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

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

Docket No. 15-1118
Issued: August 4, 2015

Case Submitted on the Record

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

JURISDICTION
On April 21, 2015 appellant, through counsel, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) merit decision dated November 12, 2014. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability and is entitled to compensation for wage loss from August 15 to
November 3, 2014.
FACTUAL HISTORY
Appellant, a 61-year-old mail carrier, fell on December 10, 2007 and filed a claim for
benefits on December 13, 2007. The claim was accepted for bilateral shoulder and upper arm
1

5 U.S.C. § 8101 et seq.

sprain, bilateral shoulder and upper arm contusion, bilateral wrist sprain, bilateral wrist
contusion, bilateral hand sprain, and bilateral finger contusion. Appellant underwent authorized
bilateral shoulder arthroscopic subacromial decompressions in 2012 and she missed work for
intermittent periods. She accepted a modified light-duty position on December 16, 2013.
Appellant submitted numerous CA-7 forms requesting compensation for wage loss from
August 15 to November 3, 2014.
By letter to appellant dated September 10, 2014, OWCP requested additional factual and
medical evidence to show disability for work, including medical documentation to establish
medical treatment or that she was unable to work as a result of her work injury for the dates
claimed. It noted that it had not received any medical documentation to support the claimed
periods of disability. OWCP advised appellant that she had 30 days to submit the requested
information.
In a brief medical note dated August 6, 2013, Dr. Anthony Miniaci, a specialist in
orthopedic surgery, stated that he was treating appellant for bilateral shoulder issues. Appellant
also submitted a Form CA-17 dated August 13, 2014 from Dr. Miniaci in which he indicated that
appellant was off work and unable to return because of a rotator cuff injury. Neither of these
reports discussed whether appellant was disabled due to her accepted conditions for the periods
claimed.
By decision dated November 12, 2014, OWCP denied appellant’s claim for
compensation for wage loss from August 15 to November 3, 2014.
LEGAL PRECEDENT
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.2 When an employee, who is disabled from the job he or she held when
injured on account of employment-related residuals, returns to a light-duty position or the
medical evidence establishes that light duty can be performed, the employee has the burden to
establish by the weight of reliable, probative, and substantial evidence a recurrence of disability.
As part of this burden of proof, the employee must show either a change in the nature and extent
of the injury-related condition, or a change in the nature and extent of the light-duty
requirements.3
The Board has long held that whether a particular injury causes an employee disability
for employment is a medical question which must be resolved by competent medical evidence.4

2

20 C.F.R. § 10.5(x).

3

Terry R. Hedman, 38 ECAB 222 (1986).

4

See Donald E. Ewals, 51 ECAB 428 (2000).

2

ANALYSIS
OWCP accepted appellant’s claim and requested that appellant submit medical evidence
to support the period of disability claimed. Appellant did not provide a probative rationalized
medical opinion that she was disabled for work because of her accepted conditions between
August 15 and November 3, 2014.5
To establish entitlement to compensation, an employee must provide medical evidence
that a disability from work resulted from the employment injury.6 The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so would essentially
allow an employee to self-certify his or her disability and entitlement to compensation.7
Whether a claimant’s disability is related to an accepted condition is a medical question which
must be answered by a physician with a complete and accurate factual and medical history. The
physician must state that the disability is causally related to employment factors and support that
conclusion with sound medical reasoning.8 There is no such evidence in this case.
The only medical reports which described her conditions were the August 6, 2014
summary note and an August 13, 2015 form report from Dr. Miniaci. Dr. Miniaci indicated only
that he was treating appellant for bilateral shoulder issues and that she was off work and unable
to work due to a rotator cuff injury. He did not provide a medical opinion explaining how her
accepted bilateral shoulder condition caused disability during the period claimed.9 Appellant has
thus failed to submit such evidence which would indicate that her accepted conditions caused
any wage loss for any periods.
CONCLUSION
The Board finds that appellant has not met her burden to establish that she sustained a
recurrence of disability causally related to her accepted injury and was entitled to compensation
for wage loss from August 15 to November 3, 2014.

5

William C. Thomas, 45 ECAB 591 (1994).

6

Supra note 4.

7

Paul E. Thams, 56 ECAB 503 (2005).

8

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

9

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
W.P., Appellant

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

Docket No. 11-819
Issued: October 20, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from a September 24, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 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 sustained an injury causally related to factors of his federal
employment as a security screener.
FACTUAL HISTORY
On February 9, 2010 appellant, then a 51-year-old security screener filed an occupational
disease claim (Form CA-2) alleging that he sustained a left arm injury as a result of lifting in his
1

5 U.S.C. § 8101 et seq.

federal employment. In a narrative statement, he described working as a baggage screener since
November 2002, and his job involved lifting and moving of heavy baggage. Appellant began
having pain in his shoulders arms and hands in 2004 and, in January 2010, it became severe
enough to require treatment.
In a report dated January 23, 2010, Dr. David Nguyen, a physiatrist, stated that appellant
complained of chronic left forearm pain and intermittent finger numbness. He noted that
appellant frequently picked up luggage at work for the prior seven years. Dr. Nguyen provided
results on examination and noted x-rays of the cervical spine in 2009 showed degenerative disc
disease. He also noted a 2008 MRI scan showing a L4-5 disc bulge, and he indicated that
appellant should have a nerve conduction test to recheck his carpal tunnel status.2
By report dated February 1, 2010, Dr. William Fleury, an internist, indicated that
appellant reported his left arm had been hurting for two weeks. He diagnosed arm pain and
stated that appellant would be referred for nerve conduction velocity testing.
In a decision dated April 6, 2010, OWCP denied the claim for compensation. It found
that the medical evidence was insufficient to establish the claim.
Appellant requested a telephonic hearing before OWCP’s hearing representative, which
was held on July 1, 2010. In a report dated April 26, 2010, Dr. Kaochoy Saechao, an
occupational medicine specialist, provided a history that appellant was a supervisory screener,
who frequently picked up loads of luggage for the past seven years, although the last two years
as a supervisor involved less lifting. He referred to the past medical history as including carpal
tunnel syndrome. Dr. Saechao provided results on examination, noting pain at the left flexor
forearm muscles and tenderness at the left elbow, with an otherwise normal examination. The
Tinel’s/Phalen’s signs were negative as was the carpal compression test. Dr. Saechao diagnosed
left carpal tunnel syndrome and strain of the left arm or forearm, repetitive use. He stated, “The
injury arose out of employment and in the course of employment. In my opinion, the condition
is work related and within worker’s comp guidelines for compensability.”
By decision dated September 24, 2010, OWCP’s hearing representative affirmed the
prior OWCP decision. The hearing representative found the medical evidence was insufficient to
establish the claim.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.4
2

The record contains a September 20, 2006 treatment note from an osteopath, Dr. Mark Goldstein, with a
diagnosis that included carpal tunnel syndrome.
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

