United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, LANSING
PROCESSING & DISTRIBUTION CENTER,
Lansing, MI, Employer
__________________________________________

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Appearances:
Shelley Coe, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0234
Issued: January 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 9, 2019 appellant, through counsel, filed a timely appeal from an October 9,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include consequential left knee and back conditions causally
related to his accepted May 11, 2011 employment injury.
FACTUAL HISTORY
On May 20, 2011 appellant, then a 53-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on May 11, 2011 he injured his right knee while pulling
an all-purpose container in the performance of duty. He stopped work on May 18, 2011. OWCP
accepted the claim for right knee meniscus tear and authorized right knee arthroscopic surgeries
which occurred on July 1, 2011 and May 11, 2012.3 Appellant returned to full-duty work on a
part-time basis on September 30, 2011 before stopping work on October 17, 2011. He retired from
the employing establishment effective January 31, 2013.
Dr. Michael D. Austin, an osteopath Board-certified in orthopedic surgery, performed an
arthroscopic procedure to appellant’s left knee on March 8, 2002 for a tear of the medial meniscus
of the left knee and degenerative arthritis.
In a report dated May 23, 2011, Dr. Austin noted appellant’s history of right knee injury;
however, he also noted that appellant was seen again for another injection to his left knee, which
bothered him more during the last winter than it had in previous winters. He noted that x-rays of
appellant’s left knee showed degenerative changes medial joint space narrowing and some
spurring. In progress reports dated June 2 and 9, 2011, March 26 and April 16, 2012, and July 15
and 29, 2013, Dr. Austin noted that he had treated appellant’s left knee with Supartz injections.
In a report dated April 23, 2012, Dr. Austin noted that x-rays of appellant’s left knee
showed significant medial joint space narrowing, worse than on the right knee; however, on
clinical examination appellant’s left knee was significantly better than the right.
In a second opinion report dated January 16, 2013, Dr. Emmanuel Obianwu, a Boardcertified orthopedic surgeon, noted appellant’s history of right knee injury, and his prior medical
history of treatment of his left knee with Dr. Austin. He noted appellant’s physical examination
findings, and inter alia, a diagnosis of left knee degenerative arthritis. Dr. Obianwu concluded
that appellant’s bilateral knee osteoarthritis would preclude him from performing his regular fulltime employment duties.
On April 26, 2013 OWCP referred appellant to Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon, to resolve the conflict in medical evidence as to whether appellant had
residuals of the accepted medical condition, and whether he remained disabled from work. In a
report dated May 14, 2013, Dr. Pollak noted appellant’s history of right knee injury. He reported
that on physical examination appellant’s standing alignment of both knees showed mild varus
deformity, both knees exhibited -10 degrees of full extension, and mild swelling was noted in both
3
By decision dated February 8, 2017, OWCP granted appellant a schedule award for 21 percent permanent
impairment of his right lower extremity.

2

knees, slightly more on the left than right. Dr. Pollak noted that appellant had been in a motor
vehicle accident in 1988 which resulted inter alia in a left knee injury. Appellant’s past medical
records were reviewed and Dr. Pollak noted that appellant’s x-rays dated May 28, 2011 and
April 22, 2012 showed progressive osteoarthritis of both knees. Dr. Pollak concluded that
appellant would not be able to return to his regular work duties due to advanced degenerative
arthritis of both knees. He also noted that appellant would require total arthroplasty of both knees,
due entirely to his underlying condition of degenerative arthritis.
In a January 22, 2015 report, Dr. Charles J. Taunt, Jr., an osteopathic physician Boardcertified in joint replacement and reconstruction, diagnosed degenerative bilateral knee
osteoarthritis. A physical examination revealed tenderness on palpation of both knees.
In a January 27, 2015 report, Dr. Raymond Hansen, a Board-certified internist, noted that
appellant seen for a preoperative visit for scheduled right total knee replacement surgery.
Diagnoses included multiple sites generalized osteoarthritis, post-traumatic stress disorder,
hypertension, and hyperlipidia. Past medical history included a history of left knee surgery.
On February 10, 2015 appellant underwent a total right knee replacement, which was not
authorized by OWCP.
In a March 23, 2015 report, Dr. Taunt provided examination findings and reviewed
diagnostic testing. He noted that appellant had a history left knee arthroscopic surgery. Dr. Taunt
diagnosed left knee osteoarthritis based on a review of a left knee x-ray interpretation. In a report
dated May 21, 2015, he noted histories of right knee replacement surgery and left knee
arthroscopic surgery. Dr. Taunt reviewed appellant’s physical examination findings and
diagnostic test results. He diagnosed left knee or lower leg localized degenerative arthritis.
In an April 18, 2016 report, Dr. Peter Metropoulos, Board-certified in occupational
medicine, noted appellant’s employment injury and medical histories. He noted that appellant’s
physical examination findings included decreased left knee flexion, mild gait alteration, crepitus
on palpation, varus deformity, and lumbar paraspinal muscle tenderness. Dr. Metropoulos
diagnosed chronic right knee pain following a May 11, 2011 employment injury, right knee
meniscal tear, right knee synovitis, right knee degenerative arthritis, right knee traumatic medical
radial meniscal tear, left knee medial meniscal tear, left knee degenerative arthritis, and left knee
traumatic medial meniscal tear. Regarding appellant’s left knee, he explained that appellant had
sustained a left knee injury while golfing, which necessitated a meniscal tear repair.
Dr. Metropoulos further noted that appellant subsequently injured his left knee while moving
mailbags, which may have weighed in excess of 100 pounds, from a truck in 2011 or 2012. He
also noted that appellant had no history of significant low back injury, but appellant’s low back
and left knee pain was more likely than not related to postural changes and gait impairment due to
his right knee injury.
In letters dated October 5 and November 23, 2016, appellant, through counsel, requested
that the claim be expanded to include the consequential conditions of left knee osteoarthritis and
lumbar pain without radiculopathy, based on the report from Dr. Metropoulos.

