United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
_________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1922
Issued: July 12, 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 September 12, 2017 appellant, through counsel, filed a timely appeal from a June 12,
2017 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 to consider the merits of the 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 more than 24 percent permanent impairment of her left
upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On June 2, 1997 appellant, then a 42-year-old mail hander, filed a traumatic injury claim
(Form CA-1) alleging that, on May 29, 1997, she was keying on a sack sorting machine when a
60-pound parcel came down the shoot and struck her in the back of her left shoulder and back of
her left upper arm. On July 24, 1997 OWCP accepted her claim for left shoulder strain.3 On
January 11, 2007 it expanded acceptance of the claim to include the additional condition of cervical
sprain.
In a report dated January 30, 2007, appellant’s attending physician, Dr. Anil K. Sharma, a
Board-certified in pain medicine and anesthesiology, diagnosed complex regional pain syndrome
(CRPS) of the left upper extremity. He opined that this condition was related to appellant’s initial
shoulder injury which had occurred almost 10 years prior.
On February 9, 2007 OWCP referred appellant for a second opinion evaluation with
Dr. Zohar Stark, a Board-certified orthopedic surgeon. In his February 22, 2007 report, Dr. Stark
found that her left shoulder sprain had resolved, but he noted neurogenic pain originating from her
cervical area.
In a letter dated June 29, 2007, OWCP referred appellant for an impartial medical
examination with Dr. Ian Fries, a Board-certified orthopedic surgeon, to resolve the conflict
between Drs. Sharma and Stark, regarding appellant’s current medical diagnosis and its
relationship to her accepted employment injuries. In his August 14, 2007 report, Dr. Fries noted
the accepted left shoulder and cervical strains and also diagnosed chronic degenerated C6-7 disc,
probable adhesive capsulitis left shoulder, global left upper extremity pain, nonphysiological
etiology, and unconfirmed total loss of sensation in left ring and little fingers. He found that
appellant had 22 percent permanent impairment of the left upper extremity based on the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4
Counsel requested a schedule award for appellant’s left upper extremity permanent
impairment on December 24, 2008 and provided a report dated October 14, 2008 from Dr. Arthur
Becan, an orthopedic surgeon. Dr. Becan diagnosed chronic post-traumatic cervical strain and
sprain, brachial plexus stretch injury to the left upper extremity, left carpal tunnel syndrome,
herniated C6-7 disc, labral tear of the left shoulder, aggravation of impingement syndrome of the
left shoulder, rotator cuff tendinopathy of the left shoulder, post-traumatic adhesive capsulitis of
the left shoulder, and chronic post-traumatic adhesive capsulitis of the left shoulder. He found that
3

The acceptance decision references a right shoulder strain, but this appears to be a typographical error given that
appellant’s claim form described only a left shoulder injury.
4

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

2

appellant had 40 percent permanent impairment of the left upper extremity under the fifth edition
of the A.M.A., Guides.
OWCP’s medical adviser, Dr. Henry J. Magliato, a Board-certified orthopedic surgeon,
reviewed Dr. Becan’s report on February 4, 2009 and recommended an additional impartial
medical examination due to the “considerable conflict of medical opinion between these various
examiners.”
Appellant filed a schedule award claim (Form CA-7) on February 18, 2009.
In a letter dated January 5, 2010, OWCP requested that Dr. Becan evaluate appellant’s
percentage of permanent impairment under the sixth edition of the A.M.A., Guides (2009).
On February 5, 2010 Dr. Becan updated his October 14, 2008 report and found that
appellant had a class 2 left brachial plexus impairment with mild sensory deficit and CRPS or 20
percent impairment. He also found that she had loss of range of motion (ROM) of the left shoulder
at 90 degrees of flexion and 80 degrees of abduction for nine percent permanent impairment.
Dr. Becan combined appellant’s upper extremity impairments to conclude that appellant had 32
percent permanent impairment of the left upper extremity and that she had reached maximum
medical improvement (MMI) on October 14, 2008.
On March 26, 2010 OWCP referred Dr. Becan’s updated medical report back to its medical
adviser, Dr. Magliato. In his March 29, 2010 report, Dr. Magliato applied Table 15-26 of the
A.M.A., Guides5 to Dr. Becan’s findings and determined that appellant had a class 1 impairment
with mild sensory deficit of the C7 nerve root. He utilized the grade modifiers as determined by
Dr. Becan and reached an impairment rating of 13 percent of the left upper extremity due to the
brachial plexus injury. Dr. Magliato further found that appellant had 9 percent impairment of the
left shoulder due to loss of ROM6 and combined these ratings to reach 21 percent impairment of
the left upper extremity. He found that Dr. Becan’s impairment rating of 32 percent permanent
impairment was too high and was based on the incorrect higher brachial plexus injury, rather than
the accepted cervical sprain although he “did compute values for the [b]rachial [p]lexus itself.”
Dr. Magliato found that appellant reached MMI on October 14, 2008.
On April 14, 2010 OWCP requested clarification from Dr. Magliato, noting that the
accepted conditions were sprain of the left shoulder and sprain of the neck. It asked whether
appellant had experienced a brachial plexus injury as a result of the May 29, 1997 employment
injury. Dr. Magliato responded on April 16, 2010 and noted that he awarded nine percent
permanent impairment due to loss of ROM of appellant’s shoulder. He opined that appellant had
not sustained an accepted brachial plexus injury and that Dr. Becan improperly included 13 percent
permanent impairment for brachial plexus injury in his permanent impairment rating for schedule
award purposes.

5

A.M.A., Guides, 454, Table 15-26.

6

Id., at 477, Table 15-35.

3

OWCP found a conflict of medical opinion between Dr. Becan and Dr. Magliato, and on
August 16, 2010 referred appellant, along with a statement of accepted facts (SOAF) and the
medical record, for an impartial medical examination with Dr. Michael H. Gordon, a Boardcertified orthopedic surgeon.
In his September 25, 2010 report, Dr. Gordon noted appellant’s history of injury on
May 29, 1997. He reviewed her medical records and performed a physical examination.
Dr. Gordon noted that appellant’s physical examination findings, including left shoulder ROM
with three measures of each, abduction of 50, 60, and 50 degrees on the left, adduction of 20, 25,
and 20 on the left, forward flexion of 50, 50, and 60 on the left, internal rotation of 20, 20, and 30
on the left, external rotation of 20, 10, and 5 on the left, and extension of 30, 20, and 30 degrees
on the left.
Dr. Gordon applied the sixth edition of the A.M.A., Guides to his findings on physical
examination considering appellant’s accepted conditions of cervical strain and sprain of the left
shoulder. He noted that ROM was used primarily as a physical examination adjustment factor and
only to determine actual impairment values when a grid permitted its use. Dr. Gordon further
noted that ROM rating could not be combined with other approaches under the A.M.A., Guides.
He found that appellant did not exhibit CRPS in her upper left extremity in accordance with the
A.M.A., Guides. Dr. Gordon reviewed the criteria including continuing pain disproportionate to
any inciting event, vasomotor changes, pseudomotor changes, trophic changes, and radiographic
studies. He determined that appellant exhibited none of these findings and further explained that
in his experience if she had severe loss of motor strength, then she would also exhibit significant
atrophy, which was not present on physical examination. Dr. Gordon found no objective criteria
for CRPS as set forth in the A.M.A., Guides.7 He further noted that the lack of atrophy in the left
upper extremity and lack of trophic changes were inconsistent with appellant’s complaints of total
loss of sensation in the left little finger and ring finger. Dr. Gordon concluded, based on his
experiences and the objective findings at the time of examination, that there was no CRPS due to
her accepted employment injuries. He further found that appellant’s physical examination did not
support either peripheral nerve involvement or brachial plexopathy on the left. Dr. Gordon noted
that there were no electromyograph findings compatible with these diagnoses and that her
objective findings did not support either of these diagnoses.8
Dr. Gordon applied Table 15-5 of the A.M.A., Guides,9 to address appellant’s diagnosed
condition of shoulder sprain and applied the ROM criteria. He found that flexion on the left of 50
degrees was nine percent permanent impairment of the upper extremity.10 Dr. Gordon determined
that 30 degrees of extension was 1 percent permanent impairment of the upper extremity, that 50
degrees of abduction was 6 percent permanent impairment of the upper extremity, adduction of 25
degrees was 1 percent permanent impairment, internal rotation of 20 degrees was 4 percent

7

A.M.A., Guides 453-54, Table 15-24; Table 15-25; Table 15-26.

