United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
BUSINESS CENTER, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 11-1257
Issued: January 18, 2012

Case Submitted on the Record

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

JURISDICTION
On April 27, 2011 appellant, through his attorney, timely appealed the December 27,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed
the termination of wage-loss compensation and medical benefits. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective May 24, 2010.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 58-year-old retired materials handler, has an accepted occupational disease
claim for low back spasms, which arose on or about July 1, 2005.2 He stopped work on
March 13, 2008. OWCP paid appropriate wage-loss compensation and placed appellant on the
periodic compensation rolls effective April 13, 2008.
In a decision dated September 28, 2009, OWCP terminated wage-loss compensation and
medical benefits on the basis that appellant’s accepted condition had resolved. It relied on the
December 3, 2008 and February 2, 2009 reports of Dr. Herbert Stein, a Board-certified
orthopedic surgeon. OWCP accorded determinative weight to Dr. Stein’s findings because of his
purported status as an impartial medical examiner (IME). It had referred appellant to
Dr. E. Michael Okin, a Board-certified orthopedic surgeon, for an impartial medical
examination.3 However, Dr. Okin was unavailable on December 3, 2008, and his colleague,
Dr. Stein, examined appellant instead.
Although appellant’s claim had been accepted for low back spasm, Dr. Stein explained
that this was more a description of physical findings than a diagnosis. He diagnosed chronic
lumbosacral spine sprain by history and herniated disc at L5-S1 with multilevel degenerative
disc disease, which he found to be unrelated to appellant’s employment injury. In fact, Dr. Stein
indicated that there was no definite history of a back injury while working, just a progressive
increase in symptoms according to appellant’s history. Furthermore, he did not believe
appellant’s back spasms were related to an acute work injury. Dr. Stein attributed the spasms to
appellant’s preexisting lumbosacral spine degenerative disease. Despite the fact that he had not
originally been selected as an IME, OWCP treated Dr. Stein as such, and terminated appellant’s
compensation and medical benefits based on his opinion.
By decision dated December 17, 2009, the Branch of Hearings and Review set aside
OWCP’s September 28, 2009 decision and directed that appellant’s benefits be reinstated.
OWCP’s hearing representative found that Dr. Stein was not properly designated as an IME and,
therefore, OWCP could not rely upon his opinion to resolve the conflict in medical opinion.
Because there was an unresolved conflict in medical opinion, the hearing representative found
that OWCP had not met its burden to terminate benefits.
After reinstating benefits, OWCP referred appellant to Dr. Menachem M. Meller, a
Board-certified orthopedic surgeon, to resolve the conflict between appellant’s physician,
Dr. Schnall, and OWCP referral physicians, Dr. Valentino and Dr. Stein.
2

Appellant voluntarily retired effective December 29, 2009.

3

OWCP declared a conflict in medical opinion between appellant’s treating physician, Dr. Barry Schnall, a
Board-certified physiatrist, and Dr. Steven J. Valentino, a Board-certified orthopedic surgeon and OWCP referral
physician. In a report dated September 15, 2008, Dr. Valentino found that appellant’s accepted condition of back
spasms had resolved. He also indicated that appellant no longer suffered from chronic lumbar sprain and strain,
which may have resulted from the July 1, 2005 employment injury. In a report dated October 12, 2008, Dr. Schnall
noted his disagreement with Dr. Valentino’s opinion. He diagnosed lumbosacral sprain and strain, lumbosacral
radiculopathy and lumbosacral degenerative disease, which were caused or aggravated by appellant’s work
activities. Dr. Schnall further noted that appellant was unable to return to his prior full work activities.

2

In a report dated February 19, 2010, Dr. Meller noted that presently there was no
evidence of spasms on physical examination. He also stated that appellant exhibited self-limiting
behavior on physical examination, but there were no objective findings of injury or illness.
Dr. Meller noted that a December 18, 2007 lumbar magnetic resonance imaging (MRI) scan
revealed a degenerative disc protrusion at L4-5; however, this was not caused, worsened or
aggravated by the July 1, 2005 employment injury. He found that appellant had no work-related
restrictions and could return to his preinjury occupation. With respect to the lumbar spine
discogenic findings, which were not employment related, Dr. Meller found that appellant had
medium duty restrictions, but even with those type limitations, appellant could still carry out his
normal work duties sorting, recycling and driving a fork lift. He concluded that appellant’s
employment injury had fully and completely resolved without residuals.
By decision dated May 24, 2010, OWCP terminated appellant’s compensation and
medical benefits effective that day.4
Counsel requested an oral hearing, which was held on September 8, 2010. He challenged
OWCP’s reliance on Dr. Meller’s opinion as a basis for terminating appellant’s benefits.
Counsel submitted follow-up reports from Dr. Schnall, including a May 18, 2010 report in which
Dr. Schnall noted his disagreement with Dr. Meller’s finding. Dr. Schnall indicated that
appellant’s back condition was not purely degenerative in nature. According to him, appellant’s
work activities aggravated his back condition, including his current L5-S1 disc herniation and
right-sided L5 nerve root involvement. Dr. Schnall’s June 15, September 2 and December 2,
2010 follow-up reports documented ongoing complaints and treatment for chronic pain related to
lumbosacral disc herniation, lumbosacral sprain and strain, degenerative arthritis of the lumbar
spine and right-sided radiculopathy.
In a December 27, 2010 decision, the Branch of Hearings and Review affirmed OWCP’s
May 24, 2010 termination of appellant’s wage-loss compensation and medical benefits.
OWCP’s hearing representative found Dr. Meller’s opinion sufficiently reasoned to carry the
special weight of the medical evidence.
On appeal, counsel reiterated his challenge to OWCP’s reliance on Dr. Meller’s opinion
as a basis for terminating benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of entitlement
4

OWCP had previously issued a notice of proposed termination of benefits on April 22, 2010.

5

Curtis Hall, 45 ECAB 316 (1994).

6

Jason C. Armstrong, 40 ECAB 907 (1989).

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to compensation for disability.7 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition which
require further medical treatment.8
Where an employee claims that a condition not accepted or approved by OWCP was due
to his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.9
FECA provides that if there is disagreement between the physician making the
examination for OWCP and the employee’s physician, OWCP shall appoint a third physician
who shall make an examination.10 For a conflict to arise the opposing physicians’ viewpoints
must be of “virtually equal weight and rationale.”11 Where OWCP has referred the employee to
an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.12
Subsequent reports from a physician who was on one side of a medical conflict that has
since been resolved would generally be insufficient to overcome the weight accorded the
impartial medical examiner’s report and/or insufficient to create a new medical conflict.13
ANALYSIS
OWCP properly found a conflict in medical opinion based on the opposing views of
appellant’s physiatrist, Dr. Schnall, and those of Dr. Valentino and Dr. Stein, both of whom were
referred to by OWCP. Because of this conflict in medical opinion, it appropriately referred
appellant to Dr. Meller to resolve the question of whether appellant had any ongoing injuryrelated residuals.
In a February 19, 2010 report, Dr. Meller found no evidence of spasms on physical
examination and no objective findings of injury or illness. He reported that appellant exhibited
self-limiting behavior on physical examination. With respect to appellant’s lumbar degenerative
disc disease, Dr. Meller indicated this condition was not caused, worsened or aggravated by the
July 1, 2005 employment injury. Based on the accepted condition of low back spasms, which
had since resolved, appellant had no work-related restrictions and could return to his preinjury

7

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

8

Calvin S. Mays, 39 ECAB 993 (1988).

9

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

10

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

11

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

12

Gary R. Sieber, 46 ECAB 215, 225 (1994).

13

I.J., 59 ECAB 408, 414 (2008).

