United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Moncks Corner, SC, Employer
__________________________________________

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

Docket No. 19-1475
Issued: February 6, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 26, 2019 appellant filed a timely appeal from a January 14, 2019 merit decision
and a February 21, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP).1 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.3

1
Appellant indicated in her appeal request form that she was requesting an appeal of a June 26, 2019 OWCP
decision. The Board notes, however, that the record does not contain an adverse final decision issued by OWCP on
that date. The record does contain final adverse decisions issued by OWCP on January 14 and February 21, 2019.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 21, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a medical
condition causally related to the accepted May 18, 2018 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of her claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 31, 2018 appellant, then a 47-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 18, 2018 she sprained her left ankle and experienced severe
lower back pain when she tripped due to a hole in the ground while in the performance of duty.
She also indicated that repetitive movements while working contributed to her medical conditions
and had she not tripped in the hole and injured her ankle her conditions would have remained
undiscovered. On the reverse side of the claim form, the employing establishment controverted
the claim stating that it had no evidence to show the incident occurred and that appellant worked
the day after the date of the alleged incident and did not mention any injury. Appellant stopped
work on May 22, 2018.
In a letter dated June 5, 2018, the employing establishment further controverted appellant’s
claim. It noted that she did not provide a written statement, medical evidence, or witness
statements indicating that she was injured while working and she did not mention her injury to
management the next time she worked. The letter explained that appellant was previously off
work for six months for a back injury that was not work related and that it appeared that she was
submitting her CA-1 form to make her injury work related. It also noted that, one week prior to
the alleged incident, appellant sold the private vehicle she used to deliver mail and no longer had
a vehicle to perform her work duties.
In a development letter dated June 12, 2018, OWCP advised appellant of the deficiencies
in her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence.
In response, appellant provided a December 5, 2017 medical report from Dr. Richard
Frisch, a Board-certified orthopedic surgeon. Dr. Frisch noted that she had been experiencing
lower back and lower extremity pain for one month. He indicated that appellant’s job required her
to lift heavy magazine containers, stand for greater than four hours, and to deliver mail. Based on
a magnetic resonance imaging scan of her lumbar spine, Dr. Frisch noted an impression of low
back pain and an annular tear and diagnosed her with low back pain. He recommended a L5-S1
epidural injection to treat appellant’s condition in addition to her continued physical therapy
treatment.
In a December 15, 2017 medical report, Dr. Mark Netherton, a Board-certified
anesthesiologist, detailed appellant’s receipt of a L5-S1 lumbar epidural steroid injection. In a
January 17, 2018 medical note, Anne Buck, a physician assistant, provided that appellant
experienced no improvement from her December 15, 2017 injection. She also documented a
diagnosis of sacroiliitis and ordered a sacroiliac joint injection to treat appellant’s condition.

2

In a January 24, 2018 medical report, Dr. German Levin, Board-certified in physical
medicine and rehabilitation, detailed appellant’s receipt of a left sacroiliac injection in order to
treat a diagnosis of sacroiliac joint mediated pain.
A May 21, 2018 x-ray of appellant’s left knee revealed no evidence of a fracture,
dislocation, effusion, or other abnormality. In a medical note of even date, Dr. David Rodgers,
Board-certified in family medicine, recommended that she be excused from work until May 26,
2018 due to her knee and back pain.
In a May 23, 2018 medical report, Ms. Buck noted that appellant’s previous treatment for
her back pain offered little to no improvement. She indicated that Dr. Frisch recommended a
discogram of appellant’s lumbar spine for further evaluation. In a medical note of even date,
Ms. Buck opined that appellant could return to work with light-duty restrictions and recommended
that appellant perform no twisting or bending, no pushing, pulling, or lifting over 30 pounds and
limit her getting in and out of vehicles to three hours a day.
By decision dated July 17, 2018, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish that the May 18, 2018 incident occurred in the performance
of duty, as alleged. It also noted that she failed to provide medical evidence signed by a physician
providing a valid medical diagnosis. OWCP concluded, therefore, that the requirements had not
been met to establish an injury as defined by FECA.
Appellant subsequently provided a July 12, 2018 statement in response to OWCP’s
questionnaire. She explained that she informed her supervisor the next day after the incident and
came to work because she did not realize the extent of her injury. Appellant stopped coming to
work after a couple of days when her injury did not improve and she began to realize that it was
more severe. She noted that, when the injury occurred, she was walking to deliver mail on her
route, she stumbled on uneven ground and injured her back and ankle when they twisted.
Appellant continued to deliver packages thinking the discomfort would eventually go away. She
acknowledged that she previously experienced back pain and that, after a discussion with her
physician, she believed that performing her job duties for several months with few days off, along
with twisting her ankle on May 18, 2018 caused her injury. Appellant asserted that she was
claiming injuries from both a traumatic injury and occupational disease.4
In an August 9, 2018 medical note, G. Ryan Aprill, a physician assistant, provided work
restrictions of no lifting over 15 pounds, no repetitive motions, and no twisting, pushing, or pulling.
In another note dated November 12, 2018, Ms. Aprill indicated that appellant was unable
to work. Appellant also provided a November 14, 2018 statement explaining that she underwent
major lumbar spinal surgery on September 27, 2018 in order to treat her injuries and that she was
seeking back pay for her medical expenses.

4

As appellant filed her claim as a traumatic injury claim in relation to the May 18, 2018 employment incident,
OWCP’s hearing representative correctly considered it as such. However, she may file an occupational disease claim
(Form CA-2) along with supporting evidence after the disposition of this present claim. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800 (June 2011).

3

OWCP also received an undated Certification of Health Care Provider for Employee’s
Serious Health Condition (Family and Medical Leave Act) from Dr. Frisch. Dr. Frisch noted that
appellant presented with evidence of low back pain, bilateral buttocks pain, and disc desiccation
with an annular tear across L4-5 and that her conditions approximately began in December 2017.
On November 20, 2018 appellant requested reconsideration of OWCP’s July 17, 2018
merit decision and noted that she underwent spinal surgery on August 27, 2018.
Appellant provided a January 7, 2019 medical note from Ms. Aprill indicating that
appellant required six weeks of physical therapy to treat her lumbar condition.
By decision dated January 14, 2019, OWCP modified its prior decision finding that the
factual and medical evidence of record established fact of injury. However, the claim remained
denied because the medical evidence of record was insufficient to establish that appellant’s
diagnosed medical conditions were causally related to the accepted May 18, 2018 employment
incident.
On January 29, 2019 appellant requested reconsideration of OWCP’s January 14, 2019
merit decision. Along with her request she also submitted a January 24, 2019 medical note from
Dr. Frisch providing that she would need to remain out of work until after her next follow-up
appointment.
Appellant also provided copies of Dr. Frisch’s December 5, 2017 medical report and
Ms. Buck’s May 23, 2018 medical report.
By decision dated February 21, 2019, OWCP denied appellant’s request for
reconsideration of the merits of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.10
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.11 The opinion of the physician
must be based on a complete factual and medical background, 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.12
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,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish diagnosed
medical conditions causally related to the accepted May 18, 2018 employment incident.
Appellant provided an undated Certification of Health Care Provider for Employee’s
Serious Health Condition (Family and Medical Leave Act) from Dr. Frisch. Dr. Frisch noted that
she presented with evidence of low back pain, bilateral buttocks pain, and disc desiccation with an
annular tear across L4-5. He indicated that appellant’s conditions approximately began in
December 2017, prior to the accepted May 18, 2018 employment incident, and he did not offer an
opinion on causal relationship. Medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.14
Moreover, the need for a rationalized medical opinion based on medical rationale is especially

8

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

10

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

11

K.V., Docket No. 18-0723 (issued November 9, 2018).