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On June 26, 2017 OWCP referred appellant, together with the medical record, a statement
of accepted facts (SOAF), and a list of questions, to Dr. Bala Prasad, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine whether appellant’s claim should be
expanded to include left knee and back conditions causally related to the accepted May 11, 2011
employment injury. The SOAF noted that OWCP had accepted torn right knee medial meniscus,
and authorized surgeries which occurred on July 1, 2011 and May 11, 2012. It noted that on
February 10, 2015 appellant underwent right total knee replacement surgery, which had not been
authorized and a 1988 motor vehicle accident resulted in cracked vertebrae, left rotator cuff tear,
and left knee arthroscopic surgery.
In a letter dated January 5, 2018, counsel informed OWCP that the copy of appellant’s file
through October 30, 2017 did not contain a copy of the second opinion evaluation performed by
Dr. Prasad on July 19, 2017. In a February 1, 2018 letter, OWCP advised counsel that Dr. Prasad’s
report had not been included with a copy of appellant’s file as OWCP had not received the report.
In a letter dated June 20, 2019, counsel asked that OWCP evaluate appellant’s request to
expand his claim based on the evidence of record, which included the Dr. Metropoulos’ report and
noted that OWCP had been unsuccessful in obtaining Dr. Prasad’s second opinon report.
On July 9, 2019 OWCP received Dr. Prasad’s second opinion report dated July 19, 2017.
Dr. Prasad noted that he was to evaluate appellant’s left knee and low back only. He further noted
that appellant had injured his left knee while playing golf in 2005, but eventually he had to undergo
a total knee replacement in 2015, following which his left knee was symptom free. Dr. Prasad
also noted that appellant had injured his left knee in 2011 or 2012 while emptying mailbags
weighing 100 pounds each, following which he underwent arthroscopic surgery in 2013, which
helped temporarily until he underwent total knee replacement in 2016. Regarding appellant’s back
condition, he indicated that appellant had informed him that he had experienced back complaints
since he was in high school. Dr. Prasad provided physical examination findings and concluded
that appellant had no objective findings for either the left knee or back other than the scar from his
total left knee arthroplasty. In response to OWCP’s questions, he found that appellant currently
had no objective findings supporting any left knee or back condition caused or aggravated by the
accepted May 11, 2011 employment injury.4
Dr. Metropoulos, in an August 12, 2019 report, reviewed Dr. Prasad’s July 9, 2017 report,
and opined that Dr. Prasad appeared confused and co-mingled the medical history of appellant’s
right and left knees. He discussed what he believed to be deficiencies and inaccuracies in
Dr. Prasad’s report including noting that appellant underwent total right knee arthroplasty in 2015
and that arthroscopic surgery for the left knee did not occur until 2016. In addition,
Dr. Metropoulos noted that Dr. Prasad had referenced surgery following an injury in 2011 or 2012,
but appellant’s prior left knee arthroscopy occurred in 2002. He also noted that nowhere in
Dr. Prasad’s report did he mention that he had reviewed appellant’s operative report or diagnostic
studies, regarding his left knee arthroplasty. Dr. Metropoulos also noted that appellant had
4

On August 12, 2019 counsel requested that Dr. Prasad’s report be excluded as she had not been notified of the
examination. He also raised arguments regarding the sufficiency of Dr. Prasad’s report as it was based on an incorrect
medical history and his report was vague and unresponsive to the issue of whether appellant’s left knee and back
conditions were causally related to the accepted employment injury.

4

bilateral knee weakness, but he then contradicted this opinion by noting no objective findings
related to appellant’s left knee.
On September 12, 2019 OWCP referred the medical evidence and SOAF to an OWCP
district medical adviser (DMA) for review, specifically to review the findings in the April 18, 2016
report by Dr. Metropolous. In an October 4, 2019 report, Dr. Nathan Hammel, a Board-certified
orthopedic surgeon serving as a DMA, disagreed with Dr. Metropolous that appellant’s left knee
and back pain had been caused or had been aggravated by the a transient gait abnormality due to
the accepted right knee condition. He opined that Dr. Metropolous had not provided a scientific
argument supporting his opinion that appellant’s left knee and back conditions were causally
related to the accepted employment injury.
By decision dated October 9, 2019, OWCP denied appellant’s request to expand the
acceptance of his claim to include consequential left knee and back conditions relying upon the
opinions of the DMA and Dr. Prasad.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.5
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evidence.6
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7 The weight of medical evidence is determined by
its reliability, its probative value, its convincing quality, the care of analysis manifested, and the
medical rationale expressed in support of the physician’s opinion.8
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that, a subsequent injury,

5

S.H., Docket No. 19-1128 (issued December 2, 2019); M.M., Docket No. 19-0951 (issued October 24, 2019);
Jaja K. Asaramo, 55 ECAB 200 (2004).
6

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
7

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J. 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
8

See P.M., Docket No. 18-0287 (issued October 11, 2018).

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whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.9
ANALYSIS
The Board finds that this case is not in posture for a decision.
On October 5 and November 23, 2016 counsel requested that the acceptance of appellant’s
claim be expanded to include left knee osteoarthritis and low back lumbar pain without
radiculopathy based on the April 18, 2016 report from Dr. Metropoulos. On June 26, 2017 OWCP
referred appellant for a second opinion examination with Dr. Prasad.10
OWCP specifically requested that Dr. Prasad provide an opinion on whether appellant’s
claim should be expanded to include consequential left knee and back conditions as causally
related to the accepted May 11, 2011 employment injury. Dr. Prasad completed a physical
examination and provided responses to a series of questions posed to him by OWCP. He found
that appellant had no objective findings supporting any left knee or back condition caused or
aggravated by the accepted May 11, 2011 employment injury. However, Dr. Prasad did not
specifically address whether appellant sustained left knee or back conditions, due to the accepted
employment injury.
On January 29, 2017 a DMA reviewed the SOAF and medical records. He noted his
disagreement with Dr. Metropoulos’ conclusions regarding consequential low back and left knee
conditions, but provided no medical rationale in support of his opinion.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter.11 While the claimant has the responsibility to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence. It has the
obligation to see that justice is done.12
Once OWCP undertakes development of the record, it must procure medical evidence that
will resolve the relevant issues in the case.13 Following its determination that additional medical
development was necessary to address whether appellant’s left knee and back conditions were
9

See V.K., Docket No. 19-0422 (issued June 10, 2020).