8

Dr. Gordon did not address or make findings regarding appellant’s date of MMI.

9

A.M.A., Guides 401, Table 15-5.

10

Id. at 475, Table 15-34.

4

permanent impairment and external rotation of 20 degrees was 2 percent permanent impairment to
reach 23 percent permanent impairment of appellant’s left upper extremity.11
In a letter dated November 22, 2011, counsel noted that there was an outstanding schedule
award request and that appellant had attended an impartial medical examination with Dr. Gordon.
On February 3, 2012 he requested action from OWCP on her request for a schedule award. In a
letter dated May 2, 2012, counsel requested that OWCP, at a minimum, grant appellant a schedule
award for 23 percent permanent impairment of her left upper extremity in accordance with
Dr. Gordon’s report.
OWCP responded on May 16, 2012 and noted that Dr. Gordon’s report was improperly
reviewed by Dr. Magliato and that this report must be reviewed by a different OWCP medical
adviser.12 In a letter dated May 30, 2012, it reported that Dr. Gordon did not indicate that appellant
had reached MMI and that no further action could be taken on her schedule award claim until she
provided detailed medical evidence establishing that she had reached MMI.
In a letter dated June 28, 2012, counsel protested that Dr. Becan found that she had reached
MMI years prior and that Dr. Gordon was silent on this issue. In a letter dated March 1, 2013, he
again requested a final decision addressing appellant’s permanent impairment. On March 29, 2013
OWCP again indicated that she had not reached MMI. Counsel responded on May 3, 2013 and
noted that Dr. Becan found that appellant had reached MMI on October 14, 2008.
In a letter dated April 2, 2014, OWCP found a conflict of medical opinion evidence
between Drs. Becan and Magliato regarding appellant’s diagnosed condition. It referred her, a
SOAF, and a list of questions to Dr. Ian Fries, a Board-certified orthopedic surgeon, for an
impartial medical examination to resolve the disagreement. In a letter dated April 11, 2014,
counsel informed OWCP that Dr. Fries had previously examined appellant on August 8, 2007.
In a letter dated October 6, 2014, OWCP referred appellant, a SOAF, and a list of questions
to Dr. Robert Dennis, a Board-certified orthopedic surgeon, for an impartial medical examination
to resolve the issues of her diagnosis and the extent of her impairment for schedule award purposes.
Dr. Dennis completed a report on December 10, 2014 reviewing the SOAF, noting
appellant’s history of injury, and her medical treatment. He performed a physical examination and
noted that she was not providing her full effort. Dr. Dennis opined that appellant’s muscle and
strength testing was so erratic and inconsistent that much of test results had to be discarded because
the variation was outside the range of acceptable. He examined her cervical spine and found no
evidence of clinical pathology in the cervical spine that related to any ongoing radiculopathy.
Dr. Dennis examined appellant’s brachial plexus and found no evidence of atrophy or weakness
in any of the muscles of the left upper extremity. He concluded that the variation of evidence of
weakness of the left hand was totally voluntary and that appellant had no sensory deficit.
Dr. Dennis diagnosed resolved cervical sprain, osteoarthritis, and degenerative changes in the
11

Id.

12
The Board review of the case record does not establish that it includes a report from Dr. Magliato reviewing
Dr. Gordon’s report.

5

cervical spine which preexisted her employment injury, herniated discs at C6-7 which were not
symptomatic, resolved carpal tunnel syndrome, shoulder sprain, impingement syndrome still
persistent with adhesive capsulitis, labral tear, persistent tendinopathy of the left shoulder, reflex
sympathetic dystrophy or CRPS completely resolved, and no current evidence of persistent
neurological damage to the brachial plexus. He found that appellant reached MMI on
October 14, 2008.
In regard to appellant’s left shoulder, Dr. Dennis found no residual functional impairment
regards to a neural deficit relating to either radiculopathy, brachial plexus pathology, or
sympathetic dystrophy. He noted that her ROM in her left shoulder was abnormal. Dr. Dennis
reported 80 degrees or shoulder flexion, 30 degrees, of shoulder extension, 80 degrees of shoulder
abduction, 5 degrees of shoulder adduction, 5 degrees of external rotation, and 10 degrees of
internal rotation. He noted that these motion deficits were reproducible and were measured no less
than five times, and then he reported the average. Dr. Dennis concluded that appellant’s loss of
ROM in her left shoulder was consistent with adhesive capsulitis and longstanding lack of full
motion. He applied the diagnosis-based estimates of the A.M.A., Guides and determined that she
had no more than five percent permanent impairment of her left upper extremity. Dr. Dennis found
that appellant had 18 percent permanent impairment based on loss of ROM of the left upper
extremity.
OWCP referred Dr. Dennis’ report to an OWCP medical adviser, Dr. Andrew Merola, a
Board-certified orthopedic surgeon, on March 10, 2015. In his March 13, 2015 report, Dr. Merola
requested clarification of the net adjustment formula and calculations used by Dr. Dennis to reach
his impairment rating.
Dr. Dennis completed an addendum on April 27, 2015 and opined that he had already
provided the requested information. He noted that he agreed with Dr. Magliato’s methodology
and provided an excerpt from his March 29, 2010 report. On August 13, 2015 OWCP referred
Dr. Dennis’ supplemental report to Dr. Magliato. In his August 18, 2015 report, Dr. Magliato
found Dr. Dennis’ impairment rating confusing and requested further clarification.
In a letter dated September 14, 2015, OWCP requested a second supplemental report from
Dr. Dennis. Dr. Dennis responded on October 7, 2015 and concluded: “I am inclined not to
reexplain what has already been explained very thoroughly to be best of my ability on two, and
now three, separate occasions.”
In a report dated January 12, 2016, Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon, serving as OWCP medical adviser, found that appellant had 24 percent upper extremity
impairment, based on loss of ROM. He found 9 percent permanent impairment for loss of shoulder
flexion, 1 percent permanent impairment for loss of shoulder extension, 6 percent permanent
impairment for loss of shoulder abduction, 2 percent permanent impairment for adduction, 4
percent permanent impairment for loss of internal rotation, and 2 percent permanent impairment
for loss of external rotation.13 Dr. Harris listed appellant’s date of MMI as December 10, 2014.

13

Supra note 10.

6

By decision dated February 23, 2016, OWCP granted appellant a schedule award for 24
percent permanent impairment of the left upper extremity.
Counsel requested an oral hearing before an OWCP hearing representative on
March 2, 2016. In a letter dated July 8, 2016, he amended his request to a review of the written
record. Counsel requested a new impartial medical examination as Dr. Dennis did not clarify his
opinion.
By decision dated August 24, 2016, OWCP’s hearing representative found that OWCP had
improperly developed appellant’s schedule award claim. He noted that the schedule award granted
was not based on Dr. Dennis’ rating and that Dr. Dennis’ rating was not sufficiently rationalized
to resolve the conflict. The hearing representative noted that OWCP improperly referred
Dr. Dennis’ report to Dr. Magliato. OWCP’s hearing representative found that Dr. Gordon was
properly designated as an impartial medical examiner. He further found that there was no evidence
that Dr. Magliato had reviewed Dr. Gordon’s report. OWCP’s hearing representative remanded
the case for an OWCP medical adviser to review Dr. Gordon’s report and noted that there was no
issue regarding appellant’s date of MMI.
OWCP’s medical adviser, Dr. Morley Slutsky, a Board-certified occupational medicine
specialist, reviewed the medical evidence on November 1, 2016 and found that Dr. Gordon
appropriately applied the A.M.A., Guides to reach a final left upper extremity impairment of 23
percent impairment of the left upper extremity based on loss of ROM.
By decision dated February 17, 2017, OWCP found that appellant had no more than 24
percent impairment of her left upper extremity for which she had previously received a schedule
award. On February 28, 2017 counsel requested an oral hearing from OWCP’s Branch of Hearings
and Review. At the oral hearing on May 9, 2017, he argued that appellant’s schedule award should
include impairment ratings for CRPS and brachial plexopathy.
By decision dated June 12, 2017, OWCP’s hearing representative found Dr. Gordon’s
report represented the special weight of the medical evidence and found that appellant had no more
than 23 percent permanent impairment of her left upper extremity warranting a schedule award.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.14 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of
specified members, functions, and organs of the body.15 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
14

See 20 C.F.R. §§ 1.1-1.4.

