United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Baltimore, MD, Employer
__________________________________________

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

Docket No. 07-2321
Issued: March 5, 2008

Case Submitted on the Record

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

JURISDICTION
On September 12, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated August 20, 2007 which denied her request for merit
review. Because more than one year has elapsed between the last merit decision dated
February 13, 2006 and 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.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 21, 1998 appellant, then a 43-year-old flat sorter machine operator, filed an
occupational disease claim, alleging that she developed carpal tunnel syndrome due to factors of
her federal employment. The Office accepted her claim for bilateral carpal tunnel syndrome on
August 20, 1998. Appellant filed a recurrence of disability claim on January 31, 2000 alleging

that she was unable to work from December 29, 1999 to January 5, 2000 due to her carpal tunnel
syndrome. On March 24, 2000 the Office accepted that she had sustained a recurrence of
disability due to bilateral carpal tunnel syndrome.
Appellant requested a schedule award on June 5, 2000. By decision dated March 21,
2002, the Office granted appellant a schedule award for 15 percent impairment of her right upper
extremity and 10 percent impairment of her left upper extremity. Appellant requested an oral
hearing. By decision dated February 7, 2003, an Office hearing representative remanded her
claim for further development of the medical evidence. The Office issued a decision on May 5,
2003 granting appellant a schedule award for an additional 3 percent impairment of her left
upper extremity, a total of 15 percent impairment of the right upper extremity and 13 percent
impairment of the left upper extremity. Appellant again requested an oral hearing on
May 27, 2003. By decision dated January 23, 2004, the hearing representative affirmed the
Office’s May 5, 2003 decision.
Appellant requested reconsideration of the hearing representative’s January 23, 2004
decision on February 25, 2004. The Office declined to reopen her claim for reconsideration of
the merits on May 4, 2004. Appellant again requested reconsideration on July 14, 2004. By
decision dated October 14, 2004, the Office again declined to reopen her claim for further
reconsideration of the merits. Appellant requested reconsideration on November 22, 2004 and
submitted additional medical evidence. By decision dated February 23, 2005, the Office found
that she submitted sufficient evidence to warrant merit review, but denied her request for an
additional schedule award.
By decision dated September 7, 2005, the Office granted appellant schedule awards for
an additional 15 percent impairment of her right upper extremity and an additional 17 percent
impairment of her left upper extremity.1
Appellant requested a review of the written record on September 16, 2005. She alleged
that the Office compensated her for 32 percent impairment, but that she was entitled to
compensation for 60 percent impairment. By decision dated February 13, 2006, the hearing
representative affirmed the Office’s September 7, 2005 decision.
On July 26, 2007 appellant requested reconsideration of the February 13, 2006 hearing
representative’s decision. She contended that she was entitled to a schedule award for an
additional 28 percent impairment of her upper extremities. Appellant submitted a letter to her
senator explaining that she felt that she was entitled to a schedule award for an additional 30
percent impairment of each extremity rather than to a combined impairment rating of 30 percent
of each extremity. She also resubmitted notes from Dr. William J. Launder, a Board-certified
orthopedic surgeon, dated July 5, 2000 and November 17, 2004. He noted that appellant’s
1

Appellant has received schedule awards totaling 30 percent of each of her upper extremities. She received a
schedule award for 15 percent impairment of her right upper extremity on March 21, 2002 and an additional
schedule award for 15 percent impairment of her right upper extremity on September 9, 2005. Appellant received a
schedule award for 10 percent impairment of her left upper extremity on March 21, 2002, a schedule award for an
additional 3 percent impairment of her left upper extremity on May 5, 2003 and the final schedule award for an
additional 17 percent impairment of her left upper extremity on September 9, 2005.

2

impairment ratings had increased from 15 percent impairment of each upper extremity to 30
percent impairment of each upper extremity.
By decision dated August 20, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that she failed to submit relevant and pertinent new
evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.4
ANALYSIS
The Office has granted appellant schedule awards for a total of 30 percent impairment to
each of her upper extremities. Appellant disagreed with these amounts and asserted that she had
greater impairment of 30 percent to each of her upper extremities in addition to the schedule
awards she received for 15 percent impairment of her right upper extremity and 13 percent
impairment of her left upper extremity. She submitted this argument to the hearing
representative before his February 13, 2006 decision. The hearing representative considered this
argument prior to issuing his February 13, 2006 decision. Therefore, this is not a relevant legal
argument not previously considered by the Office. Appellant has not submitted any
documentation or evidence in support of a contention that the Office erroneously applied or
interpreted a specific point of law. Appellant has not submitted any relevant and pertinent new
evidence suggesting that she has more than 30 percent impairment of each of her upper
extremities for which she has received a schedule award. She resubmitted notes from
Dr. Launder previously considered by the Office in reaching its merit decisions. Therefore these
notes do not constitute new evidence. As appellant’s request for reconsideration did not include
evidence or argument conforming to the standards set forth in 20 C.F.R. § 10.606(b)(2), the
Office properly declined to reopen her claim for consideration of the merits.
CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s claim for
consideration of the merits under 5 U.S.C. § 8128(a).
2

5 U.S.C. §§ 8101-8193, § 8128(a).

3

20 C.F.R. § 10.606(b)(2).

4

20 C.F.R. § 10.608(b).

3

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2008
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, LOUISVILLE
INTERNATIONAL AIRPORT,
Louisville, KY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-2193
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On August 18, 2010 appellant filed a timely appeal from an August 11, 2010 merit
decision of the Office of Workers’ Compensation Programs, which denied her occupational
disease claim for carpal tunnel syndrome. The appeal was docketed as No. 10-2193.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In its August 11, 2010 decision in the instant claim, the Office relied on November 7,
2007 diagnostic results from Dr. Gregory Pittman, a Board-certified neurologist, and a June 20,
2005 medical report from Dr. Ty E. Richardson, a Board-certified orthopedic surgeon. In
addition, the record contains a September 12, 2006 medical report from Dr. Richard T. Sheridan,
a Board-certified orthopedic surgeon, and an April 5, 2007 medical report from Dr. Ronald Koff,
a Board-certified family practitioner. The Board finds, however, upon inspection of these
medical reports that Dr. Pittman’s, Dr. Richardson’s, Dr. Sheridan’s and Dr. Koff’s reports were
all prepared in connection with a different traumatic injury claim that is not before the Board.
Appellant’s present claim, filed on April 7, 2010, was assigned Office file number xxxxxx348.
The aforementioned medical reports, however, pertain to Office file numbers xxxxxx235 and
xxxxxx276. The Office in denying this claim also noted that one factor alleged in the current

claim, injury due to physical therapy, might in fact constitute a consequential injury to file
number xxxxxx276
As the Office has already cross-referenced medical reports from a separate file and relied
upon them as the basis for its decision in the present claim, the Board finds that the files must be
combined. Its procedures provide that claims should be combined in instances when “correct
adjudication of the issues depends on frequent cross-reference between files.”1 Appellant’s
claims require frequent cross-referencing as the record for file number xxxxxx348 contains
medical reports from file numbers xxxxxx235 and xxxxxx276 and the Office specifically relies
on Dr. Pittman’s November 11, 2007 medical report from file number xxxxxx276. Moreover,
the Office found that Dr. Richardson’s October 16, 2009 medical report related appellant’s
present condition to physical therapy resulting from a previous traumatic injury claim under file
number xxxxxx276. The Board therefore finds it necessary for the Office to combine the files so
as to provide for full and fair adjudication of appellant’s claim. On remand, therefore, the Office
shall combine file number xxxxxx348 with file numbers xxxxxx235 and xxxxxx276 and issue an
appropriate merit decision to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the August 11, 2010 decision of the Office of
Workers’ Compensation Programs be and is remanded for further action consistent with this
order of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(April 2011).