12

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

13

Supra note 4 at Chapter 2.805.3e (January 2013); see also N.C., Docket No. 19-1191 (issued December 19, 2019);
R.D., Docket No. 18-1551 (issued March 1, 2019).
14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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important in this case as the evidence suggests that appellant had a preexisting medical condition.15
For these reasons, Dr. Frisch’s undated certification is of limited probative value.
In medical notes dated May 21, 2018 and January 24, 2019, Drs. Rodgers and Frisch
indicated that appellant would need to remain out of work due to knee and back pain. As stated
previously, the Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.16
Therefore, Drs. Rodgers and Frisch’s medical notes are insufficient to establish appellant’s claim.
Appellant submitted a May 21, 2018 x-ray of her left knee, which revealed no evidence of
a fracture, dislocation, effusion, or other abnormality. The Board has held that diagnostic reports
do not offer an opinion regarding the cause of an employee’s condition and therefore lack probative
value on the issue of causal relationship.17 Thus, this report is also insufficient to meet appellant’s
burden of proof.
Appellant also provided multiple medical reports from physician assistants. The Board has
consistently held that medical reports signed solely by a physician assistant are of no probative
value as such health care providers are not considered “physician[s]” as defined under FECA and
are therefore not competent to provide medical opinions.18 Consequently, their medical findings
and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.19
The remaining medical records are of no probative value as they either do not address
appellant’s claimed conditions or are dated prior to the accepted May 18, 2018 employment
incident.20
As appellant has not submitted rationalized medical evidence establishing that her
conditions are causally related to the accepted May 18, 2018 employment incident, the Board finds
that she has not met her burden of proof to establish her claim.

15

See M.E., Docket No. 18-0940 (issued June 11, 2019); E.V., Docket No. 17-0417 (issued September 13, 2017).

16

M.D., Docket No. 19-0338 (issued July 9, 2019); S.F., Docket No. 18-1030 (issued April 5, 2019); L.B., and
D.K., supra note 14.
17

K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019); J.M.,
Docket No. 17-1688 (issued December 13, 2018).
18

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. See 5 U.S.C. § 8102(2); M.H.,
Docket No. 18-1737 (issued March 13, 2019); M.M., Docket No. 16-1617 (issued January 24, 2017) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
19

D.F., Docket No. 19-0108 (issued April 16, 2019); see also T.H., Docket No. 18-1736 (issued March 13, 2019).

20

D.J., Docket No. 18-0200 (issued August 12, 2019).

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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
Section 8128(a) of FECA21 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.22
To require OWCP to reopen a case for merit review under 5 U.S.C. § 8128(a), 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.23
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.24 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.25 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.26
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, and she did not advance a new and relevant legal argument
not previously considered. Accordingly, she is not entitled to a review of the merits of her claim
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
Furthermore, appellant did not submit relevant and pertinent new evidence with her
January 25, 2019 request for reconsideration.27 The underlying issue in this case is whether her
21

Supra note 2.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.608(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 091517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
24

Id. at § 10.607(a).

25

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

26

Id. at § 10.608(b); H.H., supra note 23; E.R., Docket No. 09-1655 (issued March 18, 2010).

27
J.B., Docket No. 18-1531 (issued April 11, 2019); see L.R., Docket No. 18-0400 (issued August 24, 2018);
Candace A. Karkoff, 56 ECAB 622 (2005).

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medical condition is causally related to the accepted May 18, 2018 employment incident. That is
a medical issue which must be addressed by relevant medical evidence not previously
considered.28 Although evidence submitted on reconsideration need not carry appellant’s burden
of proof entirely to suffice for reconsideration, the new evidence must at least be relevant and
pertinent to the issue upon which the claim was denied.29
In support of her request for reconsideration, appellant submitted a January 24, 2019
medical note from Dr. Frisch, wherein he provided that she would need to remain out of work until
after her next follow-up appointment. The submission of this evidence does not require reopening
of Dr. Frisch’s claim for review of the merits of the claim because this evidence is irrelevant to the
underlying issue of causal relationship.30
Appellant also provided copies of Dr. Frisch’s December 5, 2017 medical report and
Ms. Buck’s May 23, 2018 medical report. 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.31
In this case, appellant failed to submit relevant and pertinent new evidence regarding causal
relationship.32 Thus, she is not entitled to a review of the merits of her claim based on the third
requirement under 20 C.F.R. § 10.606(b)(3).33
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted May 18, 2018 employment incident. The Board further
finds that OWCP properly denied her request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

28

R.S., Docket No. 19-0312 (issued June 18, 2019); T.B., Docket No. 18-1214 (issued January 29, 2019); D.L.,
Docket No. 16-0342 (issued July 26, 2016).
29

R.R., Docket No. 18-1562 (issued February 22, 2019); K.B., Docket No. 18-1392 (issued January 15, 2019); A.A.,
Docket No. 18-0031 (issued April 5, 2018).
30

L.E., Docket No. 19-0470 (issued August 12, 2019).

31

R.S., supra note 28; D.T., Docket No. 17-1734 (issued January 18, 2018); Richard Yadron, 57 ECAB 207 (2005).

32

P.C., Docket No. 18-1703 (issued March 22, 2019); M.H., Docket No. 13-2051 (issued February 21, 2014).

33

Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 21 and January 14, 2019 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: February 6, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 06-1787
Issued: February 27, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 31, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 24, 2005 and May 17, 2006 merit decisions concerning the
termination of his compensation and the July 6, 2006 decision denying his request for merit
review of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over these decisions.
ISSUES
The issue are: (1) whether the Office properly terminated appellant’s compensation
effective October 30, 2005 on the grounds that he refused an offer of suitable work; and
(2) whether the Office properly denied appellant’s request for further review of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 12, 1999 appellant, then a 33-year-old letter carrier, filed a traumatic
injury claim after he was bitten on his right leg by a dog while he was delivering mail on that

