United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Allentown, PA,
Employer
__________________________________________

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

Docket No. 10-717
Issued: December 16, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant, through counsel, filed a timely appeal from an
October 15, 2009 schedule award decision of the Office of Workers’ Compensation Programs for
two percent impairment of the right upper extremity. Pursuant to 20 C.F.R. §§501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issue is whether appellant has more than two percent impairment of the right arm, for
which she received a schedule award.
On appeal, appellant, through counsel, contends that there is an unresolved conflict in
medical opinion regarding the percentage of impairment to her right upper extremity.

FACTUAL HISTORY
This case has previously been before the Board.1 In a June 16, 2008 decision, the Board
affirmed an Office hearing representative’s December 11, 2006 decision which affirmed the
termination of appellant’s compensation benefits as of May 14, 2006. The Board found that the
September 23, 2005 report of Dr. Thomas DiBenedetto, a Board-certified orthopedic surgeon
and an impartial medical specialist, represented the weight of the medical evidence and
supported the termination of benefits. The Board also found that appellant failed to establish that
she had any continuing employment-related disability after May 14, 2006. The Board found the
medical evidence insufficient to support the expansion of her claim to include the condition of
bilateral diffuse sensory brachial plexopathies. The Board also affirmed the Office’s April 30,
2007 decision denying her request for further merit review. The facts of the case are set forth in
the Board’s prior decision and are incorporated herein by reference.2
Appellant claimed a schedule award and submitted an October 28, 2008 report by
Dr. Arthur Becan, an orthopedic surgeon, who provided an impairment rating of her right upper
extremity. On examination, Dr. Becan noted no effusion of the right elbow and tenderness was
noted along the lateral and medial epicondyle and along the posterior interosseous nerve at the
dorsal aspect of the right forearm. He also found a positive Tinel’s sign over the ulnar nerve.
Grip strength testing performed via Jamar hand dynamometer at level three revealed 15
kilograms on the right versus 20 kilograms on the left. Pinch key unit testing measured four
kilograms on the right versus seven kilograms on the left. Dr. Becan conducted SemmesWeinstein monofilament testing, which indicated that diminished light-touch sensibility at 4.6
milligrams over the ulnar nerve distribution of the left hand and at 3.6 milligrams over the
median nerve distribution of the left hand.
Dr. Becan advised that appellant had 15 percent right arm impairment under the
American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides). He cited to Table 16-10, page 482 and Table 16-15, page 492, to
assign six percent sensory loss for the right ulnar nerve. Dr. Becan also assigned 10 percent
impairment for right grip strength deficit, citing to Table 16-34, page 509. He stated that the
combined total due to these impairment factors was 15 percent and advised that appellant
reached maximum medical improvement on October 28, 2008.
On January 30, 2009 Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and
Office medical adviser, reviewed the medical evidence. He noted that appellant had been
evaluated by Dr. DiBenedetto on September 23, 2005 who found no evidence on examination of
residual lateral epicondylitis. Dr. Berman noted that both Dr. Becan and Dr. DiBenedetto
revised a normal 2003 electromyogram. The Office medical adviser stated that Dr. Becan’s
recommendation for a Grade 2 right ulnar nerve sensory deficit was questionable as this finding
1

Docket No. 08-244 (issue June 14, 2008).

2

On October 26, 2002 appellant, then a 37-year-old mail processor, filed a traumatic injury claim alleging that
she sustained right carpal tunnel syndrome due to putting mail into trays on October 24, 2002. The Office accepted
the claim for right upper extremity epicondylitis and tendinitis. Appellant stopped work on October 25, 2002 and
was placed on the periodic rolls for temporary total disability.

2

was not verified by other examiners and the diagnostic studies were both normal and abnormal in
the past.” Dr. Berman also noted that at section 16.8a, the fifth edition of the A.M.A., Guides
cautioned against rating decreased strength in the presence of painful conditions that prevented
effective application of maximum force to the region being evaluated.
Under Table 16-15, Dr. Berman identified the maximum impairments allowed for
sensory loss (pain) and involving the ulnar nerves. For the ulnar nerve above the midforearm, a
maximum seven percent was allowed. He noted that Dr. Becan had classified appellant’s
sensory deficit as Grade 2 or 80 percent. Dr. Berman stated that the findings from examinations
by other treating physicians supported classification as Grade 4, for which 25 percent was
allowed. He rated sensory loss to the ulnar nerve by multiplying 7 percent times 25 percent to
equal 1.75 percent, rounded up to 2 percent.
In an April 15, 2009 decision, the Office granted appellant a schedule award for two
percent impairment of the right upper extremity.
On April 22, 2009 counsel for appellant requested an oral hearing before an Office
hearing representative that was held on July 23, 2009.
In an October 15, 2009 decision, an Office hearing representative affirmed the April 15,
2009 schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.5 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.6
ANALYSIS
Appellant’s claim was accepted by the Office for right upper extremity epicondylitis and
tendinitis. She received a schedule award for two percent impairment to her right arm based on
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).

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the accepted conditions. This rating was based on sensory loss affecting the ulnar nerve above
the midforearm. The Board finds that appellant has not established greater impairment.
On appeal, appellant contends that the Office erred by failing to refer her for an impartial
medical examination as there was a conflict in medical opinion between Dr. Becan, who rated a
15 percent right upper extremity impairment, and Dr. Berman, who found 2 percent impairment
of the right arm.
As noted, the A.M.A., Guides at section 16.8 do not assign a large role to grip or pinch
strength measurements as they can be influenced by subjective factors. Dr. Becan advised that
appellant was able to perform routine household duties such as dishwashing, mowing, cleaning
and shopping with some difficulty performing nonspecialized hand activities. He advised there
was a positive Tinel’s sign. Dr. Becan stated that Semmes-Weinstein monofilament testing
revealed diminished light-touch sensibility over the ulnar nerve distribution of the right hand. In
light of the principles found at section 16.8, he provided no explanation as to why appellant’s
loss of strength was not adequately considered with reference to the other methods of the
A.M.A., Guides. Dr. Becan merely listed measurements obtained on grip and pinch strength
testing. The Office medical adviser properly applied the A.M.A., Guides to the findings on
examination and explained why he disallowed the 10 percent left pinch grip deficit rating found
by Dr. Becan under section 16.8a.
The Office medical adviser also explained why he classified the extent of sensory loss
under Table 16-10 as Grade 4, which allowed a sensory default 25 percent. As to sensory loss,
Dr. Becan noted that testing revealed diminished light-touch sensibility. This corresponds to
Grade 4, which is described as distorted superficial tactile sensibility (diminished light touch)
with or without minimal abnormal sensations or pain. Dr. Becan noted that appellant was able to
engage in routine household duties with some difficulty due to pain. The report of the examining
physician did not provide any additional discussion of the relative factors that go into
determining the classification of sensory loss under section 16.5. The A.M.A., Guides provide
that the examiner must use clinical judgment to estimate the appropriate percentages of sensory
or motor deficits, noting that the maximum value for each grade is not applied automatically.
The report of Dr. Becan did not adequately address the factors that go to such clinical judgment
when classifying appellant’s sensory deficit as Grade 2, of 80 percent. He provided only a
footnote reference to the tables he applied in rating impairment. Absent any discussion,
Dr. Becan’s impairment rating is not well rationalized.
While the report of an examining physician may be found to constitute the weight of
medical opinion, such physician should clearly address the principles of the A.M.A., Guides in
explaining how an impairment rating is reached. Absent such explanation, the Office may rely
on the opinion of its medical adviser.7 In this respect, Dr. Berman addressed the sensory deficit
to appellant’s right arm caused by the ulnar nerve above the forearm. He explained his
application of Table 16-10 for classifying the extent of the sensory deficit as Grade 4, for which
he allowed 25 percent. In turn, Dr. Berman identified the maximum upper extremity
impairments allowed for sensory loss affecting the ulnar nerve above the midforearm. He
7

See Tommy R. Martin 56 ECAB 273 (2005).