2


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-697
Issued: July 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 8, 2012 appellant, through her attorney, filed a timely appeal from a
November 15, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) which
denied modification of the decision dated October 22, 2009 denying her claim for a recurrence of
disability. 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability commencing February 26, 2005 causally related to her accepted
employment condition.
FACTUAL HISTORY
This case was previously before the Board. In a November 29, 2010 decision, the Board
affirmed OWCP’s decision dated October 22, 2009.2 The Board found that appellant did not
1

5 U.S.C. §§ 8101-8193.

2

Docket No. 10-790 (issued November 29, 2010).

meet her burden of proof to establish that she sustained a recurrence of disability on February 26,
2005 causally related to her accepted bilateral plantar fasciitis and heel spurs. In a June 13, 2008
decision, the Board also affirmed OWCP’s decision finding that appellant did not meet her
burden of proof to establish that she sustained a recurrence of disability beginning
February 26, 2005.3 The facts of the case as set forth in the Board’s prior decision are
incorporated herein by reference.4
On August 16, 2011 appellant through her attorney requested reconsideration. She
submitted reports from Dr. Joseph DeMayo, a Board-certified family practitioner, dated June 16
to August 18, 2011. In his June 16, 2011 report, Dr. DeMayo noted treating appellant
conservatively for bilateral foot pain for years. He noted that appellant had difficulty walking
and could not stand for any length of time due to pain and recommended surgery. Dr. DeMayo
diagnosed plantar fasciitis, tendinitis, bilateral tarsal tunnel syndrome, bilateral plantar
compression nerve damage and bilateral heel spurs. On July 21 and August 18, 2011 he
requested approval for bilateral foot surgery. Dr. DeMayo noted that appellant experienced
severe foot pain when standing and walking. He diagnosed plantar fasciitis, tendinitis and
bilateral heel spurs and recommended surgical intervention. Dr. DeMayo opined that this injury
was work related which consisted of standing in one spot and walking on hard surfaces. He
noted that appellant was out of work for treatment, returned and experienced unbearable pain and
stopped working again.
In a decision dated November 15, 2011, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he 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 show that he 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 requirements.5
3

Docket No. 08-181 (issued June 13, 2008).

4

OWCP accepted appellant’s claim for bilateral plantar fasciitis and heel spurs. Appellant returned to a lightduty position on December 24, 2004 as a distribution clerk. She stopped work on February 26, 2005 and filed a
claim for a recurrence of disability alleging that she experienced pain in both feet causally related to her accepted
work injury. Appellant has not submitted sufficient evidence to support a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the light-duty requirements. The record contains no
evidence substantiating that there was a change in the nature and extent of the light-duty requirements or that she
was required to perform duties which exceeded her medical restrictions.
On May 17, 2005 OWCP referred appellant for a second opinion to Dr. Iqbal Ahmad, a Board-certified
orthopedic surgeon. In a June 7, 2005 report, Dr. Ahmad noted an essentially normal physical examination. He
opined that appellant’s accepted conditions of sprain of both feet, plantar fasciitis and heel spurs resolved and she
did not currently have any acute orthopedic condition. Dr. Ahmad noted that appellant reached maximum medical
improvement and could return to her regular job, full time without restrictions. He advised that there was no need
for further medical treatment or therapy.
5

Terry R. Hedman, 38 ECAB 222 (1986). See 20 C.F.R. § 10.5(x) for the definition of a recurrence of disability.

2

Causal relationship is a medical issue,6 and the medical evidence required to establish a
causal relationship is rationalized medical evidence. Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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
ANALYSIS
Appellant submitted reports from Dr. DeMayo, who treated her for bilateral heel pain and
plantar fasciitis. In reports dated July 21 and August 18, 2011, Dr. DeMayo noted diagnoses and
treatment recommendations. He opined that appellant’s condition was work related and
consisted of standing in one spot and walking on hard surfaces. Dr. DeMayo noted that she was
out of work for treatment, returned and experienced unbearable pain and stopped working again.
However, his report is conclusory and insufficient to establish appellant’s claim as he did not
provide a rationalized opinion explaining the reasons why her recurrent condition and disability
was due to the accepted work injury.8 Dr. DeMayo failed to note a specific date of a recurrence
of disability and did not note a particular change in the nature of appellant’s physical condition,
arising from the employment injury, which prevented her from performing her light-duty
position. In his June 16, 2010 report, he did not specifically address whether appellant sustained
a work-related recurrence of disability beginning February 26, 2005.9
The Board finds that Dr. DeMayo’s reports are insufficient to establish appellant’s claim
for a recurrence of disability as he did not provide a rationalized opinion explaining the reasons
why her disability beginning February 26, 2005 was due to the accepted work injury.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements, which would prohibit her from performing the light-duty position she
assumed after she returned to work.
On appeal, appellant asserts that the medical evidence submitted from Dr. DeMayo
establish her claim of a recurrence of disability on February 26, 2005. However, the Board on
the present appeal and in prior appeals has found that Dr. DeMayo’s reports do not provide a
rationalized medical opinion explaining why her claimed recurrent condition was due to the
accepted work injury. There also is no contemporaneous evidence of record establishing such
assertions. Appellant further asserted that there was a conflict of opinion between Drs. DeMayo

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

Gary L. Fowler, 45 ECAB 365 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

8

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal relationship).

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and Dr. Ahmed, the second opinion physician. However, as noted, Dr. DeMayo’s reports are of
diminished probative value and not sufficient to create a medical conflict.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability beginning February 26, 2005.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2012
Washington, DC

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

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

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

10

See John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two physicians does not, of itself,
establish a conflict; to constitute a conflict of medical opinion, the opposing physicians’ reports must be of virtually
equal weight and rationale).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 17-1940
Issued: December 20, 2018

