United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fort Meade, SD, Employer
__________________________________________

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

Docket No. 06-2161
Issued: July 13, 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 September 26, 2006 appellant filed a timely appeal from the September 28, 2005 and
January 5, 2006 merit decisions of the Office of Workers’ Compensation Programs, which
denied reimbursement of travel expenses. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the travel expense issue.
ISSUE
The issue is whether the Office abused its discretion in denying reimbursement of travel
expenses effective June 13, 2005.
FACTUAL HISTORY
On April 17, 1989 appellant, then a 46-year-old nursing assistant, sustained an injury in
the performance of duty. She stated: “I was getting a patient out of bed. Patient was standing
upright. Patient is able to do this. Patient walks with a walker. Patient’s legs gave out and

started to buckle. Laid patient back on bed. I felt a pull in low back.” The Office accepted her
claim for spasmodic torticollis and paid compensation benefits.
For years, the Office authorized medical treatment in Omaha, Nebraska, where
Dr. Bernadette A. Hughes, a Board-certified neurologist, provided Botulinum toxin injections for
appellant’s spasmodic torticollis. The Office reimbursed appellant for her related travel
expenses. When appellant telephoned the Office on June 10, 2005 requesting authorization for
more travel vouchers, the Office advised her that it could not continue to pay travel expenses for
several hundred miles each month. The Office claims examiner noted: “Claimant stated there
were specialists in her town, but she does not trust them. I told her she could continue to see the
same doctor, but travel expenses would be limited.” On June 15, 2005 the Office claims
examiner advised appellant as follows: “Told her I could only authorize medical travel up to 100
miles, with no overnight stay.” The Office noted that appellant’s physician was over 500 miles
away and that appellant saw the doctor each month, for which she claimed mileage and motel
expenses each trip. The Office continued to authorize the injections.
In a decision dated September 28, 2005, the Office notified appellant that she was
authorized to continue seeking treatment from Dr. Hughes but that her travel expenses to and
from that treatment would not be reimbursed. The Office stated:
“The FECA [Federal Employees’ Compensation Act] regulations require that you
seek medical care as close to your residence as possible. On June 13, 2005 you
indicated that there were other physicians within the State of South Dakota, but
you were not comfortable seeking treatment with those physicians. You were
notified that further travel reimbursement will not be authorized as of
June 13, 2005.
You are authorized to continue to seek treatment from
Dr. Hughes; however, your travel expenses to and from that treatment will not be
reimbursed. The travel expense of 590 miles each way along with motels and
food are not reasonable and necessary medical expenses.”
On November 20, 2005 appellant took issue with the Office’s assertion on the availability
of local services. She noted:
“You stated June 13, 2005 that I said there are other physicians within South
Dakota but I did not want to go to them (wrong). I don’t know where you got this
information but it is not true. I did not say that at all. Please send me a copy of
this. Please get this off my record. This is a false statement.”
Appellant explained why she went to Dr. Hughes in Omaha:
“Dr. Bernadette A. Hughes is a specialist.… For this kind of disability the
injection in my neck and EMG done before she inject me with Botulinum toxin
and she knows where to put the Botulinum toxin. And I need a doctor like that
because this is very much needs a specialist. Not any old doctor can do this
injection. I don’t think you would want any doctor with a M.D.
“Note. I call around to see if we had any doctor that could do this treatment on
me with this kind of care. I call around and there is one in Sioux City, Iowa, and I
2

call Rapid City, S.D. Hospital in this town does not have a neurologist that can do
this injection on me. I talk to a person here and she said Dr. [Brian E.] Tschida
can do some Botox, but not in my neck. He is the doctor that testing me in
1992.... So please get this right if you need more information let me know.
“Right now I’m keeping Dr. Hughes to do my injection. I’m sorry we don’t have
a specialist. Note. This is why I need to keep my Dr. Hughes down in Omaha,
NE. I have been treated from her clear back in 1994 I think.”
On December 16, 2005 appellant requested reconsideration.
In a decision dated January 5, 2006, the Office denied appellant’s request for
reconsideration, purportedly without reviewing the merits of her case. The Office determined
that appellant’s statement lacked supporting documents from local neurologists confirming that
they could not or would not provide the treatment locally. The Office noted that there were
qualified neurologists in the Rapid City area who did provide these injections for appellant’s
condition, including Dr. Tschida and Dr. [Craig G.] Mills with Black Hills Neurology.
“Therefore,” the Office concluded, “your allegations that they cannot or will not and that there
are no specialists in your local area that can or will provide this treatment for you are not valid
arguments for error on the part of the Office.”
LEGAL PRECEDENT
Medical expenses, along with transportation and other expenses incidental to securing
medical care, are covered by section 8103 of the Act.1 This section provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances and supplies prescribed or recommended by a qualified physician, which the
Secretary of Labor considers likely to cure, give relief, reduce the degree of the period of any
disability, or aid in lessening the amount of any monthly compensation. The employee may
initially select a physician to provide medical services, appliances and supplies, in accordance
with such regulations and instructions as the Secretary considers necessary, and may be
furnished necessary and reasonable transportation and expenses incident to the securing of such
services, appliances and supplies. In interpreting this section, the Board has recognized that the
Office has broad discretion in approving services provided under the Act. The only limitation on
the Office’s authority is that of reasonableness.2
Office regulations provide that the employee is entitled to reimbursement of reasonable
and necessary expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel, the Office will
consider the availability of services, the employee’s condition and the means of transportation.

1

5 U.S.C. § 8103(a).

2

Lecil E. Stevens, 49 ECAB 673, 675 (1998); see Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad
discretionary authority in the administration of the Act and must exercise that discretion to achieve the objectives of
section 8103).

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Generally, 25 miles from the place of injury, the work site, or the employee’s home, is
considered a reasonable distance to travel.3
ANALYSIS
In its September 28, 2005 decision, the Office found that appellant’s travel to Omaha,
together with motels and food, was not a reasonable and necessary medical expense. The Office
properly considered appellant’s condition and the availability of services, noting that appellant
had indicated that there were other physicians within the State of South Dakota but that she was
not comfortable seeking treatment with those physicians. Indeed, the record shows that on
June 10, 2005 appellant advised the Office in a telephone conversation that there were specialists
in her town, but she did not trust them. Given the apparent availability of services locally, the
Board notes that the Office reasonably exercised its discretion in prospectively denying
reimbursement for trips to Omaha. Previously reimbursing this expense did not preclude the
Office from later exercising reasonable discretion to deny further reimbursement.
The Board, however, cannot affirm the Office’s September 28, 2005 decision in its
entirety. The decision indicated that the Office would reimburse no travel expenses as of
June 13, 2005. The Office explained: “You were notified that further travel reimbursement will
not be authorized as of June 13, 2005.” However, on June 10, 2005 the Office advised appellant
that she could continue to see Dr. Hughes “but travel expenses would be limited.” On June 15,
2005 the Office claims examiner put a number on it: “Told her I could only authorize medical
travel up to 100 miles, with no overnight stay.”
The Board finds that the Office exercised its discretion under section 8103 of the Act
when it made this representation. Having authorized a limited travel expense beginning June 15,
2005, the Office cannot later find that “travel reimbursement will not be authorized as of
June 13, 2005.” This was an abuse of discretion. The Board will set aside that part of the
Office’s September 28, 2005 decision. From June 15 to September 28, 2005, appellant is
entitled to reimbursement for the limited travel expense the Office advised her it could authorize.
The Board will affirm the Office’s September 28, 2005 decision to the extent that it
prospectively denies reimbursement for trips to Omaha, will set aside the decision to the extent
that it retroactively rescinds the June 2005 authorization of limited travel expenses and will
remand the case for appropriate reimbursement of any unpaid travel expenses to Omaha between
June 15 and September 28, 2005.
Although the Office’s January 5, 2006 decision purported not to review the merits of
appellant’s claim, the Board finds that this is a decision on the merits. Appellant requested
reconsideration in part because she needed a specialist like Dr. Hughes. She apparently inquired
but could find no specialist locally who could provide the Botulinum toxin injection in her neck.
This was an argument not previously considered by the Office. The Office did not deny
appellant’s request for reconsideration on the grounds that she did not present evidence or
argument meeting one of the three standards for obtaining a merit review of her case.4 Instead,
3

20 C.F.R. § 10.315 (1999).

4

See id. at § 10.606(b)(2).