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occupation. In conclusion, Dr. Meller found that appellant’s employment injury had fully and
completely resolved without any residuals.
OWCP’s hearing representative found that Dr. Meller provided a well-reasoned report
based on a proper factual and medical history. Dr. Meller accurately summarized the relevant
medical evidence, and relied on the latest statement of accepted facts, which included a
description of appellant’s duties as a materials handler. He also provided detailed examination
findings and medical rationale supporting his opinion. As such, Dr. Meller’s impartial medical
examination was entitled to determinative weight.14
The Board finds that OWCP appropriately terminated compensation and medical benefits
on the basis of the weight of the evidence, as represented by Dr. Meller’s February 19, 2010
report.
As a party to the original conflict, Dr. Schnall’s follow-up reports dated May 18, June 15,
September 2 and December 2, 2010 are insufficient to overcome the weight properly accorded
Dr. Meller’s opinion. These additional reports are also insufficient to create a new conflict in
medical opinion. In his May 18, 2010 report, Dr. Schnall reiterated that appellant’s lumbar
degenerative disc disease progressively worsened due to his employment activities. However, he
offered no additional support or rationale for his opinion that appellant sustained more serious
injuries as a consequence of his accepted employment exposure on or after July 1, 2005. The
remaining reports also provided no additional insight.
The Board finds that OWCP satisfied its burden to justify termination of appellant’s
benefits.
CONCLUSION
OWCP properly terminated appellant’s wage-loss compensation and medical benefits
effective May 24, 2010.

14

Gary R. Sieber, supra note 12.

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ORDER
IT IS HEREBY ORDERED THAT the December 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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T.C., Appellant
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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New Orleans, LA, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 08-1077
Issued: November 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated November 29, 2007, which denied her request for a
hearing, and a September 11, 2007 decision that terminated her compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and the
denial of her request for a hearing.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation and
medical benefits effective September 11, 2007; and (2) whether the Office properly denied
appellant’s request for an oral hearing as untimely pursuant to 5 U.S.C. § 8124.

FACTUAL HISTORY
On December 17, 2000 appellant, then a 29-year-old casual clerk, sustained injury when
she was struck by a wire cage. She stopped work on December 18, 2000.1 The Office accepted
the claim for left wrist strain and a contusion of the right thigh and paid appellant compensation
for disability for work.2
On May 6, 2004 Dr. Kenneth Williams, Board-certified in family medicine, noted that
appellant had continued complaints of left wrist pain but that her right hip symptoms had
improved. He noted that appellant had a full range of motion in the left wrist with “2+”
tenderness present to palpation. Dr. Williams placed appellant off work.
By letter dated July 29, 2004, the Office referred appellant for a second opinion
examination with Dr. Christopher Cenac, a Board-certified orthopedic surgeon.
In an August 4, 2004 report, Dr. Williams noted that appellant complained of left wrist
pain and was awaiting approval for an electromyogram (EMG). Examination of the left wrist
revealed limited range of motion with “2+” tenderness and “1+” edema. Dr. Williams placed
appellant off work pending further evaluation.
In an August 16, 2004 report, Dr. Cenac reviewed appellant’s history of injury and
medical treatment. He advised that a functional capacity evaluation performed on January 30,
2001 revealed symptom magnification and illness behavior. Dr. Cenac conducted a physical
examination and determined that there was no objective evidence of orthopedic mechanical
dysfunction or neurological deficit causally related to the accepted injury. He advised that the
electrodiagnostic testing should be obtained based on the recommendations of appellant’s
treating physicians.
In a report dated August 25, 2004, Dr. Gregory Redmann, a Board-certified neurologist,
performed an EMG and nerve conduction studies. He determined that appellant had bilateral
ulnar neuropathies which were moderate on the right and mild to moderate on the left.
Dr. Redmann also found left C7 radiculopathy which was mild to moderate.
In a September 7, 2004 report, Dr. Cenac reviewed the diagnostic test results and
concluded that appellant’s work-related injuries had resolved. He noted that the imaging studies
of the left wrist were normal. Testing revealed that appellant had evidence of bilateral ulnar
neuropathy and a left C7 radiculopathy; however, these conditions were unrelated to the
1

The record reflects that appellant’s employment as a casual employee ended on December 29, 2000. The record
also reflects that her compensation benefits commenced on December 28, 2001 and she was placed on the periodic
rolls.
2

The Office proposed to terminate appellant’s compensation on May 20, 2002. It finalized the decision on
September 9, 2002. On May 9, 2003 the Office hearing representative reversed the Office’s decision finding that
appellant remained entitled to receive payment for her medical expenses related to her accepted conditions of left
wrist sprain and right hip contusion. The Office hearing representative also ordered that appellant be referred for a
second opinion examination to determine the extent of her work-related condition and her ability to return to work.
On September 9, 2003 the Office reinstated appellant’s compensation benefits commencing September 8, 2002.

2

December 17, 2000 injury. Dr. Cenac again noted that the functional capacity evaluation
revealed symptom magnification, illness behavior and self-limited submaximal efforts.3
On September 22, 2004 the Office proposed to terminate appellant’s compensation
benefits, finding that the medical evidence established that she no longer had any residuals or
disability due to her accepted injury. It finalized the decision on October 22, 2004.
Appellant requested a hearing on November 19, 2004. A telephonic hearing was held on
December 11, 2006. In a September 28, 2004 report, Dr. Williams examined appellant’s left
wrist and noted that diagnostic testing revealed bilateral ulnar neuropathies and left C7
radiculopathy. He advised that appellant could return to work but was restricted to sedentary
activities. In an October 1, 2004 report, Dr. Williams opined that appellant’s left wrist, forearm,
upper limb and right hip injuries were more likely than not related to the accepted injury. He
opined that appellant’s symptoms were “without resolution and had reached maximum benefit of
care.” Dr. Williams discharged appellant from treatment. In a letter dated January 11, 2007,
appellant’s representative enclosed a copy of the August 25, 2004 nerve conduction study.
In a March 20, 2007 decision, the Office hearing representative found a conflict in
medical opinion between Dr. Williams and Dr. Cenac as to whether appellant’s employmentrelated conditions had resolved. She remanded the case for referral to an impartial medical
examiner.
On May 16, 2007 the Office referred appellant, together with a statement of accepted
facts and the medical record to Dr. James Hood, a Board-certified orthopedic surgeon, selected
as the impartial medical specialist.
In a June 11, 2007 report, Dr. Hood reviewed the history of injury and medical treatment.
He conducted a physical examination and noted that appellant complained of continued pain
over the dorsoradial aspect of her left wrist, the base of the right thumb and at the lateral right
thigh. Dr. Hood noted that the left wrist had extension of 30 degrees with flexion of 50 degrees,
and radial and ulnar deviations of 10 degrees. Appellant was also tender over the first dorsal
compartment or extensors of the thumb and had a markedly positive Finkelstein test. She had
excellent range of motion of the hip, including internal and external rotations and tenderness in
the trochanteric bursa. Dr. Hood diagnosed de Quervain’s tenosynovitis and trochanteric bursitis
on the right side. He stated that it would “seem strange” for appellant’s symptoms to continue
for seven years but indicated that she had persistent complaints of discomfort. Dr. Hood opined
that, while appellant had a sore left wrist and sore area in the trochanteric bursal area, these
conditions did not prevent her from performing her duties as a clerk. He recommended an
injection to the trochanteric bursa and six sessions of ultrasound, plus stretching instructions.
Dr. Hood opined that a release of the tendons of the first dorsal compartment would be a solution
to resolve the de Quervain’s tenosynovitis. A June 11, 2007 functional capacity report by
Dr. Phillip Osborne, a specialist in occupational medicine, advised that the report was invalid
because appellant did not provide the maximum effort required.

3

A September 1, 2004 functional capacity evaluation revealed that appellant exhibited inappropriate responses to
valid tests and a submaximal effort.