Case Submitted on the Record

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

JURISDICTION
On September 15, 2017 appellant filed a timely appeal from an August 18, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than two
percent permanent impairment of the right lower extremity, for which he has previously received
a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 25, 2016 appellant, a then 45-year-old customs and border patrol officer, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right knee injury when he stepped
over a tree branch and into a hole causing him to fall on his right knee on the other side of the hole.
OWCP accepted his claim for sprain of unspecified site of right knee and other tear of the lateral
meniscus of the right knee. On November 2, 2016 appellant underwent a right knee arthroscopy
with partial lateral meniscectomy and chondroplasty using abrasion and micro fracture technique
and lateral compartment and patellofemoral articulation.2
In a November 22, 2016 report, Dr. Charles W. Breckenridge, a Board-certified orthopedic
surgeon, found full extension, full flexion, mild swelling, negative McMurray testing, and minimal
quadriceps atrophy. He determined that appellant was status right knee arthroscopy with partial
lateral meniscectomy status post chondroplasty utilizing micro fracture technique, lateral
compartment and patellofemoral articulation for traumatic chondral injuries. Dr. Breckenridge
indicated that he could return to work on November 28, 2016 in a modified capacity. He noted
that appellant should be able to progress with his activity in six weeks.
In a January 3, 2017 report, Dr. Breckenridge examined appellant and found that he was
able to fully extend the knee and had flexion to 130 degrees. He noted that McMurray testing was
negative, he had mild discomfort over the anterior aspect of the knee, and quadriceps atrophy was
noted with no evidence of hip pathology. Dr. Breckenridge advised that appellant was status post
right knee arthroscopy with partial lateral meniscectomy, status post chondroplasty utilizing micro
fracture technique, and lateral compartment and patellofemoral articulation for traumatic chondral
injuries. He explained that he reached substantial improvement to allow him to return to regular
work activity. Dr. Breckenridge indicated that appellant would require further strengthening, but
he advised that appellant had reached maximum medical improvement. He referred to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 Dr. Breckenridge referenced Table 16-34 and explained that under partial
meniscectomy, medial or lateral, a default value of C was listed as a reference. He explained that
with respect to quadriceps atrophy and weakness, as per the adjustment grid, the functional history
would be considered a grade 2 modifier. Dr. Breckenridge also found that physical examination
secondary to quadriceps atrophy would also be a grade 2 modifier. He explained that clinical
studies would be utilized for the diagnosis and the default value of C would move to E.
Dr. Breckenridge opined that appellant had three percent right knee permanent impairment and
was released to regular work.
On April 11, 2017 appellant filed a schedule award claim (Form CA-7).

2

Appellant had a previous left knee arthroscopy.

3

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

4

Id. at 509.

2

In order to determine the nature and extent of appellant’s right lower extremity impairment
stemming from his accepted conditions, OWCP referred Dr. Breckenridge’s report to a district
medical adviser (DMA).
In a May 24, 2017 report, Dr. Jovito Estaris, a Board-certified occupational medicine
physician serving as an OWCP DMA, found that appellant had two percent permanent impairment
of the right lower extremity under the sixth edition of the A.M.A., Guides. Relying on Table 16-3
at page 509 of the A.M.A., Guides,5 which rates impairments based on sensory and motor deficits,
he found a diagnosis of a lateral meniscus tear of the right knee and for a meniscal injury and a
partial lateral meniscectomy, appellant was a class 1 with a default value of 2. Dr. Estaris referred
to Table 16-6 at 516 of the A.M.A., Guides for functional history. He determined that appellant
had a grade modifier of 1 for pain on kneeling and no antalgic gait. Dr. Estaris referred to Table
16-7 at page 517 of the A.M.A., Guides for physical examination adjustment. He found that
appellant had a grade modifier of 1 for muscle atrophy and full range of motion. Dr. Estaris noted
that clinical studies adjustment was not utilized. He advised that the magnetic resonance imaging
(MRI) scan showed a lateral meniscus tear, which when used in diagnosis and proper classification
of diagnosis-based impairment (DBI) grid, resulted in (GMFH - CDX) + (GMPE - CDX) = (11)+(1-1) = 0. Dr. Estaris advised the net adjustment resulted in 0 = class 1 = 2 percent. He
concluded that appellant had no more than two percent right lower extremity permanent
impairment.
Dr. Estaris further explained that the difference in the ratings was due to the use of grade
modifiers. He noted that Dr. Breckenridge used a grade modifier of 2 for functional history and
mentioned muscle atrophy and weakness as criteria. However, Dr. Estaris explained that those
findings were criteria for physical examination and not functional history, with no antalgic gait, so
at best, it was a grade modifier of 1. He noted that the grade modifier of 2 required an antalgic
limp and asymmetric shortened stance, with routine use of single gait aid (cane or crutch), which
was “obviously not seen in this case.” Dr. Estaris also explained that Dr. Breckenridge used a
grade modifier of 2 for physical examination, but that there was a mention of atrophy with no
accompanying measurement. He added that in the absence of measurement, the best fit was a
grade modifier of 1. Dr. Estaris explained that there was full range of motion and this was a grade
modifier of 0. Regarding clinical studies, he referred to page 500 the A.M.A., Guides, the first
column and second paragraph and explained that in some cases, the class would be defined by
physical examination findings or clinical studies results. However, when that was the case, those
same findings were not used as grade modifiers to adjust the rating.
By decision dated August 18, 2017, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity for the period January 3 to February 12,
2017, for a total of 5.76 weeks of compensation.
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
5

Id.

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vested the authority to implement the FECA program with the Director of OWCP.6 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.7 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.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 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.10
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, reference is made to Table 16-3 (Knee Regional Grid)
beginning on page 509.11 After the class of diagnosis (CDX) is determined from the Knee
Regional Grid (including identification of a default grade value), the net adjustment formula is
applied using the grade modifier for functional history (GMFH), grade modifier for physical
examination (GMPE), and grade modifier for clinical studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3, evaluators
are directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.13

6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

8

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

9

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).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

See supra note 3 at 509-11.

12

Id. at 515-22.

13

Id. at 23-28.

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In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by the medical adviser may constitute the weight of the medical
evidence. As long as the medical adviser explains his or her opinion, shows values and
computation of impairment based on the A.M.A., Guides, and considers each of the reported
findings of impairment, his or her opinion may constitute the weight. If the attending physician
misapplied the A.M.A., Guides, no conflict would exist because the attending physician’s report
would have diminished probative value and the opinion of the medical adviser would constitute
the weight of medical opinion.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of his right lower extremity, for which he received a schedule
award.
In a November 22, 2016 report, Dr. Breckenridge, a Board-certified orthopedic surgeon,
performed a physical examination and provided his opinion as to appellant’s right lower extremity
permanent impairment. Referencing Table 16-3 for the diagnosis of a partial meniscectomy,
medial or lateral, he opined that appellant had three percent permanent impairment of the right
knee.
In a May 24, 2017 report, Dr. Estaris serving as a DMA properly evaluated the physical
examination findings contained in Dr. Breckenridge’s January 3, 2017 report to find that appellant
had two percent permanent impairment of her right lower extremity. He also relied upon Table
16-3.15 Dr. Estaris explained that his difference in the ratings was due to the grade modifiers
assigned. He noted that Dr. Breckenridge had used a grade modifier of 2 for functional history
and mentioned muscle atrophy and weakness as criteria. However, Dr. Estaris explained that those
findings were criteria for physical examination and not functional history. He advised that there
was no antalgic gait, and therefore, appellant was only entitled to a grade modifier of 1. Dr. Estaris
also noted that the grade modifier of 2 required an antalgic limp and asymmetric shortened stance,
with routine use of single gait aid (cane or crutch), which was “obviously not seen in this case.”
He also explained that Dr. Breckenridge used a grade modifier of 2 for physical examination
despite no indication that appellant had atrophy. Dr. Estaris added that since no measurement had
been provided, the best fit was a grade modifier of 1. He explained that appellant had full range
of motion and thus a grade modifier of 0. Regarding clinical studies Dr. Estaris referred to page
500 the A.M.A., Guides and explained that in some cases, the class would be defined by physical
examination findings or clinical studies results. However, when that was the case, those same
findings, could not be used as grade modifiers to adjust the rating.

