United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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D.C., Appellant
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)
and
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DEPARTMENT OF DEFENSE, DECA
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SOUTHWEST REGION, Fort Lee, VA,
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Employer
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___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 11-555
Issued: November 7, 2011

Case Submitted on the Record

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

JURISDICTION
On December 22, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) nonmerit decision dated July 7, 2010, denying his request for
further merit review of his claim. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit
decision. Because more than 180 days has elapsed between the last merit decision of OWCP,
dated June 18, 2009, to the filing of this appeal, the Board lacks jurisdiction to review the merits
of this claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).
On appeal, appellant disagrees with the denial of his claim and asserted that he submitted
evidence to support his claim.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 24, 2008 appellant, then a 48-year-old store associate, filed a traumatic
injury claim alleging that he sustained a back and neck injury at work on June 11, 2008. He
inventoried and rearranged over 50 bags of potatoes and onions on two separate occasions and
lifted over 200 bags of vegetables. Appellant stopped work on June 13, 2008 and returned on
July 7, 2008. The employing establishment advised that he did not report his injury within the
30-day time limitation and that he was terminated on October 28, 2008 for misconduct.
Appellant also had a preexisting condition.
OWCP received an October 21, 2008 notice of discharge; work excuses placing appellant
off work from June 21 to July 7, 2008 and physical therapy notes. Appellant submitted a
September 2, 2008 functional ability request from a physician whose signature is illegible.
Appellant submitted reports from Dr. Ivan Hinnant, a Board-certified internist. In a
September 24, 2008 report, Dr. Hinnant noted that appellant had “chronic lower back pain since
2000 while on jump at Fort Bragg.” In June at work, appellant was lifting large bags of potatoes
and onions and sustained sharp pain on the left and right, radiating down the right leg to the toes.
Dr. Hinnant stated that appellant retired on February 29, 2008 and was doing produce work when
he “reinjured [his] neck and shoulder.” He diagnosed intervertebral disc degeneration and
cervical disc degeneration at C5-C6. Dr. Hinnant diagnosed cervicalgia; lumbar intervertebral
disc degeneration, cervical disc degeneration; sacroiliac back strain and chronic lumbosacral
strain. In a November 6, 2008 report, he diagnosed chronic neck pain due to spondylosis,
cervical herniated nucleus pulposus (HNP) and lower back pain due to degenerative disc disease.
In a December 8, 2008 report, Dr. Hinnant diagnosed intervertebral disc degeneration.
In a December 10, 2008 report, Dr. Eric L. Jones, a Board-certified internist, noted that
he examined appellant on July 28, 2008. Appellant had recurrent neck and low back pain from
diffuse degenerative disc disease. He was advised to quit his job because of his health and
Dr. Jones recommended a desk job with frequent breaks.
In a January 6, 2009 report, Dr. David B. Mowery, Board-certified in family medicine,
noted that appellant had chronic neck pain since June 2008. Appellant indicated that he
performed lifting at work which initiated his problems, and a week later he had to perform
similar tasks that included lifting over 1,500 pounds a day for several days in a row.
Dr. Mowery stated that testing ordered by Dr. Hinnant showed degenerative disc disease and
small left central focal bulge or prolapse at L5-S1 with no evidence of mass effect on adjacent
neural structures. He opined that “[i]njury is likely to have occurred with repeated lifting as
described.”
In a January 26, 2009 decision, OWCP denied appellant’s claim. It found that the factual
evidence was insufficient to establish that the events at work occurred as alleged. OWCP also
found that the medical evidence did not establish a workplace injury.

2

On March 21, 2009 appellant requested reconsideration and submitted additional
evidence. He indicated that he sustained an injury in the performance of duty and provided the
requested information.
In an August 23, 2008 statement, Eric Gidden, a coworker, noted that he observed
appellant experience severe back pain upon performing normal movements in May 2008. He
related that appellant indicated it was due to his recent employment.
In a June 18, 2009 decision, OWCP denied modification of the January 26, 2009
decision. It noted that appellant mentioned not only his June 11, 2008 incident, but he also
mentioned work over a period of several weeks and the factual details were unclear as to time,
place and frequency of his various work activities. OWCP found that appellant did not submit
sufficient factual and medical evidence to establish that he sustained a traumatic injury on
June 11, 2008.
On March 29, 2010 appellant requested reconsideration and submitted additional factual
and medical evidence. In his request, he repeated that his injury was sustained in the
performance of duty on or about June 11, 2008. Appellant noted that, during the week of June 5
to 11, 2008, he rearranged the area where a large order of potatoes were stored and which had to
be cleaned, inventoried and arranged. He stated that Ms. Nimfa Holloway directed this and he
had to arrange orders of potatoes that arrived with those already there in addition to ones that
were on the floor for resale. Appellant noted that, during that time, he was in pain but worked.
He also noted that he reported to work on June 8, 2008 at 5:30 a.m. and not 8:00 a.m. as found
by OWCP. Appellant also discussed his medical history.
Appellant submitted a June 13, 2008 note signed by Dr. Mowery. He sought an
appointment related to his neck and right shoulder. Appellant noted that he was working on
Sunday at the employing establishment and attributed his neck and shoulder condition to lifting
potatoes.2 Dr. Mowery saw him on June 13, 2008 and noted that appellant experienced pain in
the neck and shoulder since Sunday. While appellant had previously experienced such pain, it
was worse than in the past. Dr. Mowery diagnosed a neck strain. In a radiology report of
June 13, 2008, Dr. Sidney Suneja, a Board-certified diagnostic radiologist, diagnosed
degenerative disc disease and mild degenerative joint disease. Also submitted were copies of
Dr. Hinnant’s September 24, and November 6, 2008 reports; diagnostic tests from August 2008,
a September 2, 2008 functional ability request form and a time sheet.
By decision dated July 7, 2010, OWCP denied appellant’s request for reconsideration
finding that his request did not raise any substantial legal questions or include new and relevant
evidence and was insufficient to warrant further merit review.3
2

Sunday would have been June 8, 2008.

3

The Board notes that OWCP issued a July 22, 2011 decision denying appellant’s May 15, 2011 request for
reconsideration on the basis it was untimely filed and failed to present clear evidence of error. As this decision was
issued after appellant filed his appeal with the Board on December 22, 2010, and also pertains to whether OWCP
should reopen the claim for a merit review, it is null and void. See Douglas E. Billings, 41 ECAB 880 (1990); R.T.,
Docket No. 08-408 (issued December 16, 2008). See also 20 C.F.R. § 501.2(c)(3).

3

LEGAL PRECEDENT
Under section 8128(a) of FECA,4 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
(ii) Advances a relevant legal argument not previously considered by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”5
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.6
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration.
Appellant provided relevant and pertinent new evidence to the underlying factual issue on
reconsideration with regard to whether the events giving rise to his claimed injury occurred as
alleged. In OWCP’s June 18, 2009 merit decision, it found that the factual details were unclear
as to time, place and frequency of his various work activities. OWCP found that appellant did
not submit sufficient factual and medical evidence to establish that he sustained a traumatic
injury on June 11, 2008, as alleged.
In a March 29, 2010 request for reconsideration, appellant submitted additional evidence.
In a statement, he asserted that he was injured on or about June 11, 2008. Appellant described
his activities from June 5 to 11, 2008 to which he attributed his injury. He gave a more detailed
description of his duties, noting his cleaning, arranging and inventorying of potatoes. A June 13,
2008 note signed by Dr. Mowery revealed that appellant indicated he was working on Sunday,
June 8, 2008, at the employing establishment and believed that his neck and shoulder started
hurting after lifting potatoes. This report provides a contemporaneous account that generally
confirms appellant’s duties. As OWCP denied the claim because the factual evidence was
insufficient to establish that the work incident occurred as alleged, this new evidence from
appellant regarding his duties at the time of the alleged injury is relevant. The Board finds that
appellant’s statement and the contemporaneous history reported in the June 13, 2008 medical
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b).