date. He began working in a light-duty position shortly after November 12, 1999. The Office
accepted that appellant sustained an open wound of the right hip and thigh, sprains and strains of
the right knee and leg, a right medial meniscus tear, joint ankylosis of the right lower leg and
reflex sympathetic dystrophy of the right leg. It paid appropriate compensation for periods of
disability. On March 2, 2000 appellant underwent a right medial meniscus repair and
synovectomy and on April 31, 2000 he had scar tissue from the first surgery removed. Both
procedures were authorized by the Office.
In June 2003, appellant advised the Office and the employing establishment that he had
moved to Memphis, Tennessee.1 He continued to receive compensation for employment-related
disability.
The Office periodically requested that appellant provide medical evaluations from
attending physicians regarding his ability to work. On April 7, 2005 Dr. Steven Richey, an
attending Board-certified family practitioner, indicated that appellant could perform light-duty
work for eight hours per day. He recommended that appellant be allowed to alternate between
sitting and standing and not lift more than 25 pounds.
On June 9, 2005 the employing establishment offered appellant a modified carrier
position in Seaside, California. The position involved assisting customers with forms and
questions, answering telephone calls and helping customers pick up mail and packages weighing
less than 20 pounds. Appellant would be allowed to alternate between sitting and standing.
Appellant refused the job offer indicating that he was not physically capable of performing it;
that his medications interfered with his ability to work; that his work contract prevented him
from accepting the position; and that he was unable to relocate from Memphis to Seaside.
In a July 1, 2005 letter, the Office advised appellant of its determination that the modified
carrier position offered by the employing establishment was suitable. It also advised him of its
determination that his reasons for refusing the position were not acceptable. The Office
informed appellant that his compensation would be terminated if he did not accept the position or
provide good cause for not doing so within 30 days.
Appellant again indicated that he was not physically capable of performing the offered
position and his work contract prevented him from accepting it. In an August 10, 2005 letter, the
Office again advised appellant of its determination that his reasons for refusing the position were
not acceptable. It provided him with 15 days to accept the position.2
In an October 24, 2005 decision, the Office terminated appellant’s compensation
effective October 30, 2005 on the grounds that he refused an offer of suitable work.

1

Appellant last worked for the employing establishment on May 24, 2003 and the Office found that he sustained
a recurrence of disability beginning that date. He was not separated from the employing establishment after his
relocation.
2

Appellant submitted additional medical evidence from attending physicians.

2

Appellant requested a telephone hearing with an Office hearing representative. During
the March 6, 2006 telephone conference, appellant repeated his earlier reasons for refusing the
offered position. In a decision dated and finalized May 17, 2006, the Office hearing
representative affirmed the Office’s October 24, 2005 decision.
Appellant submitted additional medical evidence and requested reconsideration of his
claim. By decision dated July 6, 2006, the Office denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”3 However, to justify such termination, the Office
must show that the work offered was suitable.4 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.5
With regard to relocation, Office regulations provide that the employer, if possible,
should offer suitable reemployment in the location where the employee currently resides. If this
is not practical, the employer may offer suitable reemployment at the employee’s former duty
station or other location.6
Section 10.516 provides in pertinent part that the Office shall advise the employee that
the offered work is suitable and afford the employee 30 days to accept the job or present any
reasons to counter the Office’s finding of suitability. If the employee presents such reasons and
the Office determines that the reasons are unacceptable, it will notify the employee of that
determination and that he has 15 days in which to accept the offered work without penalty. At
that point in time, the Office’s notification need not state the reasons for finding that the
employee’s reasons are not acceptable.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained multiple injuries due to a dog attack on
November 12, 1999 and he last worked for the employing establishment in May 2003. He was a
resident of California at the time of the attack and worked at the Seaside Post Office. In
June 2003, he advised the Office and the employing establishment that he had moved from the
Seaside, California area to Memphis, Tennessee. In June 2005, the employing establishment
3

5 U.S.C. § 8106(c)(2).

4

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

5

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

6

20 C.F.R. § 10.508; Sharon L. Dean, 56 ECAB ___ (Docket No. 04-1707, issued December 9, 2004).

7

20 C.F.R. § 10.516.

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offered him a modified carrier position in Seaside. Appellant advised the Office that one of the
reasons he could not accept the position was that he was unable to move to California.
As noted above, regulations provide that when an employee would need to move to
accept an offer of reemployment, the employing establishment should, if possible, offer suitable
reemployment in the location where the employee currently resides. The record contains no
evidence that the employing establishment made any effort to determine whether reemployment
was possible in the Memphis, Tennessee area. The Office knew that appellant would have to
move back to California to accept the modified job offer. It was informed in June 2005 of his
intention not to return to California and it should have developed this aspect of the case
consistent with its regulations before finding the job offer suitable.
Under the circumstances of this case, where appellant would need to move to accept a
position in Seaside, California, the Office should have developed the issue of whether suitable
reemployment in or around Memphis, Tennessee was possible. It was reversible error for the
Office to terminate his compensation benefits without positive evidence showing that such an
offer was not possible or practical.8
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation effective
October 30, 2005 on the grounds that he refused an offer of suitable work.

8

See Sharon L. Dean, supra note 6. Cf. Martin Joseph Ryan, Docket No. 00-1262 (issued June 14, 2002)
(holding that it was proper for the employer to offer a job in New York where the record contained evidence
showing that the employer first attempted to assess the practicality of offering suitable reemployment in Clearwater,
Florida, the location where the claimant resided). Given the Board’s disposition of the merit issue, it is not
necessary to consider the nonmerit issue.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
May 17, 2006 and October 24, 2005 decisions are reversed.
Issued: February 27, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Sterling, VA,
Employer
__________________________________________

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

Docket No. 10-370
Issued: August 17, 2010

Case Submitted on the Record

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

JURISDICTION
On November 23, 2009 appellant timely appealed the October 23, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the October 23,
2009 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s September 29, 2009 request
for reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The case was previously before the Board.1 Appellant, a 41-year-old former mail
handler, has an accepted claim for right lower leg contusion, which arose on September 5, 2002.
1

Docket No. 09-617 (issued September 18, 2009).

He resigned from the employing establishment “on or about” November 16, 2002 and later
obtained employment in the private sector. On March 26, 2008 appellant filed a claim for
recurrence of disability beginning October 22, 2002. His condition had reportedly worsened and
he was experiencing constant pain, numbness and swelling in his foot. Appellant submitted
medical records for treatment received between September and December 2002, but nothing
more recent.2 He reported that he had worked in the private sector for approximately 2½ years
between January 2003 and October 2005. Appellant indicated that he had been unemployed
since October 31, 2005 “due to injury.” The Office denied his claim for recurrence of disability
by decision dated May 16, 2008. The Branch of Hearings and Review affirmed the Office’s
decision on November 18, 2008. When the case was previously on appeal, the Board affirmed
the Office’s denial of appellant’s claimed recurrence of disability beginning October 22, 2002.
The Board’s September 18, 2009 decision is incorporated herein by reference.
On September 29, 2009 appellant’s counsel requested reconsideration. He premised his
request on a medical report dated December 29, 2008. The Office originally received this report
on January 22, 2009, while the case was on appeal before the Board.3 The document does not
bear a signature; however, the December 29, 2008 report indicates that it is from the office of
“Mark S. Davids, D.P.M.” Appellant’s chief complaints were right foot pain, numbness and
stiffness. The right foot injury reportedly occurred in 2002 when a stapler was thrown at
appellant’s tendon. Dr. Davids noted a history of cramps and sharp pain “daily” since 2002,
which had progressively worsened.4 Appellant’s right foot condition periodically awakened him
at night. Dr. Davids noted that it “comes [and] goes.” He also noted that appellant previously
received treatment at the “end of 2002.” Dr. Davids further noted that in 2008 the Department of
Health referred appellant for an x-ray and a magnetic resonance imaging scan. He also
referenced six weeks of therapy during the summer and a referral from a “Dr. Chauhan” to see a
podiatrist. Dr. Davids did not provide a specific diagnosis regarding appellant’s right lower
extremity or indicate what, if any, physical limitations appellant’s right foot condition posed.
In a decision dated October 23, 2009, the Office denied appellant’s request for
reconsideration. Appellant’s counsel argues that the Office’s decision denying reconsideration is
“[c]ontrary to fact and law.”