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the Office addressed the merits of her argument. The Office found for the first time that there
were in fact qualified neurologists in Rapid City who provided these injections for appellant’s
condition. The Office named two such neurologists and found that appellant’s argument to the
contrary was therefore not valid.
The Board will affirm the Office’s January 5, 2006 decision, in part. Considering
appellant’s condition and the availability of named local specialists willing to provide the
injections she was receiving from Dr. Hughes, the Office properly exercised its discretion to
deny further authorization for trips to Omaha. Appellant may continue to see Dr. Hughes if she
wishes, but she will travel to Omaha at her own expense. She may also ask Dr. Hughes to
recommend a specialist in her local area. Appellant may also ask the Office for authorization to
see a specialist at Black Hills Neurology, where the Office indicates she will receive the same
Botulinum toxin injections for her spasmodic torticollis.
CONCLUSION
The Board finds that the Office abused its discretion under section 8103 of the Act when
it denied reimbursement of the limited travel expenses it authorized on June 15, 2005. Further
action is therefore warranted on appellant’s travel expenses to Omaha between June 15 and
September 28, 2005. The Board also finds that the Office properly exercised its discretion to
deny reimbursement for any travel expense to Omaha beginning September 28, 2005.
ORDER
IT IS HEREBY ORDERED THAT the January 5, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed. The Office’s September 28, 2005 decision is
affirmed in part and set aside in part. The case is remanded for further action consistent with this
opinion.
Issued: July 13, 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
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-1082
Issued: April 18, 2017

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 April 16, 2015 appellant, through counsel, filed a timely appeal from an October 23,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established permanent impairment of a scheduled
member, warranting a schedule award.
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 26, 2009 appellant, then a 55-year-old postal clerk, filed a traumatic injury
claim (Form CA-1) alleging that on January 2, 2009 he was pushing a mail rack weighing
between 800 and 1,000 pounds when he felt a pop in his neck and spasm/numbness in his left
arm and hand. OWCP accepted the claim for sprain of neck, displacement of cervical
intervertebral disc without myelopathy, and intervertebral disc disorder with myelopathy left
cervical region. Appellant stopped work on May 13, 2009 and did not return. He received
compensation benefits on the periodic roll commencing October 24, 2010. On November 9,
2010 appellant underwent anterior discectomy and artificial disc replacement at C5-6 and C6-7
performed by Dr. Glen S. O’Sullivan, a Board-certified orthopedic surgeon. The surgery was
authorized by OWCP.
On July 17, 2011 appellant filed a claim for a schedule award (Form CA-7). In support
of his claim he submitted a June 27, 2011 report from Dr. Thomas J. Purtzer, a Board-certified
neurological surgeon, who opined that appellant was entitled to 25 percent whole person
impairment due to disc herniation and residual multiple level radiculopathy.
OWCP routed Dr. Purtzer’s report and the case record to Dr. William Stewart, an OWCP
district medical adviser (DMA), for an opinion regarding permanent impairment. In a July 21,
2011 report, Dr. Stewart opined that appellant had no ratable lower extremity impairment as a
result of his work-related injuries. He noted that because this was a cervical spine injury, there
were no discrete peripheral nerve injuries to the lower extremity. In an August 11, 2011 report,
Dr. Stewart reported that review of Dr. Purtzer’s examination showed no upper extremity
permanent impairment. He explained that there was no evidence of radiculopathy in either right
or left upper extremities and no evidence of nerve root injury. Dr. Stewart opined that appellant
had not yet reached maximum medical improvement (MMI) as it had not been a year since his
November 9, 2010 cervical surgery.
On April 6, 2012 OWCP referred appellant, a statement of accepted facts (SOAF), and
the case record to Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon, for a second
opinion evaluation. In reports dated June 14 and July 12, 2012, Dr. Curcin provided findings on
physical examination, noting that appellant’s motor examination of the upper extremities was
5/5. Based on physical examination findings and review of recent electrodiagnostic studies, he
noted that pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (6th ed., 2009) (A.M.A., Guides) there was no ratable impairment of the upper or
lower extremities due to the lack of objective findings causally related to the accepted
conditions. Dr. Curcin opined that MMI had been reached one year status postsurgery on
November 9, 2011.
On August 1, 2012 Dr. Kenneth D. Sawyer, an OWCP DMA, Board-certified in surgery,
reviewed the case file and agreed with Dr. Curcin that there was no ratable permanent
impairment of the upper or lower extremities. He noted that, while appellant continued to have
complaints, his complaints were subjective. Dr. Sawyer further noted that appellant’s complaints
were based on inconsistencies and nonphysiologic findings on physical examination which were
reported by multiple examiners. He also stated that objective findings supported the conclusion

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that there was no functional impairment of either upper or lower extremity.
concluded that MMI had been reached on the date of Dr. Curcin’s examination.

Dr. Sawyer

By decision dated August 9, 2012, OWCP denied appellant’s claim for a schedule award
as the evidence of record was insufficient to establish that he sustained any permanent
impairment to a member or function of the body.
On October 22, 2012 appellant requested reconsideration of the schedule award
determination. In support of his request, he submitted an August 15, 2012 report from
Dr. Glen S. O’Sullivan, a Board-certified orthopedic surgeon. Dr. O’Sullivan related that
appellant’s status post two level cervical surgery, artificial discs C5-6 and C6-7, placed him in an
A.M.A., Guides category 4, DRE cervical category 4, which equaled 25 percent whole person
impairment.
By decision dated October 23, 2012, OWCP denied appellant’s request for
reconsideration finding that he neither raised substantive legal questions nor included relevant
and pertinent new evidence. It noted that the medical evidence submitted did not pertain to
impairment ratings and that Dr. O’Sullivan’s August 15, 2012 medical report provided a whole
person impairment rating which was improper.
On May 24, 2013 appellant, through counsel, requested reconsideration of the
October 23, 2012 OWCP decision. In support of his request for reconsideration, appellant
submitted an April 24, 2013 report from Dr. Mark Bernhard, Board-certified in physical
medicine and rehabilitation. Dr. Bernhard reviewed appellant’s medical records, noted a history
of injury and current complaints, and provided findings on physical examination. He noted that
an April 12, 2013 electrodiagnostic study demonstrated right carpal tunnel syndrome (CTS) and
possible left cubital tunnel syndrome. Dr. Bernhard provided diagnoses of status post cervical
surgery at C5-6 and C6-7, artificial disc replacements for cervical spondyloarthropathies, and
cervical radiculopathy. He noted that appellant had residuals of cervical radiculopathy with left
upper extremity abnormal nerve conduction study findings and right carpal tunnel findings
suggestive of ongoing mild radiculopathy. Dr. Bernhard explained that he did not find evidence
of symptom exaggeration as the findings were corroborated by weakness in grip and consistent
with some radicular changes. He reported that appellant’s work-related injury caused the
subjective and objective findings.
Referring to The Guides Newsletter, Rating Spinal Nerve Extremity Impairment, for
impairment resulting from the radiculopathy, i.e., the spinal nerve injury,3 Dr. Bernhard
explained that the standardized rating for multiple level, bilateral radiculopathy. He assigned a
class 4 diagnosis-based impairment and the incremental impairment based on moderate level
impairment was calculated subtracting 28 percent minus 11 percent (midrange calculation)
resulting in 28 percent upper extremity permanent impairment (maximum impairment rating for
severe, multilevel radiculopathy 37 percent). Dr. Bernhard noted that appellant’s category of
impairment was based on documented signs of bilateral or multiple level radiculopathy at the
clinically appropriate levels present at the time of examination consistent with the functional
3

The Guides Newsletter, sixth edition (July/August 2009).

