United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SAFETY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, Renton, WA, Employer
__________________________________________

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

Docket No. 21-1055
Issued: March 30, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 7, 2021 appellant, through counsel, filed a timely appeal from a June 23, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the June 23, 2021 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to modify OWCP’s
September 28, 2018 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 1, 2013 appellant, then a 46-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that on September 25, 2013 he injured his cervical spine when
participating in a mandatory high intensity interval training while in the performance of duty.
OWCP accepted the claim for a cervical strain. On August 6, 2014 it expanded the acceptance of
the claim to include cervical disc herniation at C6-7. Appellant stopped work on August 6, 2014
and OWCP paid him wage-loss compensation for disability from work on the supplemental rolls.
He sought treatment for his conditions with Dr. Jason Thompson, a Board-certified orthopedic
surgeon. On August 26, 2014 appellant underwent OWCP-authorized surgery for a C6-7 cervical
disc arthroplasty. Commencing October 11, 2014 OWCP paid appellant wage-loss compensation
on the periodic rolls.
In a January 29, 2015 report, Dr. Thompson discussed appellant’s status post C6-7 disc
arthroplasty. He opined that appellant could return to work in the public sector as he had no
restrictions on lifting, bending, twisting, or exercising. However, Dr. Thompson found that
appellant could not return to a law enforcement position where the potential for unexpected
physical violence to the head and neck could be anticipated.
On February 3, 2015 OWCP referred appellant to Dr. Louis Kretschmer, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a February 17, 2105 narrative report,
Dr. Kretschmer indicated that, although, appellant did not have any specific restrictions, he would
not be able to return to work as a federal air marshal as it would be unsafe for him to participate in
vigorous physical confrontation with fellow employees during training or aggressive passengers
on an airplane. He indicated that appellant would be an excellent candidate for vocational
rehabilitation. In an accompanying February 17, 2015 work capacity evaluation (Form OWCP5c), Dr. Kretschmer determined that appellant’s restrictions were permanent and that appellant
was capable of performing sedentary-, light-, and medium-duty work.
On March 19, 2015 OWCP referred appellant for vocational rehabilitation to find a suitable
position within the restrictions provided by Dr. Kretschmer on February 17, 2015. On June 15,
2015 appellant submitted a change of address and notified OWCP that h e was relocating from
Maple Valley, Washington to Chandler, Arizona. From September 8, 2015 through February 11,
2016, appellant underwent training to become a Certified Protection Professional (CPP). After
obtaining his CPP certification, he worked with his vocational rehabilitation counselor for job
placement. Beginning August 9, 2016 appellant sought treatment with Dr. Steven Berman, a
treating physician.

4

Docket No. 19-1410 (issued November 5, 2020).

2

In a September 29, 2016 memorandum, appellant’s vocational rehabilitation counselor
noted that the position of internal security manager was vocationally suitable for appellant. She
found that the position remained medically suitable as the duties were within appellant’s work
limitations and the position was available in sufficient numbers within appellant’s commuting area
based on an August 29, 2016 labor market survey. The vocational rehabilitation counselor
reported that appellant would expect to earn the average wage of $19.45 per hour due to his prior
experience and his recently acquired CPP industry certification.
On December 7, 2016 appellant submitted another change of address and notified OWCP
that he was relocating from Chandler, Arizona to Sparks, Nevada.
On December 7, 2017 OWCP requested that appellant’s treating physician evaluate his
functional capabilities by completing a Form OWCP-5c. On a December 12, 2017 Form OWCP5c, Dr. Berman reported that appellant had reached maximum medical improvement (MMI) and
his restrictions remained unchanged. He reported that appellant could perform sedentary-, light-,
and medium-duty work.
On February 2, 2018 OWCP asked appellant’s vocational rehabilitation counselor to
perform a labor market survey for the purpose of determining if the internal security manager
position was available in appellant’s new job market of Sparks, Nevada. On March 28, 2018 the
counselor confirmed that the internal security manager job still met appellant’s criteria based on
the March 23, 2018 labor market survey. She reported that appellant was capable of working as
an internal security manager and that labor market surveys showed that the position was reasonably
available in his commuting area of Sparks, Nevada. The Department of Labor, Dictionary of
Occupational Titles (DOT) describes the internal security manager position (DOT #378.137-0102)
as involving supervision and coordination of activities of store detectives, conducting private
investigations, and selling internal protective service to wholesale and retail businesses. The
position required assigning store detectives to shifts at various locations according to job
requirements and workers’ abilities, skills, and experience. The DOT, on a job classification report
(Form OWCP-66), described the physical requirements of the position as light work to include
exerting up to 20 pounds of force occasionally. The counselor reported that the salary for this
position ranged from $18.00 to $23.00 per hour based on the labor market survey. She
recommended the average wage of $20.50 per hour based on appellant’s previous experience
performing this position and his recently acquired CPP industry certification.
In a letter dated July 9, 2018, Dr. Berman verified that appellant had reached MMI and was
capable of working full time with the restrictions that had been in place since 2014. He reported
that appellant was in a permanent stationary status and there were no significant changes to his
condition since the last visit. Dr. Berman found that there were no changes in his work status or
the recommended work restrictions.
On August 23, 2018 OWCP notified appellant that it proposed to reduce his wage-loss
compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised him that he was only partially
disabled from work and that the position of internal security manager (DOT #378.137 -0102) was
medically and vocationally suitable with regard to his medical limitations, work experience, and
education. OWCP explained that the physical requirements of the internal security manager did
not exceed the restrictions imposed by Dr. Berman’s December 12, 2017 and July 9, 2018 reports.
It found that appellant was capable of earning wages at the rate of $820.00 per week as an internal
security manager and that the position was reasonably available within his commuting area.
OWCP provided an attachment detailing the application of the formula set forth in Albert C.
3

