United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Leavenworth, KS, Employer
__________________________________________

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

Docket No. 11-1866
Issued: April 4, 2012

Case Submitted on the Record

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

JURISDICTION
On August 9, 2011 appellant filed a timely appeal of the February 11, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error.1 Because more than 180 days elapsed between the most recent merit decision dated
August 7, 2009 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
this case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.

1

The Board notes that appellant also appealed an April 26, 2011 OWCP decision. The Board concludes,
however, that the April 26, 2011 OWCP document is an informational letter and does not purport to be a final
adverse decision. See 20 C.F.R. § 501.3(a). In this letter, OWCP advised appellant that it had enclosed a copy of its
February 11, 2011 decision which denied his request for reconsideration in response to his inquiry regarding the
status of his reconsideration request.
2

5 U.S.C. § 8101 et seq.

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 contends that the medical evidence of record is sufficient to
establish that his continuing total disability was due to his accepted employment injuries.
FACTUAL HISTORY
On October 6, 2005 appellant, then a 52-year-old letter carrier, filed a traumatic injury
claim alleging that on October 5, 2005 he hurt his back, neck, right and left shoulders and right
knee when a wheel came off the motor vehicle he was driving back to the employing
establishment.3 The vehicle tilted to the left, skidded to the right and hit a curb. OWCP
accepted appellant’s claim for a sprain/strain of the lumbar region and neck with aggravation of
lumbar degenerative disc disease.
On February 24, 2006 appellant filed a claim for a recurrence of disability on
February 22, 2006. In a March 31, 2006 decision, OWCP denied his recurrence claim, finding
that the medical evidence of record was insufficient to establish that he became totally disabled
commencing February 22, 2006 due to his accepted employment-related injuries.
On April 7, 2006 the employing establishment placed appellant on administrative leave
for unacceptable conduct as an investigation by the Office of Inspector General and workers’
compensation analysts revealed that he performed activities that exceeded his medical
restrictions and had provided false information in an official investigation regarding the filing of
his February 24, 2006 recurrence claim. Appellant was removed from employment on
September 9, 2006 for unacceptable conduct.
In a November 20, 2006 decision, OWCP terminated appellant’s wage-loss compensation
effective February 22, 2006 on the grounds that he no longer had any disability causally related
to the accepted employment injuries. It did not terminate his medical benefits.
A July 19, 2006 x-ray report of Dr. Jack W. Snarr, a Board-certified radiologist, stated
that there was evidence of appellant’s prior accepted right wrist condition.
In medical reports dated November 21, 2006 to December 28, 2010,
Dr. Sushmita Veloor, an attending Board-certified physiatrist, advised that appellant’s ongoing
3

Prior to the instant claim, OWCP accepted appellant’s claim filed under OWCP File No. xxxxxx969 for right
wrist and arm strains sustained on July 23, 2001 and authorized bilateral carpal tunnel release which was performed
on October 25, 2002. It later accepted his claim filed under OWCP File No. xxxxxx686 for bilateral carpal tunnel
syndrome and right scapholunate ligament tear sustained on July 17, 2002 and authorized scaphotrapeziotrapezoid
joint fusion which was performed on September 6, 2002. By decision dated January 6, 2004, OWCP granted
appellant a schedule award for 23 percent impairment of the right upper extremity. On May 13, 2005 it granted him
a schedule award for 14 percent impairment of the left upper extremity. In an October 5, 2007 decision, the Board
affirmed a February 27, 2007 OWCP decision which denied appellant’s claim for an additional schedule award for
permanent impairment of the right and left upper extremities. Docket No. 07-979 (issued October 5, 2007).

2

low back pain was secondary to underlying lumbar degenerative disc disease with spinal stenosis
at L4-5. Appellant also had mid-back pain that was most likely secondary to thoracic paraspinal
muscle strain or possibly due to a combination of thoracic facet joint arthropathy, spondylosis
and degenerative disc disease. He had right knee pain that was most likely secondary to
osteoarthritis. Dr. Veloor advised that the decline in appellant’s functional status was secondary
to the stated diagnoses. In reports dated July 9 and August 27, 2007 and January 23, 2009, he
stated that appellant could not work due to moderate-to-severe pain, which limited his mobility
and lumbar range of motion.
In a June 28, 2006 report, Dr. Marlin J. Fugate, a Board-certified radiologist, advised that
magnetic resonance imaging (MRI) scans of revealed findings that were compatible with
minimal-to-mild degenerative changes throughout the cervical spine that were most pronounced
involving the mid-to-lower cervical spine. He also found mild-to-moderate degenerative
changes throughout the lumbar spine which were most pronounced at L4-5. The findings
appeared to be grossly unchanged compared to a prior lumbar study.
In a March 15, 2007 report, Dr. James K. Fisher, a Board-certified radiologist, advised
that a lumbar MRI scan revealed multilevel degenerative bulging discs causing slight canal
narrowing that were most prominent at L4-5 and L3-4. He stated that a herniated disc was not
seen.
On April 26, 2007 Dr. John D. Ebeling, a Board-certified neurosurgeon, noted appellant’s
continued complaint of lumbar discomfort. He reported stable findings on physical examination
and on review of MRI scan results. Dr. Ebeling advised that, even with a successful fusion,
appellant would still have significant pain syndrome.
In a July 17, 2007 report, Dr. J. Douglas Gardner, a Board-certified internist, advised that
appellant had back pain following his October 5, 2005 employment injuries.
On January 17, 2008 Dr. Louis J.K. Pau, a Board-certified anesthesiologist, advised that
appellant had low back pain, bilateral lower extremity neuropathic pain, a moderate disc bulge
with slight canal narrowing at L4-5 and bilateral cervicalgia.
A June 7, 2008 hospital emergency room report from Stormont Vail Health Center
provided a history that appellant fell on a waxed floor. Appellant was diagnosed as having right
wrist and left hip contusions. He was discharged to work.
In x-ray reports dated June 7, 2008, Dr. Curtis P. Schworm, a Board-certified radiologist,
advised that appellant’s left hip was normal and there was no acute fracture of his right wrist. In
a February 18, 2010 report, he stated that an MRI scan revealed degeneration of the lumbar
intervertebral discs that were most marked in the lower lumbar spine. There was also an element
of broad-based disc bulging mostly marked at L4-5, slightly greater on the left and unchanged on
the right. There was unchanged minimal broad-based disc bulging at the L3-4 level.
On July 31, 2009 OWCP granted appellant a schedule award for 17 percent impairment
of the right lower extremity and 5 percent impairment of the left lower extremity. The award ran
from March 23 to June 9, 2010. OWCP determined that appellant’s compensation should be
paid at the rate of statutory 66 2/3 percent. In an August 7, 2009 schedule award decision, it
3

corrected his pay rate from two-thirds to the three-fourths rate of pay for employees with
dependents.
On June 11, 2010 appellant requested that OWCP reinstate his wage-loss compensation
since his schedule award had been paid. He also requested that it issue a formal decision on his
recurrence claim, contending that his dismissal for cause had been overturned by the Merit
Systems Protection Board (MSPB). Appellant advised OWCP that he had been reinstated and
returned to work at a lower pay rate based on the decision.
A notification of personnel action (PS Form 50) dated April 16, 2008 and accompanying
history corrected a prior PS Form 50 to reflect that appellant voluntarily resigned from the
employing establishment on September 9, 2006 in accordance with a November 30, 2007 MSPB
settlement agreement.
A July 22, 2010 report of Janelle Williamson, a registered nurse, stated that appellant had
carpal tunnel syndrome, bilateral leg pain and knee and lower leg osteoarthritis and lumbar
stenosis.
On August 23, 2010 Dr. Veloor performed an electromyogram (EMG) and nerve
conduction study (NCS) scans, which revealed no findings suggestive of acute radiculopathy.
There was evidence of mild peripheral sensory neuropathy in the bilateral lower extremities.
By letter dated January 25, 2011, OWCP advised appellant that, although his appeal
rights accompanying its November 20, 2006 termination decision had expired, he was still
entitled to a request for reconsideration of that decision. It would consider the evidence
submitted to determine whether it established clear evidence of error on the part of OWCP in the
termination decision.
In a February 1, 2011 letter, appellant requested reconsideration of the November 20,
2006 OWCP decision.4
In a February 11, 2011 decision, OWCP denied appellant’s February 1, 2011 request for
reconsideration, without a merit review, on the grounds that it was not timely filed and failed to
establish clear evidence of error in the last relevant merit decision dated November 20, 2006.5