15
For a complete loss of use of an arm, an employee shall receive 312 weeks of compensation. 5 U.S.C.
§ 8107(c)(1).

7

use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.16
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition of the
A.M.A., Guides (2009).17 The Board has approved the use by OWCP of the A.M.A., Guides for
the purpose of determining the percentage loss of use of a member of the body for schedule award
purposes.18
The A.M.A., Guides provide a diagnosis-based impairment (DBI) method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF) for upper extremity impairments. The evaluator identifies the impairment for
the Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).19 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).20
The A.M.A., Guides also provide that ROM impairment method is to be used as a standalone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.21 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.22 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.23
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology based
versus the ROM methodology for rating of upper extremity impairments.24 Regarding the
application of ROM or DBI methodologies in rating permanent impairment of the upper
extremities, FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
16

20 C.F.R. § 10.404. See C.J., Docket No. 17-1570 (issued February 9, 2018); Ronald R. Kraynak, 53 ECAB
130 (2001).
17

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5a
(February 2013).
18

C.J., supra note 16; Isidoro Rivera, 12 ECAB 348 (1961).

19

A.M.A., Guides 405-18.

20

Id.

21

Id. at 461.

22

Id. at 473.

23

Id. at 474.

24
FECA Bulletin No. 17-06. This Bulletin was effective for all decisions issued by OWCP on and after
May 8, 2017.

8

measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”
Upon initial review of a referral for upper extremity impairment evaluation, the district
medical adviser (DMA) should identify: (1) the methodology used by the rating physician (i.e.,
DBI or ROM), and (2) whether the applicable tables in Chapter 15 of the A.M.A., Guides identify
a diagnosis that can alternatively be rated by ROM. If the A.M.A., Guides allow for the use of
both the DBI and ROM methods to calculate an impairment rating for the diagnosis in question,
the method producing the higher rating should be used. (Emphasis in the original).25
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”26
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for left shoulder strain and cervical sprain. The issue is
whether appellant sustained more than 24 percent permanent impairment of her left upper
extremity for which she previously received a schedule award.
Dr. Gordon rated appellant’s permanent impairment of the left shoulder pursuant to Table
15-34 of the A.M.A., Guides, for loss of shoulder ROM.27 The Board notes that Table 15-5, the
Shoulder Regional Grid, does allow, by asterisk, that shoulder strain or sprain be alternatively
evaluated as a ROM impairment.28 Under FECA Bulletin No. 17-06.5, if the rating physician
provided an assessment using the ROM method and the A.M.A., Guides allow for use of ROM for
the diagnosis in question, the DMA should independently calculate impairment using both the
ROM and DBI methods and identify the higher rating for the [claims examiner].
Because Dr. Gordon provided a rating based upon appellant’s loss of ROM which was
allowed (for a diagnosed condition followed by an asterisk) under Table 15-5 of the A.M.A.,
Guides, DMA Dr. Slutsky, should have independently calculated appellant’s impairment using
both the ROM and DBI method and identified the higher rating for the claims examiner. If the
medical evidence of record was insufficient for the DMA to render a rating using the ROM

25

A.M.A., Guides 477.

26

Id.

27

Id. at 475, Table 15-34.

28

Id. at 401, Table 15-5.

9

methodology, the DMA should have advised as to the medical evidence necessary to complete the
rating.29
This case will therefore be remanded for further development consistent with OWCP
procedures found in FECA Bulletin No. 17-06. Following this and any other development deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the June 12, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision.
Issued: July 12, 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

29

Id.

10


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1002
Issued: February 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 1, 2010 appellant filed a timely appeal from a February 1, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an injury to her low back in
the performance of duty on May 3, 2002.
FACTUAL HISTORY
On May 20, 2002 appellant, a 58-year-old mail handler, filed a Form CA-1 claim for
benefits alleging that she strained her low back while trying to pull a tray of letters from a mail
sleeve on May 3, 2002.
In a June 1, 2002 report, Dr. William L. Lehman, Board-certified in orthopedic surgery,
evaluated appellant for a new work-related injury which occurred on May 3, 2002 when she
leaned over and pulled a tray out of a mail sleeve. He stated that appellant had a prior history of

chronic back problems stemming from a 1998 nonwork-related injury. Appellant underwent an
L4-S1 discectomy and decompression which improved her back condition until she experienced
a flare-up of symptoms which required her to be treated at the emergency room on May 8, 2002.
On examination, she had tenderness in the low back in the area of surgical incision, with
paraspinous spasm and limited back flexibility in flexion. Appellant also displayed some
radicular symptoms and evidence of degenerative disc disease. Dr. Lehman advised that she was
currently working light duty six hours a night. He recommended an aggressive program of
physical therapy.
In a September 27, 2002 report, Dr. Lehman stated that appellant was still having some
difficulties with back pain and remained on light duty. He noted that a magnetic resonance
imaging (MRI) scan showed degenerative discs at two levels with no evidence of any recurrent
disc herniation or stenosis. Dr. Lehman opined that appellant had degenerative disc disease at
the L4-5 and L5-S1 levels.
Dr. Lehman submitted periodic CA-17 forms from 2003 through 2009 which indicated
that she was injured on May 3, 2002 while reaching for mail.
In a May 14, 2009 report, Dr. Lehman stated that he was treating appellant for a left distal
radius fracture sustained while at home but related to her May 3, 2002 work injury. He opined
that the May 2002 employment injury caused intermittent giving way episodes and recurrent
falling problems with her right leg, in addition to weakness and pain. Appellant experienced
chronic back pain due to her May 3, 2002 work injury. He advised that she should be able to
return back to light duty but would have to work in a wheelchair.
In a July 8, 2008 report, Dr. Lehman advised that he had treated appellant for
longstanding, persistent problems since 1999. He stated that the May 3, 2002 work injury
aggravated her back condition and that appellant had persistent and permanent restrictions in her
activities, which included limitations in mobility caused by chronic back and knee difficulties.
On April 20, 2009 Dr. Lehman reiterated his opinion regarding appellant’s low back and
left leg radiculopathy. He noted that she had provided appropriate CA-17 forms to document her
ongoing limitations and work restrictions. Due to her back injury with radiculopathy, appellant
had a propensity for recurrent falls, requiring the use of a cane for approximately three years,
with progressive problems that required intermittent use of a wheelchair.1
By letter dated June 19, 2009, the Office advised appellant that she needed to submit
additional factual and medical evidence in support of her claim. It provided 30 days to submit the
requested information.
By decision dated July 22, 2009, the Office denied appellant’s claim, finding that she failed
to establish fact of injury. It noted that the instant claim appeared to be for the same condition in
which she filed a separate claim for an injury which occurred on May 30, 2001 and that was denied
1

Dr. Lehman stated that, due to the intermittent instability and pain which subjected appellant to recurrent falls,
she had such an episode on or about March 17, 2009. This resulted in a left distal radius fracture which he
considered a consequential injury.

2

on January 29, 2002. The Office instructed appellant that she needed to submit an appeal under
that claim and not merely file a new claim for a new injury. It found that the medical evidence
lacked sufficient medical rationale to establish that the claimed low back condition was related to
the May 3, 2002 incident.
On August 21, 2009 appellant’s attorney requested an oral hearing, which was held on
November 9, 2009. Appellant submitted an October 4, 2003 electromyelogram report.
By decision dated February 1, 2010, an Office hearing representative affirmed the July 22,
2009 decision. She reviewed appellant’s prior claim in number xxxxxx256, which contained no
contemporaneous medical evidence of treatment for an injury on May 3, 2002.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.5 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty.7 Nor can the
Office find fact of injury if the evidence fails to establish that the employee sustained an “injury”
within the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in
order to establish the fact that an employee sustained an injury in the performance of duty, as
alleged, but the employee’s statements must be consistent with surrounding facts and
2

5 U.S.C. § 8101 et seq.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

7

Pendleton, supra note 3.