Shadrick.5 It afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
In a September 9, 2018 letter, counsel disagreed with the proposed reduction of
compensation. He argued that the job analysis was improper because it was based on appellant’s
prior residence in Seattle, Washington. Counsel asserted that the job availability and wage rate
should have been based on the job market for Sparks, Nevada, where appellant currently resided.
He further argued that the job availability and hourly wage was likely far less in Sparks, Nevada
and requested a new labor market survey.
By decision dated September 28, 2018, OWCP reduced appellant’s wage-loss
compensation benefits, effective September 30, 2018, based on his ability to earn wages of
$820.00 per week as an internal security manager. It verified that the March 23, 2018 labor market
study, was conducted for his commuting area in and around Reno, Nevada and not Seattle,
Washington as asserted by counsel for appellant. OWCP explained that the physical duties of the
position were in accordance with the restrictions provided by Dr. Berman’s July 9, 2018 report,
and that appellant’s rehabilitation counselor had determined that he was vocationally capable of
performing the constructed position. It further found that appellant was no longer totally disabled
from work and that the position of internal security manager was medically and vocationally
suitable, and represented his wage-earning capacity. OWCP applied the Shadrick 6 formula to
determine appellant’s LWEC and adjust his compensation.
On October 9, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. During the hearing held on
January 25, 2019, appellant testified that he was unable to accept most of the jobs in the labor
market study due to other conditions.
By decision dated March 29, 2019, OWCP’s hearing representative affirmed the
September 28, 2018 decision. She concluded that the position of internal security manager
reasonably and accurately reflected his wage-earning capacity and his compensation was properly
reduced effective September 30, 2018.
Appellant appealed to the Board and, by decision dated November 5, 2020,7 the Board
affirmed OWCP’s March 29, 2019 decision.
On December 7, 2020 appellant, through counsel, requested modification of OWCP’s
September 28, 2018 LWEC determination. He submitted an October 20, 2020 report from
Dr. Paul Fry, a Board-certified orthopedic surgeon serving as an OWCP referral physician, who
advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” Dr. Fry noted that appellant’s clinical
examination showed that all measurements of his cervical range of motion were symmetrical on
the right and left. He indicated that range of motion measurements of the shoulders were optimal
and symmetrical, and that bilateral upper extremity strength measurements were optimal at 5/5.
Dr. Fry opined that appellant had residuals of his work injury resulting from cervical disc surgery
and indicated that he was unable to perform the duties of his date-of-injury position as a federal
5

5 ECAB 376 (1953).

6

Id.

7

Supra note 4.