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capacity evaluation and nerve conduction study. Electrodiagnostic results and a range of motion
study were submitted with his report.
OWCP routed the case record, along with Dr. Bernhard’s report, to Dr. William Stewart,
an OWCP DMA,4 to determine if appellant suffered a residual condition as a result of the
accepted January 2, 2009 injury such as upper/lower extremity radiculopathy. It requested he
determine the extent of appellant’s permanent impairment and the date of MMI.
In a May 30, 2013 report, Dr. Stewart reviewed Dr. Bernhard’s report and noted that
electrodiagnostic studies performed by the physician only demonstrated right CTS with no
evidence of a general neuropathy or radiculopathy. He further noted that computerized
tomography (CT) and magnetic resonance imaging (MRI) scans revealed negative findings.
Dr. Stewart noted that there was no objective evidence to support Dr. Bernhard’s finding of
bilateral upper extremity radiculopathy resulting in 28 percent upper extremity impairment. He
explained that the objective evidence failed to show an abnormal physical examination or
abnormal clinical studies. Dr. Stewart noted that limited range of motion was also untenable if
not supported by some anatomical abnormality or muscle impairment. The only abnormal
finding presented was the mild right carpal tunnel which was not evidence of general
radiculopathy, and appellant’s x-ray only evidenced his past cervical spine surgery. Dr. Stewart
concluded that the 28 percent upper extremity impairment rating was unsupported by clinical or
physical findings and there was nothing in the record to support the existence of any degree of
permanent partial impairment.
In a July 11, 2013 supplemental report, Dr. Bernhard reviewed Dr. Stewart’s May 30,
2013 report and disagreed with his findings. He noted that there was objective evidence of
disease such as T1-2 intermittent cervicothoracic myelopathy, 3+ hypereflexic distal lower
extremity reflexes, and the 50 percent reduction in loss range of motion consistent with the
compromise of two-level disc spaces from the surgery. Dr. Bernhard further noted that there was
evidence of motor impairment as there was 4/5 muscle strength consistent with radiculopathy
and nerves supplying the weakened muscles affected at the appropriate level. He disagreed with
Dr. Stewart’s assessment that right CTS was the only abnormality on the electrodiagnostic study.
Dr. Bernhard noted that the study also revealed compromise of the ulnar nerve at the left elbow
which was disregarded by Dr. Stewart. He explained that appellant’s claim was accepted for
displacement of the intervertebral disc with myelopathy. The electrodiagnostic findings also
corroborated the presence of a radiculopathy since the nerve to the carpal tunnel and ulnar nerves
were supplied by the roots affected by the cervical disc replacement.
Given that there was no schedule award payable for spinal impairment under FECA,
Dr. Bernhard noted that he was revising his prior impairment rating to reflect impairment
resulting from radiculopathy to the spinal nerve. With regard to the right carpal tunnel,
Dr. Bernhard utilized the QuickDASH score with the carpal tunnel entrapment compression
neuropathy impairment rating listed under Table 15-23 to calculate three percent right upper

4

Dr. Stewart’s credentials could not be verified.

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extremity impairment. With respect to the ulnar nerve on the left hand for cubital tunnel
syndrome, he utilized Table 15-23 to calculate three percent left upper extremity impairment.5
OWCP routed a SOAF, the case file, and the reports of Dr. Bernhard to Dr. Kenneth
Sawyer, an OWCP DMA,6 for an opinion concerning the nature and percentage of impairment
pertaining to the upper extremities.
In a July 31, 2013 report, Dr. Sawyer summarized prior medical reports, diagnostic
studies, and findings made pertaining to upper extremity impairments. He noted that
Dr. Bernhard’s electrodiagnostic study only noted mild right CTS and “possible” left cubital
tunnel syndrome. Dr. Sawyer disagreed with Dr. Bernhard’s rating of three percent upper
extremity impairment on the right for CTS and three percent left upper extremity impairment for
cubital tunnel syndrome. He noted that, based on review of the record, there was no impairment
of either upper extremity related to the conditions that were accepted under this claim.
Dr. Sawyer explained that neither CTS nor cubital tunnel syndrome were accepted conditions,
nor was there any reason for accepting them.
By decision dated August 7, 2013, OWCP affirmed its August 9, 2012 decision finding
that the evidence of record failed to establish a permanent impairment to a member or function of
the body. It noted that the new evidence submitted did not demonstrate impairment of the upper
extremities caused by injury to a spinal nerve because the conditions of right CTS and left cubital
tunnel syndrome were not accepted as related to the January 2, 2009 employment incident.
On July 31, 2014 appellant, through counsel, requested reconsideration of OWCP’s
decision. He asserted that a new July 3, 2014 report from Dr. Jacob E. Tauber, a Board-certified
orthopedic surgeon, established work-related radiculopathy and bilateral CTS entitling appellant
to a schedule award for both upper and lower extremities.
In a June 11, 2014 report, Dr. O’Sullivan noted that a May 28, 2014 MRI scan of the
lumbar spine revealed herniated disc at L4-5.
In a June 13, 2014 diagnostic report, Dr. Zakir Ali, a Board-certified neurologist, reported
that electromyography (EMG) and nerve conduction velocity (NCV) studies of the right median
motor nerve showed prolonged distal onset latency and decreased conduction velocity
(elbow/wrist). He noted that all remaining nerves were within normal limits and all examined
muscles showed no evidence of electrical instability. Dr. Ali noted that appellant’s right arm and
leg revealed normal findings. Appellant’s examination findings were noted as mild right CTS
with no proximal median neuropathy, normal right ulnar tibial and peroneal nerves, no right
sided cervical or lumbar radiculopathy, and no polyneuropathy, myopathy, or motor neuron
disease.
In a June 13, 2014 addendum report, Dr. Ali reported that appellant complained of
numbness in the arms and legs and had artificial disc replacement a few years ago. He noted that
5

A.M.A., Guides 449.

6

Dr. Sawyer’s credentials could not be verified.

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appellant’s electrodiagnostic studies did not reveal any significant abnormalities. Dr. Ali noted
mild right CTS. He explained that there were no peripheral neuromuscular causes of appellant’s
symptoms. With regard to whether there could be cervical myelopathy, Dr. Ali stated that
appellant’s 2012 MRI scan showed no structural abnormality in the cervical spinal cord.
In a July 3, 2014 report, Dr. Tauber reported that appellant underwent electrical studies
on June 13, 2014 documenting right CTS. He also noted broad based posterior disc protrusion at
L4-5. Dr. Tauber noted that a May 20, 2014 evaluation revealed decreased sensation to pinprick
in both hands and positive Tinel’s signs at both wrists. Appellant also had positive straight leg
raising testing bilaterally and decreased sensation to pinprick along the medial aspect of both
feet. Dr. Tauber diagnosed status post artificial disc replacements with residual radiculopathy,
bilateral CTS, and sciatica. He opined that appellant had reached MMI. Dr. Tauber noted that
appellant began working for the employing establishment in April 2007 as a mail processing
clerk where he carried out extensive repetitive motion duties and worked on machines and
pushed racks. In addition, appellant was pushing a mail rack which weighed 800 to 1,200
pounds when he felt a popping sensation. He was ultimately noted to have CTS as well as
pathology in his cervical and lumbar spine with disc protrusions.
Dr. Tauber opined that appellant’s anatomic conditions in his cervical and lumbar spine,
as well as his nerve entrapments, were related to his employment duties. He noted that appellant
never had complaints in his cervical or lumbar spine until the specific work injury occurred.
Dr. Tauber noted that there was likely some contribution to the cervical and lumbar pathology
from his repetitive and strenuous motion duties and that the January 2, 2009 work incident
caused a permanent aggravation. He opined that appellant’s work duties caused and contributed
to the anatomic pathology in his spine, that there was a permanent aggravation as a result of the
specific work injury in 2009, and that in all probability there was contribution to the anatomic
pathology from his repetitive duties in the course of his employment.
Dr. Tauber noted that appellant’s CTS was present bilaterally. Using the sixth edition of
the A.M.A., Guides, he opined that appellant’s sensory dysfunction for bilateral CTS amounted
to five percent permanent impairment of the left upper extremity, and five percent permanent
impairment of the right upper extremity.7 Using The Guides Newsletter, Dr. Tauber noted that
appellant had six percent permanent impairment of the left upper extremity, and six percent
permanent impairment for the right upper extremity due to his bilateral C6 radiculopathy.
Combining the values he concluded that appellant was entitled to 11 percent upper extremity
permanent impairment on the left and 11 percent on the right.8 With respect to the lower
extremities, Dr. Tauber noted a sensory deficit in the L5 distribution which would total three
percent permanent impairment of each lower extremity.
In a September 5, 2014 report, Dr. O’Sullivan reported that appellant’s work duties
continued and caused the anatomic pathology that was present in his spine. He opined that there
was a permanent aggravation as a result of the 2009 work injury and a contribution from his
repetitive employment duties. Dr. O’Sullivan diagnosed herniated disc at L4-5, shoulder
7

Id.