3

By letter dated June 25, 2007, the Office requested that Dr. Hood clarify his opinion as to
whether appellant continued to have residuals of her December 17, 2000 employment injury. In
a July 27, 2007 response, Dr. Hood advised that the current physical findings were not related to
the effects of the December 17, 2000 injury. He noted that appellant claimed similar subjective
complaints over the past several years. Dr. Hood explained that, while he recommended
treatment for appellant’s current condition, it was not related to the seven years prior, which had
resolved to the point that she was discharged by Dr. Williams nearly three years earlier.
On August 8, 2007 the Office issued a notice of proposed termination of compensation,
advising that the weight of the medical evidence, as represented by the report of Dr. Hood,
established that the residuals of the December 17, 2000 injury had ceased.
By decision dated September 11, 2007, the Office terminated appellant’s medical benefits
and compensation for wage loss effective September 11, 2007.
On October 22, 2007 appellant’s representative requested a hearing.
By decision dated November 29, 2007, the Office denied appellant’s request as untimely
and determined that her claim could be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
The Federal Employees’ Compensation Act6 provides that, if there is disagreement
between the physician making the examination for the Office and the employee’s physician, the
Office shall appoint a third physician who shall make an examination.7 In cases where the
Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.8
ANALYSIS -- ISSUE 1
The Office found a conflict of medical opinion arose regarding the nature and extent of
any ongoing residuals of December 17, 2000 work injury. Dr. Williams, appellant’s physician,
4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

6

5 U.S.C. §§ 8101-8193, 8123(a).

7

5 U.S.C. § 8123(a); Shirley Steib, 46 ECAB 309, 317 (1994).

8

Gary R. Sieber, 46 ECAB 215, 225 (1994).

4

supported an ongoing employment-related condition and disability. Dr. Cenac, an Office referral
physician, opined that the employment-related conditions had resolved. The Office properly
referred appellant to Dr. Hood, a Board-certified orthopedic surgeon, for an impartial medical
examination to resolve the conflict.
On June 11, 2007 Dr. Hood addressed appellant’s history of injury and medical
treatment. He noted complaints of continued pain over the dorsoradial aspect of her left wrist,
base of the right thumb and lateral right thigh. Appellant was also tender over the first dorsal
compartment or extensors of the thumb. Dr. Hood provided range of motion findings on
examination of the left wrist and advised that appellant had excellent range of motion of the hip,
including internal and external rotations and noted tenderness in the trochanteric bursa. He
diagnosed de Quervain’s tenosynovitis and trochanteric bursitis on the right side. Dr. Hood
stated that these conditions did not prevent appellant from performing her duties as a clerk. He
recommended an injection to the trochanteric bursa and six sessions of ultrasound, plus
stretching instructions. Dr. Hood opined that a release of the tendons of the first dorsal
compartment would be a solution to resolve the de Quervain’s tenosynovitis.
By letter dated June 25, 2007, the Office requested clarification with regard to whether
appellant’s employment-related injury had resolved and whether she could return to her date-ofinjury position. When it secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.9 As the Office needed
clarification from the physician regarding whether the employment-related condition had
resolved, it properly requested clarification from Dr. Hood.
In a supplemental report dated July 27, 2007, Dr. Hood opined that appellant’s current
physical findings were not related to the effects of the December 17, 2000 injury. He noted that
she had experienced subjective complaints over the past several years which were not typical.
Although Dr. Hood had recommended treatment for appellant’s current condition, it was not
related to the effects of the employment injury which had resolved. He found no basis on which
to attribute any continuing condition to the December 17, 2000 employment injury.
The Board finds that Dr. Hood’s opinion is entitled to special weight as his reports are
sufficiently well rationalized and based upon a proper factual background. The Office properly
relied upon his reports in finding that appellant’s employment-related condition had resolved.
Dr. Hood examined appellant, reviewed her medical records, and reported accurate medical and
employment histories. Accordingly, Office met its burden of proof to justify termination of
benefits.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act,10 concerning a claimant’s entitlement to a hearing before
an Office hearing representative, states: “Before review under section 8128(a) of this title, a
9

Roger W. Griffith, 51 ECAB 491 (2000).

10

5 U.S.C. § 8124(b)(1).

5

claimant for compensation not satisfied with a decision of the Secretary under subsection (a) of
this section is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”
The Board has held that section 8124(b)(1) is “unequivocal” in setting forth the time
limitation for requesting hearings. A claimant is entitled to a hearing as a matter of right only if
the request is filed within the requisite 30 days.11 When the Office revised its regulations
effective January 4, 1999, the new regulations provided that a hearing was “a review of an
adverse decision by a hearing representative” and that a claimant could choose between two
formats: an oral hearing or a review of the written record.12 These regulations also provide that
the request for either type of hearing “must be sent within 30 days (as determined by postmark or
other carrier’s date marking) of the date of the decision for which a hearing is sought.”13
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings, including when the request is made after the 30-day
period for requesting a hearing, and that the Office must exercise this discretionary authority in
deciding whether to grant a hearing.14 In these instances, the Office will determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.15
ANALYSIS -- ISSUE 2
The Office found that appellant was not, as a matter of right, entitled to a hearing since
her request, postmarked October 22, 2007, had not been made within 30 days of the
September 11, 2007 decision. It considered the matter in relation to the issue involved and
indicated that appellant’s request was denied on the basis that additional evidence could be
submitted through a reconsideration application.
The Board finds that, as appellant’s request for a hearing was postmarked October 22,
2007 and was thus made more than 30 days after the date of issuance of the Office’s prior
decision dated September 11, 2007, the Office correctly found that appellant was not entitled to
an examination of the written record as a matter of right.
The Office properly exercised its discretion and determined that appellant’s request for an
oral hearing could be equally well addressed by requesting reconsideration and submitting
additional evidence establishing that she sustained an injury as alleged.16 The Board has held
that the only limitation on the Office’s discretionary authority is reasonableness. An abuse of
11

Tammy J. Kenow, 44 ECAB 619 (1993); Ella M. Garner, 36 ECAB 238 (1984).

12

20 C.F.R. § 10.615.

13

20 C.F.R. § 10.616. See Leona B. Jacobs, 55 ECAB 753 (2004).

14

Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994).

15

Claudio Vasquez, 52 ECAB 496 (2001); Johnny S. Henderson, 34 ECAB 216 (1982).

16

See Joseph R. Giallanza, 55 ECAB 186 (2003).

6

discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are contrary to logic and probable deduction from established
facts.17 The Board finds that there is no evidence of record that the Office abused its discretion
in denying appellant’s request. Thus, the Board finds that the Office’s denial of appellant’s
request for an oral hearing was proper under the law and the facts of this case.18
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s benefits
effective September 11, 2007. Further, the Board finds that the Office properly denied
appellant’s request for an oral hearing as untimely pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the November 29 and September 11, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 20, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

17

See André Thyratron, 54 ECAB 257 (2002).

18

After appellant filed her appeal on February 27, 2008, the Board received correspondence from Kara Williams,
an attorney, on March 5, 2008. On March 11, 2008 the Clerk of the Board requested that Ms. Williams provide,
within 30 days, a statement signed by appellant authorizing her representation. A copy of the letter was also sent to
appellant. As no response was received, Ms. Williams is not recognized as appellant’s representative on this appeal.
See 20 C.F.R. § 501.11(a).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, RAYMOND ANNEX,
Pasadena, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1724
Issued: March 16, 2011

Case Submitted on the Record

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

JURISDICTION
On June 15, 2010 appellant filed a timely appeal from a February 5, 2010 merit decision
of the Office of Workers’ Compensation Programs granting him a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule
award case.
ISSUE
The issue is whether appellant has more than six percent permanent impairment of the
left upper extremity.
FACTUAL HISTORY
On April 27, 2007 appellant, then a 55-year-old mail carrier, filed an occupational disease
claim alleging that he sustained pain in his neck, left shoulder and lower back due to factors of
his federal employment. The Office accepted the claim for a neck sprain, bilateral shoulder and
upper arm sprain, thoracic and lumbar back sprain and a closed dislocation of the fourth cervical
vertebra.