4

air marshal. He completed a Form OWCP-5c confirming appellant’s ability to work full time with
restrictions, including lifting no more than 25 pounds intermittently.
In a January 13, 2021 report, Dr. Berman noted appellant’s subjective complaints of dull
aching, throbbing, squeezing, and cramping, but noted that as to the head and neck he had “full
range of motion, no abnormal findings.” He also indicated that appellant had no neurological
abnormalities and that he had normal strength and flexion of the bilateral upper extremities.
Dr. Berman advised that the musculature of appellant’s neck was noted to be of “normal strength
and tone.” He indicated that he would refer appellant for x-ray testing to determine if there had
been any changes in his cervical spine.
Appellant also submitted an x-ray report of his cervical spine, obtained on February 1,
2021, which contained an impression of status post artificial disc replacement at C6 -7 without
evidence of dynamic instability, as well as mild straightening of cervical lordosis in neutral
position.
By decision dated June 23, 2021, OWCP determined that appellant has not met his burden
of proof to modify OWCP’s September 28, 2018 LWEC determination. It found that the evidence
submitted by appellant on reconsideration did not show that his injury-related condition prevented
him from working as an internal security manager.
LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination or
modification of compensation benefits. 8 An injured employee who is either unable to return to the
position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed based on his or her
LWEC.9 An employee’s actual earnings generally best reflect his or her wage-earning capacity. 10
Absent evidence that actual earnings do not fairly and reasonably represent the employee ’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity. 11 But if actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or the employee has no actual earnings, then wage -earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances that may affect wage -earning capacity
in his disabled condition. 12
OWCP must initially determine the employee’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her vocational wage -earning capacity. 13
The medical evidence OWCP relies upon must provide a detailed description of the employee’s
8

James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L. Clow, Jr., 44 ECAB 157 (1992).

9

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403; see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

10

Hayden C. Ross, 55 ECAB 455, 460 (2004).

11

Id.

12

5 U.S.C. § 8115(a); Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

13

M.A., 59 ECAB 624, 631 (2008).

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condition and the evaluation must be reasonably current. 14 Where suitability is to be determined
based on a position not actually held, the selected position must accommodate the employee’s
limitations from both injury-related and preexisting conditions, but not limitations attributable to
post-injury or subsequently acquired conditions. 15
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position listed in the Department of Labor’s Dictionary of Occupational Titles
(DOT) or otherwise available in the open labor market that fits the employee ’s capabilities with
regard to his or her physical limitations, education, age and prior experience.16 Once this selection
is made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service. 17 Finally,
application of the principles set forth in the Shadrick decision will result in the percentage of the
employee’s LWEC.18
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous. 19 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination. 20
ANALYSIS
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
By decision dated November 5, 2020, 21 the Board affirmed OWCP’s March 29, 2019
decision, finding the September 28, 2018 LWEC determination was proper. Findings made in

14

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.4d (June 2013).
15

N.J., 59 ECAB 171, 176 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning
Capacity Based on a Constructed Position, Chapter 2.816.4c (June 2013).
16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813.7b
(February 2011).
17

The job selected for determining wage-earning capacity must be a position that is reasonably available in the
general labor market in the commuting area in which the employee resides. David L. Scott, 55 ECAB 330, 335 n.9
(2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6 (June 2013).
18

20 C.F.R. § 10.403(d); see also Albert C. Shadrick, supra note 5.

19

C.R., Docket No. 14-111 (issued April 4, 2014); Sharon C. Clement, 55 ECAB 552 (2004).

20

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

21

Supra note 4.

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prior Board decisions are res judicata absent further review by OWCP under section 8128 of
FECA.22
The Board finds that appellant has not shown that modification of the September 28, 2018
LWEC determination is warranted by establishing that a spontaneous worsening of his injuryrelated condition after the issuance of the September 28, 2018 LWEC determination prevented
him from working as an internal security manager. 23
Appellant submitted an October 20, 2020 report from Dr. Fry, an OWCP referral physician,
who advised that, during a September 22, 2020 physical examination, appellant had examination
findings of “a diminished cervical range of motion.” He further discussed appellant’s examination
findings and opined that appellant had residuals of his work injury which prevented him from
performing the duties of his date-of-injury position as a federal air marshal. Dr. Fry completed a
Form OWCP-5c confirming appellant’s ability to work full time with restrictions, including lifting
no more than 25 pounds intermittently. In a January 13, 2021 report, Dr. Berman noted appellant’s
subjective complaints of dull aching, throbbing, squeezing, and cramping, but indicated that as to
the head and neck he had “full range of motion, no abnormal findings.” He also noted that
appellant had no neurological abnormalities and that he had normal strength and flexion of the
bilateral upper extremities. Dr. Berman advised that the musculature of appellant’s neck was noted
to be of “normal strength and tone.” Appellant also submitted an x-ray report of his cervical spine,
obtained on February 1, 2021, which contained an impression of status post artificial disc
replacement at C6-7 without evidence of dynamic instability, as well as mild straightening of
cervical lordosis in neutral position.
The Board finds that the submitted reports of Dr. Fry and Dr. Berman, as well as the
diagnostic testing report, are of no probative value in showing that a worsening of appellant’s
injury-related condition prevented appellant from working as an internal security manager, i.e., the
position that served as the basis for the September 28, 2018 LWEC determination. These reports
do not provide an opinion that appellant was unable to work as an internal security manager.
Dr. Fry’s report contains restrictions that would allow him to work in the position. The Board has
held that medical evidence that does not offer an opinion regarding a given medical matter, such
as the inability to perform a given position, is of no probative value on that matter.24 Therefore,
these reports are insufficient to establish appellant’s request for modification of the September 28,
2018 LWEC determination.
The Board further finds that appellant has not shown that modification of the September 28,
2018 LWEC determination is warranted by establishing that he was subsequently retrained or
otherwise vocationally rehabilitated. 25 Therefore, appellant has not met any of the three prongs of
the standards for modifying an LWEC determination.

