “The median nerve is adherent to the overlying
transverse carpal ligament and the scar tissue was profound, incarcerating the nerve throughout
the entirety of the carpal tunnel.” He concluded, “In my opinion, the scar tissue resulted from
the previous surgical procedure in the left carpal tunnel and [appellant’s] activity
postoperatively.” On March 18, 2015 Dr. Tuttle described appellant’s right wrist scar tissue in a
similar manner.
By decision dated June 5, 2015, OWCP denied modification of the termination decision
noting, that Dr. Tuttle did not explain how appellant’s scar tissue was connected to her work
injury.
Appellant, through counsel, again requested reconsideration on March 2, 2016. In a note
dated February 19, 2016, Dr. Tuttle responded to questions posed by counsel. He opined that
appellant’s hand pain in 2013 and 2014 was the result of scar tissue which slowly formed after
her repeated right wrist surgeries. Dr. Tuttle noted that any time a surgery is performed there is

5

the possibility of new scar formation. He indicated that the September 2014 fall exacerbated
appellant’s underlying pathology, but did not increase the scar tissue. Dr. Tuttle opined that she
previously had no clinical evidence of carpal tunnel syndrome because the nerve was functioning
normally until the increasing scar tissue impeded it.
By decision dated May 24, 2016, OWCP denied modification of its prior decisions. It
found that Dr. Tuttle’s reports were too speculative to establish appellant’s claim for ongoing
disability or medical residuals due to her accepted employment injury.
LEGAL PRECEDENT
As OWCP met its burden of proof to terminate appellant’s medical and wage-loss
compensation benefits, the burden shifts to her to establish that he or she had disability and
medical residuals causally related to his or her accepted employment injury.8 To establish causal
relationship between the condition, as well as any disability claimed, and the employment injury,
the employee must submit rationalized medical opinion evidence, based on a complete factual
background, supporting such causal relationship. 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. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested, and the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish
continuing disability or medical residuals commencing January 31, 2013.
OWCP accepted appellant’s claim for left hand sprain, a right de Quervain’s release on
February 5, 1993, right carpal tunnel syndrome, right carpal tunnel release on June 25, 1999, and
left elbow extensor tendinitis. It also accepted an April 11, 2001 surgical decompression of the
right median nerve as well as left median and ulnar nerve decompression on May 25, 2001. By
decision dated January 31, 2013 decision, OWCP terminated appellant’s wage-loss
compensation and medical benefits due to her accepted conditions.
Appellant has repeatedly requested reconsideration of the January 31, 2013 decision. In
support of her requests for reconsideration, she submitted a series of medical reports from
Dr. Tuttle beginning July 29, 2013. On January 8, 2014 Dr. Tuttle opined that appellant’s carpal
tunnel syndrome had recurred and attributed the condition to her work activities. He also
diagnosed stenosing tenosynovitis. Dr. Tuttle examined appellant on August 28, 2013 and found
8

George Servetas, 43 ECAB 424, 430 (1992).

9

James Mack, 43 ECAB 321 (1991).

6

fairly severe right wrist pain which “may be due to chronic repetitive use of the right wrist.” On
December 18, 2013 he opined that her carpal tunnel syndrome was due to repetitive use of her
hands at her job and that she was totally disabled. Dr. Tuttle repeated these findings on March 5
and July 2, 2014 opining that the repetitive activity of appellant’s hands at work was the “likely”
cause of her bilateral carpal tunnel syndrome. While he provided a diagnosed medical condition
and offered an opinion that this condition was related to her employment, he failed to provide
any medical reasoning supporting his opinions. The Board has long held that medical opinions
not containing rationale on causal relationship are of diminished probative value and are
generally insufficient to meet appellant’s burden of proof.10 The factors that comprise the
evaluation of medical evidence include the opportunity for and the thoroughness of physical
examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of analysis manifested and the medical rationale expressed in support of
the physician’s opinion.11 The Board finds that Dr. Tuttle’s reports are of insufficient probative
value on the issue of whether appellant has any continuing medical residuals or disability
commencing January 31, 2013 due to her accepted employment injuries.12
In a note dated March 18, 2015, Dr. Tuttle further explained appellant’s right wrist
condition as based on surgical examination. He noted that she had significant and profound scar
tissue incarcerating the median nerve throughout the entirety of the carpal tunnel. Dr. Tuttle
concluded, “In my opinion, the scar tissue resulted from the previous surgical procedure in the
left carpal tunnel and [appellant’s] activity postoperatively.” In a note dated February 19, 2016,
he opined that appellant’s hand pain in 2013 and 2014 was the result of scar tissue which slowly
formed after her repeated right wrist surgeries. Dr. Tuttle noted that any time a surgery is
performed there is the possibility of new scar formation. He opined that appellant’s median
nerve was functioned normally until the increasing scar tissue impeded it.13 OWCP, however,
has not accepted scar tissue as causally related to the January 23, 1991 employment injury.
Appellant has not provided a probative medical opinion to support that she was disabled or
currently required medical treatment due to her employment-related carpal tunnel syndrome.
The Board, therefore, finds that she has failed to meet her burden of proof to establish continuing
disability after January 31, 2013.14
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
10

K.N., Docket No. 16-1735 (issued February 8, 2017).

11

Id.

12

Id.