2

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.8
ANALYSIS
Appellant filed an occupational claim for injury, identifying lifting of luggage since
November 2002 as the primary employment factor contributing to a left arm injury. The Board
notes there is not any dispute that his job duties involved lifting of luggage, although he
apparently became a supervisor two years prior to the filing of the claim and did somewhat less
baggage lifting.
With respect to medical evidence it is appellant’s burden of proof to submit medical
evidence with a diagnosis and a reasoned opinion on causal relationship between the diagnosed
condition and the identified employment factor. Dr. Nguyen noted left forearm pain and some
finger numbness, although he did not provide a specific diagnosis in this regard. Moreover, he
did not provide any opinion on causal relationship between a diagnosed condition and the
identified employment factors. Dr. Fleury also failed to provide a specific diagnosis or a
rationalized opinion on causal relationship.
Dr. Saechao diagnosed both left carpal tunnel syndrome and left arm or forearm strain.
These are two different diagnoses, and yet the statement on causal relationship is a general
statement that “the injury” and “the condition” are employment related. With respect to a
diagnosis of carpal tunnel syndrome, Dr. Saechao provided no additional explanation. His own
examination did not appear to confirm positive findings regarding carpal tunnel syndrome, and it
is not clear if he was referring to the historical diagnosis of carpal tunnel. The medical history is
unclear on this diagnosis and Dr. Saechao provided insufficient medical rationale or explanation
as to causal relationship with employment.
5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

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

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Id.

3

As to the diagnosis of an arm strain, there needs to be some explanation as to causal
relationship with employment.9 This is not a traumatic injury claim where the claimant
immediately seeks treatment and has a diagnosis of an acute strain.10 Appellant has reported
pain for several years and Dr. Saechao provided no discussion of the nature and extent of any
strain, when it occurred or why he felt it was related to the identified employment factors. It is
his burden of proof to establish that a specific diagnosed condition is employment related and the
Board finds the evidence of record is of diminished probative value.
The Board finds that appellant did not meet his burden of proof to establish an injury
causally related to his federal employment. Appellant may submit new evidence or argument
with a written application 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.
On appeal, appellant resubmitted the April 26, 2010 report from Dr. Saechao. For the
reasons noted above, the report is insufficient to establish the claim for compensation.
CONCLUSION
The Board finds that appellant did not establish causal relationship between a diagnosed
condition and factors of his federal employment.

9

See A.K. Docket No. 10-277 (issued August 9, 2010) (the diagnosis of a right arm or shoulder strain in an
occupational claim by a baggage screener was not accompanied by any explanation as to how the diagnosed
condition was causally related to the employment factors).
10

See e.g., T.E. Docket No. 08-1494 (issued November 26, 2008).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 24, 2010 is affirmed.
Issued: October 20, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, TINKER AIR FORCE
BASE, OK, Employer
__________________________________________

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

Docket No. 10-1557
Issued: May 24, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from the March 9, 2010 merit decision
of the Office of Workers’ Compensation Programs denying his schedule award claim and from a
March 25, 2010 decision denying reconsideration. Pursuant to the Federal Employees’
Compensation Act1 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 entitlement to
schedule award compensation; and (2) whether the Office properly denied his request for further
review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
In August 2009, the Office accepted that appellant, then a 63-year-old packaging
specialist, sustained cervical spondylosis with myelopathy due to his repetitive work duties.2 On
September 8, 2009 appellant filed a claim for a schedule award due to this accepted injury. On
September 16, 2009 the Office requested that he submit additional evidence in support of his
claim.
Appellant submitted a document containing an impairment rating under the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th
ed. 2001). The calculations indicated that he had 20 percent whole person impairment due to
limited neck motion. The document, which is unsigned, indicates that an examination was
carried out on November 5, 2009.
An Office claims examiner indicated that appellant telephoned him on November 19,
2009 and told him that the location where appellant obtained an impairment rating only
performed evaluations under the fifth edition of the A.M.A., Guides. He advised appellant that
an impairment under the sixth edition of the A.M.A., Guides (6th ed. 2009) was needed.
Appellant submitted a single-page document, on letterhead for the Functional Assessment
Centers of Oklahoma, which states that he had 19 percent whole person impairment under Table
17-2, Cervical Spine Regional Grid of the sixth edition of the A.M.A., Guides. The document,
which is unsigned, indicates that an examination was carried out on November 5, 2009.3
On December 23, 2009 the claims examiner called appellant in response to an inquiry
about his schedule award claim. On the form detailing the call, he stated, “telephone call to the
claimant advised him that we have not sent case out for a second opinion.”
In a March 9, 2010 decision, the Office found that appellant had not submitted sufficient
medical evidence to meet his burden of proof to establish entitlement to schedule award
compensation. It found that he had not submitted a probative medical report that provided an
impairment rating in accordance with the standards of the sixth edition of the A.M.A., Guides.

2

Appellant had filed an occupational disease claim for this injury in November 2007 and the acceptance of his
claim appears to have been based on an August 2009 evaluation by Dr. Brent Hisey, a Board-certified neurosurgeon
who served as an Office referral physician. In 1998, he had undergone posterior foraminotomy surgery at C5-6. On
January 19, 2004 Dr. Scott C. Robertson, an attending Board-certified neurosurgeon, performed anterior cervical
discectomy fusion surgery at C5-6 and C6-7 with instrumentation.
3

Neither the Act nor implement federal regulations provide for the payment of a schedule award for loss of use of
the back or spine. See Patricia J. Horney, 56 ECAB 256 (2005). Appellant may receive a schedule award should he
establish permanent impairment to either of his upper extremities.

2

In a March 15, 2010 letter, appellant requested reconsideration of his claim and discussed
the evidence he submitted in support of his claim. He detailed his conversations with the claims
examiner about obtaining appropriate medical evidence regarding his impairment. Appellant
stated:
“I was further advised by [the claims examiner] that I would be sent out for a 2nd
opinion since [the Functional Assessment Centers of Oklahoma] could/would not
provide the proper documentation. I have not received documentation or
instructions on how to proceed to obtain this 2nd opinion.
“Please provide information on where or how to go about receiving this 2nd
opinion so that an informed opinion may be made on my case.”
Appellant submitted a March 15, 2010 letter to the Office in which an employing
establishment official referenced the claims examiner’s discussions with appellant regarding a
second opinion referral to evaluate impairment. The employing establishment official stated,
“We would like you to send the [injured worker] for a second opinion impairment rating.”
In a March 25, 2010 decision, the Office denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, 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.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7 The report of a nonphysician cannot be considered by the
Board in adjudicating a medical matter (such as permanent impairment).8 The Board has held that
the determination of the need for a second opinion examination, the type of examination, the choice

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

Arnold A. Alley, 44 ECAB 912, 920-21 (1993).

