United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marblehead, MA, Employer
__________________________________________

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

Docket No. 14-127
Issued: May 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 30, 2013 appellant filed a timely appeal from a July 3, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
review of the claim. As more than 180 days have elapsed from the last merit decision,
November 8, 2012, and the filing of this appeal, pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that she disagreed with the decision that her ankle pain is
not aggravated by her job. She noted her job activities resulted in soft tissue inflammation
around the plate and screws and ligament strain which produced ankle pain. Appellant argued
1

5 U.S.C. § 8101 et seq.

that removal of the plate and screws will allow more normal ankle motion and less soft tissue
inflammation and ligament strain.
FACTUAL HISTORY
On August 9, 2012 appellant, then a 48-year-old letter carrier, filed an occupational
disease claim alleging that her orthopedic surgeon wanted to take out five screws and a plate
because of severe swelling and sharp pain in her left ankle.2 She noted that, as a letter carrier
with 500 stops, she walks, climbs stairs, carries mail and gets in out and out of her mail truck
8 to 10 hours a day for five to six days a week. By letter dated August 13, 2012, OWCP
controverted appellant’s claim.
By letter dated August 23, 2012, OWCP informed appellant that she must submit
evidence, including medical evidence, in support of her claim.
In an August 30, 2012 report, Dr. Robert Wood, appellant’s treating Board-certified
orthopedic surgeon, indicated that appellant was being seen for follow up on her left ankle. He
noted that she had swelling and discomfort in the ankle and that the pain was located over the
lateral aspect and anterior aspect of the ankle. Dr. Wood also noted mild effusion and soft tissue
swelling. He stated that they would proceed with ankle arthroscopy and hardware removal. In
September 7 and 10, 2012 reports, Dr. Wood noted that appellant had been followed by his
office going back to 2006 for an ankle fracture requiring open reduction and internal fixation.
He noted that she sustained a work-related injury again on August 1, 2008 when she rolled her
ankle into inversion while working as a letter carrier. Dr. Wood noted that, although appellant
had been discharged from their care, as a result of repetitive walking in her line of work as a
letter carrier she continued to have persistent ankle pain. He opined that, since the original injury
with her ankle was a work-related injury, as well as the aggravation again in 2008 being
employment related, it was reasonable to ascertain that her persistent left ankle pain is an
employment-related injury. Dr. Wood further stated that appellant’s ankle injury is related to her
line of work and further noted that the original acute injury was certainly work related and that
the repetitive motion of her work has been a contributing factor to her persistent pain.
By decision dated November 8, 2012, OWCP denied appellant’s claim as she had not
established a medical diagnosis in connection with the accepted events. It also noted that, had
she established a diagnosis, her claim would still be denied because she failed to establish that a
medical condition was diagnosed in connection with the claimed work factors.3
On April 16, 2013 appellant requested reconsideration. She submitted additional reports
from Dr. Wood after the November 8, 2012 decision. In a July 24, 2012 report, Dr. Wood noted
that appellant was being seen for follow up regarding her left ankle, for which she had an open
reduction and internal fixation done back in roughly 2006. He noted that she complained of
2

Appellant’s supervisor signed the claim form on August 9, 2012 and the form was received by OWCP on
August 13, 2012. However, appellant’s signature is dated September 7, 2012.
3

OWCP noted that there was no claim on file for an alleged 2006 employment-related ankle fracture as
referenced by Dr. Wood.

2

ongoing issues with pain and numbness in the posterolateral aspect of the hip and in the ankle
directly over the incision. Dr. Wood noted that x-rays showed anatomic reduction and good
hardware position of an old fibular fracture with no signs of degeneration. He noted that
appellant wished to proceed with surgical intervention, so he recommended an ankle
arthroscopy, debridement and hardware removal. In a January 3, 2013 report, Dr. Wood stated
that her physical examination is consistent with pain on palpitation over the anterior joint line
was well as over the lateral aspect of the ankle over the distal fibula. He recommended hardware
removal and ankle arthroscopy debridement. Dr. Wood indicated that he “felt that [appellant’s]
current condition is secondary to the injury that she sustained at work.” In a June 4, 2013 report,
he stated that he was currently treating appellant for her chronic pain of her left ankle. Dr. Wood
noted that she had an initial injury back in 2006, which resulted in open reduction and internal
fixation. He noted that appellant healed completely from that but did sustain a second injury
while on the job in an inversion-type injury. Dr. Wood noted that her current diagnosis is left
ankle painful hardware.
In a July 3, 2013 decision, OWCP denied appellant’s request for reconsideration without
conducting a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
OWCP denied appellant’s claim as she failed to establish a medical condition causally
related to the accepted employment conditions of her federal employment. Appellant requested
reconsideration and on April 16, 2013, OWCP denied her request for reconsideration without
reviewing the case on the merits. The Board does not have jurisdiction over the merits of the

4

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

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claim and may only address whether appellant’s request for reconsideration was properly denied
without merit review.8
OWCP denied appellant’s claim because the medical evidence did not establish that she
sustained a diagnosed condition causally related to her accepted employment activities. On
reconsideration, she submitted further reports from Dr. Wood. In these reports, Dr. Wood again
describes appellant’s symptoms of pain, indicated that the current medical condition of her left
ankle pain and stated his belief that this pain is secondary to the injury she received at work. His
reports are repetitive of his previous reports already reviewed by OWCP. The Board has held
that evidence which is duplicative or repetitive of evidence existing in the record is not sufficient
to warrant further merit review.9 As these reports are repetitive of Dr. Wood’s early reports, they
do not constitute relevant and pertinent new medical evidence and are insufficient to require
OWCP to reopen appellant’s case for further review of the merits.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP and has not submitted relevant and pertinent new evidence not previously
considered by OWCP. Accordingly, the Board finds that she did not meet any of the necessary
requirements and is not entitled to further merit review.10
On appeal, appellant contends that her ankle pain was aggravated by her job. Her
arguments address the merits of her case and, as previously stated, the Board does not have
jurisdiction to review the merits of this claim.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review on the merits pursuant to 5 U.S.C. § 8128(a).

8

Id. at § 501.3(e).

9

L.T., Docket No. 09-1798 (issued August 5, 2010); L.H., 59 ECAB 253 (2007); Jennifer A. Guillary, 57 ECAB
485 (2005).
10

See L.H., id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 3, 2013 is affirmed.
Issued: May 12, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clyde, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1440
Issued: December 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 6, 2014 appellant, through her representative, filed a timely appeal from the
December 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant’s accepted work injury caused a recurrence of disability
beginning March 11, 2013.
1

Under the Board’s Rules of Procedure, there is a 180-day limitation for filing an appeal. 20 C.F.R.
§ 501.3(f)(2). OWCP issued its decision on December 12, 2013, rendering June 10, 2014 as the 180th day.
Appellant’s appeal was received by the Clerk of the Board on June 12, 2014, which would render the appeal
untimely and result in the loss of appeal rights. However, if the date of the postmark renders an appeal timely, it is
considered the date of filing. The date of the U.S. Postal Service postmark is June 6, 2014, which renders the appeal
from OWCP’s December 12, 2013 decision timely. 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In 2012 appellant, a 53-year-old rural carrier, filed an occupational disease claim alleging
that her bilateral hand condition was a result of performing her duties. OWCP accepted her
claim for bilateral carpal tunnel syndrome. Appellant underwent carpal tunnel releases later that
year and received compensation for temporary total disability on the periodic rolls.
On February 6, 2013 Dr. James R. Mull, a Board-certified orthopedic surgeon who
performed the operations, released appellant to return to work with restrictions beginning
February 17, 2013. He noted that she was doing well, had full range of motion, and had
improved strength.
Appellant accepted an offer of modified work and returned to full-time limited duty on
February 19, 2013.
Electrodiagnostic testing performed on March 1, 2013 revealed findings that were most
consistent with right carpal tunnel syndrome and probable early/mid left carpal tunnel syndrome.
Clinical correlation was advised.
Dr. Mull saw appellant on March 11, 2013. Appellant reported persistent sensory
symptoms. The tingling in her right and left hands, finger tips and palms had remained
unchanged. Appellant advised that she was unable to perform her job duties “to the best of her
ability,” adding that, if she did not meet her standards, she would get fired. She informed
Dr. Mull that her job offered no limited duty. Appellant stated that she would like to be off work
until she was fully able to perform her duties.
Dr. Mull’s examination of appellant was normal. Wrists and hands showed no
tenderness, swelling, deformities, instability, subluxations, weakness or atrophy. Range of
motion in all planes was full and painless. Dr. Mull diagnosed resolved bilateral carpal tunnel
syndrome. As appellant’s examination was completely normal, he recommended that she seek a
second opinion. Nonetheless, due to appellant’s statement that she was unable to perform her
job, he declared her unable to return to work as of March 11, 2013. Dr. Mull instructed her to
return to normal activity allowing for minor discomfort.
Appellant filed a claim for wage-loss compensation indicating that she was totally
disabled for work beginning March 11, 2013. The employing establishment indicated that fulltime work was still available and that she chose not to work.
Dr. Shawn A. Hayden, a Board-certified orthopedic surgeon, examined appellant on
May 6, 2013. Light touch was intact with two-point moving discrimination intact at five
millimeters on each fingertip of the left and right hands. Strength was normal with the exception
of 4/5 strength in the abductor pollicis brevis muscles (thumb) bilaterally, left greater than right.
Reflexes were normal. Wrists showed no swelling. Bilaterally, however flexion and extension
were restricted and painful. Both wrist showed tenderness consistent with carpal tunnel
syndrome. Both also showed a positive Phalen’s sign. Dr. Hayden found that appellant’s
examination was consistent with mild clinical residual symptoms of carpal tunnel syndrome
bilaterally, left greater than right.