14

Supra note 8 at Chapter 2.810.8j (September 2010); M.P., Docket No. 14-1602 (issued January 13, 2015).

15

Supra note 3.

5

Dr. Estaris opined that appellant had two percent permanent impairment of his right lower
extremity. The Board finds that the May 24, 2017 impairment rating from Dr. Estaris represents
the weight of the medical evidence in this case as he properly applied the appropriate provisions
of the A.M.A., Guides to the clinical findings of record.16 Dr. Estaris correctly noted the errors of
Dr. Breckenridge’s use of the grade modifiers in his application of the A.M.A., Guides. As the
record contains no other probative, rationalized medical opinion which indicates that appellant has
greater permanent impairment of his right lower extremity based upon the A.M.A., Guides,
appellant has not met his burden of proof to establish greater than two percent right knee permanent
impairment, for which he previously received a schedule award.
On appeal appellant argues that another employee with the same modifiers and same rating
received a three percent schedule award. The Board notes that the medical opinion of the DMA
has fully explained the basis for his right lower extremity permanent impairment rating. As noted,
appellant has not submitted medical evidence showing that he has more than two percent
permanent impairment of his right lower extremity.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than two
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.

16

K.P., Docket No. 18-0777 (issued November 13, 2018); W.M., Docket No. 11-1156 (issued January 27, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the August 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Buffalo, NY, Employer
__________________________________________
Appearances:
Coby Jones, for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1038
Issued: January 25, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On March 17, 2011 appellant, through his representative, filed an application for review
of an Office of Workers’ Compensation Programs’ (OWCP) decision dated December 29, 2010
which denied appellant’s reconsideration request on the grounds that the evidence submitted was
repetitious and insufficient to warrant review of its July 29, 2010 decision.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following OWCP’s July 29,
2010 merit decision, appellant requested reconsideration on November 22, 2010. Appellant also
submitted additional evidence. This included a report dated September 16, 2010 from
Dr. Mathew J. Fleig, appellant’s treating physician, who addressed the cause of appellant’s
conditions. This document was received by OWCP on November 30, 2010. In its December 29,
2010 decision, OWCP denied appellant’s reconsideration request on the grounds that the
1

Appellant was injured when he fell on January 24, 2000 while delivering mail. OWCP accepted the claim for
right shoulder strain and bursitis and authorized arthroscopic surgery. On July 25, 2003 appellant filed a claim for a
recurrence of disability beginning June 11, 2003. OWCP’s July 29, 2010 decision denied modification of its prior
denial of her claim for a recurrence of disability beginning June 11, 2003.
2

41 ECAB 548 (1990).

evidence submitted in support of his request was repetitious in nature and insufficient to warrant
review of its prior decision. It did not note receipt or consideration of the September 16, 2010
report. Instead, OWCP advised that no new evidence was submitted with the reconsideration
request and that all evidence submitted on reconsideration was previously of record.
The Board finds that OWCP, in its December 29, 2010 decision, did not review the
September 16, 2010 report from Dr. Fleig that was received by OWCP on November 30, 2010.
For this reason, the case will be remanded to OWCP to enable it to properly consider all the
evidence submitted at the time of the December 29, 2010 decision. Following such further
development as OWCP deems necessary, it shall issue an appropriate decision on the claim.
IT IS HEREBY ORDERED THAT the December 29, 2010 decision of the Office of
Workers’ Compensation Programs set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: January 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


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

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

Docket No. 14-1609
Issued: January 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 14, 2014 appellant, through counsel, filed a timely appeal from a May 2, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a left leg injury in the
performance of duty on May 21, 2013.
FACTUAL HISTORY
On June 13, 2013 appellant, then a 52-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging a left leg injury on May 21, 2013 when she was pulling the

1

5 U.S.C. § 8101 et seq.

Automated Postal Center (APC) machine (hereinafter referred to as post-con). She notified her
supervisor of her injury on June 8, 2013.2
By letter dated June 14, 2013, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In an undated narrative statement, appellant reported that she previously felt a sharp pain
in her left leg on April 20, 2013 when she was pulling a basket of mail to the post-con. The
following day she experienced pain when walking up and down the stairs for work. Appellant
reported that she was on vacation from April 25 to May 12, 2013 and did not experience
discomfort other than walking up and down stairs. On May 21, 2013 she pulled three post-cons
to unload trays of mail and felt a sharp pain in her left leg on the third pull. Appellant sought
treatment on May 23, 2013.
In a June 19, 2013 medical report, Dr. Brian Donoghue, Board-certified in emergency
medicine, reported that appellant complained of leg pain from pulling large mail bins in
May 2013. He later clarified that he misunderstood her and that the incident occurred in
April 2013. Dr. Donoghue diagnosed chronic leg pain.
A July 19, 2013 duty status report (Form CA-17) from Dr. Stephen Lang, a Boardcertified orthopedic surgeon, noted left knee swelling and pain. He diagnosed left knee sprain,
meniscus, and synovitis as a result of pulling two to three post-cons on May 21, 2013. Dr. Lang
provided appellant with work restrictions.
By letter dated July 23, 2013, the employing establishment controverted the claim.
OWCP denied appellant’s claim on July 25, 2013, finding that the evidence did not
establish that the incident occurred as alleged. It noted that there were inconsistencies in the date
of injury as her statement and medical report indicated an injury on April 20, 2013. OWCP
further noted that the medical evidence failed to establish a firm medical diagnosis. It noted that
a diagnosis of “pain” is a symptom and not a diagnosed medical condition.
On August 9, 2013 appellant requested review of the written record before the Branch of
Hearings and Review.
A hearing was held on January 22, 2014. Counsel for appellant argued that she was
alleging an occupational disease claim (Form CA-2) because her leg pain initially occurred on
April 21, 2013. He noted that she was incorrectly provided a CA-1 form and chose the May 21,
2013 date of injury because she recalled feeling pain on that date. Counsel further contended
that appellant’s left leg pain developed from April to May 2013 and that OWCP should develop
the claim as an occupational disease injury. At the hearing, appellant testified that she had
worked for the employing establishment for the past 15 years. She described her employment
duties which entailed processing magazines and oversized mail, setting up post-cons, loading
2

The employing establishment issued a properly completed (Form CA-16), authorization for examination, dated
June 13, 2013, which authorized appellant to seek medical treatment related to the May 21, 2013 injury. The
description of injury was reported as injury to the left leg from pulling two to three post-cons to the delivery
machine.