On November 27, 2008 appellant filed a claim for a schedule award. In an impairment
evaluation dated March 10, 2008, Dr. Julio Westerband, a Board-certified orthopedic surgeon,
reviewed the history of injury and the results of diagnostic studies. He measured range of
motion of the left shoulder as 147 degrees flexion, 50 degrees extension, 136 degrees abduction,
50 degrees adduction and 90 degrees internal and external rotation.1 Dr. Westerband found
tenderness of the left clavical and acromioclavicular joint and left upper trapezius, supraspinatus
and deltoid muscles. He diagnosed cervical and lumbar disc protrusions and strain/sprain, left
shoulder sprain/strain and left shoulder impingement. Dr. Westerband provided range of motion
for the cervical and lumbar spine and opined that appellant had an eight percent whole person
impairment of the cervical spine and an eight percent whole person impairment of the lumbar
spine. He further found two percent whole person impairment due to loss of range of motion of
the left shoulder using the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides). Dr. Westerband found an
additional three percent whole person impairment using Figure 18-1 on page 574 of the A.M.A.,
Guides. He utilized the Combined Values Chart to conclude that appellant had 20 percent whole
person impairment.
On January 1, 2010 an Office medical adviser reviewed Dr. Westerband’s March 10,
2008 report. Applying the sixth edition of the A.M.A., Guides, he determined that 147 degrees
of flexion yielded three percent impairment, 136 degrees abduction yielded no impairment, 50
degrees adduction yielded three percent impairment, and 90 degrees internal and external
rotation yielded no impairment.2 The Office medical adviser found no adjustment for functional
history according to Table 15-36 on page 477. He added the loss of range of motion to find six
percent impairment of the left upper extremity. The Office medical adviser noted that the
Federal Employees’ Compensation Act3 (the Act) did not provide impairments for the spine or
whole person. He concluded that appellant reached maximum medical improvement on
March 10, 2008.
By decision dated February 5, 2010, the Office granted appellant a schedule award for six
percent permanent impairment of the left upper extremity. The period of the award ran for 18.72
weeks from March 10 to July 19, 2008.
On appeal appellant argues that he is entitled to a greater award as his injury has resulted
in significant financial hardship. He also requests compensation for his bilateral shoulders, neck,
low back, spine and lower extremities. Appellant argues that he had 20 percent impairment of
both shoulders and his lower back. He further described his difficulty performing activities due
to his injury, his loss of earning capacity and financial stress.

1

Range of motion for the right shoulder yielded normal findings.

2

A.M.A., Guides 477, Table 15-36.

3

5 U.S.C. §§ 8101-8193.

2

LEGAL PRECEDENT
The schedule award provision of the Act,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
the Act does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1,
2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
ANALYSIS
The Office accepted that appellant sustained neck sprain, bilateral shoulder and upper
arm sprain, thoracic sprain, lumbar sprain and a closed dislocation of the fourth cervical vertebra
due to factors of his federal employment. In his March 10, 2008 impairment evaluation,
Dr. Westerband found tenderness of the left acromioclavicular and clavical joint, left upper
trapezius, supraspinatus and deltoid muscles. He measured range of motion of the bilateral
shoulders and cervical and lumbar spine. Dr. Westerband applied the fifth edition of the A.M.A.,
Guides and found that appellant had two percent whole person impairment due to loss of range
of motion of the left shoulder. The Act, however, does not provide for impairment of the whole
person.8 Further, subsequent to May 1, 2009, the applicable edition of the A.M.A., Guides for
determining impairments is the sixth edition.
Dr. Westerband based his impairment
determination on the fifth edition of the A.M.A., Guides. A medical opinion not based on the
appropriate edition of the A.M.A., Guides has diminished probative value in determining the
extent of a claimant’s permanent impairment.9 Regarding Dr. Westerband’s determination that
appellant had eight percent whole person impairment of the cervical spine and eight percent
whole person impairment of the lumbar spine, the Act specifically excludes the back as an organ
and, therefore, the back does not come under the provisions for payment of a schedule award.10
On January 1, 2010 an Office medical adviser applied the sixth edition of the A.M.A.,
Guides to Dr. Westerband’s clinical findings. He found that range of motion best revealed the
extent of the left shoulder impairment. Table 15-5 on page 401 of the sixth edition of the
A.M.A., Guides, relevant to determining shoulder impairments, provides that a shoulder
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

Marilyn S. Freeland, 57 ECAB 607 (2006); Tania R. Keka, 55 ECAB 354 (2004).

9

Fritz A. Klein, 53 ECAB 642 (2002).

10

D.N., 59 ECAB 576 (2008); Francesco C. Veneziani, 48 ECAB 572 (1997).

3

sprain/strain yields from one to two percent shoulder impairment, depending on the class of
impairment and grade modifiers. Table 15-5 marks the shoulder impairment diagnosis due to a
sprain/strain with an asterisk. The asterisk indicates that, if motion loss is present, the shoulder
impairment may alternatively be assessed using loss of range of motion.11 The impairment due
to loss of range of motion stands alone and is not combined with a diagnosis-based impairment.12
The Office medical adviser utilized Table 15-34 and found that 147 degrees of flexion yielded
three percent impairment, 136 degrees abduction yielded no impairment, 50 degrees adduction
yielded three percent impairment, and 90 degrees internal and external rotation yielded no
impairment.13 He additionally determined that appellant was not entitled to an adjustment for
functional history under Table 15-36. The Board notes, however, that, under Table 15-34, 136
degrees abduction constitutes three percent impairment and 50 degrees extension constitutes no
impairment. However, any error is harmless as the total left upper extremity impairment remains
six percent. The Office medical adviser noted that he had no impairment of the right upper
extremity.14 He concluded that appellant had six percent permanent impairment of the left upper
extremity. There is no evidence in conformance with the A.M.A., Guides showing a greater
impairment.
On appeal appellant asserts that he experienced a loss of earning capacity and financial
hardship as a result of his employment injury. The amount payable pursuant to a schedule
award, however, does not take into account the effect that the impairment has on employment
opportunities, wage-earning capacity, sports, hobbies or other lifestyle activities.15 Disability for
work under section 8105 of the Act is not a factor included in a schedule award impairment
rating under section 8107 and a schedule award is not intended to be compensation for wage loss
or potential wage loss.
Appellant maintains that he has 20 percent impairment of his left shoulder. Section 8107
provides a compensation schedule for payment of awards for permanent impairment of listed
body members. The schedule establishes how many weeks of compensation an employee will
receive in the event of total functional loss or dismemberment. Partial loss of function of the
bodily member is awarded for a proportionate number of weeks. For complete loss of use of the
arm, the maximum number of weeks of compensation is 312 weeks. Since appellant’s
permanent impairment of the left arm is six percent, he is entitled to six percent of 312 weeks, or
18.72 weeks of compensation. Under the schedule award provisions, he is entitled to no more.
Appellant also requests a compensation for his right shoulder, neck, low back, spine and
lower extremities. The Board’s jurisdiction, however, is limited to reviewing final decisions of
11

A.M.A., Guides 403, 405, Table 15-5.

12

Id. at 475, Table 15-34.

13

Id. at 477, Table 15-36.

14

As previously noted, the range of motion measurements for appellant’s right upper extremity yielded no
impairment.
15

Ruben Franco, 54 ECAB 496 (2003).

4

the Office.16 The Office has not issued a final decision on these issues and thus they are not
before the Board at this time.17
CONCLUSION
The Board finds that appellant has no more than six percent permanent impairment of the
left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

20 C.F.R. § 501.2(c)(1).

17

Appellant submitted new medical evidence with his appeal. The Board has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and requested
reconsideration under 5 U.S.C. § 8128.

