United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. SECRET SERVICE, Washington, DC,
Employer
__________________________________________

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

Docket No. 10-1585
Issued: February 7, 2011

Case Submitted on the Record

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

JURISDICTION
On May 24, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 4, 2010, which denied his request for a
schedule award and a March 26, 2010 decision denying his request for an oral hearing. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has a ratable hearing loss warranting a schedule
award; and (2) whether the Office properly denied appellant’s request for an oral hearing.
FACTUAL HISTORY
On September 10, 2009 appellant, then a 40-year-old secret service agent, filed a claim
alleging that he sustained permanent hearing loss while in the performance of duty. He became
aware of his hearing loss on August 20, 2009. Appellant did not stop work.

Appellant submitted a January 29, 2009 employing establishment audiogram together
with a report of the same date by Dr. Steven P. Fong, a Board-certified family practitioner, who
advised that the audiogram revealed mild effusion/erythema of the tympanic membrane on the
left and mild effusion of the tympanic membrane on the right.1 Dr. Fong noted that the source of
appellant’s noise exposure was on the weapons range and from sirens. A September 2, 2009
audiogram performed by Robin Robinson, an audiologist, revealed normal hearing on the right to
2,000 hertz (Hz) precipitously sloping to severe noise notch at 6,000 Hz and normal hearing on
the left to 2,000 Hz sloping to moderate noise notch at 6,000 Hz. Appellant reported a sudden
onset of constant tinnitus in the right ear after providing instruction at a target range.
Ms. Robinson noted ostoscopy examination was normal bilaterally and recommended hearing
protection. In a September 2, 2009 report, she diagnosed noise-induced sensorineural hearing
loss and noted that appellant’s condition was causally related to his employment activity.
The employing establishment submitted a September 28, 2009 statement from Stuart
Allison, appellant’s supervisor, who noted that appellant was assigned to the James J. Rowley
Training Center and the Patuxent Research Refuge and used the outdoor rifle range and shoot
house. Appellant was exposed to noise from flashbangs at 180 decibels and gunfire with
undetermined decibel exposure, for three to four hours per day, two to three days a week.
Mr. Rowley noted that appellant was provided with foam earplugs and earmuffs.
An October 20, 2009 statement of accepted facts noted appellant worked as a border
patrol agent from January 20, 1997 to June 5, 1999 and was exposed to gunfire at the academy
and during quarterly requalification. From June 6, 1999 to the present, he worked as a special
agent and was exposed to firearms training three days a week for one to three hours a day. After
the academy, appellant was exposed to quarterly requalification courses, pistols, rifles and flash
bang training. He was provided with hearing protection.
On October 29, 2009 the Office referred appellant to Dr. John A. Ruth, Jr., a Boardcertified otolaryngologist, for an otologic examination and an audiological evaluation. In a
November 13, 2009 report, Dr. Ruth provided findings on examination and noted appellant’s
exposure to noise was generated from gunfire and diversionary devices up to 180 decibels.
Appellant reported using earplugs and headsets for hearing protection and that his tinnitus did
not interfere with daily activities. Dr. Ruth diagnosed noise-induced sensorineural hearing loss
which was due to the noise exposure in appellant’s job. He noted vocal quality was good,
external auditory canals were clear, tympanic membranes were pearly and mobile, no nasal
mucopusor polyps, no oral lesions, the pharynx was benign and there was no cervical adenopathy
or thyromegaly. Dr. Ruth performed an otologic evaluation on November 13, 2009 and
audiometric testing was conducted on his behalf. Testing at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second revealed the following: right ear 5, 5, 10 and 30 decibels; left
ear 5, 5, 5 and 25 decibels. Dr. Ruth noted tympanometry revealed normal tracings bilaterally
and the audiogram revealed noise-induced sensorineural hearing loss bilaterally and advised that
appellant would not benefit from amplification at this time.
1

The January 29, 2009 audiogram revealed decibel losses for the right ear, at the frequency levels of 500, 1,000,
2,000 and 3,000 cycles per second, of 10, 5, 5 and 15 decibels, while the left ear showed losses of 5, 0, 0 and 5
decibels.

2

On January 6, 2010 an Office medical adviser reviewed the medical evidence. The
medical adviser referred to the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment,2 (A.M.A., Guides), to find that appellant’s hearing loss
was nonratable. The Office medical adviser determined that his hearing loss was not severe
enough for a schedule award after applying the Office’s current standards for evaluating hearing
loss to the results of the November 13, 2009 audiogram. He noted that appellant reached
maximum medical improvement on November 13, 2009.
On February 4, 2010 the Office accepted appellant’s claim for bilateral sensorineural
hearing loss due to noise exposure.
In a decision dated February 4, 2010, the Office found that, although appellant’s hearing
loss was employment related, it was not severe enough to be ratable for purposes of a schedule
award.
In a letter dated March 1, 2010 and postmarked March 15, 2010, appellant requested an
oral hearing.
In a decision dated March 26, 2010, the Office denied appellant’s request for an oral
hearing. It found that the request was not timely filed. Appellant was informed that his case had
been considered in relation to the issues involved and that the request was further denied for the
reason that the issues in this case could be addressed by requesting reconsideration from the
Office and submitting evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 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 regulations as the appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at
each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is deducted
2

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

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

Supra note 2 at 250.

7

Id.

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because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.10 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral hearing loss due to noise exposure
from his federal employment. The issue is whether appellant sustained a ratable impairment in
accordance with the A.M.A., Guides.
The Office referred appellant to Dr. Ruth for examination and diagnostic testing. An
Office medical adviser reviewed Dr. Ruth’s findings and agreed that appellant’s hearing loss was
aggravated by his employment. The medical adviser applied the Office’s standardized
procedures to the November 13, 2009 audiogram performed for Dr. Ruth to determine if the
extent of hearing loss was ratable for schedule award purposes. Testing for the right ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 Hz revealed decibels losses of 5, 5, 10 and 30,
respectively. These decibels totaled 50 and were divided by 4 to obtain an average hearing loss
at those cycles of 12.50 decibels. The average of 12.50 decibels was then reduced by 25 decibels
(the first 25 decibels were discounted as discussed above) to equal zero percent hearing loss for
the right ear. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 Hz
revealed decibels losses of 5, 5, 5 and 25 respectively. These decibels were totaled at 40 and
were divided by 4 to obtain the average hearing loss at those cycles of 10 decibels. The average
of 10 decibels was then reduced by 25 decibels (the first 25 decibels were discounted as
discussed above) to 0, which was multiplied by the established factor of 1.5 to compute a
0 percent hearing loss for the left ear.
The Board finds that the Office medical adviser applied the proper standards to
Dr. Ruth’s November 13, 2009 audiogram. The result is a zero percent monaural hearing loss
and a zero percent binaural hearing loss. Although the record contains other audiograms
submitted by appellant, these are insufficient to establish a ratable hearing loss. The January 29,
2009 audiogram reviewed by Dr. Fong shows lesser hearing loss at the pertinent frequency levels

8

Id.

9

Id.

10

Id.