2

post-cons with packs of mail, dropping packs of mail and pulling packs into the post-con.
Appellant reported that on April 20, 2013 she had issues climbing stairs and also experienced
problems the following day. She went on vacation shortly thereafter and her condition had
improved. On May 21, 2013 appellant felt a sharp pain in her left leg after the third pull of the
post-con. She first sought medical treatment on May 23, 2013 and described her treatment
history. Appellant argued that her supervisor provided her with the incorrect CA-1 form and she
was unaware that she could file an occupational disease claim. The record was held open for 30
days.
In a June 14, 2013 diagnostic report, Dr. John D. Reeder, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the left knee revealed
moderate posterior medial meniscal degeneration with radial tear, subchondral osseous stress
reaction, large knee joint effusion, and high grade patellar chondromalacia.
In medical reports dated June 11 to September 2, 2013, Dr. Lang reported that appellant
initially sought treatment with another physician on May 23, 2013 due to complaints of left leg
pain. He noted that she had been symptomatic for about two months and complained of left knee
and leg pain. Appellant believed that her symptoms started on April 21, 2013 when she was
going up and down stairs for work. Her employment also required her to push and pull material.
Appellant’s symptoms improved when she was on vacation, but after returning to work on
May 15, 2013, her pain increased. Dr. Lang reviewed diagnostic testing and provided findings
on physical examination. He initially diagnosed left knee synovitis, mild degenerative arthritis,
possible meniscus tear, patellofemoral left knee pain syndrome, subchondral osseous stress
reaction medial tibial plateau, and unspecified derangement of medial meniscus. In a June 20,
2013 report, Dr. Lang noted that appellant’s employment activities included rotating back and
forth to lift and move heavy material, which he speculated could have either created or
aggravated her symptoms. He stated that he was not obtaining a history of any one specific
incident that caused her left knee problem. Dr. Lang further stated, “I cannot deny the fact that
[appellant’s] initial job duties holding heavy material, carrying material, or rotating may be
associated with the onset of her symptoms.”
Subsequently, in an August 26, 2013 report, Dr. Lang provided the additional diagnoses
of low back strain/degenerative changes. He reported that appellant should limit kneeling,
squatting, and twisting and avoid lifting more than 10 pounds in any repetitive fashion, as well as
avoid rotating, or twisting while carrying material. Dr. Lang reported that the restrictions were
made to limit stressful activity and abnormal forces to the knee which could aggravate
appellant’s symptoms and conditions. He further explained that rotation and twisting of the knee
could create more meniscus strain and tear and that repetitive and sustained squatting places
more pressure on the kneecap and articular surfaces of the medial and lateral joint. In a
September 2, 2014 report, Dr. Lang opined that appellant’s original employment activities likely
contributed to or aggravated her present left knee and low back injuries.
Physical therapy notes dated July 18 to September 18, 2013 were also submitted.
By decision dated May 2, 2014, the Branch of Hearings and Review denied appellant’s
claim. The hearing representative determined that based upon the record and after listening to
appellant’s testimony the incident alleged by the claimant occurred. Having reversed the earlier
OWCP decision on this point, she found that the evidence failed to establish that her left knee
3

injury was caused by the accepted May 21, 2013 employment incident. The hearing
representative noted that OWCP properly adjudicated the claim as a traumatic injury.
LEGAL PRECEDENT
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 filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
OWCP defines a traumatic injury as a condition of the body caused by a specific event or
incident, or series of events or incidents, within a single workday or shift. Such condition must
be caused by external force, including stress or strain which is identifiable as to time and place of
occurrence and member of function of the body affected.6 To determine whether a federal
employee has sustained a traumatic injury in the performance of duty, it must first be determined
whether a fact of injury has been established. First the employee must submit sufficient evidence
to establish that he or she actually experienced the employment incident at the time, place, and in
the manner alleged.7 Second, the employee must submit sufficient evidence, general only in the
form of medical evidence, to establish that the employment incident caused a personal injury.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

20 C.F.R. § 10.5(ee).

7

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

8

J.Z., 58 ECAB 529 (2007).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

To establish a 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 based on a complete factual and medical background, supporting such
a causal relationship.10 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. 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.11
ANALYSIS
As appellant is alleging separate incidents, rather than a cumulative effect of employment
activities, the Board finds that OWCP properly developed her claim as a traumatic injury.12
OWCP accepted that the May 21, 2013 employment incident occurred as alleged. The issue is
whether appellant established that the accepted incident caused a left knee injury. The Board
finds that she did not submit sufficient medical evidence to support that her left knee injury was
causally related to the May 21, 2013 employment incident.
In medical reports dated June 11 to September 2, 2013, Dr. Lang reported that appellant’s
left knee symptoms initially began on April 21, 2013 when she was climbing stairs, that her
symptoms improved when she went on vacation, but increased once she resumed work on
May 15, 2013. While the date of injury was noted as May 21, 2013, he stated that there was no
history of any one specific incident that caused her left knee problem. Dr. Lang further stated, “I
cannot deny the fact that [appellant’s] initial job duties holding heavy material, carrying material
or rotating may be associated with the onset of her symptoms.” He diagnosed left knee
synovitis, mild degenerative arthritis, possible meniscus tear, patellofemoral left knee pain
syndrome, subchondral osseous stress reaction medial tibial plateau, unspecified derangement of
medial meniscus, and back strain. Dr. Lang further opined that appellant’s original employment
activities likely contributed to or aggravated her present left knee and low back condition.
The Board finds that the opinion of Dr. Lang is not sufficiently rationalized. Dr. Lang
provided a limited description of appellant’s employment duties, noting rotating back and forth
to lift and move heavy material. His statement that her initial job duties of holding heavy
material, carrying material, or rotating could be associated with the onset of her symptoms is

10

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

11

James Mack, 43 ECAB 321 (1991).

12

Richard D. Wray, 45 ECAB 758 (issued July 8, 1994). If the actual benefits claimed by the claimant cannot be
determined from review of the form, OWCP should develop the claim based upon the claim form filed and direct
questions to the claimant to determine the type of benefits claimed. Based upon the response to the development
letter, it should make a determination as to whether the correct claim was established and, if not, OWCP should
convert the claim to the proper type of claim and notify the claimant and employing establishment (and any
representative, if applicable) of the conversion. Federal (FECA) Procedure Manual, Part 2 -- Claims, Development
of Claims, Chapter 2.800.3(c)(2)(b) (June 2011). C.f. S.N., Docket No. 12-1814 (issued March 11, 2013).

5

highly speculative.13 Dr. Lang failed to address each condition specifically with an opinion on
how the May 21, 2013 employment pushing/pulling incident would have caused or aggravated
each of the diagnoses provided. Moreover, his statement on causation fails to provide a
sufficient explanation as to the mechanism of injury pertaining to this traumatic injury claim,
namely, how pulling post-cons would cause or aggravate appellant’s multiple knee injuries.14
Dr. Lang’s July 19, 2013 CA-17 form is the only report which identifies the May 21,
2013 employment incident as pulling two to three post-cons. While he noted a May 21, 2013
date of injury, it appears that he is attributing appellant’s left knee conditions to an occupational
injury produced by her work environment over a period longer than a single workday or shift
rather than an injury from a single occurrence within a single workday as alleged by her in this
claim.15 Thus, Dr. Lang’s opinion pertaining to her work-related duties as the cause of her
injuries does not provide support for the traumatic injury claim.16
The remaining medical evidence is also insufficient to establish her traumatic injury
claim. While Dr. Reeder’s June 14, 2013 diagnostic report provided findings pertaining to the
left knee, his report is of limited probative value as he offers no opinion on the cause of her
injury.17 Dr. Donoghue’s June 19, 2013 report provided only a diagnosis of chronic leg pain.
The Board has held that pain is a description of a symptom rather than a clear diagnosis of the
medical condition.18 It is not possible to establish the cause of a medical condition if the
physician only refers to pain and not a specific diagnosis.19 The physical therapy notes dated
July 18 to September 18, 2013 are also insufficient to establish appellant’s claim as they were
not signed by a physician.20
Appellant claims that her injury was produced from her work environment over a
cumulative period longer than a single workday or shift. However, the factual evidence is

13

M.R., Docket No. 14-11 (issued August 27, 2014).