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OWCP provided Dr. Hayden with a description of the limited-duty assignment to which
appellant had returned on February 19, 2013. It asked him to review it and identify any duties
she could not perform and the objective findings that established renewed disability.
Dr. Hayden completed a duty status report returning appellant to work on May 7, 2013.
He limited her to lifting 15 pounds continuously and 25 pounds intermittently for two hours a
day, and he limited simple grasping to two hours a day. Dr. Hayden indicated that these
restrictions would apply through July 7, 2013.
In a decision dated June 13, 2013, OWCP denied appellant’s recurrence claim. It found
that Dr. Mull did not provide a thorough explanation with objective findings as to how her
condition had worsened such that she was no longer able to perform the duties of her modified
assignment beginning March 11, 2013. OWCP further found that Dr. Hayden did not indicate
that appellant was disabled for work due to the accepted medical condition.
Appellant, through her representative, requested reconsideration. She argued that
Dr. Mull offered conflicting work limitations prior to her return to limited duty and that her
limited duty exceeded the limitations imposed by him for simple grasping and driving.
Specifically, Dr. Mull restricted simple grasping and driving to five hours while the limited-duty
assignment required simple grasping and driving for four to six hours. Appellant argued that
Dr. Hayden further increased her restrictions such that she was no longer able to perform her
limited duty. She added that OWCP failed to justify the termination of her compensation.
Dr. Joseph H. Crumbliss, the attending physician Board-certified in family medicine,
examined appellant on June 18, 2013 and diagnosed resolving carpal tunnel syndrome following
bilateral releases. He explained to her that a comparison of her pre and postoperative
electrodiagnostic studies revealed marked improvement in both median nerves. Findings
indicated a steady improvement in physiologic parameters used to diagnose carpal tunnel
syndrome. Dr. Crumbliss explained that it was not unreasonable to anticipate that appellant
would still have numbness and pain related to persistent damage to both of her median nerves,
but that it was also not unreasonable to anticipate that further improvement could occur over
time.
Dr. Johan A. Sazy, an orthopedic surgeon, examined appellant on July 24, 2014 and
found that she could not return to work due to active symptoms from failed surgery.
On September 26, 2013 Dr. Sazy performed an authorized left carpal tunnel release with
tenosynovectomy. OWCP paid appellant compensation for the resulting recurrence of total
disability and placed her on the periodic rolls.
In a decision dated December 12, 2013, OWCP reviewed the merits of appellant’s case
and denied modification of its prior decision. It found that appellant’s physicians had not
provided a well-reasoned opinion, supported by objective findings, to explain why she was not
able to work beginning on March 11, 2013.
On appeal, appellant’s representative advances the arguments he made in requesting
reconsideration.

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LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 “Disability” means the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of injury. It
may be partial or total.4
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
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
of establishing by the weight of the reliable, probative and substantial evidence a recurrence of
total disability and show that he or she cannot perform such light duty. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty job requirements.6
ANALYSIS
Dr. Mull, the orthopedic surgeon who performed the initial carpal tunnel surgeries,
released appellant to return to work with restrictions. Appellant was doing well, had full range
of motion, and had improved strength. She accepted an offer of modified work and returned to
full-time limited duty on February 19, 2013. Appellant stopped work on March 11, 2013,
however, and claimed compensation for total disability. She thus has the burden to establish a
recurrence of disability by showing a change in the nature and extent of her injury-related
condition.7
The most significant medical evidence on that point comes from Dr. Mull, who saw
appellant on the day she stopped work. He indicated no change in the nature and extent of her
injury-related condition. Rather, appellant advised that the tingling in her right and left hands,
fingertips and palms had remained unchanged. She told Dr. Mull that she was unable to perform
her duties “to the best of her ability” and that she would like to be off work until she was fully
able to perform her duties. Appellant also told him, incorrectly, that her job offered no limited
duty.
3

Id. at § 8102(a).

4

20 C.F.R. § 10.5(f).

5

Id. at § 10.5(x).

6

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

7

Appellant does not argue and the record does not establish, a change in the nature and extent of the light-duty
job requirements.

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Appellant’s presentation to Dr. Mull tends to support the employing establishment’s
assertion that she stopped work on March 11, 2013 voluntarily. By history, her injury-related
condition had not worsened. Appellant suggested that a work stoppage was a matter of
preference. It was not that she could no longer continue. Appellant simply would like to be off
work until she could perform the duties to the best of her abilities, which perhaps meant until she
no longer had tingling in her hands.
Dr. Mull’s examination of appellant on March 11, 2013 further supports that her work
stoppage that day was a matter of choice. The examination was normal. Wrists and hands
showed no tenderness, swelling, deformities, instability, subluxations, weakness or atrophy.
Range of motion in all planes was full and painless. Dr. Mull diagnosed resolved bilateral carpal
tunnel syndrome. Although he conceded to appellant’s request to be taken off work, he made
clear that her examination was completely normal and that she should perhaps see another
physician. Dr. Mull released her to return to normal activity allowing for “minor discomfort.”
Appellant did see another physician, Dr. Hayden, an orthopedic surgeon, who examined
her on May 6, 2013, about 11 weeks after the work stoppage. Dr. Hayden found that her
examination was consistent with mild clinical symptoms, but he did not report that the injuryrelated condition had worsened to the point that she could no longer perform limited duty
beginning March 11, 2013. OWCP asked him to address the issue directly. It provided
Dr. Hayden with a description of appellant’s limited-duty assignment and asked whether there
were any duties she could not perform, and if so, what objective findings supported a renewed
disability for work.
Dr. Hayden responded indirectly and incompletely, by submitting a duty status report
returning appellant to work on May 7, 2013 with a few restrictions over the next two months. He
did not address her work stoppage on March 11, 2013. Dr. Hayden did not explain why
appellant’s mild clinical findings no longer allowed her to perform her modified assignment.
Appellant demonstrated no loss of sensation. Strength was normal with the exception of 4/5
strength in the abductor pollicis brevis muscles bilaterally, though Dr. Hayden did not explain
whether she had pain during strength testing. Bilateral flexion and extension were restricted and
painful, which was fully at odds with the physical examination performed two months earlier by
Dr. Mull. Dr. Hayden did not discuss whether the two examinations were inconsistent or
whether appellant’s condition had simply worsened in the interval. He did not explain whether
any of her limited duties required such range of motion.
Two other physicians failed to address whether appellant sustained a recurrence of
disability beginning March 11, 2013. Dr. Crumbliss, the attending family physician, saw her on
June 18, 2013 and diagnosed resolving carpal tunnel syndrome.
He explained that
electrodiagnostic studies showed marked improvement in both median nerves and findings
indicated a steady improvement in physiological parameters. It was not unreasonable,
Dr. Crumbliss explained, that appellant would still have residual symptoms and it was also not
unreasonable to anticipate that further improvement could occur over time. Not only did he fail
to address her work stoppage on March 11, 2013, his references to resolving carpal tunnel
syndrome, marked improvement in studies and steady improvement in physiologic parameters
appear inconsistent with the notion that her injury-related condition was worsening.