6

Id. at § 10.608(b).

4

record are relevant, pertinent and new to the issue of whether appellant showed that the
workplace events occurred as alleged.
The requirement for reopening a claim for merit review does not include the requirement
that a claimant shall submit all evidence necessary to discharge his or her burden of proof. The
claimant need only submit evidence that is relevant and pertinent and not previously considered.7
If OWCP should determine that the new evidence submitted lacks probative value, it may deny
modification of the prior decision, but only after the case has been reviewed on the merits.8
Accordingly, it should have reviewed appellant’s case on the merits and discussed this relevant
and pertinent new evidence not previously considered. After such development as is deemed
necessary, OWCP shall issue an appropriate merit decision.9
CONCLUSION
The Board finds that OWCP improperly denied a reopening of appellant’s case for a
review of the merits.

7

See Sydney W. Anderson, 53 ECAB 347 (2002).

8

See Dennis J. Lasanen, 41 ECAB 933 (1990).

9

The Board notes that subsequent to OWCP’s July 7, 2010 decision, appellant submitted additional evidence.
The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c); James C.
Campbell, 5 ECAB 35 (1952).

5

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2010 decision of the Office of Workers’
Compensation Programs is set aside and this case remanded for further action consistent with
this decision.
Issued: November 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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)
)

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

Docket No. 17-2025
Issued: March 22, 2018

Case Submitted on the Record

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

JURISDICTION
On July 24, 2017 appellant filed a timely appeal from a January 31, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits,
effective January 31, 2017 pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a scheduled
medical examination.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of OWCP’s January 31, 2017 decision and on appeal, appellant
submitted new evidence. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its
final decision. The Board is, therefore, precluded from reviewing this new evidence for the first time on appeal. See
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On May 28, 1999 appellant, then a 53-year-old mail handler, filed an occupational disease
claim (Form CA-2) for lower back pain and radiculopathy. He claimed that he felt pain in his
lower back while pushing overloaded postal containers (or “postcons”) at work. Appellant related
that since 1994 his workload and the weight of the equipment he used had increased. He did not
stop work.
OWCP, by development letter dated July 23, 1999, informed appellant of the deficiencies
in his claim and afforded him 30 days to submit additional and factual and medical evidence.
Appellant did not respond.
In an August 31, 1999 decision, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that factors of his federal
employment caused or contributed to his claimed medical condition. It noted that he did not
respond to its July 23, 1999 development letter.
On August 30, 2000 appellant requested reconsideration and submitted additional factual
and medical evidence in support of his claim.
By decision dated November 24, 2000, OWCP modified its August 31, 1999 decision,
finding that appellant had established the claimed employment factors, but denied his occupational
disease claim as the medical evidence of record failed to establish causal relationship between
those factors and his diagnosed lumbar radiculopathy.
On October 26, 2001 appellant, through counsel, requested reconsideration and submitted
medical evidence which indicated that he had lumbar radiculopathy due to his work duties.
In a January 22, 2002 decision, OWCP vacated the November 24, 2000 decision and
accepted appellant’s claim for lumbosacral radiculopathy. It paid him disability compensation on
the periodic rolls beginning June 16, 2002.
In a December 7, 2016 letter, OWCP informed appellant that there was no current medical
evidence in the case file to establish his entitlement to continuing compensation benefits. It
requested that he submit a current medical report from an attending physician addressing his
employment-related residuals and disability. OWCP also requested that the physician complete
an accompanying work capacity evaluation (OWCP-5c form), indicating whether appellant was
able to return to work. Appellant was afforded 30 days to submit the requested information.
By letter dated December 27, 2016, OWCP referred appellant, together with a statement of
accepted facts, the medical record, and a list of questions, to Dr. Timothy J. Henderson, an
orthopedic surgeon, for a second opinion evaluation. It advised that an appointment had been
scheduled for January 10, 2017 at 10:00 a.m. with Dr. Henderson. Appellant was further advised
that, if he refused or obstructed the examination, his compensation could be suspended under 5
U.S.C. § 8123(d).
In a January 6, 2017 statement, appellant claimed that he was unable to respond to OWCP’s
December 7, 2016 development letter within the allotted time period due to an acute stroke he had
on August 27, 2016. He requested an additional week to submit the requested information. In
2

support of his request, appellant submitted a September 1, 2016 medical record from Mt. Sinai
West Hospital which indicated that he was leaving the hospital against the medical advice of
Dr. Leonard Girardi, a Board-certified thoracic surgeon.
On January 11, 2017 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the January 10, 2017 examination with
Dr. Henderson. Appellant was advised that he should provide a written explanation of his reasons,
with substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination. He did not respond.
By decision dated January 31, 2017, OWCP finalized its proposed suspension, effective
that same date. It noted that it had directed appellant on December 27, 2016 to report for the
examination scheduled for January 10, 2017, but he did not attend the examination or show good
cause for his failure to attend the examination as he failed to respond to the proposed suspension.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.3 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.4 OWCP
regulations provide that a claimant must submit to an examination by a qualified physician as often
and at such times and places as OWCP considers reasonably necessary.5 Section 8123(d) of FECA
and OWCP regulations provide that, if an employee refuses to submit to or obstructs a directed
medical examination, his or her right to compensation is suspended until the refusal or obstruction
ceases.6 OWCP procedures provide that, before OWCP may invoke these provisions, the
employee is to be provided a period of 14 days within which to present in writing his or her reasons
for the refusal or obstruction.7 If good cause for the refusal or obstruction is not established,
entitlement to compensation is suspended in accordance with section 8123(d) of FECA.8
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation for failure to
attend a medical examination on January 10, 2017.
OWCP scheduled a second opinion medical examination on January 10, 2017 with
Dr. Henderson. Appellant did not appear for the scheduled examination. By decision dated
3

5 U.S.C. § 8123.

4

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

5

20 C.F.R. § 10.320.

6

Supra note 5; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
8

Id.

3

January 31, 2017, OWCP suspended his compensation benefits based on his failure to appear. The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP. The
only limitation on OWCP’s authority, with regard to instructing a claimant to undergo a medical
examination, is that of reasonableness.9 The Board has interpreted the plain meaning of section
8123(d) to provide that compensation is not payable while a refusal or obstruction of an
examination continues.10
On December 27, 2016 OWCP advised appellant that it would refer him for a second
opinion medical examination and that, if he did not attend the appointment, his benefits could be
suspended. Appellant was referred for a second opinion medical evaluation with Dr. Henderson
and was advised of the need for the examination and the time and place for the scheduled
appointment. While appellant related in his January 6, 2017 letter that he would require more time
to respond to OWCP’s December 27, 2016 letter due to his August 27, 2016 stroke, he did not
allege that he could not attend the second opinion evaluation due to his medical condition.
Appellant did not attend the scheduled January 10, 2017 appointment.
OWCP subsequently allowed appellant 14 days to provide reasons for failing to appear.
Again, appellant did not respond. As appellant did not respond to the proposed suspension, he has
not established good cause for refusing to undergo the January 10, 2017 examination.11
Thus, the Board finds that OWCP properly suspended his compensation benefits, effective
January 31, 2017 pursuant to section 8123(d) of FECA.12 When appellant actually reports for
examination, payment retroactive to the date on which he agreed to attend the examination may
be made.13
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits,
effective January 31, 2017 pursuant to 5 U.S.C. § 8123(d) due to his failure to attend a scheduled
medical examination.