14

S.W., Docket 08-2538 (issued May 21, 2009). See L.M., Docket No. 14-973 (issued August 25, 2014); R.G.,
Docket No. 14-113 (issued April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No.
12-548 (issued November 16, 2012).
15

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
16

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

17

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

18

C.F., Docket No. 08-1102 (issued October 10, 2008).

19

T.G., Docket No. 13-76 (issued March 22, 2013).

20

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. FECA provides that 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 also Roy L. Humphrey, supra note 9 at 238 (2005).

6

insufficient to support an occupational disease claim (Form CA-2). OWCP correctly evaluated
the facts presented and handled the claim as a traumatic injury.21
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.22
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her left
leg injury was causally related to the accepted May 21, 2013 employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 2, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
21

Supra note 12.

22

The record contains a CA-16 form signed by the employing establishment official on June 13, 2013. When the
employing establishment properly executes a CA-16 form, which authorizes medical treatment as a result of an
employee’s claim for an employment-related injury, the CA-16 form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on
the claim. The period for which treatment is authorized by a CA-16 form is limited to 60 days from the date of
issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).
The record is silent as to whether OWCP paid for the cost of appellant’s examination or treatment for the period
noted on the form.

7


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

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

Docket No. 08-223
Issued: May 2, 2008

Case Submitted on the Record

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

JURISDICTION
On October 30, 2007 appellant filed a timely appeal from an August 22, 2007 merit
decision of the Office of Workers’ Compensation Programs which denied her recurrence of her
medical condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of appellant’s claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability due to her accepted
back and hip conditions on March 21, 2007.
FACTUAL HISTORY
On January 6, 2005 appellant, then a 46-year-old letter carrier, slipped and fell on the ice
while delivering her route injuring her hip and knee. On February 17, 2005 the Office accepted
her traumatic injury claim for contusion of low back and contusion of right hip. Appellant was
also diagnosed with gluteal muscle strain/sprain, and disc bulges at L3-4, L4-5 and L5-S1.

In a July 20, 2005 letter, the Office informed appellant that she was approved for physical
therapy for the right hip from June 23 through September 23, 2005. In an August 8, 2005 chart
note, Dr. Renjini Chandra, a physician, released appellant from medical care finding she had
reached maximum medical improvement. She also stated that appellant was to perform full-duty
work without any restrictions.
On March 21, 2007 appellant filed a recurrence of medical condition claim alleging that
she sustained a recurrence of her January 6, 2005 injury as she was having extreme back and hip
pain on a daily basis. She stated that she was not doing anything specific when the recurrence
occurred as her pain had never ceased. Appellant also reported that she returned to full duty but
no longer walked and carried her mailbag.
In a June 5, 2007 letter, the Office requested further information from appellant regarding
her recurrence claim, including a physician’s report. Appellant responded in a June 13, 2007
letter explaining that she still had severe pain in her hip and lower back and no new injuries. The
Office also received a June 15, 2007 letter from Dr. C. Lan Fotopoulos, Board-certified in
physical medicine and pain medicine, who had treated appellant since February 28, 2006.
Dr. Fotopoulos diagnosed appellant with facet syndrome and sacroiliac joint dysfunction. He
explained that sacroiliac dysfunction and dysfunction of the S1 joint take a significant amount of
time to heal and that it is a joint which has been disrupted by a tear or other activity.
Dr. Fotopoulos noted that a March 27, 2007 magnetic resonance imaging (MRI) scan showed a
bulging of the discs at L3-4, L4-5 and L5-S1. He opined that appellant’s January 6, 2005 injury
fit with a disruption of the left S1 joint and caused the facets in her lumbar spine to be painful.
In an August 22, 2007 decision, the Office denied appellant’s claim on the grounds that
the evidence did not establish that the claimed recurrence resulted from her accepted low back
and right hip contusions. The Office explained that Dr. Fotopoulos’ letter was insufficient as it
failed to explain how appellant’s low back contusion had progressed into a diagnosis of facet
syndrome and sacroiliac joint dysfunction.
LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.1 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
condition, nor is an examination without treatment.2 As distinguished from a recurrence of
disability, a recurrence of a medical condition does not involve an accompanying work
stoppage.3 It is the employee’s burden to establish that the claimed recurrence is causally related
to the original injury.4

1

20 C.F.R. § 10.5(y).

2

Id.

3

Id., 20 C.F.R. § 10.5(x).

4

See 20 C.F.R. § 10.104; Mary A. Ceglia, 55 ECAB 626, 629 (2004).

2

The Office’s procedure manual further provides that, after 90 days of release from
medical care (based on the physician’s statement or instruction to return PRN, or computed from
the date of last examination), the claimant is responsible for submitting an attending physician’s
report which contains a description of the objective findings and supports causal relationship
between the claimant’s current condition and the previously accepted work injury.5
ANALYSIS
The Board finds that appellant has failed to establish a recurrence of her accepted medical
condition. The Office accepted appellant’s claim for right hip and lower back contusion which
occurred on January 6, 2005.
Appellant was treated for her accepted condition by Dr. Chandra until August 8, 2005, at
which time he reported that appellant had reached maximum medical improvement and he
released her from further medical treatment. There is no evidence of record establishing that she
received medical treatment for her accepted condition between August 8, 2005 and February 28,
2006, when Dr. Fotopoulos stated he started treating her. As appellant’s treatment on
February 28, 2006 was more than 90 days after her release from medical care on August 8, 2005
she is responsible for submitting an attending physician’s report containing a description of the
objective findings and supporting a causal relationship between her current condition and the
previously accepted work injury.6 It is appellant’s burden to submit sufficient medical evidence
to document the need for further medical treatment.7 Appellant has not met her burden.
Dr. Fotopoulos diagnosed facet syndrome and sacroiliac joint dysfunction. While he
provided an opinion affirmatively stating that there is a causal relation between the January 6,
2005 injury and appellant’s current condition but he did not provide sufficient medical rationale
to support his opinion. Dr. Fotopoulos did not explain how appellant’s lower back and right hip
contusions caused her to develop facet syndrome or sacroiliac joint dysfunction. He also failed
to address the time lapse between treatments for the two conditions.
An award of compensation may not be based upon surmise, conjecture or upon a
claimant’s belief that there is a relationship between a medical condition and the employment.8
As appellant did not provide the necessary rationalized medical evidence to establish causal
relationship between the accepted medical conditions and her current medical conditions,
appellant has not met her burden of proof.
CONCLUSION
Appellant has not established that she sustained a recurrence on March 21, 2006 causally
related to her January 6, 2005 employment injury.
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

6

Id.