13

Once the primary injury is causally connected with the employment, a subsequent injury, whether an
aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury. See S.L., Docket No. 14-1250 (issued December 2, 2015). If appellant believes that
she has developed either a consequential injury or a new occupational injury from additional employment injuries,
she may file an appropriate claim with OWCP.
14

P.C., Docket No. 16-1226 (issued March 23, 2017).

7

CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish
continuing disability or medical residuals commencing January 31, 2013, causally related to the
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mission Viejo, CA, Employer
__________________________________________

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

Docket No. 17-0290
Issued: May 14, 2018

Case Submitted on the Record

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

JURISDICTION
On November 11, 20161 appellant filed a timely appeal from a May 20, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of October 20, 2015 to the filing of this appeal, pursuant to

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty
days from May 20, 2016, the date of OWCP’s decision, was November 16, 2016. Since using November 21, 2016,
the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of appeal rights, the
date of the postmark is considered the date of filing. The date of the U.S. Postal Service postmark is November 11,
2016, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 24, 2015 appellant, then a 57-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he experienced lower back pain on March 19, 2015 after he stepped
down from his long life vehicle (LLV), and loaded and delivered mail. He stopped work on
March 19, 2015.
Several duty status reports (Form CA-17) documenting a lumbar strain/sprain were
submitted by Dr. Hosea Brown III, Board-certified in internal medicine. In an April 27, 2015
development letter, OWCP advised appellant of the deficiencies in his claim and requested that he
submit additional factual and medical evidence, including a rationalized report from his physician
which explained how the events of March 19, 2015 caused or contributed to a diagnosed condition.
It also requested that he complete a questionnaire. Appellant was afforded 30 days to submit the
requested information.
Appellant provided a May 8, 2015 response to OWCP’s development questionnaire and an
April 28, 2015 duty status report which diagnosed a lumbar strain/sprain.
By decision dated May 28, 2015, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that the diagnosed medical condition was causally
related to the accepted work event. It found that there was no physician’s opinion supported by a
medical explanation as to how the reported work incident caused or aggravated a medical
condition.
On July 30, 2015 appellant requested reconsideration.
In a March 20, 2015 report, Dr. George T. Ricks, a family practitioner, noted that appellant
reported low back pain due to stepping on uneven stairs. He noted that appellant had a workrelated low back injury four years ago, when he lifted a heavy tray. Dr. Ricks diagnosed a
traumatic lumbar spine sprain/strain. He additionally noted that lumbar discopathy and
radiculopathy needed to be ruled out.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence following the May 20, 2016 decision on appeal.
The Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision. Therefore,
the Board is precluded from considering this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1);
Sandra D. Pruitt, 57 ECAB 126 (2005).

2

A June 2, 2015 magnetic resonance imaging (MRI) scan, was interpreted as showing severe
stenosis of the left neural foramen, moderate-to-severe stenosis of the right neural foramen, and
moderate stenosis of the left lateral recess.
Medical reports and duty status reports from Dr. Brown dated May 14 and 28, June 11, and
July 30, 2015 were also received. In his reports, Dr. Brown reported that on March 19, 2015
appellant was in the process of performing residential mail delivery when, upon exiting from his
LLV and stepping onto the slope of a driveway at a residence, he experienced a sudden onset of
severe pain and discomfort in his low back. Appellant’s pain and discomfort in his lower back
progressively worsened and he reported the injury the following day, March 20, 2015. On
March 20, 2015 he presented to his office for treatment. Dr. Brown diagnosed lumbar spine
sprain/strain and ordered diagnostic studies to rule out herniated lumbar disc and rule out lumbar
radiculitis. In his June 11, 2015 report, he opined that, after obtaining the history of injury,
performing physical examination and analyzing available diagnostic data, appellant’s medical
injury to his low back was a direct result of the March 19, 2015 traumatic incident. Dr. Brown
indicated that appellant’s description of back pain, findings on physical examination, and the MRI
scan were indicative of both herniated lumbar disc and lumbar radiculitis. He explained that the
biomechanical mechanism applicable in this traumatic incident was clear as the immediate
complaint of pain while stepping down and dismounting from his LLV indicated the temporal
sequence of an acute herniated lumbar disc with lumbar radiculitis. Dr. Brown explained that it
was an established medical fact that a sudden stepping down onto a hard surface could precipitate
an acute herniated disc with neurological compromise manifesting as low back pain with radiation
of pain into the left lower extremity.
By decision dated October 20, 2015, OWCP denied modification of its May 28, 2015
decision. It found that the medical evidence submitted was not well rationalized or based on a
complete factual history which addressed whether appellant had sustained an injury on March 19,
2015 or at some time period in the past. OWCP noted that, while the conditions diagnosed usually
develop over time, no medical opinion was provided to explain the development of the condition
as it related to the accepted March 19, 2015 employment incident. It further noted that no medical
evidence was provided which indicated treatment had been received for lumbar intervertebral disc
syndrome and lumbar radiculitis, conditions which develop over a period of time and are
attributable to the aging process, gradual deterioration, and wear and tear as opposed to an injury
occurring on one business day.
On April 1, 2016 OWCP received appellant’s March 10, 2016 request for reconsideration.
Evidence previously of record was submitted along with new medical evidence.
In a March 10, 2016 report, Dr. Brown stated that he disagreed with OWCP’s May 28,
2015 denial of appellant’s reconsideration request. He opined that appellant’s lumbar
intervertebral disc syndrome with myelopathy and lumbar radiculitis conditions were acute
conditions which occurred as a direct result of the March 19, 2015 traumatic event and that
OWCP’s assertion that the conditions diagnosed usually develop over time was false. Dr. Brown
indicated that, on March 19, 2015, appellant was in the process of performing residential mail
delivery when, upon exiting from his LLV postal vehicle, he dismounted and stepped on the slope
of a driveway, whereupon he immediately felt the sudden onset of severe pain and discomfort in
his low back. He stated that this traumatic event was not a repetitive type of injury, as OWCP