2

The latest medical evidence at the time was a December 3, 2002 follow-up report from Dr. Christopher J.
Walters, a podiatrist. Appellant had complained of occasional numbness in his right foot, but no pain. Dr. Walters
indicated that appellant had a history consistent with tendinitis and contusion. He characterized appellant’s
condition as “improved.”
3

At that time counsel also submitted a copy of the December 29, 2008 “office notes” directly to the Board. The
Board noted in its September 18, 2009 decision that the record on appeal included additional medical records dated
December 29, 2008. As this evidence clearly postdated the Office’s November 18, 2008 decision, then on appeal,
the Board advised appellant that pursuant to 20 C.F.R. § 501.2, it could not consider such evidence for the first time
on appeal.
4

Additional information in the right margin of the document appears to have been omitted either when faxed or
when the document was scanned into the record by the Office. Whatever the cause, certain information is illegible.

2

LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.5 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.6
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.7
ANALYSIS
On September 29, 2009 appellant’s counsel filed a request for reconsideration of the prior
disallowance of the recurrence claim. He noted that the request was submitted within one year
of September 18, 2009; the date of the latest merit decision. Counsel further noted that the
request for reconsideration was based on the December 29, 2008 medical report, which had
already been submitted. The Office denied the request for reconsideration without reviewing the
merits of the claim. On appeal, counsel claims that the Office’s October 23, 2009 decision
denying reconsideration is “[c]ontrary to fact and law.” The Board disagrees.
Appellant’s September 29, 2009 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Therefore, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).8
Appellant’s counsel indicated that the September 29, 2009 request for reconsideration
was premised on Dr. Davids’ December 29, 2008 report. Further merit review is appropriate
where appellant submits relevant and pertinent new evidence not previously considered by the
Office.9 In the October 23, 2009 nonmerit decision, the Office acknowledged that Dr. Davids’
December 29, 2008 report was the only new medical evidence received since the case was
reviewed by the hearing representative on November 18, 2008. The issue before the Office was
whether appellant sustained a recurrence of disability on October 22, 2002, causally related to his
September 5, 2002 employment injury. Dr. Davids’ December 29, 2008 report does not address
this particular issue or otherwise provide any insight regarding appellant’s claimed recurrence of
disability. He did not provide a current diagnosis with respect to appellant’s right lower
5

5 U.S.C. § 8128(a) (2006).

6

20 C.F.R. § 10.606(b)(2) (2009).

7

Id. at § 10.608(b).

8

Id. at § 10.606(b)(2)(i) and (ii).

9

Id. at § 10.606(b)(2)(iii).

3

extremity. Dr. Davids also did not address the existence and extent of any current or prior
employment-related disability. Because his report did not address the relevant issue on
reconsideration, appellant failed to satisfy the third requirement under section 10.606(b)(2).10
Dr. Davids did not submit any relevant and pertinent new evidence with his September 29, 2009
request for reconsideration. Consequently, appellant is not entitled to a review of the merits of
his claim.11
CONCLUSION
The Office properly denied appellant’s September 29, 2009 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Id. at § 10.608(b).

11

Id. at § 10.608(b).

4


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

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1238
Issued: February 26, 2010

Case Submitted on the Record

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

JURISDICTION
On April 14, 2009 appellant filed a timely appeal from a March 10, 2009 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.
ISSUES
The issues are: (1) whether the Office properly found that an overpayment in
compensation in the amount of $5,731.68 had been created for the period May 31, 2007 through
April 15, 2008 because appellant’s compensation was based on an incorrect pay rate; (2) whether
the Office properly denied waiver of the overpayment; and (3) whether the Office properly
required repayment at the rate of $200.00 per compensation period. On appeal appellant’s
representative asserted that there is no overpayment because appellant was entitled to a recurrent
pay rate since, as she had returned to full-time employment with modified letter carrier duties
and thus, she had returned to “regular” employment. He further asserted that, if the Board finds
that an overpayment was created, appellant should be entitled to waiver.1
1

Both appellant and her representative question a $13,000.00 deposit to appellant’s account.

FACTUAL HISTORY
On July 12, 1989 appellant, then a 34-year-old letter carrier, sustained an employmentrelated right rotator cuff strain. She stopped work that day and received compensation based on
a weekly pay rate of $546.21. Appellant returned to four hours of modified duty on
November 27, 1989, and began working eight hours of modified duty on January 29, 1990. On
June 1, 1990 she underwent surgical repair of the right shoulder, and again received
compensation based on a weekly pay rate of $546.21. Appellant returned to eight hours of
modified duty daily on September 17, 1990. Right shoulder impingement syndrome was
accepted and she continued to work modified duty. Appellant again stopped work on May 31,
2007 and had right shoulder surgery on June 4, 2007. She thereafter filed CA-7, claims for
compensation beginning May 31, 2007. The employing establishment informed the Office that
appellant’s pay rate on June 4, 2005, the date of recurrence, was $946.52 per week,2 and she was
paid disability compensation at that rate. Appellant returned to full-time modified duty on
April 16, 2008 and on April 25, 2008 began working four hours daily.
The Office determined that an incorrect pay rate for compensation was used from
May 31, 2007 to April 15, 2008 and, beginning April 25, 2008, paid appellant compensation
based on a weekly pay rate of $546.21. Computer print-outs and an overpayment worksheet
show that appellant received $27,469.95 in compensation for the period May 31, 2007 through
April 15, 2008, when she should have received $21,738.27, yielding a $5,731.68 overpayment in
compensation. By letter dated July 23, 2008, the Office issued a preliminary determination that
appellant had received an overpayment in compensation in the amount of $5,731.68 for the
period May 31, 2007 through April 15, 2008 because she was paid at an incorrect pay rate. It
found appellant without fault and explained that as she had never returned to full duty, she
should have been paid using the date-of-injury pay rate of $546.21.
Appellant was given 30 days to respond and was provided an overpayment action request
form and an overpayment questionnaire. On August 22, 2008 she requested a prerecoupment
hearing, stating that she disagreed that the overpayment occurred and requested waiver.
Appellant submitted a statement reporting rent of $1,164.00 a month and that she had a Thrift
Savings loan, and financial information including Quincy Credit Union receipts dated October 2
and November 23, 2007 and August 12, 2008, with the latter showing a $1,270.26 balance, and
credit card payment receipts and earnings and leave statements for pay periods 10, 12 and 13 in
2008.
At the hearing, held on December 16, 2008, appellant’s union representative argued that
appellant was entitled to the recurrent pay rate because she was a “regular” employee since she
had returned to full-time duties. Appellant testified that she had returned to full-time modified
employment in 1990 and described her modified job duties, stating that she still had restrictions.
The hearing representative advised her to provide an overpayment questionnaire. Appellant
submitted limited-duty job assignments dated 1989, 1994 and 1999, medical evidence,
employing establishment correspondence, and additional financial information including
2

It is unclear why this date was chosen as there is no evidence of record that appellant had a recurrence of
disability on that date.