11

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

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than did the audiogram performed for Dr. Ruth.12 The remaining audiograms submitted by
appellant are of no probative value as they were not certified by a physician as accurate.13
On appeal, appellant asserts that the Office decision was incorrect and he should have
been granted a schedule award because he has constant ringing in his ears. As noted, the extent
of his hearing impairment is not ratable under the standards used by the Office. The Board has
noted that a schedule award for tinnitus is not appropriate in the absence of a ratable hearing
loss.14
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides that “a claimant for compensation not satisfied
with a decision of the Secretary ... is entitled, on request made within 30 days after the date of
the issuance of the decision, to a hearing on his claim before a representative of the Secretary.”15
Section 10.617 and 10.618 of the federal regulations implementing this section of the Act
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.16 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.17 Although there is no right to a review of the written record or an oral hearing
if not requested within the 30-day time period, the Office may within its discretionary powers
grant or deny appellant’s request and must exercise its discretion.18 The Office’s procedures
require that it exercise its discretion to grant or deny a hearing when the request is untimely or
made after reconsideration under section 8128(a).19
ANALYSIS -- ISSUE 2
Appellant requested a hearing in an appeal form dated March 1, 2010 but postmarked
March 15, 2010. As the envelope containing the request was postmarked more than 30 days

12

See supra note 1.

13

See Joshua A. Holmes, 42 ECAB 231, 236 (1990) (if an audiogram is prepared by an audiologist, it must be
certified by a physician as being accurate before it can be used to determine the percentage of hearing loss). See
also James A. England, 47 ECAB 115, 118 (1995) (finding that an audiogram not certified by a physician as being
accurate has no probative value; the Office need not review uncertified audiograms).
14

See L.S., 57 ECAB 725 (2006).

15

5 U.S.C. § 8124(b)(1).

16

20 C.F.R. §§ 10.616, 10.617.

17

Id. at § 10.616(a).

18

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

19

See R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

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after issuance of the February 4, 2010 Office decision, his request for an oral hearing was
untimely filed.
The Office also notified appellant that it had considered the matter in relation to the issue
involved and indicated that additional argument and evidence could be submitted with a request
for reconsideration. It has broad administrative discretion in choosing means to achieve its
general objective of ensuring that an employee recovers from his or her injury to the fullest
extent possible in the shortest amount of time. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken
which are contrary to both logic and probable deductions from established facts.20 There is no
indication that the Office abused its discretion in this case in finding that appellant could further
pursue the matter through the reconsideration process.21
CONCLUSION
The Board finds the Office properly denied appellant’s claim for a schedule award for
hearing loss. It further finds that the Office properly denied his request for a hearing as
untimely.

20

Samuel R. Johnson, 51 ECAB 612 (2000).

21

The Board notes that on May 4, 2010 appellant appealed the Office decisions dated February 4 and March 26,
2010 and submitted a timely request for oral argument. In an order dated September 23, 2010, the Board denied his
request for oral argument on the grounds that it would further delay issuance of a Board decision and not serve a
useful purpose. On October 23, 2010 appellant filed a response to the Boards Order.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated March 26 and February 4, 2010 are affirmed.
Issued: February 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS PUGET SOUND HEALTH CARE
SYSTEM, Seattle, WA, Employer
__________________________________________
Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-632
Issued: September 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On January 14, 2011 appellant, through her attorney, filed a timely appeal from an
October 14, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board docketed the appeal as No. 11-632.
On August 29, 2005 appellant authorized John Eiler Goodwin, Esq., to represent her
before OWCP. She requested that all documents related to her claim be sent to Mr. Goodwin’s
listed address.
By its October 14, 2010 decision, OWCP reduced appellant’s compensation based on its
finding that her actual earnings as an admissions nurse effective October 4, 2006 fairly and
reasonably represented her wage-earning capacity.1 A copy of that decision was not sent to her
authorized representative.

1

In decisions dated on March 3 and August 4, 2011, OWCP adjudicated whether appellant had established
modification of the October 14, 2010 wage-earning capacity determination. The Board and OWCP may not have
concurrent jurisdiction over the same issue in a case. Consequently, the March 3 and August 4, 2011 decisions,
issued while the Board had jurisdiction of the case, are null and void. Douglas E. Billings, 41 ECAB 880 (1990);
see also 20 C.F.R. § 501.2(c)(3).

Regulations and Board case law require OWCP to send a copy of its decision to the
authorized representative.2 The Board has held that a decision under the Federal Employees’
Compensation Act3 is not properly issued unless both appellant and the authorized representative
have been sent copies of the decision. As the October 14, 2010 decision was not sent to
appellant’s representative, the decision was not properly issued. The Board will set aside the
decision and remand the case for an appropriate and properly issued merit decision on the
relevant issues.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 14, 2010 is set aside and the case is remanded for further
proceedings consistent with this order.
Issued: September 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

See 20 C.F.R. § 10.127. The Board held in Travis L. Chambers, 55 ECAB 138 (2003) that section 10.127
requires that a copy of an OWCP decision be sent to the authorized representative and that any other interpretation
of the language of the regulation would be inconsistent with the clear language of its initial provisions. In George R.
Bryant, Docket No. 03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18,
2003 decision when it did not send a copy of that decision to the authorized representative on that date; the Director
of OWCP conceded a procedural error and advised that a merit review would be provided on remand to preserve the
claimant’s appeal rights.
3

5 U.S.C. § 8101 et seq. See Travis L. Chambers, supra.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, MOUNT
WASHINGTON POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 21-1416
Issued: March 1, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 26, 2021 appellant filed a timely appeal from an August 18, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 17, 2021 appellant, then a 47-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed tarsal tunnel syndrome due to factors of her federal
employment. She indicated that her ankle would hurt while she worked, but did not hurt if she
1

5 U.S.C. § 8101 et seq.

avoided walking, standing, or ascending and descending stairs. Appellant noted that she first
became aware of her condition on February 1, 2021 and realized its relationship to her federal
employment on March 16, 2021. She stopped work on March 12, 2021.
In a progress note dated March 18, 2021, Dr. Pardeep Paul Singh Dhanoa, a Board-certified
family medicine specialist, noted that appellant complained of right plantar foot pain for the past
three months, followed by left foot pain which she attributed to overcompensation. He noted that
she asserted that the pain was the worst at the end of the day and for the past few weeks it had
spread to her heels. Dr. Dhanoa diagnosed bilateral foot pain and bilateral bunion and
recommended rest, ice, stretching, a referral to podiatry, and that appellant remain off work until
March 20, 2021.
In a medical note dated April 16, 2021, Dr David A. Wood, a podiatrist, recounted
appellant’s complaints of chronic foot pain, right worse than left, which was constant and
worsened with weight bearing. He noted that his physical examination was remarkable for a
positive Tinel’s sign with tibial nerve percussion, and that her x-rays revealed inferior heel spur,
bunion deformity, and hammertoes. Dr. Wood suspected tarsal tunnel syndrome and
recommended that appellant undergo a magnetic resonance imaging (MRI) scan and a nerve
conduction velocity (NCV) study.
In an after visit summary dated May 6, 2021, Dr. Syed A. Salahuddin, a Board-certified
neurologist, examined appellant and diagnosed tarsal tunnel syndrome.
In a note of even date, Dr. Wood advised appellant that the NCV study had confirmed tarsal
tunnel syndrome. He again recommended an MRI scan to determine the specific cause of the
condition.
In a May 14, 2021 note, Dr. Wood noted that he had reviewed an MRI scan and observed
varicosities distal to the port pedis, which he opined that were likely contributing to tarsal tunnel
syndrome. He recommended surgical release of the tarsal tunnel and porta pedis and ligation of
varicose veins. Dr. Wood explained that tarsal tunnel syndrome was a loose diagnosis without a
definitive mass and that chronic swelling was a potential complication. In a separate note of even
date, he indicated that appellant was unable to work, and that she would be undergoing surgery for
her diagnosed conditions.
In an attending physician’s report (Form CA-20) dated May 25, 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicose veins. He checked a box marked “Yes” indicating that
the conditions were caused or aggravated by an employment activity, which he described as
“overuse of extremities.” Dr. Wood noted that appellant continued to be disabled from working.
In a June 28, 2021 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment, including comments from a
knowledgeable supervisor on the accuracy of appellant’s statements. It afforded both parties 30
days to submit the necessary evidence.