9

Lynn C. Huber, 54 ECAB 281 (2002).

10

M.B., Docket No. 10-1755 (issued March 24, 2011).

11

L.B., Docket No. 14-2005 (issued January 28, 2015).

12

Supra note 5; S.B., 58 ECAB 267 (2007).

13
C.S., Docket No. 11-1366 (issued December 12, 2011); E.B., 59 ECAB 298 (2008). When the claimant actually
reports for examination, payment retroactive to the date on which the claimant agreed to attend the examination may
be made. Supra note 7 at Chapter 2.810.13(e) (September 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

5


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

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

Docket No. 09-1975
Issued: April 7, 2010

Case Submitted on the Record

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

JURISDICTION
On July 28, 2009 appellant filed a timely appeal from the July 10, 2009 merit decision of
the Office of Workers’ Compensation Programs concerning the termination of her compensation.
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 the Office properly terminated appellant’s compensation effective
November 14, 2005 on the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
This is the third appeal in this case. In the first appeal, the Board issued a decision on
December 15, 2006 affirming the Office’s termination of appellant’s compensation effective
November 14, 2005 for refusing an offer of suitable work.1 The Board found that the Office
1

Docket No. 06-1027 (issued December 15, 2006). On September 12, 1997 appellant, then a 32-year-old part-time
rural carrier associate, filed an occupational disease claim alleging that she sustained injury to her back by carrying
mail at work. The Office accepted that she sustained a lumbar sprain and herniated nucleus pulposus at L4-5 and
authorized back surgeries performed on December 17, 1997 and December 13, 1998.

properly relied upon the opinion of Dr. Joe W. Crow, a Board-certified orthopedic surgeon, who
served as an impartial medical specialist, in determining that the modified rural carrier associate
position offered by the employing establishment in September 2005 was suitable.2 In a report
dated August 15, 2005, Dr. Crow determined that appellant was medically capable of performing
this modified-duty position.3 The Board noted that Dr. Crow detailed appellant’s use of
medications and diagnosed narcotic habituation, but found that he provided no indication that her
use of medications prevented her from working as a modified rural mail carrier associate.4
In the second appeal, the Board issued a decision on March 10, 2008 affirming the Office’s
termination of appellant’s compensation effective November 14, 2005 for refusing an offer of
suitable work.5 The Board noted that, because the Office met its burden of proof to terminate
appellant’s compensation effective November 14, 2005 for refusing an offer of suitable work, it
was appellant’s burden to show that such refusal to work was justified. The Board found that
appellant did not meet this burden because the newly submitted December 6, 2006 report of
Dr. John W. Ellis, an attending physician Board-certified in family practice and environmental
medicine, did not provide a clear opinion that she could not perform the modified rural carrier
associate position around the time that it was offered by the employing establishment in
September 2005. The facts and circumstances of the case up to that point are set forth in the
Board’s prior decision and are incorporated herein by reference.
In February 2009 appellant again requested reconsideration of her claim and submitted a
January 30, 2009 report of Dr. Ellis, who indicated that appellant was evaluated in his office on
December 6, 2006. He noted that at the time that appellant was seen she was unable to perform
any job duties or work “split shifts” due to the medications she took and “problems that she was
having.” Dr. Ellis stated:
“The patient had been on temporary total disability and was unable to work. The
patient’s medication that she has to take due to her workers’ compensation injury
does have side effects such as drowsiness, dizziness and problems focusing and
concentrating. The patient’s medications that she is taking are Norco, Methadone,
Lunesta, Zanaflex and Zoloft. All these medications do have the above-

2

The offered position, which was for 25 hours per week, required sitting, intermittent walking and simple
grasping for up to four hours per day and pushing a light-weight roll-around cart which could be pushed with one
finger, for up to 30 minutes per day. The job involved working “split shifts” in that it had work hours which
included nonwork periods of about three to six hours between morning and afternoon work periods. Appellant
refused the offered position in October 2005.
3

In an accompanying form, Dr. Crow stated that appellant could lift up to 10 pounds for two hours per day, push
up to 20 pounds for two hours per day, pull up to 20 pounds for two hours per day and operate a motor vehicle at
work for two hours per day. He indicated that appellant should spend less than an hour performing several
activities, including twisting, bending, stooping, squatting and kneeling and that she should not engage in climbing.
Dr. Crow stated that appellant could perform modified-duty work for eight hours per day.
4

The Board also found that the other medical evidence of record did not support a finding that appellant’s use of
medications prevented her from performing the offered position.
5

Docket No. 07-2078 (issued March 10, 2008).

2

mentioned side effects. At the time that the patient turned down her job offer it
was due to the said medications.”6
In a July 10, 2009 decision, as appellant failed to meet her burden of proof, the Office
affirmed its earlier termination decision effective November 14, 2005 on the grounds that she
refused an offer of suitable work. It indicated that the January 30, 2009 report of Dr. Ellis was of
limited probative value regarding appellant’s ability to perform the position offered by the
employing establishment around the time the position was offered.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”7 However, to justify such termination, the Office
must show that the work offered was suitable.8 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.9
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.11
ANALYSIS
The Office accepted that appellant sustained a lumbar sprain and lumbar herniated
nucleus pulpous due to the performance of her work duties and authorized two surgeries at L4-5,
which were performed in December 1997 and September 1998. It terminated appellant’s
compensation effective November 14, 2005 on the grounds that she refused an offer of suitable
work.
Because the Office met its burden of proof to terminate appellant’s compensation
effective November 14, 2005 for refusing an offer of suitable work, it is appellant’s burden to
show that such refusal to work was justified.12 The Board finds that appellant did not meet her
6

Dr. Ellis indicated that he attached a report further describing the medications and their doses, but no such report
was attached.
7

5 U.S.C. § 8106(c)(2).

8

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

9

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

10

5 U.S.C. § 8123(a).

11

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

12

See supra note 9.

3

burden of proof to establish that her refusal of the modified rural carrier associate position
offered by the employing establishment was justified. Therefore, the Office’s termination of her
compensation effective November 14, 2005 was proper.
Appellant submitted a January 30, 2009 report from Dr. Ellis, which indicated that
appellant was evaluated in his office on December 6, 2006. Dr. Ellis noted that at the time that
appellant was seen she was unable to perform any job duties or work “split shifts” due to the
medications she took and “problems that she was having.” He described the medications taken
by appellant and indicated that they had side effects such as drowsiness, dizziness, and problems
focusing and concentrating. Dr. Ellis stated, “At the time that the patient turned down her job
offer it was due to the said medications.”
The Board finds that Dr. Ellis’ opinion is of limited probative value on the relevant issue
of the present case as to whether appellant could perform the modified rural carrier associate
position around the time that it was offered by the employing establishment in September 2005.13
Dr. Ellis did not provide any specific findings on examination or diagnostic testing from that
time frame. He did not explain how appellant’s medical condition in late 2005 prevented her
from performing the duties required by the modified rural carrier associate position. Dr. Ellis
indicated that appellant had problems with medications but he did not provide any detailed
discussion of these problems or explain how they would have prevented her from performing the
offered position in late 2005.14
Given the limited probative value of Dr. Ellis’ report on the relevant issue of the present
case, the weight of the medical evidence regarding the suitability of the modified rural carrier
associate position would continue to rest with the well-rationalized opinion of the impartial
medical specialist, Dr. Crow.15 For these reasons, appellant did not show that her refusal of the
modified rural carrier associate position offered by the employing establishment was justified.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
November 14, 2005 on the grounds that she refused an offer of suitable work.