5


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

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Appearances:
William Bothwell, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0274
Issued: October 29, 2018

Case Submitted on the Record

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

JURISDICTION
On November 17, 2016 appellant, through her representative, filed a timely appeal from a
September 27, 2016 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from OWCP’s last merit decision, dated April 7, 2014,

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On July 16, 2013 appellant, then a 57-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained Achilles tendinitis which she attributed to
“consistent standing” and getting in and out of her vehicle while on her new delivery route. She
identified June 10, 2013 as the date she first became aware of her claimed condition and realized
its relationship to her employment. Appellant continued to work.
OWCP received treatment notes from appellant’s podiatrist, Dr. William J. Leonetti. In a
June 18, 2013 report, Dr. Leonetti diagnosed right Achilles tendinitis and right scar tissue
adhesions. He noted that appellant was a postal worker and that she experienced pain stepping in
and out of her truck while making deliveries. Dr. Leonetti also noted that appellant’s x-rays
revealed that the entire posterior-superior aspect of the calcaneus had been surgically removed.
He further noted that the prior surgery caused a tremendous amount of scar tissue adhesions along
the Achilles tendon. Dr. Leonetti advised appellant to restrict her standing and walking to one
hour, intermittently. He also noted that appellant could sit a maximum of four hours and that she
could push/pull a maximum of 20 pounds. Dr. Leonetti instructed appellant to be very careful
getting in and out of vehicles, and further commented that stepping up and down was very difficult
on the Achilles. He did not believe that further surgery would improve appellant’s condition.
Dr. Leonetti recommended massage therapy and possibly physical therapy to help break up the
adhesions.
Dr. Leonetti’s July 10, 2013 treatment notes indicated that appellant was seen for a followup regarding chronic injury with loss of function, gait, and balance of the right foot secondary to
a work injury to the right foot on September 11, 2001. He reported that appellant suffered an
Achilles tendon insertional injury and underwent surgical intervention as a result. Dr. Leonetti
noted that the surgical procedure was so aggressive that it permanently altered the insertional
function of appellant’s right Achilles tendon.
OWCP also received a July 10, 2013 attending physician’s report (Form CA-20) from
Dr. Leonetti, who diagnosed right Achilles tendinitis. Dr. Leonetti reiterated that the date of injury
was September 11, 2001. The reported history was right Achilles injury recently aggravated by
2

5 U.S.C. § 8101 et seq.

3

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated April 13, 2017, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 17-0274 (issued April 13, 2017).

2

change in route with increased standing and getting in and out of her vehicle. Dr. Leonetti
indicated that appellant’s current condition was employment related and explained that the recent
changes in her route aggravated her condition. He further noted that appellant was able to work
with restrictions as of June 18, 2013, and would be able to resume her regular work as of
October 1, 2013. Appellant’s current restrictions included standing/walking one hour at a time,
with a maximum of four hours per day. He also noted that appellant could work in a seated position
for at least 4 hours a day, at 30-minute increments.
In a July 16, 2013 duty status report (Form CA-17), Dr. Leonetti continued to diagnose
Achilles tendinitis due to stepping in and out of a vehicle at work on September 11, 2001 and
advised that appellant was capable of working with the following restrictions: lifting and carrying
no more than 4 hours per day, sitting 30 minutes at a time; standing no more than 4 hours per day,
walking no more than 1 hour per day with 15-minute breaks, and pulling/pushing no more than 20
pounds.
On August 19, 2013 Dr. Leonetti reviewed a magnetic resonance imaging (MRI) scan
dated December 18, 2012 and found no evidence of Achilles tendon tear and thickening and
changes along the posterior calcaneal margin, suggesting prior surgery. There was no associated
stress response, edema, or fracture. Dr. Leonetti diagnosed status post right Achilles tendon injury
and status post permanent scar tissue with loss of range of motion, strength, and overall function
of the right Achilles tendon. He reported that appellant insisted that she was unable to perform
her job duties of getting in and out of a vehicle and then filing mail into multiple mailbox stations
due to her injury. Dr. Leonetti released appellant to full-time, full-duty work, but with no overtime.
The record contains an investigative report dated September 6, 2013 from the employing
establishment’s Office of the Inspector General (OIG), including a DVD of video surveillance of
appellant performing her work duties on July 26, 2013 delivering mail by minivan. The
investigative report also contains OIG interviews of Dr. Leonetti on July 30 and August 20, 2013.
Dr. Leonetti related that he had been appellant’s doctor for several years and believed that she was
exaggerating the affect her injury was having on her employment. When the OIG investigator
informed Dr. Leonetti that appellant drove a minivan and sat on the left side, he stated that
appellant had told him that she drove a right-side delivery truck in which she sat on the right side
of the vehicle. On August 20, 2013 the OIG investigator reinterviewed Dr. Leonetti who stated
that he felt appellant had misled him by telling him her foot hurt because she had to continuously
get in and out of a right-handed drive vehicle on her route, when she actually drove a left-handed
drive minivan. He stated that appellant also misrepresented that she stepped down onto uneven
ground when she actually stepped down onto evenly paved parking lots.
By decision dated October 17, 2013, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the work events occurred as alleged.
In an October 29, 2013 report, Dr. Leonetti noted that appellant’s pain could cause episodes
that were severe enough to limit her activities at work, and these episodes could be brought on by
weather changes or walking on uneven ground surfaces. He advised that appellant could control
her pain with certain types of shoes, stretches, anti-inflammatories, and other palliative measures
and was capable of remaining on a full work status.

3

On November 13, 2013 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
By decision dated April 7, 2014, an OWCP hearing representative conducted a review of
the written record and affirmed the prior decision, finding that appellant had not established fact
of injury. She found that the OIG’s September 9, 2013 investigative report determined that
appellant had misrepresented her condition to Dr. Leonetti. The OIG surveillance conducted on
July 26, 2013 showed appellant exiting her vehicle, left foot first, onto paved parking lots and
sidewalks, with no obvious signs of pain or difficulty. Dr. Leonetti indicated that he felt appellant
had misled him by telling him her foot hurt because she had to continuously get into and out of a
right-handed drive vehicle on her route when she actually drove a left-handed drive minivan. He
also noted that the surveillance video of appellant did not demonstrate that she was in pain.
On June 23, 2015 appellant, through her representative, requested reconsideration and
argued that OWCP’s April 7, 2014 decision was, on its face, erroneous.
By decision dated July 6, 2015, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On June 20, 2016 appellant, through her representative, again requested reconsideration.
Appellant’s representative continued to argue that OWCP’s April 7, 2014 decision was, on its face,
erroneous. He submitted a DVD of an audio recording between appellant and her treating
physician discussing her case.
By decision dated September 27, 2016, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It noted the submitted recording was cumulative and irrelevant to the issue of fact of injury.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System
(iFECS).7 OWCP will consider an untimely request for reconsideration only if the request
This section provides in pertinent part: “[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).
4

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). A request for reconsideration must be received by OWCP within one year of OWCP’s decision
for which review is sought. The one-year period begins on the next day after the date of the originally contested
decision. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
7

Id. at Chapter 2.1602.4b.

4

demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”8
The request must establish on its face that such decision was erroneous.9
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP.10 The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error.11 It is not enough to merely show
that the evidence could be construed to produce a contrary conclusion. Evidence that does not
raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.12 The evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.13
Where a request is untimely and fails to demonstrate clear evidence of error, OWCP will
deny the request for reconsideration without reopening the case for a review on the merits.14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s last merit decision was dated April 7, 2014.
Appellant’s representative filed the current request for reconsideration on June 20, 2016, which
was well beyond the one-year filing period for a timely request for reconsideration.15 As
appellant’s June 20, 2016 request for reconsideration was untimely filed, she must demonstrate
clear evidence of error on the part of the hearing representative in finding that she failed to establish
fact of injury.16
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of the hearing
representative’s April 7, 2014 decision or shift the weight of the evidence of record in her favor.
In support of her reconsideration request, appellant submitted a DVD of a recording
between herself and her treating physician discussing her case. The term clear evidence of error
8

20 C.F.R. § 10.607(b).

9

Id.

10

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

11

See Leona N. Travis, 43 ECAB 227 (1991).