3

previously indicated. Rather, the biomechanical maneuver of stepping down and dismounting
from LLV precipitated and caused an acute herniation of the intervertebral disc at L5-S1. This
acute herniation was documented on the June 2, 2015 MRI scan study, which revealed evidence
of a five-millimeter diffuse disc bulge at that level, which encroached upon the left neuroforamen
causing severe stenosis of the left neuroforamen and moderate-to-severe stenosis of the right
neuroforamen. Dr. Brown indicated that appellant experienced severe pain and discomfort in his
lower back continuously from the March 19, 2016 traumatic event. The MRI scan documented
herniated disc, which was consistent with appellant’s complaints of severe back pain with radiation
of his pain into both lower extremities. The fact that appellant was experiencing radiation of his
pain into both lower extremities was consistent with lumbar radiculitis and with encroachment of
the intervertebral disc at the L5-S1 level upon the spinal cord which caused a myelopathy and had
manifested as severe pain and discomfort upon ambulation and associated with numbness and
tingling in his lower extremities. Dr. Brown indicated that OWCP’s assertion that appellant’s
condition was a “repetitive[-]type injury” was inconsistent with the medical facts and indicative
of an opinion rendered by nonmedical personnel. He further indicated that, while appellant
currently worked six-to-seven hours daily within restrictions, he continued to be symptomatic and
exhibited residual symptomatology from the March 19, 2015 traumatic event. Duty status reports
from Dr. Brown dated October 29 and December 29, 2015 and March 10, 2016 were also received.
By decision dated May 20, 2016, OWCP denied appellant’s request for reconsideration of
the merits of his claim. It found that Dr. Brown’s letter was cumulative of his earlier reports and
that he restated the same arguments previously considered in his reports dated March 20, May 28,
June 11, and July 30, 2015. Furthermore, none of the repots addressed the previously claimed
back conditions which dated back to at least 2008 when appellant claimed back problems in OWCP
File No. xxxxxx347.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review of
an OWCP decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.6 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.7

4
Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of compensation
at any time on his own motion or on application. 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review.
The underlying issue in this case is whether appellant has submitted sufficient evidence
relevant to the issue of causal relationship of his back conditions. This is a medical issue. In its
October 20, 2015 decision, OWCP denied the claim as there was no medical evidence which
addressed whether appellant had sustained an injury on March 19, 2015 or at some time period in
the past. It further found that no medical evidence was provided which indicated that past
treatment had been received for lumbar intervertebral disc syndrome and lumbar radiculitis.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has he advanced a relevant legal argument not previously
considered by OWCP. He did not otherwise elaborate regarding the particular basis for requesting
reconsideration. Thus, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(3).8
Appellant’s request for reconsideration was accompanied by a new report from Dr. Brown
dated March 10, 2016. As noted the underlying issue is whether appellant submitted sufficient
medical evidence based on a complete factual and medical history to establish that his back
condition was causally related to the accepted work event of March 19, 2015. A claimant may be
entitled to a merit review by submitting relevant and pertinent new evidence, but appellant did not
submit any such evidence in this case.9 Dr. Brown’s March 10, 2016 report is substantially similar
to his earlier report of June 11, 2015. Providing additional evidence that repeats or duplicates
information already in the record does not constitute a basis for reopening a claim.10 Because
appellant did not provide OWCP with any relevant and pertinent new evidence, he is not entitled
to a review of the merits based on the third requirement under section 10.606(b)(3).11
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, nor did it advance a point of law not previously considered by OWCP.
It also failed to provide any relevant and pertinent new evidence. Accordingly, the Board finds
that OWCP did not abuse its discretion in refusing to reopen his claim for a review on the merits
in its October 20, 2015 decision.

8

20 C.F.R. § 10.606(b)(3)(i) and (ii).

9

See B.D., Docket No. 16-1177 (issued October 27, 2016).

10

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

11

20 C.F.R. § 10.606(b)(3)(iii).

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 14, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
P.C., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Portland, OR,
Employer
__________________________________________

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Appearances:
Robert E. Repp, Esq., for the appellant
No appearance, for the Director

Docket No. 07-2229
Issued: April 21, 2008

Oral Argument March 17, 2008

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

JURISDICTION
On September 4, 2007 appellant timely filed an appeal from a July 25, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his claim for wage-loss
compensation for the period June 7 through July 6, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that he was disabled from June 7 through
July 6, 2007.
FACTUAL HISTORY
On April 22, 2007 appellant, then a 47-year-old cook, was participating in a lifeboat drill
when another passenger in the boat fell into him knocking him into the seat. On June 6, 2007 the
Office accepted appellant’s claim for lumbar back sprain.