2

Citizens Bank statements dated December 21 and 22, 2008 showing balances of $15,844.80 and
$13,980.80 respectively. She also submitted grocery receipts and receipts showing credit card,
insurance, department store, utility and motor vehicle tax payments.
By decision dated March 10, 2009, an Office hearing representative found that an
overpayment in compensation in the amount of $5,731.68 had been created because appellant
had been paid at an incorrect pay rate for the period May 31, 2007 through April 15, 2008. He
further found that she was not at fault but was not entitled to waiver because her asset base
exceeded the allowable amount of $4,800.00. The Office hearing representative noted that
appellant had not provided an overpayment questionnaire and that, based on the financial
information she provided, it was difficult to assess her monthly expenses. He determined that
her monthly part-time earnings and compensation payments totaled $2,135.60 and her necessary
living expenses totaled $2,005.10, yielding $130.50 in discretionary income each month. The
hearing representative then determined that $100.00 would be deducted from appellant’s
continuing compensation each payment period to repay the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.4 When an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.5 The Act provides that monthly pay means the monthly pay at the time of injury, or the
time disability begins, or the time compensable disability recurs, if the recurrence begins more
than six months after the injured employee resumes regular full-time employment, whichever is
greater.6
The Board has defined “regular” employment as established and not fictitious, odd-lot or
sheltered, and that the duties of “regular” employment are covered by a specific job classification
that would have been performed by another employee if appellant did not perform them.7
ANALYSIS -- ISSUE 1
Following her July 12, 1989 employment injury when she stopped work, appellant
initially returned to part-time modified duty, and then to full-time modified duty on
November 27, 1989. She continued to work modified duty until she stopped work on May 31,

3

5 U.S.C. §§ 8101-8193.

4

Id. at 8102(a).

5

Id. at 8129(a).

6

Id. at § 8101(4); see Janet A. Condon, 55 ECAB 591 (2004).

7

Jeffrey T. Hunter, 52 ECAB 503 (2001).

3

2007 to undergo a surgery. Appellant again returned to modified duty on April 16, 2008 and
testified at the hearing that she still worked restricted duty.
The Board finds that, contrary to appellant’s argument on appeal, it is apparent that she
did not return to “regular” employment. By her own testimony, when she returned to full-time
employment in 1990, she returned to modified duties and has continued to work restricted duty
since that time, never returning to full duties. The test is not whether the tasks that appellant
performed during her modified duty would have been done by someone else, but instead whether
she occupied a regular position that would have been performed by another employee. The
record supports that appellant did not perform all the duties of the position of letter carrier or any
other regular classified position at any time after her return to work following the July 12, 1989
employment injury. Appellant did not resume “regular” employment within the meaning of
section 8101(4) of the Act and, as such, the correct pay rate for compensation purposes should
have been $546.21, the weekly pay rate in effect on the date of injury. She was thus not entitled
to the recurrent weekly pay rate of $946.52 on which her compensation was based for the period
May 31, 2007 through April 15, 2008.8
The record supports that appellant’s monetary compensation for the period May 31, 2007
through April 15, 2008 was based on a recurrent pay rate of $946.52 per week, when she should
have received compensation based on the date-of-injury pay rate of $546.21. Computer printouts and an overpayment worksheet show that she received compensation of $27,469.95 for this
period, when she should have received compensation of $21,738.27. Thus, an overpayment in
compensation in the amount of $5,731.68 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”9 Waiver of an overpayment is not permitted unless the claimant is “without
fault” in creating the overpayment.10 The guidelines for determining whether recovery of an
overpayment would defeat the purpose of the Act or would be against equity and good
conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of Federal
Regulations.11
Section 10.436 provides that recovery of an overpayment would defeat the purpose of the
Act if recovery would cause hardship because the beneficiary needs substantially all of his or her
current income (including compensation benefits) to meet current ordinary and necessary living
expenses, and, also, if the beneficiary’s assets do not exceed a specified amount as determined by

8

Janet A. Condon, supra note 6.

9

5 U.S.C. § 8129.

10

Steven R. Cofrancesco, 57 ECAB 662 (2006).

11

5 U.S.C. §§ 10.434-10.437.

4

the Office from data provided by the Bureau of Labor Statistics.12 For waiver under the defeat
the purpose of the Act standard, a claimant must show that he or she needs substantially all of his
or her current income to meet current ordinary and necessary living expenses, and that assets do
not exceed the resource base.13 Office procedures provide that the assets must not exceed a
resource base of $4,800.00 for an individual or $8,000.00 for an individual with a spouse or
dependent plus $960.00 for each additional dependent.14
An individual’s liquid assets include but are not limited to cash, the value of stocks,
bonds, saving accounts, mutual funds and certificate of deposits. Nonliquid assets include but
are not limited to the fair market value of an owner’s equity in property such as a camper, boat,
second home and furnishings/supplies.15
ANALYSIS -- ISSUE 2
As the Office found appellant without fault in the creation of the overpayment, waiver
must be considered and repayment is still required unless adjustment or recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience.16
In evaluating whether recovery of the overpayment from appellant would defeat the
purpose of the Act, the Office noted that it was difficult to assess her monthly expenses because
she had not provided an overpayment questionnaire. It also correctly noted that, as appellant
reported assets in excess of $13,000.00 which exceeded the resource base of $4,800.00, appellant
had not established that she was entitled to a waiver on the basis of defeating the purpose of the
Act. Although appellant did not submit an overpayment questionnaire, she furnished a Citizens
Bank statement dated December 22, 2008 showing a balance of $13,980.80. As this amount is
greater than the resource base of $4,800.00,17 the Office acted properly in refusing appellant’s
request for waiver under the standard of defeating the purpose of the Act as she did not meet
both criteria to qualify for waiver of the recovery of the overpayment. It therefore properly
concluded that recovery of the overpayment would not cause financial hardship to appellant and
thus defeat the purpose of the Act.18 Furthermore, as appellant made no argument that she gave
up a valuable right or changed her position for the worse in reliance on the overpaid
compensation, the Office properly determined that recovery would not be against equity and
good conscience. The Board thus finds that the Office properly denied waiver of the

12

Id. at § 10.436.

13

Id.

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004).
15

Id.

16

Supra note 9.

17

Supra note 14.

18

See K.K., 61 ECAB ____ (Docket No. 09-207, issued October 2, 2009).

