United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE ARMY, PINE BLUFF
ARSENAL, Pine Bluff, AR, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-81
Issued: April 21, 2009

Oral Argument March 24, 2009

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

JURISDICTION
On October 15, 2008 appellant filed a timely appeal from a nonmerit decision of the
Office of Workers’ Compensation Programs dated May 23, 2008 denying his untimely request
for reconsideration and finding that it failed to establish clear evidence of error. Because more
than one year has elapsed between the last merit decision dated January 23, 2006 and the filing
of this appeal on October 15, 2008, the Board lacks jurisdiction to review the merits of his claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

FACTUAL HISTORY
This is the fifth appeal before the Board. In the first appeal,1 the Board affirmed the
Office’s denial of his hearing request and the suspension of benefits on the grounds that he failed
to attend a scheduled medical examination.2 The Board, however, found the Office had abused
its discretion in denying appellant’s request for reconsideration regarding his failure to attend the
scheduled medical examination as appellant raised new contentions not previously considered by
the Office. In the second appeal, the Board affirmed the March 2, 2001 decision which denied
appellant’s request for modification of the suspension of his compensation benefits effective
September 13, 1998 on the grounds that he failed to attend a scheduled medical examination.3
The Board, in the third appeal, set aside a June 19, 2003 decision,4 as the decision contained no
findings of fact regarding appellant’s request for retroactive compensation and remanded the
case for further action on appellant’s request.5 On July 19, 2006 the Board in the fourth appeal
affirmed the Office hearing representative’s January 19, 2006 decision.6 The hearing
representative affirmed the suspension of appellant’s benefits for the period September 3, 1998
to July 10, 2002 on the grounds that he failed to attend a scheduled medical examination. He
found appellant’s arguments that the suspension of his benefits would not have occurred had he
been given a merit review at the time to have no validity and, thus, found appellant was not
entitled to retroactive compensation for this period in question. On December 29, 2006 the
Board granted the Director’s petition for reconsideration and modified the prior decision to
reflect that appellant was entitled to the resumption of his compensation on May 22, 2002 as this
was the date appellant indicated his willingness to attend the scheduled examination.7 In the
1

Docket No. 99-1694 (issued January 22, 2001). On March 3, 1986 appellant, then a 29-year-old protective and
safety equipment repairer, alleged he injured his back, left arm and right knee when he tripped and fell on that date
while moving railroad iron. The Office accepted the claim for contusions of the right knee, left arm and back and a
L5-S1 bulging disc.
2

In the June 23, 1998 letter referring appellant to Dr. Joe Schooler for an impartial examination, the Office
informed appellant of the consequences of his refusal to submit to the examination under 5 U.S.C. § 8123(d).
Appellant did not attend the initial appointment or the rescheduled appointment. The Office advised appellant by a
July 9, 1998 letter of the consequences of his refusal to submit and provided him 15 days to provide reasons for his
failure to attend the initial scheduled appointment. By decision dated September 1, 1998, the Office suspended
compensation for refusing to submit to an examination with Dr. Schooler. The Office denied appellant’s request for
modification of the September 1, 1998 decision on February 2, 1999.
3

Docket No. 01-1366 (issued May 2, 2002). This decision is not contained in the record. In a letter dated
May 22, 2002, appellant indicated his willingness to attend the scheduled examination with Dr. Schooler.
Subsequent to the Board’s decision the Office scheduled appellant for an examination on July 10, 2002, which
appellant attended. In a letter dated August 28, 2002, appellant’s representative requested benefits to resume
including past compensation benefits.
4

In this decision the Office attached the findings from the March 2, 2001 decision, without addressing appellant’s
request for retroactive compensation benefits.
5

Docket No. 04-1157 (issued August 23, 2004).

6

Docket No. 06-713 (issued July 19, 2006).

7

Order granting petition for recon. (modifying prior decision) and denying appellant’s petition for recon, Docket
No. 06-713 (issued July 19, 2006).

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same order, the Board also denied appellant’s petition for reconsideration as appellant had not
shown any error of law or fact with regard to appellant’s request for retroactive pay for the
period in question.8 The law and the facts as set forth in the Board’s decision and order are
incorporated by reference.
On May 5, 2008 appellant requested reconsideration of the denial of his claim for
retroactive wage-loss compensation for the period September 3, 1998 to July 10, 2002. He
contended that he was not in obstruction of the examination as the Office claimed.
By decision dated May 23, 2008, the Office denied appellant’s request for further review
of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act9 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.10 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.11 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.12
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit, and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.13 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
8

The original period in question was September 3, 1998 to July 10, 2002. In view of the Board’s granting of the
Director’s petition for reconsideration the period in question has been modified to September 3, 1998 to
May 22, 2002. The record contains evidence that appellant was paid wage-loss compensation for the period May 22
to July 9, 2002 on October 12, 2006.
9

5 U.S.C. § 8101 et seq.

10

20 C.F.R. § 10.605.

11

20 C.F.R. § 10.607(a).

12

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

13

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

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evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of the Office such that the Office abused its
discretion in denying merit review in the face of such evidence.14
ANALYSIS
The Board has duly reviewed the case record and finds that the Office properly
determined that appellant’s May 5, 2008 request for reconsideration was untimely filed and did
not demonstrate clear evidence of error.
At oral argument appellant noted he had filed a reconsideration request with the Board
following the July 19, 2006 Board decision and referenced 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.606 and 10.607. The Board notes that 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605, 10.606
and 10.607 pertain to reconsideration requests before the Office. In order to file a timely request
for reconsideration before the Office, a request must be made within one year of the last merit
decision.15 The regulations governing petitions for reconsideration before the Board are located
at 20 C.F.R. § 501.7. Any petition for reconsideration of a Board decision or order must be filed
within 30 days of the decision or order unless another period is specified therein.16
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.17 However a right
to reconsideration within one year also accompanies any subsequent merit decision on the
issues.18 The last merit decision in this case was the Board’s December 29, 2006 order granting
the Director’s petition for reconsideration and denying appellant’s petition for reconsideration.
In its December 29, 2006 order granting the Director’s petition for reconsideration, the Board
modified its July 19, 2006 decision to reflect that the period in question was September 3, 1998
to May 22, 2002. As appellant’s request for reconsideration was submitted more than one year
after the most recent merit decision of record, it was untimely. Consequently, he must
demonstrate clear evidence of error in the denial of his claim for retroactive wage-loss
compensation for the period September 3, 1998 to May 22, 2002.
Appellant did not submit any additional factual or medical evidence with his untimely
reconsideration request. He has made no showing that the Office committed any error in finding
that he was not entitled to retroactive wage-loss compensation for the period September 3, 1998
to May 22, 2002. For these reasons, the Board finds that he has not established clear evidence of
error on the part of the Office.
14

See Alberta Dukes, supra note 13.

15

20 C.F.R. § 10.607.

16

Id. at § 501.7(a) (2008).