10

Counsel alleged in an August 12, 2019 letter to OWCP that Dr. Prasad’s July 19, 2019 report should be excluded
as she was not informed of the second opinion examination. The record reflects that Dr. Prasad examined appellant
on July 19, 2017 and counsel was apprised on this rescheduled examination on June 26, 2017. Counsel’s listed address
was her last known address in Walled Lake, MI. Absent evidence to the contrary, a letter properly addressed and
mailed in the ordinary course of business is presumed to have been received. This is called the mailbox rule. See
K.J., Docket No. 10-0414 (issued July 30, 2020). Counsel did not submit evidence of nondelivery such that the
presumption of receipt would be rebutted.
11

See F.K., Docket No. 19-1804 (issued April 27, 2020); B.W., Docket No. 19-0965 (issued December 3, 2019).

12

Id.

13

Id.

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causally related to the accepted employment injury, it denied his request for expansion of the claim
based upon Dr. Prasad and the DMA’s reports. However, Dr. Prasad failed to address the primary
question posed by OWCP, whether appellant sustained consequential left knee and back conditions
causally related to the accepted employment injury. Furthermore, neither Dr. Prasad, nor the DMA
offered a rationalized medical explanation as to why appellant’s left knee and back conditions were
not caused or consequential to the accepted employment injury. Due to the deficiencies in
Dr. Prasad’s and the DMA’s reports, OWCP should have sought clarification or referred appellant
for a new second opinion evaluation. On remand, OWCP shall obtain a supplemental report from
Dr. Prasad or refer appellant, together with a SOAF and a list of specific questions, to a new second
opinion physician in the appropriate field of medicine to resolve the issue.14
The Board will remand the case to OWCP for further development of the claim, including
updating the SOAF, pursuant to its procedures to determine whether the claim should be expanded
to include additional conditions. Following this and any other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

T.S., Docket No. 18-1702 (issued October 4, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the October 9, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant

and
DEPARTMENT OF COMMERCE, 2010
DECENNIAL CENSUS, Austin, TX, Employer
__________________________________________

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Appearances:

Docket No. 12-1577
Issued: March 18, 2013

Case Submitted on the Record

Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

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

JURISDICTION
On July 17, 2012 appellant, through her attorney, filed a timely appeal from Office of
Workers’ Compensation Programs’ (OWCP) decisions dated April 17 and May 10, 2012.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $8,004.94 from May 6 to July 31, 2010 and from August 21 to
September 4, 2010; (2) whether OWCP abused its discretion in denying waiver of the
overpayment; and (3) whether OWCP abused its discretion in denying appellant’s request for a
hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 47-year-old census enumerator/field representative, injured her right ankle
while running from a dog on March 21, 2010. She filed a claim for benefits on March 30, 2010,
which OWCP accepted for fractured right fibula, sprained ligament of the right ankle,
tenosynovitis of the right foot and ankle and sprained left ankle.
Appellant filed CA-7 forms claiming compensation for wage loss from May 6 to July 31,
2010 and from August 21 to September 4, 2010. OWCP accepted these claims and paid
compensation for wage loss for intermittent hours.
On April 21, 2010 OWCP received a memorandum from the employing establishment
which stated that appellant had worked at the employing establishment for the 52 weeks
preceding injury, earning $21,952.22, performing part-time flexible work. Appellant’s date-ofinjury hourly pay rate was stated as $14.31.
In an OWCP pay rate worksheet dated December 27, 2011, it was indicated that appellant
had been paid at an hourly rate of $14.31 for 4.5 hours per day as a census field representative.
For the period including May 6 to July 31, 2010, appellant was awarded compensation totaling
204.5 hours. This included 9.5 hours from May 6 to 8, 2010; 27 hours from May 11 to 15, 2010;
53 hours from May 24 to June 5, 2010; 12.1 hours from June 6 to 12, 2010; 27.2 hours from
June 20 to July 3, 2010; 47.2 hours from July 4 to 17, 2010; and 28.5 hours from July 18
to 31, 2010. For the period August 21 to September 4, 2010, appellant received compensation
for 55 hours of intermittent disability.
In an OWCP pay rate worksheet dated February 6, 2012, it was indicated that appellant
had been paid for compensation for wage loss for intermittent hours from May 6 to September 4,
2010, rather than the 150 formula, which is used to calculate compensation for census workers
who are disabled for more than 90 days. Under the 150 formula a claimant’s compensation is
calculated by multiplying the actual daily wage times 150, then divided by 52. The actual daily
wage is determined by multiplying the hourly pay rate by 4.5 hours. OWCP determined that
appellant had been paid $9,941.35 for this period for intermittent hours; however, under the 150
formula, she was due compensation in the amount of $1,936.35. This created an overpayment of
$8,004.94.
On March 13, 2012 OWCP issued a preliminary determination that an overpayment had
occurred in the amount of $8,004.94 for the period May 6 to September 6, 2010. It noted that the
overpayment had occurred because she had incorrectly been paid compensation for wage loss for
intermittent hours from May 6 to September 4, 2010 and from August 21 to September 4, 2010.
OWCP stated that appellant’s pay rate should have been determined by using the 150 formula,
which is used to calculate compensation for census workers who are disabled for more than 90
days. It further advised that she had been found without fault in the creation of the overpayment.
OWCP advised appellant that if she disagreed with the fact or amount of the overpayment she
could submit new evidence in support of her contention or request a prerecoupment hearing. It
further advised appellant that, when she was found without fault in the creation of the
overpayment, recovery might not be made if it could be shown that such recovery would defeat

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the purpose of the law or would be against equity and good conscience. Appellant did not
respond to this letter within 30 days.
In a decision dated April 17, 2012, OWCP finalized the preliminary determination
regarding the overpayment of $8,004.94. It found that appellant was not entitled to waiver
because she did not respond to the March 13, 2012 preliminary determination and did not
complete and submit the attached Form OWCP-20 overpayment questionnaire within 30 days.
By letter postmarked April 13, 2012, appellant, through her representative, requested an
oral hearing. OWCP received this request on April 24, 2012.
On May 10, 2012 OWCP denied appellant’s request for a prerecoupment hearing on the
grounds that her request was not made timely.
LEGAL PRECEDENT -- ISSUE 1
OWCP procedures ascribe special rules for computing compensation for claimants
employed by the Census Bureau.2 Pursuant to OWCP’s procedure manual, temporary positions
such as census enumerators historically average four and a half hours a day, four days a week.3
However, an individual may have worked more or less depending on the local census office’s
operational requirements and the factual evidence should be evaluated carefully. Because of
their irregular federal employment, these employees are usually paid under the provisions of
5 U.S.C. § 8114(d)(3).4 However, pursuant to the procedure manual, when computing
compensation for census workers, when disability did not exceed 90 days, compensation should
be paid on a daily basis according to 5 U.S.C. § 8114(c). For enumerators who ordinarily
worked 4.5 hours a day, 4 days a week, where disability extended beyond 90 days and the
claimant had similar employment during the years prior to the injury,5 compensation should be
paid according to 5 U.S.C. § 8114(d)(1) and (2).6 Otherwise, it should be based on a weekly
basis using the following formula: 150 times the actual daily wage divided by 52. The actual
daily wage should be determined by multiplying the hourly pay rate by four and a half hours.7
2

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.9(a)(1)
(October 2009).
3

See id. at Chapter 2.900.3(3) (March 2011).