8

Supra note 3 at Table 1.

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impingement syndrome, and mechanical axial neck and left radicular arm pain status post twolevel disc replacement C5-6, C6-7.
By decision dated October 23, 2014, OWCP denied modification of the August 7, 2013
decision finding that the evidence of record failed to establish a permanent impairment to a
member or function of the body. It further found that the evidence of record failed to establish
that his lower back injury and CTS were related to the January 2, 2009 employment incident.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.9 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides (6th ed. 2009) has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.10
It is the claimant’s burden of proof to establish that he has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.11 OWCP
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of MMI), describes the impairment in sufficient detail so
that it can be visualized on review, and computes the percentage of impairment in accordance
with the A.M.A., Guides.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.14
9

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

10

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
11

Tammy L. Meehan, 53 ECAB 229 (2001).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (February 2013).
13

Pamela J. Darling, 49 ECAB 286 (1998).

14

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

7

The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.15 For peripheral nerve impairments to the upper
or lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.16 FECA approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities.17
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.18
ANALYSIS
OWCP accepted appellant’s claim for sprain of neck, displacement of cervical
intervertebral disc without myelopathy, and intervertebral disc disorder with myelopathy left
cervical region. On November 9, 2010 appellant underwent anterior discectomy and artificial
disc replacement at C5-6 and C6-7. The Board notes that a schedule award is not payable under
FECA for injury to the spine19 or based on whole person impairment.20 However, a claimant
may be entitled to a schedule award for permanent impairment to an extremity even though the
cause of the impairment originated in the spine.21 The issue is whether appellant sustained a
permanent impairment as a result of his employment-related work injuries. The Board finds that
appellant has failed to submit sufficient evidence to establish that, as a result of his employment
injury, he sustained any permanent impairment to a scheduled member warranting a schedule
award.22
In a June 27, 2011 report, Dr. Purtzer opined that appellant was entitled to 25 percent
whole person impairment due to his disc herniation and residual multiple level radiculopathy.
Dr. Stewart, serving as an OWCP DMA, disagreed with Dr. Purtzer’s report and opined that
appellant had not yet reached MMI as he had neck surgery less than one year prior. He further
noted that appellant had no ratable impairment of either upper or lower extremities as there was
no evidence of nerve root injury or radiculopathy. The Board finds that the report of Dr. Purtzer
is insufficient to establish appellant’s claim for a schedule award. There is no statutory basis for
15

Supra note 12 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

16

See G.N., Docket No. 10-850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4.
17

Supra note 12 at 2.808.5c(3).

18

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
19

Pamela J. Darling, 49 ECAB 286 (1998).

20

N.M., 58 ECAB 273 (2007).

21

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

22

W.R., Docket No. 13-492 (issued June 26, 2013).

8

the payment of a schedule award for whole body impairment under FECA. Payment is
authorized only for the permanent impairment of specified members, organs, or functions of the
body.23 Similarly, Dr. O’Sullivan’s August 15, 2012 report is also insufficient to establish
appellant’s claim as he also provided a rating of 25 percent whole person permanent
impairment.24
In support of his schedule award claim, appellant also submitted reports dated April 24
and July 11, 2013 from Dr. Bernhard. In his April 24, 2013 report, Dr. Bernhard noted that an
April 12, 2013 electrodiagnostic study demonstrated cervical radiculopathy, right CTS, and
possible left cubital tunnel syndrome. He explained that these findings were corroborated by
weakness in grip and consistent with some radicular changes, opining that appellant’s workrelated injury produced subjective and objective findings. In his July 11, 2013 supplemental
report, Dr. Bernhard opined that appellant had three percent right upper extremity permanent
impairment for carpal tunnel entrapment compression neuropathy and three percent left upper
extremity impairment of the ulnar nerve on the left hand for cubital tunnel syndrome. He further
argued that the electrodiagnostic study showed both right CTS and ulnar nerve at the left elbow
which were corroborated by the presence of a radiculopathy since the nerve to the carpal tunnel
and ulnar nerves were supplied by the roots affected by the cervical disc replacement.
Dr. Bernhard noted that there was evidence of motor impairment as there was 4/5 muscle
strength consistent with radiculopathy and the nerves supplying the weakened muscles affected
at the appropriate level.
The Board finds that the reports of Dr. Bernhard are insufficient to establish that
appellant sustained three percent impairment to each upper extremity. Dr. Bernhard’s
assessment pertaining to the spinal nerve injury utilized diagnoses of right CTS and ulnar nerve
at the left elbow to determine appellant’s upper extremity impairment rating. The Board notes
that those conditions have not been accepted by OWCP as related to the January 2, 2009
employment incident.25 OWCP’s procedure manual provides that impairment ratings for
schedule awards include those conditions accepted by OWCP as work related, and any
preexisting permanent impairment of the same member or function. If the work-related injury
has affected any residual usefulness in whole or in part, a schedule award may be appropriate.26
In reports dated May 30 and July 31, 2013, Dr. Stewart, an OWCP DMA, explained that
electrodiagnostic studies performed by the physician only demonstrated right CTS with no
evidence of a general neuropathy or radiculopathy. He noted that CT and MRI scan studies
revealed negative findings. The only abnormal finding was the mild right carpal tunnel which
was not evidence of general radiculopathy. Dr. Stewart concluded that upper extremity
impairment was unsupported by clinical or physical findings and there was nothing in the record
to support the existence of any degree of permanent partial impairment based on bilateral upper
23

Tania R. Keka, 55 ECAB 354 (2004).

24

Supra note 18.

25

R.W., Docket No. 15-1121 (issued August 12, 2015).

26

Supra note 12 at Chapter 2.808.5 (d) (February 2013).
253 (1983).

9

See also Raymond E. Gwynn, 35 ECAB 247,

extremity radiculopathy. The DMA disagreed with Dr. Barnhard’s rating of three percent
permanent impairment for each upper extremity, explaining that neither CTS nor cubital tunnel
syndrome were accepted conditions, nor was there any reason for accepting them.
Dr. Stewart’s assessment that appellant has no ratable impairment to the upper
extremities was further supported by the medical evidence of record. In a June 2, 2012 second
opinion evaluation, Dr. Curcin noted that physical examination and review of recent
electrodiagnostic studies revealed no objective findings pertaining to the upper or lower
extremities which would warrant an impairment rating. On August 1, 2012 Dr. Sawyer, an
OWCP DMA, reviewed the case file and agreed with Dr. Curcin that there was no ratable
impairment to the upper or lower extremities. He noted that continued complaints with regard to
the extremities were based on subjective findings and not supported physiologically as objective
findings revealed no functional impairment.
Following OWCP’s August 7, 2013 denial of appellant’s schedule award claim, counsel
for appellant submitted Dr. Tauber’s July 31, 2014 report in support of 11 percent permanent
impairment to each upper extremity. The Board finds that Dr. Tauber’s report is insufficient to
establish appellant’s claim for a schedule award.27
In his July 3, 2014 report, Dr. Tauber reported that appellant underwent electrodiagnostic
studies on June 13, 2014 documenting right CTS. He further noted broad-based posterior disc
protrusion at L4-5. Dr. Tauber noted that a May 20, 2014 evaluation revealed decreased
sensation to pinprick in both hands and positive Tinel’s signs at both wrists. Appellant also had
positive straight leg raise testing bilaterally and decreased sensation to pinprick along the medial
aspect of both feet. Dr. Tauber diagnosed status post artificial disc replacements with residual
radiculopathy, bilateral CTS, and sciatica. He noted that appellant began working for the
employing establishment in April 2007 as a mail processing clerk where he carried out extensive
repetitive motion duties and worked on machines and pushed racks. In addition, appellant was
pushing a mail rack which weighed 800 to 1,200 pounds when he felt a popping sensation.
Appellant was ultimately noted to have CTS confirmed as well as pathology in his cervical and
lumbar spine with disc protrusions.
The Board finds that Dr. Tauber’s report is insufficient to establish that the above-listed
injuries resulted from the January 2, 2009 employment incident.28 Dr. Tauber opined that
appellant’s anatomic conditions in his cervical and lumbar spine, as well as his nerve
entrapments, were related to his employment duties. He noted that appellant had no complaints
in his cervical or lumbar spine until the specific work injury occurred. The Board has held that
an opinion that a condition is causally related because the employee was asymptomatic before
the injury is insufficient, without adequate rationale, to establish causal relationship.29
Dr. Tauber also noted that there was likely some contribution to the cervical and lumbar
27