12

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

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

20 C.F.R. § 10.608(b).

15

Id. at § 10.607(a).

16

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

5

is intended to represent a difficult standard.17 Even a detailed, well-rationalized medical report
which would have created a conflict in medical opinion requiring further development if submitted
prior to issuance of the denial decision, does not demonstrate clear evidence of error.18 It is not
enough to show that evidence could be construed so as to produce a contrary conclusion. Instead,
the evidence must shift the weight in appellant’s favor.19 The DVD recording is merely an audio
recording which is not medical evidence and is found to have no probative value. The new DVD
recording does not show error with respect to OWCP’s April 7, 2014 decision, which found that
the employment exposure did not occur as alleged. The Board has held that repetitive or
cumulative evidence is insufficient to shift the weight of the evidence in favor of the claimant.20
Appellant has not sufficiently explained how the submission of this recording raises a substantial
question concerning the correctness of OWCP’s decision.
The Board finds that the evidence appellant submitted is insufficient to prima facie shift
the weight of the evidence in favor of her claim or raise a substantial question that OWCP erred in
its April 7, 2014 decision. Thus, OWCP properly denied her request for reconsideration because
it was untimely filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

17
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 10.
18

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

19

See M.N., Docket No. 15-0758 (issued July 6, 2015).

20

See D.E., 59 ECAB 438 (2008); A.F., Docket No. 11-1297 (issued December 20, 2011).

6

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 29, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 07-1521
Issued: October 19, 2007

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 May 14, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 21, 2007 decision denying her claim for compensation and a
March 26, 2007 decision denying reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
January 5, 2007, as alleged; and (2) whether the Office properly refused to reopen appellant’s
case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 9, 2007 appellant, then a 43-year-old tax examining technician, filed a
traumatic injury claim alleging that on January 5, 2007 she stepped up on a curb but slipped off
due to snow and ice. She fell forward, hitting her right forearm and the right side of her rib cage.

Appellant noted that the incident occurred while she was walking into work from the parking lot.
The employing establishment controverted the claim, contending that appellant was not in the
performance of duty at the time of the incident.
By letter dated January 16, 2007, the Office asked appellant to explain whether the
parking lot where she fell was on government property and if not, whether the
Federal Government maintained the parking area. It also asked appellant to submit further
information, including medical evidence, in support of her claim. In response appellant
submitted a January 5, 2005 report by a physician’s assistant from Westside Medical. The
physician’s assistant noted that appellant reported slipping off a curb that morning and diagnosed
a contusion of ribs and prescribed Diclofenac and Zanaflex. He checked a box indicating that
the diagnosis was a result of the described industrial injury. Appellant also submitted answers to
the Office’s questions, noting that the property where the incident occurred was managed by the
Federal Government.
By decision dated February 21, 2007, the Office denied appellant’s claim. The Office
found that the claimed event occurred as alleged and while appellant was in the performance of
duty. It denied the claim as the medical evidence was not sufficient to establish any injury.
On March 5, 2007 appellant requested reconsideration. No new evidence was submitted
with the request.
By decision dated March 26, 2007, appellant’s request for reconsideration was denied
without merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
1

5 U.S.C. §§ 8101-8193.

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
4

Shirley A. Temple, 48 ECAB 404 (1997).

2

An employee may establish that the employment incident occurred as alleged, but fail to show
that her disability and/or condition related to the employment incident.
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.5 An award of compensation may not be based on surmise, conjecture,
speculation or appellant’s belief of causal relationship.6 Neither the fact that the condition
became apparent during a period of employment nor appellant’s belief that the employment
caused or aggravated her condition is sufficient to establish causal relationship.7
ANALYSIS -- ISSUE 1
Appellant alleged that on January 5, 2007 she slipped on snow and ice and fell up a curb
thereby hurting her forearm and rib cage. The Office found that the incident occurred at the
time, place and manner alleged. The issue is whether appellant sustained an injury caused by the
accepted employment incident.
Appellant submitted reports from a physician’s assistant dated January 5, 2005. The
physician’s assistant diagnosed contusion of ribs and indicated that this condition was the result
of her work-related accident. However, this report is of no probative medical value as a
physician’s assistant is not a “physician” as defined under the Act and is not competent to
provide medical evidence.8 As appellant submitted no other medical evidence, the Office
properly found that she failed to meet her burden of proof in establishing causal relationship.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office, or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.9
Section 8128(b) provides that when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), the Office will deny
the application for reconsideration without reopening the case for review on the merits.10
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
5

Gary L. Fowler, 45 ECAB 365 (1994).

6

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 567 (1979).

7

Phillip L. Barnes, 55 ECAB 426 (2004); Jamel A. White, 54 ECAB 224 (2002).

8

5 U.S.C. § 8101(2); see Ricky S. Storms, 52 ECAB 349 (2001).

9

20 C.F.R. § 10.606(b)(2)(i-iii).

10

Id. at § 10.606(b)(2).

3

value and does not constitute a basis for reopening a case.11 Likewise, evidence that does not
address a particular issue involved does not constitute a basis for reopening a case.12
ANALYSIS -- ISSUE 2
Appellant did not submit any new legal argument, nor did she allege that the Office
erroneously applied or interpreted a specific point of law. She did not submit any relevant or
pertinent new medical evidence in support of her claim. Accordingly, the Board finds that the
Office properly determined that appellant was not entitled to a review of the merits of her claim
pursuant to any of the three requirements under section 10.606(b)(2) and properly denied her
request for reconsideration.13
CONCLUSION
The Board finds that the Office properly found that appellant did not establish that she
sustained an injury in the performance of duty on January 5, 2007, as alleged. The Board further
finds that the Office properly refused to reopen appellant’s case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).14

11

Helen E. Paglinawan, 51 ECAB 407, 591 (2000).

12

Kevin M. Fatzer, 51 ECAB 407 (2000).

13

Id.

14

Appellant submitted new evidence on appeal before the Board. The Board may not consider evidence for the
first time on appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R.
§ 501.2(c). Appellant can submit this evidence to the Office and request reconsideration. 5 U.S.C. § 8128;
20 C.F.R. § 10.606.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 5 and February 21, 2007 are affirmed.
Issued: October 19, 2007
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 18-0373
Issued: September 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 12, 2017 appellant filed a timely appeal from an October 3, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing loss
for schedule award purposes.
FACTUAL HISTORY
On December 5, 2013 appellant, then a 63-year-old plate printing supervisor, filed an
occupational disease claim (Form CA-2) alleging binaural hearing loss and tinnitus due to factors
1