4

Appellant actually sought reconsideration of a January 25, 2011 “decision.” The Board concludes, however,
that the January 25, 2011 letter is not an OWCP decision. The document is an informational letter and, thus, does
not purport to be a final adverse decision. See 20 C.F.R. § 501.3(a). As stated, in this letter, OWCP advised
appellant that it would review the evidence of record to determine whether it established clear evidence of error in
the November 20, 2006 termination decision.
5

On appeal, appellant has submitted new evidence. However, the Board cannot consider evidence that was not
before OWCP at the time of the final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

4

LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle a claimant to a review of an OWCP decision
as a matter of right.7 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of its implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of the OWCP decision for which review is sought.8
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.9
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.10 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.11 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 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.14
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 decision.15 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.16
6

5 U.S.C. § 8128(a).

7

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

8

20 C.F.R. § 10.607(a).

9

Id. at § 10.607(b).

10

Nancy Marcano, 50 ECAB 110, 114 (1998).

11

Leona N. Travis, 43 ECAB 227, 241 (1991).

12

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

13

Leona N. Travis, supra note 11.

14

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

15

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

16

Thankamma Mathews, 44 ECAB 765, 770 (1993).

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ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. The
Board’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original OWCP decision.17 However, a right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.18
On February 1, 2011 appellant requested reconsideration of the termination of his wageloss compensation. OWCP rendered its most recent merit decision on November 20, 2006. As
appellant’s February 1, 2011 letter requesting reconsideration of the merits of his claim by
OWCP was made more than one year after the November 20, 2006 merit decision,19 the Board
finds that it was not timely filed.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP in the issuance of the November 20, 2006 decision. Dr. Veloor’s reports and
EMG and NCS study addressed appellant’s ongoing lumbar, thoracic and bilateral lower
extremity conditions. He opined that appellant was unable to work on intermittent dates between
July 9, 2007 and January 23, 2009. Dr. Veloor opined generally that appellant was disabled, but
failed to address how his disability was causally related to residuals of the October 5, 2005
employment injuries. The Board finds that Dr. Veloor’s reports and EMG and NCS study do not
show that OWCP committed an error or raise a substantial question concerning the correctness of
OWCP’s decision terminating appellant’s wage-loss compensation.20 As noted earlier, it is not
enough merely to show that the evidence could be construed so as to produce a contrary
conclusion.21
None of the other medical evidence submitted by appellant in support of his untimely
reconsideration request established clear evidence of error on the part of OWCP or raised a
substantial question concerning the correctness of OWCP’s termination decision. The reports by
Dr. Snarr and those from Dr. Gardner, Dr. Pau and Stormont Vail Health Center and the
diagnostic test results from Dr. Fugate, Dr. Fisher and Dr. Schworm addressed appellant’s
cervical, lumbar, left hip, right wrist, bilateral knee and leg conditions and right wrist surgery.
This evidence did not raise a substantial question accepted conditions. The Board finds,
therefore, that appellant did not discharge his burden of showing clear evidence of error.22
17

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

18

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

19

Appellant had one year to request reconsideration by OWCP of its November 20, 2006 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).
20

Evidence, such as a detailed were rationalized medical reports, that if submitted timely, could have created a
conflict of medical opinion, is insufficient to establish clear evidence of error. Annie L. Billingsley, 50 ECAB
210 (1998).
21

Leona N. Travis, supra note 11.

22

F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the claim
was denied is insufficient to demonstrate clear evidence of error).

6

The report by Nurse Williamson is of no probative value as a nurse if not a physician as
defined in FECA.23 Thus, her reports do not prima facie shift the weight in favor of appellant to
demonstrate clear evidence of error on the part of OWCP in the issuance of its November 20,
2006 decision.
The April 16, 2008 PS Form 50 and history noted a correction of appellant’s reason for
leaving the employing establishment on September 9, 2006. These documents do not raise a
substantial question as to the correctness of OWCP’s termination decision. They relate to an
incident that occurred after appellant stopped working for the employing establishment and do
not pertain to the termination of his wage-loss compensation.
The Board finds that the evidence submitted by appellant in support of his untimely
request for reconsideration does not constitute positive, precise and explicit evidence, which
manifests on its face that OWCP committed an error. Therefore, appellant failed to meet his
burden of proof to show clear evidence of error on the part of OWCP.
On appeal, appellant contended that the medical evidence established that his continuing
total disability was causally related to the employment-related lumbar and cervical injuries. As
discussed above, the medical evidence was not sufficient to shift the weight of the evidence in
his favor and raise a substantial question as to the correctness of OWCP’s decision terminating
his wage-loss compensation.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

23

5 U.S.C. § 8101(2).

7

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, PORTSMOUTH POST
OFFICE, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 20-1012
Issued: August 10, 2021

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 April 10, 2020 appellant filed a timely appeal from March 20 and April 2, 2020 merit
decisions 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.2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to reduce appellant’s wageloss compensation, effective January 10, 2020, based on his actual earnings as a probation and
parole officer; (2) whether appellant received an overpayment of compensation in the amount of
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 2, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

$2,400.23 for the period January 10 through February 1, 2020, for which he was without fault,
because he continued to receive compensation following his return to work; and (3) whether
OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On May 26, 2010 appellant, then a 37-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his left lower extremity when he fell when
descending stairs while in the performance of duty. He stopped work on that date. OWCP
accepted the claim for left lateral collateral ligament knee sprain, left cruciate ligament knee sprain,
left knee tear of the medial meniscus, left knee internal derangement, left metatarsophalangeal
sprain of the foot, sprain of the lumbosacral joint and ligament, gait abnormality, right foot sprain,
and right knee and leg sprain. It paid appellant wage-loss compensation on the supplemental rolls
as of July 12, 2010 and on the periodic rolls as of February 13, 2011.
On February 5, 2014 OWCP referred appellant to Dr. Edward Gold, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a report dated February 26, 2014, Dr. Gold
indicated that appellant could return to full-time work with restrictions of no pushing, pulling, or
lifting of more than 35 pounds and limited kneeling, bending, and squatting. In an accompanying
work capacity evaluation for musculoskeletal conditions (Form OWCP-5c), Dr. Gold determined
that appellant’s restrictions were permanent and that maximum medical improvement (MMI) had
been reached.
On March 4, 2014 OWCP referred appellant for vocational rehabilitation to find a suitable
position within the restrictions provided by Dr. Gold on February 26, 2014.
On August 13, 2014 a vocational rehabilitation counselor conducted a labor market survey
for employment as a substance abuse counselor and school counselor within appellant’s
commuting area. In a proposal for a training plan of the same date, the vocational rehabilitation
counselor proposed that appellant undergo two years of college training to secure an associate’s
degree in human services. The proposed training plan would begin on August 19, 2014 and
continue through May 15, 2016.
In a February 22, 2015 report, the vocational rehabilitation counselor noted that appellant
had been in classes for three weeks and had obtained an internship with the Virginia Department
of Probation and Parole. In a March 23, 2015 report, the vocational rehabilitation counselor noted
that appellant was training for work as a substance abuse counselor, probation officer, or
Department of Veterans Affairs (VA) case manager, as sponsored by the VA.
On May 31, 2016 the vocational rehabilitation counselor recommended, at appellant’s
request, an extension of his training status to secure a bachelor’s degree in social work beginning
August 2016 with a completion date of December 2018. The vocational rehabilitation counselor
noted that appellant had graduated with an associate’s degree in human services as of May 1, 2016.
In a report dated September 24, 2016, the vocational rehabilitation counselor noted that the
plan for appellant to extend his training to secure a bachelor’s degree, with classes beginning
August 29, 2016, had been approved.