4

Id. at Chapter 2.900.12(e)(3) (March 2011); Chapter 2.900.4.

5

See supra note 4.

6

See supra note 4 at Chapter 2.900.4. Pay for Whole Year Employment. For employees who have worked for at
least a full year prior to the injury, but whose pay fluctuated during the year, the weekly pay rate for compensation
purposes is determined under 5 U.S.C. § 8114(d)(1)(B).
For instance, the pay rate of a rural carrier associate or part-time flexible employee of the postal service who
works substantially the entire year prior to injury would be computed under section 8114(d)(1)(B), not section
8114(d)(3), even if the earnings fluctuated considerably from week to week, because an annual rate of pay can be
established by obtaining the yearly earnings, without overtime, for the year prior to the injury.
7

Id.

3

ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
OWCP determined that appellant received an overpayment of compensation for the
period May 6 to July 31, 2010 and from August 21 to September 4, 2010. It explained that the
overpayment occurred because her compensation was incorrectly paid for the intermittent hours
she was disabled, rather than, pursuant to the 150 formula, used to calculate compensation for
census workers who are disabled for more than 90 days.
The record reflects that appellant was employed as an intermittent part-time census
employee. The record establishes that she had been employed in this employment for a full year
prior to the date of injury and had earned $21,952.22 in her employment during the preceding
year. While OWCP found that an overpayment existed because appellant’s pay rate had not been
paid pursuant to the 150 formula; it did not consider whether she was entitled to compensation
based upon the provisions of 5 U.S.C. § 8114(d)(1)(2) as she was employed in the same
employment for the year preceding injury and her disability exceeded 90 days.8 Its April 17,
2012 decision will be set aside and remanded for further adjudication of the pay rate issue.
Based on the fact of overpayment being further developed, issue two is moot.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

See D.G., Docket No. 12-1480 (issued January 11, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the May 10 and April 17, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed in part and set aside and remanded for
further action consistent with this decision.
Issued: March 18, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVAL SEA )
SYSTEMS COMMAND-CENTERS,
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New Orleans, LA, Employer
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___________________________________________ )
M.M., Appellant

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

Docket No. 10-138
Issued: September 27, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant filed a timely appeal of a September 14, 2009 decision of
the Office of Workers’ Compensation Programs which denied his request for reconsideration as
being untimely filed. Because more than one year elapsed between the most recent merit
decision of February 9, 2004 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3. The only decision
properly before the Board is the Office’s September 14, 2009 decision denying his request for
reconsideration.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
establish clear evidence of error.

FACTUAL HISTORY
On September 22, 2003 appellant, then a 54-year-old quality assurance specialist, filed an
occupational disease claim alleging that he sustained progressive hearing loss in the performance
of duty. The employing establishment advised that he worked in a noisy environment.
Appellant did not stop work.
Appellant submitted evidence which included a statement regarding his employment
history and noise exposure; a November 22, 2002 memorandum from James Sweat an
audiological technician, who indicated that appellant required follow up testing related to
possible changes in his hearing and an October 7, 2003 memorandum from the employing
establishment requesting a follow-up appointment related to his hearing. The record concludes
diagnostic hearing examination and audiogram results dated June 18, 1998 to December 16,
2002; a January 2, 2003 report from Pascagoula Occupational Health, which revealed a
significant threshold shift and worsening hearing loss; and a January 6, 2003 report from David
Pedersen, an audiologist, advising that appellant needed to be permanently removed from noise.
On December 5, 2003 the Office referred appellant, together with a statement of accepted
facts, to Dr. John Keebler, a Board-certified otolaryngologist, for a second opinion evaluation.
In a January 6, 2004 report, Dr. Keebler reviewed appellant’s history of injury and treatment and
determined that he had severe bilateral hearing loss, which was present prior to his federal
employment. He noted that when appellant was tested in June 1998, seven months after his
federal employment started, there was a severe hearing loss. Dr. Keebler advised that no change
had occurred since June 1998.1
In a February 9, 2004 decision, the Office denied appellant’s claim finding that his
hearing loss was not causally related to his employment exposure.
On March 15, 2004 appellant requested reconsideration. He requested that his June 1998
audiology report be considered. Appellant noted that Dr. Keebler’s hearing booth had a broken
door and was not usable. The Office received copies of previously submitted evidence.
In a February 10, 2005 decision, the Office denied appellant’s request for reconsideration
without a review of the merits on the grounds that his request did not raise substantial legal
questions or include new and relevant evidence.
On August 18, 2009 appellant filed a claim for recurrence commencing on
November 22, 2002. He submitted an April 13, 2009 letter from the Office of Personnel
Management finding that he was disabled from his position as a quality assurance specialist and
approving his claim for disability retirement. On August 25, 2009 the Office advised appellant
that it could not consider a recurrence on a denied claim.
On September 8, 2009 appellant requested reconsideration and submitted new evidence.
In a November 8, 2006 report, Christon J. Duhon, an audiologist, determined that appellant was
1

Dr. Keebler and an audiologist indicated that the audiometric test results were valid and representative of
appellant’s hearing sensitivity.