17

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

18

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

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CONCLUSION
The Board finds that the Office properly found appellant’s application for reconsideration
untimely and that it failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 23, 2008 is affirmed.
Issued: April 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Perry, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0759
Issued: March 11, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On February 26, 2018 appellant filed a timely appeal from a September 18, 2017 merit
decision and a January 5, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). The Clerk of the Appellate Boards assigned Docket No. 18-0759.
On August 10, 2017 appellant, then a 51-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 20, 2017 she sustained an injury at work due to tripping
on a grass runner and falling to the ground while delivering a parcel. She asserted that she
sustained injury to her legs, knees, back, and neck. Appellant stopped work on August 9, 2017.
By decision dated September 18, 2017, OWCP denied appellant’s claim for a July 20, 2017
employment injury. It accepted the occurrence of the July 20, 2017 employment incident in the
form of tripping and falling to the ground, but further found that appellant failed to submit medical
evidence sufficient to establish a specific condition causally related to the accepted July 20, 2017
employment incident. OWCP listed documents received from appellant that it had reviewed in
making its findings, including August 2 and 9, 2017 work status reports, a July 30, 2017
computerized tomography scan of the lumbar spine, and a July 30, 2017 report of Dr. Chuc V.
Pham, an attending family practitioner.
The Board notes, however, that appellant submitted a number of documents prior to the
issuance of OWCP’s September 18, 2017 decision which were not reviewed by OWCP. These

documents include a July 28, 2017 report of Dr. Sabry Gabriel, an attending family practitioner,
August 2, 9, and 21, 2017 reports of Dr. Wayne Kelley, an attending Board-certified orthopedic
surgeon, two August 21, 2017 reports of Dr. Winston Jeshuran, an attending Board-certified
orthopedic surgeon, and an August 15, 2017 magnetic resonance imaging scan of the lumbar spine.
The Federal Employees’ Compensation Act provides that OWCP shall determine and make
findings of fact in making an award for or against payment of compensation after considering the
claim presented by the employee and after completing such investigation as OWCP considers
necessary with respect to the claim.1 Since the Board’s jurisdiction of a case is limited to reviewing
that evidence which is before OWCP at the time of its final decision,2 it is necessary that OWCP
review all evidence submitted by a claimant and received by OWCP prior to issuance of its final
decision. As the Board’s decisions are final as to the subject matter appealed,3 it is crucial that all
evidence relevant to that subject matter which was properly submitted to OWCP prior to the time of
issuance of its final decision be addressed by OWCP.4
Herein, OWCP did not review evidence received prior to the issuance of its September 18,
2017 decision, i.e., the documents described above. The Board, therefore, must set aside OWCP’s
September 18, 2017 decision and remand the case so that OWCP may fully consider the evidence
that was properly submitted by appellant prior to the issuance of this decision. Following such
further consideration, OWCP shall issue a de novo decision.

1

5 U.S.C. § 8124(a)(2).

2

20 C.F.R. § 501.2(c).

3

Id. at § 501.6(d).

4

See E.P., Docket No. 14-0278 (issued February 26, 2014); see also William A. Couch, 41 ECAB 548, 553 (1990).

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IT IS HEREBY ORDERED THAT the September 18, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for action
consistent with this order.5
Issued: March 11, 2019
Washington, DC

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

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

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

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The record contains a January 5, 2018 decision in which OWCP denied appellant’s request for review of the
written record by a representative of OWCP’s Branch of Hearings and Review. Given the Board’s disposition of the
merit issue of the present case, it is premature to consider this nonmerit issue.

3


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

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

Docket No. 15-1677
Issued: December 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 4, 2015 appellant filed a timely appeal from a May 21, 2015 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 the case.
ISSUE
The issue is whether appellant has established eligibility for continuation of pay.
FACTUAL HISTORY
On April 6, 2015 appellant, then a 47-year-old city carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 4, 2015 he tripped over a shovel and fell
injuring his right wrist. The CA-1 form was signed by appellant on March 23, 2015.
Appellant’s supervisor, Michelle Johnson, signed the form on March 4, 2015. The employing
1

5 U.S.C. § 8101 et seq.

establishment stamped the CA-1 form as received on March 19, 2015. However, the employing
establishment noted that the claim was not filed within 30 days and indicated the date that it
received the notice was April 6, 2015. The employing establishment did not indicate that
appellant stopped work.
Appellant was treated by Dr. Desiree Kempcke, a Board-certified orthopedist, on
March 18, 2015, who diagnosed intra-articular radius fracture with small displacement of a distal
radial ulnar joint fragment. Dr. Kempcke noted that appellant could return to work, but could
not lift more than three pounds with his right hand.
On April 20, 2015 OWCP advised appellant of the type of factual and medical evidence
needed to establish his claim. Appellant submitted a report from Dr. Kempcke dated March 18,
2015 who diagnosed intra-articular radius fracture with small displacement of a distal radial
ulnar joint fragment. He also submitted a report from Dr. Paul Dworak, a Board-certified
orthopedist, dated March 19, 2015, who placed appellant in a right short arm cast. An April 10,
2015 report from Dr. Corey Wulf, a Board-certified orthopedist, diagnosed work-related right
extra articular distal radius fracture. Dr. Wulf transitioned appellant from the right arm cast to a
splint. Each of these physicians found that appellant could return to work within restrictions.
By decision dated May 21, 2015, OWCP accepted appellant’s claim for closed fracture of
the lower end of the right radius.
In another decision dated May 21, 2015, OWCP denied appellant’s claim for continuation
of pay because he had failed to submit a written claim within 30 days of his March 4, 2015
employment injury.
LEGAL PRECEDENT
Section 8118(a) of FECA authorizes continuation of pay, not to exceed 45 days, to an
employee who has filed a claim for a period of wage loss due to a traumatic injury with his or her
immediate superior on a form approved by the Secretary of Labor within the time specified in
section 8122(a)(2) of this title.2 This latter section provides that written notice of injury shall be
given within 30 days.3 The context of section 8122 makes clear that this means within 30 days
of the injury.4
OWCP regulations provide, in pertinent part, that to be eligible for continuation of pay,
an employee must: (1) have a traumatic injury which is job related and the cause of the disability
and/or the cause of lost time is due to the need for medical examination and treatment; (2) file
Form CA-1 within 30 days of the date of the injury (but if that form is not available, using

2

Id. at § 8118(a).

3

Id. at § 8122(a)(2).

4

Robert M. Kimzey, 40 ECAB 762, 763-64 (1989); Myra Lenburg, 36 ECAB 487, 489 (1985).

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another form would not alone preclude receipt); and (3) begin losing time from work due to the
traumatic injury within 45 days of the injury.5
The employee must provide a written report on a Form CA-1 to the employing
establishment within 30 days of the injury.6 OWCP’s procedures state that another OWCPapproved form, such as CA-2, CA-2a, or CA-7, which contain words of claim, can be used to
satisfy timely filing requirements.7
The Board has held that section 8122(d)(3) of FECA,8 which allows OWCP to excuse
failure to comply with the time limitation provision for filing a claim for compensation because
of exceptional circumstances, is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. Thus, there is no provision in the law for excusing an
employee’s failure to file a claim within 30 days of the employment injury.9
ANALYSIS
Appellant filed a written notice of a traumatic injury on April 6, 2015 more than 30 days
after his injury on March 4, 2015. Because he filed the claim on April 6, 2015, the Board finds
that it was not filed within 30 days of the injury, as specified in sections 8118(a) and
8122(a)(2) of FECA.
On appeal appellant indicated that he originally submitted Form CA-1 unsigned and the
CA-1 form was returned. He noted the supervisor who filled out the accident report was moved
to a different station and the employing establishment’s injury compensation specialist sent the
information to the wrong address which caused a delay in the submission of the Form CA-1.
Appellant indicated that for these reasons he did not submit a signed Form CA-1 within 30 days
of the injury. There is no provision in FECA for excusing a late filing and therefore appellant is
not entitled to continuation of pay.10 This is so regardless of any failure on the part of the
employing establishment.11 The Board finds that appellant was not entitled to continuation of
pay as he did not file within the requisite 30 days from the date of injury.12
5

20 C.F.R. § 10.205(a)(1-3). See also J.M., Docket No. 09-1563 (issued February 26, 2010).

6

Id. at § 10.210(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Continuation of Pay and Initial Payments, Chapter
2.807.5(b) (June 2012).
8

5 U.S.C. § 8122(d)(3).

9

Dodge Osborne, 44 ECAB 849, 855 (1993).

10

Id.

11

See 20 C.F.R. § 10.211 (the employer’s responsibilities in continuation of pay cases).

12

Id. This decision only applies to continuation of pay. It does not preclude appellant from filing a claim for
wage-loss compensation if he missed time from work due to the accepted injury.