22

C.D., Docket No. 19-1973 (issued May 21, 2020); B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E.
Anthony, Jr., 49 ECAB 476 (1998).
23

Id.

24

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

25

See supra note 19.

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Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden of proof to modify OWCP’s
September 28, 2018 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the June 23, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 30, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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And
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U.S. POSTAL SERVICE, POST OFFICE,
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Edison, NJ, Employer
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___________________________________________ )
S.S., Appellant

Appearances:
Steve Newman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-579
Issued: January 14, 2008

Oral Argument October 3, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 26, 2006 appellant filed a timely appeal of an October 3, 2006 merit
decision by the Office of Workers’ Compensation Programs’ which denied his claim for a
recurrence and a consequential injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues on appeal are: (1) whether appellant met his burden of proof to establish a
recurrence of disability beginning September 27, 2002 causally related to the October 9, 2001
employment injury; and (2) whether he established that he sustained post-traumatic stress as a
consequence of his presumptive pulmonary anthrax exposure, which had resolved.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a March 4, 2004 decision,
the Board found that the case was not in posture regarding whether appellant sustained a
1

Docket No. 04-104 (issued March 4, 2004).

recurrence of disability or whether he developed an emotional condition as a consequence of his
accepted employment injury. The Board vacated the Office’s January 10 and May 28, 2003
decisions and remanded the case for further development, taking into account that the Office
accepted appellant’s claim for presumptive pulmonary anthrax (resolved), based on his potential
exposure to anthrax at work on October 9, 2001. The facts and the history contained in the prior
appeal are incorporated by reference.2
In an October 21, 2001 x-ray of the chest, Dr. Peter Koubeliotes, a radialogist, diagnosed
bilateral hila promence and recommended a computed tomography (CT) scan of the chest. An
October 22, 2001 CT scan from Dr. Jeffrey Chalal, a Board-certified diagnostic radiologist,
noted that a review of the lung window revealed no peripheral pulmonary nodule, mass or
infiltrate. He diagnosed “borderline cardiomegaly with mild enlargement of the main pulmonary
outflow segment.” Dr. Chalal noted that the remainder of appellant’s CT scan was normal. The
Office also received progress notes from October 3, 2002, which were unsigned.
In a report dated October 4, 2002, Dr. Robert W. LoPresti, a clinical psychologist, noted
that appellant had been in “psychotherapy since September 13, 2002 for post-traumatic stress
disorder (PTSD) as a result of inhalation anthrax exposure on [October 9, 2001] at the
[employing establishment].” He opined that appellant was traumatized every time he returned to
the employing establishment with “chronic disabling stress, anxiety, depression and other
medical complications.” Dr. LoPresti recommended placing appellant off work until his
symptoms could be reduced. In a November 22, 2002 report, he noted treating appellant for
PTSD which was the result of anthrax exposure at work. Dr. LoPresti diagnosed PTSD and
opined that appellant would need additional treatment.
On May 24, 2004 the Office requested that an Office medical adviser review the record
and provide an opinion with regard to appellant’s emotional condition and its relation to his
presumptive anthrax exposure. In a report dated June 8, 2004, the Office medical adviser
indicated that Dr. LoPresti did not explain the one-year delay in the onset of appellant’s
symptoms. He also noted that appellant had recently undergone gastric bypass surgery and that a
follow-up examination revealed that his blood pressure and pulse were normal. Dr. LoPresti
indicated that there were no pulmonary function studies and that the information prior to the time
that appellant began seeing Dr. LoPresti was insufficient to confirm a causal relationship
between the accepted exposure and post-traumatic stress disorder.
In a June 21, 2004 decision, the Office denied modification of its prior decision. It found
that the medical evidence did not establish a recurrence of total disability or a consequential
emotional condition due to the October 9, 2001 work exposure.
On December 13, 2004 appellant requested reconsideration. On February 11, 2005 the
Office denied appellant’s request for reconsideration without a merit review of the claim.
2