2

In a rehabilitation action report dated September 6, 2019, the vocational rehabilitation
counselor noted that appellant completed his training program on May 31, 2019 and received a
Bachelor of Arts degree majoring in criminal justice. He completed a classification form (Form
CA-66) dated June 15, 2019 for the position of probation parole officer. The position was
sedentary and required no kneeling, stooping, or crouching. The vocational rehabilitation
counselor advised that appellant met the specific vocational preparation required for this position
based on his prior office experience. He opined that the position was reasonably available within
appellant’s commuting area, noting labor market review and offerings posted on a Virginia
Government job listing web site. The vocational rehabilitation counselor advised that the weekly
wage for this position was $812.25 and that the source for this wage data was Virginia Vital
Information for Education and Work, obtained on June 15, 2019.
On October 14, 2019 OWCP referred appellant to Dr. James Schwartz, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a report dated November 22, 2019,
Dr. Schwartz indicated that appellant was capable of working eight hours per day in a sedentary
position. In an attached Form OWCP-5c, he indicated: appellant had permanent sedentary work
restrictions including walking, standing, and bending/stooping no more than 2 hours per day; and
pushing, pulling, and lifting no more than 10 pounds for 3 hours per day. Dr. Schwartz indicated
that appellant had reached MMI.
In a job offer dated December 18, 2019, the Commonwealth of Virginia’s Department of
Corrections offered appellant a position as a probation and parole officer, effective
January 10, 2020. His semi-monthly salary offer was $1,572.54, which converted to an annual
salary of $37,741.00.
On January 10, 2020 appellant began full-time employment as a probation and parole
officer with the Commonwealth of Virginia’s Department of Corrections.
In an automated compensation payment system form dated January 30, 2020, OWCP
calculated that appellant received an overpayment in the amount of $2,400.23 for the period
January 10 through February 1, 2020.3
By letter dated February 27, 2020, OWCP advised appellant of its preliminary
determination that he received an overpayment of compensation in the amount of $2,400.23
because he received wage-loss compensation for total disability for the period January 10 through
February 1, 2020 after he had returned to full-time work. It also made a preliminary finding that
he was without fault in the creation of the overpayment as there was no evidence in the case file
to demonstrate that he knew, or should have known, the proper course of action to be followed.
OWCP advised appellant that he could submit evidence challenging the fact, amount, or finding
of fault, and request waiver of recovery of the overpayment. It requested that he complete an
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. Additionally, OWCP provided an overpayment action request form and notified

3
The case record reflects that from January 5 through February 1, 2020 appellant received a periodic rolls net
payment of $2,922.02.

3

appellant that, within 30 days of the date of the letter, he could request a final decision based on
the written record, or a prerecoupment hearing. No response was received.
In an e-mail dated March 19, 2020, the employing establishment informed OWCP that
appellant’s pay rate for his date-of-injury position at the employing establishment was $27.17 per
hour, which converted to an annual salary of $56,508.00.
By decision dated March 20, 2020, OWCP found that appellant was able to perform the
duties of the position of probation and parole officer and reduced his compensation effective
January 10, 2020. It found that the weight of medical evidence with regard to appellant’s work
restrictions rested with Dr. Gold and that the physical requirements of the position did not exceed
appellant’s limitations. OWCP found that the position of probation and parole officer fairly and
reasonably represented appellant’s wage-earning capacity based upon the wages actually earned.
It stated that appellant was entitled to compensation from January 10, 2020 based upon his actual
earnings at that time. OWCP calculated that his gross compensation rate should be adjusted to
$1,182.00 every four weeks. It indicated that appellant’s salary as of July 12, 2010, the date he
stopped working, was $1,050.37 per week; that his current adjusted pay rate for his job on the date
of injury was $1,086.80; and that he was currently capable of earning $725.79 per week, the rate
of a probation and parole officer. OWCP, therefore, determined that appellant had a 67 percent
wage-earning capacity, which when multiplied by 75 percent, amounted to a weekly compensation
rate, with cost-of-living adjustments, of $295.50, and a new compensation rate every four weeks
of $1,182.00. Appellant’s loss of wage-earning capacity (LWEC) per week was calculated as
$346.62. OWCP found that his current adjusted net compensation rate “each four weeks” was
$545.62.
By decision dated April 2, 2020, OWCP finalized the preliminary overpayment
determination, indicating that appellant had received an overpayment of compensation in the
amount of $2,400.23 for the period January 10 through February 1, 2020. It further found that he
was not at fault in the creation of the overpayment because he received a compensation payment
deposited by electronic funds transfer (EFT) and less than 30 days had elapsed since the EFT
deposit was made, which did not allow ample time to receive and review a statement from his
financial institution showing the details of the improper payment. OWCP noted that appellant had
not responded to its preliminary overpayment determination and, thus, there was no evidence to
support that the overpayment should be waived. It ordered that he should repay the overpayment
in its entirety.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of FECA provides that, in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by the employee’s actual earnings if the
actual earnings fairly and reasonably represent the employee’s wage-earning capacity.4 Generally,
wages actually earned are the best measure of a wage-earning capacity, and in the absence of

4

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

4

showing that they do not fairly and reasonably represent the injured employee’s wage-earning
capacity, must be accepted as such a measure.5
OWCP’s procedures state that, after a claimant has been working for 60 days, it will make
a determination as to whether actual earnings fairly and reasonably represent wage-earning
capacity.6 The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Albert C. Shadrick decision,7 has been codified at section 10.403 of OWCP
regulations. OWCP first calculates an employee’s wage-earning capacity in terms of percentage
by dividing the employee’s earnings by the current pay rate for the date-of-injury position.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective January 10, 2020, based on his actual earnings as a probation and parole
officer, which fairly and reasonably represented his wage-earning capacity.9
The record reflects that Drs. Gold and Schwartz provided permanent work restrictions that
prohibited appellant from performing the duties of his date-of-injury position as a letter carrier.
They advised that appellant could still perform sedentary full-time work.
OWCP properly determined that appellant had the physical capacity to perform the duties
of a probation and parole officer. The position was classified as sedentary and required no
kneeling, stooping, or crouching. The restrictions of Drs. Gold and Schwartz fall within these
sedentary work requirements. There is no contradictory medical evidence of record. The Board,
therefore, finds that the weight of the medical evidence, as represented by Drs. Gold and Schwartz,
establishes that appellant had the physical capacity to perform the duties of the actual earnings
position.10
The record reflects that appellant obtained a bachelor’s degree majoring in criminal justice
during the course of his vocational rehabilitation. This degree and his prior office experience
established that he had the requisite physical ability, skill, and experience to perform the position
of probation and parole officer. Appellant obtained employment as a probation and parole officer
5

Lottie M. Williams, 56 ECAB 302 (2005).

