United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1503
Issued: April 13, 2009

Case Submitted on the Record

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

JURISDICTION
On April 29, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 30, 2007 merit decision denying modification of its March 30,
1998 wage-earning capacity decision and the November 15, 2007 nonmerit decision denying his
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office properly denied modification of the March 30,
1998 loss of wage-earning capacity determination; and (2) whether the Office properly denied
appellant’s request for merit review under 5 U.S.C. § 8128(a).
On appeal, appellant’s representative alleged that the original wage-earning capacity
determination was erroneous, as appellant’s limited-duty position was “makeshift work designed
for his particular needs, was not regular employment and [did] not reasonably reflect his wageearning capacity.”

FACTUAL HISTORY
The case has been before the Board on prior appeals. On October 18, 2002 the Board set
aside the Office’s August 4, 2000 decision denying appellant’s compensation claim and the
May 7, 2001 decision finding that appellant abandoned his request for a hearing.1 By order dated
July 19, 2007, the Board set aside its September 21, 2005 and May 24, 2006 decisions denying
appellant’s claim for a recurrence of disability, and remanded the case, finding that the Office
should have adjudicated the issue of modification of the March 30, 1998 loss of wage-earning
capacity (LWEC) decision.2 The facts and the law contained in those decisions are incorporated
herein by reference.
Appellant sustained injuries to his right knee on July 7, 1992. The Office accepted his
claim for a tear of the right meniscus and subsequent total right knee replacement and paid
appropriate compensation.3
On November 7, 1997 appellant accepted a position as a modified distribution clerk.
Duties included standing and casing mail for no more than four hours, delivering mail curbside,
riding for no more than eight hours or walking for no more than two to three hours, casing mail
and pulling and pushing a hamper to a vehicle. In a report dated November 7, 1997, appellant’s
treating physician, Dr. Gurpal S. Bhuller, a Board-certified orthopedic surgeon, reviewed the
modified clerk position description and opined that the position was suitable for appellant and
within his restrictions.
By decision dated March 30, 1998, the Office reduced appellant’s compensation to zero,
finding that his position of modified distribution clerk fairly and reasonably represented his
wage-earning capacity and that his actual wages met or exceeded the wages of the job held when
he was injured.
In reports dated June 27, 2005, Dr. William D. Brickhouse, a Board-certified orthopedic
surgeon, opined that appellant was totally disabled due to his July 1, 1992 injury. He reported
appellant’s complaints of increased pain, stiffness and difficulty standing and walking.
Examination of the right knee demonstrated diffuse tenderness and a severely restricted range of
motion. Dr. Brickhouse noted that appellant originally had an extension lag of about 20 to 30
degrees and flexion to only 78 degrees, but that his condition had worsened. Anteroposterior
(AP) and lateral x-rays revealed some settling in the posterior aspect of the tibia, some thinning
of the tibial polyethylene, as evidence by loss of joint space and a metal-backed patella, which
suggests loosening. Dr. Brickhouse indicated that appellant was unable to perform the duties of
his modified position, which included sitting and standing for four hours, walking for three
hours, pulling and pushing for two hours and keyboarding for eight hours.
1

Nelson R. Hubbard, 54 ECAB 156 (2002).

2

Docket No. 06-1704 (issued July 19, 2007).

3

The record reflects that appellant’s December 5, 1988 traumatic injury claim was accepted for right knee sprain
and aggravation of preexisting arthritis. (File No. xxxxxx503) On February 26, 1996 File No. xxxxxx503 was
combined with File No. xxxxxx870, which was designated as the master file. Appellant received schedule awards in
1991, 2003 and 2004, for the total of a 75 percent impairment of his right lower extremity.

2

On July 11, 2005 Dr. Brickhouse noted that appellant’s complaints of pain that seems to
be more in the anterior aspect and piercing throughout the posterior aspect of the knee. X-rays
showed some loss of space laterally, and a lucent line around the metal back prosthesis.
Dr. Brickhouse stated that the only option left was to consider revision knee replacement. A
July 11, 2005 duty status report reflected that appellant was totally disabled.
On August 1, 2005 Dr. Brickhouse opined that appellant was not able to return to his
modified position and that he could perform only sedentary work due to his disabling knee
condition. He stated that appellant was not able to walk appreciable distances, was unable to get
in and out of a car and was unable to go up and down stairs.
On August 5, 2005 appellant filed a claim for recurrence of disability as of June 21, 2005.
In an August 5, 2005 statement, he indicated that his knee condition had progressively worsened
to the degree that he was unable to perform the duties of his modified position. Appellant stated
that his knee replacement had “worn out” and that his work duties caused increased knee pain,
even though he had been performing the duties of a passport agent since August 2004.
On September 2, 2005 Dr. Brickhouse stated that appellant needed surgery to correct his
failed knee revision. X-rays showed significant tilt involving the patella and loss of space, which
suggested significant polyethylene weakness. Dr. Brickhouse again opined that appellant was
totally disabled. On September 12, 2005 he requested authorization for total knee replacement
surgery.
In a decision dated September 21, 2005, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to establish that the claimed
recurrence was due to the accepted injury. On October 19, 2005 appellant requested
reconsideration.
Appellant submitted an October 18, 2005 report from Dr. Brickhouse, who stated that
appellant’s x-rays revealed evidence of prosthetic wear. Dr. Brickhouse opined that appellant
needed a total knee replacement due to traumatic arthritis of the right knee. On May 5, 2006 he
noted appellant’s continuing disability due to his right knee condition, and stated that he had not
decided whether or not to undergo surgery.
By decision dated May 24, 2006, the Office affirmed the denial of appellant’s recurrence
claim, but modified its decision to accept claims for medical benefits related to the accepted
conditions retroactive to September 21, 2005. The Office found that there was no rationalized
medical opinion evidence connecting the accepted work injuries to appellant’s alleged disability
after June 21, 2005 and his need for surgery. Appellant appealed the Office’s denial to the
Board.
In an order dated July 19, 2007, the Board set aside the Office’s September 21, 2005 and
May 24, 2006 decisions denying appellant’s claim for a recurrence of disability, and remanded
the case for adjudication of the issue of modification of the March 30, 1998 LWEC decision.4

4

See supra note 2.

3

In a July 23, 2007 report, Dr. Brickhouse reiterated his opinion that appellant needed a
total knee replacement, due to a failed prosthesis, which limited his ability to stand and walk and
created significant pain. He stated that appellant had an extension lag of 10 degrees and flexion
from 60 to 70 degrees.
In an August 30, 2007 decision, the Office denied modification of the March 30, 1998
wage-earning capacity decision. It found that appellant had failed to meet any of the established
criteria, including the submission of rationalized medical evidence explaining how his workrelated condition had worsened to the degree that he was unable to perform the duties of his
modified position. The Office stated that clarification was required to determine whether
appellant was able to work at all, prior to actual revision surgery.
In a report dated September 10, 2007, the district medical adviser (DMA) reviewed
appellant’s medical records and opined that the recommended revision knee replacement was
appropriate and medically necessary as related to factors of his employment. He noted that
appellant was then 10 years’ status post knee replacement, with loosening of the prosthesis; had
increased pain with significant loss of motion; had a 15 degree extension lag and flexion limited
to about 70 degrees; and was using a cane for ambulatory support.
On October 25, 2007 appellant requested reconsideration of the August 30, 2007
decision. He stated that he had been notified by letter dated July 11, 2006 that he had been
reassigned, outside of his installation to the position of sales distribution associate effective
July 8, 2006. Appellant also received a letter from the employing establishment dated July 30,
2007 indicating that he was unable to perform the duties of the assigned position and that they
were unable to accommodate his disability. Further, he was notified by the Office on
October 11, 2007 that total knee replacement surgery had been authorized. Appellant stated that
he had been performing the duties of a passport clerk, as well as all of the other duties of his
modified position and that, as a result, his work-related condition had worsened.
By decision dated November 15, 2007, the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.5 The procedure manual further indicates that,
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.6

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., 56 ECAB 320 (2005).