On June 12, 2007 appellant filed a claim for compensation for the period June 7
through 22, 2007. On June 30, 2007 appellant filed a claim for the period June 25 through
July 6, 2007.
Medical reports were submitted in support of appellant’s claim. In a May 30, 2007 lightduty agreement, the employing establishment restricted appellant to minimal stooping, twisting,
bending and minimal pushing, pulling or lifting repetitively of more than 10 pounds. In a June 8,
2007 workers’ compensation form, Dr. Victor Breen diagnosed lumbar strain with no modifiedduty restrictions. In a June 8, 2007 note, he stated that appellant still had pain in his back and
was performing modified work. In a separate June 8, 2007 note, Dr. Breen diagnosed alcohol
dependence.
In a June 19, 2007 letter, the Office informed appellant that the evidence was insufficient
to establish that he was disabled on the claimed dates.
Additional medical reports were received. In a June 22, 2007 note, Dr. Breen noted that
appellant had spasms in his lower back when he sat down. He also relayed that appellant felt he
could not perform light duty because he got back spasms when going back and forth to physical
therapy. In a July 2, 2007 note, Dr. Scott Young, a Board-certified orthopedic surgeon, reviewed
appellant’s work injury history. He relayed that appellant’s symptoms were predominantly of
lower back pain with intermittent radiating symptoms down the left leg. Dr. Young also noted
that appellant sustained a strain/contusion superimposed on significant degenerative disc disease
at L5-S1. In a July 6, 2007 note, Dr. Breen noted that appellant was improving with less pain.
He also noted that appellant stated that he could not travel for light duty.
On July 25, 2007 the Office denied appellant’s claim for compensation finding that the
medical evidence was insufficient to support that he was disabled due to the April 22, 2007
injury during the claimed time period from June 7 through July 6, 2007.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as the
incapacity because of an employment injury to earn the wages the employee was receiving at the
time of injury.1 Whether a particular injury causes an employee to be disabled for work and the
duration of that disability are medical issues that must be proved by the weight of substantial and
reliable medical evidence.2
A claimant, for each period of disability claimed, has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that he or she is disabled for
work as a result of the employment injury. Whether a particular injury causes an employee to be

1

See Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006); Prince E. Wallace, 52
ECAB 357 (2001).
2

See Carol A. Lyles, 57 ECAB ___ (Docket No. 05-1492, issued December 13, 2005); Fereidoon Kharabi, 52
ECAB 291 (2001).

2

disabled for employment, and the duration of that disability, are medical issues which must be
established by probative and substantial evidence.3
In this case, appellant has the burden of establishing by the weight of the substantial,
reliable and probative evidence that his claimed disability during the period June 7 through
July 6, 2007 was due to his accepted back condition.4 The Board will not require the Office to
pay compensation for disability in the absence of medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.5
ANALYSIS
The Office accepted that appellant sustained a lumbar strain as a result of his April 22,
2007 employment injury. Appellant filed claims for wage-loss compensation alleging that he
became disabled from work for the period June 7 through July 6, 2007. However, he failed to
submit medical evidence establishing that he was disabled during this period and that his
disability was a result of his accepted employment injury. The Board finds that appellant has not
met his burden of proof to establish his claim for compensation.
Appellant bears the burden to establish through medical evidence that he was totally
disabled during this time period and that his disability was causally related to his accepted injury.
The medical evidence submitted consists of reports from Drs. Breen and Young.
Dr. Breen’s reports do not indicate that appellant was disabled from work during the
specified period. In the June 8, 2007 note, he stated that appellant had back pain and was
performing modified work. In the June 22, 2007 report, Dr. Breen stated that appellant thought
he could not perform light duty. He reported normal findings on examination. In the July 6,
2007 note, Dr. Breen found that appellant was improving and he again reported normal findings
on examination. Generally, findings on examination are needed to justify a physician’s opinion
that an employee is disabled from work. When a physician’s statements regarding an
employee’s ability to work consist only of a repetition of the employee’s complaints that he hurts
too much to work, without objective signs of disability being shown, the physician has not
presented a medical opinion on the issue of disability or a basis for payment of compensation.6
In all of his reports, Dr. Breen never opined that appellant was disabled from working, let alone
that he was disabled from work due to the April 22, 2007 employment injury.
Likewise Dr. Young’s report also failed to state that appellant was disabled from work
during the claimed time period. He did note abnormal findings of degenerative disc disease after
reviewing a May 24, 2007 bone scan, but he offered no opinion regarding disability. It is
appellant’s burden to prove that he is disabled for work as a result of his employment injury.
3

Fereidoon Kharabi, supra note 2.

4

Alfredo Rodriguez, 47 ECAB 437 (1996).

5

Fereidoon Kharabi, supra note 2.

6

Id.

3

Appellant has not proven that he was disabled from work during the claimed time period,
likewise he has not established that his disability was due to his employment injury.
CONCLUSION
Appellant failed to establish that he was disabled for the period June 7 through July 6,
2007 due to his accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Philadelphia, PA, Employer
)
___________________________________________ )
D.R., Appellant

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

Docket No. 08-1209
Issued: December 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 1, 2007 decision regarding his schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of the
left upper extremity for which he received a schedule award.
FACTUAL HISTORY
On September 18, 2002 appellant, then a 41-year-old clerk filed an occupational disease
claim for a cervical disc herniation and radiculopathy. The Office accepted his claim for cervical
strain and expanded his claim to include cervical radiculopathy, cervical root lesion, radiculitis
and myofascial syndrome. Appellant stopped work on September 9, 2002 and returned to a
light-duty position on January 13, 2003.