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Dr. Sazy, another orthopedic surgeon, examined appellant on July 24, 2014 and found
that she could not return to work due to active symptoms from failed surgery. This was the first
medical opinion, since Dr. Mull allowed her to self-certify her work status, to state positively
that she was totally disabled for work as a result of her injury-related condition. Dr. Sazy did not
address whether a worsening of the injury-related condition caused a recurrence of disability
beginning March 11, 2013.
The Board finds that appellant has not met her burden to establish that she sustained a
recurrence of disability beginning March 11, 2013. Dr. Mull’s March 11, 2013 report, together
with the failure of other physicians to directly address the specific issue, fails to establish her
claim for recurrence. The Board will therefore affirm OWCP’s December 12, 2013 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish that the accepted work
injury caused a recurrence of disability beginning March 11, 2013.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 09-1828
Issued: June 24, 2010

Case Submitted on the Record

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

JURISDICTION
On June 3, 2009 appellant filed a timely appeal from the December 16, 2008 and April 20,
2009 decisions of the Office of Workers’ Compensation Programs which found no basis to modify
the compensation rate used in granting a schedule award.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(e), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant has more greater than 13 percent impairment to the
right upper extremity or 16 percent impairment to the left upper extremity; and (2) whether
appellant was entitled to an augmented compensation rate in the December 16, 2008 schedule
award determination.

1

After appellant filed his appeal on June 3, 2009, the Office issued a July 22, 2009 decision regarding the
compensation rate used in the December 16, 2008 schedule award. As the issue is presently on appeal under
Douglas E. Billings, 41 ECAB 880 (1990) the July 22, 2009 decision is null and void.

FACTUAL HISTORY
On April 28, 1993 appellant, then a 31-year-old bulk mail technician, filed a claim alleging
that work factors caused tendinitis in his wrists. The Office accepted that he sustained bilateral
wrist tendinitis, bilateral elbow tendinitis, bilateral medial epicondylitis, lesion of left ulnar nerve
and bilateral carpal tunnel syndrome. Appellant underwent a right carpal tunnel release on
January 13, 1998 and a left carpal tunnel release on April 8, 1998. He underwent a left cubital
tunnel release on January 10, 2006, a right radial tunnel release on August 25, 2006 and a left
medial epicondylectomy and cubital tunnel release on May 22, 2007. The Office paid wage-loss
compensation. Appellant returned to regular duty on September 17, 2007.
By decision dated December 21, 1999, the Office granted appellant schedule awards for
15 percent left upper extremity impairment and 12 percent right upper extremity impairment.
On February 26, 2008 appellant filed a claim for additional schedule awards. He reported
that he had two daughters who were living with him, ages 18 and 20.
In a March 3, 2008 letter, the Office addressed the prior schedule awards and that a
September 13, 2007 medical report from Dr. Dana R. Towle, a Board-certified plastic surgeon,
specializing in hand surgery, was insufficient to establish greater impairment as the physician
failed to address maximum medical improvement or provide a detailed description of permanent
impairment. Appellant was advised to submit a medical report containing an impairment rating
conforming to the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2 He was accorded 60 days to submit the required
medical evidence from his treating physician.
In a January 31, 2008 report, Dr. Towle reported on the status of appellant’s left medial
epicondylectomy and cubital tunnel releases. He advised that appellant reached maximum
medical improvement and could be rated and released. Dr. Towle did not provide any additional
impairment rating.
On June 24, 2008 the Office referred appellant, together with a statement of accepted facts
and the medical record, to Dr. George Varghese, a Board-certified physiatrist, for a second opinion
impairment evaluation. In a July 22, 2008 report, Dr. Varghese noted the history of injury, his
review of appellant’s medical records and findings on physical examination. He opined that
maximum medical improvement was reached on July 21, 2008 for appellant’s left elbow
epicondylitis. Under the A.M.A., Guides, Dr. Varghese opined that appellant had six percent
impairment to the left arm. Appellant’s range of motion limitation of 60 degrees supination was to
one percent impairment under Figure 16-37 of the A.M.A., Guides. Dr. Towle advised that
appellant had Grade 4/5 muscle strength in the left flexor carpi ulnaris that under Table 16-11
constituted a 10 percent motor deficit for ulnar involvement above the mid-forearm. He stated that
this represented five percent impairment under Table 16-15. Dr. Towle reported that appellant had
no sensory symptoms.

2

A.M.A., Guides (5th ed. 2001).

2

In an August 1, 2008 report, the Office medical adviser agreed with the six percent left
upper extremity impairment rating by Dr. Varghese. He noted that appellant’s previous award of
15 percent permanent impairment to the left arm was comprised of 11 percent impairment at the
wrist level and 4 percent impairment at the elbow level. The Office medical adviser advised that
the prior impairment at the wrist level must be combined with the current six percent impairment
for the elbow condition under the Combined Values Chart. This amounted to a combined total of
16 percent which, minus the 15 percent prior award, resulted in 1 percent impairment increase to
the left arm. The Office medical adviser noted that Dr. Varghese did not provide an impairment
rating for the right upper extremity. In a September 13, 2008 letter, he requested that
Dr. Varghese provide an addendum report addressing the right upper extremity.
In a November 10, 2008 report, Dr. Varghese noted findings on examination of appellant’s
right elbow. Under Figure 16-34 of the A.M.A., Guides, no rating was offered for limitation of
flexion but one percent impairment was assigned for extension of minus ten degrees. Under
Figure 16-31, there was no impairment for 90 degrees pronation and 70 degrees supination. Under
Tables 16-10 and 16-15, Dr. Varghese noted 1 percent impairment for a 20 percent grade loss of
sensation in the superficial radial nerve distribution. He advised that the combined impairments
resulted in two percent permanent impairment for the residual deficits from the right elbow injury
and subsequent surgery.
On November 23, 2008 the Office medical adviser stated that Dr. Varghese considered
range of motion, chronic pain or sensory changes and chronic weakness in finding two percent
impairment to appellant’s right arm. This was comprised of one percent impairment for range of
motion and one percent impairment for loss of sensation in the radial sensory nerve. The Office
medical adviser advised that appellant’s previous schedule award of the right elbow on
December 7, 1999 was exclusively for the residuals of the loss of sensation associated with the
radial nerve and amounted to one percent impairment. He stated that, since one percent
impairment for sensory loss of the right elbow was previously awarded, Dr. Varghese’s one
percent impairment rating for sensory change in the distribution of the same nerve could not be
used as it had been already compensated for in the December 21, 1999 schedule award. The
Office medical adviser advised that the one percent impairment for limitation in range of motion
of the right elbow could be accepted. Combining the previous award of 12 percent right upper
extremity impairment with the 1 percent range of motion limitation, he found that appellant had
one percent increase in the impairment to the right upper extremity.
In a December 10, 2008 letter, the Office advised appellant that his schedule award would
be 66 2/3 statutory based on the compensation rate without dependents. It advised that under the
Federal Employees’ Compensation Act, children between the ages of 18 and 23 are considered
dependents only if unmarried and full-time students. The Office requested that appellant fill out
Forms EN1617 if his children were unmarried, full-time students. It provided him with an
EN1617 form and requested that it be returned to the Office within 30 days. Appellant was
requested to complete Part A of the form and have an official at the school complete Part B of the
form after reviewing Part A. He did not respond.
By decision dated December 16, 2008, the Office granted appellant schedule awards for
1 percent impairment of the right upper extremity and 1 percent impairment of the left upper
extremity, or total impairments of 13 percent of the right upper extremity and 16 percent of the left

3

upper extremity. The period of the awards was 6.24 weeks from January 31 to March 14, 2008.
The compensation rate was 66 2/3 of appellant’s weekly pay rate.
In a February 8, 2009 letter, appellant’s attorney contended that appellant’s compensation
rate should be based on the 75 percent augmented rate. He advised that appellant’s two daughters
were between the ages of 19 and 21 and were both full-time students. Counsel stated that, while
appellant’s daughters did not live with him, he paid for books and tuition. Appellant submitted
December 16, 2008 letters from both daughters, who stated that they lived with their father and
currently attended school. The younger daughter stated that she attended Maple Woods
Community College and the older daughter stated that she was a full-time student at the University
of Missouri Kansas City. Appellant’s younger daughter provided a partial copy of a January 22,
2009 degree progress report from Metropolitan Community College -- Kansas City and a 2008
tuition statement, which indicated that she was a half-time student at the “Junior College District
of Metropolitan Kansas City.” His older daughter submitted a copy of a student class schedule for
the weeks of August 31, 2008 and January 12, 2009.
By decision dated April 20, 2009, the Office denied modification of the compensation rate
at which the December 16, 2008 schedule awards were paid.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.5
It is well established that preexisting impairments to the scheduled member are to be
included when determining entitlement to a schedule award.6 Office procedures state that any
previous impairment to the member under consideration is included in calculating the percentage
of loss except when the prior impairment is due to a previous work-related injury, in which case
the percentage already paid is subtracted from the total percentage of impairment.7

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.404.