5

overpayment and is required by law to recover the debt by decreasing later payments to which
appellant is entitled.19
LEGAL PRECEDENT -- ISSUE 3
The Office’s implementing regulations provide that, if an overpayment of compensation
has been made to an individual entitled to further payments and no refund is made, it shall
decrease later payments of compensation, taking into account the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.20
ANALYSIS -- ISSUE 3
Appellant did not provide an overpayment questionnaire or sufficient detailed
information regarding her current financial circumstances. It is her responsibility to provide
information about income, expenses and assets.21 The hearing representative noted that the
available evidence indicated that appellant had $130.50 in discretionary income each month and
set the recovery of the overpayment at $100.00 from continuing compensation payments. Based
on the evidence, the hearing representative did take relevant evidence into account so as to
minimize hardship in recovering the overpayment. The Office therefore did not abuse its
discretion in finding that appellant should repay her overpayment at the rate of $100.00 per
compensation period.

19

Supra note 5.

20

20 C.F.R. § 10.441(a); see Steven R. Cofrancesco, supra note 10.

21

20 C.F.R. § 10.438.

6

CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment in compensation in the amount of $5,731.68, that the Office properly denied waiver
and required recovery of the overpayment by deducting $100.00 every 28 days from her
continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 26, 2010
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
E.F., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 07-569
Issued: August 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 26, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 11, 2006 merit decision denying his schedule award claim and its
October 13, 2006 decision finding that he abandoned his hearing request. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over these decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
permanent impairment of his arms which entitles him to schedule award compensation; and
(2) whether the Office properly determined that he abandoned his hearing request.

FACTUAL HISTORY
On May 31, 2005 appellant, then a 59-year-old sheet metal mechanic, filed an
occupational disease claim alleging that he sustained carpal tunnel syndrome in both arms due to
the repetitive duties of his job which included using tin snips and power tools.1
On July 11, 2005 Dr. Steven A. Reid, an attending neurosurgeon, stated that appellant
reported that he had “excellent relief” of his left hand pain and tingling, that he only had left
hand symptoms when he drove and that appellant continued to experience intermittent right hand
tingling and numbness. He stated that appellant had a well-healed left carpal tunnel incision.2
Dr. Reid indicated that appellant had “symptoms of right carpal tunnel syndrome and
satisfactorily treated left carpal tunnel syndrome” which were caused by his repetitive job duties.
He stated that he could work in a full-duty capacity.
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and he filed
a claim alleging that he had permanent impairment of his arms which entitled him to schedule
award compensation. In August 2005, appellant advised the Office that he had moved and
provided his new address in Keystone Heights, FL. In October 2005, the Office requested that
Dr. Reid provide a rating for permanent impairment. On October 21, 2005 Dr. Reid stated that
appellant had not reached maximum medical improvement (MMI) and that he would not assign a
rating until appellant had right carpal tunnel surgery. He indicated that appellant had no work
restrictions.
On February 13, 2006 Dr. Reid stated that appellant reported excellent relief of his right
hand tingling and numbness and occasional mild tenderness in his left carpal tunnel scar. He
indicated that appellant’s surgical scars appeared well-healed and nontender, that examination
revealed unremarkable vital signs and that he had intact strength and sensation throughout both
hands. Dr. Reid indicated that appellant had reached MMI with regard to his carpal tunnel
surgery and released him to work in a full-duty capacity. He indicated that appellant did not
have any ratable permanent impairment of his arms under the standards of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001). On May 3, 2006
the district medical adviser evaluated the reports of Dr. Reid and determined that appellant did
not have any permanent impairment which would entitle him to schedule award compensation.
He indicated that Dr. Reid had noted that appellant did not exhibit any strength or sensory
deficits in his arms.
In a May 11, 2006 decision, the Office denied appellant’s claim on the grounds that the
medical evidence did not show that he had permanent impairment of his arms which entitled him
to schedule award compensation.
On June 7, 2006 appellant requested a telephone hearing with an Office hearing
representative in connection with the May 11, 2006 decision. In a September 7, 2006 letter, the
1

Appellant was living in Melrose, FL at the time he filed his claim.

2

It appears that appellant underwent left carpal tunnel surgery, but the record does not contain any report of this
surgery.

2

Office advised appellant that a telephone hearing would be held with an Office hearing
representative at 10:15 a.m. Eastern Standard Time on October 5, 2006. The Office provided
appellant with a tollfree telephone number which he was to call a few minutes before the time of
the scheduled hearing.3
In an October 13, 2006 decision, the Office determined that appellant abandoned his
hearing request. It noted that he failed to appear for the hearing because he did not call the
hearing representative at the designated time and indicated that appellant did not contact the
Office before or after the hearing to explain his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral carpal tunnel syndrome and he filed
a claim alleging that he had permanent impairment of his arms which entitled him to schedule
award compensation. The Board finds that appellant did not submit medical evidence showing
that he has permanent impairment of his arms which entitles him to schedule award
compensation.
On February 13, 2006 Dr. Reid, an attending Board-certified neurosurgeon, stated that
appellant reported excellent relief of his right hand tingling and numbness and occasional mild
tenderness in his left carpal tunnel scar. He indicated that appellant’s left surgical scar appeared
well healed and that he had intact strength and sensation throughout both hands. Dr. Reid
indicated that appellant had reached MMI and concluded that he did not have any ratable
permanent impairment of his arms under the standards of the A.M.A., Guides. On May 3, 2006
the district medical adviser evaluated the reports of Dr. Reid and determined that appellant did
not have any permanent impairment which would entitle him to schedule award compensation.
Although Dr. Reid indicated that appellant reported continuing mild arm symptoms, he
clearly indicated that appellant did not have any permanent impairment of his arms which would
3

The notice was mailed to appellant’s new address in Keystone Heights, FL.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

Id.

3

entitle him to schedule award compensation. He noted that appellant did not have any permanent
impairment based on sensory or strength losses and there is no indication in the record that he
had limited arm motion or any other impairment under the standards of the A.M.A., Guides.7
The district medical adviser reviewed the relevant medical evidence and also determined that
appellant did not have such permanent impairment. Appellant has not submitted any medical
evidence showing that he is entitled to schedule award compensation under the relevant
standards and the Office properly denied his claim.
LEGAL PRECEDENT -- ISSUE 2
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district Office]. In cases involving
prerecoupment hearings, H&R will also issue a final decision on the
overpayment, based on the available evidence, before returning the case to the
DO.
“(2) However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, H&R should advise the
claimant that such a request has the effect of converting the format from an oral
hearing to a review of the written record.
“This course of action is correct even if H&R can advise the claimant far enough
in advance of the hearing that the request is not approved and that the claimant is,
therefore, expected to attend the hearing and the claimant does not attend.”8
ANALYSIS -- ISSUE 2
Appellant requested a telephone hearing with an Office hearing representative in
connection with the May 11, 2006 decision and such hearing was scheduled for October 5, 2006.
The Board finds that appellant abandoned this request for a hearing.
7

See generally A.M.A., Guides 433-51 for evaluation of arm impairment.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record,
Chapter 2.1601.6(e) (January 1999).