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
14

In its December 15, 2006 and March 10, 2008 decisions, the Board noted that Dr. Crow detailed appellant’s use
of medications and diagnosed narcotic habituation, but found that he provided no indication that her use of
medications prevented her from working as a modified rural mail carrier associate. The Board further notes that
Dr. Ellis did not explain how appellant’s medical condition prevented her from working a “split shift.”
15

See supra notes 9 and 10.

4

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2010
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
__________________________________________
P.P., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Fairton, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0184
Issued: August 22, 2019

Case Submitted on the Record

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

JURISDICTION
On November 2, 2017 appellant, through counsel, filed a timely appeal from a June 5, 2017
merit decision and an October 24, 2017 nonmerit 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.3

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.

The Board notes that following the June 5, 2017, OWCP received additional evidence. However, the Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
3

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of disability, commencing February 22, 2013, causally related to his accepted June 9, 2012
employment injury; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 11, 2012 appellant, then a 42-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that on June 9, 2012 he strained the right side of his upper back when
he twisted around to retrieve a shotgun in the back of his truck while in the performance of duty.
He stopped work on that date. OWCP accepted appellant’s claim for right rhomboid strain and
sprain of back, thoracic region and paid wage-loss compensation. On July 30, 2012 appellant
returned to full-time light-duty work. He continued to receive medical treatment.
In examination notes and attending physician reports (Form CA-20) dated February 21 and
22, 2013, Dr. Kimberley Y. Smith, Board-certified in physiatry and pain management noted a date
of injury of June 9, 2012. She provided examination findings and diagnosed thoracic spine pain,
thoracic sprain, and displacement of thoracic intervertebral disc without myelopathy. Dr. Smith
indicated that appellant was totally disabled commencing February 22, 2013.
In examination notes and attending physician’s reports dated March 5 and 6, 2013,
Dr. Rahul Shah, a Board-certified orthopedic neck and spine surgeon, reviewed appellant’s history
and noted a date of injury of June 9, 2012. He provided examination findings and diagnosed
cervicalgia, neck strain, thoracic spine pain, displacement of thoracic intervertebral disc without
myelopathy, and thoracic sprain and strain. Dr. Shah indicated that appellant was unable to work.
On March 18, 2013 appellant filed a notice of recurrence (Form CA-2a) alleging that
commencing February 22, 2013 he sustained a recurrence of disability causally related to the
June 9, 2012 employment injury. He explained that, since the June 9, 2012 employment injury,
he continued to experience worsening pain in his back, shoulder, neck, and arm. Appellant noted
that on February 22, 2013 Dr. Smith examined him and recommended that he not work.
On the reverse side of the claim form appellant’s supervisor confirmed that, following the
original injury, appellant had worked sedentary duty from July 27, 2012 through February 22,
2013 when he was placed on total disability due to a worsening of his employment-related
conditions. Appellant submitted various claims for wage-loss compensation (Form CA-7) for the
period April 6 to July 12, 2013.
In a March 19, 2013 examination note, work capacity evaluation form, and attending
physician’s report, Dr. Shah again noted a date of injury of June 9, 2012, provided physical
4

Docket No. 16-1232 (issued December 23, 2016).

2

examination findings, and noted the same diagnoses as his previous report. He indicated that
appellant was not able to work.
In a development letter dated April 2, 2013, OWCP advised appellant that to establish his
recurrence claim he must show that he was unable to work his limited-duty assignment because of
a change in the nature and extent of his work-related injury or a change in the nature and extent of
his light-duty requirements. It requested that he respond to specific questions regarding the
February 22, 2013 date of alleged recurrence and submit medical evidence which established why
he was unable to work during his claimed period as a result of his accepted injury. A similar letter
of even date was sent to the employing establishment. Appellant was afforded 30 days to respond.
On April 22, 2013 OWCP received appellant’s response to its development letter.
Appellant related that on February 22, 2013 Dr. Smith placed him on full disability due to his
continually worsening condition and negative results from two injections in his thoracic spine.
Appellant continued to receive medical treatment from Dr. Smith and submitted medical
notes dated April 22 and 25, 2013, a June 10, 2013 work capacity evaluation form and attending
physician’s report, and a June 21, 2013 narrative report. Dr. Smith noted a date of injury of June 9,
2012 and diagnoses of lumbar spondylosis and cervical and thoracic disc herniation. She checked
a box marked “yes” indicating that appellant’s condition was work related. Dr. Smith reported
that she originally placed appellant on sedentary duties as of December 10, 2012, but then placed
him off work commencing February 21, 2013.
By decision dated July 18, 2013, OWCP denied appellant’s claim for a recurrence of
disability finding that the medical evidence submitted failed to establish that his accepted right
rhomboid and thoracic sprain conditions had worsened such that he was unable to work his lightduty position commencing February 22, 2013.
On July 29, 2013 OWCP received appellant’s request, through counsel, for a hearing
before a representative of OWCP’s Branch of Hearings and Review. On November 8, 2013 a
hearing was held with counsel present.
Following the hearing, appellant submitted a December 10, 2013 report by Dr. Shah who
reviewed appellant’s history and conducted a physical examination. Dr. Shah advised that
appellant remain off work.
By decision dated January 15, 2014, the hearing representative affirmed the July 8, 2013
decision, finding that there was insufficient evidence of record to establish that appellant was
unable to work on or after February 22, 2013 as a result of his accepted June 9, 2012 employment
injury.
Appellant, through counsel, requested reconsideration on February 27, 2014 and, in
support thereof, he submitted a February 12, 2014 narrative report by Dr. Shah who described the
history of the June 9, 2012 employment injury and the medical treatment that appellant received
for his accepted conditions. Dr. Shah opined that appellant’s current symptoms were directly
related to his employment injury of June 9, 2012 and explained that his “discomfort continued to
worsen until his point of no longer being able to work on February 22, 2013 as a direct result of
his work-related injury of June 9, 2012.”

3

By decision dated November 14, 2014, OWCP denied appellant’s request for
reconsideration of the January 15, 2014 decision. Appellant again requested reconsideration on
May 7, 2015.
In a February 27, 2015 narrative report, Dr. Shah noted the history of injury and the
conservative medical treatment that appellant received for his accepted conditions. He reported:
“it appears that appellant’s discomfort was causally related to his twisting injury, which caused an
onset of neck discomfort as well as subsequent arm discomfort.”
By decision dated March 10, 2016, OWCP denied modification of a prior merit decision
dated January 15, 2014. It determined that the newly submitted medical reports failed to establish
a causal relationship between appellant’s current complaints and his accepted June 9, 2012
employment injury.
On May 25, 2016 appellant filed an appeal with the Board.
By decision dated December 23, 2016, the Board affirmed the March 10, 2016 OWCP
decision. It determined that the evidence of record failed to establish that appellant sustained a
recurrence of disability on February 22, 2013 causally related to the June 9, 2012 employment
injury.
On March 8, 2017 appellant, through counsel, requested reconsideration.5 He related that
he was enclosing a February 16, 2017 report by Dr. Shah, which provided “abundant reasons” for
why appellant was unable to work “beginning February 23, 2013”6 As a result of the original
June 9, 2012 twisting injury at work.7
In the February 16, 2017 narrative report submitted by counsel, Dr. Shah opined that the
reason for appellant’s absence commencing February 23, 2013 was related to the work-related
injury of June 9, 2012. He explained that the rationale was explained by the nature of the
relationship within the diagnosis and mechanism of injury identified by the claimant. Dr. Shah
reported: “it appears as though the patient’s discomfort was causally related to his twisting injury
which caused an onset of neck discomfort as well as subsequent arm discomfort.” He related that,
based on the complete medical background, there was “clear medical rationale for the diagnosed
conditions, cervical radiculopathy and cervical disc herniation (and the specific employment

5
Although appellant claimed to be filing a request for reconsideration from the Board’s December 23, 2016
decision, OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R.
§ 501.6(d). Although the December 23, 2016 Board decision was the last merit decision, OWCP’s March 10, 2016
decision was the appropriate subject of possible modification by OWCP.
6

Dr. Shah’s use of the date February 23, 2013 appears to be a typographical error.