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Michael C. Milner, 53 ECAB 446, 450 (2002); Raymond E. Gwynn, 35 ECAB 247 (1983).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7.a(2) (November 1998).

4

ANALYSIS -- ISSUE 1
Appellant was previously granted schedule awards for 12 percent impairment to the right
arm and 15 percent permanent impairment to the left arm. He filed a claim for increased
impairment to both members. The Office had advised appellant to submit a medical report
providing an impairment rating which conformed to the A.M.A., Guides. The progress reports
from Dr. Towle do not contain any impairment rating pertaining to the accepted conditions. The
Office properly determined that Dr. Towle’s reports did not provide a basis for increased schedule
awards under the Act.8
The Office referred appellant to Dr. Varghese for an evaluation of his permanent
impairment. With respect to appellant’s left upper extremity, Dr. Varghese found that appellant
had six percent impairment under the A.M.A., Guides, which was comprised of one percent for
range of motion deficit and five percent motor loss of the ulnar nerve above the midforearm.
Under Figure 16-37, page 474, he correctly noted 60 degrees supination corresponded to one
percent impairment. Under Table 16-11,9 Dr. Varghese advised that appellant had Grade 4/5
muscle strength in the left flexor carpi ulnaris which was a 10 percent deficit. He advised that this
involved the ulnar nerve above the midforearm, which has a 46 percent maximum impairment due
to motor deficit under Table 16-15.10 Under the grading procedure in Table 16-11, Dr. Varghese
properly multiplied the 46 percent maximum impairment for motor loss of the ulnar nerve above
the midforearm under Table 16-15 by the 10 percent deficit he found under Table 16-11. This
yielded five percent impairment when rounded to the nearest whole number. Dr. Varghese opined
that appellant had total left arm impairment of six percent. With respect to appellant’s right upper
extremity, he advised that appellant had two percent impairment. Under Figure 16-34 of the
A.M.A., Guides, Dr. Varghese found one percent impairment for extension minus (-10) degrees.
Under Tables 16-10 and 16-15, he rated one percent impairment for sensory deficit attributable to
the radial sensory nerve. Dr. Varghese graded a 20 percent sensory deficit under Table 16-1011 for
loss of sensation in the superficial radial nerve distribution. Under Table 16-15, a five percent
maximum sensory loss is allowed for sensory deficit of the radial nerve. Dr. Varghese multiplied
the 5 percent maximum loss for the radial nerve by the 20 percent sensory deficit to total 1 percent
sensory impairment. He combined the sensory impairment and range of motion impairment to
arrive at two percent impairment of the right arm.
An Office medical adviser reviewed Dr. Varghese’s findings. With respect to appellant’s
left upper extremity, the medical adviser noted that appellant received a prior 15 percent
impairment rating comprised of 11 percent impairment at the wrist level and 4 percent impairment
at the elbow level. He properly determined that the 11 percent impairment at the wrist level
previously awarded must be combined with the current 6 percent impairment for the elbow
8

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician, which
must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly visualize
the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580, 585 (2005).
9

A.M.A., Guides 484.

10

Id. at 492.

11

Id. at 482.

5

condition, found by Dr. Varghese, which totaled 16 percent. The Office medical adviser
subtracted the 15 percent previously awarded to find that appellant had an additional 1 percent
impairment. With respect to appellant’s right upper extremity, he noted that appellant’s rating
involved the elbow for residuals of loss of sensation affecting the radial nerve and amounted to
one percent impairment. The Office medical adviser stated that, since one percent impairment for
sensory loss of the right elbow was previously awarded, Dr. Varghese’s one percent impairment
rating for sensory loss in the same nerve distribution could not be used as it has been compensated
for in the December 21, 1999 schedule award. He advised that the one percent impairment for
limitation in range of motion of the right elbow could be accepted. Combining the previous award
of 12 percent right upper extremity impairment with the 1 percent range of motion limitation, the
Office medical adviser correctly found that appellant had 13 percent total right arm impairment or
a 1 percent increase in right arm impairment.
The Board finds that Office medical adviser properly relied upon the findings in
Dr. Varghese’s reports in the extent of determining impairment to appellant’s left and right arms.
There is no other medical evidence of record to establish greater impairment than 16 percent of the
left upper extremity and 13 percent of the right upper extremity.
LEGAL PRECEDENT -- ISSUE 2
The basic rate of compensation under the Act is 66 2/3 percent of the injured employee’s
monthly pay. Where the employee has one or more dependents as defined in the Act, he is entitled
to have his basic compensation augmented at the rate of three-quarters of his monthly pay.12 A
child is considered a dependent if he or she is under 18 years of age, is over 18 years but is
unmarried and incapable of self-support because of a physical or mental disability or is an
unmarried student under 23 years of age who has not completed four years of education beyond
the high school level and is currently pursuing a full-time course of study at a qualifying college,
university or training program.13
ANALYSIS -- ISSUE 2
Appellant received a schedule award for an additional one percent impairment to each of
his arms on December 16, 2008. Compensation was paid at the basic statutory rate of 66 2/3 of
his monthly pay. On reconsideration, appellant’s attorney contends that compensation should be
paid at the augmented 75 percent rate under 5 U.S.C. § 8110(a) as his two daughters were eligible
dependents. Although appellant was provided with the appropriate forms by the Office to
determine whether his daughters were dependents, the forms were not completed or submitted by
appellant.14 No official of any school has verified the status of appellant’s daughter’s as full-time
12

5 U.S.C. § 8110(b); see also William G. Dimick, 38 ECAB 751 (1987). The compensation rate for schedule
awards is the same as compensation for wage loss. See 5 U.S.C. § 8107; 20 C.F.R. § 10.404(b) (1999).
13

5 U.S.C. § 8110(a)(1) and 8101(17); 20 C.F.R. § 10.405. See Leon J. Mormann, 51 ECAB 680 (2000). See also
Federal (FECA) Procedure Manual, supra note 7, Computing Compensation, Chapter 2.901.5(a) (December 1995).
14

Office procedures contemplate that the Office should obtain proof of student status using such a form. See
Federal (FECA) Procedure Manual, supra note 7, Early Management of Disability Claims, Chapter 2.811.10(a)
(February 2002).

6

students. The evidence submitted, copies of class schedules, an incomplete degree progress report
from Metropolitan Community College -- Kansas City and a 2008 tuition statement, does not
clearly establish whether appellant’s daughter’s were full-time students at the listed each
educational institution. The documents were not certified or verified by an appropriate college or
university official. Each daughter noted attending the college in question but neither asserted that
she was a full-time student. Absent any evidence from officials at either educational facility
which certifies to the specific periods their status was as full-time students, the Office properly
correctly found that there was no basis to modify the basic compensation rate used in the
December 16, 2008 schedule award.
CONCLUSION
The Board finds that appellant has no more than 16 percent left upper extremity
impairment or 13 percent right upper extremity impairment, for which he received schedule
awards. The Board further finds that he has not established he is entitled to augmented
compensation under the schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2009 and December 16, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 24, 2010
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, ROCHESTER
PROCESSING & DISTRIBUTION CENTER,
Rochester, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0970 & Docket
No. 21-0972
Issued: March 3, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 3, 2021 appellant also filed a timely appeal from a November 24, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx550. The Clerk of the Appellate Boards docketed the appeal as No. 21-0972. On June 10,
2021 appellant filed a timely appeal from a December 29, 2020 merit decision of OWCP under
OWCP File No. xxxxxx896. The Clerk of the Appellate Boards docketed that appeal as No.
21-0970.
With regard to OWCP File No. xxxxxx550, on October 27, 2007 appellant, then a 45-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed
neck, shoulder, and wrist conditions due to factors of her federal employment, including lifting
trays, pushing containers, and moving mail. She noted that she first became aware of her condition
and its relation to her federal employment on October 27, 2007. OWCP accepted the claim for
right biceps strain and sprain of the shoulder and upper arm. On November 12, 2008 OWCP
expanded the acceptance of appellant’s claim to include right lateral epicondylitis, lesion of the
left ulnar nerve, and bilateral carpal tunnel syndrome.
With regard to OWCP File No. xxxxxx896, on January 3, 2017 appellant, then a 54-yearold mail processor, filed an occupational disease claim (Form CA-2) alleging that she developed