5 U.S.C. § 8101 et seq.

of his federal employment including daily exposure to loud noise caused by printing presses. He
first became aware of his condition on August 15, 2012 and first realized that it was caused or
aggravated by factors of his federal employment on October 14, 2013. A supervisor indicated that
appellant’s hearing loss occurred while he was off work, noting that appellant wore earplugs while
around presses and that he had not worked since November 22, 2012 and had retired on
November 29, 2013.
OWCP received copies of appellant’s audiograms from December 9, 1986 through
November 27, 2013. In a summary of the audiogram dated November 27, 2013, the reviewer
recommended a complete hearing evaluation due to the results of the test. OWCP also received a
position description and a summary of appellant’s job history, as well as a letter from the
employing establishment stating that, effective June 1, 2002, all employees needed to wear hearing
protection in certain areas on premises.
In a report dated October 14, 2013, Dr. Christopher Mann, Board-certified in family and
occupational medicine, examined appellant for complaints of binaural hearing loss and tinnitus.
He noted that appellant had worked at the employing establishment for over 40 years and sustained
a “persistent onset” of hearing loss, left greater than right on August 15, 2012. Dr. Mann noted
that he worked around loud presses and machinery each day for at least two hours per day at 95 to
100 decibels (dBs) and that an audiogram performed on August 15, 2012 confirmed an abnormal
hearing test indicating that hearing loss was present. He opined that appellant had sustained a
work-related injury to both ears as a direct result of activities he performed in his position, and that
within a reasonable degree of medical certainty, the loud noises he was exposed to in the course
of his employment had caused his binaural hearing loss and tinnitus.
In a statement dated December 13, 2013, a supervisor explained the employing
establishment’s controversion of appellant’s claim. He noted that appellant’s audiograms did not
show progressive loss at low levels and that high frequencies “above 4,000 cycles per second”
were not used to determine loss. The supervisor further noted that appellant wore hearing
protection and that his last audiogram before leaving his employment on November 22, 2012 did
not demonstrate a ratable hearing loss.
In a development letter dated December 23, 2013, OWCP requested that appellant submit
additional factual information pertaining to his exposure to loud noise, which he believed
contributed to his hearing loss. By letter of even date, it requested additional information from the
employing establishment, including copies of all medical examinations pertaining to hearing or
ear problems on both preemployment examination and all audiograms.
On February 12, 2014 OWCP referred the case record, including a statement of accepted
facts (SOAF) and lists of questions to Dr. Donald N. Matheson, a Board-certified otolaryngologist,
for a second opinion evaluation. In a February 26, 2014 report, Dr. Matheson examined appellant
and administered an audiogram. He diagnosed high-frequency hearing loss with good
discrimination, related to long-term noise exposure. Dr. Matheson indicated that appellant’s
hearing loss was due to noise exposure encountered in appellant’s federal civilian employment.
He further found that, based on the results of the February 26, 2014 audiogram, the impairment
calculations under the American Medical Association, Guides to the Evaluation of Permanent

2

Impairment2 (A.M.A., Guides) revealed a monaural loss of zero percent in each ear.3
Dr. Matheson indicated that tinnitus was present and added five percent to arrive at a total
permanent binaural hearing impairment of five percent.
Appellant responded to OWCP’s inquiries by letter dated February 23, 2014. He stated
that he first noticed his hearing loss on August 15, 2012 and first realized it was related to noise
exposure in the workplace on the same date. Appellant described his employment history and
noted that he had no preexisting issues with his hearing.
On May 8, 2014 OWCP referred the case record, including Dr. Matheson’s February 26,
2014 report and audiogram, to a district medical adviser (DMA) to determine whether appellant
had a ratable hearing loss. In a May 12, 2014 report, Dr. Henry Mobley, a Board-certified internist
serving as the DMA, reviewed appellant’s medical records, the SOAF, and Dr. Matheson’s
February 26, 2014 report and audiogram. He found that the date of maximum medical
improvement (MMI) was February 26, 2014 and that appellant had hearing loss of zero percent
under the A.M.A., Guides. The DMA noted that although Dr. Matheson had added five percent
permanent impairment for tinnitus, this was contrary to the A.M.A., Guides, which only permitted
the addition of up to five percent for tinnitus to a measureable hearing impairment, and because
appellant did not have a measureable hearing impairment the addition was improper. The
February 26, 2014 audiogram reflected testing at the frequency levels of 500, 1,000, 2,000, and
3,000 hertz (Hz) and revealed findings for the right ear of 20, 10, 20, and 40 dBs and for the left
ear of 15, 10, 30, and 40 dBs. The total for the left ear was 95, while the total for the right ear was
90. These totals were divided by four, resulting in 23.8 for the left ear and 22.5 for the right ear.
These averages were then reduced by the 25 dBs fence, resulting in zero percent monaural loss for
both ears, and zero percent binaural loss. The DMA thus concluded that appellant did not have a
ratable permanent hearing loss, however, recommended authorization for hearing aids.
By decision dated July 9, 2014, OWCP accepted appellant’s claim for bilateral hearing loss
due to noise. On September 16, 2014 it authorized hearing aids for him.
In a letter dated November 24, 2014, Dr. Mann noted that appellant had reached MMI as
of that date and he rated his hearing loss in his better ear at 12 percent and in his poorer ear at 52
percent, arriving at a binaural hearing loss of 18.6 percent. Adding 5 percent for the condition of
tinnitus, he arrived at a final binaural hearing impairment of 23.6 percent.
On June 9, 2015 appellant filed a claim for a schedule award (Form CA-7).
By decision dated July 14, 2015, OWCP found that appellant’s hearing loss was not
sufficiently severe to be considered ratable and he was therefore not entitled to schedule award
compensation. It further found that he was entitled to medical benefits, including hearing aids.
On July 27, 2015 appellant requested a review of the written record before OWCP’s Branch
of Hearings and Review. He resubmitted the November 24, 2014 report of Dr. Mann, his own
2

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

3

Dr. Matheson noted that the audiometer had last been calibrated on January 3, 2014.

3

statement dated February 23, 2014, and audiograms taken during his employment. Appellant also
submitted a report dated October 28, 2015 from Dr. Mann, which noted the permanency of
appellant’s hearing loss and his effective use of hearing aids.
By decision dated December 17, 2015, the hearing representative affirmed OWCP’s
July 14, 2015 decision. He concluded that OWCP had properly developed appellant’s schedule
award claim, that Dr. Mann was not an appropriate medical specialist as he was a family
practitioner, and that the opinions of Drs. Matheson and Mobley carried the weight of medical
evidence.
On August 13, 2016 appellant requested reconsideration. With his request, he enclosed a
letter dated August 1, 2016 from Dr. Mann who explained that as appellant’s attending physician,
he took the last hearing test available nearest to his last point of employment, dated November 7,
2013, in order to perform his impairment rating. Dr. Mann noted that appellant had a welldocumented decline in his hearing during the last two to three years of his federal employment.
He explained that Drs. Matheson and Mobley had drawn their conclusions based on the later test
of February 26, 2014, which was three months after appellant’s regular exposure to noise in his
federal employment. Dr. Mann opined that this test should be afforded equal weight to the tests
performed during appellant’s employment. Appellant also submitted the results of audiometric
testing and a report from an audiologist dated November 9, 2012 and November 11, 2013. On the
results of audiometric testing, the audiologist noted 12 percent hearing loss in the right ear and 52
percent hearing loss in the left ear. In the report, the audiologist recommended hearing aids.
By decision dated October 3, 2017, OWCP affirmed the December 17, 2015 decision
finding that the latest report from the audiologist had not included the date of calibration of
audiometric testing equipment, rendering it insufficient to meet test environment standards. It
further found that the audiologist had not properly calculated impairment in each ear. OWCP
again noted that Dr. Mann’s report had no bearing on a hearing loss claim as he was not an
appropriate specialist, and that Dr. Matheson and the DMA carried the weight of the medical
evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

4

concurred in such adoption.6 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.7
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.8 With respect to a schedule award, it is the claimant’s burden
of proof to establish permanent impairment of a scheduled member or function of the body as a
result of his or her employment injury.9 A claimant may seek an increased schedule award if the
evidence establishes that he or she sustained an increased impairment causally related to an
employment injury.10 The medical evidence must include a detailed description of the permanent
impairment.11
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.12 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.13 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.14 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied by
five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.15 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.16

6

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
8

C.U., Docket No. 18-1480 (issued February 6, 2019); John W. Montoya, 54 ECAB 306 (2003).

9

D.S., Docket No. 19-0292 (issued June 21, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan,
53 ECAB 229 (2001).
10

See Rose V. Ford, 55 ECAB 449 (2004).

11

See Vanessa Young, 55 ECAB 575 (2004).

12

T.O., Docket No. 18-0659 (issued August 8, 2019); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB
143 (2000); see also 20 C.F.R. § 10.404.
13

See A.M.A., Guides 250 (6th ed. 2009).

14

Id.

15

Id.