6

See L.J., Docket No. 14-0970 (issued August 21, 2014); Federal (FECA) Procedure Manual, Part 2-- Claims,
Determining Wage-Earning Capacity Based on Actual Earnings, Chapter 2.815.2(b) (June 2013).
7

5 ECAB 376 (1953); 20 C.F.R. §§ 10.403(d)-(e).

8

See 20 C.F.R. § 10.403(d). The pay rate for compensation purposes is then multiplied by the wage-earning
capacity percentage. This amount is subtracted from the pay rate for compensation purposes to determine the loss of
wage-earning capacity. Id. at § 10.403(e). The Board notes that under FECA, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time of the injury, i.e., an
impairment resulting in an LWEC. See generally, Y.O., Docket No. 16-1886 (issued February 24, 2017); Prince W.
Wallace, 52 ECAB 357 (2001).
9

See S.C., Docket No. 19-1680 (issued May 27, 2020); B.B., Docket No. 16-1814 (issued April 6, 2017).

10

See C.H., Docket No. 19-0136 (issued May 23, 2019).

5

with the Commonwealth of Virginia and began work on January 10, 2020 with a biweekly actual
earnings of $1,572.54, which converted to an annual salary of $37,741.00. Appellant had worked
in the position for more than 60 days, from January 10 until March 20, 2020 when OWCP
determined that appellant’s actual earnings fairly and reasonably represented his wage-earning
capacity. OWCP utilized appellant’s actual earnings as a probation and parole officer and properly
found that these earnings fairly and reasonably represented his wage-earning capacity.11
The Board finds that OWCP properly applied the Shadrick formula, as codified in section
10.403 of its regulations,12 in determining appellant’s LWEC. OWCP calculated that his gross
compensation rate should be adjusted to $1,182.00 every four weeks using the Shadrick formula.
It indicated that appellant’s salary as of July 12, 2010, the date he stopped working, was $1,050.37
per week; that his current adjusted pay rate for his job on the date of injury was $1,086.80; and
that he was currently capable of earning $725.79 per week, the rate of a probation and parole
officer. OWCP, therefore, determined that appellant had 67 percent wage-earning capacity, which
when multiplied by 75 percent, amounted to a weekly compensation rate, with cost-of-living
adjustments, of $295.50. Appellant’s LWEC per week was calculated as $346.62. OWCP found
that his current adjusted net compensation rate every four weeks was $545.62. It properly applied
the Shadrick formula in calculating appellant’s LWEC and properly found that his actual earnings
in the position of probation and parole officer fairly and reasonably represented his wage-earning
capacity.13
OWCP properly found that appellant was no longer totally disabled from work as a result
of his accepted condition and it followed established procedures for determining his employmentrelated loss of wage-earning capacity. The Board, therefore, finds that OWCP met its burden of
proof to reduce appellant’s compensation in its March 20, 2020 LWEC determination.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.14 Section 8129(a) of FECA provides, in pertinent part, that when
an overpayment has been made to an individual under this subchapter because of an error of fact
or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.15
Section 10.500 of OWCP’s regulations provides that compensation for wage loss due to
disability is available only for periods during which an employee’s work-related medical condition

11

Supra note 4.

12

Supra notes 7-8.

13

Supra notes 6-7; see A.M., Docket No. 14-0161 (issued May 13, 2014).

14

5 U.S.C. § 8102(a).

15

Id. at § 8129(a).

6

prevents him or her from earning the wages earned before the work-related injury.16 A claimant
is not entitled to receive temporary total disability (TTD) benefits and actual earnings for the same
time period.17 OWCP’s procedures provide that an overpayment of compensation is created when
a claimant returns to work, but continues to receive wage-loss compensation for TTD.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period January 10 through February 1, 2020, for which he was without
fault, because he continued to receive compensation following his return to work.
The evidence of record establishes that appellant returned to work as a probation and parole
officer as of January 10, 2020, but he continued to receive wage-loss compensation for total
disability through February 1, 2020. As noted above, a claimant is not entitled to receive
compensation for total disability during a period in which he had actual earnings. Thus, an
overpayment of compensation was created in this case.19
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of the overpayment.
After OWCP issued its February 27, 2020 preliminary overpayment determination, but
before it finalized its overpayment determination on April 2, 2020, it reduced appellant’s
entitlement to compensation based upon his actual earnings as a probation and parole officer by
decision dated March 20, 2020. In this LWEC determination, it found that appellant remained
entitled to compensation from January 10, 2020 based upon his actual earnings. However, in its
finalized overpayment determination dated April 2, 2020, OWCP did not consider that appellant
remained entitled to a portion of his compensation based on the retroactive LWEC.20 Instead, it
calculated the overpayment amount as though appellant were entitled to zero compensation for the
period after he returned to work as a probation and parole officer on January 10, 2020.
As OWCP did not consider the intervening reduction in appellant’s entitlement to
compensation based on LWEC in its finalized overpayment decision of April 2, 2020, the Board
is unable to determine the proper amount of overpayment for the period January 10 through
February 1, 2020. A claimant is entitled to an overpayment decision that clearly explains how the
16

20 C.F.R. § 10.500(a).

17

See L.T., Docket No. 19-1389 (issued March 27, 2020); C.H., Docket No. 19-1470 (issued January 24, 2020);
L.S., 59 ECAB 350, 352-53 (2008).
18

L.T., id.; C.H., id.; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating
an Overpayment, Chapter 6.200.1(a) (September 2018).
19
See E.R., Docket No. 19-1365 (issued December 23, 2019); J.L., Docket No. 18-1266 (issued February 15, 2019);
K.E., Docket No. 18-0687 (issued October 25, 2018); B.H., Docket No. 09-0292 (issued September 1, 2009); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.1(a)
(September 2018).
20

See D.H., Docket No. 16-0128 (issued April 8, 2016).

7

amount was calculated.21 The Board, therefore, finds that OWCP has not established the amount
of the overpayment in question.
The case will be remanded to OWCP for recalculation of the amount of the overpayment,
to be followed by a new preliminary notice of overpayment and a de novo overpayment decision.
CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant’s wage-loss
compensation, effective January 10, 2020, based on his actual earnings as a probation and parole
officer. The Board further finds that OWCP properly determined that an overpayment of
compensation was created for the period January 10 through February 1, 2020, for which he was
without fault; however, the Board finds that the case is not in posture for decision regarding the
amount of the overpayment.22

21

See M.M., Docket No. 17-0560 (issued August 23, 2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see
also O.R., 59 ECAB 432 (2008).
22

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

8

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed, and the April 2, 2020 decision of OWCP is
affirmed in part and set aside in part and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 10, 2021
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, ROMEOVILLE POST
OFFICE, ROMEOVILLE, IL, Employer
__________________________________________

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

Docket No. 20-1234
Issued: January 27, 2022

Case Submitted on the Record

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

JURISDICTION
On June 1, 2020 appellant, through counsel, filed a timely appeal from an April 20, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award .
FACTUAL HISTORY
On July 5, 2016 appellant, then a 37-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed carpal tunnel syndrome due to factors of her federal
employment. She noted that she first became aware of her condition and its relationship to her
federal employment on April 27, 2016. Appellant stopped work on June 29, 2016. On
September 9, 2015 OWCP accepted her claim for carpal tunnel syndrome of the left upper limb.
It paid appellant wage-loss compensation on the supplemental rolls beginning
September 17, 2016.
Appellant underwent OWCP-authorized left carpal tunnel release on October 17, 2016.
Appellant returned to full-duty work on March 4, 2017.
On August 28, 2017 appellant filed a claim for compensation (Form CA-7) a schedule
award.
In a March 16, 2018 report, Dr. Neil Allen, a Board-certified internist and neurologist,
reviewed appellant’s medical history and provided findings on physical examination. He noted
that she experienced numbness and tingling in her left hand and opined that she had reached
maximum medical improvement (MMI). Dr. Allen found that appellant had full muscle strength
in her left and right hands. He provided a permanent impairment rating for the left wrist utilizing
Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449 of th e sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 Dr. Allen determined that appellant’s condition fell under grade modifier 1
for test findings, grade modifier 3 for history, and grade modifier 2 for physical findings. He
reported a QuickDASH score of 59 for the functional scale portion of Table 15-23 and concluded
that she had a total of five percent permanent impairment of the left upper extremity.
On July 13, 2018 OWCP referred appellant’s case, along with a statement of accepted facts
(SOAF), for a schedule award impairment rating with Dr. David Slutsky, a Board-certified
orthopedic surgeon serving as the district medical adviser (DMA). In a July 29, 2018 report,
Dr. Slutsky reviewed the medical record and SOAF. He disagreed with Dr. Allen’s March 16,
2018 impairment rating report, noting that appellant’s electromyography (EMG) and nerve
conduction velocity (NCV) study findings did not meet the criteria for carpal tunnel syndrome
impairment under the A.M.A., Guides. Accordingly, Dr. Slutsky utilized the diagnosis-based
impairment (DBI) method of the A.M.A., Guides. He identified the class of diagnosis (CDX) as
a class one impairment for the diagnosis of wrist sprain/strain under Table 15 -3, page 395.
Dr. Slutsky found that a grade modifier for functional history (GMFH) was not applicable , in
accordance with Table 15-7, page 406, as appellant had no documented wrist pain. He assigned a
3