Appellant submitted reports from Dr. Barry Schnall, a Board-certified orthopedist, who
noted a history of injury and diagnosed cervical disc herniation, cervical radiculopathy, cervical
sprain with myofascial syndrome. In an August 11, 2003 report, Dr. Schnall diagnosed chronic
pain, cervical strain and sprain and a stable cervical disc herniation and protrusion. He opined
that appellant reached maximum medical improvement.
On March 8, 2005 appellant submitted a claim for a schedule award. He submitted a
June 17, 2004 report from Dr. Nicholas Diamond, an osteopath, who noted that appellant reached
maximum medical improvement on June 17, 2004. Dr. Diamond stated that the right shoulder
examination revealed forward elevation of 180 degrees, abduction of 100 degrees, adduction of
60 degrees, external rotation of 90 degrees and abnormal internal rotation. Motor strength
testing of the upper extremities revealed supraspinatus and deltoids at Grades “4+/5” on the left
versus “5/5” on the right, grip strength testing revealed 40 kilograms (kg) of force strength for
the left and 30 kg of force strength on the right. Sensory examination failed to reveal any
perceived dermatomal abnormalities in either upper extremity. Dr. Diamond diagnosed C5-6,
C6-7 disc protrusion and herniated nucleus pulposus by magnetic resonance imaging (MRI)
scan, left C6-7 radiculopathy by MRI scan and chronic myofascial pain syndrome with trigger
points. He noted that, based on the fifth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment,1 appellant had 16 percent impairment of the left arm.
Dr. Diamond noted 4/5 motor strength deficit of the left supraspinatus equated to four percent
impairment;2 4/5 motor strength deficit of the left deltoid yielded nine percent impairment;3 and
three percent for pain.4
The Office referred Dr. Diamond’s report to an Office medical adviser who found that
appellant had three percent impairment of the left arm. The Office medical adviser disagreed
with Dr. Diamond’s finding of motor weakness in the arm. He noted that, for schedule award
purposes, generally nerve root compression is the basis of impairment rather than muscle
weakness because muscle weakness was subjective. The medical adviser advised that the
A.M.A, Guides 508, Table 16.8a, provides that only in rare instances should muscle weakness be
considered in impairment ratings because objective anatomic findings take precedence. He
calculated that appellant had a 1.25 percent impairment of the left arm for sensory deficit or pain
in the C7 nerve root distribution, under Table 16-13 of the A.M.A., Guides.5 The medical
adviser advised that appellant would be classified as Grade 4, for a 25 percent sensory deficit or
pain, in the distribution of the C7 nerve root under Table 16-10.6 Impairment of 1.25 percent for
sensory loss would be calculated by multiplying the 25 percent grade with the 5 percent

1

A.M.A., Guides (5th ed. 2001).

2

Id. at 484, 492, Table 16-11, 16-15.

3

Id.

4

Id. at 574, Figure 18-1.

5

Id. at 489, Figure 16-13.

6

Id. at 482, Figure 16-10.

2

maximum allowed for the C7 nerve. The medical adviser further opined that appellant was
entitled to two percent for pain.7
In a decision dated October 3, 2005, the Office granted appellant a three percent
permanent impairment of the left upper extremity. The period of the award was from June 17 to
August 21, 2004.
On October 7, 2005 appellant requested an oral hearing which was held on
March 1, 2006. He asserted that there was a conflict in opinion between his treating physician,
Dr. Diamond and the Office medical adviser. Appellant continued to submit reports from
Dr. Schnall dated September 8, 2005 to April 30, 2006 who treated appellant for intermittent
pain in the left shoulder.
In a decision dated June 8, 2006, the hearing representative set aside the Office decision
dated October 3, 2005 and remanded the matter for further medical development. The hearing
representative determined that there was a conflict in medical opinion between Dr. Diamond,
appellant’s treating physician, and the Office medical adviser, regarding the degree of permanent
partial impairment of the upper extremities due to his work-related injury.
On July 10, 2006 the Office referred appellant to Dr. David R. Steinberg, a Boardcertified orthopedic surgeon, to resolve the conflict. In an August 3, 2006 report, Dr. Steinberg
noted appellant’s history and examined appellant. He listed findings of full range of motion of
the shoulders and elbows, tenderness over the right medial and lateral epicondyles, full range of
motion of the wrists and digits. Provocative testing for peripheral nerve compression on the left
was negative except for percussion of the cubital tunnel. There was full intrinsic strength, no
atrophy, no motor findings of nerve dysfunction and symmetric reflexes. Dr. Steinberg
diagnosed sprain/strain of the neck, cervical radiculopathy, myofascial pain syndrome and
cervical degenerative disc disease and opined that these diagnoses were medically connected to
the work injury of July 5, 2002. He noted appellant’s subjective complaints of neck pain with
radiation in the left arm which affected his ability to workout, interact with his children, sleep,
perform work activities and activities of daily living. Dr. Steinberg noted electrodiagnostic
evidence of cervical radiculopathy and MRI scan findings consistent with mild disc protrusion
and foraminal narrowing at C6-7. He opined that appellant had seven percent whole person
impairment due to his work injury. Dr. Steinberg noted that, under Table 15-5 of the A.M.A.,
Guides, appellant would be classified as cervical category II, with mild MRI scan findings and
electromyogram (EMG) findings of C7 radiculopathy. He assigned seven percent whole person
impairment based on an 11 to 12 percent upper extremity impairment8 based on objective
findings and appellant’s inability to perform certain activities at work and of daily living.
Dr. Steinberg indicated that appellant could work full time subject to restrictions.
Dr. Steinberg’s report was referred to an Office medical adviser. In a report dated
September 25, 2006, the Office medical adviser determined that appellant had one percent
permanent impairment of the left arm. He calculated that appellant had one percent impairment
7

Id. at 574, Figure 18-1.