a left wrist condition due to factors of her federal employment, including repetitive fixing and
bagging of the mail. On April 5, 2017 OWCP accepted the claim for left radial styloid
tenosynovitis (de Quervain’s) under OWCP File No. xxxxxx896.
On June 1, 2020 appellant filed claims for compensation (Form CA-7) for a schedule award
under both OWCP File Nos. xxxxxx896 and xxxxx550. By decision dated November 24, 2020,
under OWCP File No. xxxxxx550, OWCP granted appellant a schedule award for seven percent
permanent impairment of her right upper extremity and nine percent permanent impairment of her
left upper extremity. The award ran for 47.76 weeks during the period September 14, 2020 to
August 14, 2021. By decision dated December 29, 2020, under OWCP File No. xxxxx896, OWCP
denied appellant’s schedule award claim, finding that the evidence of record was insufficient to
establish permanent impairment of a scheduled member or function of the body.
The Board has duly considered the matter and finds that these cases are not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administratively
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on frequent crossreferencing between files.1 This will allow OWCP to consider all relevant claim files in developing
these schedule award claims.2
Appellant has claimed schedule awards in two claims, both accepted for injuries to her left
upper extremity. Therefore, for full and fair adjudication, the cases must be remanded to OWCP
to administratively combine OWCP File Nos. xxxxxx896 and xxxxxx550.3 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision on
appellant’s schedule award claims.

1

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

Id. at Chapter 2.400.8(c)(1); E.J., Docket No. 20-1556 (issued July 27, 2021); V.G., Docket No. 19-0670 (issued
April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867,
17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969 (issued October 5, 2015); C.C., Docket No. 14-1576
(issued March 9, 2015).
3

Id.

2

IT IS HEREBY ORDERED THAT the November 24 and December 29, 2020 decisions
of the Office of Workers’ Compensation Programs under OWCP File Nos. xxxxxx550 and
xxxxxx896 are set aside and the cases are remanded to OWCP for further proceedings consistent
with this order of the Board.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, S.S.
STRATTON VETERANS MEDICAL CENTER,
Albany, NY, Employer
__________________________________________

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

Docket No. 15-103
Issued: May 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 20, 2014 appellant filed a timely appeal from a September 18, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
September 21, 2014 as she refused suitable work under 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On January 11, 1979 appellant, then a 41-year-old telephone operator, filed a traumatic
injury claim alleging that she sustained injury to her right knee, left upper chest and left wrist
1

5 U.S.C. §§ 8101-8193.

when she tripped over telephone wires and fell. OWCP initially accepted the claim for contusion
to her right knee, left upper chest, and left wrist and thereafter paid benefits.
In May 1979, appellant reported back symptoms. On June 21, 1979 she was hospitalized
for a herniated disc left L5-S1. On July 3, 1979 appellant underwent an accepted left L5-S1
laminectomy and discectomy. She returned to work as tolerated on October 29, 1979. OWCP
expanded the claim to include displacement of lumbar intervertebral disc without myelopathy
L5-S1. After a period of work, appellant complained of back pain in March 1980. On
August 11, 1980 she underwent an accepted laminectomy bilaterally with a discectomy at L5-S1.
Appellant eventually returned to work with subjective complaints of pain in her back, left leg and
several bilateral toes. After several periods of work stoppage in limited-duty capacity, she
stopped work on August 27, 1983 and has not returned. OWCP placed appellant on the periodic
compensation rolls in October 1983.
In a September 16, 1983 report, Dr. Arthur Schilp, a Board-certified neurologist, reported
appellant was seen for persistent low back pain and bilateral lower extremity pain. Examination
revealed that appellant was in moderate discomfort and walked cautiously around the examining
room. She had no difficulty heel or toe walking, good strength in lower extremities, excellent
motion on squatting and walking, and no atrophy in the calves and thighs. Examination findings
were reported as well as a recent weight gain. Dr. Schlip stated that rhizotomy and cordotomy
procedures were probably not going to work for appellant. He stated that a myelogram might
show considerable adhesive arachnoiditis. However, Dr. Schlip explained that treatment was
extremely difficult for that condition and often did not yield much improvement. He indicated
that appellant could lose 20 to 25 pounds and get re-fitted for a firm corset.
The medical evidence of record from 1983 onward noted appellant’s subjective
complaints of pain, restricted movement in the lumbar spine, and numbness with tingling in the
buttock regions, both lower extremities and feet.
In a November 6, 2007 report, Dr. Alan Bloomberg, Board-certified in emergency
medicine, noted the history of injury and medical course, which included some physical therapy.
He noted appellant’s complaint that, for the most part, she lived with low back pain. Regarding
her physical examination, Dr. Bloomberg noted that appellant was now unable to heel and toe
walk. Muscle spasm and tenderness in lumbar paraspinals were noted along with tenderness to
palpation at L3, L4, and L5 and S1 joints and hyposthesia of the L4, L5, and S1 dermatones.
Diagnoses of lumbar radiculopathy, lumbar pain, and lumbar sprain/strain were provided.
Dr. Bloomberg opined that appellant’s back condition was the result of the June 10, 1979 workrelated injury. He recommended physical therapy.
Appellant underwent a nerve conduction study and electromyogram (EMG) study on
November 27, 2007, which indicated a left peroneal neuropathy (axonal loss) to be correlated
clinically. OWCP approved a lumbar support cushion on August 1, 2008 and a portable home
transcutaneous electrical nerve stimulation unit on October 3, 2008. Appellant continued to
undergo physical therapy.

2

On March 14, 2013 the employing establishment requested that OWCP refer appellant
for a second opinion evaluation to determine her disability status. It thereafter referred appellant
to Dr. Edwin E. Mohler, a Board-certified orthopedic surgeon.
In an August 8, 2013 report, Dr. Mohler reviewed the statement of accepted facts and
appellant’s medical record. He noted the history of injury, appellant’s current symptoms, that
she had been under Dr. Bloomberg’s care since 2007, and that she had been attending physical
therapy and decompressive therapy. Examination findings were presented and the following
diagnoses were provided: status post laminotomy and discectomy, left side, L5-S1 July 3, 1979;
status post L5-S1 laminectomy, bilaterally, with fasciectomy August 11, 1980; left-sided L5
radiculopathy by EMG/NCV studies with peroneal neuropathy November 27, 2007; and failed
back syndrome.
Dr. Mohler noted that objective findings on examination consisted of less calf muscle
development on the left side, reduced lumbar lordosis, and reduced flexibility of the lumbar
spine, surgical scar in the midline of the lower lumbar and upper sacrum, and absence of Achilles
tendon reflexes. He opined that these were disabling residuals of the accepted condition of the
displacement of lumbar intervertebral disc without myelopathy at L5-S1. However, Dr. Mohler
found that the conditions of the right knee, upper chest, and left wrist had resolved. He opined
that appellant reached maximum medical improvement as of September 16, 1983, based on the
consultation report of the same date, that she was not interested in additional pain management
or medications, and was not considered a candidate for additional surgeries or rhizotomies. At
that time, appellant was advised to lose weight and recondition with no recommendation or need
for additional treatment by a healthcare provider. Dr. Mohler noted that Dr. Bloomberg had
recommended continued treatment with medications renewed every four weeks at the return
office visit.
Dr. Mohler noted that, over the years, there had been no evidence of improved function,
and appellant’s functional capacity evaluation performed in 2000 revealed multiple self-limiting
behaviors for which she precluded herself from ability to do eight-hour workdays.
Regarding appellant’s disability status, Dr. Mohler concluded that, in addition to having
no evidence of neurological impairment of her right lower extremity, her normal gait, functional
range of motion of her lumbosacral spine, nonphysiological response to sensory examination of
her lower extremities; as well as her ability to do her own dressing, undressing, toileting,
hygiene, drive, cook, perform household chores, visit family, and utilize a computer without any
documented improvement over the last 30 years, negated her total disability status and the need
for additional treatment by healthcare providers. He stated that given appellant’s age, the fact
that she had been out of work for 30 years, with no indication of motivation to return to work
when evaluated in 2000 for the functional capacity evaluation, he did not anticipate her return to
her date-of-injury job as a telephone operator; although, from a medical and subjective point of
view, he opined that she could perform that position for eight hours a day, if she were motivated
to do so.
Dr. Mohler opined that appellant met the criteria for light physical demand work, which
included: occasional lifting up to 20 pounds, frequent lifting up to 10 pounds with alternating
her position among sitting, standing, and walking. He opined that appellant was capable of