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CONCLUSION
The Board finds that appellant has not established eligibility for continuation of pay.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Towson, MD, Employer
__________________________________________

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

Docket No. 17-0682
Issued: July 24, 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 February 6, 2017 appellant, through counsel, filed a timely appeal from a
November 10, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and medical benefits effective March 15, 2016 as she had no further disability or
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.

residuals causally related to her December 14, 2014 employment injury; and (2) whether
appellant has established continuing employment-related disability after March 15, 2016.
FACTUAL HISTORY
On December 18, 2014 appellant, then a 32-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 14, 2014 she sprained her left ankle and leg in the
performance of duty. OWCP accepted the claim for a left ankle sprain. Appellant stopped work
on December 15, 2014 and returned to part-time modified employment on March 6, 2015. She
again stopped work in November 2015 and received disability compensation from OWCP.3
Appellant underwent electrodiagnostic testing on January 19, 2015 which revealed left
peroneal neuropathy at the fibular head. A March 25, 2015 magnetic resonance imaging (MRI)
scan demonstrated a grade 1 strain of the anterior talofibular and calcaneofibular ligaments, a
mild strain in the distal muscles fibers of the gastrocnemius and soleus, and minimal “soft tissue
edema in the Kager’s fat pad, retro-Achilles soft tissue, medial and lateral aspect of the ankle,
[and] sinus tarsi as well as [the] lateral aspect of the hind foot.”
In a September 4, 2015 report, Dr. Noman Siddiqui, a podiatrist, evaluated appellant for a
left ankle condition following a December 14, 2014 injury at work. He noted that she was
currently restricted to sedentary duties. Dr. Siddiqui diagnosed possible common peroneal nerve
neuropathy of the left ankle, an anterior talofibular ligament (ATFL) sprain of the left ankle,
chronic left ankle instability, and chronic left ankle pain. He advised that it was “a little
concerning that [appellant] is disabled to this degree after a, what appears to be, at least, per the
MRI [scan study] findings, a mild sprain.” Dr. Siddiqui referred appellant for physical therapy.
On October 30, 2015 Dr. Siddiqui diagnosed possible common peroneal nerve
neuropathy of the left ankle, an ATFL sprain of the left ankle, chronic left ankle instability, and
chronic left ankle pain. He recommended an MRI scan study.
In a form report dated November 5, 2015, Dr. Siddiqui provided the history of injury as
appellant experiencing a “pop” in her left ankle delivering mail on December 14, 2014. He
diagnosed an ATFL sprain of the left ankle, chronic left ankle instability and pain, and possible
common peroneal neuropathy of the left ankle. Dr. Siddiqui checked a box marked “yes” that
the condition was caused or aggravated by employment as “according to [appellant] she was
working when her injury occurred.” He advised that appellant could perform limited-duty
employment, but was unable to work with her boot. Dr. Siddiqui recommended that she not
work until after an MRI scan study. In a November 6, 2015 note, he diagnosed an ATFL and
calcaneofibular ligament (CFL) sprain and found that appellant needed to wear a walking boot
due to “her current chronic ankle instability.”
On January 4, 2016 OWCP referred appellant to Dr. Willie E. Thompson, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated January 22,
3

In a decision dated September 28, 2015, OWCP denied appellant’s claim for medical treatment from March 7
to 20, 2015 as the medical evidence was insufficient to show that the medical care was due to her accepted work
injury.

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2016, Dr. Thompson discussed her December 14, 2014 left ankle injury and subsequent medical
treatment. On examination of the left ankle, he found no loss of motion, redness, edema, or
increased warmth. Dr. Thompson further found no loss of strength or sensation and noted that
diagnostic studies did not reveal “any specific pathology related to [appellant’s] left foot or
ankle.” He diagnosed a left ankle sprain with “no objective evidence of any ongoing pathology
that would indicate the need for any continued formal medical care or any additional diagnostic
testing.” Dr. Thompson opined that appellant had no residuals of her December 14, 2014 work
injury to the left foot or ankle and that she could return to her usual employment without
restrictions. In an accompanying work capacity evaluation (OWCP-5c), he found that she could
perform her regular employment with no limitations.
OWCP, by letter dated February 1, 2016, notified appellant of its proposed termination of
her wage-loss compensation and medical benefits. It advised her that the weight of the medical
evidence, as represented by the opinion of Dr. Thompson, established that she had no residuals
of her accepted work injury.
On March 9, 2016 appellant submitted an October 22, 2015 emergency room report
indicating that she received treatment by Dr. Dan Morhaim, a Board-certified internist, for left
ankle pain and swelling. Dr. Morhaim obtained a history of her sustaining an injury one year
ago at work with symptoms varying in degree. He found that appellant should remain off work
until October 27, 2015.
By decision dated March 15, 2016, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that date as the weight of the medical evidence
demonstrated that she had no further employment-related disability or need for medical
treatment.
Subsequent to OWCP’s March 15, 2016 termination, appellant submitted a February 11,
2016 report from Dr. Siddiqui. Dr. Siddiqui noted that she had a second opinion examination
with Dr. Thompson. He advised, “[Appellant] relates that after the evaluation that she was told
that she is able to work, however, [she] states that she is still unable to work and she still has
continued pain in her ankle.” On examination Dr. Siddiqui found no edema, erythema, or
ecchymosis, intact sensation, and pain with anterior drawer and talar tilt. He diagnosed
continued left ankle pain and ruled out a ligamentous disruption or osteochondral ankle injury.
Dr. Siddiqui related, “I do agree with Dr. Thompson that [appellant] does not have warmth,
redness, or swelling in the ankle; however, my opinion is [she] does not have free range of
motion of the ankle as it is difficult to evaluate given her guarding. She does not reveal 5/5
strength in her ankle because of the guarding noted.” He found that appellant could not perform
all the duties of her employment and might have an osteochondral injury due to her ankle sprain.
Dr. Siddiqui recommended additional diagnostic testing or an additional evaluation.
On May 19, 2016 Dr. Siddiqui reviewed the March 2015 MRI scan study. He noted that
the quality of the MRI scan was poor and he could not “fully evaluate the ATFL and CFL
ligaments” but that there was increased fluid at the ATFL ligament. Dr. Siddiqui diagnosed
continued left ankle pain, a possible disruption of the ATFL and CFL ligaments, a low-lying
peroneal muscle belly with lateral displacement of the peroneal tendons of the left ankle, and a
convex fibular groove of the left ankle. He recommended a new MRI scan and opined that

3

appellant could not perform her usual employment based on “the clinical findings and some of
the diagnostic findings….”
Appellant, through counsel, on August 12, 2016 requested reconsideration. Dr. Siddiqui,
on August 12, 2016, advised that she had not reached maximum medical improvement. He
recommended surgery to repair the ATFL, peroneal muscle, and fibular groove, and an ablation
of the peroneal tendon. Dr. Siddiqui indicated on an accompanying work restriction form that
appellant should be off work.
In a progress report dated August 23, 2016, Dr. Amanda Walsh, a podiatrist, and
Dr. Siddiqui noted that appellant had experienced left ankle pain for almost two years following
a work injury. On examination the podiatrists found minimal ATFL edema and pain on
palpation. Dr. Siddiqui diagnosed an ATFL tear, a left low-lying peroneal muscle belly with
displacement of the left peroneal tendon, and a left convex fibular groove. The podiatrists
recommended surgery to repair the ATFL tear.
Dr. Siddiqui, on September 20, 2016, advised that he had treated appellant for about two
years for an ATFL tear of the left ankle. In a work capacity evaluation dated September 20,
2016, he provided work restrictions. In a November 8, 2016 progress report, Dr. Siddiqui found
that appellant should not return to work until after surgery.
By decision dated November 10, 2016, OWCP denied modification of its March 15, 2016
decision. It found that the reports from Dr. Siddiqui were insufficient to show that appellant had
further residuals of her accepted left ankle sprain, noting that he treated her for multiple ankle
conditions that it had not accepted as employment related.
On appeal counsel contends that OWCP erred in failing to develop whether the claim
should be expanded to include additional conditions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment,

4

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

Gewin C. Hawkins, 52 ECAB 242 (2001).