3

circumstances and her subsequent course of action.8 Such circumstances as late notification of
injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury, and failure to obtain medical treatment may cause doubt on an employee’s
statements in determining whether he or she has established his or her claim.9
ANALYSIS
In the present case, the Office found that the record contained insufficient evidence to
establish that the May 3, 2002 incident occurred at the time, place and in the manner alleged. It
noted that appellant had filed a similar claim for an injury of May 30, 2001 that was denied by the
Office. The Office found that she did not establish that she sustained the injury in the performance
of duty on May 3, 2002.
The Board finds that appellant presented sufficient evidence to establish that the May 3,
2002 incident occurred at the time, place and in the manner alleged.10 Appellant filed her claim for
the May 3, 2002 work incident in a timely fashion, on May 20, 2002, and sought medical attention
on June 2, 2002, within one month of the work incident.
The Board has held that an employee’s statement alleging that an injury occurred at a given
time and in a given manner is of great probative value and will stand unless refuted by strong or
persuasive evidence.11 Appellant’s statement that she pulled a mail tray from a mail sleeve is not
contradicted by any documentary evidence in the record. She sought medical attention from
Dr. Lehman on June 1, 2002, less than a month after the May 3, 2002 incident and provided
Dr. Lehman with a consistent history of leaning over to pull a tray from a mail sleeve as alleged.
The Board finds that the evidence of record is sufficient to establish that she sustained the
May 3, 2002 incident in the performance of duty. The employing establishment controverted the
claim, contending that she did not experience the incident as alleged on the date in question, but
provided no evidence to support its position.
The Board finds, however, that appellant failed to submit sufficient rationalized medical
opinion evidence to establish that the May 3, 2002 incident resulted in an injury to her low back.
In this regard, the Board has held that the mere fact that a condition manifests itself during a
period of employment does not raise an inference that there is a causal relationship between the
two.12
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
8

Joseph H. Surgener, 42 ECAB 541, 547 (1991); see Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
9

See Constance G. Patterson, 42 ECAB 206 (1989).

10

Id.

11

Patterson, supra note 9; Thelma S. Buffington, 34 ECAB 104 (1982).

12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

4

the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.13 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Dr. Lehman noted that appellant had a preexisting history of a lumbar condition due to a
1998 nonwork-related injury. He advised that she had prior back surgery which improved her
back condition until she experienced a flare-up of symptoms in May 2002. Dr. Lehman did not
provide a full history of appellant’s prior medical treatment or address how her preexisting
lumbar condition was aggravated or contributed to by the accepted incident. Rather, he noted
only that she experienced back pain for which she sought treatment on May 8, 2002. Appellant
demonstrated radicular symptoms and evidence of degenerative disc disease. In a July 8, 2008
report, Dr. Lehman reiterated that he had treated appellant for longstanding, persistent low back
problems since 1999 and that the May 3, 2002 work injury aggravated these back problems. He
stated that she had chronic back and knee difficulties which created permanent restrictions in her
activities. In an April 20, 2009 report, Dr. Lehman reiterated his opinion and noted that
appellant had provided medical forms documenting her ongoing limitations and work
restrictions. He stated that, due to her back injury and radiculopathy, she was susceptible to
recurrent falls which caused additional, progressive deterioration to her low back. On May 14,
2009 Dr. Lehman treated appellant for a left distal radius fracture which she sustained at home;
however, he related the fracture to the incident of May 3, 2002. He reiterated that the May 2002
employment injury continued to cause intermittent giving way episodes and recurrent falling
problems with her right leg.
The reports from Dr. Lehman are of diminished probative value in that he did not provide
adequate medical rationale in support of his conclusions.14 Dr. Lehman did not adequately
describe appellant’s medical treatment from 2002 to 2008. The reports of record provide little in
the way of findings on physical examination of appellant or cure the deficiencies noted in the
medical history of treatment. The work restriction forms provide no narrative medical opinion
addressing how the May 3, 2002 incident was competent to aggravate her preexisting lumbar
condition or contribute to residual disability on or after that date. The treatment records do not
bridge appellant’s medical care from June 6, 2003 to March 28, 2007. The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.15 Dr. Lehman’s reports are not probative on the issue of causal relationship because
he did not provide a sufficient explanation addressing how leaning over on May 3, 2002
aggravated appellant’s lumbar condition or contributed to further spinal degeneration of the
lumbar disc. Appellant failed to provide a rationalized, probative medical opinion relating her
current condition to the accepted incident. Therefore, she failed to establish that the work
incident of May 3, 2002 caused or contributed to her lumbar condition or contributed to her fall on
or about March 17, 2009. The Office properly denied appellant’s claim for compensation.
13

Id.

14

William C. Thomas, 45 ECAB 591 (1994).

15

See Anna C. Leanza, 48 ECAB 115 (1996).

5

CONCLUSION
The Board finds that appellant established that the employment-related incident of
May 2, 2002 occurred as alleged. The Board also finds that she failed to meet her burden of
proof to establish that she sustained a low back injury related to the accepted incident.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed as modified.
Issued: February 22, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Bloomfield, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2282
Issued: May 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 25, 2008 appellant filed a timely appeal from the merit decisions of the Office of
Workers’ Compensation Programs dated January 4 and July 25, 2008 denying his claim for
compensation for an employment-related injury. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
October 17, 2006, as alleged.
FACTUAL HISTORY
On November 17, 2007 appellant, then a 48-year-old letter carrier, filed a traumatic
injury claim alleging that, on October 17, 2006, while walking down the handicap ramp he
slipped and fell while in the performance of duty and sustained a torn meniscus of the left knee.
He alleged that his supervisor told him not to report the accident or he would not become a 204b
supervisor. In a statement by appellant, received by the Office on December 20, 2007, he

indicated that, on October 17, 2006 at 14:10 hours, he slipped and fell on a handicap ramp
platform that was wet and covered with leaves. He noted that, upon returning from the field to
report the accident, he was approached by Tom Bertucchi who told him that, if he filed a report
about the accident, he would not become a 204b supervisor. Appellant noted that he did not file
right away because he felt threatened and concerned that he may not get the 204b position or
even lose his job if he filed a claim.
On November 16, 2006 appellant began treatment with Dr. Norman E. Walter, a Boardcertified orthopedic surgeon, whose report indicates that on that date appellant complained of
painful knees and noted that his left knee bothered him the most. Dr. Walter noted no history of
injury but rather that appellant had increasing difficulty with his knee especially while squatting.
He ordered a magnetic resonance imaging (MRI) scan.
On November 20, 2006 appellant had an MRI scan of his knee which was interpreted as
showing a Grade 2 tear of the body and posterior horn of lateral meniscus and chondromalacia
patella.
In a December 21, 2006 report, Dr. Walter indicated that appellant was markedly
improved on diclofenac and that he was also taking glucosamine and chondroitin sulfate. He
told appellant to avoid squats and deep knee bends and talked with him about arthritis. In an
April 23, 2007 report, Dr. Walters indicated that, although appellant thought therapy was
working at first, he reported that he was getting worse and that he had an effusion. He noted that
he would proceed with arthroscopic surgery.
On May 1, 2007 appellant had a left knee arthroscopy, partial lateral meniscectomy,
excision plica and partial synovectomy. On May 7, 2007 his stitches were removed and
Dr. Walters noted no complications from the surgery. Dr. Walters released him to return to work
at his desk job and indicated that he would see him on an as needed basis. In a May 24, 2007
report, he indicated that appellant fell, noting that he indicated that his “left knee kind of
twinged” on Tuesday. Dr. Walters noted that appellant was treated at the after-hours clinic, that
a diagnosis of a fractured distal radius was made and appellant was placed in a splint. He noted
that x-rays showed a comminuted interarticular fracture involving the distal left radius and that
he placed appellant in a cast. In an August 6, 2007 report, Dr. Walters noted that appellant was
again bothered by crepitation and some pain in his knee. He extended sick leave until October 1,
2007 unless appellant’s employer could provide him work within his restrictions. In a
September 17, 2007 note, Dr. Walters indicated that appellant was ready to go back to work, but
provided him a restriction against prolonged standing and that he should avoid stairs.
In a medical report dated December 17, 2007, Dr. Walter noted that appellant told him on
that date that his original history he gave was erroneous. He noted that appellant told him that he
did have an injury approximately one month earlier when he slipped and fell on a handicap ramp
thereby sustaining a painful swollen knee. Dr. Walters concluded that the described slip and fall
where there was hyperflexion and striking the knee certainly could have caused the plica or the
torn meniscus which was substantiated later on MRI scan and later with arthroscopy surgery.
By decision dated January 4, 2008, the Office denied appellant’s claim for the reason that
he had not met the requirements for establishing that he sustained an injury as defined by the