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explained the basis for finding 1.75 percent sensory loss to the right arm which he properly
rounded up to 2 percent.8
CONCLUSION
The Board finds that appellant has no more than two percent impairment of her right
upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 15, 2009 is affirmed.
Issued: December 16, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. See
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (January 2010).
Fractions are rounded up from .50. See also J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008);
57 ECAB 563 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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

Docket No. 13-1647
Issued: December 11, 2013

Case Submitted on the Record

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

JURISDICTION
On July 1, 2013 appellant, through his attorney, filed a timely appeal from a May 30,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant had any employment-related disability commencing
November 28, 2011.
FACTUAL HISTORY
On October 14, 2011 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 5, 2011 he injured his left knee in the performance

1

5 U.S.C. § 8101 et seq.

of duty. He described the incident as taking a tray of mail out of the back of a truck and feeling a
pull in his left knee. Appellant returned to full-duty work.
On December 5, 2011 appellant filed a notice of recurrence of disability commencing
November 28, 2011 for time loss from work. In a report dated November 29, 2011,
Dr. G. Robert Cooley, a Board-certified orthopedic surgeon, noted that appellant was having
severe knee pain. He provided results on examination and recommended a magnetic resonance
imaging (MRI) scan to determine if there was a meniscus tear. Dr. Cooley stated that “in the
meantime” he was placing appellant off work.
In a report dated December 5, 2011, Dr. Cooley provided results on examination and
reported that appellant continued to have knee pain. He stated that the MRI scan was not
convincing for a meniscal tear but “showed a lot of bone marrow edema on the left medial
femoral condyle. This could be a stress reaction, contusion or early AVN [avascular necrosis].”
Dr. Cooley advised that appellant remained disabled for work. By report dated February 14,
2012, he found that appellant could return to full duty as of February 15, 2012.
By decision dated April 20, 2012, OWCP denied appellant’s claim for compensation. It
found the evidence insufficient to establish an incident on October 5, 2011 as alleged.
Appellant requested a hearing before an OWCP representative, which was held on
August 14, 2012. Appellant stated that he was reaching into the back of the truck when his left
knee hyperextended. In a report dated April 25, 2012, Dr. Cooley reported that appellant stated
that he did not have problems before an October 5, 2011 work injury. He provided results on
examination and diagnosed a right knee sprain with contusion with likely early AVN.
Dr. Cooley found that appellant could continue to work full time. He stated, “It is felt that his
left knee injury was related to the work incident on [October 5, 2011]. Subjective symptoms and
objective findings are consistent.” In a report dated July 18, 2012, Dr. J.D. Abraham, a Boardcertified orthopedic surgeon, provided a history that appellant hyperextended his left knee at
work on October 5, 2011. He stated that pain had not fully resolved and disability was partially
related to the October 2011 incident.
By decision dated September 20, 2012, an OWCP hearing representative found that the
medical evidence was sufficient to establish a left knee sprain as employment related. He found
that there was no evidence disputing that the October 5, 2011 incident occurred as alleged.
Further, the reports from Dr. Cooley were sufficient to establish causal relationship regarding a
left knee sprain. As to AVN, the hearing representative found this condition was not established
as employment related.
In a report dated October 8, 2012, Dr. Cooley diagnosed left medial AVN and
chondromalacia. He stated that appellant continued to have a significant knee problem. On
October 9, 2012 OWCP accepted a left knee sprain. It advised appellant to submit medical
evidence with respect to any claimed disability.
By decision dated November 29, 2012, OWCP denied the claimed recurrence of
disability commencing November 28, 2011. It found the medical evidence was insufficient to
establish disability due to the October 5, 2011 injury.

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Appellant requested a hearing before an OWCP hearing representative, which was held
on March 14, 2013. In a report dated March 15, 2013, Dr. Cooley stated that appellant had
injured his knee “while loading a truck” on October 5, 2011. He noted that the MRI scan
showed marrow edema consistent with stress reaction, contusion or early AVN. Dr. Cooley
stated, “There is no definitive knowledge as to what causes AVN. His marrow edema could be
interpreted as AVN, trauma, or just injury, all consistent, though, in starting with his workrelated injury.” In a report dated March 21, 2013, Dr. Cooley stated that appellant reported the
original injury occurred while getting into the truck. He stated that he had explained in his last
note what AVN was and how it might be related to appellant’s injury.
By decision dated May 30, 2013, the hearing representative affirmed the November 29,
2012 decision. She found that the medical evidence was insufficient to establish a recurrence of
disability as of November 28, 2011. Dr. Cooley’s opinion on causal relationship was found
equivocal.
LEGAL PRECEDENT
A person who claims a recurrence of disability2 due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable, and probative
evidence that the disability for which he claims compensation is causally related to the accepted
injury. This burden of proof requires that a claimant furnish medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to the employment injury and supports that conclusion with
sound medical rationale.3
ANALYSIS
OWCP accepted that appellant sustained a left knee sprain in the performance of duty on
October 5, 2011. He has stated that he was reaching into the back of a truck when his left knee
hyperextended and caused pain. It is appellant’s burden of proof to establish that his disability
commencing November 28, 2011 was related to the accepted injury.
Appellant submitted medical evidence from Dr. Cooley with respect to his left knee
treatment. As to the question of disability for work commencing November 28, 2001 to
approximately February 15, 2012, Dr. Cooley did not provide a medical opinion sufficient to
meet appellant’s burden of proof. With respect to providing a complete factual and medical
history, the Board notes that Dr. Cooley did not provide a detailed description of the October 5,
2011 incident. Dr. Cooley’s reports briefly referred to loading a truck, and in the March 21,
2013 report he stated that appellant was getting into a truck. He did not discuss the mechanism
of injury or demonstrate that he clearly understood that appellant was reaching into the back of
the truck and felt left knee pain from extending the knee.
2

A recurrence of disability means “an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which has resulted from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness.” 20 C.F.R. § 10.5(x).
3