6

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

4

OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left ankle sprain due to a December 14, 2014
employment injury. Appellant stopped work on December 15, 2014, returned to part-time
modified work on March 6, 2015 and stopped work again in November 2015. OWCP paid
disability compensation and medical benefits.
In support of her claim, appellant provided evidence from Dr. Siddiqui. In his
September 4, 2015 report, Dr. Siddiqui discussed her history of a December 14, 2014 left ankle
injury and noted that she currently worked limited duty. He diagnosed possible left ankle
peroneal nerve neuropathy, an ATFL sprain, and chronic left ankle instability and pain.
Dr. Siddiqui noted that an MRI scan indicated a mild sprain and questioned why this resulted in
the amount of disability experienced by appellant. In a November 5, 2015 form report, he
diagnosed an ATFL sprain, possible peroneal neuropathy of the left ankle, and chronic pain and
instability of the left ankle. Dr. Siddiqui checked a box marked “yes” that the condition was
caused or aggravated by employment as appellant had reported that she was at work when she
sustained the injury. He found that she should remain off work pending an MRI scan study.
Dr. Siddiqui discussed appellant’s belief that the condition was work related, but he did not
otherwise provide an independent causation finding.8 A physician’s report is of little probative
value when it is based on a claimant’s belief rather than the physician’s independent judgment.9
On January 4, 2016 OWCP referred appellant to Dr. Thompson for a second opinion
examination. In the report dated January 22, 2016, Dr. Thompson reviewed the history of injury
and medical treatment received. On examination he found no reduced motion, swelling, redness,
or loss of sensation or strength. Dr. Thompson noted that objective studies found no specific left
ankle pathology. He opined that appellant had no further objective findings of her left ankle
sprain. Dr. Thompson provided a thorough review of the factual and medical background and
accurately summarized the relevant medical evidence. Moreover, he provided detailed findings
on examination and reached conclusions regarding appellant’s condition which comported with
his findings.10 The Board thus finds that OWCP met its burden of proof to terminate her
wage-loss compensation and medical benefits based on the opinion of Dr. Thompson, who
determined that she had no further disability or residuals due to her accepted employment
injury.11

7

Id.

8

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box “yes” in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
9

Earl David Seale, 49 ECAB 152 (1997).

10

See Pamela K. Guesford, supra note 6.

11

See A.W., Docket No. 16-0780 (issued October 11, 2016).

5

The remaining evidence of record submitted prior to OWCP’s termination of wage-loss
compensation is insufficient to show that appellant had disability due to her employment injury.
She submitted an October 22, 2015 emergency room report from Dr. Morhaim finding that she
should not work until October 27, 2015. As this evidence predated OWCP’s termination of
compensation, it is of little probative value regarding the relevant issue of disability after
March 15, 2016.12
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to
him or her to establish continuing employment-related residuals after that date related to the
accepted injury.13 To establish a causal relationship between the condition as well as any
attendant disability claimed and the employment injury, he or she must submit rationalized
medical evidence based on a complete medical and factual background, supporting such a causal
relationship.14 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.15
ANALYSIS -- ISSUE 2
As OWCP properly relied upon the opinion of Dr. Thompson in terminating
compensation benefits, the burden of proof shifted to appellant to establish that she remains
entitled to compensation after that date.16
In his report dated February 11, 2016, Dr. Siddiqui discussed appellant’s belief that she
was not able to work due to ankle pain. He found no swelling, erythema, loss of sensation, or
ecchymosis on examination, but pain with an anterior drawer and talar tilt. Dr. Siddiqui advised
that he concurred with Dr. Thompson’s findings of no swelling, warmth, or redness on
examination, but found that appellant did not have full ankle motion or strength due to guarding.
He diagnosed left ankle pain and ruled out a ligamentous disruption or osteochondral injury.
Dr. Siddiqui opined that appellant could not return to regular employment. He did not, however,
provide a firm diagnosis or fully explain the mechanics of how the accepted work injury
continued to cause disability or residuals. Without a firm diagnosis supported by medical
rationale, the report is of little probative value.17
Dr. Siddiqui, on May 19, 2016, discussed the findings on MRI scan study of increased
fluid at the ATFL ligament. He diagnosed left ankle pain, a possible disruption of the ATFL and
12

See D.M., Docket No. 16-1893 (issued March 21, 2017).

13

Manual Gill, 52 ECAB 282 (2001).

14

Id.

15

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

16

See supra note 13.

17

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).

6

CFL, lateral displacement of the peroneal tendons of the ankle, and a convex fibular groove of
the left ankle. Dr. Siddiqui opined that appellant should not work pending further diagnostic
evaluation. On August 12, 2016 he recommended surgery to repair the ATFL, peroneal muscle,
and fibular groove and found that she could not work until after surgery. Dr. Siddiqui and
Dr. Walsh provided the same diagnosis and surgical recommendations on August 23, 2016. He
listed work restrictions on September 20, 2016 and opined on November 8, 2016 that appellant
could not work pending surgery. OWCP, however, accepted only left ankle sprain as causally
related to the December 14, 2014 work injury. Where appellant claims that a condition not
accepted or approved was due to her employment injury, she bears the burden of proof to
establish that the condition is causally related to the employment injury through the submission
of rationalized medical evidence.18 Dr. Siddiqui did not provide any rationale for his opinion
that the work injury resulted in disruption of the ATFL, peroneal muscle, and fibular groove.
Medical conclusions unsupported by rationale are of little probative value.19
On appeal counsel argues that OWCP should have developed the claim to determine
whether appellant sustained additional conditions. However, this matter is not before the Board
as OWCP has not issued a decision addressing whether the claim should be expanded.20
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.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective March 15, 2016 as she had no further disability or residuals causally
related to her December 14, 2014 employment injury. The Board further finds that she has not
established any continuing employment-related disability after March 15, 2016.

18

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

19

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

20

See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the November 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF AGRICULTURE,
PERSONNEL OPERATIONS, Washington, DC,
Employer
__________________________________________

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

Docket No. 12-1283
Issued: January 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 22, 2012 appellant filed a timely appeal from the November 25, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied modification
of its loss of wage-earning capacity determination.1 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

Under the Board’s Rules of Procedure, the 180-day period for determining jurisdiction begins on the day
following the date of OWCP’s decision. 20 C.F.R. § 501.3(f)(2). As OWCP issued its merit decision on
November 25, 2011, the 180-day period began November 26, 2011 and ended May 23, 2012. Since using May 24,
2012, the date the appeal was date stamped by the Clerk of the Board, would result in the loss of appeal rights, the
date of receipt, May 22, 2012, is considered the date of filing. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden to show that modification of OWCP’s
November 17, 2008 loss of wage-earning capacity determination is warranted.
FACTUAL HISTORY
In a prior appeal,3 the Board found that OWCP properly reduced appellant’s
compensation for wage loss to zero, effective September 14, 2008, on the grounds that her actual
earnings as an Employment Complaints Investigator and Examiner fairly and reasonably
represented her wage-earning capacity and demonstrated no loss of wage-earning capacity due to
her accepted employment injury.4
Appellant claimed compensation for wage loss beginning July 25, 2011.5 Dr. Hampton J.
Jackson, Jr., a Board-certified orthopedic surgeon, issued disability certificates indicating that
she was totally incapacitated beginning July 25, 2011.
Dr. Jackson provided nerve blocks. On September 1, 2011 he noted that an imaging scan
from 2002 showed herniated discs at C4-5, C5-6 and C6-7. Dr. Jackson also noted that testing
confirmed nerve injuries associated with the October 31, 1991 work incident, the most
symptomatic of which was probably a nerve injury with C7 radiculopathy, highlighting and
indicating a herniated disc at C6-7.
Dr. Jackson stated that appellant returned to work in 2009 “but she did not last.” The
symptoms, he explained, worsened to the point that she could not continue “and she has not been
able to work since September 2009 and that has not changed based on today’s examination.”
Dr. Jackson found restricted motion and painful range of motion of the neck, a positive head
compression test and a positive head extension test. He saw no evidence of acute nerve root
compression and no progressive neurologic change, but he stated that work activities “will
clearly aggravate appellant[’s] condition and increase her pain.” Dr. Jackson opined that
appellant’s present condition was clearly causally related to her October 31, 1991 employment
injury and would remain permanently.
On September 29, 2011 Dr. Jackson noted that tissues damaged on October 31, 1991
caused a tumor necrosis factor release, which was a cytokine causing a chemical radiculitis in the
neck and lower back. He again stated that appellant’s current complaints were related to her
October 31, 1991 employment injury.