2

exposed to high levels of environmental noise and advised that he could no longer work in noise
hazardous areas. In a November 14, 2006 report, Commander Ward L. Reed, of the employing
establishment outpatient clinic, advised that appellant was seen for an administrative evaluation
of permanent threshold shift. Appellant was seen by Mr. Duhon, who determined that he had a
significant degree of ongoing hearing loss, consistent with continued sensorineural damage, most
likely due to noise exposure in the occupational setting. Commander Reed indicated that
appellant was no longer qualified for occupational exposure to noise. He advised that continued
exposure to the noise most likely would cause the hearing loss to progress. Commander Reed
advised that it was questionable as to whether appellant had sufficient hearing to safely perform
his critical job functions, especially on board ships that were undergoing sea trials. Additionally
a February 19, 2009 audiogram from an unknown audiologist noted findings and indicated that
appellant was seeking medical retirement. It noted a history of army service in Vietnam from
1968 to 1971 and exposure to artillery since 1997. The report contained an annotation that
appellant’s hearing loss was comparable to 2006. The Office also received a January 29, 2008
audiogram from Garreth E. Barber, an audiologist.
In a September 14, 2009 decision, the Office denied appellant’s request for
reconsideration for the reason that it was not timely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.3 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4 As one such limitation, it has stated that it will
not review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.5 The Board found that the imposition of this oneyear limitation does not constitute an abuse of the discretionary authority granted the Office
under section 8128(a).6 Section 10.607(b) states that the Office will consider an untimely
application for reconsideration only if it demonstrates clear evidence of error by the Office in its
most recent merit decision. The reconsideration request must establish that the Office’s decision
was, on its face, erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by the Office. The evidence must be positive, precise and explicit and must
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8128(a).

4

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

5

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

6

Sean C. Dockery, 56 ECAB 652 (2005); Mohamed Yunis, 46 ECAB 827, 829 (1995).

7

20 C.F.R. § 10.607(b).

3

manifest on its face that the Office committed an error. Evidence that does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by the Office of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of the Office.8 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office’s decision. The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that it abused its discretion in denying merit review in the face of such evidence.9
ANALYSIS
In its September 14, 2009 decision, the Office properly determined that appellant failed
to file a timely application for review. It issued its most recent merit decision on
February 9, 2004.
Appellant’s September 8, 2009 letter requesting reconsideration was
submitted more than one year after the February 9, 2004 merit decision and was, therefore,
untimely.
In accordance with internal guidelines and with Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error, which would warrant reopening his case for merit review under section
8128(a) of the Act, notwithstanding the untimeliness of his application. It reviewed the evidence
submitted by appellant, but found that it did not establish that the Office’s prior decision was in
clear error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of the Office’s decision and is
insufficient to demonstrate clear evidence of error. The issue in this case is whether the Office
properly denied appellant’s claim for hearing loss on February 9, 2004. It found that the medical
evidence was insufficient to establish that appellant’s hearing loss was due to employmentrelated noise exposure.
In a November 14, 2006 report, Commander Reed, advised that appellant was seen for an
administrative evaluation of permanent threshold shift and noted that an audiologist determined
that appellant had a significant degree of ongoing hearing loss, consistent with continued
sensorineural damage, most likely due to noise exposure in the occupational setting. The Board
finds that this report does not establish clear evidence of error. There is no indication that
Commander Reed is a physician. Appellant’s claim was denied on the lack of medical evidence
supporting that his claimed hearing loss was causally related to his employment. As he is not a
physician, as defined under the Act, this evidence is not sufficient to show that the Office erred
8

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

9

Id.

4

in its prior decision.10 Evidence which does not raise a substantial question concerning the
correctness of the Office’s decision is insufficient to establish clear evidence of error.
Appellant also submitted reports and audiograms from audiologists and nurses who
similarly are not physicians under the Act. This evidence includes a November 8, 2006 report
from Mr. Duhon, an audiologist, a January 24, 2009 nurse’s report and a January 29, 2008
audiogram from Mr. Barber, an audiologist. Additionally, appellant submitted a February 19,
2009 audiogram from an unknown audiologist. The Board notes that audiologists and nurses are
not physicians and this evidence was never reviewed or interpreted by a physician.11
Accordingly, this evidence has no probative medical value and is insufficient to establish clear
evidence of error.
Office procedures provide that the term “clear evidence of error” is intended to represent
a difficult standard. The claimant must present evidence which on its face shows that the Office
made an error (for example, proof of a miscalculation in a schedule award). Evidence such as a
detailed, well-rationalized report, which if submitted prior to the Office’s denial, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error
and would not require a review of a case.12
The Board finds that the evidence submitted by appellant in support of his untimely
reconsideration request is insufficient to shift the weight of the evidence in favor of his claim or
raise a substantial question as to the correctness of the Office’s last merit decision. Therefore,
the Board finds that appellant has not established clear evidence of error.
On appeal, appellant alleged that the medical evidence was not taken into consideration.
However, the record reflects that the medical evidence was reviewed. Appellant also questioned
the report of Dr. Keebler and contended that it should be invalidated as the sound proof booth
was not capable of being closed and was very dusty. The Board notes that Dr. Keebler and the
audiologist advised that the test results were valid and indicative of his hearing sensitivity. There
is no evidence to support appellant’s assertion. Appellant also asserted that the Office’s decision
was fraught with errors including the wrong place of employment. The Board notes that the
Office noted that appellant was employed by the Department of the Navy as a quality assurance
specialist. There is no evidence of any other civilian employer. Furthermore, any reference to
the wrong place of employment would not be clear evidence of error regarding the underlying
issue of whether appellant’s hearing loss was employment related.13

10

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
11

See id.

12

Annie L. Billingsley, 50 ECAB 210 (1998); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(c) (January 2004).
13

The Board notes that, on appeal, appellant submitted new evidence. The Board cannot consider this evidence,
however, as its review of the case is limited to the evidence of record which was before the Office at the time of its
final decision. 20 C.F.R. § 501.2(c); see Steven S. Saleh, 55 ECAB 169 (2003).

5

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 10-1564
Issued: February 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from a March 31, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than two percent bilateral arm permanent
impairment.
FACTUAL HISTORY
On November 19, 2008 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral carpal tunnel syndrome as a result
of his federal employment. The Office accepted the claim for bilateral carpal tunnel syndrome
on January 5, 2009. Appellant underwent a right carpal tunnel release on February 12, 2009 and
a left carpal tunnel release on March 12, 2009.