3

of locale and the choice of medical examiners are matters within the province and discretion of the
Office.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained cervical spondylosis with myelopathy due to
his repetitive work duties.10 Appellant filed a claim for a schedule award due to this accepted
injury. The Office denied his claim on the grounds that he had not submitted any medical
evidence to establish entitlement to schedule award compensation.
Appellant submitted a document containing impairment rating calculations under the fifth
edition of the A.M.A., Guides. The calculations indicated that he had 20 percent whole person
impairment due to limited neck motion. The document, which is unsigned, indicates that an
examination was carried out on November 5, 2009. Appellant also submitted a single-page
document, on letterhead for the Functional Assessment Centers of Oklahoma, which states that
he had 19 percent whole person impairment under Table 17-2 of the sixth edition of the A.M.A.,
Guides. The document, which is also unsigned, indicates that an examination was carried out on
November 5, 2009.
The Board finds that these unsigned documents are of no probative medical value on the
issue of possible permanent impairment. There is no indication that they were produced by
physicians. Therefore, they do not constitute probative medical evidence.11 Appellant did not
meet his burden of proof to submit medical evidence showing entitlement to schedule award
compensation.12
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,13 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
9

See Dana D. Hudson, 57 ECAB 298 (2006). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.208.6 (September 2000) (an attending physician
should make the schedule award determination whenever possible).
10

Supra note 2.

11

See supra note 8. The Board has held that a medical report may not be considered as probative medical
evidence if there is no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2) and reports lacking proper identification do not constitute probative medical evidence. C.B., Docket No.
09-2027 (issued May 12, 2010).
12

On appeal, appellant asserted that a decision was made on his claim before all of the pertinent information was
obtained. However, it is his burden to submit evidence establishing entitlement to schedule award compensation
and he has not shown that the Office abused its discretion in handling the development of his claim. See supra note
8; D.F., Docket No. 09-1463 (issued August 12, 2010) (it is the claimant’s burden to establish that he or she
sustained a permanent impairment of a scheduled member or function as a result of an employment injury).
13

Under section 8128 of the Act, “[t]he 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).

4

(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.14 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his or her application for review within one year of the date of that decision.15 When a claimant
fails to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.16 The Board has held that the submission of
evidence or argument which does not address the particular issue involved does not constitute a
basis for reopening a case.17 While a reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.18
ANALYSIS -- ISSUE 2
In connection with his application for reconsideration of the Office’s March 9, 2010
denial of his schedule award claim, appellant did not show that the Office erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. He suggested that his claim was improperly denied because he believed that he would
be sent out for a second opinion examination. Appellant did not, however, present support for
this argument. As noted, it is his burden to submit medical evidence supporting permanent
impairment to a schedule member and he did not show abuse of discretion by the Office in
developing his claim.19 The underlying issue in this case is whether appellant submitted
sufficient medical evidence to show his accepted cervical injury caused impairment to either
upper extremity. That is a medical issue which must be addressed by relevant medical
evidence.20 Appellant did not submit any new or relevant medical evidence in this case.
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Appellant did not show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by the Office,
or submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, the Office properly denied merit review.

14

20 C.F.R. § 10.606(b)(2).

15

Id. at § 10.607(a).

16

Id. at § 10.608(b).

17

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

18

John F. Critz, 44 ECAB 788, 794 (1993).

19

Appellant did not explain the relevance of the March 15, 2010 letter from an employing establishment official.

20

See Bobbie F. Cowart, 55 ECAB 746 (2004).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
schedule award compensation. The Board further finds that the Office properly denied
appellant’s request for further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 25 and March 9, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 24, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Neosho, MO, Employer
__________________________________________

)
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)
)
)

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

Docket No. 18-1285
Issued: February 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 14, 2018 appellant filed a timely appeal from a March 23, 2018 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 to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 23, 2018 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish consequential
conditions of post-traumatic seizure and paroxysmal atrial fibrillation disorder as causally related
to his accepted June 22, 2016 employment injury.
FACTUAL HISTORY
On June 22, 2016 appellant, then a 53-year-old archives technician, filed a traumatic injury
claim (Form CA-1) alleging that on that date he fell from the sixth rung of a ladder or from a height
of roughly five feet landing on his back on a concrete floor while in the performance of duty. On
July 19, 2016 OWCP accepted his traumatic injury claim for T12 vertebra compression fracture
and resulting surgery. By decision dated July 19, 2016, it noted that appellant submitted medical
evidence in support of his claim for the additional conditions of seizure disorder and irregular
heartbeat, however, these conditions had not been accepted as employment related.
On November 30, 2016 OWCP expanded acceptance of appellant’s claim to include
complete rotator cuff tear of the left shoulder and adhesive capsulitis of the left shoulder as well
as surgery for these conditions.3 On August 9, 2017 it further expanded acceptance of his claim
to include bilateral pulmonary embolisms as due to his June 22, 2016 employment injury and
resulting spine surgery.
In notes dated June 22, 2016, Dr. Clint R. Dunkle, an osteopath, reported that on that date
appellant had slipped and fell from a seven foot ladder and landed on his back on concrete
sustaining low back pain. While initially hospitalized for his fall, following the administration of
morphine for pain control, he had a tonic-clonic seizure with resulting postictal confusion.
Dr. Dunkle reported that the seizure was attributed to the morphine and not the fall. Appellant’s
family reported that appellant had a history of epilepsy when he was a child as well as a previous
head injury. He was not on anti-seizure medication.
On June 22, 2016 Dr. Ahmed T. Robbie, a Board-certified neurologist, reported that
appellant had been given morphine for pain control following his June 22, 2016 fall and that he
subsequently developed a tonic-clonic seizure which lasted for a few minutes followed by postictal
confusion. He noted that as appellant had a history of a head concussion and seizures as a child,
he had a low threshold for seizures, and that morphine and pain may have provoked or initiated
his June 2016 seizure. Dr. Robbie recommended that appellant avoid morphine as it may provoke
his seizures.
In a June 23, 2016 note, Dr. James P. Sisk, an osteopath, reported that appellant fell from
a ladder resulting in a compression fracture. Appellant had been given pain medications and
subsequently had a seizure with a postictal stage. Dr. Sisk noted that appellant had a history of
seizures as a child.

3
On April 7, 2017 appellant underwent arthroscopic left rotator cuff repair, distal clavicle resection, subacromial
decompression, and lysis of adhesions left shoulder.