Appellant has not returned to the employing establishment since September 27, 2002. On October 28, 2002 he
filed a claim for a recurrence of total disability on September 27, 2002 due to respiratory problems. Appellant
returned to full duty on October 29, 2001. On December 18, 2001 he underwent gastric bypass surgery for a
nonwork-related condition.

2

On April 14, 2005 appellant requested reconsideration. In an October 27, 2004 report, Ira
Bindman, Ph.D., a clinical psychologist, noted that appellant had been in psychotherapy since
January 2004. He diagnosed PTSD resulting from the exposure to inhalation anthrax on
October 9, 2001. Dr. Bindman opined that appellant was retraumatized whenever he went to the
building, such that he was barely able to function. He indicated that appellant exhibited chronic
disabling stress, anxiety and depression, along with strong physical reactions. Dr. Bindman also
advised that appellant’s psychologist was unable to resolve his fears. Appellant was further
traumatized as media discussions of anthrax continued. Dr. Bindman noted that, when appellant
attempted to return to work, he was overwhelmed by stress, easily startled, had poor
concentration and was continually thinking about the initial traumatic experience. He advised
that appellant was traumatized by his treatment during the claims process and the past denial of
his claims. Dr. Bindman opined that appellant’s problems about working extended far beyond
the employing establishment and caused him to be unfit for any employment.
In a July 15, 2005 decision, the Office denied modification of its prior decision.
On January 16, 2006 appellant requested reconsideration. He noted that his claim for
disability retirement was accepted. Appellant referred to a decision that was made in that regard,
however, he did not provide a copy of the decision. He also referred to information provided by
a nurse and alleged that this was support for his claim.
By decision dated April 17, 2006, the Office denied appellant’s request for
reconsideration without a review of the merits.
In a treatment noted dated April 21, 2006, Dr. Joseph O’Connell, a Board-certified
general practitioner and osteopath, noted that appellant alleged that he was an “anthrax survivor”
who had a panic attack after hearing something about anthrax on the radio. He noted that the
panic attack had resolved; however, appellant wanted it documented for workers’
comp[ensation] purposes. Dr. O’Connell diagnosed PTSD disorder and panic disorder.
On July 7, 2006 appellant requested reconsideration and submitted additional evidence.
He alleged that the finding regarding his disability retirement was relevant to the claim. The
Office received a copy of a December 22, 2005 order from the Merit Systems Protections Board
(MSPB) which granted appellant’s application for a disability retirement. Appellant also
submitted unsigned April 21, 2006 discharge instructions related to a diagnosis of panic disorder
and PTSD.
In a June 21, 2006 report, Dr. Leonard J. Schindel, a Board-certified internist, noted that
appellant was seen on April 25, 2006 for a recurrence of anxiety and panic attacks and PTSD
which arose from the anthrax exposure at the employing establishment in 2001. He explained
that appellant was originally seen and admitted to the hospital for inhalation of anthrax.
Dr. Schindel noted that, in August 2002, appellant was diagnosed with PTSD after anthrax
spores were discovered in a small collection box in Princeton, New Jersey. He advised that
appellant experienced severe panic and anxiety attacks brought on by the anthrax situation.
Dr. Schindel noted that PTSD was brought on by “a traumatic life [or] death situation,” due to
the anthrax attack on appellant’s place of employment on October 21 to 25, 2001. He also

3

indicated that appellant had direct contact with two letters that were addressed to United States
Senators which were known to have contained anthrax bacteria. Dr. Schindel explained that the
disturbance caused “clinically significant distress or impairment in social, occupational or other
important areas of functioning. These include delayed onset of symptoms at least six months
after stressor.” Dr. Schindel diagnosed chronic, delayed onset PSTD and opined that appellant
could no longer work for the employing establishment. On Apri1 21, 2006 appellant heard a
radio broadcast about two vials of anthrax samples taken from the employing establishment in
2001 that were missing from the state medical labs. As a result, he experienced acute panic and
anxiety attacks and was seen in an emergency room.
By decision dated October 3, 2006, the Office found that appellant had not established a
recurrence of disability or an emotional condition due to his accepted exposure.

LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of the Office’s regulations provides that a recurrence of disability means
an inability to work after an employee has returned to work caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.3
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that a claimant’s claimed condition became apparent during a period of
employment nor his or her belief that the condition was aggravated by employment is sufficient
to establish causal relationship.5
The Board will not require the Office to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.6

3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

5

Walter D. Morehead, 31 ECAB 188 (1986).

6

Fereidoon Kharabi, 52 ECAB 291 (2001).

4

ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for presumptive pulmonary anthrax, which had
resolved based on his potential exposure to anthrax at work on October 9, 2001. The record
reflects that appellant returned to full duty on October 29, 2001. He filed a recurrence of
disability claim October 28, 2002 alleging total disability beginning September 27, 2002.
Appellant, however, did not submit sufficient reasoned medical evidence to establish that his
present condition was causally related to his accepted injury. For example, he did not submit a
medical report in which his treating physician explained why any disability beginning
September 27, 2002 would be related to the accepted injury.
In reports dated October 4 and November 22, 2002, Dr. LoPresti noted that appellant had
been in “psychotherapy since September 13, 2002 for PTSD as a result of inhalation anthrax
exposure on [October 9, 2001] at the [employing establishment].” Appellant also submitted an
October 27, 2004 report from Dr. Bindman, who diagnosed PTSD “resulting from his exposure
to inhalation anthrax” on October 9, 2001. The physicians diagnosed PTSD and chronic
disabling stress, anxiety, depression and other medical complications and opined that appellant
was traumatized when he returned to the employing establishment. However, they did not
explain how his PTSD disorder arose from his accepted injury of presumptive pulmonary
anthrax, which had resolved. They did not offer an opinion that appellant was disabled
beginning September 27, 2002 due to his accepted employment condition. Medical reports not
containing rationale on causal relation are entitled to little probative value and are generally
insufficient to meet an employee’s burden of proof.7
Other reports submitted by appellant do not address a recurrence of total disability on
September 27, 2002.
Appellant did not submit any other evidence to support a recurrence of total disability
beginning September 27, 2002 with objective findings to support that his recurrence was causally
related to the work injury of October 9, 2001. He had the burden of proving that he was disabled
for work as a result of his employment injury.8 Consequently, appellant has not met his burden
of proof to establish that he sustained a recurrence of disability on September 27, 2002 causally
related to his October 9, 2001 employment injury. The medical evidence of record does not
provide sufficient facts or rationalized medical opinion to support his claim.
LEGAL PRECEDENT -- ISSUE 2
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.9
7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

8

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980).

9

See Debra L. Dillworth, 57 ECAB ___ (Docket No. 05-159, issued March 17, 2006). See also Albert F.
Ranieri, 55 ECAB 598 (2004).

5

The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury.10 With respect to consequential injuries, the Board has stated that, where an
injury is sustained as a consequence of an impairment residual to an employment injury, the new
or second injury, even though nonemployment related, is deemed, because of the chain of
causation to arise out of and in the course of employment and is compensable.11
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence to establish a
consequential relationship between his diagnosed psychological condition and his October 9,
2001 injury.
Appellant failed to submit any probative medical evidence explaining how his accepted
condition caused or contributed to his PTSD. Specifically, he failed to demonstrate how his
PTSD arose as a natural consequence of his accepted injury, presumptive pulmonary anthrax,
which had resolved, rather than as a result of an intervening cause. The Board finds that the
evidence of record is insufficient to discharge appellant’s burden of establishing that his PTSD
was a consequential injury of the accepted conditions of presumptive pulmonary anthrax. As
previously noted, appellant’s test results were negative and he returned to full duty prior to the
onset of his stress symptoms.
Appellant submitted evidence which included an August 27, 2002 report, in which
Dr. Schindel opined that he was “suffering from PTSD due to his exposure to anthrax last year
and the events that followed.” He also submitted reports dated October 4 and November 22,
2002 in which Dr. LoPresti noted that appellant had been in “psychotherapy since September 13,
2002 for PTSD as a result of inhalation anthrax exposure on [October 9, 2001] at the [employing
establishment].” Additionally, appellant included an October 27, 2004 report from Dr. Bindman
who noted that appellant had been in psychotherapy since January 2004 and diagnosed PTSD
“resulting from his exposure to inhalation anthrax” on October 9, 2001. However, the Board
finds that these reports are of limited probative value. This is particularly important in light of
Dr. Schindel’s earlier findings in his reports dated December 12, 2001 and January 29, 2002 that
appellant’s “blood cultures were negative for anthrax.” Neither Dr. Schindel, Dr. LoPresti nor
Dr. Bindman explained how they concluded that appellant’s PTSD arose from his exposure to
anthrax in light of the negative cultures or the normal CT scans from 2001. Furthermore, as
noted by the Office medical adviser in his June 8, 2004 report, they did not explain the one-year
delay in the onset of symptoms or offer any explanation related to whether the symptoms may
have arisen as a result of other factors including such nonwork-related factors as his gastric
bypass surgery. Medical reports not containing rationale on causal relation are entitled to little
probative value and are generally insufficient to meet appellant’s burden of proof.12