16

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

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If tinnitus interferes with activities of daily living, including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.
The Board finds that the February 26, 2014 audiogram is the only study of record
performed within OWCP’s certification protocols, as the November 9, 2012 and other testing did
not document proper calibration. This audiogram, which complied with all protocols of the
A.M.A., Guides, demonstrated record values at the frequency levels of 500, 1,000, 2,000, and
3,000 Hz of 20, 10, 20, and 40 dBs on the right, for a total of 90 dBs. This figure, when divided
by four, resulted in an average hearing loss of 22.5 dBs. The average of 22.5 dBs, when reduced
by the 25 dBs fence, resulted in zero percent monaural hearing loss in the right ear. The frequency
levels on the left at 500, 1,000, 2,000, and 3,000 Hz revealed losses of 15, 10, 30, and 40 dBs, for
a total of 95 dBs. This value, when divided by four, resulted in an average hearing loss of 23.8
dBs, which, when reduced by the 25 dBs fence, resulted in zero percent monaural hearing loss of
the left ear.
The Board finds that, as the February 26, 2014 audiogram did not demonstrate that
appellant’s hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing
loss condition. While Dr. Matheson noted that he had tinnitus and added five percent to his
impairment rating based on this observation, the DMA correctly explained that tinnitus may not
be added to an impairment rating for hearing loss under the sixth edition of the A.M.A., Guides
unless such hearing loss is ratable.19
Appellant may request a schedule award at any time based on evidence of a new exposure
or medical evidence showing progression of an employment-related condition resulting in
permanent impairment or increased impairment.

17

A.M.A., Guides 249; see also R.H., Docket No. 10-2139 (issued July 13, 2011).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6f.
19
See W.G., Docket No. 17-1090 (issued March 12, 2018); M.F., Docket No. 16-1296 (issued December 15, 2016);
Juan A. Trevino, 54 ECAB 358, 360 (2003).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CARL VINSON VETERANS
ADMINISTRATION MEDICAL CENTER,
Dublin, GA, Employer
__________________________________________

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

Docket No. 09-438
Issued: September 15, 2009

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 December 1, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated September 2 and October 7, 2008 that denied further
merit review. Because more than one year has elapsed between the most recent merit decision
dated October 1, 2007 and the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that the Office did not consider the evidence submitted
with her reconsideration requests and that the evidence established her claim.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 1, 2007, the
Board found that appellant did not meet her burden of proof to establish that she sustained an
employment-related injury on November 3, 2005 and that the Office did not abuse its discretion
in denying her subpoena requests.1 The law and the facts of the previous Board decision are
incorporated herein by reference.
On July 28, 2008 appellant requested reconsideration arguing that the Board erred in
denying her claim, that the Office failed to provide notice under section 8106(c)2 of the Federal
Employees’ Compensation Act and improperly withdrew light duty, that the medical evidence of
record established that her claim and her subpoena requests were improperly denied. She
submitted evidence previously of record and an October 1, 2005 report from Dr. Mokhtar
Hacena, a Board-certified internist. By decision dated September 2, 2008, the Office denied
appellant’s reconsideration request.
Appellant again requested reconsideration on September 22, 2008, reiterating her
previous arguments and alleging that the employing establishment improperly placed her in
absence-without-leave (AWOL) status. She submitted a January 27, 2006 statement in which
James Hampton of the employing establishment testified regarding her Equal Employment
Opportunity Commission claim, a March 19, 2006 prehearing submission from the employing
establishment regarding her claim of improper removal before the Merit Systems Protection
Board (MSPB) and an MSPB decision dated May 24, 2007, finding in the employing
establishment’s favor. In an October 7, 2008 decision, the Office again denied appellant’s
request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
application by a claimant.3 Section 10.608(a) of the Code of Federal Regulations provides that a
timely request for reconsideration may be granted if the Office determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).4 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that the Office
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.5 Section 10.608(b) provides that, when a
1

Docket No. 07-1026 (issued October 1, 2007).
chemicals at work on November 3, 2005.
2

5 U.S.C. § 8106(c).

3

Id. at § 8128(a).

4

20 C.F.R. § 10.608(a).

5

Id. at § 10.608(b)(1) and (2).

Appellant alleged an allergic reaction to environmental

2

request for reconsideration is timely but fails to meet at least one of these three requirements, the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.6
ANALYSIS
The only decisions before the Board in this appeal are the nonmerit Office decisions
dated September 2 and October 7, 2008 denying appellant’s applications for review. Because
more than one year elapsed between the dates of the most recent merit decision in this case, the
Board’s October 1, 2007 decision and the filing of her appeal on December 1, 2008, the Board
lacks jurisdiction to review the merits of her claim.7
Appellant’s July 28, 2008 reconsideration request contended that the Board erred in
denying her claim. The Office, however, is without authority to review a decision of the Board.8
Appellant further argued that the Office failed to provide notice under section 8106(c) of the Act
and that she sustained a recurrence of disability; thus, her light duty was improperly withdrawn.
The underlying issue in this case was whether appellant met her burden of proof to establish that
she sustained an allergic reaction on November 3, 2005. Therefore, section 8106(c) which
pertains to the refusal of suitable work is not relevant to the denial of appellant’s claim.
Moreover, the Office did not adjudicate appellant’s claim and recurrence of disability. This
argument is not relevant to establishing an allergic reaction on November 3, 2005. Appellant
also argued that her subpoenas were improperly denied. The Board previously found that the
Office did not abuse its discretion in denying appellant’s subpoena requests.9 With appellant’s
September 22, 2008 reconsideration request, she reiterated her previous arguments and
contended that she was improperly placed on AWOL status. Again, this argument is not relevant
to the merit issue in this case, whether she established that she sustained an allergic reaction on
November 5, 2005.
Appellant generally argued that the medical evidence of record was sufficient to establish
her claim. Arguments that repeat those previously of record have no evidentiary value and do
not constitute a basis for reopening a case.10 While a reopening of a case may be predicated
solely on a legal premise not previously considered such reopening is not required where the
legal contention does not have a reasonable color of validity.11 Appellant did not demonstrate
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered. Consequently, she is not entitled to a review of the

6

Id. at § 10.608(b).

7

20 C.F.R. § 501.3(d)(2).

8

Theresa Johnson, 50 ECAB 317 (1999).

9

Supra note 1.

10

M.E., 58 ECAB ____ (Docket No. 07-1189, issued September 20, 2007).

11

Elaine M. Borghini, 57 ECAB 549 (2006).

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merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).12
Appellant submitted duplicate copies of evidence previously of record that were reviewed
by the Board and the Office. Evidence that repeats or duplicates evidence of record has no
evidentiary value and does not constitute a basis for reopening a case.13 The newly submitted
medical evidence consisted of an October 1, 2005 report from Dr. Hacena. This report, however,
discussed appellant’s medical condition on October 1, 2005, prior to the claimed injury of
November 3, 2005 and is not relevant to her condition on that date. The Office and Board
previously reviewed a June 15, 2006 report in which Dr. Hacena discussed appellant’s condition.
The October 1, 2005 report is therefore irrelevant.14 Appellant also submitted the employing
establishment’s prehearing submission dated March 19, 2006 for her claim that she was
improperly removed before the MSPB, and an MSPB decision dated May 24, 2007. The
determinations of other administrative agencies or courts, while instructive, are not determinative
with regard to disability under the Act.15 Furthermore, the MSPB affirmed the employing
establishment’s removal.
Appellant did not show that the Office erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered. The Office properly denied appellant’s reconsideration
requests.16
Finally, regarding appellant’s arguments on appeal, the Board finds that the Office, in its
September 2 and October 7, 2008 decisions thoroughly discussed the arguments and evidence
submitted by her.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).17

12

20 C.F.R. § 10.606(b)(2).

13

Freddie Mosley, 54 ECAB 255 (2002).

14

20 C.F.R. § 10.608(b)(1) and (2); C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008).

15

Beverly R. Jones, 55 ECAB 411 (2004).

16

Supra note 6.

17

The Board notes that appellant filed an occupational disease claim that the Office is adjudicating separately.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 7 and September 2, 2008 be affirmed.
Issued: September 15, 2009
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

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