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OWCP thereafter received a form report by Dr. Wood dated April 12, 2021, which noted
chronic foot pain with an onset of March 18, 2021.
Appellant submitted a completed response to OWCP’s development questionnaire dated
July 2, 2021. She attributed her claimed conditions to repetitive walking, bending, stooping,
lifting, and climbing stairs while carrying mail between 8 to 12 hours per day for the past 18 years.
In a letter dated July 21, 2021, Dr. Wood noted that appellant was unable to work due to
her inability to stand or walk for any length of time secondary to tarsal tunnel syndrome.
In a narrative report dated July 27, 2021, Dr. Wood outlined his visits with appellant and
the results of the NCV study and MRI scan. He diagnosed right tarsal tunnel syndrome and
varicosities and indicated that conservative treatments and time off from work had failed to resolve
her conditions. Dr. Wood noted that appellant would be undergoing surgery to include release of
the tarsal tunnel and ligation of varicosities. When asked to describe her specific employment
duties/activities, he indicated that she was unable to stand or walk for any substantial time. When
asked to provide a medical explanation for how appellant’s federal employment duties caused,
contributed to or aggravated her medical condition, Dr. Wood responded that she was unable to
work at that time.
By decision dated August 18, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed medical conditions and the accepted employment factors. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emplo yee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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alleged to have caused or contributed to the presence or occurrence of the disease o r condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 The opinion of the physician must be based upon a complete factual
and medical background, 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. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In his July 27, 2021 narrative report, Dr. Wood diagnosed right tarsal tunnel syndrome and
varicosities and discussed appellant’s upcoming surgery. He did not, however, provide an opinion
on causal relationship between her diagnosed conditions and the accepted factors of federal
employment. The Board has held that a medical report lacking an opinion on causal relationship
is of no probative value. 9 Therefore, the Board finds that Dr. Wood’s January 27, 2021 report is
insufficient to establish appellant’s burden of proof.
In his additional reports and notes dated April, May, and July 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicosities, but did not provide an opinion on causal relationship.
Similarly, in his March 18, 2021 note, Dr. Dhanoa diagnosed bilateral foot pain and bunions, but
did not provide an opinion on causal relationship. As noted, the Board has held that a medical
report lacking an opinion on causal relationship is of no probative value. 10 Therefore, these reports
are also insufficient to establish appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted employment factors, the Board finds that she
has not met her burden of proof.

6

P.L., Docket No. 19-1750 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Dolores C. Ellyett, id.
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

9

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

10

Id.

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE INTERIOR,
INDIANA DUNES NATIONAL LAKESHORE,
Porter, IN, Employer
__________________________________________

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

Docket No. 09-514
Issued: October 9, 2009

Case Submitted on the Record

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

JURISDICTION
On December 15, 2008 appellant filed a timely appeal from the January 9 and April 25,
2008 merit decisions of the Office of Workers’ Compensation Programs, which reduced his
compensation to reflect his wage-earning capacity in a constructed position. He also sought
review of a December 2, 2008 nonmerit decision denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation to
reflect his capacity to earn wages as a customer complaint clerk; and (2) whether the Office
properly denied appellant’s April 25, 2008 request for reconsideration.

FACTUAL HISTORY
This is the fourth appeal in OWCP File No. xxxxxx612.1 On April 29, 1991 appellant, a
41-year-old engineering equipment operator, sustained a left elbow injury while reorganizing a
storage building, which the Office accepted for tendinitis. It later accepted chronic lateral
epicondylitis and approved surgery. The Office consolidated this case with those of appellant’s
right knee claims.2 Appellant received compensation for temporary total disability on the
periodic rolls. The facts of this case as set forth in the previous Board decisions are hereby
incorporated by reference.
Dr. Stephen J. Burns, a Board-certified attending orthopedist, examined appellant on
April 3, 2006 and advised the Office that he could not return to his job as an equipment operator
but could work eight hours a day with permanent restrictions. He completed a work capacity
evaluation on May 19, 2006.
The Office referred appellant to vocational rehabilitation services. Appellant underwent
vocational testing and discussed job goals. He expressed an interest in computer training. It was
agreed that appellant would take three courses at Purdue University Continuing Education
School. On March 15, 2007 the Office rehabilitation counselor identified the position customer
complaint clerk. She found that appellant met the specific vocational preparation of the job, as
he had positive communication skills and would obtain the required computer skills.3
On May 14, 2007 appellant began his computer training. He completed the first course
and received a certificate of completion. Appellant completed the second course but felt it was a
1

Docket Nos. 98-396 and 98-522 (issued January 27, 2000); Docket No. 01-1453 (issued July 29, 2002); Docket
No. 02-2385 (issued February 12, 2003).
2

On April 24, 1987 appellant injured his right knee climbing out of a trash hopper. The Office accepted an
aggravation of chronic anterior cruciate ligament instability. OWCP File No. xxxxxx431. On October 5, 1987
appellant loaded a truck with equipment and felt his right knee move to the side. The Office accepted a
sprain/strain. OWCP File No. xxxxxx172. However, on July 29, 1991 appellant hyperextended his right knee when
he descended a pay loader and stepped onto loose gravel. The Office accepted a sprain. OWCP File
No. xxxxxx161.
3

The Department of Labor’s Dictionary of Occupational Titles provides the following job description for
Customer-Complaint Clerk (clerical), DOT #241.367-014, alternate title Adjustment Clerk, Customer Service Clerk:
“Investigates customer complaints about merchandise, service, billing or credit rating: Examines records, such as
bills, computer printouts, microfilm, meter readings, bills of lading and related documents and correspondence and
converses or corresponds with customer and other company personnel, such as billing, credit, sales, service or
shipping, to obtain facts regarding customer complaint. Examines pertinent information to determine accuracy of
customer complaint and to determine responsibility for errors. Notifies customer and designated personnel of
findings, adjustments and recommendations, such as exchange of merchandise, refund of money, credit of
customer’s account or adjustment of customer’s bill. May recommend to management improvements in product,
packaging, shipping methods, service or billing methods and procedures to prevent future complaints of similar
nature. May examine merchandise to determine accuracy of complaint. May follow up on recommended
adjustments to ensure customer satisfaction. May key information into computer to obtain computerized records.
May trace missing merchandise and be designated Tracer Clerk (clerical). May investigate overdue and damaged
shipments or shortages in shipments for common carrier and be designated Over-Short-And-Damage Clerk
(clerical). May be designated according to type of complaint adjusted as Bill Adjuster (clerical), MerchandiseAdjustment Clerk (retail trade) and Service Investigator (utilities; tel. & tel.).”