D.U., Docket No. 13-2086 (issued February 11, 2014).

28

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

29

M.R., Docket No. 14-11 (issued August 27, 2014); T.M., Docket No. 08-975 (issued February 6, 2009);
Michael S. Mina, 57 ECAB 379 (2006).

10

pathology from his repetitive and strenuous motion duties and that the January 2, 2009 work
incident caused a permanent aggravation. As he indicated that appellant suffered from these
conditions prior to the January 2, 2009 employment incident, a well-rationalized opinion is
particularly warranted in this case due to appellant’s history of preexisting conditions.30 Yet
Dr. Tauber failed to discuss how the preexisting conditions had progressed beyond what might
be expected from the natural progression of that condition.31 Moreover, it appears that he is
attributing appellant’s conditions to an occupational injury produced by his work environment
over a period longer than a single workday or shift claim.32 Dr. Tauber’s opinion pertaining to
appellant’s work-related duties as the cause of his injuries does not provide support for a
schedule award arising from this traumatic injury claim.33
Dr. Tauber’s opinion regarding radiculopathy is also unsupported by the medical
evidence of record. Dr. Ali’s electrodiagnostic study found testing of the right arm and leg
revealed normal findings. He also specifically stated that the studies showed no support for any
left upper extremity impairment or radiculopathy, contrary to Dr. Tauber’s assessment. It is
unclear how Dr. Tauber reached his conclusions as he disregarded the findings of Dr. Ali who
submitted appellant for diagnostic testing on June 13, 2014 at his request. Dr. Tauber either did
not review the relevant medical evidence of record or have an accurate history of injury as his
opinion is unsubstantiated by objective findings. His opinion on causation is of no probative
value and is unsupported by the diagnostic evidence of record. Appellant’s injuries pertaining to
the spinal nerve involve the cervical spine. The sensory deficit L5 distribution is unrelated to
this particular cervical injury and does not warrant any impairment pertaining to the lower
extremities. While Dr. Tauber made reference to the A.M.A., Guides and The Guides Newsletter
when calculating appellant’s impairment rating, his opinion is not supported by the medical
evidence of record or the most recent diagnostic testing.34
Dr. O’Sullivan’s September 5, 2014 report is also insufficient to establish appellant’s
claim as it mimics the conclusions reached in Dr. Tauber’s report, finding 11 percent permanent
impairment for each upper extremity.35 The medical evidence of record fails to establish ratable
impairment of the upper extremities related to the January 2, 2009 employment injury.36
On appeal, counsel argues that prior medical reports documented radiculopathy and left
upper extremity with weakness. He references an August 19, 2010 referee opinion pertaining to
30

K.P., Docket No. 14-1330 (issued October 17, 2014).

31

R.E., Docket No. 14-868 (issued September 24, 2014).

32

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
33

S.R., Docket No. 12-1098 (issued September 19, 2012).

34

E.J., Docket No. 12-1948 (issued June 5, 2013).

35

Id.

36

E.W., Docket No. 12-772 (issued June 13, 2013).

11

authorization for disc replacement surgery by Dr. Gerard H. Dericks, a Board-certified
orthopedic surgeon, as support for his argument. The Board notes that the issue on appeal is
whether appellant is entitled to a schedule award after having reached MMI. As Dr. Dericks’
opinion was provided prior to appellant’s surgery on November 9, 2010, his report is of little
probative value because MMI had not been reached. The older medical reports referenced by
counsel are insufficient to establish appellant’s claim for a schedule award. The Board has held
that stale medical evidence cannot form the basis for current evaluation of residual
symptomology or disability determination.37
Counsel also argues that OWCP erred in its procedures by not requesting a supplemental
report from Dr. Purtzer who provided a rating of 25 percent whole person permanent
impairment. While the physician may have determined that MMI had been reached, he failed to
give a proper impairment rating in accordance with FECA.38 OWCP properly referred the case
for a second opinion evaluation with Dr. Curcin.39 Following Dr. Curcin’s second opinion
evaluation, it followed its procedures by routing the case file to an OWCP DMA.40
It is appellant’s burden of proof to establish a permanent impairment of a scheduled
member as a result of an employment injury.41 He did not submit such evidence and thus,
OWCP properly denied his schedule award claim.42
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent impairment of a scheduled
member warranting a schedule award.

37

See Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two
years old deemed invalid basis for disability determination and loss of wage-earning capacity determination).
38

Supra note 21.

39

If the claimant does not provide an impairment evaluation from his/her physician when requested, and there is
an indication of permanent impairment in the medical evidence of file, the claims examiner (CE) should refer the
claimant for a second opinion evaluation. The CE may also refer the case to the DMA prior to scheduling a second
opinion examination to determine if the evidence in the file is sufficient for the DMA to provide an impairment
rating. Supra note 12 at Chapter 2.808.6(d) (February 2013).
40

Id. at Chapter 2.808.6(f).

41

Tammy L. Meehan, 53 ECAB 229 (2001).

42

V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

12

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 23, 2014 is affirmed.
Issued: April 18, 2017
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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Milford, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0880
Issued: November 16, 2018

Case Submitted on the Record

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

JURISDICTION
On March 19, 2018 appellant, through counsel, filed a timely appeal from a February 7,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to factors of his federal employment.
FACTUAL HISTORY
On November 17, 2016 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that, due to a prior accepted left knee injury for which he had
a knee replacement, he had been favoring his right knee. He claimed that his continued job duties
caused him to develop right knee arthritis.3 The employing establishment indicated that appellant
was working full duty and had not been out of work due to this claimed injury. In a supplemental
statement, appellant indicated that he had been a letter carrier for almost 30 years, which required
him to walk many miles a day. He described job duties from casing mail in the morning to carrying
mail to many addresses, ascending and descending stairs and hills, and getting in and out of postal
vehicles. Appellant maintained that these job duties and his prior left knee injury caused the
claimed injury of arthritis to his right knee.
Appellant submitted an operative report which related that he underwent right knee total
arthroplasty on February 4, 2015.4
By development letter dated November 30, 2016, OWCP informed appellant of the type of
evidence needed to establish his claim. This was to include a physician’s opinion supported by
medical rationale explaining how the claimed work activities caused, contributed to, or aggravated
the claimed condition. OWCP provided appellant 30 days to submit the necessary evidence. In a
separate letter it asked the employing establishment to comment on the claim.
In response appellant submitted an OWCP form questionnaire in which he wrote: “see
previously submitted statement” regarding his job duties. He indicated that medical rationale
would be submitted.
By decision dated January 20, 2017, OWCP denied appellant’s claim, finding that the
medical evidence submitted was insufficient to establish that a medical condition was diagnosed
in connection with the claimed work factors.
On January 27, 2017 appellant, through counsel, requested a hearing before an OWCP
hearing representative.
During the hearing, held on July 14, 2017, counsel asserted that appellant’s job duties and
the fact that he favored his right leg due to the accepted left knee injury caused his right knee
condition. Appellant testified regarding his job duties and indicated that he was still working as a
letter carrier. OWCP’s hearing representative described the type of medical evidence needed.
3

The instant claim was adjudicated by OWCP under File No. xxxxxx639. Appellant indicated that his prior left
knee injury was adjudicated under OWCP File No. xxxxxx495.
4

The operative note is essentially illegible.