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

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The Board finds that Dr. Cooley’s opinion as to the relationship between appellant’s
disability and the employment injury is equivocal and not supported by sound medical rationale.
In the December 5, 2011 report, he noted that an MRI scan showed bone marrow edema which
could have three possible causes: AVN, contusion or stress reaction. AVN is not an accepted
condition. Dr. Cooley stated in the March 21, 2013 report that in a letter to appellant’s attorney,
dated March 15, 2013, he had explained what AVN was and how it might be employment
related. His March 15, 2013 report stated only that there was no “definitive knowledge” as to the
cause of AVN. Dr. Cooley did not adequately explain the nature of AVN or explain why it was
caused by the specific activity on October 5, 2011. The evidence is not sufficient to establish
AVN as employment related.
With respect to a contusion, appellant did not describe a contusion nor has OWCP
accepted a contusion with respect to the October 5, 2011 employment injury. If Dr. Cooley feels
there was a contusion from the employment injury that caused disability commencing
November 28, 2011, then he must support such an opinion with additional explanation.
Dr. Cooley also refers to a possible stress reaction as causing the left knee edema. He did
not explain how the stress or trauma from the October 5, 2011 incident caused disability
commencing November 28, 2011 related to the accepted employment injury. The brief
statement in the March 15, 2013 report that the edema “could be interpreted as [AVN], trauma,
or just injury” and that all of these “start[ed] with his work[-]related injury” is not a rationalized
medical opinion. Dr. Abraham briefly stated in a July 18, 2012 report that appellant had
disability partially related to an October 2011 injury, without discussing the period claimed or
providing additional detail and explanation.
The Board finds that the evidence of record does not provide a rationalized medical
opinion, based on a complete background, as to an employment-related disability commencing
November 28, 2011. The Board finds that appellant did not meet his burden in this case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an employment-related disability
commencing November 28, 2011.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 30, 2013 is affirmed.
Issued: December 11, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, TAMPA
PROCESSING & DISTRIBUTION CENTER,
Tampa, FL, Employer
__________________________________________

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

Docket No. 18-0588
Issued: October 3, 2018

Case Submitted on the Record

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

JURISDICTION
On January 25, 2018 appellant filed a timely appeal from an October 27, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than 14 percent
permanent impairment of his left upper extremity and 5 percent permanent impairment of his right
upper extremity, for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 19, 2004 appellant, then a 38-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that repetitive job duties caused bilateral shoulder, neck, hip, and left
elbow conditions.
On August 20, 2004 OWCP accepted the claim for cervical, lumbar, and thoracic strains,
and tendinitis of both shoulders and paid him partial wage-loss compensation on the supplemental
rolls until December 30, 2004 when he stopped work completely. It then paid him disability
compensation on the periodic compensation rolls as of August 7, 2005. Appellant did not return
to work.
On September 27, 2007 OWCP expanded acceptance of the claim to include left shoulder
rotator cuff tear.
On August 21, 2009 OWCP noted via letter that appellant was interested in pursuing a
schedule award claim. On August 28, 2009 appellant elected Office of Personnel Management
(OPM) retirement benefits, effective September 29, 2009. He continues to receive OPM
retirement benefits.
In a report dated October 1, 2009, Dr. James W. Dyer, a Board-certified orthopedic
surgeon and OWCP medical adviser, reviewed the medical evidence and advised that, in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides),2 based on appellant’s left shoulder range
of motion (ROM) deficits, he was entitled to 14 percent permanent impairment of the left upper
extremity. Dr. Dyer noted that appellant had reached maximum medical improvement (MMI) on
September 14, 2009.3
By decision dated October 28, 2009, OWCP granted appellant a schedule award for 14
percent permanent impairment of the left upper extremity, for a total of 43.68 weeks, to run from
September 29, 2009 to July 31, 2010.
On February 27, 2015 appellant filed an additional schedule award claim (Form CA-7).
In support of his claim for an additional schedule award, appellant submitted a February 4,
2015 report in which Dr. Richard M. Blecha, a Board-certified orthopedic surgeon, provided an
impairment evaluation. He described right shoulder flexion of 170/180 degrees, extension 40/50
degrees, abduction 145/170 degrees, adduction 40/40 degrees, internal rotation 80/80 degrees, and
external rotation 50/60 degrees. Left shoulder flexion was 165/180 degrees, flexion 165/180
degrees, extension 40/50 degrees, abduction 95/170 degrees, adduction 40/40 degrees, internal
rotation 80/80 degrees, and external rotation 60/60/degrees. Dr. Blecha diagnosed osteoarthritis
of the left acromioclavicular (ACL) joint. He advised that the ROM method was the appropriate
2

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

3

Dr. Dyer based his findings on a September 14, 2009 impairment evaluation performed by Dr. Samy F. Bishai,
an attending orthopedic surgeon, who advised that appellant had 14 percent permanent impairment of each upper
extremity.

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method of evaluating appellant’s impairment and concluded that, due to loss of left shoulder
motion, he had seven percent permanent impairment of the left shoulder.
In a March 30, 2015 report, Dr. H.P. Hogshead, also Board-certified in orthopedic surgery
and an OWCP medical adviser, agreed with Dr. Blecha that appellant had seven percent
impairment of the left upper extremity. OWCP’s medical adviser noted that, as appellant had
previously received a schedule award for 14 percent left upper extremity permanent impairment,
he was not entitled to a greater award.
In a July 15, 2015 report, Dr. Bishai described physical examination findings and
diagnosed internal derangement of each shoulder, status post surgery on the left elbow, bilateral
carpal tunnel syndrome, chronic cervical strain, lumbar disc syndrome, herniated discs at L4-5 and
L5-S1, grade 1 posterolisthesis at L5, and impingement syndrome of both shoulder. He utilized
Table 15-34, Shoulder Range of Motion, of the sixth edition of the A.M.A., Guides and indicated
that right shoulder flexion measured 80 degrees, for 9 percent upper extremity impairment,
extension measured 15 degrees for 2 percent impairment, abduction measured 80 degrees for 6
percent impairment, adduction measured 20 degrees for 1 percent impairment, internal rotation
measured 20 degrees for 4 percent impairment, and external rotation measured 45 degrees for 2
percent impairment. Dr. Bishai then combined the individual ROM impairments for a total 24
percent right upper extremity permanent impairment. Left shoulder ROM demonstrated 70
degrees of flexion for 9 percent upper extremity impairment, 10 degrees of extension measured
for 2 percent impairment, 70 degrees of abduction for 6 percent impairment, 15 degrees of
adduction for 1 percent impairment, 15 degrees of internal rotation for 4 percent impairment, and
40 degrees of external rotation measured for 2 percent impairment. Dr. Bishai then added the
individual ROM impairments for a total 24 percent left upper extremity permanent impairment.
He indicated that MMI was reached on July 15, 2015.
OWCP forwarded medical records including Dr. Bishai’s July 15, 2015 report to
Dr. Michael M. Katz, an OWCP medical adviser who is Board-certified in orthopedic surgery, for
review. In a report dated January 21, 2016, Dr. Katz requested that additional medical evidence
be provided. In a report dated March 16, 2016, he noted his review of record including the reports
of Dr. Blecha, Dr. Hogshead, and Dr. Bishai. Based on the marked variance in impairment found
between Dr. Blecha and Dr. Bishai, both attending physicians, Dr. Katz recommended referral to
an appropriate Board-certified specialist for a second opinion evaluation.
In August 2016, OWCP referred appellant to Dr. Patrick Horan, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine if appellant was entitled to an
additional schedule award.
In a September 12, 2016 report, Dr. Horan noted his review of the medical record. He
indicated that, when he asked appellant to raise his right arm, he raised it to 85 degrees and would
not go further, stating that it would cause discomfort. Dr. Horan then terminated the evaluation
because ROM could not be determined without full participation from the patient. He noted that
the A.M.A., Guides require full ROM, not full motion without discomfort. OWCP again referred
appellant to Dr. Horan on October 20, 2016.