3

Docket No. 09-942 (issued November 17, 2009).

4

On October 31, 1991 appellant, a 39-year-old equal opportunity specialist, sustained a traumatic injury in the
performance of duty when she was involved in a motor vehicle accident. OWCP accepted her claim for cervical
strain, lumbosacral strain, left shoulder strain, cervical radiculopathy and herniated nucleus pulposus at C5-6. It
issued its formal wage-earning capacity determination on November 17, 2008. The facts of this case as set forth in
the Board’s prior decision are hereby incorporated by reference.
5

Appellant had unsuccessfully claimed compensation for wage loss for earlier periods.

2

On October 27, 2011 Dr. Jackson stated that appellant was still having right upper
extremity radicular symptoms from the shoulder to the hand, “more like a C7 and more in the C6
distribution.” These symptoms were new, he stated, “about a week ago.” Dr. Jackson ordered a
new imaging study to rule out any worsening direct nerve root compression “which certainly
might be responsible for these changing symptoms.”
In a November 25, 2011 decision, OWCP denied modification of its November 17, 2008
loss of wage-earning capacity determination. It found that appellant had failed to meet one of
the three criteria for modifying a loss of wage-earning capacity determination. In particular,
OWCP found that the medical evidence was not sufficient to support that her medical condition
had worsened. It found that Dr. Jackson did not provide sufficient rationale to explain why the
diagnosed herniated disc was believed to be attributable to the October 31, 1991 work injury.
Appellant alleges improper action in employing her under a career appointment when she
was already approved for disability retirement. She also alleged actions by OWCP to cover up
contradictory and false statements made by an OWCP referral physician in 2007.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.7
The wage-earning capacity of an employee is determined by the employee’s actual
earnings if the employee’s actual earnings fairly and reasonably represent her wage-earning
capacity.8 Wage-earning capacity is a measure of the employee’s ability to earn wages in the
open labor market under normal employment conditions.9
Once OWCP issues a formal decision on wage-earning capacity, the rating should be left
in place until the claimant requests resumption of compensation for total wage loss for more than
a limited period of disability, in which instance OWCP will need to evaluate the request
according to the customary criteria for modifying a formal wage-earning capacity
determination.10
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

6

5 U.S.C. § 8102(a).

7

20 C.F.R. § 10.5(f).

8

5 U.S.C. § 8115(a).

9

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

10

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

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otherwise vocationally rehabilitated or the original determination was, in fact, erroneous. The
burden of proof is on the party attempting to show modification of the award.11
ANALYSIS
OWCP issued a formal loss of wage-earning capacity determination on
November 17, 2008. Appellant requested resumption of compensation for total wage loss for
more than a limited period of disability beginning July 25, 2011. She has the burden to establish
one of the customary criteria for modifying a formal loss of wage-earning capacity
determination.
Appellant did not establish a material change in the nature and extent of her injury-related
condition. Dr. Jackson, the attending orthopedic surgeon, issued disability certificates that she
was totally incapacitated beginning July 25, 2011; but the disability certificates alone do not
establish a material change in the injury-related condition. The record contains several treatment
notes in which he appeared to attribute a C7 radiculopathy to the October 31, 1991 work injury,
but he did not explain. OWCP did not accept appellant’s claim for a C7 radiculopathy or for a
herniated disc at C6-7. Dr. Jackson noted that this was perhaps the most symptomatic nerve
injury, but he offered no medical rationale on how the October 31, 1991 work injury caused this
nerve injury, what medical evidence supported a causal relationship or what objective findings
showed that the nature and extent of this nerve injury had materially worsened since OWCP’s
November 17, 2008 loss of wage-earning capacity determination.
Dr. Jackson stated that appellant’s symptoms had worsened to the point that she could not
continue to work since September 2009. He saw no evidence, however, of acute nerve root
compression and no progressive neurologic change. Dr. Jackson stated that work activities “will
clearly aggravate [appellant’s] condition and increase her pain.” This suggests a prophylactic
work stoppage rather than disability caused by the objectively demonstrated material worsening
of an injury-related condition.
Although Dr. Jackson found that appellant’s current complaints were clearly related to
the October 31, 1991 work injury, he provided insufficient medical rationale to establish a
change in the nature and extent of an injury-related condition. He ordered a new imaging study
to rule out any worsening direct nerve root compression, but the record contains no findings from
that study or comment by Dr. Jackson.
Appellant did not allege that she had been retrained or otherwise vocationally
rehabilitated,12 nor did she attempt to show that the original loss of wage-earning capacity
determination was, in fact, erroneous.

11

Daniel J. Boesen, 38 ECAB 556 (1987).

12

The criterion relating to retraining or vocational rehabilitation is typically the criterion OWCP would establish
to justify the modification of a loss of wage-earning capacity determination.

4

Accordingly, the Board finds that appellant has not met her burden to establish that
modification of OWCP’s November 17, 2008 loss of wage-earning capacity determination is
warranted. The Board will affirm OWCP’s November 25, 2011 decision denying modification.
Appellant alleges an administrative error in employing her under a career appointment.
She also alleges an OWCP cover-up of statements by a referral physician in 2007. These
allegations have no bearing on whether she has met her burden to establish one of the customary
criteria for modifying a formal loss of wage-earning capacity determination.
CONCLUSION
The Board finds that appellant has not met her burden to establish that modification of
OWCP’s November 17, 2008 loss of wage-earning capacity determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the November 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. DISTRICT COURT, CLERK’S OFFICE,
Seattle, WA, Employer
__________________________________________

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

Docket No. 07-498
Issued: July 25, 2006

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 13, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 15, 2006 with respect to a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment to her
right leg, for which she received a schedule award.
FACTUAL HISTORY
On September 11, 2004 appellant filed a traumatic injury claim (Form CA-1) alleging
that she sustained a right leg injury when she tripped and fell on September 2, 2004 while in the
performance of duty. The Office accepted the claim for a right leg laceration. The medical
evidence indicated that appellant underwent debridement and repair of the laceration on