8

Id. at 439, Table 16.2.

3

of the left upper extremity for sensory deficit or pain in the distribution of the C7 nerve root
under Table 16-13 of the A.M.A., Guides.9 The Office medical adviser advised that appellant
would be classified as Grade 4, for a 25 percent sensory deficit or pain, in the distribution of the
C7 nerve root under Table 16-10.10 Impairment due to sensory loss was calculated as 1 percent
impairment for the upper extremities by multiplying the 25 percent grade with the 5 percent
maximum allowed for the C7 nerve. The Office medical adviser disagreed with the rating
provided by Dr. Steinberg and noted that spinal impairment ratings were not accepted by the
Office; rather, spinal conditions were rated pursuant to residual deficits to the upper extremity.
In a decision dated October 2, 2006, the Office denied appellant’s claim for an additional
schedule award. On October 5, 2006 appellant requested an oral hearing.
In a December 6, 2004 decision, a hearing representative set aside the Office’s October 2,
2006 decision. The hearing representative noted that Dr. Steinberg provided an impairment
rating derived from cervical spine impairment rather than the functional deficit of the affected
limb and therefore did not adhere to the Office’s standards for impairment ratings. The hearing
representative further noted that the Office erred in substituting the medical adviser’s rating of
one percent for that of the referee physician. The hearing representative instructed the Office to
seek an addendum report from Dr. Steinberg advising him that the Office was unable to utilize
ratings based on spinal or whole person impairments and request him to provide a rating for the
left upper extremity in accordance with the A.M.A., Guides.
On January 19, 2007 the Office requested Dr. Steinberg provide an impairment of the left
upper extremity in accordance with the A.M.A., Guides. It further requested that Dr. Steinberg
review the report of the medical adviser’s dated September 25, 2006 and provide an opinion as to
whether the impairment rating based on C7 sensory deficit accurately reflected appellant’s
functional impairment.
In a March 8, 2007 report, Dr. Steinberg noted reviewing his prior findings and the
September 25, 2006 report of the medical adviser. He disagreed with the Office medical adviser
and opined that appellant had a C7 deficit which would be classified as a Grade 2 which is
characterized as preventing some or most activities. Dr. Steinberg calculated that appellant had a
four percent impairment of the left arm for sensory deficit or pain in the distribution of the C7
nerve root under Table 16-10 of the A.M.A., Guides.11 He calculated that appellant had a
maximum sensory loss of 5 percent for the C7 nerve of the left upper extremity under Table 1613,12 a Grade 2 pain in the distribution of the C7 nerve root under Table 16-10.13 Dr. Steinberg

9

Id. at 489, Figure 16-13.

10

Id. at 482, Figure 16-10.

11

Id. at 482, Table 16-10.

12

Id. at 489, Figure 16-13

13

Id. at 482, Figure 16-10.

4

noted that appellant’s constellation of symptom frequency and intensity, which was characterized
as preventing some or most activities, would merit a Grade 2 or 80 percent deficit.14 Impairment
due to sensory loss was calculated as 4 percent impairment for the left upper extremity by
multiplying the 80 percent grade with the 5 percent maximum allowed for the C7 nerve.
In a decision dated March 28, 2007, the Office granted appellant a schedule award for
four percent permanent impairment of the left arm. The period of the award was from August 22
to September 12, 2004. The Office noted that appellant was previously granted an award for
three percent permanent impairment of the left upper extremity and was only entitled to an
additional one percent impairment rating.
Appellant requested an oral hearing which was held on July 18, 2007. He submitted a
functional capacity evaluation dated October 13, 2006 which noted his work restrictions. A
July 19, 2007 EMG revealed eased flare-up of cervical radiculopathy affecting the right arm and
stable cervical sprain, strain, myofascial syndrome and left upper extremity radiculopathy. On
July 31, 2007 Dr. Schnall opined that appellant sustained 15 percent whole person impairment.
He noted that based on the A.M.A., Guides appellant would be rated according to the diagnosis
related estimate (DRE) designation for spine impairment, a category III which allows for a 15 to
18 percent rating of the whole person.15 In a decision dated October 1, 2007, the hearing
representative affirmed the Office decision dated March 28, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act16 and its
implementing regulation17 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.18
ANALYSIS
On appeal, appellant contends that he has more than four percent permanent impairment
of the left upper extremity. The Office accepted his claim for cervical strain, cervical
radiculopathy, cervical root lesion, radiculitis and myofascial syndrome. It properly found that a
14

Id.

15

Id. at 392, Table 15-5.