2

Act, noting factual deficiencies, with regard to the reason for his delay in filing a claim, and
medical deficiencies in the evidence.
In a statement dated January 13, 2008, Thomas Bertucchi, a maintenance manager for the
employing establishment, noted that, on October 19, 2006, appellant informed him that he hurt
his right knee and he asked him to follow him to the conference room. Once there,
Mr. Bertucchi indicated that he told appellant to start completing the forms. He noted that
appellant asked if this would hurt his chances on transferring or being a 204b, and that he replied
that attendance and safety records would be reviewed. Mr. Bertucchi noted that appellant did not
file at that time and went to talk to his doctor. He indicated that at no time did he tell appellant
not to file a claim or seek medical attention. Bertha H. Newman, a Tour II supervisor, also
submitted a statement corroborating Mr. Bertucchi’s statement.
By letter dated January 30, 2008, appellant, through his attorney, requested a telephonic
hearing. At the hearing, appellant testified that he started working for the employing
establishment in August 2005, that he never injured his knee before October 17, 2006, described
the circumstances of the alleged work-related slip and fall on October 17, 2006, noted that he
saw Dr. Ahmed one week after the fall and then he sent him to Dr. Walters for treatment.
Appellant testified that he did not initially tell Dr. Walters about the work injury, and that when
he told him after the surgery he was very upset.
By decision dated July 25, 2008, the Office hearing representative affirmed as modified
the Office’s January 4, 2008 decision and found that appellant had established the factual
circumstances surrounding his injury. The hearing representative, however, affirmed the
Office’s prior decision, finding that appellant had not submitted medical evidence establishing a
causal relationship between this incident and his condition.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
In order to satisfy the burden of proof, an employee must submit a physician’s
rationalized medical opinion on the issue of whether the alleged injury was caused by the
employment incident.8 Neither the fact that the condition became apparent during a period of
employment nor appellant’s belief that the employment caused or aggravated his condition is
sufficient to establish causal relationship.9
ANALYSIS
In the instant case, the Office hearing representative found that the employment incident
occurred as alleged, i.e., that on October 17, 2006 appellant slipped and fell while walking down
a ramp. However, she denied appellant’s claim as the medical evidence was not sufficient to
establish a diagnosed condition which could be connected to the established event. Appellant
submitted numerous medical records from his treating, Board-certified, orthopedic surgeon,
Dr. Walter, who initially saw appellant on November 16, 2006, one month after the October 17,
2006 work-related slip and fall. However, Dr. Walter did not note that appellant had sustained a
traumatic injury at that time. In fact, in his initial report, he indicated that there was no history of
injury but that appellant was having increasing difficulty with his knee. Dr. Walter proceeded to
treat appellant and perform surgery on May 1, 2007. At no time during this treatment period did
Dr. Walter note a traumatic injury that occurred on October 17, 2006. It was not until
December 17, 2006, over one year after the October 17, 2006 incident, that Dr. Walter first noted
the work injury. At that time he noted that appellant told him for the first time that he had an
injury approximately one month before his initial appointment with Dr. Walter, who did note that
this could have caused the plica or the torn meniscus.
The Board finds that the medical evidence is insufficient to meet appellant’s burden of
proof to establish a diagnosis connected with the accepted work incident. Although appellant
initially saw him only one month after the work incident, he failed to mention it to Dr. Walter at
that time. Dr. Walter did not connect the two until over one year after the incident, despite
numerous visits. At that time, he only indicated that the incident “could have caused the plica or
the torn meniscus. . . .” This conclusion, phrased in speculative language and without supporting
medical rationale, is insufficient to meet appellant’s burden.
6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

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

9

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

4

An award of compensation may not be based on surmise, conjecture, speculation or
appellant’s belief of causal relationship.10 There is insufficient medical evidence to establish that
appellant sustained a work-related injury on October 17, 2006. Accordingly, the Board finds that
appellant failed to meet his burden of proof.11
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on October 17, 2006, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated July 25, 2008 and that of the Office dated
January 4, 2008 are affirmed.
Issued: May 22, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979).

11

The Board notes that appellant submitted additional evidence to the record following the July 25, 2008
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0477
Issued: September 20, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 3, 2017 appellant filed a timely appeal from July 29 and November 7, 2016
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to reduce appellant’s
compensation benefits on July 29, 2016 based on his capacity to earn wages in the selected
position of surveillance system monitor; and (2) whether appellant met his burden of proof to
establish that the loss of wage-earning capacity determination should be modified.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 7, 2012 appellant, then a 47-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on March 7, 2012 he experienced pain with numbing and
tingling down his right arm to his finger tip when he attempted to secure a grill door at work.
The claim form did not indicate whether appellant stopped work. On April 9, 2012 appellant
began to work a full-time limited-duty position.
OWCP accepted appellant’s claim for degeneration of cervical intervertebral disc and
disorder of bursae and tendons in the right shoulder region.
Appellant received treatment from Dr. Daniel R. Orcutt, a Board-certified orthopedic
surgeon. Dr. Orcutt indicated, in a November 27, 2012 progress report, that appellant
complained of burning sensations in the shoulder and radiating pain in the arm. He reviewed
appellant’s history and described the March 7, 2012 employment incident. Dr. Orcutt diagnosed
right shoulder osteoarthritis, degeneration of the cervical intervertebral disc, disorders of the
bursae and tendons in the shoulder region, and brachial neuritis or radiculitis.
On November 28, 2012 appellant began working four hours per day because the
employing establishment only had part-time limited-duty work available. He received wage-loss
compensation for the remaining four hours a day. On January 17, 2013 appellant returned to full
duty.
On April 29, 2013 appellant underwent authorized cervical spine surgery by Dr. Douglas
Kasow, a Board-certified orthopedic surgeon. He stopped work. OWCP paid disability
compensation on the periodic rolls as of May 5, 2013.
Appellant continued to be treated by Dr. Kasow, who indicated in a November 28, 2013
report, that he had reviewed appellant’s history and conducted an examination. Dr. Kasow
reported tenderness of the paracervicals from C3 to C7, paracervical trigger point pain, and
trapezius trigger point pain. He also noted tenderness to palpation over the left iliac crest.
Dr. Kasow diagnosed degeneration of cervical intervertebral disc, myofascial pain, and hip pain.
In a January 14, 2014 cervical spine computerized tomography (CT) scan, Dr. Patricia
Davis, a Board-certified neuroradiologist, noted that appellant had surgery on April 20, 2013
following a March 7, 2012 work injury. She reported discectomy fusions at C4-5, C5-6, and
C6-7 with osseous ridging toward the right, most evident at C4-5.
Appellant underwent a cervical spine magnetic resonance imaging (MRI) scan by
Dr. Michael Smith, a Board-certified neuroradiologist. Dr. Smith related, in a February 3, 2014
report, that appellant had multilevel postoperative changes from C4-7, spinal canal stenosis
effaces the cord at C4-5, and foraminal stenosis at multiple levels.
In February 11 and April 18, 2014 reports, Dr. Kasow related appellant’s complaints of
pain over the neck that radiated into the left shoulder with no relief from trigger point injection.
He reviewed appellant’s history and provided results on examination. Dr. Kasow reported
rhomboid and tenderness of the paracervicals from C3 to C7, paracervical triggerpoint pain
around T1-2, and trapezius trigger point pain. He indicated active range of motion with no
2