In a report dated April 23, 2009, Dr. Suhail Al-Sahli, a chiropractor, provided a history
and results on examination. He opined that, under the fifth edition of the American Medical
Association, Guides the Evaluation of Permanent Impairment, appellant had 38 percent whole
person impairment. Dr. Al-Sahli provided range of motion results on a separate evaluation form
and indicated that appellant had 38 percent left arm impairment and 34 percent right arm
impairment.
In a report dated May 20, 2009, an Office medical adviser found that the report from
Dr. Al-Sahli was not sufficient to determine impairment. He noted that in compression
neuropathies, additional impairment is not given for decreased grip strength, and in the absence
of a regional pain syndrome, additional impairment values are not given for decreased motion.
The Office medical adviser also stated that the maximum impairment available via the median
nerve at the wrist was 10 percent, and strength loss should not be utilized unless at least one year
has passed since injury or surgical treatment. He recommended referral for a second opinion
examination and evaluation under the current sixth edition of the A.M.A., Guides.
The Office referred appellant to Dr. Gary Freeman, an orthopedic surgeon, for a second
opinion examination. In a June 23, 2009 report, Dr. Freeman reviewed a history and provided
results on examination. Under the sixth edition of the A.M.A., Guides, he found that appellant
had two percent impairment to each arm. Dr. Freeman identified Table 15-23 and explained that
the rating was based on a default Grade 1 modifier due to mild intermittent symptoms, normal
physical findings and a normal functional scale.
By report dated July 28, 2009, an Office medical adviser concurred that appellant had
two percent bilateral arm impairment under the A.M.A., Guides. Under Table 15-23, the grade
modifier for test findings, history and functional scale was one and for physical findings a grade
modifier of zero. The Office medical adviser found that maximum medical improvement was
June 23, 2009, the date of examination by Dr. Freeman.
In a decision dated September 30, 2009, the Office issued schedule awards for two
percent permanent impairment to each arm.
Appellant requested a telephonic hearing before an Office hearing representative, which
was held on January 13, 2010. He submitted an October 8, 2009 report from Dr. Ian Stewart, an
orthopedic surgeon who performed the right and left carpal tunnel releases. Dr. Stewart stated
that Dr. Al-Sahli properly followed the fifth edition of the A.M.A., Guides, as the sixth edition
was not adopted until May 1, 2009. He concluded that Dr. Al-Sahli’s impairment rating was
correct and remained valid.
By decision dated March 31, 2010, the hearing representative affirmed the September 30,
2009 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member

2

or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition.3
ANALYSIS
In an April 23, 2009 report, Dr. Al-Sahli provided a rating of 38 percent left arm
impairment under the fifth edition of the A.M.A., Guides, and 34 percent right arm impairment.
The Act provides that the term ‘“physician’ … includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.”4 Dr. Al-Sahli did not diagnose a spinal
subluxation or provide treatment limited to manual manipulation of the spine. He is not a
physician under the Act with respect to rating the degree of permanent impairment of appellant’s
arms. Dr. Al-Sahli’s report is of no probative value.5
In an October 8, 2009 report, Dr. Stewart briefly stated that Dr. Al-Sahli was correct in
applying the fifth edition of the A.M.A., Guides. The Board notes that Dr. Stewart did not
provide any results on examination or an opinion as to permanent impairment. The appropriate
edition of the A.M.A., Guides is not based on the date of the physician’s report but the date of
the Office’s schedule award decision. Office decisions issued after May 1, 2009 are to be based
on the sixth edition. As the decision in this case was dated September 30, 2009, the
determination as to permanent impairment was based on the sixth edition of the A.M.A., Guides.
The second opinion physician, Dr. Freeman, provided an opinion under the sixth edition
of the A.M.A., Guides. He identified Table 15-23, a table used for entrapment/compression
neuropathy impairments. This table is based on establishing a grade modifier after consideration
of test findings, history and physical findings.6 A grade modifier 1 is appropriate for test
findings showing a conduction delay, a history of mild intermittent symptoms and normal
physical findings. Both Dr. Freeman and the Office medical adviser agreed that a grade modifier
1 was appropriate in this case. The default impairment for the grade is two percent, which may
be modified based on a functional scale, an assessment of the impact on daily living activities.7
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

FECA Bulletin No. 09-03 (issued March 15, 2009).

4

5 U.S.C. § 8101(2).

5

See Jack B. Wood, 40 ECAB 95, 109 (1988).

6

A.M.A., Guides 449, Table 15-23.

7

Id. A normal functional scale reduces the impairment to one, a moderate scale rises to three and a mild function
scale is no adjustment from the default of two percent.

3

Dr. Freeman noted a normal functional scale, which would reduce the impairment to one percent,
although he did not adjust the default value. The medical adviser identified a mild functional
scale and kept the arm impairment at two percent. The Board finds no evidence of a greater
impairment under Table 15-23.
The weight of the medical evidence therefore does not establish more than two percent
impairment to each arm under the sixth edition of the A.M.A., Guides. The number of weeks of
compensation for a schedule award is determined by the compensation schedule at
5 U.S.C. § 8107(c). For complete loss of use of the arm, the maximum number of weeks of
compensation is 312 weeks. Appellant’s impairment was two percent of each arm, or 6.24 weeks
of compensation, the total paid was 12.48 weeks. It is well established that the period covered by a
schedule award commences on the date that the employee reaches maximum medical improvement
from residuals of the employment injury.8 In this case, the Office medical adviser properly
concluded that the date of maximum medical improvement was the date of examination by
Dr. Freeman. The awards properly ran for 12.48 weeks commencing June 23, 2009.
On appeal, appellant stated that Dr. Sahli’s impairment rating should be given weight.
As noted, a chiropractor is not defined as a physician under the Act for treatment other than
manual manipulation of the spine to correct a spinal subluxation. Appellant stated that
Dr. Freeman did not perform an examination. Dr. Freeman provided results on examination in
his June 23, 2009 report and reviewed the medical evidence and information provided by
appellant. As noted, the Board finds the medical evidence does not establish more than two
percent permanent impairment to each arm.
CONCLUSION
The Board finds the probative evidence does not establish more than two percent bilateral
arm impairment.