2

In a March 22, 2017 report, Dr. David Weiss, an osteopath Board-certified in nonsurgical
orthopedic surgery, noted examining appellant that day. He described appellant’s work history,
and his complaints of right knee pain and stiffness. Dr. Weiss noted that appellant reported that his
letter carrier duties exacerbated his pain, and that he had difficulty with prolonged walking. He
described November 22, 2013 right knee magnetic resonance imaging (MRI) scan findings of
degenerative arthritis and noted that appellant had undergone right knee arthroplasty on
February 4, 2015. Dr. Weiss noted that appellant’s examination findings included a normal gait.
The right knee joint was boggy, consistent with reactive synovitis. Patellofemoral compression
and inhibition sign produced retropatellar pain, and tenderness was noted along the undersurface
of the medial patellar facet. The knee was stable to both valgus and varus stress testing, and
Lachman and drawer signs were negative. Dr. Weiss diagnosed cumulative and repetitive trauma
disorder, occupational right knee syndrome, and status post right total knee arthroplasty. He
concluded that appellant’s cumulative and repetitive occupational trauma was the competent
producing factor of his subjective and objective findings.5
By decision dated September 1, 2017, OWCP’s hearing representative modified the
January 20, 2017 decision to reflect that appellant had established the medical component of fact
of injury. She also found, however, that Dr. Weiss did not provide medical rationale for his
opinion that appellant’s right knee condition was employment related, and that the medical records
of appellant’s other treating physicians were not found in the record for this claim. The hearing
representative therefore affirmed the January 20, 2017 as modified to reflect that causal
relationship had not been established.
On November 17, 2017 appellant, through counsel, requested reconsideration. He
submitted a November 6, 2017 report in which Dr. Weiss cited to medical publications and
indicated that “arthritis means joint inflammation.” Appellant related that osteoarthritis was
believed to be caused by mechanical stress on a joint and low-grade inflammatory process,
characterized by worn cartilage due to a degenerative “wear and tear” process. Dr. Weiss opined
that it was reasonable to assume that the more wear and tear there was on a joint, the greater the
risk of osteoarthritis, and that the risk of osteoarthritis in a joint was greater with jobs that resulted
in a high level of joint stress, e.g., an increased risk was found in developing knee osteoarthritis in
those who lifted, walked, climbed, and worked standing up. He concluded that he stood by his
opinion that appellant had work-related injuries to appellant’s right knee related to his employment
duties which entailed repetitive and prolonged standing, walking, walking up and down hills, stair
climbing, and casing mail.
By decision dated February 7, 2018, OWCP denied modification of its prior decision,
finding that Dr. Weiss’ November 6, 2017 report was insufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
5

Dr. Weiss also provided a right knee impairment evaluation.

6

Supra note 2.

3

United States within the meaning of FECA, and that the claim was timely filed within the
applicable time limitation period of FECA.7 When an employee claims that he or she sustained an
injury in the performance of duty,8 he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident, or exposure occurring at the time, place, and in the
manner alleged.9 The employee must also establish that such event, incident, or exposure caused
an injury.10 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.11
OWCP’s regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”12 To
establish that, an injury was sustained in the performance of duty in an occupational disease claim,
a claimant must submit the following: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant. The medical opinion must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.13
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.14 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.15
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.16

7

5 U.S.C. § 8101(1); L.M., Docket No. 16-0143 (issued February 19, 2016); B.B., 59 ECAB 234 (2007).

8

Id. at § 8102(a).

9

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

10

Id.

11

R.H., 59 ECAB 382 (2008).

12

20 C.F.R. § 10.5(ee).

13

Roy L. Humphrey, 57 ECAB 238 (2005).

14

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

15

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

16

Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his
diagnosed right knee conditions were causally related to the accepted employment factors.
While the record contains several reports from Dr. Weiss, the Board finds that he did not
provide sufficient explanation and rationale regarding whether the right knee conditions he
diagnosed were caused or aggravated by appellant’s work duties. A mere conclusion without the
necessary rationale explaining how and why specific duties resulted in a diagnosed condition is
insufficient to meet a claimant’s burden of proof.17 Dr. Weiss only generally described appellant’s
work duties. He expressed no knowledge of the amount of time appellant spent performing the
work activities he listed, and he provided no explanation as to the mechanics of how the listed
work duties resulted in appellant’s diagnosed conditions. Furthermore, Dr. Weiss did not link
appellant’s diagnosed right knee condition to his work-related left knee injury under OWCP File
No. xxxxxx495. Thus, his reports are insufficient to meet appellant’s burden of proof.18
As the record is devoid of rationalized medical opinion evidence explaining how or why
appellant’s employment duties either caused or contributed to his diagnosed conditions, appellant
has not met his burden of proof to establish causal relationship.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted factors of his federal employment.

17

Y.R., Docket No. 17-1521 (issued December 28, 2017).

18

See M.R., Docket No. 16-1851 (issued January 19, 2018).

19

E.M., Docket No. 18-0275 (issued June 8, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the February 7, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Syracuse, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Christina Faliero, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1142
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 22, 2021 appellant filed a timely appeal from a May 25, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated May 8, 2020, 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
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 25, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 17, 2019 appellant, then a 58-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on May 17, 2019 he injured his right hip when he slipped and fell
on a patient’s urine while in the performance of duty. He indicated that he did “the splits” with
his right leg slid backwards behind him and felt immediate discomfort in the area of the right
posterior hip. Appellant did not stop work.
In a medical report dated August 6, 2019, Dr. Michael T. Clarke, a Board-certified
orthopedic surgeon, indicated that appellant related complaints of right hip pain , which he
attributed to hyperextending the right hip when he slipped in liquid on May 17, 2019. He noted
that he experienced immediate pain in the posterior right hip and, on physical examination, he
documented mild deep hip irritation, tenderness over the ischial tuberosity, and pain with
hyperextension. Dr. Clarke reviewed x-rays, which revealed mild degenerative changes and
femoral neck thickening. He diagnosed right hip pain and offered a differential diagnosis of
potential hamstring tear versus posterior labral tear. Dr. Clarke recommended magnetic resonance
imaging (MRI) scan of the right hip.
A report of an MRI scan of the right hip dated August 30, 2019 demonstrated mild
osteoarthropathy, a tear of the anterior superior labrum, and a mild partial tear of the right common
hamstring origin.
In a follow-up report dated September 6, 2019, Dr. Clarke reviewed the MRI scan results
and diagnosed right hip pain. He opined that appellant’s pain was originating in the proximal
hamstring, and that the May 17, 2019 employment incident was a competent medical cause of the
injury. Dr. Clarke recommended physical therapy and medication.
In an October 18, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary, including a
narrative medical report from his treating physician containing a detailed description of findings
and a diagnosis, explaining how his work activities caused, contributed to, or aggravated his
medical conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a report dated October 1, 2019 from Elizabeth Lannier, a
physical therapist, who noted that appellant related right hip pain, which he attributed to a workrelated hyperextension injury of the right hip. Ms. Lannier recommended various therapeutic
exercises and modalities. Additional notes dated October 3 through November 5, 2019
documented physical therapy treatments for the right hip.
In a follow-up report dated October 22, 2019, Dr. Clarke diagnosed right hip pain and
hamstring tendinosis. He performed a cortisone and lidocaine injection.
In an attending physician’s report (Form CA-20) dated November 14, 2019, Dr. Clarke
diagnosed right hip labral tear, right hip partial tear common hamstring, right hamstring tendinosis,
2