10

Id. See also Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation
§ 10.01 (2005).
11

Kathy A. Kelley, 55 ECAB 206 (2004).

12

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

6

Appellant also submitted an April 21, 2006 report from Dr. O’Connell who noted that
appellant had a panic attack after hearing something about anthrax on the radio, which had
resolved. Dr. O’Connell diagnosed PTSD disorder and panic disorder. The Board finds that this
report does not address the relationship between appellant’s accepted condition, presumptive
pulmonary anthrax, which had resolved and the diagnosis of PTSD and panic disorder. As noted
above, medical reports not containing rationale on causal relation are entitled to little probative
value and are generally insufficient to meet appellant’s burden of proof.13
In a June 21, 2006 report, Dr. Schindel noted that appellant was seen on April 25, 2006
for a recurrence of panic and anxiety attacks and PTSD which arose from the anthrax attack at
the employing establishment in 2001. While he noted that PTSD was brought on by the anthrax
attack at appellant’s place of employment on October 21 to 25, 2001 and included the delayed
onset of symptoms at least six months after the “stressor,” he did not explain how PTSD could
have arisen more than six months after the “stressor” in light of the negative cultures and normal
CT scans from 2001. Furthermore, Dr. Schindel did not address appellant’s December 18, 2001
gastric bypass surgery. In any event, he did not provide medical reasoning explaining how he
arrived at his conclusion on causal relationship. This is particularly important in light of the fact
that Dr. Schindel’s opinion was formulated more than four years after the incident and after
which the contemporaneous medical evidence indicates that appellant’s accepted condition had
resolved.14
Appellant also submitted April 21, 2006 discharge instructions related to a diagnosis of
panic disorder and PTSD. They appear to be from a nurse. However, nurses are not physicians
under the Act and are not competent to render a medical opinion.15
The Office received a copy of a December 22, 2005 order from the MSPB. In that order,
appellant’s application for disability retirement was granted. However, the Board has noted that
findings of other government agencies are not dispositive with regard to questions arising under
the Act.16 This order would be insufficient to establish that appellant’s PTSD arose from his
accepted condition.
The Board finds that the evidence of record is insufficient to discharge appellant’s burden
of establishing that his PTSD was a consequence of his accepted condition.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability beginning September 27, 2002 causally related to the October 9, 2001 employment
injury. It further finds that appellant did not meet his burden of proof in establishing that he
13

Id.

14

The Board has held that contemporaneous evidence is entitled to greater probative value than later evidence.
Conard Hightower, 54 ECAB 796 (2003).
15

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

16

Ernest J. Malagrida, 51 ECAB 287, 291 (2000).

7

sustained post-traumatic stress as a consequence of his presumptive pulmonary anthrax exposure,
which had resolved.
ORDER
IT IS HEREBY ORDERED THAT the October 3, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

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Appearances:
James G. Noucas, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0031
Issued: July 24, 2015