3

doing her date-of-injury job as it fell within his physical demand level. Dr. Mohler noted that
any improvement of the accepted conditions was solely based upon appellant’s own motivation
and efforts of reconditioning and not based on the need for further medical treatment. He noted
that a work capacity evaluation and work-hardening program were not needed as she was
capable of being gainfully employed with a guarded prognosis for improvement. The attached
OWCP-5 noted that appellant was at maximum medical improvement with permanent physical
limitations of sitting no more than six hours per day; walking no more than two hours per day;
standing no more than two hours per day; twisting no more than two hours per day;
bending/stooping no more than one hour per day; operating a motor vehicle no more than four
hours per day; pushing two hours no greater than 40 pounds; pulling two hours no greater than
30 pounds; and lifting two hours no greater than 20 pounds.
Dr. Bloomberg continued to submit reports noting no change in appellant’s condition and
recommending physical therapy with short-term goals of improving performance of activities of
daily living, improving range of motion, stretching affected musculature, resolving restriction,
reducing trigger points and improving range of motion.
On November 8, 2013 the employing establishment offered appellant a full-time position
as an information receptionist effective November 25, 2013. It noted that the physical demands
of the position were consistent with Dr. Mohler’s permanent physical limitations. The work was
noted as being sedentary, with employee sitting comfortably to work, with some walking,
standing, bending, carrying of light items such as papers, books, small parts, and driving an
automobile. No special physical demands were required. The duties of the offered job were also
described. Major duties were to direct callers and visitors; provide information about the
organization and provide explanation of office functions, and provide basic instructions.
Inquiries received required evaluation to determine the most useful and appropriate information,
resolve inconsistencies in available information, or provide alternatives. Performance of other
related duties as assigned.
On November 18, 2013 appellant declined the permanent, full-time job offer as an
information receptionist. She stated had not recovered from a displaced disc. Appellant stated
that her injury since 1979 resulted in surgeries and the doctors there determined that her attempt
to continue working caused inflammation and an escalation of her pain and that she should leave
work, which she did. Since 1982, she had provided OWCP with a physician’s report certifying
her continued disability. Appellant alleged that Dr. Mohler did not do an examination to
determine her physical limitations and was not impressed with her EMG studies. She stated that
she could not work for more than an hour, could not walk or stand for more than a few minutes,
and could not sit for more than 15 or 20 minutes. Appellant added that bending or twisting was
totally out of the question.
On January 29, 2014 OWCP found the November 8, 2013 job offer for full-time
information receptionist not suitable as it failed to list specific physical requirements of the job
relative to appellant’s medical restrictions.
In a February 6, 2014 letter, the employing establishment advised the November 8, 2013
job offer mirrored the permanent physical limitations as found on Dr. Mohler’s August 8, 2013
OWCP-5c work capacity evaluation and stated the November 8, 2013 job offer was still

4

available to appellant. It noted that appellant had declined this job offer on November 18, 2013,
and requested reconsideration of the suitability determination.
On February 12, 2014 the employing establishment reoffered the full-time information
receptionist position to appellant. It stated that the position was primarily sedentary and noted
the physical demands of the position were the same as that listed by Dr. Mohler in his August 8,
2013 OWCP-5c work capacity evaluation. On February 20, 2014 appellant declined the position
for the same reasons noted in her original declination of November 24, 2013.
In an April 22, 2014 letter, OWCP advised appellant that the job offer was suitable and in
accordance with the medical limitations provided by Dr. Mohler in the report dated August 8,
2013 because he had physically examined her and based his opinion on her ability to return to
work with limitations on examination and objective findings. It found that the weight of the
medical evidence rested with Dr. Mohler because he thoroughly examined her and provided a
full detail of justification supported by objective findings why she was capable of returning to
modified work. OWCP also noted that the employing establishment confirmed that the position
remained open and available to her. It allowed appellant 30 days to accept the position or
provide her reasons for refusal. Appellant was advised that an employee who refused an offer of
suitable work without reasonable cause was not entitled to compensation.
In a May 15, 2014 statement, appellant disputed Dr. Mohler’s medical report. She
alleged that Dr. Mohler lied when interpreting the second opinion report of September 16, 1983
when he stated that she refused any new treatment or medications. Appellant argued that he used
that lie to determine that she invalidated any claim she had for her January 10, 1979 work injury
and opined that she should be returned to work with only the limitations she had before she was
injured. She argued that Dr. Mohler provided no evidence medical or physical, to support his
contentions that she could work within the physical restrictions he provided. Appellant
additionally noted that Dr. Mohler relied on testing done over 10 years ago, which should not be
a determining factor in her ability to work at the present time.
Appellant submitted copies of physical therapy reports and records from December 17,
2013 through March 2014; a range of motion inclinometry dated April 29, 2014; an August 11,
1980 operative report; a May 21, 2014 letter from the employing establishment.
Reports from Dr. Bloomberg continued to note no change in appellant’s condition and
recommended physical therapy, with his previously stated short-term goals. In an April 8, 2014
work capacity evaluation report, Dr. Bloomberg opined that appellant had not reached maximum
medical improvement and had limitations on sitting, walking, standing, twisting,
bending/stooping, pushing, pulling, lifting, squatting, kneeling, and climbing due to left leg and
back pain. He stated that flare-ups of such pain precluded appellant from returning to work.
In a May 30, 2014 letter, OWCP advised appellant that her refusal of the offered job was
not deemed justified and she was afforded an additional 15 days to accept the job.
On June 30 and September 16, 2014 the employing establishment notified OWCP that
appellant had not reported for duty.

5

By decision dated September 18, 2014, OWCP terminated appellant’s entitlement for
compensation to wage-loss and schedule award benefits effective September 21, 2014 on the
basis she refused suitable work.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA 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.”2 However, to justify such termination, OWCP must show that the work offered
was suitable.3 An employee who refuses or neglects to work after suitable work has been offered
to him or her has the burden of showing that such refusal to work was justified.4
When OWCP informs a claimant that it has determined that a given offered position is
suitable and invites him to write and give reasons for not accepting, OWCP acknowledges that
its determination is not yet final and that a reasonable explanation would justify the claimant’s
refusal of the position and result in the continuation of his compensation for disability. Certain
explanations will, of course, justify a claimant’s refusal to accept an offer of employment.
OWCP’s procedure manual itself lists a number of reasons that are considered acceptable.
Acceptable reasons for refusing an offered position include withdrawal of the offer or medical
evidence of inability to do the work or travel to the job.5 If a claimant refuses the employment
offered and provides such a reason, OWCP will consider his refusal justified and will continue
his compensation for disability.6
If a claimant chooses to respond within 30 days and gives reasons for not accepting the
offered position, OWCP must consider these reasons before it can make a final determination on
the issue of suitability. Only after it has made a final determination on the issue of suitability can
OWCP afford the claimant an opportunity to accept or refuse an offer of suitable work. Only
after it has finalized its decision on suitability can OWCP notify the claimant that refusal to
accept shall result in the termination of compensation, as the language of 5 U.S.C. § 8106(c)
clearly mandates.7
OWCP’s regulations provide that OWCP shall advise the employee that it has found the
offered work to be suitable and afford the employee 30 days to accept the job or present any
reasons to counter OWCP’s finding of suitability. If the employee presents such reasons, and
OWCP determines that the reasons are unacceptable, it will notify the employee of that
determination and that he or she has 15 days in which to accept the offered work without penalty.
2

5 U.S.C. § 8106(c)(2).

3

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

4

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-319 (issued May 14, 2013).
6

Id.