2

On June 24, 2016 Dr. Cherylon Yarosh, a Board-certified neurosurgeon, performed
appellant’s surgical stabilization with T1-L2 instrumentation and arthrodesis. She noted that he
sustained acute blood loss, anemia, tachycardia, and a few brief episodes of atrial fibrillation
during the surgery which required treatment with a beta blocker.
In a separate June 24, 2016 note, Dr. Robert Lieurance, a Board-certified orthopedic
surgeon, opined that appellant’s June 22, 2016 seizure was “possibly related” to medications. He
noted that appellant had a history of seizures with the last one occurring when he was 13 years old.
On June 25, 2016 Dr. David Zuehlke, a Board-certified cardiologist, described appellant’s
history of injury on June 22, 2016 and reported that appellant experienced atrial fibrillation during
his June 24, 2016 back surgery as well as an episode of paroxysmal atrial fibrillation following his
surgery. He reported that appellant had a history of heart palpitations beginning two or three years
prior to 2016. Dr. Zuehlke noted that appellant had also had sporadic episodes of short runs of
atrial fibrillation occurring about every six months, but no other cardiac history. He reported, “My
impression is this [appellant] has paroxysmal fibrillation probably predating his surgery and
augmented at this time by hypercatecholaminemia.” On June 26, 27, and 28, 2016 Dr. Zuehlke
continued to note that appellant experienced episodes of proximal atrial fibrillation and to prescribe
medication.
In a report dated July 21, 2016, Dr. Zuehlke noted that on June 26, 2016 appellant had
postoperative atrial fibrillation. He suggested that as appellant’s catecholamine level dropped
following his surgery, the tendency for atrial fibrillation with rapid ventricular response would
dissipate. Dr. Zuehlke found that appellant remained in “postoperative atrial fibrillation.”4
On September 2, 2016 appellant requested that his accepted conditions be expanded to
include the additional conditions of paroxysmal atrial fibrillation and post-traumatic seizure.
In a report dated September 26, 2016, Dr. Jorge A. Gonzalez, a neurologist, noted
appellant’s history of a fall from a ladder in June 2016. He diagnosed T10 compression fracture
and single grand-mal or tonic-clonic seizure episode. Dr. Gonzalez found that appellant’s
electroencephalogram was unremarkable. He noted that appellant reported that he had febrile
convulsions as a child, but that this condition had resolved. Dr. Gonzalez reported that appellant
had had no additional seizures since his June 2016 fall. He diagnosed singular convulsive event
without recurrence and noted that a patient was not considered epileptic until there was evidence
of two or more seizures. Dr. Gonzalez completed an addendum opining that appellant’s
“breakthrough seizure event” was a singular event and therefore not reflective of epilepsy. He

4

On December 29, 2016 Dr. John F. Swartz, a Board-certified cardiologist, diagnosed persistent atrial flutter
associated with rapid ventricular response. He described appellant’s history of injury on June 22, 2016 and noted that
he experienced a seizure. Dr. Swartz reported that following appellant’s T10 through L1 arthrodesis he developed
atrial fibrillation. He diagnosed recurrent atrial dysrhythmias first diagnosed after appellant’s June 22, 2016
employment injury. Dr. Swartz recommended radiofrequency cardiac catheter ablation to eliminate appellant’s atrial
flutter. He noted that appellant’s previously diagnosed paroxysms of atrial fibrillation were “possibly” the triggering
event for his atrial flutter. On January 12, 2017 appellant underwent a radiofrequency cardiac catheter ablation of
Type 1 atrial flutter.

3

further concluded that the seizure was a consequence of appellant’s fall and “reaching [the]
threshold for seizure due to the rotational, gyrational, and translational forces of the injury.”
By development letter dated October 11, 2016, OWCP requested that appellant provide
additional medical evidence regarding his claimed conditions of paroxysmal atrial fibrillation and
post-traumatic seizure. It afforded him 30 days to respond.
In reports dated June 21 and July 14, 2017, Dr. David I. Krohn, a Board-certified internist
acting as a district medical adviser (DMA), reviewed Dr. Zuehlke’s June 24 and 25, 2016 notes
and opined that appellant’s paroxysmal atrial fibrillation “likely” preexisted his 2016 work injury
by several years with intermittent alteration of heart rhythm of which appellant was unaware. He
found that Dr. Zuehlke’s opinion regarding the increased circulating catecholamines was not
unreasonable, but was speculative. The DMA opined that it was the natural history of atrial
fibrillation to occur sporadically, most often with no identifiable cause. He noted that appellant
continued to have episodes of documented atrial fibrillation and atrial flutter episodically for no
apparent reason. The DMA concluded, “In my opinion there was no aggravation of this preexisting
condition specifically resulting from the episode on June 24, 2016. The condition took its natural
course.”
With regard to appellant’s diagnosed post-traumatic seizure, the DMA noted reviewing a
hospital note which reported that appellant had experienced a tonic-clonic seizure with postictal
confusion following a lumbar spine computerized tomography (CT) scan on June 22, 2016 while
hospitalized for his employment injuries. He reported that appellant had a known history of prior
seizures which began in childhood resulting in a diagnosis of epilepsy. The DMA also noted that
appellant had a head injury as a child. He reported that the medical evidence did not support
recurrence of seizures since June 22, 2016 and opined that appellant had experienced a rare
recurrence of his childhood epilepsy during his hospitalization. The DMA opined that the causal
relationship between appellant’s employment injury and the June 22, 2016 seizure had not been
established.
By decision dated August 23, 2017, OWCP denied appellant’s claim for the additional
conditions of paroxysmal atrial fibrillation and post-traumatic seizure. On August 30, 2017
appellant requested an oral hearing before an OWCP hearing representative.
On February 7, 2018 appellant testified at an oral hearing and noted that he had not received
the DMA’s reports and requested that the record remain open for 60 days so that he might submit
new evidence.
Following the oral hearing, in a February 26, 2018 letter, appellant asserted that he had no
history of heart conditions. He denied a preexisting heart condition and alleged that Dr. Zuehlke’s
reports established his claim for atrial fibrillation. Appellant also asserted that Dr. Sisk’s June 22
2016 report established that his seizure occurred due to his fall on June 22, 2016. He submitted
treatments notes from Dr. Ely R. Gordon, an osteopath, dated August 13, 2015 and February 11,
2016 indicating that his heart rate was regular with normal rhythm without murmurs, rubs, or
gallops.

4

By decision dated March 23, 2018, OWCP’s hearing representative affirmed the
August 23, 2017 OWCP decision and found that the June 22 and July 19, 2017 reports from the
DMA were entitled to the weight of the medical evidence and demonstrated that appellant’s
diagnosed post-traumatic seizure and paroxysmal atrial fibrillation disorder were not employment
related.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent,
intervening cause attributable to the employee’s own intentional conduct.5 The basic rule is that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.6 With respect
to consequential injuries, the Board has held that, where an injury is sustained as a consequence
of an impairment residual to an employment injury, the new or second injury, even though
nonemployment related, is deemed, because of the chain of causation to arise out of and in the
course of employment and is compensable.7
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is an opinion of reasonable medical certainty supported by sound medical rationale
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.9 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.10 Where a case is
referred to an impartial medical examiner for the purpose of resolving a conflict, the opinion of

5

D.L., Docket No. 18-0629 (issued November 16, 2018); Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay
After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42 ECAB 193 (1990).
6

D.L., id.; S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB
117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).
7

D.L., id.; L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A. Kelley, 55 ECAB 206 (2004).

8

D.L., id.; J.B., Docket No. 14-1474 (issued March 13, 2015).