16

5 U.S.C. § 8107.

17

20 C.F.R. § 10.404.

18

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

5

conflict in the medical evidence existed between Dr. Diamond, appellant’s attending physician,
and an Office medical adviser regarding the extent of appellant’s impairment of the left upper
extremity. Consequently, the Office referred appellant to Dr. Steinberg to resolve the conflict.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.19
The Board finds that, under the circumstances of this case, the opinion of Dr. Steinberg is
sufficiently well rationalized and based upon a proper factual background such that it is entitled
to special weight and establishes that appellant sustained no more than four percent impairment
of the left upper extremity.
Dr. Steinberg reviewed appellant’s history and reported findings. In a report dated
August 3, 2006, he noted provocative testing for peripheral nerve compression on the left was
positive for percussion of the cubital tunnel, there was full intrinsic strength, no atrophy, no
motor findings of nerve dysfunction and reflexes were symmetric. Dr. Steinberg diagnosed
sprain/strain of the neck, cervical radiculopathy, myofascial pain syndrome and cervical
degenerative disc disease and opined that these diagnoses were medically connected to the work
injury of July 5, 2002. He noted appellant’s subjective complaints of neck pain with radiation
affected appellant’s activities of daily living. Dr. Steinberg applied Chapter 15 of the A.M.A.,
Guides, pertaining to the spine, and found 7 percent whole person impairment or 12 percent
upper extremity impairment.
As Dr. Steinberg, in his August 3, 2006 report, derived his impairment finding based on
the chapter of the A.M.A., Guides pertaining to the spine,20 the Office, on January 19, 2007,
properly requested that Dr. Steinberg determine appellant’s impairment under provisions in the
A.M.A., Guides pertaining to the upper extremities.21 In a March 8, 2007 supplemental report,
he calculated that appellant had four percent impairment of the left arm for sensory deficit or
pain in the distribution of the C7 nerve root under Table 16-10 of the A.M.A. Guides.22
Dr. Steinberg calculated that appellant had a maximum sensory loss of five percent for the C7
nerve of the left upper extremity under Table 16-13,23 a Grade 2 pain in the distribution of the C7
nerve root under Table 16-10.24 He noted that appellant’s constellation of symptom frequency
and intensity which was characterized as preventing some or most activities would merit a Grade
19

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

20

No schedule awards are payable for the spine. See George E. Williams, 44 ECAB 530 (1993).

21

See Guiseppe Aversa, 55 ECAB 164 (2003) (where the Office secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, the Office has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting the defect in the original opinion).
22

A.M.A., Guides 482, Table 16-10.

23

Id. at 489, Figure 16-13.

24

Id. at 482, Figure 16-10.

6

2 or 80 percent deficit.25 Impairment due to sensory loss was calculated as 4 percent impairment
for the left upper extremity by multiplying the 80 percent grade with the 5 percent maximum
allowed for the C7 nerve. Dr. Steinberg found no other basis on which to attribute impairment of
the left arm.
The Board finds that the opinion of Dr. Steinberg is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight and establishes
that there is no basis under the A.M.A., Guides for more than four percent impairment. The
Office properly noted that appellant was previously granted a schedule award for three percent
permanent impairment of the left upper extremity therefore he was entitled to an additional
schedule award for one percent for the left upper extremity.
Appellant submitted an impairment rating from Dr. Schnall dated July 31, 2007, who
opined that appellant sustained 15 percent whole person impairment according to the DRE
designation for spine impairment. Dr. Schnall referenced Table 15-5 of the A.M.A., Guides
which pertains to impairment for a cervical spine injury.26 However, neither the Act nor its
regulations provide for the payment of a schedule award for whole body impairment or for
impairment of the cervical spine, rather an appellant may be entitled to a schedule award for
permanent impairment to an upper or lower extremity due to an injury of the neck, shoulders or
spine.27 Therefore, the Board finds that Dr. Schnall did not properly follow the A.M.A., Guides.
An attending physician’s report is of little probative value where the A.M.A., Guides, are not
properly followed.28
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than four
percent permanent impairment of the left arm for which he received a schedule award.

25

Id.

26

Id. at 392, Table 15-5.

27

See Thomas J. Engelhart, 50 ECAB 319, 320-21 (1999). See supra note 20.

28

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).

7

ORDER
IT IS HEREBY ORDERED THAT the October 1 and March 28, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, CAPITAL VEHICLE
MAINTENANCE FACILITY, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Brian McLaurin, for the appellant
Office of Solicitor, for the Director

Docket No. 14-60
Issued: May 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 17, 2013 appellant, through his representative, filed a timely appeal from a
July 12, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his untimely request for reconsideration. Because more than 180 days elapsed from the
most recent merit decision dated November 3, 2011 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of the case pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant’s representative contends that appellant sustained an injury on
August 29, 2011 while in the performance of duty. He further contends that appellant provided
1