2

little bit over his head. He had some trouble understanding all the material. Appellant started his
third and final course and stated it was very difficult. The class was small, but it was over his
head. On August 7, 2007 appellant advised that he did not attend the last class due to illness. As
the school was not providing make-up classes, he was not sure if he would receive a certificate of
completion.
The rehabilitation counselor reported: “The injured worker completed the short-term
computer training course and will begin job placement activities.” On August 22, 2007 she
again reported that appellant had completed his computer skills training and would be looking
for sedentary work. Therefore, job placement with a new employer proved unsuccessful.
The Office provided Dr. Burns with a statement of accepted facts and a work capacity
evaluation form and asked for an update on appellant’s work restrictions. Dr. Burns completed
the work capacity evaluation on August 28, 2007 with few changes.
On December 3, 2007 the Office rehabilitation specialist found that appellant was able to
perform the job of customer complaint clerk at an average weekly wage of $432.00. He listed
the general educational proficiencies as R4, M3 and L4. The Office rehabilitation specialist
found that appellant met the specific vocational preparation of six months to a year, as he had
“positive communications skills and has obtained computer training necessary for this position to
qualify.” He confirmed that the job was being performed in sufficient numbers so as to make it
reasonably available to appellant within his commuting area.
On December 6, 2007 the Office notified appellant that it proposed to reduce his wageloss compensation because the medical and factual evidence established that he was no longer
totally disabled for work but had the capacity to earn $432.00 a week as a customer complaint
clerk. It afforded appellant 30 days to submit any evidence or argument.
Appellant disputed that he could work eight hours a day. He noted that he was able to
work only four hours a day in 2004. Appellant stated that with his computer training classes “a
lot went wasted on me.” He attached what he contended as a typical customer service listing and
stated that he did not know how to use a spreadsheet, e-mail or a word processing program. “At
best, I’m a novice.” Appellant submitted the only responses he had received to his job
applications. He stated that he applied for over 50 jobs and none of them paid more than six to
eight dollars an hour. Appellant wrote: “In closing, the fact you have chosen a certain job title
does not mean an employer feels the same. I have been unemployed for 16 years, which effects
how an employer considers my hiring.”
In a decision dated January 9, 2008, the Office reduced appellant’s compensation for
wage loss to reflect his capacity to earn wages in the constructed position of customer complaint
clerk.
Appellant requested reconsideration. On March 16, 2008 he informed the Office that he
had returned to the workforce as a maintenance/custodial assistant, working 20 hours a week at
$5.85 per hour, for Michigan Resources, an organization that works with people with disabilities.
On April 25, 2008 the Office reviewed the merits of appellant’s claim and denied
modification of its prior decision.
3

Appellant again requested reconsideration. He argued that the Office rehabilitation
counselor had hurt his chances of employment by hiding on his résumé his receipt of workers’
compensation and making it appear that he had an unexplained gap of 17 years in his work
history. Appellant stated that he was not qualified for the position of customer service
representative.
In a decision dated November 26, 2008, the Office denied appellant’s request for
reconsideration. It found that appellant’s argument was irrelevant because his compensation was
reduced based on his capacity to earn wages, not on his failure to obtain employment.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act provides that in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings, if his actual earnings fairly and reasonably represent his wageearning capacity. If the actual earnings of the employee do not fairly and reasonably represent
his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity
as appears reasonable under the circumstances is determined with due regard to the nature of his
injury, the degree of physical impairment, his usual employment, his age, his qualifications for
other employment, the availability of suitable employment, and other factors or circumstances
which may affect his wage-earning capacity in his disabled condition.4
When the Office makes a medical determination of partial disability and of the specific
work restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist
for selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles
or otherwise available in the open labor market, that fits the employee’s capabilities in light of
his physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.6
ANALYSIS -- ISSUE 1
The Office reduced appellant’s compensation for wage loss on the grounds that he had
the capacity to earn wages as a customer complaint clerk. The Office rehabilitation specialist
reported that appellant met the specific vocational preparation for this position (six months to a

4

5 U.S.C. § 8115(a).

5

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

6

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

4

year) because he had positive communication skills “and has obtained computer training
necessary for this position to qualify.”
While it is true that appellant received some computer training, the record does not show
that he ever completed that training. The record establishes instead that he did not complete the
third and final course and there is no evidence that he received a certificate of completion for that
course. While the Office rehabilitation specialist did not clearly set forth the specific vocational
preparation necessary or explain how the course work that was completed was germane to the six
month to one year training expected: “The injured worker completed the short-term computer
training course and will begin job placement activities.” That finding is not fully supported by
the evidence.
The burden of proof is on the Office to establish that appellant has the wage-earning
capacity of a customer complaint clerk. This requires it to establish how appellant met the
specific vocational preparation for the selected position. Because the Office has not met that
burden, the Board will reverse the Office’s January 9, 2008 decision reducing appellant’s
compensation for wage loss and the Office’s April 25, 2008 decision denying modification.
Given the Board’s disposition of the merits of this case, the issue raised by the Office’s
December 2, 2008 denial of a merit review is moot.
CONCLUSION
The Board finds that the Office has not met its burden of proof to justify reducing
appellant’s compensation to reflect a capacity to earn wages as a customer complaint clerk.

5

ORDER
IT IS HEREBY ORDERED THAT the April 25 and January 9, 2008 decisions of the
Office of Workers’ Compensation Programs are reversed.
Issued: October 9, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Osawatomie, KS, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1281
Issued: February 9, 2011

Case Submitted on the Record

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

JURISDICTION
On April 6, 2010 appellant, through her representative, filed a timely appeal from an
October 28, 2009 merit decision of the Office of Workers’ Compensation Programs denying her
claim for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than seven percent permanent impairment of the
right lower extremity.
FACTUAL HISTORY
On January 28, 2006 appellant, then a 42-year-old mail carrier, filed a claim alleging that
she twisted her right knee on that date when she fell over bricks. The Office accepted the claim
for a tear of the right anterior cruciate ligament (ACL) and authorized surgery to repair the tear.
By decision dated October 10, 2006, the Office granted appellant a schedule award for
seven percent permanent impairment of the right lower extremity.

On May 14, 2007 the Office accepted that appellant sustained a recurrence of a medical
condition. On June 20, 2007 she underwent an arthroscopy of the right knee and excision of a
ganglion cyst. The Office expanded acceptance of appellant’s claim to include a benign
neoplasm of connective and other soft issue of the right leg.
On October 30, 2007 appellant filed a claim for an increased schedule award. She
submitted an impairment evaluation dated November 19, 2007 from Dr. Everett J. Wilkinson, Jr.,
an osteopath. Dr. Wilkinson found that, pursuant to the fourth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),1 appellant
had seven percent right lower extremity impairment.
In a decision dated March 21, 2008, the Office denied appellant’s claim for an increased
schedule award. It noted that she had previously received an award for seven percent right upper
extremity impairment and that, consequently, Dr. Wilkinson’s report did not show that she was
entitled to an increased schedule award.
Appellant submitted numerous requests for reconsideration. In decisions dated May 8,
July 30 and October 2, 2008 and February 2 and June 26, 2009, the Office denied modification
of its finding that she was not entitled to an increased schedule award.
In an impairment evaluation dated September 11, 2009, Dr. Wilkinson related that
appellant had continued pain and swelling of the right knee and “subjective and objective signs
of instability.” He noted that Cybex testing showed that she had significant knee impairment.2
Referring to the fifth edition of the A.M.A., Guides,3 Dr. Wilkinson found that she had 2 percent
disability due to pain according to Table 18-3 on page 575 and 12 percent impairment due to loss
of muscle strength pursuant to Table 17-6 on page 532. He further found that appellant had
5 percent impairment due to 1.5 centimeters of muscle atrophy according to Table 17-6 on
page 530. Dr. Wilkinson added the impairment findings to find a total right lower extremity
impairment of 19 percent.
By letter received September 24, 2009, appellant requested reconsideration. She related
that she believed that she had “more disability than after the first surgery.”
On October 1, 2009 an Office medical adviser reviewed the evidence. He noted that the
Office now utilized the sixth edition of the A.M.A., Guides4 for impairment determinations. The
Office medical adviser found that Dr. Wilkinson’s report was insufficient to modify the Office’s
prior right lower extremity determination.