9

5 U.S.C. § 8123(a). See D.L., id.; S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
10
D.L., id.; A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

5

such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.11
ANALYSIS
The Board finds that the case is not in posture for a decision.
The record reflects an unresolved conflict of the medical opinion evidence between
Dr. Krohn, the DMA, and Dr. Zuehlke, appellant’s treating physician, regarding whether
appellant’s diagnosed paroxysmal atrial fibrillation disorder was casually related to his June 22,
2016 employment injuries.
In June 21 and July 19, 2017 reports, Dr. Krohn reviewed the medical evidence of record.
He found, based on Dr. Zuehlke’s notes, that appellant’s paroxysmal atrial fibrillation “likely”
preexisted his 2016 work injury. The DMA further found that Dr. Zuehlke’s opinion regarding
the increased circulating catecholamines due to surgery was not unreasonable, but was speculative
and opined that atrial fibrillation naturally occurred sporadically, most often with no identifiable
cause. He concluded that appellant did not sustain an aggravation of his preexisting atrial
fibrillation due to his June 24, 2016 surgery.
Dr. Zuehlke reported that appellant experienced atrial fibrillation during his June 24, 2016
back surgery as well as an episode of paroxysmal atrial fibrillation following his surgery. He noted
that appellant had a history of heart palpitations beginning two or three years prior to 2016.
Dr. Zuehlke opined that appellant’s preexisting paroxysmal atrial fibrillation was “augmented” on
June 24, 2016 by hypercatecholaminemia due to his back surgery. On July 21, 2016 he suggested
that as appellant’s catecholamine level fell following his surgery, the tendency for atrial fibrillation
with rapid ventricular response would dissipate. Dr. Zuehlke noted that appellant remained in
“postoperative atrial fibrillation.” His reports support that appellant’s hypercatecholaminemia
resulting from his accepted back surgery contributed to his paroxysmal atrial fibrillation on and
after June 24, 2016.
The Board finds that a conflict in the medical opinion evidence exists between appellant’s
treating physician, Dr. Zuehlke, who found an aggravation of appellant’s preexisting paroxysmal
atrial fibrillation by his accepted back surgery, and Dr. Krohn, the DMA, who concluded that
appellant’s preexisting paroxysmal atrial fibrillation followed its natural course with no
employment-related aggravation. These reports are of equal probative value. Both physicians
offered a biomechanical explanation for the disparate opinions. Consequentially, the case must be
referred to an impartial medical specialist to resolve the existing conflict in the medical opinion
evidence regarding whether the aggravation of appellant’s paroxysmal atrial fibrillation is a
consequence of his accepted back injury and resulting surgery on June 24, 2016 or a natural
progression of his underlying condition.12

11

D.L., id.; V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB
215 (1994).
12

M.R., Docket No. 17-0634 (issued July 24, 2018); P.R., Docket No. 16-0146 (issued September 9, 2016).

6

On remand OWCP should refer appellant, along with the case file and a statement of
accepted facts (SOAF), to an appropriate specialist for an impartial medical evaluation and a report
including a rationalized opinion as to whether or not his paroxysmal atrial fibrillation is causally
related to his accepted back injury and resulting surgery on June 22, 2016. Following this further
development, OWCP shall issue a de novo decision regarding his claim for a consequential
condition of paroxysmal atrial fibrillation.
The Board further finds that this case is not in posture for a decision due to an unresolved
conflict in the medical opinion evidence regarding whether appellant’s tonic-clonic seizure episode
is causally related to his accepted June 22, 2016 employment injury.
Appellant provided notes from several physicians addressing the cause of his June 22, 2016
seizure. Drs. Robbie and Lieurance attributed appellant’s June 22, 2016 seizure to the
administration of morphine for pain control. However, these opinions were equivocal and of
diminished probative value.13 The physicians used words such as “possibly related” and “may
have provoked” when discussing the relationship between appellant’s seizure and the
administration of morphine. Drs. Dunkle and Sisk opined that appellant’s June 22, 2016 seizure
was due to the administration of morphine following his employment-related fall, but failed to
provide any medical reasoning in support of these opinions. A medical report is of limited
probative value when the opinion on causal relationship lacks medical rationale.14
In his June 21, 2017 report, the DMA noted appellant’s history of a June 22, 2016 tonicclonic seizure with postictal confusion. He found that the seizure occurred following a lumbar
spine CT scan on June 22, 2016 while appellant was hospitalized for his employment injuries. The
DMA noted that appellant had a known history of childhood head injury and seizures with
diagnosis of epilepsy. He opined that appellant had experienced a rare recurrence of his childhood
epilepsy during his hospitalization and that the causal relationship between his injury and the
June 22, 2016 seizure had not been established.
On September 26, 2016 Dr. Gonzalez reported that appellant had experienced febrile
convulsions as child, but that this condition had resolved as he matured. He diagnosed singular
convulsive event. Dr. Gonzalez concluded that the June 22, 2016 seizure was a consequence of
appellant’s fall and “reaching [the] threshold for seizure due to the rotational, gyrational, and
translational forces of the injury.”
The Board finds that the DMA and Dr. Gonzalez offered reasoned medical explanations
for the varying conclusions reached. Dr. Gonzalez found that appellant’s childhood seizure
disorder had resolved and opined that his June 22, 2016 seizure was a direct consequence of his
employment-related fall through the forces of that injury. The DMA attributed appellant’s
June 22, 2016 seizure to a recurrence of his childhood epilepsy rather than to his fall. As the
opposing medical reports are of virtually equal weight and rationale, the Board finds that there is
13

See Y.F., Docket No. 17-1187 (issued June 5, 2018); D.D., 57 ECAB 734 (2006) (Medical opinions that or
speculative or equivocal in character are of diminished probative value).
14
R.V., Docket No. 18-0522 (issued November 5, 2018); T.T., Docket No. 17-0471 (issued August 8, 2017);
Debra L. Dillworth, 57 ECAB 516 (2006).

7

also an unresolved conflict as to whether appellant sustained an employment-related seizure on
June 22, 2016.15
On remand, OWCP should refer appellant, along with the case file and a SOAF, to an
appropriate specialist for an impartial medical evaluation and a report including a rationalized
opinion as to whether or not appellant’s June 22, 2016 seizure was a consequence of his accepted
employment injuries on June 22, 2016. Following this further development, OWCP shall issue a
de novo decision regarding his claim for a consequential condition of tonic-clonic seizure episode.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2018 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: February 12, 2019
Washington, DC

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

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

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

15

Supra note 12.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.L.
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________
Appearances:
Leah Bachmeyer Kille, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 18-0850
Issued: October 29, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
On March 13, 2018 appellant, through counsel, filed a timely appeal from a September 28,
2017 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 12
percent permanent impairment of the left upper extremity and 5 percent permanent impairment of
the right upper extremity, for which she previously received schedule award compensation.

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.

FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 15, 2007 appellant, then a 43-year-old window clerk, filed a notice of
occupational disease claim (Form CA-2) alleging that she sustained a bilateral shoulder injury due
to factors of her federal employment including repetitive motion. OWCP accepted the claim for
bilateral sprains of shoulders, upper arms, and rotator cuff. It authorized a surgical arthroscopy of
the right shoulder on February 7, 2007 and May 21, 2008 and the left shoulder on August 15, 2007
and September 26, 2008.
On June 9, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a December 23, 2013 report, Dr. Michael J. Platto, a Board-certified physiatrist,
indicated that appellant was seen that day for an impairment rating evaluation. He determined that
she had reached maximum medical improvement (MMI) for her accepted condition and conducted
a physical examination, including obtaining a QuickDASH score of 83.33. Dr. Platto noted
tenderness to palpation in the bilateral upper trapezius muscles and bilateral biceps tendons; motor
strength was 5/5 in both upper extremities; sensation was intact; and deep tendon reflexes were
absent in the upper extremities. He noted that active range of motion (ROM) measurements were
done on three successive trials for each shoulder. Left shoulder flexion was 91, 90, and 83 degrees,
extension 27, 30, and 20 degrees, abduction 71, 75, and 78 degrees, adduction 12, 25, and 27
degrees, internal rotation 90 degrees on first trial, and external rotation 88 degrees on first trial.
Right shoulder flexion was 112, 108, and 67 degrees, extension 35, 30, and 33 degrees, abduction
92, 75, and 80 degrees, adduction 18, 25, and 23 degrees, internal rotation 47, 45, and 47 degrees
on first trial, and external rotation 90 degrees on successive trials. Utilizing the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides),4 Dr. Platto explained that he used the ROM methodology for rating permanent
impairment because appellant had ROM deficits. Under Table 15-34, page 475, he used the
maximum obtained ROM for each range and found that appellant had 13 percent permanent
impairment of the left upper extremity and 12 percent permanent impairment of the right upper
extremity.
On April 7, 2015 Dr. Morley Slutsky, Board-certified in occupational medicine serving as
a district medical adviser (DMA), reviewed the medical evidence of record and determined that
appellant’s date of MMI was December 23, 2013, the date of Dr. Platto’s impairment examination.
The DMA found, however, that Dr. Platto’s measurements did not represent appellant’s best effort.
He therefore rated appellant’s impairment using the “preferred” diagnosis-based impairment (DBI)
method, whereas Dr. Platto had used the less-preferred ROM method. Regarding her left shoulder,
the DMA found that her most impairing diagnosis was acromioclavicular joint disease status post
distal clavicle excision, which was a class of diagnosis (CDX) of 1. He assigned a grade modifier
3

Docket No. 15-0117 (issued March 4, 2015).

4

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

2

of 2 for physical examination (GMPE) because there was tenderness to palpation. The DMA found
that Dr. Platto’s ROM measurements were inconsistent with the best effort by appellant and no
other objective deficits were documented. He further found that her QuickDASH score of 83.3
was equal to a grade modifier of 4 for functional history (GMFH) and exceeded the GMPE by 2,
as such the GMFH was not used because it was unreliable. The DMA assigned a grade modifier
of 4 for clinical studies (GMCS). Using the net adjustment formula (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX), he calculated that appellant had a net adjustment of (n/a) + (2-1) + (4-1)
= 4, equaling a grade E. Based on these calculations, the DMA concluded that she had 12 percent
permanent impairment of the left upper extremity.
Regarding appellant’s right shoulder, the DMA found that her most impairing diagnosis
was full thickness rotator cuff tear with residual dysfunction, which was a CDX of 1. He assigned
a GMPE of 2 because there was tenderness to palpation for moderate underlying pathology. The
DMA again noted that Dr. Platto’s ROM measurements were inconsistent. He noted the
QuickDASH score equated to a GMFH of 4 and exceeded the GMPE by 2, and as such the GMFH
was not used because it was unreliable. The DMA assigned a GMCS of 2. Using the net
adjustment formula (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that
appellant had a net adjustment of (n/a) + (2-1) + (2-1) = 2, equaling a grade E. Based on these
calculations, the DMA concluded that she had seven percent permanent impairment of the right
upper extremity.
By decision dated April 27, 2015, OWCP granted appellant a schedule award for 12
percent permanent impairment of the left upper extremity and 7 percent permanent impairment of
the right upper extremity. The award ran for 59.28 weeks for the period December 23, 2013 to
February 10, 2015.
On April 25, 2016 appellant requested reconsideration.
through counsel, again requested reconsideration.

On April 26, 2016 appellant,

In a March 29, 2016 report, Dr. David P. Fowler, a Board-certified orthopedic surgeon,
noted that he had treated appellant in 2007 for her right rotator cuff.
On July 7, 2016 the DMA reviewed the medical evidence and revised his rating using the
diagnosis of a full thickness rotator cuff tear to a partial thickness rotator cuff tear with residual
findings based on the 2007 surgery and a 2012 magnetic resonance imaging (MRI) scan of the
right shoulder which demonstrated “central cuff partial tear” and a “delaminating articular surface
partial tear of infraspinatus with insertional hypertrophic edematous tendinopathy.” He revised
his rating to find that appellant had five percent permanent impairment of the right upper extremity.
OWCP requested that the DMA provide a supplemental report due to an error in the
statement of accepted facts he had been provided. In an August 2, 2016 report, the DMA explained
that he was not initially provided with the right shoulder surgical reports and he subsequently
reviewed the surgery reports, as well as the 2012 MRI scan, which was performed postsurgery.
He reiterated his opinion that appellant had only five percent permanent impairment of the right
upper extremity based on his most impairing diagnosis of partial thickness rotator cuff tear with
residual findings.

3

By decision dated September 22, 2016, OWCP denied modification of its prior schedule
award decision. It further found that appellant had a decrease of two percent permanent
impairment of the right upper extremity and, therefore, the claim would be reviewed to determine
if there had been an overpayment of compensation due to the prior schedule award. 5
On July 11, 2017 appellant, through counsel, requested reconsideration.
In an April 19, 2017 report, Dr. Platto indicated that he disagreed with the DMA’s
impairment rating. He indicated that the ROM method was the “preferred” method, not the DBI
method used by the DMA, “because [he] was referred to it by the DBI grid.” Dr. Platto also
indicated that he closely followed procedures for rating impairment set forth in the A.M.A.,
Guides, page 464, where it provides that ROM should be measured at least three times. Finally,
he argued that his use of the QuickDASH score was appropriate and explained the source cited by
the DMA, page 406, of the A.M.A., Guides was appropriate only for the DBI method, not the
ROM method which he had utilized.
By decision dated September 28, 2017, OWCP denied modification of its September 22,
2016 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,6 and its implementing federal regulations,7 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. 8 For decisions issued after
May 1, 2009, the sixth edition is used to calculate schedule awards. 9
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX condition, which is then adjusted by grade modifiers of GMFH, GMPE, and
GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
5

By decision dated December 28, 2016, OWCP found that appellant received a $5,046.61 overpayment due to
schedule award payments that were in error. It found that she was without fault in the creation of the overpayment,
but denied waiver of recovery because her monthly income exceeded her monthly living expenses.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6
(March 2017).
10

L.T., Docket No. 18-1031 (issued March 5, 2019); A.M.A., Guides 383-492.

11

A.M.A., Guides 411.