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

2

grade modifier for physical examination (GMPE) of zero, in accordance with Table 15 -8, page
408, as she had no palpatory findings. Dr. Slutsky reported a grade modifier for clinical studies
(GMCS) of zero in accordance with Table 15-9, page 410, as there were no imaging studies. He
calculated that appellant had a net adjustment of -1, resulting in movement from the default value
of C to B and corresponding to zero percent upper extremity impairment. Dr. Slutsky noted that a
rating under the range of motion (ROM) methodology could not be calculated as validated upper
extremity measurements of the wrist were not performed. He opined that appellant reached MMI
on March 16, 2018.
On August 8, 2018 appellant was referred for a second opinion examination with Dr. Allan
Brecher, a Board-certified orthopedic surgeon. In a September 7, 2018 report, Dr. Brecher
reviewed the medical record and SOAF. He examined appellant and noted wrist dorsiflexion of
72 degrees, palmar flexion of 82 degrees, radial deviation of 20 degrees, and ulnar deviation of 31
degrees on the left compared to 74, 82, 24, and 38 degrees respectively on the right. Utilizing the
DBI method of the A.M.A., Guides, Dr. Brecher identified the CDX as a class one impairment for
the diagnosis of nonspecific wrist pain under Table 15-3. He noted that a GMFH was not
applicable, in accordance with Table 15-7, page 406, as appellant had no documented wrist pain.
Dr. Brecher assigned a GMPE of zero as she had no palpatory findings. He reported a GMCS of
zero as there were no imaging studies. Dr. Brecher indicated that appellant’s QuickDASH score
was 66 and found that appellant had a grade B, zero percent upper extremity impairment. He
opined that she reached MMI on March 16, 2018. Dr. Brecher noted that a rating under the ROM
methodology would also be zero percent. He agreed with Dr. Slutsky’s assessment that appellant
did not meet the criteria for carpal tunnel syndrome impairment under the A.M.A., Guides based
on her EMG study. Dr. Brecher opined that Dr. Allen’s March 16, 2018 impairment report was
not reliable as he did not perform a ROM rating or use two-point discrimination.
OWCP subsequently referred appellant’s case, along with a SOAF and the medical record,
to Dr. John Kung, a Board-certified orthopedic surgeon, for an impartial medical examination in
order to resolve the conflict in medical evidence between Drs. Allen and Brecher regarding her
permanent impairment of the left upper extremity. In a March 28, 2019 report, Dr. Kung reviewed
the medical record and SOAF. He examined appellant and noted wrist dorsiflexion of 65 degrees,
wrist flexion of 60 degrees, ulnar deviation of 35 degrees, and radial deviation of 20 degrees on
the left compared to 65, 65, 35, and 25 degrees respectively on the right. Dr. Kung agreed with
Drs. Brecher and Slutsky that she did not meet the criteria for carpal tunnel syndrome impairment
under the A.M.A., Guides based on her EMG/NCV study findings. He therefore disagreed with
Dr. Allen’s determination of five percent permanent upper extremity impairment. Utilizing the
DBI method of the A.M.A., Guides, Dr. Kung identified the CDX as a class one impairment for
the diagnosis of nonspecific wrist pain under Table 15-3. He found a GMFH of zero as appellant
had no functional issues. Dr. Kung assigned a GMPE of zero as she had no abnormal physical
findings and normal ROM. He reported a GMCS of zero as there were no clinical studies.
Dr. Kung calculated that appellant had a net adjustment of -3, resulting in movement from the
default value of C to A and corresponding to a zero percent upper extremity impairment rating.
He noted that a ROM impairment rating could not be used as her ROM was normal. Dr. Kung
concurred with Dr. Brecher’s assessment that appellant had a zero percent upper extremity
impairment rating.

3

By decision dated July 30, 2019, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body. It noted that the special weight of the medical evidence
rested with Dr. Kung, serving as the impartial medical examiner.
On August 7, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a letter dated November 4, 2019, appellant through counsel, requested a review of the
written record in lieu of an oral hearing.
By decision dated December 12, 2019, OWCP’s hearing representative affirmed the
July 30, 2019 decision.
OWCP subsequently received a December 10, 2019 addendum from Dr. Allen, who
reviewed the impairment rating reports from Drs. Slutsky and Brecher. Dr. Allen noted that, after
further review of appellant’s EMG findings, she did not qualify for impairment under the
entrapment/compression neuropathy method of the A.M.A., Guides. Utilizing the DBI method of
the A.M.A., Guides, he identified the CDX as a class one impairment for the diagnosis of left wrist
pain under Table 15-3, page 395. Dr. Allen found that a GMFH was not applicable, in accordance
with Table 15-7, page 406, as it varied by two or more from the GMCS. He assigned a GMPE of
2, in accordance with Table 15-8, page 408, as appellant had moderate palpatory findings and mild
thenar atrophy. Dr. Allen reported a GMCS of zero in accordance with Table 15-9, page 410, as
the EMG/NCV findings did not qualify for a diagnosis of carpal tunnel syndrome. He calculated
that appellant had a net adjustment of zero, resulting in no movement from the default value of C
and corresponding to a one percent left upper extremity impairment.
On January 8, 2020 appellant, through counsel, requested reconsideration.
On February 28, 2020 OWCP referred appellant’s case to Dr. Slutsky, the DMA, for
review of the newly submitted medical evidence. In an April 4, 2020 report, Dr. Slutsky reviewed
the SOAF and medical record, including Dr. Allen’s December 10, 2019 addendum. He noted
that Dr. Allen assigned a GMPE of 2 as he found that appellant had tenderness through the distal
third of the forearm. However, Dr. Slutsky disagreed with Dr. Allen’s determination as he did not
palpate her wrist or perform an adequate wrist examination which would document specific sites
of palpatory tenderness. He noted that Dr. Allen did not perform a Finkelstein’s test, a Watson’s
test, or a lunotriquetral ballottement test. Dr. Slutsky therefore concluded that Dr. Allen’s
impairment rating was not supportable under the A.M.A., Guides. He indicated that, if physical
examination findings were determined to be unreliable or inconsistent, they were to be ex cluded
from the grading process under section 15.3b, page 407. Accordingly, Dr. Slutsky found that
appellant had zero percent upper extremity impairment for the diagnosis of left carpal tunnel
syndrome which was rated as nonspecific wrist pain.
By decision dated April 20, 2020, OWCP again denied appellant’s schedule award claim,
finding that the medical evidence of record was insufficient to establish permanent impairment of
a scheduled member or function of the body. It based its determination on the opinion of the
DMA.