September 2, 2004 by Dr. Thomas Green, an orthopedic surgeon, and on October 6, 2004 by
Dr. Kevin Beshlian, a plastic surgeon.
In a report dated March 1, 2006, Dr. Abid Haq, an internist, provided a history and results
on examination. He noted significant ongoing pain in the right leg that was controlled by
medication. Dr. Haq also noted decreased sensation on the anterior portion of the leg lateral to
the scar. He opined that appellant had reached maximum medical improvement. With respect to
the degree of permanent impairment, Dr. Haq identified Table 17-36 of the American Medical
Association, Guides to the Evaluation of Permanent Impairment. He stated that appellant had a
five percent impairment based on limited kneeling. In addition, Dr. Haq identified Table 17-37
and the common peroneal nerve. He found that appellant had an additional five percent
impairment for sensory loss. According to Dr. Haq, combining the impairments under the
Combined Values Chart resulted in nine percent leg impairment.
The case was referred to an Office medical adviser for review. In a report dated April 20,
2006, the medical adviser reviewed Dr. Haq’s report. The medical adviser stated that he agreed
with the impairment rating examination, but not the final impairment number, because
5 combined with 5 results in 10 percent impairment under the Combined Values Chart. The
medical adviser also noted that Dr. Haq did not discuss Table 16-10 in grading the sensory loss
in the common peroneal nerve. With respect to maximum medical improvement, the medical
adviser opined that this occurred on March 1, 2006.
By decision dated May 24, 2006, the Office issued a schedule award for 10 percent
impairment to the right leg. The period of the award was 28.80 weeks from March 1, 2006.
Appellant requested a review of the written record on June 21, 2006. She submitted a
June 21, 2006 report from Dr. John W. Roberts, a neurologist, who stated that the right leg injury
had resulted in chronic reduced sensation and neuropathic pain on the right leg. Dr. Roberts did
not provide an opinion as to the degree of permanent impairment.
By decision dated September 15, 2006, the Office hearing representative affirmed the
May 24, 2006 schedule award decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulation specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal

1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

2

justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2
ANALYSIS
Appellant received a schedule award for a 10 percent permanent impairment to the right
leg. The degree of impairment is, as noted above, determined by the applicable provisions of the
A.M.A., Guides. Dr. Haq identified Table 17-36, which provides impairments for skin loss.3
According to Table 17-36, tibial tuberosity covering which limits kneeling is five percent leg
impairment. Both Dr. Haq and the Office medical adviser concurred in finding five percent
impairment based on skin loss.
Dr. Haq also identified Table 17-37, which provides impairments due to nerve deficits.
For the common peroneal nerve, the maximum impairment for sensory deficit or pain is five
percent.4 The impairment is graded pursuant to Table 16-10.5 Although Dr. Haq did not
specifically discuss Table 16-10, he did note significant pain and sensory deficit in his report.
The Office medical adviser did not disagree with Dr. Haq or offer a different impairment based
on nerve deficit. The weight of the probative evidence, therefore, indicated that appellant had an
additional five percent impairment for common peroneal nerve deficit.
As noted by the Office medical adviser, combining 5 and 5 under the Combined Values
Chart results in 10 percent leg impairment.6 Accordingly, the Board finds that the probative
evidence of record does not establish greater than a 10 percent right leg impairment in this case.
The Board notes that the number of weeks of compensation for a schedule award is
determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the
leg, the maximum number of weeks of compensation is 288 weeks. Since appellant’s impairment
was 10 percent, she is entitled to 10 percent of 288 weeks or 28.80 weeks of compensation. It is
well established that the period covered by a schedule award commences on the date that the
employee reaches maximum medical improvement from residuals of the employment injury.7 In
this case, the Office medical adviser properly concluded that the date of maximum medical
improvement was the date of examination by Dr. Haq. The award, therefore, properly runs for
28.80 weeks commencing on March 1, 2006.

2

A. George Lampo, 45 ECAB 441 (1994).

3

A.M.A., Guides 550, Table 17-36.

4

Id. at 552, Table 17-37.

5

Id. at 482, Table 16-10.

6

Id. at 604, Combined Values Chart. This chart was designed to account for the effects of multiple impairments
with a summary value that does not exceed 100 percent. In this case, combining the impairments results in the same
impairment as adding the impairments.
7

Albert Valverde, 36 ECAB 233, 237 (1984).

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On appeal, appellant questioned why the Office did not discuss the reports of Dr. Beshlian,
who performed the October 6, 2004 debridement surgery and was an attending physician. The
issue in this case is the degree of right leg permanent impairment under the A.M.A., Guides. There
are no medical reports from Dr. Beshlian in the record providing an opinion regarding a permanent
impairment in the right leg.
CONCLUSION
The evidence does not establish more than a 10 percent right leg permanent impairment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and May 24, 2006 are affirmed.
Issued: July 25, 2006
Washington, DC

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

David S. Gerson, 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
__________________________________________
I.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1198
Issued: March 8, 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 August 2, 2021 appellant, through counsel, filed a timely appeal from a February 1,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 As more
than 180 days has elapsed from OWCP’s last merit decision, dated December 20, 2019, to the

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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed beginning
on the day following the date of OWCP’s decision. An appeal is considered filed upon receipt by the Clerk of the
Appellate Boards. See 20 C.F.R. § 501.3(e)–(f). One hundred and eighty days from February 1, 2021, the date of
OWCP’s last decision, was July 31, 2021. As this fell on a Saturday, appellant had until the close of the next business
day, Monday, August 2, 2021 to file the appeal. 20 C.F.R. § 501.3(f)(2. The appeal was received on Monday,
August 2, 2021, rendering it timely.

filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
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 March 1, 2019 appellant, then a 60-year-old medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2019 she injured her legs, hips,
back, and shoulders when she slipped and fell on a greasy and wet floor while carrying metal trays
while in the performance of duty. 4 She did not stop work.
Appellant underwent diagnostic testing. An April 3, 2019 left shoulder x-ray scan revealed
mild degenerative changes at the acromioclavicular (AC) joint. A right shoulder x-ray scan was
unremarkable. A cervical spine computerized tomography (CT) scan revealed moderate right
foraminal stenosis at C3-4 and multiple degenerative grade 1 subluxations in the cervical and upper
thoracic spine.
In an April 5, 2019 report, Dr. Robert Reppy, an osteopath specializing in family medicine,
recounted that on February 26, 2019 appellant slipped on a concrete floor and fell on her head,
neck, shoulders, low back, and knees at work. He noted appellant’s complaints of neck and
bilateral knee pain. Dr. Reppy discussed appellant’s diagnostic test results, provided examination
findings, and diagnosed aggravation of existing low back pain, degenerative disc disease at C5-6
and C6-7, foraminal stenosis at C3-4, thoracic spine subluxation at multiple levels, and suspected
meniscus tear of the left knee. He also provided range of motion, comparative muscle report,
pinch/grip test, and lift strength evaluation reports dated April 8, 2019.
On April 4, 2019 appellant accepted a full-time, light-duty job offer.
An April 17, 2021 electromyography (EMG) and nerve conduction velocity (NCV) study
revealed abnormal findings of the upper extremities, which suggested the presence of left T1
radiculopathy.

3

5 U.S.C. § 8101 et seq.

4

OWCP assigned the claim OWCP File No. xxxxxx806. Appellant has two previously-accepted traumatic injury
claims. Under OWCP File No. xxxxxx662, OWCP accepted that appellant sustained a right hip contusion causally
related to a July 10, 2006 employment incident. Under OWCP File No. xxxxxx937, it accepted a closed fracture of
the upper and lower end of the left and right fibula condition as causally related to a June 18, 2017 employment
incident. Appellant also has a prior traumatic injury claim under OWCP File No. xxxxxx139 alleging left shoulder,
upper and lower back, left hip, and lower legs injuries due to a March 22, 2017 employment incident. OWCP denied
the claim, finding that the evidence of record was insufficient to establish that the March 22, 2017 incident occurred
as alleged. It has administratively combined OWCP File Nos. xxxxxx662, xxxxxx937, xxxxxx139, and xxxxxx806
with the latter claim as the master file.