4

OWCP’s procedures provide that, after obtaining all necessary medical evidence, that 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
the permanent impairment specified. 12
The A.M.A., Guides also provides that the ROM impairment method of calculating
permanent functional impairment is to be used as a stand-alone rating for upper extremity
impairments when other grids direct its use or when no other diagnosis-based sections are
applicable. If ROM is used as a stand-alone approach, the total of motion impairment for all units
of function must be calculated. All values for the joint are measured and combined. 13 Adjustments
for functional history may be made if the evaluator determines that the resulting impairment does
not adequately reflect functional loss and functional reports are determined to be reliable. 14
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
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.”15 (Emphasis in the original.)
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.

12
R.B., Docket No. 18-1308 (issued January 10, 2019); P.R., Docket No. 18-0022 (issued April 9, 2018); supra
note 9 at Chapter 2.808.6f (March 2017).
13

A.M.A., Guides 473.

14

Id. at 473-74.

15
FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket
No. 18-0329 (issued July 26, 2018).

5

“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.”16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified. 17
ANALYSIS
The Board finds that this case is not in posture for decision.
As noted above, FECA Bulletin No. 17-06 provides detailed instructions for obtaining
sufficient evidence to conduct a complete impairment evaluation. 18 It indicates that, if the rating
physician provides an assessment using the ROM method, the DMA should independently
calculate impairment using both the ROM and DBI methods and identify the higher rating. FECA
Bulletin No. 17-06 further provides that the evaluator should obtain three independent
measurements for ROM of each affected body part and that the greatest measurement should be
used to determine the extent of impairment. 19 FECA Bulletin No. 17-06 further indicates that
OWCP should instruct the physician to obtain three independent measurements. 20
Appellant’s attending physician provided an impairment rating report in which he relied
upon the ROM methodology in finding 13 percent permanent impairment of the left upper
extremity and 12 percent permanent impairment of the right upper extremity. OWCP then properly
routed the case record to Dr. Slutsky, serving as a DMA, who determined that the ROM
measurements obtained by Dr. Platto were inconsistent and therefore could not be used. As such,
the DMA rated permanent impairment utilizing only the DBI method without requesting additional
physical examination findings. Upon notification that the ROM measurements were inconsistent,
OWCP did not request nor obtain a supplemental report from Dr. Platto or a second opinion
physician.21
As OWCP did not obtain a supplemental report from the attending physician, Dr. Platto,
or schedule a second opinion evaluation to obtain the necessary ROM measurements required for
rating impairment in accordance with the procedures set forth in the A.M.A., Guides and FECA
16

Id.

17

L.T., supra note 10; B.R., Docket No. 17-0294 (issued May 11, 2018).

18

Id.

19

Id.

20

Id.

21

See supra note 17.

6

Bulletin No. 17-06, the case must be remanded to OWCP for further development. On remand it
shall obtain the evidence necessary to complete the rating as prescribed in FECA Bulletin No.
17-06, including calculation under both ROM and DBI methodologies with an award based upon
the higher rating.22 Following this such further development as deemed necessary, OWCP shall
issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 28, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 29, 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

22
R.B., supra note 11; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 12, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., claiming as widow of R.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Lacey, WA, Employer
__________________________________________

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

Docket No. 17-0950
Issued: December 8, 2017

Case Submitted on the Record

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

JURISDICTION
On March 29, 2017 appellant, through counsel, filed a timely appeal from a February 9,
2017 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 the employee’s death on May 5, 2012 was in the performance of
duty causally related to his federal employment.
FACTUAL HISTORY
On January 9, 2014 appellant filed a claim for compensation by widow (Form CA-5)
alleging that the death of the employee, a public assistance counselor, then 55 years old, on
May 5, 2012 was causally related to his federal employment. On the form she asserted that
work-related stress contributed to the employee’s death. The death certificate, signed by Deputy
Coroner Kristina Vilsack, listed cause of death as probable sudden cardiac event, and
hypertensive cardiovascular disease. Other contributing factors were reported as obesity and
tobacco abuse.
An October 6, 2012 report, signed by the coroner, Gary Warnock, and deputy coroner,
indicated that the employee was a supervisory public assistance coordinator who had been on a
work assignment in Lacey, Washington since March 2012. According to the report, a supervisor
reported the employee was not feeling well on May 2, 2012, took sick leave on May 3, 2012, and
reported for work on May 4, 2012, but was still not feeling well. The coroner’s report noted that
a coworker had reported that the employee appeared to be under an abnormally high amount of
stress while in Lacey, and was troubled about a possible subpoena related to a previous project in
St. Louis, MO. The coroner indicated that the employee had been seen by Dr. Steven Bule, a
family practitioner, in March 2012, and Dr. Bule noted that the employee was a candidate for
premature cardiac-related death. In addition, the report indicated that, a forensic pathologist,
Dr. Gina Fino, had been consulted. Dr. Fino agreed the most likely cause of death was a cardiac
event due to underlying hypertensive cardiovascular disease. The coroner’s report concluded
that other contributing causes of death were chronic obstructive pulmonary disease (COPD),
tobacco abuse, and obesity. Additionally, “In consideration of statements from friends,
coworkers, and family, increased work-related stress was also cited as a contributing factor.”
By letter dated September 18, 2014, OWCP requested that appellant submit additional
evidence with respect to her claim. In a note received on September 26, 2014, appellant wrote
that the employee was in travel status 86 percent of the time since he began his federal
employment with the employing establishment in 2010. According to her, the pressure was
apparently too much for her spouse, and she contended that he did not feel comfortable with his
last assignment, although he did not say anything to her.
In a note dated September 3, 2014, Dr. Bule wrote that the employee was a patient for
years before his death. He asserted that information from clinic visits corroborated a known
history of job stress with frequent travel and long hours. Dr. Bule submitted a September 8,
2011 report of an annual physical for the employee. He indicated that appellant was 54 years
old, smoked one pack of cigarettes per day, had intermittent breathlessness, hypertension and
degenerative arthritis pain, intermittent with weight fluctuation, with inactivity, with increased
job demands, and stress. Dr. Bule diagnosed sinusitis, polycythemia, bronchitis, allergic rhinitis,
tremor, osteoarthritis, hypertension, gastroesophageal reflux disease (GERD), and COPD.

2

Appellant submitted an undated statement indicating that she felt that there were several
issues contributing to her husband’s, the employee’s, death. She wrote that, in May 2011, the
employee worked in Missouri and supervised over 25 employees and had to work long hours,
and she could hear from his voice that he was stressed. At one point the employee told appellant
that she did not realize how much stress he was under. Appellant also indicated that there was
going to be a restructuring of his division and he would have to reapply for his position. As to
the assignment in Lacey, she wrote that the employee indicated that he was not happy there, but
stated that the assignment would end by Memorial Day 2012.
By decision dated February 20, 2015, OWCP denied the claim for compensation. It
found that the evidence was insufficient to establish any compensable work factors with respect
to appellant’s allegations.
On February 25, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on October 15, 2015. By decision dated
December 28, 2015, the hearing representative remanded the case for further development. She
directed OWCP to secure additional information regarding the alleged factors of employment.
The record contains a memorandum of conference dated April 12, 2016, with an OWCP
claims examiner and a representative of the employing establishment. The employing
establishment provided a record of the employee’s travel.
In a decision dated April 14, 2016, OWCP reviewed the merits and denied modification.
It found that, while the evidence did show that the employee had frequent and prolonged travel
as part of his duties, there was no evidence that this contributed to his death. In addition, OWCP
found that there was no supporting evidence with respect to allegations that staff was not well
trained, that a supervisor requested transfer of some of the staff, or that monitoring staff was
stressful to appellant. It concluded that there were no accepted compensable work factors.
Counsel again requested a hearing before an OWCP hearing representative on
April 19, 2016. A hearing was held on December 6, 2016. Appellant again indicated that travel
was stressful for her husband, although he did not talk about it as he did not want to worry her.
By decision dated February 9, 2017, the hearing representative affirmed the April 14,
2016 OWCP decision. He found that the evidence failed to establish a compensable work factor
with respect to the allegations.
LEGAL PRECEDENT
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.3 Where an
employee is on temporary-duty assignment away from his federal employment, he or she is

3

Id. at § 8133(a).