4

LEGAL PRECEDENT
The schedule award provisions of FECA, 4 and its implementing federal regulations, 5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall b e determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 7
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text. 8 In
Table 15-23, grade modifiers levels (ranging from 0 to 4) are described for the categories Test
Findings, History, and Physical Findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down based on functional scale, an assessment of impact on daily
living activities.9
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning Disability and Health
(ICF): A Contemporary Model of Disablement.10 Under the sixth edition, the evaluator identifies
the CDX, which is then adjusted by the GMFH, GMPE, and GMCS. 11 The net adjustment formula
is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Evaluators are directed to provide
reasons for their impairment rating, including the choice of diagnoses from regional grids and the
calculation of the modifier score. 13
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5.a. (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 449.

9

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
functional scale score. Id. at 448-49; see also J.H., Docket No. 19-0395 (issued August 10, 2020).
10

A.M.A., Guides 3, section 1.3(a).

11

Id. at 493-556.

12

Id. at 521.

13

E.W., Docket No. 19-1720 (issued November 25, 2020); R.R., Docket No. 17-1947 (issued December 19, 2018);
R.V., Docket No. 10-1827 (issued April 1, 2011).

5

shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.14 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.15 When there exists opposing reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight. 16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified. 17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP properly determined that a conflict in the medical opinion evidence existed between
Dr. Allen, appellant’s attending physician, and Dr. Brecher, OWCP’s referral physician, on the
issue of whether appellant had permanent impairment of a scheduled member due to her accepted
left carpal tunnel syndrome. It properly referred her case to Dr. Kung pursuant to 5 U.S.C.
§ 8123(a) for an impartial medical examination in order to resolve the conflict in medical
opinion.18
In a March 28, 2019 report, Dr. Kung noted that appellant did not meet the criteria for
carpal tunnel syndrome impairment under the A.M.A., Guides based on her EMG/NCV study
findings. He disagreed with Dr. Allen’s determination of five percent permanent upper extremity
impairment. Utilizing the DBI method of the A.M.A., Guides, Dr. Kung identified the CDX as a
class one impairment for the diagnosis of nonspecific wrist pain under Table 15 -3. He found a
GMFH of zero as appellant had no functional issues. Dr. Kung assigned a GMPE of zero as
appellant had no abnormal physical findings and normal ROM. He reported a GMCS of zero as
there were no clinical studies. Dr. Kung calculated that appellant had a net adjustment of -3,
resulting in movement from the default value of C to A and corresponding to zero percent upper
extremity impairment rating.
Dr. Kung’s opinion was based on a proper factual and medical history and on the
appropriate tables and grading schemes of the A.M.A., Guides. Accordingly, OWCP properly
14

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

15

20 C.F.R. § 10.321; see also R.C., 58 ECAB 238 (2006).

16

P.B., Docket No. 20-0984 (issued November 25, 2020); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J.
Godfrey, 52 ECAB 486 (2001).
17

See supra note 7 at Chapter 2.808.6(f) (March 2017).

18

See J.B., Docket No. 18-0116 (issued October 2, 2020).

6

accorded the special weight of the medical evidence to Dr. Kung’s March 28, 2019 report and
denied appellant’s schedule award claim. 19
Appellant subsequently submitted a December 10, 2019 addendum report from Dr. Allen.
Utilizing the DBI method of the A.M.A., Guides, Dr. Allen identified the CDX as a class one
impairment for the diagnosis of left wrist pain under Table 15-3, page 395. He found that a GMFH
was not applicable, in accordance with Table 15-7, page 406, as it varied by two or more from the
GMCS. Dr. Allen assigned a GMPE of2, in accordance with Table 15-8, page 408, as appellant
had moderate palpatory findings and mild thenar atrophy. He reported a GMCS of zero in
accordance with Table 15-9, page 410, as the EMG/NCV findings did not qualify for a diagnosis
of carpal tunnel syndrome. Dr. Allen calculated that appellant had a net adjustment of zero,
resulting in no movement from the default value of C and corresponding to a one percent left upper
extremity impairment.
In an April 4, 2020 report, the DMA, Dr. Slutsky, found that Dr. Allen’s impairment
evaluation was in error as he assigned a GMPE of 2 and disagreed with the physical examination
findings of Drs. Brecher and Kung. The DMA explained that Dr. Allen failed to palpate
appellant’s wrist or perform an adequate wrist examination which would document specific sites
of palpatory tenderness. He noted that Dr. Allen did not perform a Finkelstein’s test, a Watson’s
test, or a lunotriquetral ballottement test. The DMA properly concluded that Dr. Allen’s
impairment rating was not supportable under the A.M.A., Guides as physical examination findings
should be excluded from the grading process if they were determined to be unreliable or
inconsistent under section 15.3b, page 407. 20 The Board finds that the DMA properly explained
that Dr. Allen’s addendum was insufficient to establish permanent impairment of a scheduled
member or function of the body. 21
Appellant has submitted no other medical evidence in conformance with the A.M.A.,
Guides establishing permanent impairment of a scheduled member or function of the body. The
Board therefore finds that she has not met her burden of proof to establish her schedule award
claim.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

19

See V.G., Docket No. 19-1728 (issued September 2, 2020).

20

See A.M.A., Guides 407; J.H., supra note 9.

21

See N.T., Docket No. 20-0667 (issued November 25, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 27, 2022
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
& PLANT HEALTH INSPECTION SERVICE,
VETERINARY SERVICES, EASTERN
REGIONAL OFFICE, Raleigh, NC, Employer
__________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-1626
Issued: August 22, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On August 24, 2018 appellant, through counsel, filed a timely appeal from a May 21, 2018
decision of the Office of Workers’ Compensation Programs (OWCP).2 The Clerk of the Appellate
Boards docketed the appeal as No. 18-1626.
On July 12, 2012 appellant, then a 38-year-old veterinary medical officer, filed a traumatic
injury claim (Form CA-1) alleging that on July 9, 2012 she slipped and fell between an outdoor
stairway landing and a parking deck while in the performance of duty. She noted that she landed
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

Appellant timely requested oral argument before the Board. By order dated February 21, 2019, the Board
exercised its discretion and denied the request as the matter could be adequately addressed based on a review of the
case record. Order Denying Oral Argument, Docket No. 18-1626 (issued February 21, 2019).

on the right side of her body and experienced pain and numbness in her right arm between her
elbow and fingers. In her accompanying narrative statement, appellant reported that she had
experienced some degree of pain and numbness in her right arm between her elbow and hand since
her prior right upper extremity injury on September 16, 2002, which was accepted for reflex
sympathetic dystrophy (RSD), fractures, nerve damage, and multiple surgeries.3 She alleged that
the July 9, 2012 employment incident had aggravated her right arm symptoms such that she had
been experiencing difficulty with gripping and holding things in her right hand as well as driving.
On October 12, 2012 OWCP accepted appellant’s claim for abrasion or friction burn of the
right elbow, forearm, and wrist, as well as right upper limb RSD. On March 12, 2013 it placed
appellant on the periodic rolls after the employing establishment reported no further light duty was
available.
On November 7, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Alexander N. Dorman, a Board-certified orthopedic surgeon. Dr. Dorman reviewed the
statement of accepted facts (SOAF), including a description of appellant’s September 19, 2002
injury, diagnosis, medical, and procedural history. In a report dated December 12, 2014, he found
appellant could not return to her date-of-injury position due to her accepted condition of right
upper limb RSD, but could perform light-duty work.
On August 7, 2015 OWCP received an investigative memorandum from the employing
establishment including video surveillance of appellant jogging and reports that appellant had
competed in a triathlon on September 30, 2012 and in the Boston marathon in 2013. On
October 16, 2015 Dr. Dorman reviewed the investigative memorandum and determined that
appellant had no residuals of her accepted July 9, 2012 conditions.
By decision dated March 4, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits due to her July 9, 2012 employment injury effective March 6, 2016.
Appellant requested an oral hearing before an OWCP hearing representative. By decision dated
November 29, 2016, OWCP’s hearing representative affirmed the March 4, 2016 decision, finding
that appellant had no continuing disability or medical residuals due to her accepted employment
injuries of July 9, 2012.
Appellant requested reconsideration on November 28, 2017. On February 27, 2018
OWCP referred appellant to Dr. Howard B. Krone, a Board-certified orthopedic surgeon, for an
impartial medical examination. Dr. Krone found that appellant continued to experience RSD, but
that this condition was due only to her September 16, 2002 employment injury, with no residuals
or disability due to the July 9, 2012 employment injury.
By decision dated May 21, 2018, OWCP denied modification of the November 29, 2016
decision. It found that the special weight of the medical evidence was represented by Dr. Krone’s
reports, which established no ongoing disability or medical residuals due to the July 9, 2012
employment injury.