4

Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.7 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.8
ANALYSIS -- ISSUE 1
In its March 30, 1998 LWEC decision, the Office found that the position of modified
distribution clerk fairly and reasonably represented appellant’s wage-earning capacity. Since
appellant requested a modification of the LWEC decision, he has the burden of proof to show
that a modification of the wage-earning capacity determination is warranted.9
Appellant’s representative argues that the original LWEC determination was erroneous,
in that the limited-duty position did not reasonably reflect his wage-earning capacity. However,
he provided no evidence that the original determination was erroneous. On the contrary, the
evidence of record reflects approval of the modified position by appellant’s treating physician,
and his opinion that the position was within appellant’s restrictions.
Appellant’s representative also contends that there has been a material change in the
nature and extent of the injury-related condition that renders him unable to perform the duties of
the position.10 The evidence of record supports this contention.
Appellant’s treating physician at the time the Office issued the LWEC determination,
Dr. Bhuller, reviewed the duties required for the position of modified distribution clerk, which
included standing and casing mail for no more than four hours; delivering mail curbside, while
riding for no more than eight hours, or walking for no more than two to three hours; casing mail;
and pulling and pushing a hamper to a vehicle. He found that the position was suitable for
appellant and within his restrictions. Based upon Dr. Bhuller’s recommendation, the Office
reduced appellant’s compensation to zero and found that the modified position fairly and
reasonably represented his wage-earning capacity.
On June 27, 2005 appellant’s treating physician at that time, Dr. Brickhouse, opined that
appellant was unable to perform the duties of his modified position, which included sitting and
standing for four hours, walking for three hours, pulling and pushing for two hours and
keyboarding for eight hours and was totally disabled from work. He reported appellant’s
complaints of increased pain, stiffness and difficulty standing and walking. Dr. Brickhouse
7

D.M., 59 ECAB ___ (Docket No. 07-1230, issued November 13, 2007); Tamra McCauley, 51 ECAB
375 (2000).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11(b)(1) (October 2005) (if a claimant is seeking modification, he must establish that the original
rating was in error or that the injury-related condition has worsened). P.C., 58 ECAB ___ (Docket No. 06-1954,
issued March 6, 2007); Harley Sims, Jr., supra note 6.
9

Id.

10

Phillip S. Deering, 47 ECAB 692 (1996).

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found diffuse tenderness and a severely restricted range of motion in the right knee, noting that
appellant originally had an extension lag of about 20 to 30 degrees and flexion to only 78
degrees, but that his condition had worsened. AP and lateral x-rays revealed some settling in the
posterior aspect of the tibia; some thinning of the tibial polyethylene, as evidence by loss of joint
space; and a metal-backed patella, which suggests loosening.
In follow-up reports, Dr. Brickhouse reiterated his opinion that appellant was unable to
perform the duties of his modified position. On August 1, 2005 he stated that appellant could
perform only sedentary work due to his disabling knee condition and indicated that appellant was
not able to walk appreciable distances, was unable to get in and out of a car, and was unable to
go up and down stairs. On September 2 and October 18, 2005 Dr. Brickhouse recommended
total knee replacement surgery to correct appellant’s failed knee revision, noting that x-rays
revealed significant tilt involving the patella and loss of space, suggesting significant
polyethylene weakness. On July 23, 2007 he reiterated his opinion that appellant needed a total
knee replacement, due to a failed prosthesis, which limited his ability to stand and walk and
created significant pain. The Board finds that Dr. Brickhouse’s reports provide substantial
support for appellant’s contention that his employment-related condition has worsened to the
degree that he is unable to perform the duties of the modified distribution clerk position on which
the Office based its March 30, 1998 LWEC determination.
Proceedings under the Federal Employees’ Compensation Act are not adversarial in
nature. While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence.11
In this case, although
Dr. Brickhouse’s reports do not contain rationale sufficient to discharge appellant’s burden of
proof to establish that his employment-related condition has worsened or changed such that the
March 30, 1998 wage-earning capacity decision should be modified, they do constitute
substantial, unrefuted evidence in support of his modification claim, such that further
development of the case by the Office is warranted.12 His numerous reports, which contain
findings on examination and a recommendation for total knee replacement surgery, are
consistent in indicating that appellant is not able to perform the duties of the modified
distribution clerk position, which involved driving, walking and casing mail, due to a worsening
of his accepted knee condition.
On remand, the Office should further develop the medical evidence as appropriate to
obtain a rationalized opinion regarding whether appellant has established that the March 30,
1998 loss of wage-earning capacity decision should be modified. Following such further
development of the case record as it deems necessary, it should issue a de novo decision.13

11

Donald R. Gervasi, 57 ECAB 281 (2005); Betty J. Smith, 54 ECAB 174 (2002).

12

Thaddeus J. Spevack, 53 ECAB 474 (2002); see John J. Carlone, 41 ECAB 354 (1989).

13

In light of the Board’s ruling on the first issue, the second issue is moot.

6

CONCLUSION
The Board finds that this case is not in posture for a decision as to whether modification
of appellant’s wage-earning capacity determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 15 and August 30, 2007 are set aside, and the case is
remanded for further proceedings consistent with the above opinion.
Issued: April 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 07-145
Issued: May 11, 2007

Case Submitted on the Record

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

JURISDICTION
On October 20, 2006 appellant filed an appeal of an October 12, 2006 decision of the
Office of Workers’ Compensation Programs denying modification of a prior decision
terminating his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that he had a continuing disability on and after
June 22, 1996 related to accepted lumbar strains, a herniated L4-5 disc and an L5-S1 discectomy.
FACTUAL HISTORY
This is the second appeal before the Board. By decision dated January 12, 2005,1 the
Board affirmed an April 22, 2004 decision of the Office affirming the termination of appellant’s
compensation benefits effective June 22, 1996 on the grounds that his accepted employment
1

Docket No. 04-1355 (issued January 12, 2005).

injuries resolved without residuals. The Board found that the weight of the medical evidence
rested with Dr. Patrick G. Laing, a Board-certified orthopedic surgeon and impartial medical
examiner. Dr. Laing submitted a March 15, 1996 report explaining that x-rays and clinical
findings demonstrated no residuals of the accepted November 7, 1976 and October 3, 1982
lumbar strains, herniated L4-5 disc and September 29, 1977 L5-S1 discectomy. The law and the
facts of the case as set forth in the Board’s prior decision are hereby incorporated by reference.
In a September 20, 2005 letter, appellant requested reconsideration. He asserted that new
medical evidence demonstrated that he continued to have disabling residuals of the accepted
conditions on and after June 22, 1996.2
In an April 21, 2005 report, Dr. Michael J. Seel, an attending Board-certified orthopedic
surgeon, noted a history of lumbar and bilateral knee pain. He commented that appellant
sustained a 1977 “lifting-type” work injury but that no medical records were presently available.
Dr. Seel also noted 1995 and 1997 knee surgeries. He obtained x-rays showing degenerative
disc disease at L3-4 and L5-S1.3 Dr. Seel diagnosed lumbar stenosis at L4-5, a disc protrusion at
L5-S1, advanced degenerative joint disease of both knees and status post multiple surgical
procedures. He administered injections to both knees. Dr. Seel obtained knee x-rays on June 2,
2005 and administered additional knee injections on June 2 and August 19, 2005. On August 19,
2005 he diagnosed right trochanteric bursitis and administered an injection.
In a June 17, 2005 report, Dr. Michael J. Platto, an attending Board-certified physiatrist,
provided a history of injury and treatment. On examination, he noted restricted lumbar motion
and bilaterally positive straight leg raising tests. Dr. Platto stated an impression of status post
September 1977 L4-5 laminectomy, degenerative lumbar disc disease and severe degenerative
joint disease of both knees. In a September 12, 2005 letter, he noted diminished two-point
discrimination in the L5 dermatomes bilaterally. Dr. Platto opined that appellant had a 4.5
percent permanent impairment of the lower extremities due to L5 nerve root dysfunction.
By decision dated October 12, 2006, the Office affirmed the termination of appellant’s
compensation benefits. The Office found that the reports of Dr. Seel and Dr. Platto were
insufficient to outweigh that of Dr. Laing.4 The Office explained that Dr. Seel did not opine that
the lumbar postsurgical changes required additional treatment or in any way disabled appellant
for work. Also, Dr. Seel did not relate the diagnosed knee and hip conditions to the accepted
injuries. The Office further found that Dr. Platto did not address whether appellant had any
work-related residuals.
2

In his September 20, 2005 letter, appellant also claimed a schedule award for a ratable impairment of the lower
extremities. There is no decision of record directly adjudicating the schedule award claim. The Board notes,
however, that the October 12, 2006 decision affirmed that appellant had no residuals of the accepted conditions.
3

A March 4, 2005 lumbar magnetic resonance imaging (MRI) scan showed postsurgical changes at L5-S1 on the
right with a small disc protrusion and severe stenosis at L4-5.
4

In an April 10, 2006 telephone memorandum, the Office noted advising appellant’s attorney “that a new
impartial was needed.” The Office noted that the examination would be scheduled after preparation of a new
statement of accepted facts. There is no indication of record that the Office scheduled an impartial medical
examination prior to issuing the October 12, 2006 decision.