and right hip pain. He answered in the negative as to whether appellant had a history of a
preexisting injury and checked a box marked “Yes” indicating that the diagnosed conditions were
caused when appellant hyperextended his right hip after slipping on a vinyl floor at work.
By decision dated November 27, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted medical evidence establishing a causal relationship between his
diagnosed conditions and the accepted May 17, 2019 employment incident. Consequently, it
found that he had not met the requirements to establish an injury or medical condition causally
related to the accepted employment incident.
OWCP continued to receive evidence including physical therapy notes dated November 8
through 29, 2019.
In a December 3, 2019 follow-up note, Dr. Clarke noted that appellant had experienced
significant relief of his right hip pain f ollowing the cortisone injection and opined that his
complaints and examination findings were related to the May 17, 2019 employment incident.
In a report dated January 14, 2020, Dr. Clarke indicated that appellant was working full
duty with ongoing complaints of discomfort in his right buttock. He diagnosed right hip pain and
ischial tendinosis of the hamstring insertion and opined that forcible contraction of the hamstring
during his fall “could clearly have caused this problem” and “should be related to” his claim.
Dr. Clarke injected the area with a steroid.
On February 21, 2020 appellant requested reconsideration of OWCP’s November 27, 2019
decision.
By decision dated May 8, 2020, OWCP denied modification of its prior decision, finding
that appellant had not provided rationalized medical opinion eviden ce supporting causal
relationship between his accepted employment incident and his diagnosed medical conditions .
On May 6, 2021 appellant, through counsel, requested reconsideration of the May 8, 2020
decision. Counsel contended that OWCP erred in issuing its May 8, 2020 decision. She explained
that Dr. Clarke’s medical reports were sufficient to establish causal relationship and that his reports
were not speculative.
By decision dated May 25, 2021, OWCP denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a), finding that his request for reconsideration
neither raised substantial legal questions, nor included new or relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain

4

5 U.S.C. § 8128(a).

3

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
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In support of his request for reconsideration, appellant, through counsel, argued that OWCP
erred in finding that his claim required a fully rationalized medical opinion in order to establish a
causal relationship between his diagnosed medical conditions and the accepted May 17, 2019
employment incident. The Board finds, however, that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a relevant legal
argument not previously considered by OWCP. Accordingly, he is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3). 9
Appellant also did not submit any new medical evidence. The underlying issue in this case
is causal relationship, which is medical in nature, and he did not submit any pertinent new and
relevant medical evidence not previously considered by OWCP. Therefore, appellant is not
entitled to further review of the merits of his claim based on the third requirement under section
10.606(b)(3). 10

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041 (issued
October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
10

See 20 C.F.R. § 10.606(b)(3)(iii).

4

The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Germantown, WI, Employer
__________________________________________

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

Docket No. 18-0400
Issued: August 24, 2018

Case Submitted on the Record

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

JURISDICTION
On December 20, 2017 appellant filed a timely appeal from an October 6, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed since the last merit decision dated May 24, 2017, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 6, 2017 nonmerit decision, OWCP received additional evidence.
Appellant also submitted additional evidence with her appeal to the Board. However, the Board’s jurisdiction is
limited to the evidence that was in the record at the time OWCP issued its final decision. Thus, the Board is precluded
from reviewing this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On November 8, 2016 appellant, then a 63-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her right shoulder on that date while working with
letters and flats. She stopped work on November 8, 2016.
In support of her claim appellant submitted magnetic resonance imaging (MRI) scans dated
November 14 and 21, 2016. She also submitted disability notes with work restrictions dated
November 8 and 11, 2016 from Dr. Andrew M. Knoernschild, a treating Board-certified family
medicine physician, which related that she could return to work on November 11, 2016 with
restrictions regarding the use of her right arm. Progress notes dated November 8, 11, and 14, 2016
from Dr. Knoernschild, reported a history of injury, provided examination findings, and diagnosed
right shoulder strain.
In a November 14, 2016 work restriction form, Dr. Timothy J. Morton, a treating physician
specializing in orthopedic surgery, diagnosed right shoulder strain, which he concluded was work
related, and noted an injury date of November 8, 2016. He released appellant to light-duty work.
By development letter dated December 1, 2016, OWCP advised appellant that further
medical evidence was necessary to establish her claim. It informed her that medical evidence was
also necessary to establish any period of disability. OWCP afforded appellant 30 days to submit
the necessary evidence.
On December 6, 2016 appellant was seen by Dr. Morton for right shoulder complaints.
Dr. Morton reported that her examination was unchanged and she was to continue with light-duty
work.
Appellant submitted claims for compensation (Form CA-7) and Time Analysis Forms
(Form CA-7a) claiming intermittent wage loss for 74 hours3 for the period December 24, 2016 to
January 6, 2017 and 56 hours of LWOP for the period January 7 to 20, 2017.
By decision dated January 13, 2017, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that she sustained a right shoulder
condition causally related to the accepted November 8, 2016 employment incident.
In progress notes dated November 28 and December 19, 2016, and February 7 and 9, 2017,
Dr. Rory R. Wright, an examining Board-certified orthopedic surgeon, discussed appellant’s
medical treatment, reviewed diagnostic tests, and diagnosed right shoulder degenerative joint
disease, right shoulder rotator cuff disease, and right shoulder biceps tendon tear. On February 9,
2017 he attributed the acceleration in her right shoulder osteoarthritis to her prior shoulder surgery,
cumulative work exposure, and recent shoulder injuries.

3

In the employing establishment statement/certification, the employing establishment noted 80 hours of leave
without pay (LWOP) was verified, but noted 74 hours of LWOP and 6 hours worked in the designated columns on
the time analysis form (Form CA-7a).

2

A November 14, 2016 MRI scan of the right shoulder revealed no acute dislocation or
fracture, acromioclavicular (AC) joint disease, and glenohumeral osteoarthritis with large
osteophyte at humeral head inferior aspect.
In a November 17, 2016 report, Dr. Wright, an examining Board-certified orthopedic
surgeon, noted that appellant was seen on November 14, 2016 for a right shoulder injury sustained
at work on November 8, 2016. He noted her medical history and provided examination findings.
Dr. Wright diagnosed acute right shoulder injury due to a workplace injury and suspected rotator
cuff and bicipital injury. He indicated that appellant was capable of light-duty work.
A November 21, 2016 MRI scan revealed an abnormal right rotator cuff, mild rotator cuff
muscular atrophy, moderate AC joint degenerative arthritis, and severe full-thickness
chondromalacia of the humeral head and portions of the glenoid.
Dr. Morton, in November 28, 2016 progress notes, reported that appellant continued to
have right shoulder problems and had been evaluated by Dr. Wright. He recommended total right
shoulder replacement. Dr. Morton indicated that appellant would continue to work with
restrictions.
In a December 19, 2016 return to work authorization, Dr. Wright released appellant to
return to work on December 20, 2016 with restrictions.
In a February 24, 2017 letter, Dr. Wright explained why the requested total right shoulder
arthroplasty surgery was due to appellant’s federal employment duties and should be authorized
by OWCP.
On April 21, 2017 OWCP referred appellant for a second opinion evaluation with
Dr. David S. Haskell, a Board-certified orthopedic surgeon. In a May 10, 20174 report
Dr. Haskell, based upon a physical examination and review of the statement of accepted facts and
medical records, opined that the November 8, 2016 work incident caused a temporary aggravation
of her preexisting right shoulder degenerative glenohumeral joint arthritis. He also concluded that
there was no disability in connection with this injury. In support of this conclusion, Dr. Haskell
explained that appellant’s November 8, 2016 injury caused no permanent change or altered the
course of the underlying condition.
By decision dated May 24, 2017, OWCP granted modification of the denial of the claim
based on Dr. Haskell’s report. It found that the medical evidence of record was sufficient to
establish a temporary aggravation of preexisting right glenohumeral joint arthritis by the accepted
November 8, 2016 work injury. However, OWCP further found that the medical evidence of
record was insufficient to establish a period of disability.