7

20 C.F.R. §10.5(y).

8

George H. Clark, 56 ECAB 162 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 2, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-252
Issued: June 7, 2012

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 November 17, 2011 appellant, through his attorney, filed a timely appeal from an
October 26, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) that
denied his claim for an increased schedule award. 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had left upper
extremity impairment greater than the five percent previously awarded.
On appeal appellant’s attorney requests that the Board review the calculation of the
schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board.2 By decision dated May 2, 2006, the
Board found that appellant was required to make an election of benefits between the 20 percent
increase in benefits he received from the Department of Veterans Affairs and compensation
benefits he received under FECA for his accepted major depression. The Board further found
that appellant failed to establish that dysphagia or any other corticospinal condition was causally
related to the February 6, 2001 employment injury but that a conflict in medical evidence
remained regarding whether his erectile dysfunction condition was causally related to the
employment injury.3 In an April 25, 2007 decision, the Board found that appellant did not
establish that his erectile dysfunction was causally related to his February 6, 2001 employment
injury.4 In a February 9, 2011 decision, the Board found that on December 22, 2009 Dr. Robert
Franklin Draper, Jr., a Board-certified orthopedic surgeon who provided a second-opinion
evaluation for OWCP, properly analyzed appellant’s left upper extremity due to C7 neuropathy,
finding a two percent impairment. The Board, however, found the case not in posture for
decision as to the extent of appellant’s total left upper extremity impairment because Dr. Draper
did not address appellant’s left shoulder impairment. As appellant had an accepted left shoulder
injury, the physician’s opinion was deficient.5 The law and the facts of the previous Board
decisions are incorporated herein by reference.
By letter dated February 16, 2011, OWCP requested that Dr. Draper provide an
impairment evaluation of appellant’s left shoulder, in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).6 OWCP provided appropriate worksheets. On August 25, 2011 it referred
appellant to Dr. Draper for a physical examination and impairment evaluation.7
In a September 30, 2011 report, Dr. Draper noted his review of an amended statement of
accepted facts and the medical record. He provided physical examination findings regarding the
left shoulder and cervical spine, including shoulder range of motion. Dr. Draper diagnosed left
2

Appellant, then a 42-year-old letter carrier, slipped and fell on ice and snow on February 6, 2001 while in the
performance of his federal duties. The accepted conditions are cervical strain, left shoulder strain, herniated disc at
C6-7 with discectomy and fusion on September 19, 2001 and major depressive disorder. On March 22, 2004 OWCP
granted appellant a schedule award for a three percent left upper extremity impairment, and an additional two
percent on October 29, 2004.
3

Docket No. 05-1984 (issued May 2, 2006).

4

Docket No. 07-80 (issued April 25, 2007).

5

Docket No. 10-894 (issued February 9, 2011). On August 10, 2011 the Board denied appellant’s petition for
reconsideration regarding the validity of the sixth edition of the A.M.A., Guides.
6

A.M.A., Guides (6th ed. 2008).

7

OWCP initially referred appellant on July 15, 2011. Appellant did not attend an examination scheduled on
August 18, 2011. He maintained that he did not receive notice of the examination, and the examination was
rescheduled. Appellant also submitted a January 27, 2011 attending physician’s report dated January 27, 2011 in
which Dr. James Weiss, an attending Board-certified orthopedic surgeon, discussed appellant’s lower back, not at
issue in the instant case.

2

shoulder strain and degenerative cervical disc disease and advised that maximum medical
improvement was reached on February 6, 2002, one year following surgery. He provided an
impairment rating for the left shoulder only and advised that, in accordance with the sixth edition
of the A.M.A., Guides, under Table 15-5, Shoulder Regional Grid, appellant had a class 1
impairment due to shoulder pain with a default rating of one percent. Dr. Draper found
modifiers of one percent each for functional history, physical examination and clinical studies,
and applied the net adjustment formula. He found that appellant had one percent upper extremity
impairment under Table 15-5. With regard to appellant’s impairment due to C7 radiculopathy,
he advised that his calculation on the December 22, 2009 report was unchanged.
In an October 24, 2011 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP medical adviser, reviewed the medical record, including Dr. Draper’s
September 30, 2011 report. He noted that in December 2009 Dr. Draper recommended two
percent impairment based on C7 radiculopathy and now recommended one percent impairment
due to left shoulder impairment, for a total left upper extremity impairment of three percent.
OWCP’s medical adviser found that, as appellant had previously received a left upper extremity
impairment of five percent, he was not entitled to an additional award.
By decision dated October 26, 2011, OWCP denied appellant’s claim for an additional
schedule award on the grounds that the medical evidence did not establish that he was entitled to
an impairment rating greater than the five percent previously received.
LEGAL PRECEDENT
The schedule award provision of FECA,8 and its implementing federal regulations,9 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,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule
awards.11 For decisions issued after May 1, 2009, the sixth edition is used.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition, for upper extremity impairments the evaluator
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

12

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

13

A.M.A., Guides, supra note 6 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”

3

identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.16
ANALYSIS
The Board finds that appellant is not entitled to an additional schedule award for a left
upper extremity impairment. Appellant has received schedule awards for left upper extremity
impairments totaling five percent.
The Board finds that the weight of the medical evidence rests with the December 22,
2009 and September 30, 2011 reports of Dr. Draper, a Board-certified orthopedic surgeon and
OWCP referral physician, who found that appellant had a two percent left upper extremity
impairment, under Table 15-21 due to a peripheral nerve impairment, and a one percent
impairment under Table 15-5 for left shoulder pain.
As noted in the Board’s February 9, 2011 decision, Dr. Draper properly found that
appellant had two percent impairment for a peripheral nerve injury under Table 15-18 in his
December 22, 2009 evaluation. Following the Board’s remand for review of appellant’s left
shoulder impairment,17 Dr. Draper reexamined appellant and addressed his left shoulder
impairment in a September 30, 2011 report. He selected a diagnosis of shoulder pain under
Table 15-5, Shoulder Regional Grid. Dr. Draper determined that appellant had a class 1, grade
C, impairment which had a default value of one percent.18 He found modifiers of one each for
functional history, physical examination and clinical studies. Dr. Draper then properly applied
the net adjustment formula, which yielded a zero net adjustment, and concluded that appellant
had one percent arm impairment due to left shoulder pain. He also noted that his calculation
regarding C7 radiculopathy was unchanged.
On October 24, 2011 Dr. Berman reviewed Dr. Draper’s September 30, 2011 report. He
noted that in December 2009 Dr. Draper recommended a two percent impairment based on C7
radiculopathy and now recommended an additional one percent impairment due to a left shoulder
14

Id. at 385-419.

15

Id. at 411.

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
17

Supra note 5.

18

A.M.A., Guides, supra note 6 at 401.