2

LEGAL PRECEDENT
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.5 Having determined that an employee has a
disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.6
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to the claimant. In order to
prevail, the claimant must establish by the weight of reliable, probative and substantial evidence
that he or she had an employment-related disability that continued after termination of
compensation benefits.7 For conditions not accepted by the Office as being employment related,
it is the employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation.8 The fact that a condition’s etiology is unknown does not relieve the claimant of the
burden of establishing a causal relationship by the weight of the medical evidence.9
ANALYSIS
Appellant submitted additional medical evidence following the Board’s January 12, 2005
decision affirming the prior termination of his compensation benefits. He asserted that these
reports were sufficient to establish that he had disabling residuals of the accepted lumbar injuries
on and after June 22, 1996, the date the Office terminated his compensation.
Dr. Seel, an attending Board-certified orthopedic surgeon, submitted an April 21, 2005
report noting a 1977 “lifting-type” work injury. However, he stated that there were “no medical
records” available regarding this injury. Dr. Seel’s opinion is therefore of diminished probative
value as it is based on an incomplete medical history.10 He diagnosed lumbar stenosis at L4-5,
an L5-S1 disc protrusion, right trochanteric bursitis and bilateral knee conditions. But Dr. Seel
did not provide medical rationale supporting that these conditions were related to the accepted
lumbar injuries. The lack of rationale further diminishes the probative value of his opinion.11
Dr. Platto, an attending Board-certified physiatrist, submitted June 17 and September 12,
2005 reports diagnosing status post 1977 L4-5 laminectomy and degenerative disease of the
lumbar spine and both knees. He also observed diminished sensation in the L4-5 dermatomes
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

See Virginia Davis-Banks, 44 ECAB 389 (1993); see also Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992).

8

Alice J. Tysinger, 51 ECAB 638 (2000).

9

Judith J. Montage, 48 ECAB 292, 294-95 (1997).

10

See John W. Montoya, 54 ECAB 306 (2003).

11

Deborah L. Beatty, 54 ECAB 340 (2003).

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bilaterally. However, Dr. Platto did not opine that any of the diagnosed conditions were
pathophysiologically related to the accepted injuries. Thus, his opinion is insufficient to
establish that appellant had disabling residuals of the accepted injuries on and after
June 22, 1996.12
The Board finds that the weight of the medical evidence continues to rest with Dr. Laing,
a Board-certified orthopedic surgeon and impartial medical examiner, who provided a wellrationalized report based on the complete medical record explaining that appellant no longer had
residuals of the accepted lumbar injuries after March 15, 1996. Neither Dr. Seel nor Dr. Platto
provided medical rationale, based on a complete and accurate factual and medical history,
opining that appellant had disabling residuals of the accepted lumbar injuries on and after
June 22, 1996. Thus, the Board finds that appellant has not met his burden of proof to reinstate
his compensation benefits.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing a
continuing work-related disability on and after the Office terminated his compensation benefits
on June 22, 1996.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 12, 2006 is affirmed.
Issued: May 11, 2007
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Gaithersburg, MD,
Employer
__________________________________________

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

Docket No. 16-0496
Issued: April 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 29, 2015 appellant filed a timely appeal of a July 15, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
since the last OWCP merit decision on August 20, 2009 to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s requests for
reconsideration were insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was before the Board on a prior appeal with respect to a traumatic injury claim
for an emotional condition causally related to a November 17, 2007 employment incident.2
Appellant, a 56-year-old mail processor, had filed a Form CA-1 claim alleging that on
November 17, 2007 she had suffered anxiety attacks after an incident with her supervisor
regarding leave slips. She indicated in a statement received by OWCP on March 24, 2008 that
her supervisor wanted her to sign leave slips designating her as absent without leave (AWOL)
for certain dates. By decision dated April 9, 2008, OWCP denied the claim, finding no
compensable work factors and thus appellant’s claimed emotional condition was not sustained in
the performance of duty. Appellant requested reconsideration, and by decision dated
November 6, 2008, OWCP denied modification. The record indicates she again requested
reconsideration, and by decision dated June 25, 2009, OWCP reviewed the merits of the claim
and denied modification.
Appellant requested reconsideration on July 17, 2009, alleging that her supervisor was
loud and abusive on November 17, 2007. OWCP reviewed the merits of the claim and denied
modification by decision dated August 20, 2009.
On October 26, 2009 appellant requested reconsideration.
By decision dated
November 16, 2009, OWCP found the request was insufficient to warrant a merit review of the
claim. Appellant filed an appeal with the Board, and by decision dated October 18, 2010, the
Board affirmed the August 20, 2009 OWCP decision.3 The Board found that appellant had
spoken to a union representative about “court leave” but was told the requested leave could not
be approved as it was not for employing establishment business or for jury duty. Appellant was
advised to request annual leave. As to a compensable work factor, the Board found there was no
evidence of error or abuse with respect to the administrative matter involving appellant’s leave.
The Board also affirmed the November 16, 2009 nonmerit decision, finding that appellant’s
reconsideration request had merely reiterated her allegation that her supervisor was loud and
abusive.
On December 10, 2010 OWCP received a November 9, 2010 letter from appellant
requesting reconsideration of the October 18, 2010 Board decision. The letter was entitled
“petition for reconsideration” and contained the address of the Clerk of the Board. There is no
indication that the letter was sent to the Board. Appellant argued that it was harassment for the
supervisor to have her sign as AWOL for requested dates, and that “court leave” was not limited
to employer’s business or jury duty. She argued that she was in the performance of duty and the
employing establishment erred with respect to an administrative matter.

2

Appellant has other claims for injury, including an occupational disease or illness (Form CA-2) claim filed on
October 21, 2012 for an emotional condition. Pursuant to that claim, OWCP accepted as compensable a
September 29, 2012 employment incident involving verbal abuse and accepted the claim for one episode of panic
attack.
3

Docket No. 10-0772 (issued October 18, 2010).

2

Appellant submitted a December 4, 2013 letter, received by OWCP on December 9,
2013, reiterating her request for reconsideration. She noted that she had an accepted claim based
on verbal abuse. With respect to evidence, appellant submitted medical reports dated January 30
and June 28, 2013 from Dr. Michael Horan, a Board-certified psychiatrist. In the January 30,
2013 report, Dr. Horan indicated that appellant had been under his treatment since January 2007
for panic disorder and dysthymia. On May 18, 2015 appellant submitted a May 5, 2015 letter
again indicating that she had previously requested reconsideration and that she had submitted
supporting medical evidence.
By decision dated July 15, 2015, OWCP found that appellant had timely filed a
reconsideration request. It also found that she had requested reconsideration on December 10,
2010, December 9, 2013, and May 18, 2015. However, OWCP found that appellant had not met
the requirements for a merit review of her claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either “(i) shows that OWCP erroneously applied or interpreted a specific point of
law, (ii) advances a relevant legal argument not previously considered by OWCP, or
(iii) constitutes relevant and pertinent new evidence not previously considered by OWCP.”5
20 C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.6
ANALYSIS
In the present case, appellant had alleged that she sustained an emotional condition as a
result of a November 17, 2007 incident with her supervisor regarding leave. The last OWCP
decision on the merits of the claim was dated August 20, 2009, and the Board reviewed the
merits of the claim by decision dated October 18, 2010. Appellant had one year from the
October 18, 2010 decision to request reconsideration.7
The record reveals that by letter dated November 9, 2010, received on December 10,
2010, appellant requested reconsideration. Although the letter referred to a “petition for
reconsideration” and contained the Board’s address, there is no indication that it was sent to the
4

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

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

7

A right to reconsideration within one year accompanies any subsequent merit decision, including any merit
decision by the Board. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4a (February 2016); see also H.T., Docket No. 14-964 (issued December 17, 2014).