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In a November 21, 2016 report, Dr. Horan described physical examination findings. He
noted right shoulder flexion to 150 degrees, extension to 40 degrees, abduction to 130 degrees,
adduction to 50 degrees, internal rotation to 80 degrees, and external rotation to 90 degrees. Left
shoulder flexion was to 160 degrees, extension to 20 degrees, abduction to 110 degrees, adduction
to 30 degrees, internal rotation to 40 degrees, and external rotation to 70 degrees. Dr. Horan
indicated that MMI was reached on February 4, 2015. He found that appellant had a labral lesion
of the right shoulder with residual symptoms of tenderness and minimal loss of ROM, he found
that under Table 15-5, Shoulder Regional Grid, appellant had a class 1 diagnosis-based impairment
(DBI), with a modifier of 2 for physical examination, for four percent permanent impairment of
the right upper extremity. Dr. Horan advised that using the DBI methodology, under Table 15-5,
appellant had impingement syndrome of the left shoulder for a class 1 impairment and also had
loss of ROM, with modifiers of 2 for physical examination and functional history, for a total five
percent permanent impairment of the left shoulder.
On March 3, 2017 OWCP asked its medical adviser, Dr. Katz, to review the record,
including Dr. Horan’s reports. In a March 20, 2017 report, Dr. Katz referenced his March 16,
2016 report. He noted Dr. Horan’s impairment analysis for both shoulders and agreed with his
conclusion that appellant was not entitled to an additional schedule award for left upper extremity
impairment. Regarding the right shoulder, Dr. Katz noted that Dr. Horan utilized the DBI
methodology and found four percent permanent impairment under Table 15-5, and advised that
this was supported by the record, yet in his conclusion indicated that appellant had five percent
right upper extremity impairment.
By decision dated May 1, 2017, OWCP granted appellant a schedule award for five percent
permanent impairment of his right upper extremity (arm), for a total of 15.6 weeks, to run from
November 21, 2016 to March 10, 2017.
Appellant requested a hearing before an OWCP hearing representative. By decision dated
October 11, 2017, an OWCP hearing representative remanded the case to OWCP. The hearing
representative noted that left upper extremity permanent impairment was not addressed in the
decision. Regarding the right shoulder, the hearing representative questioned why Dr. Horan’s
calculations identified four percent impairment, yet OWCP’s medical adviser, Dr. Katz, concluded
that appellant had five percent permanent impairment of the right upper extremity. The hearing
representative further found that, as appellant’s condition could alternatively be rated using ROM,
OWCP should undertake further development in compliance with FECA Bulletin No. 17-06.
Upon return of the case record, OWCP was instructed to obtain a supplementary report from an
OWCP medical adviser who was to provide medical rationale that supported all opinions given,
including clarifying the disparity between the four percent calculation and the five percent
conclusion of right upper extremity impairment. Following this development, OWCP was to issue
a de novo decision.
Following a request for a clarification of his March 20, 2017 report, in an October 24, 2017
report, Dr. Katz noted that he had reviewed the statement of accepted facts and medical record and
referenced his March 20, 2017 report. He indicated that the current report superseded his prior
report, which contained a typographical error. OWCP’s medical adviser described Dr. Horan’s
findings under Table 15-5 for both shoulders, noting five percent impairment on the left and four
percent on the right. Dr. Katz referenced FECA Bulletin No. 17-06, noting that DBI or ROM

4

could be used in diagnoses designated by an asterisk, including appellant’s bilateral shoulder
diagnoses. He further noted that the A.M.A., Guides provide that, if ROM is to be used, three
independent measurements should be documented, and because Dr. Horan did not report three
independent range of motion measurements, he was unable to calculate ROM impairments for the
shoulders. Dr. Katz concluded that DBI impairment was therefore proper and indicated that
appellant had 4 percent permanent impairment of the right shoulder and 5 percent on the left which
was less than the 14 percent previously awarded, with November 21, 2016 the date of MMI.
By decision dated October 27, 2017, OWCP found that appellant was not entitled to
schedule awards for upper extremity impairments greater than those he had previously received,
i.e., four percent on the left and five percent on the right. It noted that the medical evidence
established that he had permanent impairments of five percent on the left and four percent on the
right.
LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulation,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 be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment class for the class of diagnosis
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS).8 The net adjustment formula is (GMFH-CDX)
+ (GMPE-CDX) + (GMCS-CDX).9
Regarding the application of the ROM or DBI methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the

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 Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides, supra note 2 at 383-492.

9

Id. at 411.

5

determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)10
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides do not allow for the use of ROM for the diagnosis in question,
the DMA should independently calculate impairment using the DBI method and
clearly explain in the report, citing applicable tables in Chapter 15 of the [A.M.A.,]
Guides, that ROM is not permitted as an alternative rating method for the diagnosis
in question.
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”11
ANALYSIS
The Board finds that this case is not in posture for decision.
The record establishes that in an October 11, 2017 decision, an OWCP hearing
representative remanded the case to OWCP for application of FECA Bulletin No. 17-06 to
appellant’s schedule award claim. OWCP then obtained a medical report from its medical adviser
10

FECA Bulletin No. 17-06 (issued May 8, 2017).

11

Id.

6

Dr. Katz. In an October 24, 2017 report, Dr. Katz referenced FECA Bulletin No. 17-06, and found
that, because Dr. Horan did not report three independent ROM measurements for the shoulders,
the DBI method should be used to calculate appellant’s impairment. He concluded that appellant
had four percent permanent impairment of his right upper extremity and five percent of his left
upper extremity, less than the previous awards, with November 21, 2016 as the date of MMI.
The Board notes that Dr. Horan rendered his report on November 21, 2016, prior to the
issuance of FECA Bulletin No. 17-06, issued on May 8, 2017.12 There is no evidence in this case
that OWCP requested that either appellant or its referral physician Dr. Horan provide a
supplemental report containing ROM measurements in accordance with the procedures set forth
in the A.M.A., Guides and FECA Bulletin No. 17-06. As noted above, FECA Bulletin No. 17-06
provides that, if medical evidence sufficient to make a rating based on ROM is not received within
30 days of the request, OWCP should refer the claimant for a second opinion evaluation to obtain
the necessary medical evidence. The Board will, therefore, remand the case for OWCP to refer
appellant for a second opinion evaluation, either with Dr. Horan or another appropriate physician,
to obtain the evidence necessary to complete the rating as described above.13 Following this and
other further development of the medical evidence deemed necessary, OWCP shall issue a de novo
decision.14
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Id.