3

Appellant’s prior claim was assigned OWCP File No. xxxxxx356.

2

Pursuant to 20 C.F.R. § 501.2(c)(1), the Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Decisions on claims are
based on the written record, which may include forms, reports, letters, and other evidence of
various types such as photographs, videotapes, or drawings.4 Evidence may not be incorporated
by reference, nor may evidence from another individual’s case file be used.5 Evidence contained
in another of the claimant’s case files may be used, but a copy of that evidence should be placed
into the case file being adjudicated.6 All evidence that forms the basis of a decision must be in
that claimant’s case record.7
In adjudicating the present claim, File No. xxxxxx367, OWCP referenced the facts and
medical conclusions obtained from File No. xxxxxx356.8 However, it has not administratively
combined the two case records or incorporated the referenced evidence into the current case
record.9 The Board is therefore not in a position to make an informed decision regarding
appellant’s entitlement to FECA benefits.10
Furthermore, OWCP’s procedures provide that cases should be administratively combined
when correct adjudication of the issues depends on frequent cross-referencing between files.11 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.12
In the instant case, appellant filed a traumatic injury claim which OWCP assigned File No.
xxxxxx367 for a right upper extremity injury. OWCP thereafter terminated wage-loss
compensation and medical benefits effective March 6, 2016. Appellant’s prior claim for a right
upper extremity injury, to which OWCP assigned File No. xxxxxx356, is not presently before the
Board. The medical evidence of record in File No. xxxxxx367, begins July 9, 2012 and does not
contain prior medical evidence found in File No. xxxxxx356.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a)
(June 2011).
5

Id.; G.K., Docket No. 18-1594 (issued March 8, 2019).

6

Id.

7

Id.

8

G.K., supra note 5.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims , File Maintenance and Management, Chapter 2.400.8(c)
(February 2000) (cases should be combined when correct adjudication of the issues depends on frequent crossreferencing between files); G.K., supra note 5.
10

See G.K., supra note 5; C.R., Docket No. 17-1262 (issued May 21, 2018); K.P., Docket No. 15-1945 (issued
February 10, 2016); M.C., Docket No. 15-1706 (issued October 22, 2015).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).
12

Id.; D.L., Docket No. 18-0592 (issued February 6, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

3

For a full and fair adjudication, the case must be returned to OWCP to combine the current
case record with File No. xxxxxx356.13 Following this and other such further development as it
deems necessary, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the May 21, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further action consistent with
this order of the Board.
Issued: August 22, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

13

K.T., id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denver, CO, Employer
__________________________________________

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Appearances:
Paul D. Nicodin, for the appellant
Office of Solicitor, for the Director

Docket No. 11-2092
Issued: April 17, 2012

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 September 23, 2011 appellant, through her representative, filed a timely appeal from
an August 4, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for an employment-related injury and an August 25, 2011 nonmerit decision
denying her request for reconsideration. 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 and
nonmerits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that she
sustained a right knee condition in the performance of duty causally related to factors of her
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 25, 2011 OWCP decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

federal employment; and (2) whether OWCP properly refused to reopen her case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant, through her representative, contends that OWCP was not diligent in
filing evidence for her case as it failed to file additional reports by Dr. John Pak, a Boardcertified orthopedic surgeon, which she submitted with her request for reconsideration.
FACTUAL HISTORY
On September 21, 2010 appellant, then a 53-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that her right knee popped out of its joint due to factors of
her federal employment, including standing on concrete floors for 10 hours a day, six days a
week, entering and exiting a vehicle and sitting on a vehicle seat which was too low and caused
her knee to be too high and her leg not to be at a 90-degree angle. She first became aware of her
condition and attributed it to her federal employment on September 15, 2010. Appellant did not
stop work.
By letter dated September 24, 2010, OWCP requested additional factual and medical
information from appellant. It allotted her 30 days to submit additional evidence and respond to
its inquiries.
Subsequently, appellant submitted a position description with a note from the employing
establishment indicating that it concurred with her allegations because her duties involved
physical exertion including lifting trays that weigh up to 40 pounds, pushing hampers full of
these same trays of mail and parcels, pulling down mail from the carrier case, bending and
stooping.
In an October 25, 2010 report, Dr. Pak diagnosed patellofemoral chondrosis based on
x-rays of the right knee and a physical examination. He indicated that on September 15, 2010
appellant was at work delivering mail when she felt popping and catching sensations of her right
knee. Since that time her right knee continued to bother her and she had a difficult time standing
from a sitting position as well as with certain activities. Appellant denied any previous injury.
By decision dated December 29, 2010, OWCP denied the claim for compensation finding
that the medical evidence submitted was not sufficient to establish fact of injury. It found that
the medical evidence only contained a diagnosis of patellofemoral chondrosis which is “pain”
and pain is considered a symptom under FECA, not a diagnosis of a medical condition.
On January 27, 2011 appellant, through her representative, requested an oral hearing
before an OWCP hearing representative and submitted hospital reports related to a right eye
injury on November 24, 2010.
A video hearing was held before an OWCP hearing representative on June 8, 2011.
Appellant testified that she never missed work due to her right knee condition. Although her
right knee was in pain, she continued to work every day, with the exception of leaving for a few
hours to see a doctor or attend physical therapy. The hearing representative held the record open
for 30 days for the submission of additional evidence.

2

By decision dated August 4, 2011, OWCP’s hearing representative affirmed and
modified the December 29, 2010 decision finding that patellofemoral chondrosis was a diagnosis
which was known to cause knee pain; however, the medical evidence was not sufficient to
establish causal relationship between the diagnosed condition and the implicated employment
factors.
On August 16, 2011 appellant, through her representative, requested reconsideration,
indicating that she enclosed additional reports by Dr. Pak.
By decision dated August 25, 2011, OWCP denied appellant’s request for reconsideration
of the merits. It noted that additional reports by Dr. Pak were not received as part of the
reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each 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 a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or 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 issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’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 employee, must be one of reasonable medical certainty and must be

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

O.W., Docket No. 09-2110 (issued April 22, 2010). See Ellen L. Noble, 55 ECAB 530 (2004).