8

Albert Valverde, 36 ECAB 233, 237 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 31, 2010 is affirmed.
Issued: February 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 13-666
Issued: July 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2013 appellant filed a timely appeal from an October 19, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that she did not
establish a recurrence of disability and a November 13, 2012 nonmerit decision denying her
request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over
the November 13, 2012 nonmerit decision.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability from
November 11, 2011 through February 6, 2012 causally related to her accepted employment
injury; and (2) whether OWCP properly denied her request to reopen her case for further review
of the merits under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 11, 2007 appellant, then a 56-year-old mail handler, filed an occupational
disease claim alleging that she sustained chronic lumbar and pectoral strain, left shoulder
tendinitis, neck strain and a knee condition causally related to factors of her federal employment.
OWCP accepted the claim for an aggravation of the right cervical rib, an aggravation of
osteoarthritis of the left shoulder, an aggravation of cervical osteoarthritis and an aggravation of
chronic lumbar strain. On July 25, 2007 appellant began working modified duty in the rewrap
unit.2The duties consisted of sitting in a chair doing rewrapping work for eight hours a day with
no reaching above the shoulder, climbing, bending, pushing, pulling, twisting or lifting and
carrying over five pounds.
OWCP previously accepted that on May 10, 2000 appellant sustained cervical strain and
a left pectoralis strain under file number xxxxxx345 and an aggravation of lumbar spondylosis
under file number xxxxxx330. It combined the cases under the current file number.
In a report dated November 15, 2011, Dr. James T. Lutz, who specializes in family
medicine, related that objective studies revealed cervical disc displacement and radiculopathy.
He attributed the diagnosed conditions to repetitive work in the course of appellant’s modified
employment. Dr. Lutz advised that shemight require further work restrictions and a chair for
neck and back support.
In a Family and Medical Leave Act (FMLA) certification dated November 15, 2011,
Dr. Lutz found that appellant could not perform her job functions of heavy repetitive lifting,
reaching, turning and prolonged sitting. He diagnosed lumbar disc displacement and lumbar
strain. Dr. Lutz indicated that appellant was off work for 8 to 12 weeks.
On December 5, 2011 Dr. Lutz evaluated appellant for pain in the low back and left
shoulder. He listed findings on examination and diagnosed lumbosacral sprain, primarily
osteoarthritis and osteoarthritis of the left shoulder. Dr. Lutz noted that appellant related that her
symptoms had improved with not working and that her low back condition was “exacerbated
with exertional activities and prolonged sitting, standing and walking.”
On December 15, 2011 appellant filed a claim for compensation for intermittent
disability from November 19 to December 2, 2011.3
By letter dated December 20, 2011, OWCP requested that appellant submit additional
factual and medical information in support of her claim for disability.
On January 4, 2012 Dr. Lutz related, “[Appellant] was taken off work beginning
November 11, 2011 due to a worsening of her low back condition making even sedentary work
impractical. Objective findings included loss of range of motion and spasm of the lower lumbar

2

By decision dated April 7, 2008, OWCP granted appellant a schedule award for a six percent permanent
impairment of the left upper extremity.
3

Appellant used leave for some periods.

2

and upper sacral regions bilaterally.”4
employment on February 7, 2012.

He determined that she could resume modified

On January 14, 2012 appellant related that she had worked modified duty since 2008.
She indicated that she did not have a chair to sit in at work until an employee left from a prior
shift. Appellant alleged that her work duties increased after her unit relocated because she had to
lift and carry mail a greater distance.
By letter dated February 27, 2011, OWCP informed appellant of the definition of a
recurrence of disability and requested that she submit a narrative report from her physician
explaining why she was unable to perform her modified employment due to a spontaneous
worsening in her condition. It indicated that it appeared that she was claiming a new injury as
she maintained that new work factors caused or aggravated her condition. OWCP noted that
appellant had filed an occupational disease claim, assigned file number xxxxxx821, due to work
factors beginning July 25, 2007.
In a decision dated April 11, 2012, OWCP denied appellant’s claim for compensation
beginning November 19, 2011.5On April 19, 2012 appellant requested a telephone hearing
before an OWCP hearing representative.
In reports dated January 5 and March 13, 2012, received by OWCP on May 2, 2012,
Dr. Dan Buchanan, a chiropractor, described appellant’s complaints of pain in the neck and low
back and stated that it was “probable that [her] current symptoms are causally related to the
original injury.”
At the telephone hearing, held on August 8, 2012, appellant asserted that she was
requesting compensation from November 11, 2011 through February 6, 2012. She maintained
that her physician found that she could not work for three months due to her accepted
employment injury. Appellant related that she filed a new claim for cervical radiculopathy and
disc displacement that had now been approved.
By decision dated October 19, 2012, the hearing representative affirmed the April 11,
2012 decision. He found that the evidence indicated that new work factors caused her condition
and noted that appellant was pursuing an occupational disease claim under another file number.
On October 29, 2012 appellant requested reconsideration of the denial of compensation
from November 11, 2011 through February 6, 2012. She noted that the employing establishment
did not challenge her depiction of her work duties. Appellant indicated that in a decision dated
June 22, 2012 a hearing representative found that she was entitled to compensation in May 2011.
She resubmitted a November 15, 2011 duty status report and a January 4, 2012 medical report
from Dr. Lutz in support of her request for reconsideration. Appellant also resubmitted May 2
4

Dr. Lutz’ report is dated January 4, 2011 instead of January 4, 2012; however, it appears from the context of the
report that this is a typographical error.
5

By decision dated March 7, 2012, OWCP denied appellant’s claim for compensation from May 3 to 6, 2011. It
determined that she had not submitted medical evidence supporting that she was disabled from her limited-duty
employment. In a summary decision dated June 22, 2012, an OWCP hearing representative reversed the March 7,
2012 decision and found that appellant had established employment-related disability from May 3 to 6, 2011.

3

and 31, 2011 reports from Dr. Thomas E. Shockley, a Board-certified orthopedic surgeon,
addressing disability in May 2011. She also enclosed a photograph which she maintained
showed her lifting over five pounds and a copy of a June 13, 2012 hearing representative’s
summary decision regarding her claim for wage loss from May 3 to 6, 2011.
In a nonmerit decision dated November 13, 2012, OWCP denied appellant’s request for
reconsideration after finding that she had not submitted evidence or raised an argument sufficient
to warrant reopening her case for further merit review under section 8128.
On appeal, appellant argues that she submitted sufficient evidence to show that she was
off work due to her accepted injuries. She asserts that Dr. Lutz removed her from work as a
result of her accepted condition under the current file number and did not find that she sustained
a new injury. Appellant relates that all the physicians found that her condition was chronic and
would require time off work. She notes that her limited-duty assignment did not change but
required lifting over five pounds, as demonstrated by her photograph. Appellant indicates that
she claimed a cervical rather than a back, knee and shoulder condition in her occupational
disease claim assigned file number xxxxxx821.
LEGAL PRECEDENT-- ISSUE 1
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.6
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.7 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained an aggravation of the right cervical rib, an
aggravation of osteoarthritis of the left shoulder, an aggravation of cervical osteoarthritis and an
6

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
7

20 C.F.R. § 10.5(x).

8

Id.