4

The record shows that the Office mailed appropriate notice to the claimant at his last
known address. The record also supports that appellant did not request postponement, that he
failed to appear at the scheduled hearing by calling the hearing representative at the designated
time and that he failed to provide any notification for such failure after the scheduled date of the
hearing. As this meets the conditions for abandonment specified in the Office’s procedure manual,
the Office properly found that appellant abandoned his request for an oral hearing before an Office
hearing representative.9
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
permanent impairment of his arms which entitles him to schedule award compensation. The
Board further finds that the Office properly determined that appellant abandoned his hearing
request.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 13 and May 11, 2006 decisions are affirmed.
Issued: August 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

See also Claudia J. Whitten, 52 ECAB 483, 485 (2001).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF JUSTICE,
FEDERAL CORRECTIONAL COMPLEX,
Coleman, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1961
Issued: December 20, 2018

Case Submitted on the Record

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

JURISDICTION
On September 20, 2017 appellant, through counsel, filed a timely appeal from a July 19,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction 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 greater than five
percent permanent impairment of the left upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On March 2, 2004 appellant, then a 42-year-old lieutenant, was involved in an
employment-related incident.3 OWCP accepted his traumatic injury claim (Form CA-1) for left
rotator cuff syndrome. On May 25, 2010 it also accepted the claim for left shoulder impingement
syndrome.4 On August 30, 2004 appellant underwent OWCP-approved left shoulder surgery.5
On September 22, 2016 appellant filed a claim for a schedule award (Form CA-7).
By development letters dated September 28 and October 4, 2016, OWCP acknowledged
receipt of appellant’s Form CA-7 claim for a schedule award. It advised him of the information
needed to support his claim including a detailed narrative medical report from his treating
physician, based on a recent examination that sets forth an opinion on maximum medical
improvement (MMI) and a rating of permanent impairment in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).6
In support of his claim, appellant submitted an October 7, 2015 impairment rating report
from Dr. Samy F. Bishai, an orthopedic surgeon. Dr. Bishai examined appellant and provided a
history of injury, physical examination findings, a list of diagnoses related to the employment
injury, and an assessment of permanent impairment. As to the left shoulder he reported tenderness
overlying the anterior, lateral, and posterior aspects of the left shoulder joint; range of motion
showed flexion to 80 degrees where normal is 150 degrees; extension is 15 degree where normal
is 40 degrees; abduction is 80 degrees where normal is 150 degrees; adduction is 15 degrees where
normal is 150 degrees; and external rotation of 45 degrees where normal is 90 degrees and internal
rotation is 20 degrees where normal is 40 degrees. He diagnosed rotator cuff syndrome of the left
shoulder joint, left shoulder impingement syndrome, severe supraspinatus tendinitis of the left
shoulder, and status postoperative arthroscopic surgery for treatment of shoulder impingement
syndrome and rotator cuff syndrome and tears. Dr. Bishai also noted that appellant had a severe
3

Appellant’s left shoulder was injured moving a mattress.

4
The employing establishment accommodated appellant with light-duty work on an intermittent basis from the date
of the injury until May 15, 2005, when he was placed on total disability. Appellant was referred for vocational
rehabilitation efforts and on February 23, 2010, he worked as an editor/writer for a magazine with wages of $400.00
per week. On September 4, 2014 OWCP terminated appellant’s wage-loss compensation effective that date. It found
that he no longer had residuals of the injury. By decision dated July 2, 2015, OWCP’s hearing representative affirmed
the September 4, 2014 decision.
5

Appellant underwent arthroscopic labrum repair of the shoulder (SLAP) repair, arthroscopic supraspinatus rotator
cuff debridement, arthroscopic subacromial decompression, and subacromial pain catheter placement.
6

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

2

disability because of the marked reduction in the range of motion of the left shoulder joint and the
difficulty of doing activities of daily living. He related that appellant was forced to retire on
medical disability because of the severity of his condition and the marked reduction in the range
of motion and the severe pain he experienced in his left shoulder joint.
Dr. Bishai referred to the sixth edition of the A.M.A., Guides and explained that he utilized
the stand-alone range of motion (ROM) methodology for calculating permanent impairment
because appellant’s loss of range of motion of the left shoulder joint had become the primary
disability for the patient due to the residuals from the injury of his shoulder injury of
March 5, 2004. He referred to Table 15-34 for shoulder range of motion and indicated that it dealt
with impairment ratings related to the deficits of the range of movement of the shoulder joint.7
Dr. Bishai explained that flexion was 80 degrees which corresponded to nine percent upper
extremity impairment, extension was to 15 degrees, which corresponded to two percent upper
extremity impairment, abduction to 80 degrees, which corresponded to six percent upper extremity
impairment, adduction to 15 degrees, which corresponded to one percent upper extremity
impairment, internal rotation to 20 degrees, which corresponded to four percent upper extremity
impairment, and external rotation was 45 degrees, which corresponded to two percent upper
extremity impairment. Dr. Bishai explained that all the values were added, not combined, since
they were dealing with one and the same joint, according to the A.M.A., Guides. He explained
that the impairments of (9+2+6+1+4+2) corresponded to a total of 24 percent left upper extremity
impairment due to loss of shoulder range of motion (ROM) under the A.M.A., Guides.8 Dr. Bishai
opined that MMI had been reached on October 7, 2015.
OWCP’s district medical adviser (DMA), Dr. Jovito Estaris, specializing in occupational
medicine, reviewed the claim on November 8, 2016. He noted that a functional capacity
evaluation (FCE) performed on March 28, 2005, revealed measurements for range of motion that
showed: flexion of 124 degrees, extension of 55 degrees, abduction of 87 degrees, internal rotation
of 55 degrees, and external rotation of 62 degrees. The DMA had noted that an April 15, 2014
second opinion report of Dr. Jonathan Black, a Board-certified orthopedic surgeon, revealed
continued pain over the left shoulder with certain activities. He advised that the range of motion
of the left shoulder on that date revealed full range of motion with strength testing of 5 out of 5 in
all muscle groups. The DMA noted that appellant could return to preinjury work duty. He
reviewed Dr. Bishai’s October 7, 2015 report and noted that “inexplicably,” his measurement of
ranges of motion was remarkably different from previous physicians. The DMA noted his
measurements, but advised that there were not three sets of measurements as recommended by the
A.M.A., Guides. He also noted that most of the measurements did not end in 0. The DMA
explained that there was a gap as to when the measurements were taken, but the usual course of
events was either stability of range of motion or mild improvement. He recommended another
evaluation by an independent medical examiner, who was a Board-certified orthopedic surgeon.
The DMA recommended not accepting the evaluation rating of Dr. Bishai and waiting for a second
opinion.

7

Table 15-34, A.M.A., Guides 475 (6th ed. 2009).

8

Table 15-34, A.M.A., Guides 475.