3

Board. Instead OWCP treated it as a timely reconsideration request and issued the decision of
July 15, 2015.8
The issue presented is whether appellant has met any of the requirements of 20 C.F.R.
§ 10.606(b)(3) to reopen her claim. Appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, or advance a relevant legal argument not previously
considered by OWCP. OWCP determined that she had not established a compensable work
factor in this case as to the supervisor’s actions on November 17, 2007, and the Board affirmed
that finding. Appellant made general references to employing establishment premises, right to
union representation, and the clear evidence of error standard. She did not cite to a specific point
of law and show how OWCP erroneously applied or interpreted the law, nor did she advance a
new and relevant legal argument. In the prior appeal the Board found that there was no probative
evidence of administrative error in the actions of the supervisor. It is well established that the
reopening of a case is not required where the legal contention has no reasonable color of
validity.9
With respect to evidence submitted, appellant submitted medical evidence from
Dr. Horan. The reports are irrelevant to the underlying merit issues presented. Until a
compensable work factor is established, the medical evidence is irrelevant since the medical
issue is whether a diagnosed condition is causally related to a compensable work factor.10
The Board accordingly finds OWCP properly denied the reconsideration requests without
merit review. Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent new evidence not previously considered by OWCP. Pursuant to 20 C.F.R.
§ 10.608(b), OWCP properly denied merit review.
CONCLUSION
The Board finds OWCP properly determined that appellant’s requests for reconsideration
were insufficient to warrant merit review of the claim.

8

See J.T., Docket No. 07-0737 (issued April 12, 2007) (appellant sent a petition for reconsideration of a Board
decision to OWCP and it properly considered it as a request for reconsideration and issued a decision).
9
10

Elaine M. Borghini, 57 ECAB 549 (2006); Annette Louis, 54 ECAB 783 (2003).
See James W. Scott, 55 ECAB 606 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 15, 2015 is affirmed.
Issued: April 15, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, Fort Hood, TX,
Employer
__________________________________________

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

Docket No. 15-527
Issued: April 21, 2015

Case Submitted on the Record

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

JURISDICTION
On January 9, 2015 appellant filed a timely appeal from a December 19, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration of the merits of her claim. As more than 180 days has elapsed from the date of
the last merit decision of May 30, 2014 to the filing date of the current appeal on January 9, 2015
and pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the December 19, 2014 OWCP decision and on appeal,
appellant submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP
at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that OWCP was not diligent in filing evidence, including a
physician’s report which she submitted with her request for reconsideration. She further argues
the merits of her claim.
FACTUAL HISTORY
On March 29, 2014 appellant, then a 44-year-old food service worker, filed an
occupational disease claim (Form CA-2) alleging that she sustained a right wrist injury due to
washing, sanitizing, and rinsing 30 to 40 heavy trays repeatedly for approximately 2.5 weeks in
the performance of her federal duties. She indicated that the dishwasher was broken and all tray,
plate, and cup cleaning had to be done manually.
In an April 8, 2014 letter, OWCP notified appellant of the deficiencies of her claim. It
afforded her 30 days to submit additional evidence and respond to its inquiries.
By decision dated May 30, 2014, OWCP denied the claim on the basis that appellant
failed to establish fact of injury, finding that no factor of employment had been established.
On July 21, 2014 appellant requested reconsideration and submitted an individual sick
slip dated June 25, 2014 from a physical therapist who indicated that appellant was injured and
needed to wear a thumb spica brace during work duties.
By decision dated December 19, 2014, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.3 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).4
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her

3

Supra note 1. Under section 8128 of FECA, the Secretary of Labor may review an award for or against
payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

2

application for review within one year of the date of that decision.6 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record8 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.9
ANALYSIS
In support of her July 21, 2014 reconsideration request, appellant submitted an individual
sick slip dated June 25, 2014 from a physical therapist who indicated that she was injured and
needed to wear a thumb spica brace during work duties. The Board finds that submission of this
document did not require reopening her case for merit review as it did not contain a medical
diagnosis and was not focused on whether she had established a factor of her federal
employment that caused or aggravated her condition, which was the issue before OWCP.
Therefore, it does not constitute relevant and pertinent new evidence and is not sufficient to
require OWCP to reopen the claim for consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advanced a relevant legal argument not previously
considered by OWCP, nor did she submit any relevant and pertinent new evidence not
previously considered. The Board finds that she did not meet any of the necessary requirements
of 5 U.S.C. § 8128(a) and is not entitled to further merit review.10
On appeal, appellant contends that OWCP was not diligent in filing evidence, including a
physician’s report which she submitted with her request for reconsideration. As the record
shows that OWCP did not receive any additional medical evidence from her, the Board finds that
her argument is not substantiated.
Appellant further argues the merits of her claim. The Board noted above that it only has
jurisdiction over OWCP’s December 19, 2014 nonmerit decision which denied her request for
reconsideration and, therefore, is precluded from conducting a merit review.

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

See A.L., supra note 5. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

9

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

10

See L.H., 59 ECAB 253 (2007).

3

CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2015
Washington, DC

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

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

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

4


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

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

Docket No. 16-1125
Issued: April 26, 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 May 5, 2016 appellant filed a timely appeal from a March 31, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has more
than eight percent permanent impairment of her left upper extremity, for which she previously
received schedule awards.
On appeal appellant requested that the Board review the medical evidence and provide a
decision addressing her claim for additional permanent impairment of her right upper extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of the two
prior appeals are incorporated herein by reference.
On January 9, 2007 appellant, then a 52-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2), alleging that she developed shoulder pain due to her
federal job duties. OWCP denied her claim on March 8, 2007 due to a lack of supporting
medical evidence. Appellant requested reconsideration and OWCP declined to reopen her claim
for consideration of the merits on May 3, 2007. She requested review by the Board, and in a
decision dated March 13, 2008, the Board affirmed OWCP’s decision.2 On September 25, 2007
OWCP accepted that appellant developed right shoulder strain due to factors of her federal
employment.
Appellant filed a claim for a schedule award (Form CA-7). By decision dated July 9,
2009, OWCP granted her a schedule award for seven percent permanent impairment of her right
upper extremity. On August 26, 2009 appellant requested reconsideration of this decision. In a
report dated August 14, 2009, Dr. Donald R. Bassman, a Board-certified orthopedic surgeon,
opined that appellant had 30 percent permanent impairment of the right upper extremity. OWCP
denied modification of the July 9, 2009 decision on September 29, 2009.
Appellant filed a claim for an increased schedule award (Form CA-7) and a claim for
recurrence of disability (Form CA-2a) on October 16, 2009. OWCP accepted the recurrence on
January 21, 2010. Appellant began receiving disability retirement benefits on March 1, 2010.
By decision dated September 30, 2010, OWCP denied appellant’s claim for an additional
schedule award. Counsel requested an oral hearing from OWCP’s Branch of Hearings and
Review on October 11, 2010. In a decision dated May 2, 2011, OWCP’s hearing representative
affirmed the September 30, 2010 decision finding that appellant had no more than seven percent
permanent impairment of her right upper extremity for which she had received a schedule award.
Appellant submitted a series of requests for reconsideration resulting in OWCP decisions
reviewing the merits of her claim and denying modification of the September 30, 2010 decision
on February 8, June 13, and September 19, 2012, and February 25, 2013. She appealed the
February 25, 2013 decision to the Board and, on June 10, 2014,3 the Board found that she had
not established more than seven percent permanent impairment of her right arm. The facts and
circumstances of the case as set forth in the Board’s prior decisions are adopted herein by
reference.
Following the Board’s June 10, 2014 decision, OWCP developed appellant’s claim for a
consequential left upper extremity injury. Appellant underwent a left shoulder magnetic
resonance imaging (MRI) scan and arthrogram on March 5, 2014 which demonstrated a large
full-thickness tear of the supraspinatus tendon and a possible tear of the infraspinatus tendon.
2

Docket No. 07-2329 (issued March 13, 2008).