crepitus or pain elicited by motion. Dr. Kasow related that cervical spine x-ray scans showed
that the plate and screws appeared to be in good position. He also noted that a CT scan and MRI
scan showed solid fusion at C4-5, C5-6, and C6-7, mild facet arthropathy at C4-5, and rightsided disc osteophyte complex. Dr. Kasow diagnosed shoulder joint pain. He indicated that
appellant could return to work with restrictions.
Dr. Kasow provided February 11 and April 18, 2014 work status and work capacity
evaluation reports. He related that appellant could return to full-time work beginning
February 11, 2014 with restrictions of sitting only, no lifting, pushing, or pulling over 20 pounds,
and no reaching, working above the shoulder level, bending, squatting, kneeling, climbing, or
crawling.
In April 2014, OWCP referred appellant to Genia Hachenberg, a rehabilitation counselor,
for vocational rehabilitation services. Appellant underwent vocational testing and a work
hardening program.
On June 9, 2014 appellant underwent a functional capacity evaluation (FCE) by Jan W.
Braunstein, a physical therapist, who related that appellant was capable of performing work of
light physical demand and was able to perform the following activities of constant reaching on
the left and bi-manual handling, frequent walking and carrying up to 15 pounds, climbing stairs,
handling, sitting, and standing, and occasional stooping, crouching, kneeling, reaching on the
right, and reaching overhead bilaterally.
On October 14, 2014 OWCP’s vocational rehabilitation counselor identified the positions
of radio dispatcher and surveillance system monitor as within appellant’s work restrictions and
vocational skills. She included a job description with physical demands for each position. The
vocational rehabilitation counselor completed a labor market survey for each position and
indicated that each job was available in the local commuting area. A rehabilitation plan was
approved, but appellant refused to sign his individualized placement plan. Appellant’s job
search placement began on December 17, 2014.
On October 20, 2014 OWCP received an October 14, 2014 cervical spine CT scan
wherein Dr. Richard Woodcock, a Board-certified radiologist, observed absence of fusion at
C5-6, probable incomplete fusion at C6-7, solid fusion at C4-5, multilevel canal and foraminal
narrowing detailed above, including foraminal stenosis on the left side due to uncinate
osteophytosis at C6-7, foraminal stenosis bilaterally at C5-6, and mild foraminal narrowing at
C4-5.
In a December 12, 2014 letter, appellant was advised by OWCP that the selected
positions were within his work restrictions and of his responsibility to cooperate with the 90-day
placement assistance plan to help him obtain employment. Rehabilitation services were closed
on February 27, 2015.
Appellant continued to receive medical treatment from Dr. Kasow. In progress reports
through March 24, 2015, Dr. Kasow indicated that appellant still complained of pain over the T1
spinous process radiating to the left shoulder with no relief from trigger point injections or
cervical facet injections. He reviewed appellant’s history and provided examination findings

3

similar to his previous reports. Dr. Kasow diagnosed cervical postlaminectomy syndrome. He
continued to provide work status reports which indicated that appellant could work with
restrictions of sitting only, no lifting, pushing, or pulling over 20 pounds, and no bending,
kneeling, crawling, or reaching above the shoulder.
On October 26, 2015 OWCP again referred appellant for vocational rehabilitation
services. On November 25, 2015 the rehabilitation counselor updated the labor market survey
information for the surveillance system monitor and radio dispatcher positions with yearly wages
of $37,361.00 for the surveillance system monitor position and $39,447.00 for the radio
dispatcher position. The Specific Vocational Preparation (SVP) for the position of surveillance
system monitor required an SVP of 3, which required 30 days to three months of education,
training and/or experience. She noted that appellant had over three months of experience in
corrections and the military with knowledge of law enforcement terminology, relaying
information in an emergency situation, and experience communicating in a calm effective way
with counselling and training staff, inmates, and soldiers. The physical demands of the
surveillance system monitor position required a sedentary strength level and no climbing,
stooping, kneeling, crouching, crawling, and reaching. Each position was identified as being
performed in sufficient numbers so as to make it reasonably available within appellant’s local
commuting area.
Dr. Kasow continued to treat appellant. In a March 29, 2016 report, he related
appellant’s complaints of musculogenic pain and headaches located to the greater occipital nerve
region, localized pain in the anterior cervical strap, and right ulnar nerve complaints. Upon
physical examination of appellant’s cervical spine, Dr. Kasow observed tenderness of the
paracervicals from C3 to C7, tenderness of the occipital protuberance, and tenderness to
palpation over the left iliac crest from the autograft for appellant’s anterior cervical fusion.
Strength examination was normal and range of motion was active. Dr. Kasow indicated that
sensation examination of appellant’s upper extremities revealed that Tinel’s sign at the ulnar
nerve was consistent with cubital tunnel. Examination of appellant’s shoulders revealed no
tenderness to palpation and full range of motion. Dr. Kasow diagnosed cervicalgia, cervical
post-laminectomy syndrome, and cervico-occipital neuralgia. He provided work status reports,
which authorized appellant to work with restrictions of only sitting, no lifting, pushing, or
pulling over 20 pounds, and no bending, kneeling, crawling, or reaching above the shoulders.
By letter dated June 21, 2016, OWCP proposed to reduce appellant’s compensation,
based on his capacity to earn wages as a surveillance system monitor, Department of Labor,
Dictionary of Occupational Titles, DOT No. 379.367-010.2 It noted that Dr. Kasow related in a
February 11, 2014 report that appellant could work with restrictions. OWCP related that, based
on Dr. Kasow’s opinion, appellant had been referred for vocational rehabilitation services, and
2

The Department of Labor, Dictionary of Occupational Titles’ job description for surveillance system monitor,
DOT No. 379.367-010, is as follows: Monitors premises of public transportation terminals to detect crimes or
disturbances, using closed circuit television monitors, and notifies authorities by telephone of need for corrective
action. Observes television screens that transmit in sequence views of transportation facility sites. Pushes hold
button to maintain surveillance of location where incident is developing, and telephones police or other designated
agency to notify authorities of location of disruptive activity. Adjusts monitor controls when required to improve
reception, and notifies repair service of equipment malfunctions.

4

that the surveillance system monitor position was selected as being the most appropriate, based
upon the rehabilitation counselor’s review of appellant’s work history and transferrable skills
analysis. It described the physical requirements of the surveillance system monitor position as
sedentary and within the restrictions provided by Dr. Kasow. OWCP indicated that, based on
recent wage and position information, the surveillance system monitor position was reasonably
available at an entry pay level of $494.03 per week. Appellant was afforded 30 days to submit
additional evidence or argument in opposition to this proposal. No additional evidence was
received.
By decision dated July 29, 2016, OWCP reduced appellant’s wage-loss compensation
based on his capacity to earn wages as a surveillance systems monitor, effective July 28, 2016.
By utilizing the Shadrick formula,3 it found that appellant had a 43 percent loss of wage-earning
capacity.
On August 11, 2016 appellant requested reconsideration. He provided a completed
EN1032 form dated August 7, 2016, Part A, which listed his daughter as a dependent. Appellant
also submitted a certification of enrollment from Texas State University for the fall and spring
semesters of 2016.
According to a September 22, 2016 telephone memorandum, appellant inquired about
adjustment of his periodic payments in regards to his compensation rate, night differential pay,
and Sunday premium pay.
Several telephone memorandums dated September 22 to
November 3, 2016 indicated that OWCP contacted the employing establishment on various
occasions in order to obtain information regarding appellant’s pay rate. OWCP also sent the
employing establishment letters dated September 27 and November 3, 2016 requesting
information on appellant’s Sunday premium and holiday premium pay for one year prior to
March 27 and October 28, 2012.
By decision dated November 7, 2016, OWCP denied modification of the July 29, 2016
decision. It found that appellant had not submitted any evidence indicating that there was a
material change in the nature and extent of his injury-related condition, that he had been
retrained or otherwise vocational rehabilitated, or that the original determination was, in fact,
erroneous. OWCP also noted that it had adjusted appellant’s pay rate as he had submitted
evidence that his daughter remained a dependent. It further informed appellant that his pay rate
reflected Sunday premium and that further information was being obtained from the employing
establishment regarding appellant’s night shift work at the time of injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of the compensation benefits.4 An injured employee who is either unable to return
to the position held at the time of injury or unable to earn equivalent wages, but who is not

3

Albert C. Shadrick, 5 ECAB 376 (1953). See discussion infra.