6

D.R., Docket No. 09-1723 (issued May 20, 2010). See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.7
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish a claim that
federal employment factors caused or aggravated her right knee condition. While appellant
submitted a statement in which she identified the factors of employment that she believed caused
the condition, in order to establish a claim that she sustained an employment-related injury, she
must also submit rationalized medical evidence which explains how her medical conditions were
caused or aggravated by the implicated employment factors.8
On October 25, 2010 Dr. Pak diagnosed patellofemoral chondrosis based on x-rays of the
right knee and a physical examination. He indicated that on September 15, 2010 appellant was at
work delivering mail when she felt popping and catching sensations of her right knee. Since that
time her right knee continued to bother her and she had a difficult time standing from a sitting
position as well as with certain activities. Although he provided a firm diagnosis, Dr. Pak did
not provide a rationalized medical opinion as to how the implicated factors of appellant’s federal
employment, such as standing on concrete floors for 10 hours a day, six days a week, entering
and exiting a vehicle and sitting on a vehicle seat which was too low, caused or aggravated her
right knee condition. Therefore, appellant failed to meet her burden of proof.
Appellant submitted November 24, 2010 hospital reports related to a right eye injury.
The issue here is causal relationship between a right knee condition and factors of her federal
employment. Thus, these medical reports are immaterial in nature.
Appellant also submitted a position description with a note from the employing
establishment indicating that it concurred with her allegations. However, causal relationship is a
medical question that can generally be resolved only by rationalized medical opinion evidence.9
As found above, the medical evidence is insufficient to establish the claim. This document does
not constitute medical evidence and appellant’s submission thereof is insufficient to establish
causal relationship.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the indicated employment factors, she
failed to meet her burden of proof to establish a claim.
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.

7

O.W., supra note 5.

8

A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).
9

See Robert G. Morris, 48 ECAB 238 (1996).

4

LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128 of FECA,10
OWCP’s regulations provide that 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.11 When a claimant fails to meet one of the above standards, OWCP will
deny the application for reconsideration without reopening the case for review of the merits.12
ANALYSIS -- ISSUE 2
On appeal, appellant contends that OWCP was not diligent in filing evidence for her case
as it failed to file additional reports by Dr. Pak, which she submitted with her request for
reconsideration. On August 16, 2011 she requested reconsideration, indicating that she enclosed
additional reports by Dr. Pak. In its August 25, 2011 decision, OWCP denied appellant request,
noting that additional reports by Dr. Pak were not received as part of the reconsideration request.
As the record shows that OWCP did not receive any additional medical evidence from appellant,
the Board finds that her argument is not substantiated.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Because she did not submit any evidence with her request for
reconsideration, the Board finds that she did not meet any of the necessary requirements and she
is not entitled to further merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a right knee condition in the performance of duty causally related to factors of her
federal employment. Because appellant’s request for reconsideration did not meet at least one of
the criteria required to reopen a case, the Board finds that OWCP properly denied her request for
reconsideration without a merit review.

10

Supra note 3. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at anytime on her own motion or on application. 5 U.S.C. § 8128(a).
11

20 C.F.R. § 10.606(b)(1)-(2). See Susan A. Filkins, 57 ECAB 630 (2006).

12

Id. at § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements OWCP will deny the application for
review without reviewing the merits of the claim).

5

ORDER
IT IS HEREBY ORDERED THAT the August 25 and 4, 2011 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: April 17, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE BASE,
Fairborn, OH, Employer
__________________________________________

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

Docket No. 07-1148
Issued: September 26, 2007

Case Submitted on the Record

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

JURISDICTION
On March 22, 2007 appellant filed a timely appeal from a March 1, 2007 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had any
continuing employment-related disability after April 21, 2004.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated February 3, 2006, the
Board found that the Office met its burden of proof to terminate appellant’s compensation
benefits effective April 21, 2004 on the grounds that his accepted temporary aggravation of
obsessive compulsive disorder (OCD) had resolved. The Board also found that appellant did not
meet his burden of proof to establish that he had continuing employment-related disability after

April 21, 2004.1 The law and the facts of the previous Board decision are incorporated herein by
reference.
On January 20, 2007 appellant, through his attorney, requested reconsideration before the
Office. In a December 12, 2006 report, James M. Medling, Ph.D., a clinical psychologist, noted
his review of medical and documentary evidence. He provided a history of appellant’s previous
employment, education and the accepted condition, discussed his complaints, activities of daily
living and socialization and provided psychological test results. Dr. Medling diagnosed OCD,
depressive disorder, dependent personality disorder, avoidant personality disorder with
negativistic personality traits and self-defeating personality traits. Psychosocial stressors were
unemployment and chronic health problems related to gastroesophageal reflux disease,
hypothyroidism and hypercholesterolemia. Dr. Medling advised that appellant’s symptoms of
OCD were chronic and due to his federal employment from August 1989 through October 28,
2000 when he was separated from employment, that the condition was permanent, and any
current symptoms were the result of the disorder that arose in 1989 in response to workplace
stress. He opined that appellant’s depressive disorder resulted from the chronicity of the OCD
and should be accepted as a direct aggravation. Dr. Medling concluded that appellant was
unable to tolerate more than a mild to low moderate degree of personal stress, that his coping
strategies were marginal, and therefore his disability was permanent. In an addendum dated
January 30, 2007, he noted that Cynthia B. Levy, Ph.D., appellant’s attending psychologist,
opined that appellant did not meet the diagnostic criteria of OCD prior to August 1989 and that
his current OCD symptoms were permanent and caused by employment. In a February 2, 2007
report, Dr. Samuel A. Nigro, an attending psychiatrist, concurred with Dr. Medling’s findings
that appellant was permanently disabled due to his OCD and depressive disorder.
By decision dated March 1, 2007, the Office denied modification of its prior decisions.
The Office reviewed the evidence submitted with appellant’s reconsideration request and
concluded that the weight of the medical evidence continued to rest with Dr. Gary A. Balster, a
Board-certified psychiatrist who had performed an impartial medical evaluation for the Office.
LEGAL PRECEDENT
As the Office met its burden of proof to terminate appellant’s compensation benefits
effective April 21, 2004, the burden shifted to him to establish that he had any continuing
disability causally related to his accepted injuries.2 To establish a causal relationship between
the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.3 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical evidence.4
Rationalized medical evidence is medical evidence which includes a physician’s rationalized
1

Docket No. 05-1707 (issued February 3, 2006).

2

Id.

3

Id.

4

Donna L. Mims, 53 ECAB 730 (2002).

2

medical 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.5
ANALYSIS
The Board find that Dr. Medling’s reports are not sufficient to overcome the weight of
the medical opinion accorded to Dr. Balster as the impartial specialist.6 Dr. Medling based his
opinion on a review of the medical record that had been reviewed by Dr. Balster, and his opinion
mirrors that of Dr. Kenneth D. Glass, an attending Board-certified psychiatrist, who had been on
one side of the conflict in medical evidence resolved by Dr. Balster. His report provided no new
rationale to support his opinion,7 and is therefore insufficient to meet appellant’s burden to
establish that he continues to be disabled due to the accepted emotional condition or to give rise
to a new conflict.8 Dr. Medling’s report of Dr. Levy’s opinion is of no evidentiary value as her
report is not in the record. Further, by Dr. Medling’s report, Dr. Levy merely reiterated her
previous conclusions, which had been reviewed by Dr. Balster, the Office and the Board. The
Board has held that evidence that repeats or duplicates evidence already in the case record has no
evidentiary value.9 Dr. Nigro merely advised that he agreed with Dr. Medling. Thus, as the
opinions of Drs. Levy and Nigro did not contain new findings or rationale upon which a new
conflict might be based, they too are insufficient to overcome that of Dr. Balster or to create a
new medical conflict.10 Appellant therefore did not submit the necessary rationalized medical
evidence to substantiate that any claimed disability on or after April 21, 2004 was causally
related to his federal employment.11
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he had
any disability after April 21, 2004 causally related to employment.

5

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

6

In situations where there are opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given special weight. Manuel Gill,
52 ECAB 282 (2001).
7

See Jimmie H. Duckett, 52 ECAB 332 (2001).

8

See John F. Glynn, 53 ECAB 562 (2002).

9

See Jaja K. Asaramo, 55 ECAB 200 (2004).

10

See Jimmie H. Ducket, supra note 7.

11

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

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 1, 2007 be affirmed.
Issued: September 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4