3

Docket No. 13-1136 (issued June 10, 2014).

2

Dr. Matthew Bradley, an orthopedic surgeon, examined appellant on April 15, 2014. He
reviewed her MRI scan and opined that appellant had a chronic tear and recommended surgery.
OWCP’s medical adviser opined, however, on June 23 and October 8, 2014 that
appellant’s left shoulder condition was not work related.
On November 18, 2014 OWCP referred appellant for a second opinion evaluation with
Dr. Robert Sciortino, a Board-certified orthopedic surgeon. In a report dated December 12,
2014, Dr. Sciortino reviewed appellant’s history of injury and medical history. He noted that
appellant initially reported left shoulder pain in 2006, that she had used her left shoulder for all
overhead work following her right shoulder surgeries, and that appellant’s left shoulder condition
was a consequence of her right shoulder injury. Dr. Sciortino also noted that appellant had
neurological damage as a result of her right shoulder surgeries resulting in weakness in her
deltoid muscle and abnormalities on her EMG. On January 16, 2015 OWCP accepted the claim
for left rotator cuff sprain/tear.
In a report dated February 24, 2015, Dr. Bradley evaluated both of appellant’s shoulders
for permanent impairment, if any. He opined that she had 75 percent permanent impairment of
her right shoulder and 30 percent permanent impairment of her left shoulder due to full-thickness
rotator cuff tear resulting in disability and pain. Dr. Bradley found bilateral loss of range of
motion (ROM), as well as loss of muscle strength, and positive impingement tests on the left.
Subsequently, OWCP’s medical adviser, using the diagnosis-based impairment (DBI)
method, determined that appellant had seven percent permanent impairment of her bilateral
upper extremities based on her full-thickness rotator cuff tear with residual loss. He reported
pain, limited ROM, and positive impingement signs. The medical adviser found that five percent
permanent impairment was warranted for a full-thickness rotator cuff tear with residual loss. He
further noted that grade modifiers for Clinical Studies (GMCS) and Physical Examination
(GMPE) resulted in an increase from the default value of five to seven percent permanent
impairment of the left upper extremity.
In an April 9, 2015 decision, OWCP granted appellant a schedule award for seven
percent permanent impairment of her left arm. Appellant requested reconsideration on August 7,
2015 and requested additional schedule awards for both her right and left arms.
OWCP referred appellant for a second opinion evaluation with Dr. Richard T. Katz, a
Board-certified physiatrist, on December 11, 2015. Dr. Katz examined appellant on January 7,
2016 and provided ROM findings for her left shoulder as 180 degrees of flexion, 50 degrees of
extension, 90 degrees of internal rotation, and 90 degrees of external rotation, 180 degrees of
abduction and 50 degrees of adduction.4 Appellant’s right shoulder demonstrated flexion of 80
degrees, extension of 50 degrees, internal rotation of 90 degrees, external rotation of 60 degrees,
abduction of 75 degrees and adduction of 50 degrees. Dr. Katz repeatedly noted that he was
providing appellant’s permanent impairment rating for her right shoulder only. He found that
she had no neurological weakness and that her lack of active motion in the right shoulder was
due to pain and illness behaviors. Dr. Katz noted an absence of denervation of the EMG. He
4

Dr. Katz found that appellant’s left shoulder ROM figures were normal. A.M.A., Guides 475, Table 15-34.

3

found that appellant was entitled to an additional right upper extremity award due to lack of
ROM. Dr. Katz, using the ROM method, found that loss of flexion was nine percent permanent
impairment, loss of abduction was six percent permanent impairment, loss of external rotation
was not a ratable loss, and that appellant had 15 percent permanent impairment of the right arm
due to loss of ROM. He found that appellant had GMPE of 2 due to loss of motion.5 Dr. Katz
also noted that appellant’s QuickDASH score was grade 4 resulting in a functional history grade
adjustment of 2 and 10 percent increase to total ROM or 16.5 percent rounded up to 17 percent
of the right upper extremity.
OWCP’s medical adviser reviewed appellant’s medical records on May 3, 2016. She
found, using the DBI method, that appellant’s right arm impairment was due to the diagnosed
condition of right rotator cuff full-thickness tear. OWCP’s medical adviser opined that under the
A.M.A., Guides, if there is a diagnosis of the condition, then the DBI method should be used.
Only if there is no diagnosis that fits the condition is it appropriate to utilize the ROM method to
determine impairment.6 With regard to appellant’s right upper extremity, the medical adviser
found that appellant’s rotator cuff injury had a default grade of 5 due to residual loss and normal
motion.7 She applied the net adjustment formula of the A.M.A., Guides, grade modifier for
Functional History (GMFH) - Class of Diagnosis (CDX) (Regional Grid) + (GMPE - CDX) +
(GMCS - CDX).8 The medical adviser found that appellant had GMFH of 4 based on her
QuickDASH score, and that her GMPE was 2 based on decreased ROM. She discounted
appellant’s GMCS as it was used in the diagnosis and GMFH as it differed from the GMPE by
two grades. Applying the truncated formula, the medical adviser reached right shoulder
permanent impairment rating of six percent.
OWCP’s medical adviser applied the shoulder regional grid to appellant’s left upper
extremity impairments and determined that appellant had a class 1 rotator cuff injury with a
default of grade 3, due to residual loss, functional with normal motion. She noted that appellant
had no consistent objective abnormal findings9 and functional normal motion. The medical
adviser noted that the GMPE was zero based on findings on no instability and normal ROM
found by Dr. Katz. She determined GMFH was 1 due to pain, that GMCS was inapplicable as it
was used to reach the diagnosis. Applying the net adjustment formula, the medical adviser
reached class 1, impairment rating of two percent due to residual loss function with normal
motion.
By decision dated March 31, 2016, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of her left upper extremity.

5

Id. at 477, Table 15-35.

6

Id. at 387.

7

Id. at 403, Table 15-5.

8

Id. at 411.

9

Id. at 403, Table 15-5.

4

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 the FECA program with the Director of OWCP.10 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.11 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 use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule
losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 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.14
ANALYSIS
The issue on appeal is whether appellant has more than eight percent permanent
impairment of her left upper extremity, for which she previously received schedule awards.
The Board finds this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
10

See 20 C.F.R. §§ 1.1-1.4.

11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
12

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

Isidoro Rivera, 12 ECAB 348 (1961).

5

methodology when assessing the extent of permanent impairment for schedule award purposes.15
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.17
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the March 31, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case is not in posture for decision.

15

T.H., Docket No. 14-0943 (issued November 25, 2016).