13

See G.W., Docket No. 18-0224 (issued May 9, 2018).

14

See R.C., Docket Nos. 17-1585 and 17-1815 (issued February 16, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: October 3, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1194 &
12-1204
Issued: December 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 4 and 9, 2012 appellant filed timely appeals from the November 8, 2011 and
February 8, 2012 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that
modification of OWCP’s March 20, 2002 wage-earning capacity decision was warranted;
(2) whether appellant received a $134,838.03 overpayment of compensation; and (3) whether
appellant was at fault in the creation of the overpayment, thereby precluding waiver of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on March 1, 1997 appellant, then a 42-year-old materials handler,
sustained a lumbar strain, right hamstring strain and herniated discs at C5-6 and L5-S1 when he
stepped into a hole in a pallet.2 He stopped work on March 1, 1997 and did not return.
On October 5, 2000 Dr. Michael Slomka, a Board-certified orthopedic surgeon serving as
an OWCP referral physician, determined that appellant was capable of performing sedentary
work on a full-time basis and recommended training. He provided work restrictions, including
no lifting, pushing or pulling more than 25 pounds and no walking or standing for more than four
hours. In late October 2000, appellant began participating in an OWCP-sponsored vocational
rehabilitation program designed to return him to work.
In a November 21, 2000 report, Dr. Fred Turner, an attending Board-certified orthopedic
surgeon, noted that appellant stated that he was being placed in a vocational rehabilitation
program for retraining into a sedentary occupation. He recommended that appellant return to
work in a light-duty capacity with no lifting, no driving over two hours, no overhead reaching
and limited computer work in a job that would allow frequent position changes. Dr. Turner
advised that appellant was not a surgical candidate.
An Individual Placement Plan was developed with the goal of locating appellant with a
new employer in the customer service field. Appellant attended training as a customer service
representative at the Leahy Technical Center and completed training on June 27, 2001. He was
provided 90 days of placement assistance but was unsuccessful in returning to work. In
October 2001, appellant’s rehabilitation counselor determined that appellant could perform the
position of customer-complaint clerk. The labor market surveys showed that such work was
reasonably available in his commuting area at a salary of $360.00 a week. The position was
sedentary in nature and involved investigating and resolving issues that customers had with
merchandise and services. It required occasional lifting of up to 10 pounds and occasional
reaching and allowed accommodation for taking breaks.
Dr. Stanley Dennison, an attending Board-certified anesthesiologist, referred appellant to
Dr. Thomas Newman, a Board-certified neurologist. On October 8, 2001 Dr. Newman reported
a normal motor and sensory examination and advised that appellant should be capable of lightduty employment.
OWCP mailed Dr. Dennison copies of the description of the customer-complaint clerk
position and asked him to complete a work restrictions form. In a January 9, 2002 work
restrictions form, Dr. Dennison stated that appellant could work 8 hours a day with the
limitations of no lifting over 20 pounds and 15-minute breaks twice per day with a lunch break.
In a February 13, 2002 letter, OWCP advised appellant that it proposed to reduce his
compensation based on its determination that his wage-earning capacity was represented by the
2

OWCP had previously accepted that appellant sustained a left ankle strain at work on June 12, 1995. It was
later accepted that he had an adjustment disorder and psychogenic pain as a consequence of the March 1, 1997
injury.

2

constructed position of customer-complaint clerk. It provided him 30 days to submit evidence
and argument challenging the proposed action. Appellant submitted several medical reports but
they did not address his ability to work.
In a March 20, 2002 decision, OWCP reduced appellant’s compensation effective
March 24, 2002 based on its finding that his wage-earning capacity was represented by the
constructed position of customer-complaint clerk. The decision included an attached description
of his appeal rights and was mailed to his address of record.
In a March 26, 2002 letter, appellant requested a hearing. In a November 1, 2002
decision, OWCP determined that he had abandoned his request for a hearing.
In a May 20, 2010 letter, OWCP advised appellant of its preliminary determination that
he received a $134,838.03 overpayment of compensation. It noted that he was advised by a
March 20, 2002 decision that his compensation was being reduced effective March 24, 2002
based on his ability to work in the constructed position of customer-complaint clerk; but he
received compensation at the total disability rate until April 10, 2010 when his compensation
was reduced in accordance with the March 20, 2002 decision. OWCP made a preliminary
determination that he was at fault in creating the overpayment because he accepted payments that
he knew or reasonably should have known were incorrect. It provided appellant an opportunity
to challenge the overpayment and directed him to complete an attached financial information
questionnaire.3
In a February 25, 2011 report, Dr. Robert Guirguis, an attending osteopath and Boardcertified physiatrist, noted treating appellant since January 2009. Appellant was being treated for
lumbar radiculopathy secondary to an L5-S1 annular tear and extrusion as well as cervical
radiculopathy secondary to paracentral cervical disc herniation. Dr. Guirguis stated, “These
above injuries are functionally limiting [appellant’s] abilities and his overall activities of daily
living and hence, disabling. The current pain being treated is related to the industrial injury
dated March 1, 1997. Appellant’s current pain is not secondary to any preexisting conditions nor
are there any such conditions to my knowledge…. His work status is disabled.”
In a March 9, 2011 report, Dr. Harold Linde, an attending clinical psychologist, noted
Dr. Guirguis’ February 25, 2011 opinion that appellant’s L5-S1 annular tear and extrusion of his
cervical radiculopathy secondary to paricentral cervical disc herniation were the limiting factors
for him not being able to work. He advised that over the years appellant had made several
attempts to try and return to active employment through retraining and education, but these
attempts failed due to his chronic pain condition. Dr. Linde stated, “Therefore, it is my opinion
also that [appellant] is disabled from returning to active employment.”
On August 25, 2011 appellant participated in a prerecoupment hearing regarding the
May 20, 2010 preliminary overpayment determination. He testified that he never received a final
3

The record contains documents showing that appellant was paid $220,667.76 in compensation between
March 24, 2002 and April 10, 2010. The documents further show that, due to the March 20, 2002 wage-earning
capacity decision, he was only entitled to receive $85,829.73 for this period. The difference between these two
figures is the overpayment of $134,838.03.