2

In an April 25, 2019 report, Dr. Markus Kornberg, a Board-certified orthopedic surgeon,
indicated that he evaluated appellant for multiple symptoms related to a fall that she had at work
on February 26, 2019. On physical examination of the cervical spine, he reported tenderness of
the paracervicals and the trapezius and limited range of motion (ROM) testing. Examination of
appellant’s lumbar spine revealed tenderness of the paraspinal region at L5, tenderness of the
paraspinal region at L4 on the left, and limited ROM. Dr. Kornberg diagnosed low back pain and
lumbosacral spondylosis without myelopathy. He indicated that appellant had preexisting lumbar
issues and opined that she suffered an exacerbation of her preexisting condition. Dr. Kornberg
also diagnosed cervical spondylosis without myelopathy. He reported that appellant had
mechanical cervical neck pain with significant preexisting condition and opined that she suffered
“temporary exacerbation of recent traumatic insult.” Dr. Kornberg further diagnosed left knee
pain and explained that appellant suffered “traumatic insult to the left knee with resultant bruising.”
In a May 16, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised of the type of factual and medical evidence necessary to establish her claim and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.
Appellant submitted additional reports by Dr. Reppy dated May 3 and June 7, 2019.
Dr. Reppy discussed appellant’s diagnostic test results and provided physical examination
findings. He diagnosed left knee chondromalacia, cervical stenosis, thoracic spine subluxation at
multiple levels, and aggravation of preexisting low back pain due to intervertebral discs.
Dr. Reppy completed a June 7, 2019 duty status form report (Form CA-17) indicating that
appellant could work full-time, modified-duty.
Appellant submitted an emergency room report dated April 3, 2019 by Dr. Elizabeth
Janevski, an emergency medicine physician, who recounted appellant’s complaints of severe neck
and upper back pain following a fall in late February. Dr. Janevski reported that physical
examination of appellant’s upper back demonstrated tenderness over the bilateral paraspinal region
of the upper back, shoulders, and lateral neck. Range of motion was limited due to pain.
Dr. Janevski indicated that a cervical spine CT scan showed degenerative narrowing, but no acute
pathology. She diagnosed muscle spasms of the neck and shoulder region.
By decision dated June 14, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the incident occurred as alleged. Thus,
it concluded that the requirements had not been met to establish an injury as defined by FECA.
On July 12, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
November 8, 2019. Appellant described her previous injuries to her neck, back, hips, and left
shoulder and prior workers’ compensation claims.
In a November 8, 2019 report, Dr. Reppy noted no changes in appellant’s cervical range of
motion. He diagnosed cervical stenosis, thoracic spine subluxation at multiple levels, left knee
chondromalacia, left shoulder degenerative joint disease at the AC joint, and displacement of
lumbar spine intervertebral discs.

3

By decision dated December 20, 2019, OWCP’s hearing representative modified the
June 14, 2019 decision to accept that the February 26, 2019 incident occurred as alleged and that
medical conditions were diagnosed. However, the claim remained denied as the medical evidence
of record was insufficient to establish causal relationship between the diagnosed conditions and
the accepted employment incident.
On December 20, 2020 appellant, through counsel, requested reconsideration. Counsel
argued that appellant’s claim should be accepted based on Dr. Reppy’s reports because he had
treated appellant for her other work-related injuries and had diagnosed aggravation of cervical and
lumbar spondylosis.
Appellant submitted the April 3, 2019 diagnostic examination reports of the lumbar spine
and bilateral shoulders, the April 17, 2019 EMG/NCV study, and Dr. Kornberg’s April 25, 2019
report and June 7, 2019 Form CA-17 report, which were previously reviewed.
Appellant also submitted radiograph reports dated February 28, 2019. A bilateral hip
radiograph showed mild femoracetabular joint space narrowing bilaterally and no acute displaced
fractures. A bilateral knee radiograph demonstrated very mild degenerative change. A lumbar
spine radiograph revealed mild degenerative changes at L5-S1.
OWCP received an April 3, 2019 work capacity evaluation form (Form OWCP-5c) from
Dr. Kornberg who noted a diagnosis of exacerbation of cervical and lumbar spondylosis.
Appellant also submitted a December 20, 2019 report by Dr. Reppy under OWCP File No.
xxxxxx937. Dr. Reppy indicated that he treated appellant for complaints of low back pain
radiating to the bilateral legs after she fell down last Sunday. He provided examination findings
and diagnosed status post right fibula fracture, bilateral tarsal tunnel syndrome, lumbar
degenerative disc disease, lumbar radiculopathy at L5 root and S1 root, and mononeuritis of the
right tibial. Appellant provided additional reports by Dr. Reppy dated January 24, 2020 through
February 5, 2021 regarding medical treatment for her lumbar and right lower extremity conditions.
By decision dated February 1, 2021, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
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 own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument that: (1) shows that OWCP erroneously applied or interpreted a

5

5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); 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

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. 6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 8 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. 9
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).
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Moreover, she did not advance a relevant legal argument not previously
considered by OWCP. As such, appellant is not entitled to review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3). 10
In support of her request for reconsideration, appellant submitted additional medical
evidence, including February 28, 2019 radiograph reports, Dr. Kornberg’s April 3, 2019 Form
OWCP-5c, and Dr. Reppy’s reports dated December 20, 2019 through February 5, 2021. While
this medical evidence is new, it is not relevant because it does not address the underlying issue of
the present case, i.e., whether appellant has established causal relationship between the accepted
February 26, 2019 employment incident and her diagnosed medical conditions. The Board notes
that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.11 Moreover, appellant also submitted April 3, 2019
diagnostic examination reports of the lumbar spine and bilateral shoulders, an April 17, 2019
6

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

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 (September 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.
8

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); see B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
10

Id. at § 10.606(b)(3); G.K., Docket No. 20-1026 (issued December 11, 2020); D.T., Docket No. 20-0456 (issued
September 1, 2020).
11

D.C., Docket No. 19-0873 (issued January 27, 2020); E.G., Docket No. 18-0270 (issued August 24 2018);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

EMG/NCV study report, and Dr. Kornberg’s April 25, 2019 report and June 7, 2019 CA-17 form
report, which were previously reviewed. The Board has held that the submission of evidence
which duplicates or is substantially similar to evidence already in the case record does not
constitute a basis for reopening a case. 12 Therefore, for the above reasons, appellant also failed to
satisfy the third requirement under 20 C.F.R. § 10.606(b)(3). 13
The Board thus finds that appellant has not met 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.
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).
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 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

12

S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59
ECAB 141 (2007).
13

See D.J., Docket No. 21-0371 (issued November 24, 2021).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Medford, OR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1406
Issued: March 10, 2016