1

A.M.A., Guides (4th ed. 1993).

2

On April 3, 2009 appellant had a Cybex test done by a physical therapist. The physical therapist measured
range of motion and girth and performed isometric testing.
3

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

4

Id. (6th ed. 2009).

2

By decision dated October 28, 2009, the Office denied modification of its prior merit
decision.
On appeal appellant maintains that she has more than seven percent impairment. She
noted that she could no longer work overtime. Appellant questioned the distinction between
disability and impairment and noted that a Cybex test showed that she had an additional
impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,5 and its
implementing federal regulations,6 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.8
ANALYSIS
The Office accepted that on January 28, 2006 appellant sustained a right ACL tear and a
benign neopolasm of connective and other soft tissue. She underwent surgery in 2006 to repair
the ACL tear and on June 2007 she underwent a right knee arthroscopic excision of a ganglion
cyst. On October 10, 2006 the Office granted appellant a schedule award for seven percent
permanent impairment of the right lower extremity.
On October 30, 2007 appellant requested an increased schedule award. In 2008 and 2009
decisions, the Office determined that the evidence was insufficient to show that she had more
than seven percent impairment of the right lower extremity.
On September 24, 2009 appellant requested reconsideration.
She submitted a
September 11, 2009 impairment evaluation from Dr. Wilkinson who noted that appellant
continued to have right knee pain, swelling and instability. Dr. Wilkinson indicated that Cybex
testing revealed a significant impairment of the knee but did not discuss the results of the testing
or provide clinical findings on examination. Citing the fifth edition of the A.M.A., Guides, he
concluded that appellant had 2 percent impairment due to pain, 12 percent impairment due to
loss of muscle strength and 5 percent impairment due to atrophy. As of May 1, 2009, however,
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

3

any decision regarding a schedule award must be based on the sixth edition.9 Dr. Wilkinson did
not utilize the appropriate edition of the A.M.A., Guides; consequently, his evaluation is of little
probative value. Further, an Office medical adviser reviewed his report and noted that the report
lacked sufficient basis to justify an increased schedule award. It is appellant’s burden to submit
medical evidence supporting the degree of permanent impairment.10 Before the A.M.A., Guides
can be utilized, a description of the claimant’s impairment must be obtained from a physician.
The description must be in sufficient detail so that the claims examiner and others reviewing the
file will be able to clearly visualize the impairment with its resulting restrictions and
limitations.11 Dr. Wilkinson’s report lacked clinical findings and is thus insufficient to support
an increased impairment of the right lower extremity.12
On appeal appellant questions the distinction between disability and impairment. Under
the Act, the term disability means the incapacity, because of an employment injury, to earn the
wages that the employee was receiving at the time of injury.13 Disability is not synonymous with
physical impairment, which may or may not result in incapacity to earn wages.14 The amount
payable pursuant to a schedule award does not take into account the effect that the impairment
has on employment opportunities, wage-earning capacity, sports, hobbies or other lifestyle
activities.15 The number of weeks of compensation for a schedule award is determined by the
compensation schedule at 5 U.S.C. § 8107(c).
Appellant also notes that testing by a physical therapist revealed that she had an increased
impairment. The sixth edition of the A.M.A., Guides, however, provides that impairment
evaluations require medical knowledge and thus are mostly performed by physicians.16 Further,
evaluations under the sixth edition are primarily diagnosis based and require identifying the
impairment class for the diagnosed condition and then adjusting by grade modifiers based on
functional history, physical examination and clinical studies.17 Appellant failed to submit such
an impairment evaluation and thus failed to meet her burden of proof.
CONCLUSION
The Board finds that appellant has no more than seven percent permanent impairment of
the right lower extremity.
9

Id.

10

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

11

D.N., 59 ECAB 576 (2008); Vanessa Young, 55 ECAB 575 (2004).

12

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

13

D.M., 59 ECAB 164 (2007); Sean O’Connell, 56 ECAB 195 (2004).

14

See D.M., supra note 13.

15

Ruben Franco, 54 ECAB 496 (2003).

16

A.M.A., Guides 23.

17

Id. at 494-531.

4

ORDER
IT IS HEREBY ORDERED THAT the October 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.J., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Nashville, TN, Employer
__________________________________________

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

Docket No. 13-1718
Issued: April 9, 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 July 5, 2013 appellant filed a timely appeal of a January 10, 2013 nonmerit decision
of the Office of Workers’ Compensation Programs’ (OWCP).1 As more than 180 days has
elapsed between the issuance of OWCP’s last merit decision of November 14, 2011 and the
filing of this appeal on July 5, 20132 and pursuant to the Federal Employees’ Compensation Act3
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.

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 January 10, 2013, the date of OWCP’s decision, was July 9, 2013. Since using July 11, 2013, the date the
appeal was received by the Clerk of the Appellate Board, 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 July 5, 2013, which
renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

20 C.F.R. § 501.3(e).

3

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant asserts that OWCP did not consider new legal arguments presented
in her November 5, 2012 reconsideration request and that the decision was confusing with
regards as to whether OWCP had reviewed evidence submitted by appellant.
FACTUAL HISTORY
On September 20, 1979 appellant, then a 37-year-old operations analyst, was injured in a
motor vehicle accident while she was on travel status in Clarksville, Tennessee. The claim was
accepted for cervical and lumbar strains, a soft tissue injury of the left hip and aggravation of
congenital dislocation of the left hip. In 1986, appellant underwent authorized left total hip
replacement and in 1992 began employment as an attorney. She owned a private law firm from
January 1993 until March 2003, when she underwent a second authorized left hip replacement
Appellant briefly returned to her law practice, until she closed it on
procedure.4
September 30, 2004 and elected FECA benefits effective October 1, 2004. She has not returned
to work.
OWCP continued to develop the claim and in July 2007 referred appellant to Dr. Carl W.
Huff, a Board-certified orthopedic surgeon, for a second-opinion evaluation. Thereafter, it
determined that a conflict in medical evidence had been created regarding her work capacity and
referred her to Dr. David St. Clair for an impartial evaluation.
In a January 2, 2008 report signed by Dr. D.S. St. Clair, the physician advised that the
employment-related conditions had resolved and appellant could return to the operations analysis
position and could also work as an attorney, as both were sedentary.
By decision dated July 24, 2008, OWCP found that the weight of the medical evidence
rested with the opinion of Dr. St. Clair and terminated appellant’s wage-loss compensation and
medical benefits, effective August 3, 2008. Appellant began receiving Office of Personnel
Management retirement benefits, effective August 3, 2008.
Following a December 16, 2008 hearing, in a March 12, 2009 decision an OWCP hearing
representative affirmed the termination decision, but as appellant had subsequently submitted
medical evidence regarding whether the authorized treatment for her left hip condition, including
repeat surgeries, permanently altered the condition, the case was remanded to OWCP to obtain a
supplemental report from Dr. St. Clair regarding whether appellant had continuing residuals due
to aggravation of the preexisting left hip dislocation.5
4