7

Counsel also alleged that the Board presumably denied authorization for cervical surgery and requested a
determination on the need for cervical fusion. The Board, however, did not address authorization for cervical surgery.
Furthermore, the record does not contain a final, adverse decision by OWCP regarding the issue of authorization for
cervical fusion surgery. Accordingly, this issue is not before the Board at this time. See 5 U.S.C. § 8149; 20 C.F.R.
§§ 501.2(c) and 501.3(a).

4

factors of twisting and applying axial plane force and torque) which justifies medical reason for
the conclusions and the reports herein too.”
By decision dated June 5, 2017, OWCP denied modification of the March 10, 2016
decision. It found that Dr. Shah’s February 16, 2017 narrative report lacked sufficient medical
rationale to support his opinion that appellant sustained a recurrence of disability commencing
February 22, 2013 causally related to the accepted June 9, 2012 employment injury.
On July 27, 2017 appellant, through counsel, requested reconsideration of the June 5, 2017
decision. He indicated that he was enclosing an addendum report by Dr. Shah, which sufficiently
explained how the mechanism of injury, particularly the “twisting and twerking” of the neck,
caused appellant’s current cervical condition. Counsel alleged that there was abundant medical
evidence of record to show that appellant suffered an overall worsening of his work-related
condition commencing February 23, 2013.
In a June 28, 2017 narrative report, Dr. Shah described the June 9, 2012 employment injury
and noted that appellant had initially been diagnosed with right rhomboid and thoracic conditions.
He opined that there was “clear causality of [appellant’s] symptomatology of rhomboid and
thoracic pathology as it relates to C7 as this is the area where C7 referred pain is emanating.”
Dr. Shah further explained that based on the mechanism of injury, specifically “bending, twisting,
and twerking of the neck,” and without this symptomatology after the work-related injury, it was
clear that appellant’s current symptoms were causally related to the work-related injury. He
concluded that appellant was having worsening symptomatology to the point that he was unable
to effectively move his arm or his neck without experiencing significant incapacitating pain, which
required appellant to stop work commencing February 23, 2013. Dr. Shah reported that
appellant’s worsening symptomatology was “all related” to the work-related injury.
By decision dated October 24, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that Dr. Shah’s July 26, 2017
report was cumulative and substantially similar to medical evidence already contained in the record
and which had previously been considered.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.8 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.9

8

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
9

Id.

5

OWCP procedures provide that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. OWCP does not include a condition
that results from a new injury, even if it involves the same part of the body previously injured.10
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.11 Where no such rationale is present,
the medical evidence is of diminished probative value.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability, commencing February 22, 2013, causally related to his accepted June 9, 2012
employment injury.
Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s March 10, 2016 decision because the Board has already
considered that evidence in its December 23, 2016 decision.13 Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.14
Following the Board’s decision of December 23, 2016, which affirmed the denial of
appellant’s recurrence of disability claim, appellant submitted to OWCP a February 16, 2017
narrative report, in which Dr. Shah opined that appellant’s absence from work commencing
February 23, 2013 was related to the June 9, 2012 employment injury. Dr. Shah reported that
appellant’s discomfort “was causally related to his twisting injury which caused an onset of neck
discomfort as well as subsequent arm discomfort.” He further explained that based on the complete
medical background, there was “clear medical rationale for the diagnosed conditions, cervical
radiculopathy and cervical disc herniation (and the specific employment factors of twisting and
applying axial plane force and torque).” Although Dr. Shah opined in the February 16, 2017 report
that appellant was unable to work commencing February 23, 2013, he failed to provide medical
rationale explaining how his accepted conditions of right rhomboid and thoracic strains had
changed or worsened to the extent that he was no longer able to work his modified-duty assignment
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
11

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

12

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

13

Supra note 4.

14

T.H., Docket No.18-1585 (issued March 22, 2019).

6

offered by the employing establishment. Rather, he merely noted that appellant had an onset of
neck and arm discomfort. The Board has found that when a physician’s statements regarding an
employee’s ability to work consist only of a repetition of the employee’s complaints that he or she
hurt too much to work, without objective findings of disability being shown, the physician has not
presented a proper medical opinion on the issue of disability.15 Although Dr. Shah’s report is
generally supportive of causal relationship, he did not provide objective evidence and medical
rationale explaining the basis of his opinion regarding causal relationship. The Board has held that
a report is of limited probative value regarding causal relationship if it does not contain medical
rationale explaining how a given period of disability was related to an employment injury.16
Accordingly, the Board finds that Dr. Shah has not provided a sufficiently rationalized medical
opinion explaining how or why appellant was disabled from work commencing February 22, 2013
due to objective medical findings substantiating disability.17
On appeal counsel asserts that Dr. Shah’s medical report corrected the deficiencies
identified by the Board in its December 23, 2016 decision. He further asserts that Dr. Shah
provided firm diagnoses of cervical radiculopathy and cervical disc herniation, and that he
adequately explained how appellant’s specific employment factors contributed to his current neck
symptoms resulting in an inability to work. As explained above, however, Dr. Shah’s medical
reports are insufficient to establish that appellant’s June 9, 2012 employment injury had worsened
to the extent that he was unable to perform the duties of his limited-duty job assignment. Causal
relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence.18 As appellant has not provided such
rationalized medical evidence in this case, he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.19
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
15

P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59 ECAB 447 (2008).

16

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

17

See S.B., Docket No. 13-1162 (issued December 12, 2013).

18

L.D., Docket No. 19-0039 (issued May 7, 2019); I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59
ECAB 158 (2007).
19
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

7

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.20
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.21 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.22 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.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law or advanced a new and relevant legal argument not previously considered. Thus, he
is not entitled to a review of the merits of his claim based on the first and second above-noted
requirements under 20 C.F.R. § 10.606(b)(3).
In support of his July 27, 2017 reconsideration request, appellant submitted a new medical
report by Dr. Shah. In a June 28, 2017 narrative report, Dr. Shah described the June 9, 2012
employment injury and opined that appellant’s current neck and arm symptoms were causally
related to the work-related injury. The Board finds that, although Dr. Shah’s June 28, 2017 report
was not previously considered by OWCP, it is substantially similar and cumulative of evidence
previously considered and reviewed by OWCP, and does not constitute a basis for reopening the
case.24 Accordingly, the Board finds that this report did not constitute relevant and pertinent new
evidence not previously considered by OWCP. As such, appellant is not entitled to a review of
the merits based on the third requirement under section 10.606(b)(3).25

20
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
21
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
22

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

23

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

24

Evidence that repeats or duplicates evidence already of record has no evidentiary value and does not constitute a
basis for reopening a claim for merit review. M.B., Docket No. 16-1681 (issued December 14, 2017); Denis M. Dupor,
51 ECAB 482 (2000).
25

See 20 C.F.R. § 10.606(b)(3)(iii).