3

decision with appeal rights regarding the proposed reduction of his compensation in 2002 based
on his ability to work as a customer-complaint clerk. Appellant claimed that he did not learn of
this reduction in his compensation until May 2010.4
In a November 8, 2011 decision, an OWCP hearing representative finalized OWCP’s
preliminary determination that appellant received a $134,838.03 overpayment of compensation.
He also finalized OWCP’s preliminary finding that appellant was at fault in creating the
overpayment, thereby precluding waiver of recovery. The hearing representative indicated that
the record clearly showed that the March 20, 2002 decision reducing appellant’s compensation
contained appeal rights and was mailed to his proper address.5
In a December 5, 2011 letter, appellant alleged that his work-related condition had
worsened and that he could not perform the constructed customer-complaint clerk position. He
requested that the March 20, 2002 wage-earning capacity decision be modified.
In a December 20, 2011 letter, OWCP advised appellant of the standards for modifying a
wage-earning capacity determination and afforded him 30 days to submit additional evidence.
Appellant submitted a number of medical documents, including several reports of
Dr. Guirguis. In a January 4, 2012 report, Dr. Guirguis diagnosed lumbalgia, lumbar facet
arthropathy, cervical radiculopathy, left arm radiculitis, cervical facet joint disease, muscle
spasm and bilateral sacroiliitis. He stated that appellant’s condition had worsened and he
reported increased pain associated with more myospasm in the cervical and lumbar regions as
well as increased generalized allodynia. Dr. Guirguis stated that appellant had reduced upper
extremity strength compared to previous examinations.
In December 27, 2011 and January 31, 2012 reports, Dr. Linde stated that on several
office visits in December 2011 and January 2012 appellant reported flare-ups of his lumbar and
cervical pain. He noted that appellant appeared depressed and anxious at a number of these
visits.
In a February 8, 2012 decision, OWCP denied modification of its March 20, 2002 wageearning capacity decision. It found that the evidence did not establish that appellant sustained a
material change in his condition, that he was retrained or vocationally rehabilitated or that the
original wage-earning capacity decision was erroneous. OWCP determined that the medical
evidence did not show that the injury-related condition had materially worsened.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
4

Appellant advised that he paid a monthly mortgage of about $700.00 and received compensation of about
$475.00 every 28 days. The record shows that he actually was entitled to receive about $551.00 in compensation
each month, but that $75.00 was deducted each 28 days for court-ordered support payments.
5

The hearing representative indicated that he was unable to determine an equitable repayment schedule for the
overpayment.

4

wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.6 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless appellant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”7
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.8 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.9
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.11
6

Katherine T. Kreger, 55 ECAB 633 (2004).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
8

Stanley B. Plotkin, 51 ECAB 700 (2000).

9

Id.

10

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a). Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment conditions. The job selected
for determining wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives. Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB
409, 411 (1982).
11

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953). See also Federal (FECA) Procedure Manual, supra note 7, Chapter
2.814.8 (December 1993).

5

ANALYSIS -- ISSUE 1
OWCP accepted that on March 1, 1997 appellant sustained a lumbar strain, right
hamstring strain and herniated discs at C5-6 and L5-S1 when he stepped into a hole in a pallet.12
In a March 20, 2002 decision, it reduced his compensation effective March 24, 2002 based on its
determination that his wage-earning capacity was represented by the constructed position of
customer-complaint clerk. In a December 5, 2011 letter, appellant alleged that his work-related
condition had worsened and that he was no longer able to perform the constructed position of
customer-complaint clerk. He requested that the March 20, 2002 wage-earning capacity
determination be modified.
OWCP based appellant’s loss of wage-earning capacity on a determination that his wageearning capacity was represented by wages he could earn in the constructed position of
customer-complaint clerk. Appellant did not submit evidence showing that OWCP’s original
determination with regard to his wage-earning capacity was erroneous. His vocational
rehabilitation counselor determined that he was able to perform the position of customercomplaint clerk and that state employment services showed the position was available in
sufficient numbers so as to make it reasonably available within his commuting area.13 OWCP
properly relied on the opinion of the rehabilitation counselor that appellant was vocationally
capable of performing the customer-complaint clerk position. A review of the medical evidence,
including the reports of Dr. Dennison, an attending Board-certified anesthesiologist, reveals that
appellant was physically capable of performing the position.14 Appellant did not submit any
evidence or argument showing that he could not vocationally or physically perform the
customer-complaint clerk position.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the customer-complaint clerk position represented his wage-earning capacity.15
The weight of the evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the customer-complaint clerk position and that such a position
was reasonably available within the general labor market of his commuting area. Therefore,
OWCP properly based his wage-earning capacity effective March 24, 2002 on the customercomplaint clerk position. For these reasons, appellant has not shown that OWCP’s original
determination with regard to his wage-earning capacity was erroneous.

12

OWCP previously accepted that appellant had a left ankle strain at work on June 12, 1995. It later accepted
that appellant had an adjustment disorder and psychogenic pain as a consequence of the March 1, 1997 injury.
13

The position of customer-complaint clerk was sedentary in nature and involved investigating and resolving
issues that customers had with merchandise and services. It required engaging in occasional lifting of up to 10
pounds and occasional reaching and allowed accommodation for taking breaks.
14

In a January 9, 2002 work restrictions form, Dr. Dennison stated that appellant could work 8 hours a day with
the limitations of no lifting over 20 pounds and 15-minute breaks twice per day with a lunch break. These
restrictions would allow appellant to perform the position of customer-complaint clerk.
15

See Clayton Varner, 37 ECAB 248, 256 (1985).

6

Appellant alleged that there was a material change in the nature and extent of his
employment-related condition. However, the medical evidence of record does not show such a
material change in his injury-related condition. The medical evidence does not contain a
rationalized medical opinion showing that an employment-related condition prevented appellant
from performing the customer-complaint clerk position or otherwise establish that OWCP
improperly determined his wage-earning capacity.16
In a February 25, 2011 report, Dr. Guirguis, an attending physician, indicated that
appellant was being treated for lumbar radiculopathy secondary to an L5-S1 annular tear and
extrusion as well as cervical radiculopathy secondary to paracentral cervical disc herniation. He
stated, “These above injuries are functionally limiting [appellant’s] abilities and his overall
activities of daily living and hence, disabling…. [Appellant’s] work status is disabled.”
However, Dr. Guirguis did not describe any objective worsening of appellant’s injury-related
condition at this time or explain why he could not perform the extremely limited duties of a
sedentary position like the consumer-complaint clerk position.
In a January 4, 2012 report, Dr. Guirguis diagnosed lumbalgia, lumbar facet arthropathy,
cervical radiculopathy, left arm radiculitis, cervical facet joint disease, muscle spasm and
bilateral sacroiliitis. He stated that appellant’s condition had worsened and that he reported
increased pain associated with more myospasm in the cervical and lumbar regions as well as
increased generalized allodynia. Dr. Guirguis essentially reported an increase in reported
symptoms, but he did not provide objective evidence of a material worsening in appellant’s
injury-related condition. He did not provide a clear opinion that the accepted work injuries
stemming from the March 1, 1997 accident or other work-related injuries contributed to
appellant’s condition at this time such that he could not work as a customer-complaint clerk.17
Moreover, appellant has not been retrained or otherwise vocationally rehabilitated such
that the customer-complaint clerk position would not be representative of his wage-earning
capacity.
For these reasons, the Board finds that appellant did not meet his burden of proof to
establish that modification of OWCP’s wage-earning capacity decision was warranted.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

16

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

17

Dr. Guirguis stated that appellant had reduced upper extremity strength compared to previous examinations, but
it is not clear that this was due to the injury-related condition or that such a diminishment of strength would have
prevented him from working in the sedentary position of a customer-complaint clerk. In reports dated March 9,
December 27, 2011 and January 31, 2012, Dr. Linde, an attending clinical psychologist, discussed appellant’s
emotional condition. He did not provide any indication that appellant suffered a material worsening of his accepted
emotional conditions, which would have prevented him from working as customer-complaint clerk.