4

aggravation of chronic lumbar strain causally related to factors of her federal employment. On
July 25, 2007 appellant accepted a position working modified duty in the rewrap unit. She
stopped work on November 11, 2011 and filed claims for compensation.
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. On appeal,she specified that her limited duty did not change but instead
maintained that she was consistently required to work outside of her restrictions and lift over five
pounds. A recurrence of disability, however, does not include disability resulting from exposure
to new work factors, even if it involves the same part of the body previously injured.9 Appellant
must provide medical evidence to establish that she was disabled due to a worsening of her
accepted work-related condition.10
On November 15, 2011 Dr. Lutz diagnosed cervical disc displacement and radiculopathy.
He found that appellant required increased work restrictions and a chair with support. OWCP,
however, has not accepted cervical disc displacement and radiculopathy under the current file
number. Where appellant claims that a condition not accepted or approved by OWCP was due to
her employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence.11
Dr. Lutz attributed her cervical disc displacement and radiculopathy to performing her modified
employment rather than her accepted work injury and thus his opinion is insufficient to meet her
burden of proof.
In an FMLA certification dated November 15, 2011, Dr. Lutz diagnosed lumbar strain
and lumbar disc displacement and determined that appellant was unable to perform repetitive
heavy lifting, reaching, turning and prolonged sitting. He found that she would be unable to
work for 8 to 12 weeks beginning November 11, 2011. Dr. Lutz did not, however, address the
cause of appellant’s disability. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal
relationship.12
On December 5, 2011 Dr. Lutz diagnosed lumbosacral sprain, primarily osteoarthritis and
osteoarthrosis of the left shoulder. He noted that appellant related that her symptoms had
improved as she was not working. As Dr. Lutz did not specifically address causation or provide
his own opinion that she was disabled from employment, his report is of little probative value.13
On January 4, 2012 Dr. Lutz indicated that he found appellant unable to work from
November 11, 2011 because her low back condition deteriorated such that she could not perform
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(2) (May 1997).

10

See Jackie D. West, supra note 6.

11

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

12

S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

13

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, supra note 11; (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of little probative value on the issue of causal
relationship); Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).

5

sedentary employment. He provided objective findings of low back and upper sacral spasms and
loss of range of motion. Dr. Lutz, however, did not explain how the accepted employment injury
caused disability from appellant’s limited-duty employment beginning November 11, 2011. A
physician must provide an opinion on whether the employment injury caused or contributed to
claimant’s diagnosed medical condition and support that opinion with medical reasoning to
demonstrate that the conclusion reached is sound, logical and rationale.14
Appellant further submitted reports dated January 5 and March 13, 2012 from
Dr. Buchanan, a chiropractor. Section 8101(2) of FECA provides that the “term ‘physician’
includes chiropractors only to the extent that their reimbursable services are limited “to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist….”15 Dr. Buchanan did not diagnose a subluxation as demonstrated by x-ray and thus he
is not considered a “physician” under FECA and his report is of no probative value.16
On appeal, appellant argues that Dr. Lutz found that she was disabled from work due to
her employment injury rather than new work factors and that all her physicians indicated that her
chronic condition would require time off work. She further notes that she alleged a cervical
rather than a back, knee or shoulder condition due to performing her modified employment. As
discussed, however, appellant did not submit rationalized medical evidence establishing
disability for work beginning November 11, 2011 as a result of her accepted employment injury.
Consequently, she did not meet her burden of proof.
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 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,17
OWCP’s regulations provide that 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) submit relevant and pertinent new evidence not previously
considered by OWCP.18 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.19 When a claimant fails to meet one of the above standards, OWCP

14
15
16

John W. Montoya, 54 ECAB 306 (2003).
5 U.S.C. § 8101(2); see also Michelle Salazar, 54 ECAB 523 (2003).
Isabelle Mitchell, 55 ECAB 623 (2004).

17

Supra note 1. Section 8128(a) of FECA provides 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.”
18
19

20 C.F.R. § 10.606(b)(2).
Id. at § 10.607(a).

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will deny the application for reconsideration without reopening the case for review on the
merits.20
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.21 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.22 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.23
ANALYSIS -- ISSUE 2
On October 29, 2012 appellant requested reconsideration. She argued that the employing
establishment did not dispute that she worked outside of her restrictions. Appellant submitted a
photograph purporting to show that she lifted over five pounds in the course of her employment.
As discussed, however, a recurrence of disability is a spontaneous worsening unrelated to new
work factors; consequently, her argument is not relevant to the issue at hand.
Appellant resubmitted reports from Dr. Lutz dated January 4 and 15, 2011. Evidence
which repeats or duplicates evidence already in the case record has no evidentiary value and does
not constitute a basis for reopening a case.24
Appellant also resubmitted medical reports dated May 12 and 31, 2011 from
Dr. Shockley submitted in connection with her claim for disability compensation in May 2011.
She further submitted a copy of the June 13, 2012 hearing representative’s decision issued in
connection with her claim for disability in May 2011. This evidence, however, is not relevant to
determining whether she was disabled beginning November 11, 2011 due to her accepted work
injury. Evidence that does not address the particular issue involved does not warrant reopening a
case for merit review.25
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 new and
relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.

20

Id. at § 10.608(b).

21

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

22

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

23

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

24

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

25

J.P., id.; Freddie Mosley, 54 ECAB 255 (2002).

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CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability from November 11, 2011 through February 6, 2012 causally related to her accepted
employment injury. The Board further finds that OWCP properly denied her request to reopen
her case for further review of the merits under section 8128.
ORDER
IT IS HEREBY ORDERED THATthe November 13 and October 19, 2012 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 8, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8