16

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

17

Supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 26, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, JAMES A. FARLEY
BUILDING, New York, NY, Employer
__________________________________________

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

Docket No. 11-745
Issued: October 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 2, 2001 appellant filed a timely appeal of an August 19, 2010 Office of
Workers’ Compensation Programs’ merit decision suspending his compensation and an
October 20, 2010 nonmerit decision denying reconsideration. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merit and nonmerit issues of the case.
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation
benefits on the grounds that he refused to cooperate with a medical examination; and (2) whether
OWCP properly denied appellant’s request for reconsideration on the merits pursuant to 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 29, 2003 appellant, then a 57-year-old maintenance support clerk, filed a
traumatic injury claim alleging that on January 28, 2003 he hit his right shoulder on a bolt
protruding from a door.
OWCP accepted his clam for right shoulder strain on
February 19, 2003. Appellant returned to full duty on February 1, 2003.
Appellant filed a recurrence of disability claim on April 18, 2003 alleging that on
March 26, 2003 he sustained disability due to limited movement in his right shoulder and
extreme pain with certain movements. OWCP accepted this claim on April 30, 2003.
Dr. Darren Friedman, a Board-certified orthopedic surgeon, performed a glenohumeral
arthroscopy and arthroscopic acromioplasty as well as an open repair of the rotator cuff on
March 5, 2004. Appellant returned to light-duty work on February 22, 2005. He filed a
recurrence of disability claim on October 4, 2005 and alleged that he stopped work on August 2,
2005 due to his employment injury. OWCP accepted this claim on April 18, 2006.
On April 4, 2008 OWCP referred appellant to Dr. Christopher B. Michelsen, a Boardcertified orthopedic surgeon, for an impartial medical examination to resolve a conflict of
medical opinion between appellant’s physician and OWCP’s second opinion physician.
Dr. Michelsen submitted a report dated May 12, 2008. OWCP requested a supplemental report
on August 15, 2008. Dr. Michelsen did not respond.
On January 8, 2009 OWCP directed appellant to attend a second impartial medical
examination on January 27, 2009 with Dr. Jeffrey Kaplan, a Board-certified orthopedic surgeon,
at 9:30 a.m. Appellant telephoned OWCP on January 12, 2009 and stated that it was not
necessary for him to attend the scheduled examination as he had previously cooperated with an
impartial medical examination. The claims examiner returned appellant’s call and instructed him
to attend the medical appointment.
In a letter dated January 12, 2009, appellant objected to the selection of Dr. Kaplan and
enclosed a copy of Dr. Michelsen’s impartial medical report.
In a letter dated February 3, 2009, OWCP noted that appellant failed to report for the
scheduled examination with Dr. Kaplan on January 27, 2009. It instructed him to provide a valid
reason for failing to submit or cooperate with the scheduled examination within 14 days. OWCP
noted that, if appellant did not show good cause for his failure to appear, then his entitlement to
compensation would be suspended under 5 U.S.C. § 8123(d) until after he attended and fully
cooperated with the examination. Appellant responded in a letter dated February 10, 2009 and
stated that he had complied with 5 U.S.C. § 8123(a) by submitting to the appointment with
Dr. Michelsen. He contended that he was not required to submit to a fourth examination.
Appellant refused to submit to the examination and requested a hearing.
By decision dated February 19, 2009, OWCP finalized appellant’s suspension of
compensation effective February 20, 2009. It noted that his benefits would be reinstated only
after verification that he attended and fully cooperated with the impartial medical examination
scheduled with Dr. Kaplan.

2

Appellant requested reconsideration on January 16, 2010. He again stated that he had
complied with the requirements of FECA by reporting to the examination on May 12, 2008. In a
letter dated August 20, 2009, appellant stated that he was willing to attend a referee medical
examination.
In a decision dated March 15, 2010, OWCP reviewed appellant’s claim on the merits and
found that he had failed to establish that the suspension of his compensation benefits was
improper.
Appellant requested reconsideration and stated that he had complied with the request for
a medical examination with Dr. Michelsen. He stated that he went to Dr. Michelsen’s supervisor
who stated that a complete report was submitted and no supplemental report requested.
Appellant stated that Dr. Michelsen’s office disputed that a supplemental report was requested.
He stated, “During the period of time in question I was recovering from acute cancer surgery and
chemotherapy of which I’m still recovering.” Appellant stated that he was willing to undergo
any examination that OWCP requested. He submitted a letter dated March 25, 2010 from
Dr. Michelsen’s office stating that Dr. Michelsen had not received an addendum request
regarding appellant. In a letter dated June 10, 2010, Dr. Imtiaz Patel stated that appellant had
surgery in September 2007 for nonsmall cell lung cancer and started chemotherapy on
October 2007. He noted that appellant had severe side effects post chemotherapy.
By decision dated August 19, 2010, OWCP reviewed the merits of appellant’s claim, but
denied modification of the February 19, 2009 decision suspending appellant’s compensation
benefits.
On August 24, 2010 OWCP scheduled an appointment for appellant to be examined by
Dr. P. Leo Varriale, an orthopedic surgeon, on September 14, 2010.
Appellant requested reconsideration on October 2, 2010 and argued that OWCP did not
request a supplemental report from Dr. Michelson. He noted that he had reported for the
examination scheduled with Dr. Varriale and that the Social Security Administration (SSA) had
found him totally disabled. In support of his request, appellant submitted a benefit statement
from the SSA, a radiology report, medical notes dating from February 3, 2004 through
August 14, 2006, and a report dated February 12, 2007 from David Tiersten, M.D., addressing
his right upper extremity.
By decision dated October 20, 2010, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that he failed to submit relevant new evidence or argument in
support of his request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability
as a result of federal employment, to undergo a physical examination as it deems necessary.2
The determination of the need for an examination, the type of examination, the choice of locale
2

5 U.S C. § 8123(a).

3

and the choice of medical examiners are matters within the province and discretion of OWCP.3
OWCP’s federal regulations at section 10.320 provide that a claimant must submit to
examination by a qualified physician as often and at such time and places as OWCP considers
reasonably necessary.4 Section 8123(d) of FECA and section 10.323 of OWCP’s regulations
provide that, if an employee refused to submit to or obstructs a directed medical examination, his
or her compensation is suspended until the refusal or obstruction ceases.5 However, before
OWCP may invoke these provisions, the employee is provided a period of 14 days within which
to present in writing his or her reasons for the refusal or obstruction.6 If good cause for the
refusal or obstruction is not established entitlement to compensation is suspended in accordance
with section 8123 of FECA.7
ANALYSIS -- ISSUE 1
OWCP directed appellant to attend a medical examination with Dr. Kaplan to resolve an
existing conflict of medical opinion evidence. Appellant telephoned OWCP and stated that he
would not attend and in fact did not attend the scheduled examination. OWCP provided him
with a period of 14 days to present in writing his reasons for refusing to submit to the
examination. Appellant argued that he had already submitted to an impartial medical
examination and was not required to submit to a fourth examination. As noted above, OWCP
regulations require that a claimant must submit to examination by a qualified physician as often
and at such time and places as OWCP considers reasonably necessary. The Board finds that
appellant’s argument that he had previously submitted to an impartial medical examination is not
good cause for refusing to submit to the additional examination scheduled by OWCP.
Appellant also argued that Dr. Michelsen’s report was complete and that OWCP did not
request a supplemental report prior to scheduling the second impartial examination. This
allegation is not supported by the record. The record before the Board contains a request for a
supplemental report from OWCP and faxed to Dr. Michelsen. Appellant’s allegation does not
establish good cause for failing to attend the scheduled examination.
Appellant’s final argument was that he was recovering from cancer surgery and
undergoing chemotherapy during the period that the medical examination with Dr. Kaplan was
scheduled. He submitted documentation that he had surgery in September 2007 for nonsmall
cell lung cancer and started chemotherapy on October 2007. The Board finds that these
assertions do not represent good cause for failing to attend the examination scheduled in
January 2009. Appellant was able and did attend the April 4, 2008 appointment with
Dr. Michelsen within a short time after his surgery and the beginning of his chemotherapy in
3

James C. Talbert, 42 ECAB 974, 976 (1991).

4

20 C.F.R. § 10.320.

5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation Medical Evidence, Chapter
2.810.14(d) (July 2000).
7

See Scott R. Walsh, 56 ECAB 592 (2005); Raymond C. Dickinson, 48 ECAB 646 (1997).