8

The Board accordingly 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.26
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability, commencing February 22, 2013, causally related to his accepted June 9, 2012
employment injury. The Board also finds that OWCP properly denied his request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 24 and June 5, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 22, 2019
Washington, DC

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

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

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

26

A.F., Docket No. 18-1154 (issued January 17, 2019); see A.R., Docket No. 16-1416 (issued April 10, 2017); A.M.,
Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694
(2007); Susan A. Filkins, 57 ECAB 630 (2006) (when an application for reconsideration does not meet at least one of
the three requirements enumerated under section 10.606(b), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., claiming as widow of A.L., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD, Honolulu, HI,
Employer
__________________________________________

)
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)
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)

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

Docket No. 08-805
Issued: October 21, 2008

Case Submitted on the Record

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

JURISDICTION
On January 22, 2008 appellant filed an appeal from a February 8, 2007 decision of the
Office of Workers’ Compensation Programs that denied her claim for death benefits and
decisions dated March 12 and December 5, 2007 that denied her requests for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant timely filed a claim for death benefits under
5 U.S.C. § 8122; and (2) whether the Office properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 24, 2006 appellant filed a Form CA-5 claim seeking compensation for the
death of her husband, a retired equipment cleaner. She stated that the nature of injury which

caused death was asbestos-related disease, pneumonia, pulmonary tuberculosis (PTB) and
polypoid cystitis. The employee, who retired from federal service in January 1982, died on
May 19, 1998. The death certificate listed the immediate cause of death as Class IV community
acquired pneumonia with an antecedent cause as T/C myocardial infarction and an underlying
cause as diabetes mellitus with gastropathy.
In letters dated November 20, 2006, the Office informed appellant that it did not appear
that her claim had been timely filed and informed her of the evidence needed to perfect the
claim. It also asked that the employing establishment provide copies of exposure data, personnel
and medical records. On December 12, 2006 appellant stated that she had good cause for filing
the claim late, noting a limited budget, lack of resources, ignorance and inadvertence. She stated
that she knew the employee had worked in asbestos and that he had submitted a claim with the
Department of Veterans Affairs (VA) before his death. Appellant submitted a claim with the VA
thereafter. Citing the Black Lung Benefits Reform Act of 1977, she stated that there was no time
limitation on filing a survivor’s claim. Appellant submitted records covering the employee’s
active-duty service in the Navy from June 4, 1945 until he retired on April 23, 1965. The
employee had pneumonia on several occasions and active (pulmonary scarring) PTB in 1953.
Appellant also submitted additional medical evidence covering the period June 1, 1979 to
May 29, 1998. A report of the death of an American citizen abroad provides the same
information provided on the death certificate.
The employee filed a claim with the VA on December 5, 1997, claiming service-related
disability compensation for PTB, pneumonia and polypoid cystitis. Dr. Joven Q. Tanchuco
performed a physical examination on March 24, 1998 listing a history of PTB in 1994 and noted
that the employee was too weak to perform pulmonary function tests.1 An attached chest x-ray
reported moderately advanced bilateral infiltrates with underlying nonspecific bibasal
pneumonitis and bilateral pulmonary emphysema. In a June 12, 1998 report, Dr. Tanchuco
reported that the employee had pulmonary infiltrations of unknown etiology and recommended
repeat studies in September 1998.
On June 17, 1998 appellant filed a survivor’s claim with the VA. A VA rating decision
dated February 17, 2000 denied the employee’s claim for service-related PTB, polypoid cystitis,
and pneumonia. The VA Board noted that, although the employee was treated for both
pneumonia and PTB while in the service, both conditions had resolved with no residual
disability, did not recur within three years of separation, and that the polypoid cystitis diagnosis
was made too long after his retirement to relate to service origin.
By decision dated February 8, 2007, the Office denied the claim on the grounds that it
was not timely filed. It found that the evidence did not establish that the employee’s death was
caused or aggravated by factors of his civilian employment. The Office noted that the
employee’s last exposure was in January 1982 when he retired, that he had claimed exposure to
asbestosis during the period 1975 to 1981, that both he and appellant had filed VA claims, and
that the record did not show that his supervisor was notified of his death and its possible
relationship to his civilian employment within 30 days. It concluded that the reasons given by
1

Dr. Tanchuco’s credentials are not known.

2

appellant for not timely filing the claim were insufficient. The Office noted that there was no
medical evidence to suggest that polypoid cystitis or PTB were related to the employee’s death
and that he was never diagnosed with an asbestos-related disease.2
On March 3, 2007 appellant requested reconsideration, contending that her claim was
untimely due to ignorance and neglect. She again noted that, under the Black Lung Act, a
survivor’s claim was never considered untimely. By decision dated March 12, 2007, the Office
denied appellant’s reconsideration request on the grounds that her arguments were repetitious.
On March 22, 2007 appellant filed an appeal with the Board.3
On June 11, 2007 appellant requested reconsideration before the Office, alleging that her
claim was not timely filed due to poor advice from relatives and friends and due to the fact that it
would have required an investigation. She submitted military and civilian personnel records,
publications regarding asbestosis, medical evidence both before and after the employee’s civilian
retirement, records documenting exposure to ionizing radiation at the employing establishment,
results of pulmonary studies, and a March 29, 1979 employing establishment report showing that
the results of asbestos pulmonary monitoring were negative.
On June 24, 2007 appellant filed a motion with the Board to remand the case to the
Office. By order dated August 17, 2007, the Board granted her request. In a decision dated
December 5, 2007, the Office denied appellant’s request for reconsideration without further
merit review.
LEGAL PRECEDENT -- ISSUE 1
In cases of injury on or after September 7, 1974, section 8122(a) of the Federal
Employees’ Compensation Act4 provides that an original claim for compensation for disability or
death must be filed within three years after the injury or death.5 In the case of death due to a
latent disability, the time for filing a death claim does not begin to run until the employee has
died and his survivors are aware of or by the exercise of reasonable diligence should have been
aware of the causal relationship of the employee’s death to factors of his employment.6
The three-year limit on filing a claim for compensation does not apply in the following
limited circumstances: (1) the employee’s direct supervisor had actual knowledge that created
reasonable notice of an on-the-job injury or death within 30 days; (2) an employee or survivor
gave formal written notice within 30 days of becoming aware that the injury or death was
causally related to the federal employment; (3) the employee filed a timely disability claim for a
work-related injury or disability and the employee’s death is based on the same injury; and
2

Additional evidence regarding appellant’s military service was received by the Office on February 12, 2007.

3

Docket No. 07-1141.

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8122(a); Gerald A. Preston, 57 ECAB 270 (2005).