4

James M. Frashner, 53 ECAB 794 (2002).

5

totally disabled for all gainful employment, is entitled to compensation computed on loss of
wage-earning capacity.5
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or if the employee has no actual earnings, wage-earning capacity is determined with due
regards to the nature of the injury, degree of physical impairment, usual employment, age,
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect the employee’s wage-earning capacity in his disabled
condition.6
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence relied upon which OWCP relies must provide a detailed description of the
condition.7 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.8
When OWCP makes a determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position listed in the Department of Labor, Dictionary of
Occupational Titles or otherwise available in the open market, that fits the employee’s
capabilities with regard to his physical limitations, education, age, and prior experience. Once
this selection is made, a determination of wage rate and availability in the open labor market
should be made through contact with the state employment service, local Chamber of
Commerce, employer contacts, and actual job postings.9 Lastly, OWCP applies the principles set
forth in Albert C. Shadrick,10 as codified in section 10.403 of OWCP regulations,11 to determine
the percentage of the employee’s loss of wage-earning capacity.12
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from postinjury or subsequently acquired conditions. Any incapacity to
5

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988).

7

William H. Woods, 51 ECAB 619 (2000).

8

John D. Jackson, supra note 5.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a (June 2013).
10

Albert C. Shadrick, supra note 3.

11

20 C.F.R. § 10.403.

12

Supra note 4.

6

perform the duties of the selected position resulting from subsequently-acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which the claimant may receive compensation.13
ANALYSIS -- ISSUE 1
OWCP issued its July 29, 2016 loss of wage-earning capacity determination based on
appellant’s capacity to earn wages as a surveillance system monitor. As noted above, it must
initially determine appellant’s medical condition and work restrictions before selecting an
appropriate position that reflects his wage-earning capacity. The medical evidence upon which
OWCP relies must provide a detailed description of the condition.14
In reports dated February 11, 2014 to March 24, 2015, Dr. Kasow, appellant’s treating
physician, reviewed appellant’s history, including diagnostic testing.
Upon physical
examination, he observed rhomboid and tenderness of the paracervicals from C3 to C7,
paracervical triggerpoint pain around T1-2, and trapezius trigger point pain. Range of motion
was active. Dr. Kasow diagnosed shoulder joint pain and cervical post-laminectomy syndrome.
He indicated that appellant was able to work with restrictions of sitting only, no lifting, pushing,
or pulling over 20 pounds, and no reaching above the shoulder, bending, squatting, kneeling,
climbing, or crawling. The Board finds that these limitations are within the physical demands of
the surveillance system monitor position, which provided sedentary strength level and
restrictions of no climbing, stooping, kneeling, crouching, crawling, and reaching.
Appellant failed to submit any medical evidence which demonstrated that he was unable
to work within the work restrictions provided by Dr. Kasow. The Board finds, therefore, that
appellant had the physical capacity to perform the duties of the selected position.
The Board also finds that appellant had the necessary vocational and educational
preparation for the selected position of surveillance system monitor. Appellant had over three
months of experience in corrections and the military with knowledge of law enforcement
terminology, relaying information in an emergency situation, and experience communicating in a
calm effective way with counselling and training staff, inmates, and soldiers. The rehabilitation
counselor advised that the surveillance system monitor position was reasonably available in the
local labor market.
The Board concludes that OWCP considered the appropriate factors in determining that
the position of surveillance system monitor represented appellant’s wage-earning capacity.15
These factors include availability of suitable employment and appellant’s physical limitations,
usual employment, age, and employment qualifications.16 The evidence of record establishes
that appellant had the requisite physical ability, skills, and experience to perform the position and
13

James Henderson, Jr., 51 ECAB 268 (2000).

14

Supra note 7.

15

John D. Jackson, supra note 5.

16

Id.

7

that such a position was reasonably available within the general labor market of his commuting
area. OWCP therefore properly determined that the position of surveillance system monitor
reflected appellant’s wage-earning capacity, and properly reduced his compensation on
July 29, 2016.17
LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification.18 OWCP
procedures at Chapter 2.1501 contain provisions regarding the modification of a formal loss of
wage-earning capacity.19 This relevant part provides that a formal loss of wage-earning capacity
will be modified when: (1) the original rating was in error; (2) the claimant’s medical condition
has materially changed; or (3) the claimant has been vocationally rehabilitated.20
ANALYSIS -- ISSUE 2
OWCP issued a loss of wage-earning capacity determination on July 29, 2016. On
August 11, 2016 appellant requested reconsideration. As a formal loss of wage-earning capacity
determination was in effect at the time appellant requested reconsideration, he must show a basis
for modification of that decision to be entitled to wage-loss compensation.
The Board finds that the evidence submitted is insufficient to establish that the original
loss of wage-earning capacity determination was erroneous or to establish a material change in
appellant’s employment-related conditions.21 Appellant failed to submit any medical evidence to
establish a material change in the nature and extent of his accepted cervical and right shoulder
conditions.
Based upon appellant’s submission of evidence that his daughter remained a dependent
OWCP properly adjusted his pay rate to the ¾ augmented rate as he had a qualified dependent.
It also advised him that his pay rate included Sunday premium, however, that it was still seeking
further information from the employing establishment as to whether he worked the night shift at
the time of injury.22

17

James Smith, 53 ECAB 188 (2001).

18

Sue A. Sedgwick, 45 ECAB 211 (1993).

19

Supra note 9 at Chapter 2.1501 (June 2013).

20

Id. at Chapter 2.1501.3(a).

21

Supra note 18.

22

This aspect of appellant’s pay rate determination remains in an interlocutory posture, over which the Board
does not have jurisdiction. See J.J., Docket No. 15-1951 (May 16, 2016).

8

Appellant, therefore, did not meet his burden of proof to show that the July 29, 2016 loss
of wage-earning capacity determination should be modified.23
Appellant may request modification of the loss of wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn wages in the selected position of surveillance system
monitor, and that appellant did not meet his burden of proof to establish that a July 29, 2016 loss
of wage-earning capacity determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the November 7 and July 29, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 20, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

See T.M., Docket No. 08-975 (issued February 6, 2009).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Bernard Humbles, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0203
Issued: March 10, 2021

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 November 4, 2019 appellant, through his representative, filed a timely appeal from a
May 24, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days has elapsed from the last merit decision, dated January 16, 2018, to the filing

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.

of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On January 31, 2017 appellant, then a 66-year-old housekeeping aid, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2017 he experienced a swollen and painful
right knee when his knee gave out and caused him to fall to the floor while he was positioning
beds in the ambulatory surgery ward while in the performance of duty.4 He stopped work on the
filing date of his claim and submitted medical evidence in support of his claim.
After further development, OWCP, by decision dated May 4, 2017, denied appellant’s
traumatic injury claim, finding that the alleged January 30, 2017 incident did not occur within the
performance of duty.
On May 17, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received additional medical evidence. In a March 6, 2017 attending
physician’s report (Form CA-20), Dr. Allan L. Bucknell, a Board-certified orthopedic surgeon,
noted a history of injury that on January 30, 2017 appellant hit his knee and fell injuring his right
shoulder at work. He diagnosed aggravated osteoarthritis and rotator cuff tear of the right shoulder.
Dr. Bucknell advised that the diagnosed conditions were caused or aggravated by the described
employment activity.
A March 8, 2017 right shoulder magnetic resonance imaging (MRI) scan report by
Dr. Troy L. Miller, a diagnostic radiologist, and Dr. Richard J. Oh, a Board-certified diagnostic
radiologist, provided an impression of massive rotator cuff tear involving most of the supraspinatus
tendon with the small posterior segment still intact. There was also retraction of the tendon to the
level of the superior humeral head. Additionally, there was no significant muscle atrophy.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the May 24, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4
Appellant has a prior claim under OWCP File No. xxxxxx910, for a September 12, 2016 traumatic injury. OWCP
accepted the claim for chondromalacia and tear of the articular cartilage of the right knee.