In an October 9, 1998 decision, the Board affirmed OWCP’s termination of further medical treatment in
Phoenix, Arizona. The law and facts of the prior Board decision are incorporated herein by reference. Docket
No. 96-1666.
5

In that decision, the hearing representative noted that Dr. St. Clair had undergone gender reassignment surgery
and that appellant questioned Dr. St. Clair’s report based on the gender issue. Appellant acknowledged
Dr. St. Clair’s surgery at the December 16, 2008 hearing and noted that she was expecting to see a male doctor.
Dr. St. Clair was now known as Dr. Deborah S. St. Clair, a Board-certified orthopedic surgeon.

2

On March 23, 2009 OWCP again referred appellant to Dr. St. Clair for examination. In
an April 20, 2009 report, Dr. Deborah S. St. Clair noted that she again examined appellant. She
advised that residuals remained as a consequence of treatment for appellant’s congenital hip
dislocation and indicated that appellant had numerous subjective complaints. In a July 6, 2009
decision, OWCP finalized the termination effective August 3, 2008.
Appellant requested a hearing, by form dated July 31, 2009.
Following a November 23, 2009 hearing, in a February 18, 2010 decision, OWCP’s
hearing representative found that the statement of accepted facts, the second-opinion examiner
and the referee physician had not displayed knowledge of the fact that OWCP accepted the
reparative hip surgeries as being causally related to the accepted September 20, 1979
employment injury. He remanded the case to OWCP to prepare an addendum to the statement of
accepted facts and forward it to the referee physician to determine whether appellant had
employment-related residuals and/or disability.6
On February 24, 2010 OWCP asked Dr. St. Clair to address whether appellant continued
to have medical conditions causally related to the accepted employment injuries and/or surgeries
and, if so, to address the period and extent of disability. In a report received by OWCP on
March 24, 2010, Dr. St. Clair stated that, when appellant was examined on April 20, 2009, she
had multiple sprains/strains and aggravation of spondylosis and nothing objective. She indicated
that she could not connect any of appellant’s current symptoms to the September 20, 1979
employment injury.
In a May 7, 2010 decision, OWCP found that the weight of the medical evidence rested
with Dr. St. Clair and affirmed the termination of benefits effective August 3, 2008. Appellant
requested a hearing. Following a November 3, 2010 hearing, OWCP’s hearing representative
affirmed the May 7, 2010 decision. Appellant requested reconsideration on May 31, 2011 and in
a nonmerit decision dated July 12, 2011, OWCP denied her request. She requested
reconsideration on September 20, 2011. In a merit decision dated November 14, 2011, OWCP
denied modification of its prior decisions and found that the weight of the medical evidence
rested with Dr. St. Clair.7
On November 5, 2012 appellant again requested reconsideration. She noted that the
record indicated that Dr. David St. Clair had examined her in January 2008 and asserted that she
had not been examined by Dr. David St. Clair and, as such, the termination should be reversed.
She further asserted that the opinion of Dr. Deborah St. Clair did not provide sufficient
explanation to carry the weight of the medical evidence. Appellant also submitted additional
medical evidence including reports dated March 24, 2011 and June 26, 2012, in which
Dr. Gulish described her symptoms of low back and left hip pain. Dr. Gulish provided physical
examination findings and diagnosed status-post motor vehicle accident resulting in left total hip
6

The hearing representative noted considering a November 5, 2009 report from Dr. Lucius Wright, a Boardcertified internist, whose report indicated that appellant had a continuing left hip condition causally related to her
September 20, 1979 work injury.
7

OWCP noted considering an August 25, 2011 report from Dr. Eugene F. Gulish, a Board-certified orthopedic
surgeon, who noted the history of her September 20, 1979 work injury. Dr. Gulish opined that all of appellant’s
continuing symptoms had their origin in her work injury as she had essentially no symptoms before the work injury
and had unabated pain and symptoms since that injury.

3

replacement, chronic pain and history of congenital hip dysplasia. He concluded that since
appellant’s symptoms had been continuous since her accident, they should be covered by
workers’ compensation.8 In a July 10, 2012 report, Dr. Cameron Knight, a Board-certified
orthopedic surgeon noted appellant’s complaint of long-standing left hip pain. He provided
physical examination findings and diagnosed joint pain, localized in the hip. A July 24, 2012
magnetic resonance imaging (MRI) scan of the lumbar spine demonstrated numerous
degenerative changes from T1 to L5. In a September 21, 2012 report, Dr. Wright indicated that
appellant suffered from closed dislocation of the hip with soft tissue aggravation that was
accelerated by the employment injury and cervical and lumbar sprain. He advised that she could
not work eight hours a day and could only work for 30 minutes at a time. Dr. Wright concluded
that these conditions were permanent and that appellant would never regain full capacity of daily
activities. Dr. John Miles, a Board-certified anesthesiologist, saw appellant in consultation on
November 5, 2012. He reported complaints of low back and left hip pain and provided physical
examination findings. Dr. Miles indicated that her back pain was due to the sacroiliac joint, facet
joint arthropathy and degenerative disc disease and performed bilateral sacroiliac joint injections.
In a January 10, 2013 decision, OWCP denied merit review on the grounds that the
evidence submitted was cumulative and repetitious and that appellant submitted no new relevant
argument.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.9 Section 10.608(a) of the Code of Federal Regulations (C.F.R.)
provides that a timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence and/or argument that meet at least one of the standards
described in section 10.606(b)(3).10 This section provides that the application for reconsideration
must be submitted in writing and set forth arguments and contain evidence that either: (1) shows
that OWCP erroneously applied or interpreted a specific point of law; (2) advances a relevant
legal argument not previously considered by OWCP; or (3) constitutes relevant and pertinent
new evidence not previously considered by OWCP.11 Section 10.608(b) provides that when a
request for reconsideration is timely but fails to meet at least one of these three requirements,
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.12

8

Dr. Gulish also discussed a recent right ankle injury in the June 26, 2012 report. Appellant also submitted a
July 17, 2012 report signed by Marsha May, M.A. This is not probative evidence as reports from a physician’s
assistant are not considered medical evidence as a physician’s assistant is not considered a physician under FECA.
Ricky S. Storms, 52 ECAB 349 (2001).
9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.608(a).

11

Id. at § 10.606(b)(3).

12

Id. at § 10.608(b).