7

See Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

6

At that point in time, OWCP’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.8
ANALYSIS
Following OWCP’s acceptance of appellant’s January 10, 1979 claim for contusions of
the right knee, left upper chest, and left wrist, as well as displacement of lumbar intervertebral
disc without myelopathy, she received appropriate compensation benefits for disability from
work and medical expenses. After a period of intermittent work and disability, appellant was
placed on OWCP’s periodic rolls, where she received total disability compensation. In a
September 18, 2014 decision, OWCP terminated her wage-loss compensation effective
September 21, 2014 as she refused an offer of suitable work.
The evidence of record establishes that appellant was capable of performing the
information receptionist position offered by the employing establishment and determined to be
suitable by OWCP on April 22, 2014. The position was a full-time sedentary position which
involved directing callers and visitors; providing information about the organization, providing
the most useful and appropriate information, resolving inconsistencies in available information
or providing alternatives, and performing related duties as assigned. The physical requirements
included sitting six hours per day; walking, standing and twisting two hours per day;
bending/stooping one hour per day; operating motor vehicle four hours per day; pushing two
hours no greater than 40 pounds; pulling two hours no greater than 30 pounds; and lifting two
hours no greater than 20 pounds per day. The record does not reveal that the information
receptionist positon was temporary in nature.9 Moreover, there is no indication in the record that
appellant, a former telephone operator, could not vocationally perform the offered position.
In determining that appellant was physically capable of performing the information
receptionist position, OWCP relied on the August 8, 2013 opinion of Dr. Mohler, a Boardcertified orthopedic surgeon serving as an OWCP referral physician. He provided a
comprehensive medical report in which he reviewed appellant’s history of injury and medical
treatment, presented examination findings, and found that she could return to full-time limitedduty work subject to physical limitations he specified. The employing establishment prepared a
limited-duty job offer conforming with Dr. Mohler’s physical restrictions which OWCP
reviewed and found suitable to appellant’s physical limitations.
Appellant argued that she could not perform the offered position, that Dr. Mohler did not
perform an examination to determine her physical limitations, and that he misinterpreted the
medical evidence of file. The issue of whether an employee has the physical ability to perform a
position offered by the employing establishment is primarily a medical question that must be
resolved by medical evidence.10 In assessing medical evidence, the number of physicians
8

20 C.F.R. § 10.516.

9

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(5), (9) (June 2013).
10

Marilyn D. Polk, 44 ECAB 673, 680 (1993).

7

supporting one position over another is not controlling; the weight of such evidence is
determined by its reliability, its probative value and its convincing quality. The factors that
comprise the evaluation of medical evidence include the opportunity for, and the thoroughness
of, physical examination, the accuracy and completeness of the physician’s knowledge of the
facts and medical history, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.11
In his August 8, 2013 report, Dr. Mohler was provided with the appropriate medical
records contained in the case and a statement of accepted facts in order to have a sufficient
history to render a well-reasoned opinion regarding the extent of disability following his
examination. Despite appellant’s claim to the contrary, he provided a comprehensive medical
examination and listed his findings in the report. Dr. Mohler found that while appellant had
residuals of the accepted condition of the displacement of lumbar intervertebral disc without
myelopathy at L5-S1, her physical examination and objective evidence indicated she was able to
work with restrictions. He reviewed the medical record and found there were no other nonwork
factors, incidences or disabilities that prevented her from returning to full-duty work.
Dr. Mohler also stated the fact that she demonstrated normal gait, functional range of motion of
the lumbosacral spine, nonphysiological response to sensory examination of the lower
extremities. He noted however that for the last 30 years, the medical record revealed that she
was incompletely engaged in range of motion, strengthening, and aerobic activity. Dr. Mohler
thereafter explained that these findings, along with appellant’s ability to engage in a variety of
daily living activities, without any evidence of documented improvement, negated a total
disability status.
Dr. Mohler stated that any improvement of the accepted conditions was solely based on
appellant’s own motivation and efforts of reconditioning and not on the need for further medical
treatment. He opined that she reached maximum medical improvement, detailed his specific
findings and provided medical rationale to support his conclusion that appellant could return to
work with limitations.
While Dr. Bloomberg opined appellant was totally disabled and needed continued
physical therapy treatment, he failed to provide any medical rationale to support his opinion. He
continued to recommend physical therapy with short-term goal of improving performance of
activities of daily living, improving range of motion, stretching affected musculature, resolving
restriction, reducing trigger points and improving range of motion. In an April 8, 2014 work
capacity evaluation report, Dr. Bloomberg opined that appellant had not reached maximum
medical improvement and had limitations on sitting, walking, standing, twisting,
bending/stooping, pushing, pulling, lifting, squatting, kneeling, and climbing due to left leg and
back pain. He stated that flare-ups of such pain precluded appellant from returning to work.
However, Dr. Bloomberg provided no medical rationale as to why continued medical treatment
was needed or how or why flare-ups of her back pain would prevent appellant from performing
the duties of the offered position as of the February 12, 2014 job offer.

11

Connie Johns, 44 ECAB 560, 570 (1993).

8

Thus, the Board concludes that the weight of the medical opinion evidence rests with
Dr. Mohler’s opinion.
The Board finds that OWCP has established that the information receptionist position
offered by the employing establishment is suitable. As noted above, once it has established that
a particular position is suitable, an employee who refuses or neglects to work after suitable work
has been offered to her has the burden of showing that such refusal to work was justified. The
Board has carefully reviewed the evidence and argument submitted by appellant in support of her
refusal of the modified sales and service associate position and notes that it is not sufficient to
justify her refusal of the position.
The physical therapy reports from December 17, 2013 through March 2014 and the
April 29, 2014 range of motion inclinometry do not offer any medical rationale that appellant
could not perform the duties of the offered positon.
For these reasons, OWCP properly terminated appellant’s compensation effective
September 21, 2014 on the grounds that she refused an offer of suitable work.12
On appeal, appellant reiterates her position that Dr. Mohler misinterpreted the medical
evidence of record, which effectively invalidated her claim. As discussed, however, Dr. Mohler
provided a comprehensive medical report based on current examination findings, the medical
record and a statement of accepted facts and found appellant was able to work could return to
full-time limited-duty work subject to physical limitations he specified. OWCP found and the
Board agrees that the information receptionist position was within appellant’s physical
limitations as set forth by Dr. Mohler.
Appellant may submit new evidence or further, more rationalized argument from
Dr. Bloomberg which expands upon his disability opinion, with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation effective
September 21, 2014 on the grounds that she refused an offer of suitable work.

12

The Board notes that OWCP complied with its procedural requirements prior to terminating appellant’s
compensation, including providing her with an opportunity to accept the position offered by the employing
establishment after informing her that her reasons for initially refusing the position were not valid; see generally
Maggie L. Moore, supra note 7.

9

ORDER
IT IS HEREBY ORDERED THAT the September 18, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2015
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1927
Issued: December 29, 2015