7

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 duty.18 Section 8129(a) of FECA provides, in pertinent part, “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.”19
Section 8116(a) of FECA provides that while an employee is receiving compensation or
if he has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.20
ANALYSIS -- ISSUE 2
OWCP’s March 20, 2002 decision properly reduced appellant’s compensation effective
March 24, 2002 based on a determination that his wage-earning capacity was represented by the
constructed position of customer-complaint clerk. The record documents that appellant was paid
$220,667.76 in compensation between March 24, 2002 and April 10, 2010. The evidence further
shows that, due to the March 20, 2002 wage-earning capacity decision, he was only entitled to
receive $85,829.73 for this period. The difference represents an overpayment of $134,838.03.
The record establishes that appellant received a $134,838.03 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.21 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.”22 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.23

18

5 U.S.C. § 8102(a).

19

Id. at § 8129(a).

20

Id. at § 8116(a).

21

Id. at § 8129(a).

22

Id. at § 8129(b).

23

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

8

In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who-(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect….”24
Section 10.433(c) of OWCP’s regulations provide:
“Whether or not OWCP determines that an individual was at fault with respect to
the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those
circumstances and the individual’s capacity to realize that he or she is being
overpaid.”25
ANALYSIS -- ISSUE 3
OWCP found appellant at fault in the creation of the $134,838.03 overpayment because
he accepted payments which he knew or should have known to be incorrect. It properly
determined that he was at fault in the creation of the overpayment.
Appellant received $220,667.76 in compensation between March 24, 2002 and April 10,
2010, but was only was only entitled to receive $85,829.73 for this period. He claimed that he
never received a final decision with appeal rights regarding the proposed reduction of his
compensation in 2002 based on his ability to work as a customer-complaint clerk. Appellant
asserted that he did not learn of the reduction in his compensation until May 2010. However, the
record contains a March 20, 2002 final decision informing him of the specific details of the
reduction of his compensation effective March 24, 2002. The decision contained attached appeal
rights and was mailed to appellant’s address of record. In a March 26, 2002 letter, appellant
requested a hearing before an OWCP hearing representative to challenge OWCP’s decision to
reduce his compensation. In a November 1, 2002 decision, OWCP determined that appellant had
abandoned his request for a hearing. On appeal, appellant suggested that he was not mentally
competent to understand that he received an overpayment, but he did not present evidence to
support this assertion.
Appellant’s contention that he was not aware of the reduction of his compensation
effective March 24, 2002 is without merit. He received total disability compensation after
24

20 C.F.R. § 10.433(a).

25

Id. at § 10.433(c).

9

March 24, 2002 and knew or should have known that this was incorrect. OWCP made a mistake
by not reducing his compensation in accordance with its March 20, 2002 decision. Even though
it may have been negligent in continuing to issue wage loss for total disability after it reduced his
compensation due to a wage-earning capacity determination, this does not excuse his acceptance
of such checks which he knew or should have been expected to know were incorrect.26 Given
the extremely large amount of compensation appellant received to which he was not entitled, as
well the lengthy period he received these payments, he accepted payments between March 24,
2002 and April 10, 2010, which he knew or should have known were incorrect. Because he was
at fault in the creation of the $134,838.03 overpayment, OWCP properly determined that he
would not be entitled to waiver of recovery of the overpayment.27
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that
modification of OWCP’s March 20, 2002 wage-earning capacity decision was warranted. The
Board further finds that he received a $134,838.03 overpayment of compensation and that he was
at fault in the creation of the overpayment, thereby precluding waiver of recovery of the
overpayment.

26

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

27

See supra notes 22 and 23.

10

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2012 and November 8, 2011
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 5, 2012
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1310
Issued: March 7, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 24, 2021 appellant filed a timely appeal from an April 29, 2021 merit decision
and an August 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 5, 2021 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.

injury; and (2) whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on separate issues. 3 The facts and
circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On July 18, 2000 appellant, then a 46-year-old heavy mobile equipment mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on June 28, 2000 he injured his left shoulder and
neck when installing a starter on an earthmover while in the performance of duty. He stopped
work on June 28, 2000 and returned to work on July 10, 2000. OWCP accepted the claim, assigned
OWCP File No. xxxxxx970 for right lateral epicondylitis and displacement of a cervical
intervertebral disc without myelopathy.
OWCP accepted that appellant sustained a right-hand contusion, a crush injury of the right
fingers, right carpal tunnel syndrome, a right Boutonniere deformity, and traumatic righ t hand
arthropathy due to a May 8, 2001 employment injury under OWCP File No. xxxxxx500 and right
carpal tunnel syndrome due to a June 5, 2003 employment injury under OWCP File No.
xxxxxx576. It administratively combined these claims with OWCP File No. xxxxxx970, with the
latter serving as the master file.
On December 9, 2004 the employing establishment notified appellant of its decision to
remove him for cause.
On July 23, 2019 OWCP expanded its acceptance of the claim to include impingement
syndrome of the left shoulder.
In a report dated March 10, 2020, Dr. John D. Marshall, who specializes in family
medicine, diagnosed displacement of a cervical intervertebral disc without myelopathy,
hypertension, and a shoulder injury.
In an April 22, 2020 report, Dr. Robert V. Glover, Jr., a cardiologist, discussed appellant’s
history of paroxysmal supraventricular tachycardia due to chemical exposure at work.
In a progress report dated May 6, 2020, Dr. Jeffrey A. Fried, a Board-certified orthopedic
surgeon, evaluated appellant for left arm weakness and noted that appellant was disabled and had
not worked in two years. He diagnosed cervical disc displacement, right carpal tunnel syndrome,
contracture at the proximal interphalangeal (PIP) joint of the right little finger, rotator cuff
syndrome, left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a
thyroid cyst, spondylolisthesis, grade 1, spondylolisthesis of the lumbar spine, and
supraventricular tachycardia.

3

Docket No. 15-1477 (issued October 22, 2015); Docket Nos. 09-1090 and 09-0226 (issued March 8, 2010).