6

5 U.S.C. § 8122(b); Gerald A. Preston, supra note 5.

3

(4) the claimant is under 21 years old, the claimant is incompetent and has no legal
representative, or the claimant is prevented from giving notice by exceptional circumstances.
Lack of awareness of possible entitlement, lack of information or ignorance of the law or one’s
rights and obligations under it do not constitute exceptional circumstances that excuse a failure to
file a timely claim.7
ANALYSIS -- ISSUE 1
On October 24, 2006 appellant, the employee’s widow, filed a claim contending that his
death on May 19, 1998 was caused by asbestos-related disease, pneumonia, PTB and polypoid
cystitis related to his federal civilian employment as an equipment cleaner. By decision dated
February 7, 2007, the Office found that appellant’s claim was not timely filed.
Appellant alleged that she he was exposed to asbestos during his civilian employment,
and the record supports that his pulmonary condition was being monitored by the employing
establishment. The Board has held that mere concern about a history of exposure to dangerous
substances without positive medical evidence does not begin the three-year period for filing the
claim.8 In this case, however, there is no medical evidence of record to support that the
employee had any asbestos-related condition. Therefore, there is no justifiable claim that an
asbestos-related disease caused the employee’s death.
Regarding appellant’s claim that employment-related pneumonia, PTB and polypoid
cystitis caused the employee’s death, the employee had filed a claim for these conditions with the
VA prior to his death, alleging that they were service connected. Furthermore, appellant filed a
survivor’s claim with the VA on June 17, 1998. These claims were denied by the VA on
February 17, 2000. The Board therefore finds that reasonable diligence at that time would
indicate that, as these conditions were not service related, and that a claim could be filed for
compensation under the Act. As appellant did not file her claim until October 24, 2006, her
claim was not timely filed.9
Although appellant has not met the burden of proving that she filed within the three-year
limitation, her claim could be considered timely if she met any of the statutory exceptions. The
Board finds, however, that these exceptions are not established by the evidence of record. There
is no evidence that the employee’s immediate supervisor had actual knowledge that the
employee’s death was related to his employment within 30 days. There is no evidence that
appellant or the employee provided written notice to the employing establishment within 30 days
of becoming aware of the possibility that the employee’s death or illness was causally related to
his employment. Additionally, none of the exceptions relating to a claimant’s ability to file a
claim apply in this case. Appellant was not a minor. She did not allege that she was
7

5 U.S.C. § 8122; see E.B., claiming as widow of N.B., 58 ECAB ____ (Docket No. 07-629, issued
July 18, 2007).
8

Edward C. Horne, 43 ECAB 834 (1992).

9

E.B., claiming as widow of N.B., supra note 7. Regarding appellant’s claim that, under the Black Lung Act, her
claim would not be untimely, the rules and evidence of that act are irrelevant to the instant claim filed under the
Federal Employees’ Compensation Act.

4

incompetent, and she did not provide evidence of an exceptional circumstance that would excuse
her failure to timely file the claim. While appellant argued that ignorance and inadvertence, a
limited budget and lack of resources prevented her from timely filing a claim, the Board has held
that unawareness of possible entitlement, lack of information and ignorance of the law or of
one’s rights and obligations under it do not constitute exceptional circumstances that could
excuse a failure to file a timely claim.10 She therefore did not timely file a claim under section
8122 of the Act.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.11 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if the Office determines that the employee
has presented evidence and/or argument that meets at least one of the standards described in
section 10.606(b)(2).12 This section provides that the application for reconsideration must be
submitted in writing and set forth arguments and contain evidence that either: (i) shows that the
Office erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.13 Section 10.608(b) provides that, when a
request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.14
ANALYSIS -- ISSUE 2
With appellant’s requests for reconsideration on March 3 and June 11, 2007, she merely
reiterated that her claim was timely filed, reiterating the same arguments that she presented when
she initially filed her claim. She did not allege or demonstrate that the Office erroneously
applied or interpreted a specific point of law, or advance a relevant legal argument not previously
considered by the Office. Consequently, appellant was not entitled to a review of the merits of
her claim based on the first and second above-noted requirements under section 10.606(b)(2).15
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted no additional evidence with her March 3, 2007 reconsideration request. The Office
therefore properly denied her reconsideration request by its March 12, 2007 decision. Appellant
submitted additional evidence with her June 11, 2007 request, including military and civilian
10

See Ralph L. Dill, 57 ECAB 248 (2005).

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.608(a).

13

Id. at § 10.608(b)(1) and (2).

14

Id. at § 10.608(b).

15

Id. at § 10.606(b)(2).

5

personnel records, publications regarding asbestosis, medical evidence. However, none of this
evidence is relevant to the underlying issue in this case, i.e., whether she timely filed a claim for
death benefits under section 8122 of the Act. As appellant did not submit relevant and pertinent
new evidence not previously considered by the Office, it properly denied her reconsideration
request by its December 5, 2007 decision.16
CONCLUSION
The Board finds that appellant did not timely file a claim for death benefits under
5 U.S.C. § 8122, and that the Office properly refused to reopen her case for further consideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 5, March 12 and February 8, 2007 be affirmed.
Issued: October 21, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

See Johnnie B. Causey, 57 ECAB 359 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James E. Snyder, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-424
Issued: June 20, 2013

Case Submitted on the Record

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

JURISDICTION
On December 19, 2012 appellant, through his attorney, filed a timely appeal of an
October 16, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than a two percent impairment of the left upper
extremity entitling him to an additional schedule award.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On February 1, 2001
appellant, then a 45-year-old mail processor, filed a traumatic injury claim alleging that on
January 30, 2001 he injured his neck which resulted in pain down his left arm and into his left
1

5 U.S.C. § 8101 et seq.

hand. He underwent cervical x-rays on August 2, 1999 which demonstrated reversal of lordosis
suggestive of muscular spasm. Appellant underwent a magnetic resonance imaging (MRI) scan
which demonstrated significant herniated disc at C4-5 on the left and C7-T1 on the left. A
March 18, 2001 MRI scan demonstrated C3-4 focal central disc protrusion. On April 30, 2001
OWCP accepted appellant’s claim for herniated disc. Appellant had normal electromyogram
(EMG) and nerve conduction velocity results on the left upper extremity on June 26, 2001. On
September 10, 2001 he underwent a cervical computerized tomography (CT) scan which
demonstrated disc protrusions at C2-3 C3-4, and C7-T1 with disc herniations as C5-6 and C7-T1.
On the same date appellant underwent a cervical EMG which demonstrated degenerative disease
of the cervical spine.
Appellant filed a recurrence of disability commencing February 14, 2002 due to his
January 30, 2001 employment injury. He underwent an MRI scan on April 9, 2002 which
demonstrated disc herniations at C4-5, C5-6 and C6-7 with disc protrusion at C3-4 and annual
disc bulge at C7-T1. On July 1, 2002 appellant underwent C4-5, C5-6 and C6-7 anterior cervical
discectomy and fusion with allograft anterior plate due to C4-5, C5-6 and C6-7 stenosis with
myelopathy and radiculopathy. On July 8, 2002 he underwent placement of percutaneous
lumbar drain due to cerebrospinal fluid fistula with cerebrospinal fluid pseudomeningocele
formation.
OWCP accepted the additional condition of aseptic meningitis on
September 19, 2002.
Appellant returned to light duty on February 25, 2003. His attending physician,
Dr. Henry Pool, a Board-certified neurosurgeon, opined on September 24, 2003 that appellant
experienced intermittent thumb numbness and paresthesias which he attributed to chronic C6
nerve root damage.
Appellant filed a claim for schedule award which OWCP granted for two percent
impairment of his left upper extremity on November 24, 2003. He requested an oral hearing and
on January 21, 2005 the hearing representative affirmed the November 24, 2003 decision. On
appeal the Board, by decision dated October 11, 2005, affirmed the findings of two percent
impairment of the left upper extremity.2 The facts and the circumstances of the case as set forth
in the Board’s prior decision are adopted herein by reference.
On November 1, 2010 appellant’s attending physician, Dr. Joseph D. Stern, a Boardcertified orthopedic surgeon, recommended a posterior decompression C3-4 and posterior fusion
C3-7. In a note dated November 10, 2010, OWCP’s medical adviser opined that the proposed
back surgery was appropriate and approved.
Appellant underwent posterior cervical
decompression at C3-5 with lateral mass fixation on December 3, 2010. He returned to his fullduty position on June 20, 2011. On September 28, 2011 appellant reported numbness in his left
hand.
Appellant underwent lumbar spine surgery at the Veterans Administration Hospital on
January 25, 2012 due to a service-related condition. Dr. Stern examined appellant on
February 29, 2012 and noted that appellant had back surgery in January which was not work
related. He opined that appellant had 15 percent impairment due to neck pain and loss of range
2

Docket No. 05-824 (issued October 11, 2005).