Case Submitted on the Record

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

JURISDICTION
On September 29, 2015 appellant filed a timely appeal from an April 16, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between April 22, 2011, the date of the most recent merit decision, and the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim as his request was untimely filed and failed to demonstrate clear
evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 7, 2002 appellant, then a 43-year-old letter carrier,
sustained thoracic and lumbosacral strains due to casing mail at work. Appellant received
disability compensation on the daily rolls beginning November 13, 2002.2
In August 2009 appellant was referred for OWCP-sponsored vocational rehabilitation
efforts designed to return him to work.
Appellant’s vocational rehabilitation counselor provided reports in which he discussed
appellant’s nonparticipation in vocational rehabilitation efforts.
He indicated that on
September 21, 2009 he contacted appellant via e-mail, but that he never responded. On
October 8, 2009 the rehabilitation counselor spoke to appellant on the telephone and scheduled
an initial evaluation for October 12, 2009 at 10:00 a.m. Appellant failed to attend the
appointment and later called to indicate that he had overslept. The rehabilitation counselor noted
that the appointment was rescheduled for 2:00 p.m. the same day, but that appellant called back
30 minutes later and rescheduled it for October 15, 2009 at 1:00 p.m. Appellant did not keep the
rescheduled appointment nor did he provide an explanation for his absence. The rehabilitation
counselor indicated that further attempts at contacting appellant failed because his telephone had
been disconnected. He concluded that appellant had failed to participate in essential preparatory
vocational rehabilitation efforts.
In a November 4, 2009 letter, OWCP advised appellant that 5 U.S.C. § 8113(b) provides
that if an individual, without good cause, fails to apply for and undergo vocational rehabilitation
when so directed, and OWCP finds that in the absence of the failure the individual’s wageearning capacity would probably have substantially increased, OWCP may reduce prospectively
the compensation based on what probably would have been his wage-earning capacity had he not
failed to apply for and undergo vocational rehabilitation. It also indicated that, under 20 C.F.R.
§ 10.519 of its regulations, if an individual without good cause fails or refuses to participate in
the essential preparatory efforts, OWCP will assume, in the absence of evidence to the contrary,
that the vocational rehabilitation efforts would have resulted in a return to work with no loss of
wage-earning capacity, and compensation will be reduced accordingly. OWCP provided
appellant 30 days to participate in vocational rehabilitation efforts or provide good cause for not
doing so. Appellant did not contact OWCP for the purpose of participating in vocational
rehabilitation efforts or respond to its November 4, 2009 letter.
By decision dated January 21, 2010, OWCP reduced appellant’s compensation to zero
effective January 17, 2010 due to his failure to participate in essential preparatory vocational
rehabilitation efforts. It noted that it was assumed that appellant’s participation in vocational
rehabilitation efforts would have resulted in a return to work with no loss of wage-earning
capacity.
Appellant requested reconsideration and submitted the results of diagnostic tests, and
other medical reports. He maintained that he was unable to participate in vocational
rehabilitation efforts.
2

Appellant received disability compensation on the periodic rolls beginning October 5, 2003.

2

By decision dated April 22, 2011, OWCP denied modification of its January 21, 2010
decision reducing appellant’s compensation to zero for failure to participate in essential
preparatory vocational rehabilitation efforts. It found that appellant had not submitted medical
evidence supporting his argument that he was not physically capable of participating in
vocational rehabilitation efforts.
On April 26, 2012 OWCP received a form that appellant completed on April 16, 2012
which contained a check mark indicating that he wished to appeal his case to the Board. On
April 26, 2012 it also received an eight-page letter containing the salutation “To whom it may
concern” and a notation after the signature of “For Reconsideration.” Appellant contended that
he did comply with OWCP’s requests for vocational rehabilitation. He requested that his
benefits be reinstated.
On November 3, 2014 OWCP received a form signed on September 12, 2014 in which
appellant requested reconsideration of its April 22, 2011 decision denying modification of its
reduction of his compensation to zero for failure to participate in essential preparatory vocational
rehabilitation efforts.
In an undated letter received by OWCP on March 31, 2015, appellant again requested
reconsideration of OWCP’s April 22, 2011 decision. He argued that he did, in fact, follow all of
the instructions of his vocational rehabilitation counselor and attend all required meetings.
Appellant also claimed, in the alternative, that he had good cause not to participate in vocational
rehabilitation efforts because his medical conditions physically prevented him from participating
in such efforts. He argued that, even if it were shown that he failed to cooperate with vocational
rehabilitation efforts, OWCP did not establish that, in the absence of his noncooperation, he
would have had no wage loss.3
In support of his reconsideration request, appellant submitted numerous medical reports
dated between August 2006 and March 2015. Only a small number of the reports related to the
period contemporaneous with the time of the January 2010 reduction of his compensation
benefits. Appellant submitted July 9, 2010 and January 30, 2011 reports of diagnostic testing.
Most of the medical reports were dated in 2014 and early 2015 and discussed the degenerative
disease of his neck and back.4
In an April 16, 2015 decision, OWCP denied appellant’s request for further review of the
merits of his claim because his request was untimely filed and failed to demonstrate clear
evidence of error. It determined that appellant filed an untimely request for reconsideration
because his request was received on November 3, 2014, a date more than one year after OWCP’s
April 22, 2011 decision. OWCP found that the evidence and argument submitted by appellant in
support of his untimely reconsideration request did not raise a substantial question concerning
the correctness of OWCP’s April 22, 2011 decision and did not show clear evidence of error in
that decision.
3

Appellant submitted other statements in which he discussed his general concerns about the administration of his
claim.
4

Appellant also submitted pharmacy prescription slips, change of address forms, and other administrative
documents concerning his compensation claim.

3

LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely as the application was
untimely filed. When an application for review is untimely filed, OWCP must nevertheless
undertake a limited review to determine whether the application establishes “clear evidence of
error.”7 OWCP regulations and procedure provide that OWCP will reopen a claimant’s case for
merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if
the claimant’s application for review shows “clear evidence of error” on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13
ANALYSIS
The Board finds that in its April 16, 2015 decision, OWCP properly determined that
appellant filed an untimely request for reconsideration. Appellant’s reconsideration request was
received and filed on November 3, 2014, a date more than one year after OWCP’s April 22, 2011
5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5a (October 2011).
OWCP procedures further provide, “The term ‘clear evidence of error’ is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made a mistake. For example, a claimant
provides proof that a schedule award was miscalculated, such as a marriage certificate showing that the claimant had
a dependent but the award was not paid at the augmented rate. Evidence such as a detailed, well-rationalized
medical report which, if submitted before the denial was issued would have created a conflict in medical opinion
requiring further development, is not clear evidence of error.”
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

20 C.F.R. § 10.607(b); Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

4

decision. OWCP’s regulations at 20 C.F.R. § 10.607(a) establish a one-year time limit for
requesting reconsideration. The one-year period begins on the date of the original decision, and
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought for merit decisions issued on or after
August 29, 2011.14
On appeal, appellant argues he filed his reconsideration request in a timely manner
because he sent OWCP a reconsideration request which was received by OWCP on
April 26, 2012. The Board notes that on April 26, 2012 OWCP received a form completed by
appellant on April 16, 2012, but that the form contained a check mark indicating that he wished
to appeal his case to the Board.
On April 26, 2012 OWCP also received an eight-page letter containing the salutation “To
whom it may concern” and a notation after the signature of “For Reconsideration.” However,
this request was not filed in a timely manner as it too was received beyond one year from the
issuance of the April 22, 2011 decision. As appellant filed an untimely request for
reconsideration of OWCP’s April 22, 2011 decision, appellant must demonstrate clear evidence
of error on the part of OWCP in issuing that decision.15
Appellant has failed to establish clear evidence of error in the April 22, 2011 decision.
He did not submit the type of positive, precise, and explicit evidence which manifests on its face
that OWCP committed an error.
On appeal appellant argued that he did, in fact, follow all of the instructions of his
vocational rehabilitation counselor and attend all required meetings. However, he did not
provide sufficient details of such alleged cooperation or submit evidence supporting his
assertions. Appellant’s unsupported assertions in this regard do not show that the employing
establishment erred in its April 22, 2011 decision.
On appeal appellant argued, in the alternative, that he had good cause not to participate in
vocational rehabilitation efforts because his medical conditions physically prevented him from
participating in such efforts. He submitted medical reports dated between 2006 and 2015 but
only a small number of the reports related to the period at issue. None of the reports contain a
rationalized medical opinion that appellant’s medical condition had incapacitated him to the
extent that he could not participate in vocational rehabilitation efforts and therefore these reports
would not tend to support his claim that he had good cause to not participate in vocational
rehabilitation efforts due to his medical condition.16 The medical evidence does not raise a
substantial question concerning the correctness of OWCP’s April 22, 2011 decision which found
that appellant did not show good cause for failing to participate in vocational rehabilitation
efforts.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (October 2011).

15

See supra note 7.

16

Appellant also submitted pharmacy prescription slips, change of address forms, and other administrative
documents concerning his compensation claim, but these documents would not support his assertion that he was
physically unable to participate in vocational rehabilitation.

5

On appeal appellant also argued that, even if it were shown that he failed to cooperate
with vocational rehabilitation efforts, OWCP did not establish that, in the absence of his
noncooperation, he would have had no wage loss. He did not explain the basis for this belief and
his mere assertions in this regard would not be sufficient to establish clear error.
For these reasons, the Board finds that the evidence and argument submitted by appellant
does not raise a substantial question concerning the correctness of OWCP’s April 22, 2011
decision and OWCP properly determined that appellant did not show clear evidence of error in
that decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim as his request was untimely filed and failed to demonstrate clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 29, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6