4

ANALYSIS
The only decision before the Board in this appeal is the decision of OWCP dated
January 10, 2013 denying appellant’s application for review. Because more than one year had
elapsed between the date of OWCP’s most recent merit decision dated November 14, 2011 and
the filing of this appeal with the Board on July 5, 2013, the Board lacks jurisdiction to review the
merits of this claim.13
OWCP accepted that appellant sustained cervical and lumbar strains, a soft tissue injury
of the left hip and aggravation of congenital dislocation of the left hip on September 20, 1979
when she was in an employment-related motor vehicle accident. It also authorized two hip
replacement surgical procedures. On July 6, 2009 OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective August 3, 2008. This was ultimately affirmed by
an OWCP hearing representative on February 2, 2011. Following a reconsideration request by
appellant, OWCP thereafter issued a decision on the merits of her claim on November 14, 2011.
Appellant again requested reconsideration on November 5, 2012. In that request and in
her appeal to the Board, she raised arguments concerning the opinion of Dr. St. Clair. Appellant
noted that the initial impartial evaluation on January 8, 2008 appeared to be signed by “David St.
Clair” yet asserted that she was not examined by him. The Board finds that appellant’s argument
is repetitive as it had been addressed in OWCP’s hearing representative’s decision dated
March 12, 2009. The record before the Board indicates that Dr. David St. Clair had gender
reassignment surgery, and at the December 16, 2008 hearing, appellant acknowledged
Dr. St. Clair’s surgery and the hearing representative explained why that was not sufficient to
disqualify her as the impartial medical specialist. Appellant thus has not advanced a legal
argument not previously considered by OWCP. Consequently, she was not entitled to a review
of the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).14
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted medical evidence with her November 5, 2012 reconsideration request. This included a
July 24, 2012 MRI scan of the lumbar spine, reports from Dr. Gulish dated March 24, 2011 and
June 26, 2012, a July 10, 2012 report from Dr. Knight, a September 21, 2012 report from
Dr. Wright and a November 12, 2012 report from Dr. Miles.
The MRI scan study and the reports from Drs. Knight and Miles do not mention the
employment injury or appellant’s ability to work. This evidence is not relevant to the merit issue
in this case, whether appellant has continuing employment-related disability, and is thus
irrelevant and insufficient to warrant merit review.15
As to the reports from Dr. Gulish and Dr. Wright, both physicians had submitted
evidence previously reviewed by OWCP. In a November 5, 2009 report, Dr. Wright discussed
the cause of appellant’s condition in a manner similar to that found in his September 21, 2012
report. Likewise, Dr. Gulish’s March 24, 2011 and June 26, 2012 reports are similar to his
13

Id. at § 501.3(e).

14

Id. at § 10.606(b)(2).

15

See K.S., Docket No. 08-2105 (issued February 11, 2009).

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August 25, 2011 report that was previously reviewed by OWCP. The Board has long held that
evidence that repeats or duplicates evidence of record has no evidentiary value and does not
constitute a basis for reopening a case.16 Thus, these new reports from Drs. Gulish and Wright
are not relevant because they are repetitive. As appellant did not submit relevant and pertinent
new evidence not previously considered by OWCP, it properly denied his reconsideration
request.17
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a merit review
pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Freddie Mosley, 54 ECAB 255 (2002).

17

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF JUSTICE, MEDICAL
CENTER FOR FEDERAL PRISONERS,
Springfield, MO, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Miriam D. Ozur, Esq., for the Director

Docket No. 13-104
Issued: October 21, 2013

Case Submitted on the Record

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

JURISDICTION
On October 18, 2012 appellant, through his attorney, filed a timely appeal from a
September 10, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he has a
permanent impairment for facial disfigurement caused by the accepted conditions.
On appeal appellant’s attorney asserts that the September 10, 2012 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that appellant, then a 39-year-old sports specialist, sustained multiple
injuries on April 26, 2008 when he was accidentally struck in the head by a softball bat.2 He
stopped work that day, received compensation, returned to modified duty on September 8, 2008
and to full duty on November 1, 2008. By decision dated November 8, 2010, appellant was
granted a schedule award for 10 percent impairment of the right upper extremity. In a May 4,
2011 decision, an OWCP hearing representative affirmed the November 8, 2010 decision
regarding entitlement to a schedule award for the right upper extremity and remanded the case to
OWCP for a determination as to whether appellant was entitled to a schedule award for
additional accepted conditions. In a July 18, 2011 decision, OWCP found that appellant was not
entitled to a schedule award for additional conditions.
In July 2011 appellant filed an additional schedule award claim, with a form application
for a disfigurement award and three photographs. In an August 1, 2011 report, Dr. Carl Claxton,
an osteopath, noted that appellant had a healed longitudinal right temporal bone fracture and
fracture through the zygomatic arch and inferolateral orbital wall with fracture of the right
mandibular sinus which resulted in permanent anatomic abnormalities and loss of function and
an additional four-centimeter healed surgical incision on the right anterior neck.
In an October 10, 2011 report, Dr. Daniel D. Zimmerman, Board-certified in internal
medicine and pediatrics and an OWCP medical adviser, reviewed the record regarding
appellant’s claim for a disfigurement award. He indicated that he had reviewed photographs and
that these did not show a facial disfigurement that would act as a hindrance to employability.
Dr. Zimmerman concluded that the accepted facial fractures had not resulted in permanent
disfigurement of a scheduled member and, as such, appellant was not entitled to a schedule
award.
By decision dated October 17, 2011, OWCP denied appellant’s claim. Appellant timely
requested a hearing for the July 18 and October 17, 2011 decisions which was held on
November 10, 2011. On January 26, 2012 an OWCP hearing representative affirmed the
July 18, 2011 decision. In a separate decision, the hearing representative set aside the
October 17, 2011 decision regarding appellant’s disfigurement claim on the grounds that OWCP
had not correctly followed its procedures. It found that Dr. Zimmerman had not addressed
whether maximum medical improvement had been reached and there was no indication that the
District Director had concurred with Dr. Zimmerman’s conclusion, as required by OWCP
procedures.
In a February 28, 2012 report, Dr. Zimmerman, an OWCP medical adviser, indicated that
maximum medical improvement had been reached on July 27, 2011, the date of the three
photographs. He stated that a minimally visible scar was not sufficient to entitle a monetary
2

The accepted conditions are fracture other facial bones, closed; periocular bruising; black eye, not otherwise
specified; concussion with loss of consciousness of 30 minutes or less; closed fracture of C7 cervical vertebral
without spinal cord injury; acute and subacute iridocyclitis, not otherwise specified, right; closed fracture of base of
skull without intracranial injury; multiple closed fracture of skull without intracranial injury, with brief loss of
consciousness; closed fracture of mandible; traumatic subarachnoid hemorrhage without open wound, brief coma.