2

of motion following the C3-7 posterior decompression and fusion. Appellant requested an
increased schedule award on March 2, 2012.
On March 6, 2012 OWCP’s medical adviser noted that appellant had previously received
two percent impairment due to his left upper extremity. He recommended a detailed
electrodiagnostic study of both upper extremities. On May 9, 2012 appellant underwent
electromyogram and nerve conduction velocity studies which were interpreted as normal.
OWCP’s medical adviser reviewed the record on June 18, 2012 and stated that the
May 9, 2012 electrodiagnostic studies demonstrated no evidence of right or left upper extremity
radiculopathy.
OWCP referred appellant to Dr. William A. Somers, a Board-certified orthopedic
surgeon and second opinion physician, who completed a report on September 28, 2012. He
provided appellant’s history of injury and noted his spine surgeries on December 3, 2010 and in
January 2012. Dr. Somers noted that appellant no longer experienced left arm pain, but had
sharp pain in his posterior neck radiating to his left scapula. He noted that appellant
demonstrated slightly diminished dexterity in his fingers with limited range of motion in his
cervical spine. Dr. Somers stated that appellant had no paresthesias or dysesthesia with
Spurling’s maneuver and no spasticity in either upper limb. In regard to appellant’s lower
extremities, he found symmetric reflexes and no spasticity. Dr. Somers diagnosed cervical disc
disease aggravated by injury on January 30, 2011, C7 disc herniation and radiculopathy and
noted appellant’s cervical spine surgeries. He stated that appellant did not have major evidence
of myelopathy, but had a little dexterity loss in his hands as well as balance changes due to
limited motion in his cervical spine. Dr. Somers opined that appellant’s limited range of motion
in the neck produced a significant impairment, but that this impairment was not recognized by
OWCP. He provided an impairment rating based on appellant’s spine and concluded that
appellant had 19 percent impairment. Dr. Somers stated, “Because he does have some subtle
findings of very mild myelopathic changes such as decreased dexterity and some clumsiness in
the hands as well as some station and gait problems, I have looked at Chapter 13,3 Table 11 and
Table 12 and [have] come up with upper extremity dysfunction class 1 equaling one percent for
his dominant right hand and one percent for his nondominant left hand….” He also included
appellant’s lumbar spine and reached seven percent impairment of the whole person related to
spinal cord dysfunction.
An OWCP medical adviser reviewed medical evidence and noted that FECA did not
recognize the spine as a scheduled member. He noted that appellant had no findings in the upper
or lower extremities. OWCP’s medical adviser stated, “In summary, the 13 percent whole
person for cervical spine and 7 percent whole person for the spinal cord dysfunction [are] not
supported by evidence and OWCP policy.”
By decision dated October 16, 2012, OWCP denied appellant’s claim for an additional
schedule award as the medical evidence did not address an accepted scheduled member.

3

A.M.A., Guides, pp. 321-45, The Central and Peripheral Nervous System.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.6
FECA does not authorize the payment of schedule awards for the permanent impairment
of the whole person.7 Payment is authorized only for the permanent impairment of specified
members, organs or functions of the body.
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.8 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,9 no claimant is
entitled to such an award.10
Amendments to FECA, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
4

5 U.S.C. §§ 8101-8193, 8107.

5

20 C.F.R. § 10.404.

6

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

W.D., Docket No. 10-274 (issued September 3, 2010); Ernest P. Govednick, 27 ECAB 77 (1975).

8

W.D., id.; William Edwin Muir, 27 ECAB 579 (1976).

9

FECA itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

10

W.D., supra note 7. Timothy J. McGuire, 34 ECAB 189 (1982).

11

W.D., supra note 7. Rozella L. Skinner, 37 ECAB 398 (1986).

4

the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.12 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3-700 of its
procedures.13 Specifically, it will address lower extremity impairments originating in the spine
through Table 16-1114 and upper extremity impairment originating in the spine through Table
15-14.15 The impairment is premised on evidence of radiculopathy affecting the upper or lower
extremities.16
ANALYSIS
OWCP accepted that appellant sustained a neck strain and herniated disc at C4-5, C5-6
and C6-7 as well as meningitis due to his January 30, 2001 employment injury. Appellant
underwent spine surgeries on July 1, 2002 and December 3, 2010. He received a schedule award
for two percent impairment of his left upper extremity on November 24, 2003 Appellant’s
attending physician, Dr. Stern, opined that appellant had 15 percent permanent impairment due
to neck pain and loss of range of motion of the cervical spine on February 29, 2012.
OWCP undertook additional development of the medical evidence and requested
electrodiagnostic studies which were interpreted as normal with no radiculopathy in the
extremities. It then referred appellant to Dr. Somers for a second opinion evaluation. In his
September 28, 2012 report, Dr. Somers noted that appellant demonstrated slightly diminished
dexterity in his fingers with limited range of motion in his cervical spine. He stated that
appellant had no paresthesias or dysesthesia with Spurling’s maneuver and no spasticity in either
upper limb. Dr. Somers provided an impairment rating based on appellant’s spine and concluded
that appellant had 19 percent impairment. He further found that appellant had findings of very
mild myelopathic changes such as decreased dexterity and some clumsiness in the hands and
applied Chapter 13,17 Table 11 and Table 12 of the A.M.A., Guides to reach one percent
impairment of each upper extremity. Dr. Somers also included appellant’s lumbar spine and
reached seven percent impairment of the whole person related to spinal cord dysfunction.
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser

12

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Exhibit 4 (January 2010).
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010)
(Exhibits 1, 4).
14

A.M.A., Guides 533, Table 16-11.

15

Id. at 425, Table 15-14.

16

Supra note 13. J.S., Docket No. 13-381 (issued April 26, 2013).

17

A.M.A., Guides, pp. 321-45, The Central and Peripheral Nervous System.

5

providing rationale for the percentage of impairment specified.18 While FECA does not provide
for a schedule award for the back or spine, impairment of the extremities due to a spinal injury
may be compensable.19 The medical adviser reviewed the medical evidence of record and
opined that there was no ratable upper extremity impairment. He noted that appellant had no
findings in the upper or lower extremities. The medical adviser concluded that the impairment
ratings for the cervical and lumbar spines were not appropriate. For peripheral nerve
impairments to the upper or lower extremities resulting from spinal injuries, OWCP procedures
indicate that The Guides Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth
edition (July to August 2009) is to be applied.20 Impairments are rated premised on evidence of
radiculopathy affecting the upper and/or lower extremities.21 The medical adviser found that
Drs. Stern and Somers failed to adequately describe any upper extremity impairment and there
was no objective evidence to support any impairment. Thus, he properly concluded that there
was no credible impairment of the upper extremities based on the accepted conditions of cervical
sprain and disc herniation.
The medical evidence does not establish that appellant has permanent impairment to a
scheduled member of the body causally related to his accepted injury. Consequently, appellant
has not established entitlement to a schedule award.
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established an additional schedule award due to
impairment to a scheduled member.

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
19

See Thomas J. Engelhart, 50 ECAB 319 (1999).

20

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010).
21

See N.F., Docket No. 13-129 (issued March 15, 2013).

6

ORDER
IT IS HEREBY ORDERED THAT October 16, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7