4

2007. This fact does not support that he was incapacitated from attending the January 27, 2009
appointment with Dr. Kaplan.
The Board finds that appellant has not submitted good cause for his failure to attend the
January 27, 2009 appointment with Dr. Kaplan and that OWCP properly suspended his
compensation benefits effective February 20, 2009.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.8
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.9 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.10
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.11
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on October 2, 2010. He again argued that OWCP
did not request a supplemental report from Dr. Michelsen. As appellant had previously raised
this argument before OWCP, this argument is not a basis for reopening his claim for
consideration of the merits.
Appellant stated that he reported for the examination scheduled by OWCP with
Dr. Varriale in September 2010. His cooperation with this medical examination is not relevant
8

5 U.S.C. §§ 8101-8193, 8128(a).

9

20 C.F.R. § 10.606.

10

Id. at § 10.608.

11

M.E. 58 ECAB 694 (2007).

5

to whether he had good cause to fail to submit to the January 2009 examination with Dr. Kaplan.
This information is not relevant and is not sufficient to require OWCP to reopen appellant’s
claim for consideration of the merits.
Appellant asserted that the SSA had found him totally disabled and submitted benefit
statement from the SSA. This information is not relevant to the central issue of whether
appellant had good cause to refuse to submit to the scheduled medical examination.
Furthermore, the Board has frequently held that the determination of an employee’s rights or
remedies under other statutory authority does not establish entitlement to benefits under FECA.12
Appellant also submitted medical evidence including, a radiology report, medical notes
dating from August 14, 2006 through February 3, 2004 and a report dated February 12, 2007
from Dr. Tiersten addressing his right upper extremity. These reports cannot address appellant’s
inability to report to an examination scheduled for January 2009 and are therefore not relevant to
the issue of whether appellant has established good cause for failing to submit to the January 27,
2009 medical examination with Dr. Kaplan.
The Board finds that appellant’s request for reconsideration was not supported by
pertinent new and relevant evidence or argument and that OWCP therefore properly declined to
reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
effective February 20, 2009. The Board further finds that OWCP properly declined to reopen
appellant’s claim for consideration of the merits on October 20, 2010.

12

J.F., 59 ECAB 331 (2008).

6

ORDER
IT IS HEREBY ORDERED THAT the October 20 and August 19, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
R.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY,
New Cumberland, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0643
Issued: July 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 1, 2017 appellant, through counsel, filed a timely appeal from a December 7,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted factors of his federal employment duties.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 3, 2015 appellant, then a 59-year-old packer, filed an occupational disease
claim (Form CA-2) alleging that he sustained carpal tunnel syndrome and nerve damage to his
elbow while in the performance of duty. He explained that he had a previous work-related injury
to his spine and in July 2015, his fingers and hands kept going numb.3 Appellant indicated that he
first became aware of the injury and its relation to his work on July 7, 2015. He did not stop work.
The employing establishment noted that appellant was “still working within his current
restrictions.”
In a July 28, 2015 report, Dr. William J. Beutler, a Board-certified orthopedic surgeon,
noted that appellant had complaints of numbness throughout all the fingers of both hands. He
described a discomfort at both wrists with pain and discomfort primarily at work. Dr. Beutler
indicated that appellant “does a lot of piecework repetitively as he works as a packer.” He noted
that an electromyography (EMG) scan, from a few years ago, revealed chronic C6 radicular issues.
However, the symptoms were diffuse, and far more of a carpal tunnel etiology. Dr. Beutler
indicated that appellant found himself shaking his hands at night. Additionally, he found that
appellant also had neck pain, which was higher in the axial neck then when he had surgery.
Dr. Beutler noted that appellant had a history of fusion from C5-C7. He advised that appellant
continued with a sedentary work restriction and noted that he was concerned with regard to
appellant doing repetitive work with his hands and repetitive bending with his neck. Dr. Beutler
suspected that appellant had carpal tunnel and was exacerbating his upper cervical spondylosis.
He examined appellant and found that the hand grasp was nearly normal and that Tinel’s was
positive at each wrist, and negative at the elbow. Dr. Beutler also indicated that the magnetic
resonance imaging (MRI) scans revealed bulging discs at C3-C4 and C4-C5 with fusion from C5C7. He opined that the axial symptoms were related to the spondylosis from C3-C5 and further
surgical intervention would potentially be a fusion from C3-C7. Dr. Beutler advised that there
were concerns with this as there were no radicular symptoms or findings. Regarding his bilateral
hand numbness, he explained that EMG findings were old and his symptoms strongly suggested a
carpal tunnel etiology. Dr. Beutler recommended an evaluation by a hand surgeon.
In an August 21, 2015 progress note, Dr. Robert Maurer, a Board-certified hand surgeon,
noted that appellant’s chief complaint was pain, numbness, and paresthesias in both hands. He
noted that appellant was right-hand dominant and advised that his symptoms occurred at work.
Dr. Maurer opined, “[i]t is work related, he works in packing boxes.” He noted that appellant used
Ibuprofen for his pain relief and, at the present time, his pain was 6 out of 10, localized to the
hands and wrist. Dr. Maurer noted that any use of the hands, lifting, pushing, pulling, and twisting
caused increased pain. He also noted that appellant had some paresthesias and numbness at night.
Dr. Maurer examined appellant and determined that he had full-age appropriate range of motion
of both shoulders, elbows, wrists, and all digits, with a positive median nerve compression test,
Tinel’s and Phalen’s test bilaterally. He found no signs of median or ulnar nerve entrapment at
the elbow. Dr. Maurer indicated that the Basal joint grind test was negative, there were no signs
of volar or dorsal stenosing tenosynovitis, and the Wartenberg sign and Formant’s test were
negative. He found no abnormal skin markings, lesions, abrasions, or ecchymosis, and no atrophy.
3
Appellant also referenced a shoulder surgery from 2008 in a prior File No. xxxxxx061 and reported that he
underwent carpal tunnel surgeries in the late 1990’s and early 2000, and had a 2010 right carpal tunnel surgery.

2

Dr. Maurer reported that findings from x-rays of both wrists showed normal carpal height and
alignment. He found no evidence of fracture, subluxation, normal bone density and soft tissue,
and no evidence of instability. Dr. Maurer diagnosed work-related bilateral carpal tunnel
syndrome. He recommended a steroid injection and median nerve block on the left wrist, which
was worse.
In a September 28, 2015 progress note, Dr. Maurer noted that appellant was poststeroid
injection, however, he advised that appellant indicated the injection helped minimally, but he now
had pain in both arms, numbness and paresthesias from the elbow distally. He indicated that
appellant’s symptoms were 6 out of 10 with regard to pain, and advised that any repetitive use of
the arm caused increased pain and swelling. Additionally, he noted that lifting, pushing, pulling,
and twisting motion caused increased symptoms. Dr. Maurer advised that appellant denied a new
injury. He indicated that radiographic studies were reviewed and diagnosed bilateral median and
ulnar neuritis.
In a November 9, 2015 report, Dr. Edwin A. Aquino, specializing in physical medicine and
rehabilitation indicated that appellant was injured at work on November 21, 2008 and diagnosed
with cervical spondylosis. He also found that appellant underwent anterior cervical discectomy
and fusion surgery in 2009 and bilateral carpal tunnel releases in 2013. Dr. Aquino noted that
appellant indicated that his pain had worsened. He explained that his physical examination
revealed that the deep tendon reflexes of both upper extremities were depressed. There was
softening of the thenar muscles bilaterally and abnormal touch sensation of all the digits of both
hands. Dr. Aquino provided findings regarding the nerve conduction velocity (NCV) studies. He
found that the median and ulnar nerves were within normal limits and stimulation of the Axillary
nerves revealed normal findings. Dr. Aquino noted that electromyography (EMG) studies were
abnormal and compatible with bilateral C5 and or C6 radiculopathy. Furthermore, there was no
evidence of brachial plexopathy or peripheral neuropathy.
In a November 20, 2015 treatment note, Dr. Maurer diagnosed left median neuritis.
By development letter dated December 16, 2015, OWCP informed appellant of the type of
evidence needed to support his claim and requested that he submit such evidence within 30 days.
It particularly requested that appellant have his physician provide an opinion, supported by a
medical explanation, as to how work activities caused or aggravated his claimed condition. OWCP
requested that appellant provide additional information regarding his employment-related
activities, which he believed contributed to his condition. It also requested that appellant describe
all duties which required exertion or repeated movement of the wrist or hand, how often the duties
were performed, and for how long.
In a December 22, 2015 statement, appellant explained that he was packer, whose duties
consisted of labeling and packing boxes every day for seven years. Appellant noted that outside
of his work, his activities were limited due to his spine injury, and he did not play any sports or
use a computer. He explained that he first noticed the numbness and tingling in his hands and
fingers back in July 2015. Appellant explained that he had constant numbness and pain in his
hands and fingers and repetitive work made it worse. He noted that his symptoms were numbness
and tingling in his hands and fingers. Appellant also noted that he had carpal tunnel surgeries in
the late 90’s and early 2000.