4
The date on the report is May 8, 2017, which appears to be a typographical error as appellant was examined by
Dr. Haskell on May 10, 2017.

3

By separate decision dated May 24, 2017, OWCP accepted appellant’s claim for temporary
aggravation of preexisting right shoulder glenohumeral joint arthritis, which it found had resolved
by May 10, 2017.
Subsequent to the acceptance of her claim, OWCP received previously submitted MRI
scans dated November 14 and 21, 2016 and reports from Drs. Haskell, Morton, Knoernschild, and
Wright.
On July 11, 2017 appellant requested reconsideration.
On August 1, 2017 OWCP received a June 8, 2017 work authorization from Dr. Wright
releasing appellant to light-duty work pending surgery. The diagnosis was right shoulder pain,
which he opined was work related.
By decision dated October 6, 2017, OWCP denied appellant’s request for reconsideration.
It found that the evidence was insufficient to warrant merit review of the decision dated May 24,
2017 as the evidence submitted with the request for reconsideration was irrelevant or duplicative
and thus had no bearing on the issue of entitlement to intermittent wage-loss compensation.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.8 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9

5

5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).
6
20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.607(a).

8

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

9

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

4

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, nor did she advance a relevant legal argument not previously considered by OWCP.10 As
such, she was not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(3).11
A claimant may also be entitled to a merit review by submitting relevant and pertinent new
evidence.
The underlying issue on reconsideration is medical in nature, whether appellant’s disability
was causally related to the accepted November 8, 2016 employment injury. She submitted new
evidence in the form of a June 8, 2017 work authorization from Dr. Wright diagnosing workrelated right shoulder pain and releasing appellant to light-duty work. This form report, however,
did not discuss or offer any opinion regarding whether appellant’s intermittent disability for the
period December 24, 2016 to January 20, 2017 was causally related to the accepted November 8,
2016 employment injury. The Board has held that evidence which does not address the particular
issue involved does not constitute a basis for reopening a case.12
Appellant also resubmitted medical evidence by Drs. Haskell, Morton, Knoernschild, and
Wright and MRI scans dated November 14 and 21, 2016. The Board finds that the submission of
these reports would not require OWCP to reopen her case for further review of the merits of the
claim because the Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record does not constitute a basis for reopening
a case.13
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law, nor did it advance a point of law not previously considered by OWCP.
She also did not submit relevant and pertinent new evidence. Therefore, pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied appellant’s request for reconsideration of the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128(a).

10

See J.F., Docket No. 16-1233 (issued November 23, 2016).

11

Supra note 6 at § 10.606(b)(3).

12

D’Wayne Avila, 57 ECAB 642 (2006).

13

Candace A. Karkoff, 56 ECAB 622 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 6, 2017 is affirmed.
Issued: August 24, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Trenton, NJ, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-463
Issued: July 6, 2007

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 December 8, 2006 appellant filed a timely appeal from the November 21, 2006 merit
decision of the Office of Workers’ Compensation Programs, which granted a schedule award for
increased impairment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the schedule award.
ISSUE
The issue is whether appellant has more than a 26 percent permanent impairment of his
left lower extremity.
FACTUAL HISTORY
On July 29, 1994 appellant, then a 36-year-old letter carrier, twisted his left knee in the
performance of duty: “Walking down steps the left knee gave out and he caught himself before
he could fall.” The Office accepted his claim for left knee strain and torn medial meniscus and
authorized surgical repairs. Appellant received a schedule award for a 13 percent permanent
impairment of his left lower extremity.

On the first appeal,1 the Board remanded the case to the Office for further development of
the schedule award issue in light of appellant’s January 8, 2002 left knee arthroscopy. On the
second appeal,2 the Board affirmed an Office decision denying an increased schedule award.
The Board found that the opinion of the impartial medical specialist was entitled to special
weight and established that appellant had no more than a 13 percent permanent impairment of his
left lower extremity. On the third appeal,3 the Board remanded the case for a merit decision on
appellant’s claim for an increased schedule award. The facts of this case, as set forth in prior
Board decisions, are hereby incorporated by reference.
The Office referred appellant’s case to an Office medical adviser for review of the
July 29, 2004 impairment rating given by Dr. David Weiss, an osteopath, who determined that
appellant currently had a 30 percent impairment of his left lower extremity due to muscle
weakness and pain.
On November 17, 2006 the Office medical adviser noted that Dr. Weiss had improperly
combined a 12 percent impairment for muscle weakness with a 12 percent impairment for
another muscle weakness for a combined impairment of 27 percent. The Office medical adviser
reported that the combined impairment should instead be 23 percent. Following Dr. Weiss’ lead,
he increased the impairment for muscle weakness by 3 percent for pain-related impairment, for a
final rating of 26 percent.
In a decision dated November 21, 2006, the Office issued a schedule award for a 26
percent permanent impairment of the left lower extremity. On appeal, appellant asks the Board
to modify the Office’s decision to reflect the 30 percent rating given by Dr. Weiss, rather than
the smaller rating approved by the Office.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.5

1

Docket No. 03-911 (issued July 18, 2003).

2

Docket Nos. 04-342 & 04-464 (issued May 27, 2004).

3

Docket No. 06-570 (issued September 21, 2006).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001 the Office began using the A.M.A., Guides

th

2

ANALYSIS
The only difference between appellant’s osteopath, Dr. Weiss, and the reviewing Office
medical adviser is how to combine the two impairments for muscle weakness. Grading
appellant’s muscle function as Grade 4 (active movement against gravity with some resistance),6
Dr. Weiss determined that appellant had a 12 percent impairment due to weakness in knee
flexion and a 12 percent impairment due to weakness in knee extension.7 He combined these
two figures for a 27 percent impairment of the lower extremity. As the examples given in the
A.M.A., Guides show, multiple impairments are combined, but the Combined Values Chart8
reveals that a 12 percent impairment combines with a 12 percent impairment for a total of 23
percent, as the Office medical adviser properly reported.
Both Dr. Weiss and the Office medical adviser increased their ratings by three percent to
incorporate a pain-related impairment. The Board finds, however, that this is not warranted.
Discussing the difficulties associated with integrating pain-related impairment into an
impairment rating system, the A.M.A., Guides states:
“Finally, at a practical level, a chapter of the [A.M.A.,] Guides devoted to painrelated impairment should not be redundant of or inconsistent with principles
impairment rating described in other chapters.
The [A.M.A.,] Guides’
impairment ratings currently include allowances for the pain that individuals
typically experience when they suffer from various injuries or diseases, as
articulated in Chapter 1 of the [A.M.A.,] Guides: ‘Physicians recognize the local
and distant pain that commonly accompanies many disorders. Impairment ratings
in the [A.M.A.,] Guides already have accounted for pain. For example, when a
cervical spine disorder produces radiating pain down the arm, the arm pain, which
is commonly seen, has been accounted for in the cervical spine impairment rating’
(p. 10). Thus, if an examining physician determines that an individual has painrelated impairment, he or she will have the additional task of deciding whether or
not that impairment has already been adequately incorporated into the rating the
person has received on the basis of other chapters of the [A.M.A.,] Guides.”9
Without a sound explanation for incorporating pain-related impairment,10 Dr. Weiss has
not justified a three percent increase to appellant’s rating. The Board finds, therefore, that
appellant has no more than a 23 percent permanent impairment of his left lower extremity. The
Board will modify the Office’s November 21, 2006 decision accordingly.

6

A.M.A., Guides 531 (Table 17-7).

7

Id. at 532 (Table 17-8).

8

Id. at 604.

9

Id. at 570.

10

See id. (“When This Chapter Should Be Used to Evaluate Pain-Related Impairment”).

3

CONCLUSION
The Board finds that appellant has less than a 26 percent permanent impairment of his
left lower extremity. Dr. Weiss combined two values incorrectly and he did not justify an
increase of three percent for pain-related impairment.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2006 decision of the Office of
Workers’ Compensation Programs is modified to reflect a 23 percent permanent impairment of
the left lower extremity and is affirmed as modified.
Issued: July 6, 2007
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

4