5 U.S.C. § 8101 et seq.

the additional information regarding the August 29, 2011 incident requested by OWCP to his
immediate supervisors who failed to forward the information to OWCP.
FACTUAL HISTORY
On September 6, 2011 appellant, then a 48-year-old body and fender mechanic, filed a
traumatic injury claim alleging that on August 29, 2011 he developed pain in his neck as a result
of a work-related motor vehicle accident. He stated that he was towing a vehicle when the back
of the vehicle being towed was hit by a trash truck while he was stopped at a traffic light.
In a September 5, 2011 verification of treatment report, Dr. Glen M. Jacob, a Boardcertified internist, stated that appellant was treated on that day for neck pain related to a motor
vehicle accident.
By letter dated September 27, 2011, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested factual and medical evidence. Appellant was
afforded 30 days to submit the requested evidence.
In a November 3, 2011 decision, OWCP denied appellant’s claim. It found that the
evidence was insufficient to establish that the incident occurred as alleged and that he failed to
submit any medical evidence containing a medical diagnosis in connection with his injury.
By letter dated April 16, 2013, received by OWCP on April 23, 2013, appellant, through
his union representative, requested reconsideration and submitted new evidence.
In a March 28, 2012 narrative statement and an undated narrative statement, appellant
described the August 29, 2011 incident. He was stopped at a traffic light when a vehicle he was
towing was struck in the rear by a dumpster truck. Appellant immediately contacted his current
supervisor, Mr. Posey, who arrived at the accident scene within 20 minutes. When he returned to
the employing establishment, he reported having pain on the right side of his neck to Mr. Posey.
Appellant sought medical treatment on September 5, 2011 and filed a report with a Mr. Bowser
on the same day.
In a September 5, 2011 progress note, Abebech Haile, a registered nurse, listed a history
of injury that appellant had a motor vehicle accident while driving a tow truck on
August 29, 2011. Nurse Haile stated that he had neck pain with spasm due to the accident.
In a September 5, 2011 narrative report, Dr. Jacob advised that appellant had cervicalgia
caused by a motor vehicle accident.
In progress notes dated September 8 through October 11, 2011, Dr. Rupa A. Varma, a
Board-certified internist, listed a history that he evaluated appellant after having a motor vehicle
accident driving a tow truck on August 29, 2011. He provided findings on physical examination
and diagnosed, among other things, neck muscle strain and cervicalgia. In verification of
treatment reports dated September 27 and October 11 and 26, 2011, Dr. Varma advised that
appellant sustained neck strain with radiculopathy due to a work-related motor vehicle accident
on August 29, 2011.
Appellant was unable to work from September 27 through

2

October 28, 2011. Dr. Varma released appellant to return to light-duty work with restrictions on
October 31, 2011.
In a September 28, 2011 report, Dr. Jan K. Walecki, a Board-certified radiologist,
advised that diagnostic imaging revealed straightening of the cervical spine due to muscle spasm.
He further advised that the examination was sonographically normal.
Progress notes from appellant’s physical therapists and physical therapy assistant
addressed the treatment of his cervical pain from September 29 to October 26, 2011.
An unsigned report dated September 22, 2011 from Kaiser Permanente indicated that
appellant’s blood pressure was checked and found to be at a goal of 139/89 or lower.
In a July 12, 2013 decision, OWCP denied appellant’s request for reconsideration,
without a merit review. It found that it was not filed within one year of its November 3, 2011
decision and did not establish clear evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.2
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.3
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.4 OWCP’s regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in
20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on
the part of OWCP.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.6 The evidence must be positive, precise and explicit and must
2

20 C.F.R. § 10.607(a).

3

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

4

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

5

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
OWCP’s procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
6

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

3

manifest on its face that OWCP committed an error.7 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.9 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.10 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.11
ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration. OWCP
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of the original OWCP decision.12 A right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.13 As appellant’s April 16, 2013
request for reconsideration was received on April 23, 2013, more than one year after the last
merit decision of record dated November 3, 2011, it was untimely.14 Consequently, he must
demonstrate clear evidence of error by OWCP in denying his claim for compensation.15
The Board finds that appellant’s untimely request for reconsideration failed to
demonstrate clear evidence of error. In its November 3, 2011 decision, OWCP denied
appellant’s claim because he failed to submit sufficient evidence demonstrating that he was
involved in a work-related motor vehicle accident on August 29, 2011. Thereafter, the only
additional factual evidence submitted was appellant’s own narrative statements, describing the
August 29, 2011 incident. The record does not show any report or document issued by the
employing establishment or police report confirming that the August 29, 2011 motor vehicle
accident occurred as alleged. The Board finds, therefore, that OWCP properly found that
appellant’s narrative statements did not establish clear evidence of error.
7

See Leona N. Travis, 43 ECAB 227, 240 (1991).

8

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

9

See supra note 7.

10

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

11

Leon D. Faidley, Jr., supra note 3.

12

20 C.F.R. § 10.607(a).

13

See Robert F. Stone, 57 ECAB 292 (2005).

14

See supra note 5 at Chapter 2.1602.4 (October 2011). For decisions issued on or after August 29, 2011, the
one-year period begins on the date of the original decision and the application for reconsideration must be received
by OWCP within one year of the date of OWCP’s decision for which review is sought.
15

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

4

Although the progress notes and reports from Nurse Haile and Drs. Jacob and Varma
found that appellant injured his neck as a result of a motor vehicle accident that occurred while
he was driving a tow truck on August 29, 2011, none of this evidence indicated whether the tow
truck was owned by his employing establishment. The remaining medical evidence did not
provide a history of the claimed injury. As none of the evidence raises a substantial question
concerning the correctness of OWCP’s November 3, 2011 decision, the Board finds that
appellant has failed to establish clear evidence of error on the part of OWCP in denying further
merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.16
Issued: May 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision was no longer a member
of the Board after May 16, 2014.

5