3

In a letter dated January 11, 2016, F.S., an injury compensation specialist with the
employing establishment, controverted the claim. She indicated that appellant did not identify a
specific work function that caused his condition. F.S. noted that appellant was placed on a
permanent job offer on September 2, 2010 due to his November 21, 2008 shoulder injury under
File No. xxxxxx061. She indicated that the job offer was amended on March 19, 2014 due to a
management change in duty station so that appellant was able to work at his own pace and worked
in preservation packaging and marking. She indicated that his duties were mostly relabeling small,
light, repackaged items, which typically weighed less than two pounds each and occasionally
closer to five pounds. F.S. enclosed a position description.
On January 13, 2016 appellant indicated that in 2008 he did not have a right shoulder
injury, but rather, he had surgery for a spine injury. He explained that his duties as a packer
consisted of going above and beyond his weight limit and the packages he handled were not limited
to his weight limit as set forth in the job description. Appellant indicated that he did a lot of
repetitive work and noted that his current project was “at least a hundred thousand pieces. I’m not
doing them all myself but I’m doing a lot.”
By decision dated March 1, 2016, OWCP denied appellant’s claim. It found that the claim
was denied on the fifth basic element, causal relationship. OWCP explained that the medical
evidence was insufficient to establish that the medical condition is causally related to the accepted
work events.
In an April 18, 2016 treatment note, Dr. Beutler diagnosed cervical stenosis.
By letter dated March 7, 2016, counsel requested a telephonic hearing, which was held
before an OWCP hearing representative on October 4, 2016. During the hearing, appellant
testified that he was performing his packing duties since about 2010. He explained his duties as a
packer, which required that he repack the boxes and other little things that needed to be remarked
and repacked. Appellant explained that he just finished a pack job yesterday and he had to “pack
a hundred thousand packages of fives but I touched every package.” He indicated “[i]n fact it was
112,000.” Appellant noted that he started to notice problems with his hands a couple of years
ago.” He explained that he initially believed it was due to his neck surgery, but the physician
explained it was carpal tunnel. Appellant also noted that he did not have any activities besides
work.
By decision dated December 7, 2016, OWCP’s hearing representative affirmed the
March 1, 2015 decision.4

4
The Board notes that the hearing representative wrote in her decision that there were “many inconsistencies in the
factual and medical record” which compelled her to conclude that claimant has not met his burden of proof to
demonstrate that he sustained an injury in performance of duty as claimed. Regardless, she continued on to give
consideration to the medical evidence of record.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged, and that
any specific condition or disability claimed is causally related to the employment injury.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.7
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.8 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.9 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).10
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.11 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.12 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).13
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

5

See supra note 2.

6

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Robert G. Morris, 48 ECAB 238 (1996).

9

Supra note 7.

10

Id.

11

Supra note 8.

12

Supra note 7.

13

Id.

5

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment duties.
Appellant alleged that he developed a bilateral carpal tunnel condition due to repetitive
duties as part of his work as a packer. OWCP accepted that he engaged in repetitive work as part
of his packer duties. However, appellant submitted insufficient medical evidence to establish that
his condition was caused or aggravated by these activities or any other specific factors of his
federal employment. This is especially important as there is a record of preexisting conditions and
surgeries to include; carpal tunnel surgeries reported by Dr. Aquino. Furthermore, appellant
referenced a shoulder surgery from 2008 in a prior File No. xxxxxx061 and reported that he
underwent carpal tunnel surgeries in the late 1990’s and early 2000, and had a 2010 right carpal
tunnel surgery.
The evidence submitted by appellant includes reports from Dr. Beutler. In his July 28,
2015 report, Dr. Beutler noted that appellant had complaints of numbness throughout all the
fingers of both hands. He noted that appellant “does a lot of piecework repetitively as he works
as packer.” Dr. Beutler further noted that an earlier EMG scan revealed chronic C6 radicular
issues, but the symptoms were diffuse and far more of a carpal tunnel etiology. He noted that
appellant had a prior history of fusion from C5-C7. Dr. Beutler advised that appellant continued
with a sedentary work restriction and noted that he was concerned with regard to appellant doing
repetitive work with his hands and repetitive bending with his neck. He indicated that he suspected
that appellant had carpal tunnel and was exacerbating his upper cervical spondylosis. The Board
finds that Dr. Beutler merely provided a speculative opinion in this report and did not provide a
firm diagnosis. The Board has held that medical opinions which are speculative or equivocal in
character have little probative value.15 In an April 18, 2016 treatment note, Dr. Beutler diagnosed
cervical stenosis. However, he provided no opinion on causal relationship. Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.16 The Board finds that these reports are of limited
probative value.
In an August 21, 2015 progress note, Dr. Maurer noted that appellant’s chief complaint
was pain, numbness, and paresthesias in both hands. He noted that appellant was right-hand
dominant and advised that the symptoms occurred at work. Dr. Maurer opined “[i]t is workrelated, he works in packing boxes.” He explained that any use of the hands, lifting, pushing,
pulling and twisting, caused increased pain. Dr. Maurer examined appellant and determined that
he had full-age appropriate range of motion of both shoulders, elbows, wrists, and all digits, with
a positive median nerve compression test, Tinel’s and Phalen’s test bilaterally. He found no signs
14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

15

T.M., Docket No. 08-0975 (issued February 6, 2009).

16

S.E., Docket No. 08-2214 (issued May 6, 2009).

6

of median or ulnar nerve entrapment at the elbow. Dr. Maurer diagnosed work-related bilateral
carpal tunnel syndrome. However, he did not appear to be aware of any of appellant’s prior
surgeries or his medical history, which, as noted above, included several carpal tunnel surgeries in
the 1990’s and 2000 as well as a shoulder surgery. Dr. Maurer’s conclusion is not supported by
an accurate history. It is well established that medical reports must be based on a complete and
accurate factual and medical background, and medical opinions based on an incomplete or
inaccurate history are of little probative value.17
Likewise, Dr. Maurer in his September 28 and November 20, 2015 progress notes,
diagnosed bilateral median and ulnar neuritis. However, he did not provide an opinion on causal
relationship. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.18
In a November 9, 2015 report, Dr. Aquino indicated that appellant was injured at work on
November 21, 2008 and diagnosed with cervical spondylosis. He also found that appellant
underwent ACDF in 2009 and bilateral carpal tunnel releases in 2013. Dr. Aquino noted that
appellant indicated that his pain had worsened. He examined appellant and noted that EMG studies
were abnormal and compatible with bilateral C5 and or C6 radiculopathy. Dr. Aquino found no
evidence of brachial plexopathy or peripheral neuropathy. However, he did not offer an opinion
on causal relationship, and thus his report is of limited probative value.19
Appellant did not provide any accurate reports from a physician with medical reasoning,
or rationale, explaining why his work activities as a packer caused or aggravated a particular
diagnosed condition.20 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.21 Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.22
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a medical condition involving his hands, appellant has not met his burden of
proof in establishing that he sustained a medical condition causally related to the accepted factors
of his federal employment.

17

Douglas M. McQuaid, 52 ECAB 382 (2001).

18

S.E., Docket No. 08-2214 (issued May 6, 2009).

19

See id.

20
See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
21

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

22

Id.

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R,
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted factors of his federal employment duties.
ORDER
IT IS HEREBY ORDERED THAT the December 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2018
Washington, DC

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

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

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

8