3

On November 14, 2016 OWCP referred appellant for a second opinion examination with
Dr. Richard C. Smith, a Board-certified orthopedic surgeon, for purposes of obtaining an
impairment rating as recommended by the DMA.
In a December 8, 2016 report, Dr. Smith noted appellant’s history of injury and treatment
and examined appellant. He noted that the accepted condition was left rotator cuff syndrome and
left shoulder impingement syndrome. Dr. Smith provided findings which included subjective
complaints of left shoulder pain with weakness and numbness. He also found pain with overhead
motion. Dr. Smith found objective findings to include: restricted flexion and abduction as well
as internal and external rotation of the left shoulder, tenderness of the supraspinatus, and x-rays
that showed postoperative changes.
Dr. Smith utilized the diagnosis-based impairment (DBI) methodology for rating
permanent impairment, referred to Table 15-5,9 and utilized the shoulder regional grid to find a
class 1 for diagnosis of impingement syndrome. He referred to Table 15-710 for functional history
and noted that appellant would have a grade modifier of 2 for pain symptoms with normal activity.
Dr. Smith referred to Table 15-811 and determined that appellant qualified for a grade modifier of
2 for a moderate problem with instability and decreased range of motion. He also referred to
clinical studies in Table 15-912 and found a grade modifier 1. Dr. Smith utilized the net adjustment
formula, the grade modifier of 2 for functional history minus the class 1 and found 1. He noted
the grade modifier for the physical examination of 2 minus the class 1 would be 1 and the clinical
studies would be 1 minus the class 1, or 0. Dr. Smith found the net adjustment of +2. He referred
to Table 15-1013 and found a net adjustment of 2, which would take him from a default grade of C
to an E. Dr. Smith utilized Table 15-514 with a class 1 due to some residual loss of function with
normal motion and explained that appellant went from a default grade of C, which was 3 percent
to the right, or 5 percent permanent impairment. He explained that the DBI methodology more
accurately depicted appellant’s condition and took into consideration his loss of motion. Dr. Smith
also explained that he did not disagree with Dr. Bishai’s calculation, but he believed that the DBI
method “better reflects the claimant’s overall condition.” He indicated that appellant reached MMI
on December 8, 2016.
On March 7, 2017 OWCP requested clarification and an addendum report from the DMA,
Dr. Estaris.
In a May 3, 2017 report, the DMA noted that he had reviewed the reports of second opinion
physician Dr. Smith, and treating physician Dr. Bishai. Dr. Estaris explained that the range of
motion measurements from Dr. Smith were 100 degrees of flexion and abduction to 90 degrees.
9

A.M.A., Guides 402.

10

Id. at 406.

11

Id. at 408.

12

Id. at 410.

13

Id. at 402.

14

Id.

4

He noted that Dr. Bishai found 80 degrees of flexion and 80 degrees of abduction. Dr. Estaris also
indicated that the impairment rating of Dr. Smith was made using the DBI methodology with
rotator cuff syndrome with impingement of the left shoulder. He concluded that appellant had five
percent left upper extremity permanent impairment, utilizing the same method as Dr. Smith.
By letters dated June 3, and July 5 and 10, 2017, counsel requested an update regarding the
status of appellant’s schedule award claim.
On July 5, 2017 OWCP received an undated addendum from the DMA. He explained that
the missing data was using the ROM method for impairment. The DMA explained that his review
of the ranges of motion measured by both Drs. Smith and Bishai were inconsistent and opined that
there were significant differences between the two measurements. He explained that neither
physician followed the A.M.A., Guides for impairment ROM rating because there were not three
sets of measurements. Furthermore, Dr. Bishai’s measurements contained some numbers which
did not end in zero. He opined that use of the ROM methodology was not possible in the case.
Dr. Bishai recommended another independent examination by a Board-certified orthopedic
surgeon to provide an impairment rating based on the ROM method utilizing the guidelines
imposed by the A.M.A., Guides.
By decision dated July 19, 2017, OWCP granted appellant a schedule award for five
percent impairment of the left upper extremity. The award covered a period of 15.6 weeks, from
December 8 to March 27, 2017. OWCP based the award on the second opinion’s December 8,
2016 rating and the DMA’s May 3, 2017 impairment rating, noting that the DMA determined that
appellant’s physician had “incorrectly applied the [Guides]….”
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.15 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.16 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 A.M.A., Guides as the appropriate standard for evaluating schedule losses.17
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
15

See 20 C.F.R. §§ 1.1-1.4.

16

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

17

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

5

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).18 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.19
The sixth edition requires identifying the impairment for the class of diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE), and clinical studies (GMCS).20 The net adjustment formula is (GMFHCDX) + (GMPE-CDX) + (GMCS-CDX).21
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that, if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity evaluation, the DMA should
identify (1) the methodology used by the rating physician (i.e., the DBI or ROM)
and (2) whether the applicable tabled in Chapter 15 of the [A.M.A.,] Guides
identify a diagnosis that can alternatively be rated by ROM. If the Guides allow for
the use of both the DBI and ROM methods to calculate an impairment rating for
the diagnosis in question, the method producing the higher rating should be used.”
(Emphasis in the original).22
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

18

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 2.808.6a (March 2017).
19

Isidoro Rivera, 12 ECAB 348 (1961).

20

A.M.A., Guides 494-531.

21

Id. at 521.

22

FECA Bulletin No. 17-06 (issued May 8, 2017).

6

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”23
ANALYSIS
The Board finds that this case is not in posture for decision.
Following development of this schedule award claim the DMA, Dr. Estaris, provided an
addendum, which was undated, but received on July 19, 2017 in which he explained that data was
missing for the ROM impairment calculations.24 He indicated that he had reviewed of the ranges
of motion measured by both Drs. Smith and Bishai and found that they were inconsistent because
there were significant differences between the two measurements. He explained that neither
physician followed the A.M.A., Guides for ROM impairment rating because there were not three
sets of measurements. Furthermore, the DMA noted Dr. Bishai’s measurements contained some
numbers which did not end in zero. He explained that an ROM impairment rating was not possible
in the case and recommended another independent examination by a Board-certified orthopedic
surgeon to provide an impairment rating based on the ROM method utilizing the guidelines
imposed by the A.M.A., Guides.
The Board finds that OWCP in its July 19, 2017 decision noted that OWCP had merely
noted the DMA’s May 3, 2017 report. However, it made no mention of his undated addendum
received on July 5, 2017. Thus, his recommendation to further develop the medical evidence was
not followed. The Board notes that proceedings under FECA are not adversarial in nature, and
OWCP is not a disinterested arbiter. The claimant has the burden of proof to establish entitlement
to compensation. However, OWCP shares responsibility in the development of the evidence to
see that justice is done.25 Once it undertakes development of the record, it must do a complete job
in procuring medical evidence that will resolve the relevant issues in the case.26 As the DMA
recommended further development to include an independent examination to provide an
impairment rating based on the ROM method utilizing the guidelines imposed by the A.M.A.,
Guides, further development is needed.
On remand OWCP should further develop the medical evidence of record in accordance
with the recommendations of the DMA and FECA Bulletin No. 17-06,27 and obtain an opinion as
to the extent of permanent impairment of the right upper extremity causally related to his March 2,
2004 employment injury after obtaining proper range of motion measurements. OWCP should
request the examining physician to conduct appropriate examination of the extremities, including
providing the absent range of motion measurements as indicated by the DMA. Following this and

23

Id.

24

The record reflects that he provided the addendum on July 19, 2017.

25

William J. Cantrell, 34 ECAB 1223 (1983).

26

Richard F. Williams, 55 ECAB 343, 346 (2004).

27

Supra note 23.

7

any other further development as deemed necessary, it shall issue a de novo decision on appellant’s
claim for an upper extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: December 20, 2018
Washington, DC

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

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

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

8