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 16, 2015 appellant filed a timely appeal of a June 2, 2015 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 the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he was totally
disabled for the period beginning March 12, 2015 causally related to his accepted employment
condition.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant submitted new evidence. The Board is precluded from reviewing evidence which was not
before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On January 31, 2012 appellant then a 57-year-old mail handler, tripped on the corner of a
general purpose mail container and fell injuring his left side and upper ribs. OWCP accepted his
claim for left shoulder sprain, left anterior chest contusion, and later expanded his claim to
include arthrofibrosis of the left shoulder. It authorized arthroscopic surgery of the left shoulder
which was performed on July 6, 2012. Appellant stopped work on January 31, 2012 and
returned to modified duty for four hours a day.
A March 14, 2012 magnetic resonance imaging scan of the left shoulder revealed
moderate acromioclavicular (AC) joint osteoarthritis with inferolaterally sloping acromion,
tendinopathy of the supraspinatus and infraspinatus tendons, thin intrasubstance tear in the
myotendinous junction of the infraspinatus tendon, partial thickness tear of the distal
supraspinatus tendon and mild degenerative changes of the glenohumeral joint. On July 6, 2012
Dr. Patrick Denard, a Board-certified orthopedist, performed a left shoulder arthroscopic biceps
tenodesis, arthroscopic acromioplasty, arthroscopic distal clavicle excision, and arthroscopic
minor debridement. He diagnosed left shoulder biceps tenosynovitis, subacromial impingement,
AC arthritis, and rotator cuff tear.
On January 24, 2013 the employing establishment offered appellant a modified job as a
mail handler, four hours per day effective January 26, 2013. Appellant accepted the position on
January 24, 2013. He increased his hours to full-time limited duty on February 2, 2013 and was
released to unrestricted full-time duty effective February 26, 2013. Appellant was again placed
on modified duties on July 5, 2013.
On July 17, 2013 appellant filed a (Form CA-2a), recurrence of disability, asserting that
on June 26, 2013 he experienced a recurrence of left shoulder pain, stiffness, and a consequential
right shoulder injury causally related to his accepted work injury. He stopped work on
July 12, 2013.
In a decision dated September 4, 2013, OWCP denied appellant’s claim for a recurrence
of disability asserting that the evidence was insufficient to establish that the June 26, 2013
recurrence and work stoppage on July 12, 2013 was causally related to the accepted work injury.
Appellant requested an oral hearing which was held on December 23, 2013. He stopped work in
March 2014.
In a decision dated April 30, 2014, an OWCP hearing representative set aside the
September 4, 2013 decision and remanded the matter for further medical development. The
hearing representative instructed OWCP to refer appellant to a second opinion physician to
determine whether his claim should be expanded, whether appellant was capable of performing
his full duties of a mail handler, and if he was disabled from work on or around July 5, 2013.
OWCP further developed the claim and referred him to a second opinion physician.
Based on the second opinion physician’s report, Dr. Ronald Teed, orthopedic surgeon, in a
decision dated June 27, 2014, OWCP expanded appellant’s claim to include arthrofibrosis of the
left shoulder region.

2

In a separate decision of the same date, OWCP denied appellant’s claim for recurrence of
disability and claim for compensation for the period beginning July 13, 2013.
Appellant was removed from his position on December 5, 2014.
Appellant requested an oral hearing which was held before an OWCP hearing
representative on January 5, 2015. He submitted a report from Dr. Michael Hebrard, a Boardcertified physiatrist, dated June 23, 2014, who examined appellant for a schedule award
impairment rating.3 Appellant noted a history of injury and diagnosed left shoulder adhesive
capsulitis, left rotator cuff dysfunction, bicipital tenosynovitis, and left shoulder degenerative
joint disease. Dr. Hebrard opined that appellant had 17 percent permanent impairment of the left
shoulder causally related to the accepted work injury.
In a decision dated February 24, 2015, OWCP affirmed the June 27, 2014 decision
denying appellant’s claim for a recurrence of disability.
In a statement dated February 17, 2015, appellant indicated that he lost his job because he
could no longer perform the physical duties of the position. He noted that the employing
establishment did not offer him work within his restrictions and used all his sick leave and then
was in leave without pay status beginning in March 2014. Appellant submitted a letter of
warning from the employing establishment dated February 14, 2014 noting that he had
unsatisfactory attendance, he failed to be regular in attendance, and was tardy and absent without
permission from February 5, 2013 to February 6, 2014. He asserted that he missed work during
this period due to his shoulder injury and no light-duty position being offered. Appellant stopped
working completely on March 7, 2014. Also submitted was a notice of removal dated
November 3, 2014, which noted that he was being removed due to continuous absence without
official leave and failure to follow instructions. In an agency notice of removal or separation
dated December 31, 2014, and effective December 5, 2014, the employing establishment
finalized appellant’s removal.
On April 1, 2015 appellant filed a (Form CA-7), claim for compensation, for total
disability for the period beginning March 12, 2015. Appellant’s supervisor noted on the CA-7
form that appellant was performing light-duty work and then stopped reporting for duty. He
noted that appellant’s previous claim for disability was denied by OWCP. The supervisor noted
that appellant was removed from employment on December 5, 2014 and filed for disability
retirement.
Appellant submitted a March 20, 2015 report from Dr. Hebrard regarding appellant’s
permanent impairment. Dr. Hebrard advised that appellant had significantly restricted range of
motion of the shoulder and that his impairment rating should reflect such.
3

On April 18, 2014 appellant claimed a schedule award. On May 23, 2014 OWCP denied his claim for a
schedule award. Appellant requested an oral hearing. In a November 24, 2014 decision, an OWCP hearing
representative set aside the May 23, 2014 decision and remanded the matter for an OWCP medical adviser to
review. In a December 23, 2014 report, an OWCP medical adviser opined that appellant had 12 percent impairment
of the left arm. On February 18, 2015 OWCP granted him a schedule award for 12 percent permanent impairment
of the left arm. The award ran from June 23, 2014 to March 12, 2015.

3

In a letter dated April 14, 2015, OWCP requested that appellant submit additional
information to support his claim for compensation beginning March 12, 2015. It asked that he
submit medical evidence establishing that his total disability was due to the accepted condition
for the period claimed.
In a decision dated June 2, 2015, OWCP denied appellant’s claim for compensation for
total disability for eight hours per day beginning March 12, 2015. It advised that the evidence of
record failed to support work-related disability during the period claimed.
LEGAL PRECEDENT
A claimant has the burden to prove by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.4 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.5 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.6 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.7
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. For each period of disability claimed, the employee has the burden
to establish that he or she was disabled for work as a result of the accepted employment injury.8
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 resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.9

4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

5

Id.

6

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

C.S., Docket No. 08-2218 (issued August 7, 2009).

8

Sandra D. Pruitt, 57 ECAB 126 (2005).

9

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).

4

When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.10 To establish a
change in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.11
In the absence of rationale, the medical evidence is of diminished probative value.12 While the
opinion of a physician supporting causal relationship need not be one of absolute medical
certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.13
ANALYSIS
OWCP accepted appellant’s claim for left shoulder sprain and left anterior chest
contusion, and arthrofibrosis of the left shoulder. Appellant returned to modified duty for four
hours a day on January 24, 2013 and increased to eight hours a day on February 2, 2013. He was
released to unrestricted full duty as of February 26, 2013, returned to modified duties on July 5,
2013, and stopped work in March 2014 and claimed wage-loss compensation for the eight hours
of work that he missed each day. After OWCP denied appellant’s claim for a recurrence of
disability for the period beginning July 13, 2013, he claimed wage-loss compensation beginning
March 12, 2015. The employing establishment indicated that it provided him light-duty work
until he stopped coming to work. The Board finds that the medical evidence is insufficient to
establish that the claimed total disability beginning March 12, 2015 was caused or aggravated by
the accepted conditions.
Appellant submitted a March 20, 2015 report from Dr. Hebrard regarding a permanent
impairment rating for schedule award purposes. Dr. Hebrard’s report of March 20, 2015 is of
limited probative value as it does not address the period of disability at issue. Appellant
submitted no other medical evidence which found that he was totally disabled from work due to
his accepted left shoulder condition or that specifically explained how the accepted left shoulder
conditions caused or contributed to the total disability beginning March 12, 2015. Part of his
burden of proof includes submitting rationalized medical evidence which supports a causal

10

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

11

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

12

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

13

Ricky S. Storms, 52 ECAB 349 (2001).

5

relationship between the period of disability and the accepted injury.14 Therefore, the evidence
of record is insufficient to meet appellant’s burden of proof.
On appeal appellant asserts that he submitted sufficient medical evidence supporting
disability for the period claimed. He indicated that he lost his job due to the work-related left
shoulder injury and requested his lost wages. The Board notes that appellant did not submit
rationalized medical evidence which supports a causal relationship between the period of
claimed disability and the accepted injury.15 Dr. Hebrard addressed permanent impairment of
appellant’s left upper extremity, but did not specifically address how any disability beginning
March 12, 2015 was caused or aggravated by the accepted left shoulder sprain, left anterior chest
contusion and arthrofibrosis of the left shoulder left knee strain.
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 failed to establish that his total disability for the period
beginning March 12, 2015 is causally related to the accepted employment injury.

14

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2016
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

7