2

Dr. Miller and Dr. Oh further provided an impression of advanced hypertrophic degenerative joint
disease of the acromioclavicular joint.
Dr. Lorenzo Silvestri, a Board-certified orthopedic surgeon, noted in an April 3, 2017 Form
CA-20 report, a history of injury that on January 30, 2017 appellant fell at work. He diagnosed
right rotator cuff tear. Dr. Silvestri advised that the diagnosed condition was caused or aggravated
by the described employment activity.
During the telephonic hearing, held on November 16, 2017, appellant described the work
duties he was performing at the time of injury on September 12, 2016 and January 30, 2017, the
development of his right knee and right shoulder conditions, and history of his medical treatment.
OWCP thereafter continued to receive medical evidence, including an October 24, 2016
right knee MRI scan report by Dr. Nathan D. Hensley, a Board-certified diagnostic radiologist.
Dr. Hensley provided an impression of osteoarthritis, severe in the medial compartment where
there was full-thickness chondral thinning and marked diffuse degeneration of the posterior horn
of the medial meniscus. There was also a small full-thickness chondral defect along the posterior
weight-bearing portion of the lateral femoral condyle and mild patellofemoral chondromalacia.
Additionally, Dr. Hensley provided an impression of sprain/partial tear of the anterior cruciate
ligament (ACL) versus appearance related to mucoid degeneration. He recommended clinical
correlation with regard to instability. There was an irregular and a buckled appearance of the
posterior cruciate ligament (PCL) without disruption. Dr. Hensley also noted impressions of
moderate-to-large joint effusion and popliteal cyst, remote medial collateral ligament (MCL)
injury, and popliteus tendinosis.
Dr. Larisa Ravdel, a physician specializing in family and general medicine, reported, in a
December 22, 2017 letter, that appellant sustained a work-related right knee injury on
September 12, 2016 and a right shoulder injury on January 30, 2017. She noted that he continued
to have right knee problems.
OWCP received correspondence from the employing establishment, including a
September 26, 2017 letter from Karissa Stewart, a nurse manager, who described appellant’s
employment duties as a housekeeper. A partial undated letter from Amanda Martinez, a deputy
service chief and emergency operation center manager, indicated that appellant resigned from his
housekeeper position because he was unable to return to full-duty work.
By decision dated January 16, 2018, an OWCP hearing representative modified the May 4,
2017 decision, finding that the January 30, 2017 employment incident occurred while appellant
was in the performance of duty. The claim remained denied, however, as the medical evidence of
record was insufficient to establish a causal relationship between appellant’s diagnosed conditions
and the accepted employment incident. Additionally, the hearing representative noted that, since
appellant’s prior work-related injury had been cross-referenced in the factual and medical evidence
in the instant case, she directed OWCP to administratively combine the current claim under OWCP
File No. xxxxxx361 with OWCP File No. xxxxxx910.

3

On June 18, 2018 appellant again contended that he sustained an injury as a result of his
housekeeper duties and that accompanying documents supported his claim.
Undated affidavits and affidavits dated February 9, 2018 from appellant’s coworkers
acknowledged that, through their conversations with appellant after his injury on September 12,
2016 and January 30, 2017, he showed right knee symptoms while performing his housekeeper
duties.
Progress notes from the employing establishment medical center dated September 12 and
14, 2016 indicated appellant’s diagnoses of right gluteal contusion and musculoskeletal strain.
In a January 30, 2017 right knee x-ray report, Dr. Alan Xu, a Board-certified diagnostic
radiologist, provided an impression of no acute osseous abnormality. He also provided
impressions of mild degenerative changes and suggestion of at least small joint effusion.
An additional report dated March 8, 2017 from Dr. Miller noted that an MRI scan of
appellant’s right knee revealed prominent irregularity and thickening of the PCL, compatible with
partial thickness tearing. There was also marked thickening and edema of the intact ACL,
compatible with strain and partial thickness tearing. There was prominence reactive marrow
edema within the tibial spine adjacent to the ACL insertion and prominent reactive marrow edema
within the distal femur at the level of the condylar notch. Dr. Miller further noted an impression
of small-to-moderate-sized knee joint effusion and associated synovitis. Additionally, he provided
an impression of complex degenerative tearing of the peripherally extruded body and posterior
horn of the medial meniscus. Lastly, Dr. Miller provided an impression of advanced medial
compartment chondromalacia with large areas of full-thickness cartilage loss on both sides of the
joint space and foci of subchondral marrow edema on both sides of the medial compartment joint
space.
An April 3, 2017 right shoulder x-ray report from Dr. Francis I. Donahue, a diagnostic
radiologist, noted an impression of degenerative and post-traumatic changes as described.
On March 18, 2019 appellant requested reconsideration.
OWCP thereafter received duplicate copies of Dr. Hensley’s October 24, 2016 right knee
MRI scan report, Dr. Bucknell’s March 6, 2017 Form CA-20 report, Dr. Oh’s March 8, 2017 right
shoulder MRI scan report, Dr. Silvestri’s April 3, 2017 Form CA-20 report, Dr. Ravdel’s
December 22, 2017 report, and Ms. Stewart’s September 26, 2017 letter.
By decision dated May 24, 2019, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

4

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. A request
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.6 Timeliness is determined by the document receipt date (i.e., the “received date”
in OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).7 Imposition of this
one-year filing limitation does not constitute an abuse of discretion.8
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.9 Its procedures provide that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP.10 In this
regard, OWCP will limit its focus to a review of how the newly submitted evidence bears on the
prior evidence of record.11
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to

5
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8
G.G., Docket No. 18-1074 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
9

See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4, 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
10

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also id. at § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016).
11

J.M., Docket No. 19-1842 (issued April 23, 2020); J.W., Docket No. 18-0703 (issued November 14, 2018);
Robert G. Burns, 57 ECAB 657 (2006).
12

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

5

the correctness of OWCP’s decision. The Board makes an independent determination as to
whether a claimant has demonstrated clear evidence of error on the part of OWCP.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations14 and procedures15 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.16
The most recent merit decision was an OWCP hearing representative’s January 16, 2018 decision
which found that appellant had established that the January 30, 2017 employment incident
occurred in the performance of duty, as alleged, but denied his traumatic injury claim because the
medical evidence was insufficient to establish a causal relationship between the accepted
employment incident and his diagnosed medical conditions. As his request for reconsideration
was not received by OWCP until March 18, 2019, more than one year after the January 16, 2018
decision, the Board finds that it was untimely filed. Because his request was untimely filed,
appellant must demonstrate clear evidence of error on the part of OWCP in having denied his
occupational disease claim.
In support of his untimely request for reconsideration, appellant, through his representative,
resubmitted medical reports from Drs. Hensley, Bucknell, Oh, Miller, Silvestri, and Ravdel, and
correspondence from Ms. Stewart, which were previously considered by OWCP, as well as new
progress notes and reports from the employing establishment medical center and Drs. Xu, Miller,
and Donahue that failed to address the causal relationship between appellant’s diagnosed right
gluteal, musculoskeletal, right knee, and right shoulder conditions and the January 30, 2017
employment incident. Appellant did not sufficiently explain how this evidence raised a substantial
question as to the correctness of OWCP’s January 16, 2018 merit decision.17
The Board, thus, finds that appellant has not raised an argument or submitted any evidence
that manifests on its face that OWCP committed an error in denying his traumatic injury claim.18

13

U.C., Docket No. 19-1753 (issued June 10, 2020).

14

20 C.F.R. § 10.607(a); see F.N., Docket No. 18-1543 (issued March 6, 2019); Alberta Dukes, 56 ECAB
247 (2005).
15
Supra note 7 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
16

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

17

See J.S., Docket No. 19-1203 (issued January 22, 2020); see also B.C., Docket No. 18-1496 (issued
May 22, 2019).
18

S.C., Docket No. 19-1424 (issued September 15, 2020); U.C., supra note 13.

6

Thus, the Board finds that his untimely request for reconsideration failed to demonstrate clear
evidence of error.19
On appeal appellant’s representative contends that appellant submitted sufficient medical
evidence to establish that his right shoulder injury and resultant June 1, 2018 right shoulder surgery
and resignation from the employing establishment were caused by the accepted January 30, 2017
employment incident. As explained above, the Board finds that the evidence submitted with the
untimely reconsideration request is insufficient to meet appellant’s burden of proof.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2021
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

19

Id.

7