2

On June 25, 2020 appellant filed a claim for compensation (Form CA-7) for disability from
work for the period March 5 to June 25, 2020. The employing establishment indicated on the form
that he had been removed for cause on December 13, 2004.
In a development letter dated July 2, 2020, OWCP indicated that appellant was alleging a
recurrence of disability on or around March 5, 2020. It noted that he had received schedule award
compensation through March 5, 2020 and had not been in receipt of wage-loss compensation prior
to the period of his schedule award. OWCP indicated that the employing establishment had
terminated appellant for cause effective December 13, 2004. It notified him of the definition of a
recurrence of disability and requested that he provide additional factual and medical information
supporting that his accepted condition worsened such that he was disabled from employment.
OWCP afforded appellant 30 days to respond to the request.
In an undated response received July 28, 2020, appellant asserted that he had not worked
since June 2008. He noted that the Social Security Administration (SSA) had found that he was
disabled in 2008. Appellant related that Dr. Fried had found that he was disabled under the current
file number. He submitted a decision from SSA finding that he was disabled as of
December 4, 2007.
In a progress report dated August 5, 2020, Dr. Fried evaluated appellant for left shoulder
pain and indicated that appellant was unable to work or perform overhead reaching. He diagnosed
other cervical disc displacement, right carpal tunnel syndrome, contracture at the PIP joint of the
right little finger, rotator cuff syndrome, left elbow bursitis, right shoulder pain, impingement
syndrome of the left shoulder, a thyroid cyst, spondy lolisthesis of the lumbar spine, and
supraventricular tachycardia. Dr. Fried opined that appellant remained disabled.
By decision dated August 28, 2020, OWCP found that appellant had not established a
recurrence of disability beginning March 5, 2020 causally related to his accepted June 28, 2000
employment injury.
On September 12, 2020 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In a report dated October 6, 2020, Dr. Fried evaluated appellant for left shoulder pain. He
noted that appellant had not worked in two years. Dr. Fried repeated the diagnoses in his prior
report. He again opined that appellant remained disabled.
By decision dated December 9, 2020, OWCP’s hearing representative affirmed the
August 28, 2020 decision.
On January 12, 2021 Dr. Fried advised that appellant “remains unemployable. [Appellant]
has multiple orthopedic problems including cervical disc displacement, right carpal tunnel
syndrome, contracture of right little finger, bursitis of left elbow, impingement and joint pain in
right shoulder and left shoulder, and spondylolisthesis of the lumbar spine. In addition, [appellant]
has a history of supraventricular tachycardia with his heart.” He concluded that appellant was
“disabled from participating in the economy.” In a January 12, 2021 progress report, Dr. Fried
provided his previous diagnoses and noted that appellant remained disabled.

3

On February 18, 2021 appellant requested reconsideration. He submitted an April 14, 2021
progress report from Dr. Fried, who provided the same diagnoses and found that appellant
remained disabled.
By decision dated April 29, 2021, OWCP denied modification of its December 9, 2020
decision.
Thereafter, appellant resubmitted the January 12 and April 14, 2021 reports from Dr. Fried
and a January 22, 2010 SSA decision, finding that appellant was disabled beginning
December 4, 2007. He further submitted a March 2013 consultation report regarding his treatment
for tachycardia and an October 9, 2014 cardiology report.
In a rating decision dated June 1, 2021, the Department of Veterans Affairs (DVA)
continued its finding that appellant was 50 percent disabled due to sleep apnea and 30 percent
disabled due to supraventricular tachycardia.
On July 20, 2021 appellant requested reconsideration.
By decision dated August 5, 2021, OWCP denied appellant’s request for reconsideration
as he had not submitted evidence or raised an argument sufficient to warrant reopening his claim
for merit review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition , which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
4

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

4

evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury.
Appellant returned to work following his June 28, 2000 employment injury on
July 10, 2000. In December 2004, the employing establishment removed him from employment
for cause.
On January 12, 2021 Dr. Fried opined that appellant remained disabled from employment.
He diagnosed cervical disc displacement, right carpal tunnel syndrome, contracture of right little
finger, bursitis of left elbow, impingement, joint pain in right shoulder and left shoulder,
spondylolisthesis of the lumbar spine, and supraventricular tachycardia. Dr. Fried, however, failed
to address the cause of appellant’s disability or its relationship to his accepted employment injury.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 9
In progress reports dated May 6, August 5, and October 6, 2020, Dr. Fried discussed
appellant’s complaints of left shoulder pain and diagnosed other cervical disc displacement, right
carpal tunnel syndrome, contracture at the PIP joint of the right little finger, rotator cuff syndrome,
left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a thyroid cyst,
and spondylolisthesis of the lumbar spine. On May 6, 2020 he noted that appellant had not worked
in two years and was disabled. In his August 5 and October 6, 2020 reports, Dr. Fried indicated
that appellant remained disabled. He, while finding that appellant was disabled, did not address
whether the disability was causally related to the accepted employment injury. As noted, medical
evidence that does not offer an opinion regarding the cause of an employee ’s condition is of no
probative value on the issue of causal relationship or disability.10 Without a specific opinion
regarding how the accepted employment injury caused a recurrence of disability, Dr. Fried’s
reports are insufficient to meet appellant’s burden of proof.11

7

L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

8

M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

9

K.F., Docket No. 19-1846 (issued November 3, 2020); L.O., supra note 7; L.B., Docket No. 18-0533 (issued
August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
10

See id.

11

See D.B., Docket No. 21-0503 (issued August 24, 2021).

5

In a March 10, 2020 report, Dr. Marshall diagnosed displacement of a cervical
intervertebral disc without myelopathy, hypertension, and a shoulder injury. On April 22, 2020
Dr. Glover advised that appellant had a history of paroxysmal supraventricular tachycardia due to
chemical exposure at work. As these reports, however, fail to address the issue of whether
appellant was disabled from employment beginning March 2020, they are of no probative value. 12
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which com pensation is
claimed.13 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused disability during the period in question. 14 Appellant, therefore, has not
met his burden of proof.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens

12

See R.J., Docket No. 19-0179 (issued May 26, 2020); see also supra note 11.

13

L.V., Docket No. 19-1725 (issued April 5, 2021); Sandra D. Pruitt, 57 ECAB 126 (2005).

14

Id.

15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4 (February 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

6

and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law, or advanced a relevant legal argument not previously considered by OWCP.
Consequently, he is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(3). 20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted a March 2013 report diagnosing
tachycardia and an October 9, 2014 cardiology report. He also submitted a DVA rating decision
finding that he was 50 percent disabled due to sleep apnea and 30 percent disabled due to
supraventricular tachycardia. This evidence, however, is not relevant to the underlying issue of
whether appellant has established a recurrence of disability beginning March 5, 2020 causally
related to his accepted June 28, 2000 employment injury. The Board has held the submission of
evidence or argument, which does not address the particular issue involved does not constitute a
basis for reopening a case. 21
Appellant resubmitted a January 22, 2010 SSA decision, finding that he was disabled
beginning December 4, 2007 and reports from Dr. Fried dated January 12 and April 14, 2021. The
Board has held, however, that evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case for merit review. 22 Appellant has not
provided relevant and pertinent new evidence and, thus, is not entitled to a merit review based on
the third requirement under section 10.606(b)(3).23
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24

18

Id. at § 10.608(a); see also F.V., Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
20

Id. at § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

21

See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29,
2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).
22

See T.T., Docket No. 19-0559 (issued July 19, 2019); D.K., 59 ECAB 141 (2007); Eugene F. Butler, 36 ECAB
393 (1984).
23

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

24

T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury. The Board further finds that OWCP properly denied his request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 5 and April 29, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8