4

impairment, for a total left upper extremity impairment of three percent. OWCP’s medical
adviser determined that, as appellant was previously rated with left upper extremity impairment
totaling five percent, he was not entitled to an additional award.
The Board finds that appellant is not entitled to an additional schedule award. There is no
other probative medical evidence of record to establish greater permanent impairment under the
appropriate edition of the A.M.A., Guides.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to an additional schedule
award for his left upper extremity impairment.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 7, 2012
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF THE ARMY,
Huntington, WV, Employer
__________________________________________

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

Docket No. 09-473
Issued: October 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated November 17, 2008 denying his request for
reconsideration because it was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the most recent merit decision of the Office,
October 12, 2005, and the filing of this appeal on December 8, 2008, the Board lacks jurisdiction
to review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
This case is on appeal to the Board for the sixth time. The Office accepted that appellant,
then 29 years old, sustained a lumbosacral strain resulting from a February 23, 1967 work injury.
Appellant underwent a laminectomy in 1960 and had a spinal fusion in 1967. It also accepted a

low back strain superimposed on preexisting degenerative disc disease when appellant was
kicked in the back by a coworker on February 10, 1988. On July 29, 1998, the Board affirmed
the Office’s termination of appellant’s compensation benefits effective November 12, 1994.1 On
September 20, 2001 appellant claimed a recurrence of disability beginning February 10, 1988
that he attributed to his February 10, 1988 work injury and the failure of his 1967 back surgery.
In an April 18, 2005 order, the Board set aside the Office’s September 4, 2003 nonmerit decision
denying appellant’s reconsideration request and remanded the case so that the case files could be
doubled.2 On July 17, 2006 the Board affirmed the Office’s October 12, 2005 decision which
denied modification of a December 31, 2002 decision finding that appellant did not establish a
recurrence of disability.3 On May 1, 2007 the Board affirmed an October 26, 2006 Office
decision that denied appellant’s request for a merit review of his claim.4 On January 25, 2008
the Board affirmed the Office’s June 18, 2007 decision denying appellant’s request for
reconsideration.5 The facts and the circumstances of the case as set out in the Board’s prior
decisions are incorporated herein by reference.
In an August 14, 2008 letter, appellant requested reconsideration. He submitted a
computer disc along with a June 7, 2007 x-ray report of the lumbar spine, which he contended
proved the 1994 report of Dr. Carl Roncaglione, an impartial medical examiner,6 was wrong as
there had never been a disc fusion mass at the L4, L5, S1 levels on his back. Thus, he contended
the Office was in violation of 18 U.S.C. § 1001, Fraud and False Statements, in relying upon
Dr. Roncaglione’s opinion when it terminated his compensation benefits. The June 7, 2007
x-ray report of the lumbar spine noted significant degenerative changes at the L4 and L5 levels,
facet arthropathy and abdominal aorta arteriosclerotic change with no evidence of fracture,
subluxation or pars defect present.
By decision dated November 17, 2008, the Office found that appellant’s August 14, 2008
letter requesting reconsideration was untimely and that he did not submit any evidence
concerning his specific condition(s) or clear evidence of error in the Board’s May 1, 2007
decision.

1

Docket No. 96-1682 (issued July 29, 1998); petition for recon. denied (issued November 16, 1998).

2

Docket No. 04-764 (issued April 18, 2005).

3

Docket No. 06-195 (issued July 17, 2006).

4

Docket No. 07-296 (issued May 1, 2007).

5

Docket No. 07-1955 (issued January 25, 2008); petition for recon. denied (issued June 3, 2008).

6

In its July 29, 1998 decision, the Board found that the April 5, 1994 report of Dr. Roncaglione established that
appellant did not have residuals of his accepted injury.

2

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act7 does not entitle a claimant
to a review of an Office decision as a matter of right.8 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulations provide that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.9
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.10
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.11 The evidence must be positive, precise and explicit
and must be manifest on its face that the Office committed an error.12 Evidence that does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.13 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.14 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.15
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.16

7

5 U.S.C. § 8128(a).

8

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

9

20 C.F.R. § 10.607(a).

10

Id. at § 10.607(b); see also Alberta Dukes, 56 ECAB 247 (2005).

11

Nancy Marcano, 50 ECAB 110, 114 (1998).

12

Leona N. Travis, 43 ECAB 227, 241 (1991).

13

Darletha Coleman, 55 ECAB 143 (2003).

14

Leona N. Travis, supra note 12.

15

See Nelson T. Thompson, 43 ECAB 919 (1992).

16

Pete F. Dorso, 52 ECAB 424 (2001).

3

ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.17 A right to reconsideration
within one year also accompanies any subsequent merit decision.18 Appellant’s August 14, 2008
request for reconsideration was submitted more than one year after the Board’s July 17, 2006
decision, the last merit decision of record.19 It was therefore untimely. Consequently, appellant
must demonstrate clear evidence of error by the Office in denying his claim for compensation.20
The Board, in its July 17, 2006 decision, affirmed the Office’s October 12, 2005 decision
denying modification of a December 31, 2002 Office decision which found that appellant did not
establish a recurrence of disability. In his August 14, 2008 request for reconsideration, appellant
submitted a CD along with a June 7, 2007 x-ray report. The evidence appellant submitted,
however, does not address the relevant issue of whether he sustained a recurrence of disability
causally related to the accepted 1967 injury. Thus, this evidence does not established clear
evidence of error.21
Appellant also argued that the CD and the x-ray report clearly showed that
Dr. Roncaglione was wrong, as there was never a disc fusion mass in his back, and that the
Office erroneously relied on his false opinion when it terminated his compensation benefits.
However, the Board, in its July 29, 1998 decision, affirmed the Office’s termination of
appellant’s compensation benefits effective November 12, 1994 and on November 16, 1998 the
Board denied appellant’s petition for reconsideration. The Board’s decision on this matter
became final after 30 days from the date of the filing of the decision.22 Appellant generally
alleged fraud by the Office in terminating his claim but he has submitted no evidence raising a
substantial question concerning the correctness of the Office’s decision. Furthermore, this
argument does not relate to the issue in the most recent merit decision, the denial of his claim for
a recurrence of disability. The Board notes that clear evidence of error is intended to represent a
difficult standard.23 Appellant has not submitted the type of positive, precise and explicit
evidence which manifests on its face that the Office committed an error.
17

20 C.F.R. § 10.607(a).

18

Robert F. Stone, 57 ECAB 292 (2005).

19

The Office erroneously noted the Board’s May 1, 2007 decision, which affirmed an October 26, 2006 nonmerit
decision of the Office, was the most merit decision of record. This is harmless error as the Office properly found
appellant’s August 14, 2008 request for reconsideration was untimely and properly analyzed the evidence and
argument under the clear evidence of review standard.
20

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

21

Howard Y. Miyashiro, 51 ECAB 253 (1999) (in order to establish clear evidence of error, a claimant must
submit evidence relevant to the issue which was decided by the Office).
22

See 20 C.F.R. § 501.6(d).

23

D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009).

4

On appeal, appellant reiterates the contentions made in his request for reconsideration.
For the reasons discussed above, the evidence and argument submitted by appellant does not
raise a substantial question concerning the correctness of the Office’s November 17, 2008
decision. The Office properly determined that he did not show clear evidence of error in that
decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was not timely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5