2

award and that the August 1, 2011 report from Dr. Claxton provided no further reason to
consider one. On March 16, 2012 Lois Maxwell, the District Director, concurred with
Dr. Zimmerman’s conclusion.
By decision dated March 22, 2012, OWCP denied appellant’s claim for a schedule award
for disfigurement. Appellant again requested a hearing, which was held on June 13, 2012. At
the hearing, he described his scars and testified that he had no feeling on the right side of his face
and had trouble eating. Appellant indicated that he continued to work as a sports specialist at the
employing establishment. On September 10, 2012 an OWCP hearing representative affirmed the
March 22, 2012 decision. Appellant then filed an appeal with the Board.3
LEGAL PRECEDENT
Section 8107(c)(21) of FECA provides that payment of compensation not to exceed
$3,500.00 may be made for disfigurement of the face, head or neck which is likely to handicap
the claimant in securing or maintaining employment.4 OWCP procedures further indicate that
the medical adviser will be asked to review such claims and to evaluate the employee’s
disfigurement. If the medical adviser finds that maximum medical improvement has occurred,
the medical adviser shall review the photographs submitted along with the medical evidence of
record. The concurrence of the District Director or the Assistant District Director must be
obtained. Following the file review, the medical adviser and District Director or the Assistant
District Director will write a memorandum to the file which contains a complete description of
the disfigurement. If the medical adviser does not find that maximum medical improvement has
occurred, but has submitted a statement as to whether plastic surgery may improve the
appearance and decrease the degree of disfigurement and the claimant is amenable, the medical
adviser should include in his or her statement information concerning arrangements for
treatment.5
In an appeal involving disfigurement, the question before the Board is whether the
amount awarded by OWCP was based upon sound and considered judgment and was proper and
equitable under the circumstances as provided by section 8107(c)(21) of FECA.6

3

By order dated March 25, 2013, the Board remanded the case to OWCP because three photographs, relied upon
by Dr. Zimmerman were not in the case record forwarded to the Board. OWCP was to obtain the photographs and
other development deemed necessary, to be followed by a de novo decision on appellant’s schedule award claim.
Docket No. 13-104 (issued March 25, 2013). On April 18, 2013 the Director of OWCP petitioned the Board to
reconsider the March 25, 2013 order. The Director noted that the photographs had been scanned into the record, and
attached copies with the petition. On August 20, 2013 the Board granted the Director’s petition for reconsideration
and directed that the appeal proceed to a decision.
4

5 U.S.C. § 8107(c)(21).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disfigurement, Chapter 2.808.10 (February 2013);
Part 3 -- Medical, Disfigurement, Chapter 3.700.5 (January 2010); see D.H., Docket No. 10-2095 (issued
June 6, 2011).
6

W.P., Docket No. 12-1677 (issued March 12, 2013).

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ANALYSIS
The Board finds that appellant has not established that he sustained facial disfigurement
so as to warrant a schedule award. The accepted conditions in this case include fractures of
facial bones, including the mandible. As noted above, OWCP procedures provide that the
medical adviser will be asked to review such claims and to evaluate the employee’s
disfigurement, to be followed by concurrence of the District Director or Assistant District
Director.7 OWCP followed these procedures in this case.
In reports dated October 10, 2011 and February 28, 2012, Dr. Zimmerman, the medical
adviser, reviewed the record regarding appellant’s claim for a disfigurement award, including
Dr. Claxton’s report and photographs. He indicated that these did not show a facial
disfigurement that would act as a hindrance to employability and that maximum medical
improvement was reached on July 27, 2011, the date of three photographs. Dr. Zimmerman
concluded that the accepted facial fractures with a minimally visible scar had not resulted in
permanent disfigurement of a scheduled member and, as such, appellant was not entitled to a
schedule award. On March 16, 2012 the District Director concurred with Dr. Zimmerman’s
conclusion.
Appellant submitted an August 1, 2011 report in which Dr. Claxton, an attending
osteopath, noted a healed longitudinal right temporal bone fracture and fracture through the
zygomatic arch and inferolateral orbital wall with fracture of the right mandibular sinus which
resulted in permanent anatomic abnormalities and loss of function and an additional four
centimeter healed surgical incision on the right anterior neck. Dr. Claxton, however, did not
describe any disfigurement or indicate how these conditions would handicap appellant in
securing or maintaining employment.
As OWCP properly followed its procedures in determining that appellant was not entitled
to monetary compensation for facial disfigurement,8 its decision was based upon sound and
considered judgment and was proper and equitable under the circumstances as provided by
section 8107(c)(21) of FECA.9 OWCP therefore did not abuse its discretion in denying
monetary compensation for permanent facial disfigurement.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has a permanent impairment
due to facial disfigurement caused by the accepted conditions.
7

Supra note 5.

8

See J.C., 58 ECAB 258 (2007).

9

Supra note 6.

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ORDER
IT IS HEREBY ORDERED THAT the September 10, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Memphis, TN, Employer
__________________________________________

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

Docket No. 08-1227
Issued: December 18, 2008

Case Submitted on the Record

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

JURISDICTION
On March 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated August 9, 2007 which denied her request for
reconsideration. Because more than one year has elapsed between the September 8, 2006 merit
decision and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 14, 2000 appellant, then a 49-year-old clerk, filed a traumatic injury claim
alleging that on February 9, 2000 she injured her back and leg while bending over to load food
onto a hamper. The Office accepted the claim for a lumbar strain on July 25, 2000.

On February 11, 2005 the Office referred appellant to Dr. Carl Huff, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated March 3, 2005, Dr. Huff
concluded that appellant no longer had any residuals or disability due to her accepted lumbar
strain. He concluded, based upon a review of the medical evidence and physical examination,
that appellant’s injury caused no aggravation or structural change to her lumbar spine. Dr. Huff
noted that appellant’s February 9, 2000 employment injury was a minimal insult to the lumbar
spine. He stated that her pain complaints were consistent with her complaints prior to 1988.
Dr. Huff opined that appellant’s lumbar sprain had resolved based upon the objective evidence.
The Office provided appellant with a notice of proposed termination on August 19, 2006
and allowed her 30 days to submit evidence in response to the proposed termination.
By decision dated January 13, 2006, the Office terminated appellant’s compensation and
entitlement to medical benefits effective January 12, 2006 as she had no further employmentrelated condition or disability. It found that Dr. Huff’s opinion constituted the weight of the
medical evidence and established that her condition had resolved.
On February 1, 2006 appellant requested an oral hearing by an Office hearing
representative, which was held on July 24, 2006.
In a July 7, 2006 report, Dr. Rommel G. Childress, a treating Board-certified orthopedic
surgeon, noted that appellant had a lumbar fusion as a result of an employment-related back
problem. He stated that her “lumbar fusion predisposes her to increase stresses mechanically
above the site of fusion and increases her difficulty with related stress and arthritis developing.”
Dr. Childress advised that appellant’s back problems had increased with age and the lumbar
fusion. He opined that she continued to have residuals of her back injury and required medical
treatment.
By decision dated September 8, 2006, the Office hearing representative affirmed the
termination of appellant’s compensation benefits.
On June 14, 2007 appellant requested reconsideration.
By decision dated August 9, 2008, the Office denied appellant’s request for
reconsideration of the merits as she had not submitted any evidence or argument with her
request.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.2 The employee shall exercise this right through a request to the district Office. The

1

5 U.S.C. § 8101 et seq.

2

Id. at § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

2

request, along with the supporting statements and evidence, is called the application for
reconsideration.3
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.4
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.5 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.6
ANALYSIS
On June 14, 2007 appellant requested reconsideration. However, she did not submit any
evidence or arguments with her request. Because appellant did not raise new arguments or
present new evidence that the Office erroneously applied or interpreted a specific point of law;
advance any relevant legal arguments not previously considered by the Office; or present any
relevant and pertinent new evidence not previously considered by the Office, she is not entitled
to further review of the merits of her claim under any of the criteria of section 10.606(b)(2).7
As appellant did not meet any of the regulatory requirements for review of the merits of
his claim, the Board finds that the Office properly denied her June 14, 2007 request for
reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review of
her claim pursuant to section 8128.

3

20 C.F.R. § 10.605.

4

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

5

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

6

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

7

Id. at § 10.606(b)(2); see W.C., 59 ECAB ___ (Docket No. 07-2257, issued March 5, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 9, 2007 is affirmed.
Issued: December 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4