3

covered by FECA 24 hours a day with respect to any injury that results from activities essential
or incidental to his temporary assignment.4
The fact that an employee is on a special mission or in travel status during the time a
disabling condition manifests itself does not raise an inference that the condition is causally
related to the incidents of employment.5 The medical evidence must establish a causal
relationship between the condition and factors of employment.6
An award of compensation in a survivor’s claim may not be based on surmise,
conjecture, or speculation or on appellant’s belief that the employee’s death was caused,
precipitated, or aggravated by the employment.7 Appellant has the burden of proof to establish
by the weight of the reliable, probative, and substantial medical evidence that the employee’s
death was causally related to an employment injury or to factors of his or her employment.7 This
burden includes the necessity of furnishing rationalized medical opinion evidence of a cause and
effect relationship, based on a complete factual and medical background.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 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 supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
In the present case, appellant filed a Form CA-5 claim alleging that the death of her
spouse on May 5, 2012 was causally related to his federal employment. The employee was a
supervisory public assistance counselor, who had been on a temporary-duty work assignment
since March 2012. Appellant contends that stress from his federal employment while he was on
his temporary-duty assignment contributed to his death.
The Board finds that, in the present case, it is undisputed that the employee was on an
official travel assignment on May 5, 2012.10 Under FECA, an employee on travel status or a
temporary-duty assignment or special mission for his employing establishment is in the
performance of duty and therefore under the protection of FECA 24 hours a day with respect to
4

D.R., Docket No. 16-1395 (issued February 2, 2017).

5

Id.

6

Samuel P. Isenberger, Docket No. 06-0864 (issued June 23, 2006).

7

R.G., claiming as widow of O.G., Docket No. 17-0916 (issued September 6, 2017).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

10

Barbara Johnsen, (James C. Johnsen), 54 ECAB 839 (2003).

4

any injury that results from activities essential or incidental to his special duties.11 The medical
evidence must establish causal relationship between the condition and any employment factors.12
The Board finds that the case is not in posture for decision as to whether the temporaryduty assignment caused or contributed to the employee’s death.
This case will therefore be remanded to OWCP for such further development of the
evidence as necessary, to be followed by a de novo decision addressing whether the employee’s
death was causally related to his travel status.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 9, 2017 is set aside and this case is remanded to OWCP
for further proceedings consistent with this opinion.
Issued: December 8, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O Connor,
4 ECAB 21 (1950).
12

Jennifer L. Sharp, 48 ECAB 209 (1996).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
PHILADELPHIA VA MEDICAL CENTER,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0986
Issued: January 20, 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 15, 2021 appellant, through counsel, filed a timely appeal from a December 17,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from OWCP’s last merit decision, dated December 5, 2019, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this 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 OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 4, 2019 appellant, then a 59-year-old advanced medical services assistant, filed
an occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome
due to factors of her federal employment, including prolonged typing. She noted that she first
became aware of her condition and its relation to her federal employment on November 12, 2018.
In support of her claim, appellant submitted a medical report dated November 12, 2018
from Dr. Bezarel M. Banadda, a Board-certified internist, who diagnosed pain in the left and right
hands. OWCP also received a partially illegible note from a medical facility, dated December 13,
2018, which noted that the patient had bilateral severe carpal tunnel syndrome.
In a development letter dated May 30, 2019, OWCP informed appellant that additional
medical and factual evidence was necessary to establish her claim. It advised her of the type of
factual and medical evidence needed and provided a questionnaire for her completion. By separate
development letter of even date, OWCP requested that the employing establishment provide
comments from a knowledgeable supervisor regarding appellant’s allegations. It afforded both
parties 30 days to respond.
By decision dated July 24, 2019, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish factors of her federal employment. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
On July 29, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on October 23, 2019.
During the telephonic hearing, she alleged that she held three different clerk/typist jobs during the
37 years of her federal employment, all of which required her to type and use a computer and
mouse. The hearing representative afforded appellant 30 days to submit additional evidence.
In a medical report dated November 11, 2019, Dr. Meredith N. Osterman, a Board-certified
hand and orthopedic surgeon, reviewed appellant’s electromyography (EMG) test and diagnosed
severe bilateral carpal tunnel syndrome.
OWCP also received reports dated November 13 and December 13, 2018 from
Dr. Osterman in which she related that appellant experienced numbness, tingling, and burning at
the tip of her fingers for the past 11 months. Dr. Osterman diagnosed bilateral carpal tunnel
syndrome.
By decision dated December 5, 2019, a hearing representative modified OWCP’s July 24,
2019 decision to find that appellant had established the alleged factors of her federal employment,
but denied the claim as causal relationship had not been established.

2

On July 20, 2020 appellant, through counsel, requested reconsideration o f OWCP’s
December 5, 2019 decision. Counsel noted that he was enclosing a copy of a June 30, 2020
narrative report from Dr. Osterman. However, no additional medical evidence was received.
By decision dated December 17, 2020, OWCP denied appellant’s request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
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 or her own motion or on application.3
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.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 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. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

3

Id. at § 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).
4

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).
5

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. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). 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

Id. at § 10.608(a); see also A.F., Docket No. 19-1832 (issued July 21, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); J.B., Docket No. 20-0145 (issued September 8, 2020); Y.K., Docket No. 18-1167 (issued
April 2, 2020); E.R., Docket No. 09-1655 (issued March 18, 2010).

3

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, appellant has not advanced a relevant legal argument not
previously considered. Consequently, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3). 8
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Although appellant’s counsel stated that a narrative report
from Dr. Osterman was enclosed with the reconsideration request, OWCP did not receive any
additional evidence. As appellant did not provide relevant and pertinent new evidence, she is not
entitled to a merit review based on the third requirement under 20 C.F.R. § 10.606(b)(3). 9
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. 10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

8

C.B., Docket No. 18-1108 (issued January 22, 2019).

9

See T.W., Docket No. 18-0821 (issued January 13, 2020).

10

J.B., supra note 7; D.G., Docket No. 19-1348 (issued December 2, 2019).

4

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 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

5