Case Submitted on the Record

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

JURISDICTION
On October 7, 2014 appellant, through counsel, filed a timely appeal from a June 18,
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 the case.
ISSUE
The issue is whether appellant established that he has more than five percent impairment
of the right upper extremity for which he received a schedule award.
On appeal counsel asserts that, as the opinion of the referee physician is insufficient,
vague, and not responsive, the case must be remanded for appointment of a new and impartial
referee.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 23, 2009 appellant, then a 57-year-old battery ship alteration installation
manager, filed an occupational disease claim alleging that employment duties caused right carpal
tunnel syndrome and ulnar neuropathy at the right elbow. A March 17, 2009 right upper
extremity electrodiagnostic study showed severe median mononeuropathy across the wrist and
electrophysiologic evidence of focal ulnar neuropathy across the elbow.
OWCP accepted right carpal tunnel and cubital tunnel syndromes. On August 25, 2009
Dr. Sacha D. Matthews, Board-certified in orthopedic and hand surgery, performed right carpal
tunnel release and right subcutaneous ulnar nerve transposition. Appellant received appropriate
compensation after surgery. On November 9, 2009 he returned to full-time work and missed
intermittent periods thereafter for medical treatment and therapy.
On April 11, 2011 appellant filed a Form CA-7 for a schedule award. In an April 26,
2011 report, Dr. Matthews indicated that appellant reached maximum medical improvement on
February 14, 2011. He stated that appellant had some persistent impairment consisting of
paresthesias/numbness of the little finger. Dr. Matthews advised that he did not perform
impairment evaluations. Appellant retired in June 2011.
By letter dated July 26, 2011, OWCP informed appellant of the type of medical evidence
needed to support a schedule award claim, including an impairment determination completed in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment2 (hereinafter A.M.A., Guides).
In a February 4, 2011 report, Dr. John Dolan, a Board-certified neurologist, performed
right upper extremity electrodiagnostic testing that demonstrated persistent compressive
demyelination of the median nerve across the carpal tunnel space with evidence of axon loss of
the ulnar nerve. He diagnosed carpal tunnel syndrome and ulnar neuropathy.
In an August 9, 2011 report, Dr. Frank A. Graf, a Board-certified orthopedist, noted the
accepted conditions and appellant’s medical history and job duties. He reviewed medical records
and provided examination findings. Dr. Graf referenced Table 15-23, Entrapment/Compression
Neuropathy Impairment, of the sixth edition of the A.M.A., Guides. After applying grade
modifiers and the net adjustment formula, he concluded that appellant had five percent right arm
impairment for carpal tunnel syndrome. Dr. Graf next determined that appellant had a class 2
ulnar nerve impairment under Table 15-21, Peripheral Nerve Impairment, with a default value of
17 percent. He applied grade modifiers and the net adjustment formula and concluded that
appellant had 23 percent impairment for ulnar nerve injury. Using the Combined Values Chart,
Dr. Graf concluded that appellant had a total 27 percent right arm impairment.
On December 21, 2011 Dr. Christopher R. Brigham, an OWCP medical adviser who is
Board-certified in family and occupational medicine, reviewed Dr. Graf’s report. He disagreed
with Dr. Graf’s finding of impairment pursuant to the sixth edition of the A.M.A., Guides,
stating, in accordance with Table 15-23, appellant had two percent right upper extremity
2

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

2

impairment due to peripheral neuropathy at the carpal tunnel and eight percent arm impairment
due to peripheral neuropathy at the cubital tunnel. Dr. Brigham noted that, as appellant had more
than one entrapment syndrome, the nerve qualifying for the larger impairment, the ulnar nerve at
the elbow, was given the full impairment of 8 percent, but that the median nerve impairment with
a lesser impairment of 2 percent was to be rated at 50 percent, which yielded 1 percent
impairment due to carpal tunnel syndrome. He found that appellant had nine percent total right
arm impairment.
OWCP determined that a conflict had been created between Dr. Graf and Dr. Brigham
regarding the degree of appellant’s right upper extremity impairment, and referred him to
Dr. David N. Markellos, a Board-certified orthopedic surgeon, for an impartial evaluation. In a
June 12, 2012 report, Dr. Markellos noted that appellant was left hand dominant. He reviewed
the medical record and reported appellant’s complaint of persistent symptoms following surgery.
Physical examination demonstrated a mildly tender elbow incision and a mildly positive ulnar
nerve Tinel’s sign on the right with no visible asymmetry or atrophy and decreased sensation to
light and sharp touch on the ulnar aspect of the right hand and slightly diminished right gross
grip strength measured by three tests of the Jamar dynamometer. There was full range of motion
of the elbow, wrist, and all digits. Dr. Markellos diagnosed history of right nondominant carpal
tunnel syndrome and cubital tunnel syndrome, status postsurgical repair in August 2009; no
significant objective clinical findings that would indicate persistent right carpal tunnel syndrome;
and clinical evidence of mild residual ulnar neuropathy (cubital tunnel syndrome). He advised
that maximum medical improvement was reached on February 14, 2011 and adopted
Dr. Brigham’s application of the A.M.A., Guides, concluding that appellant had a nine percent
right upper extremity impairment.
In reports dated August 30 and September 15, 2012, Dr. Morley Slutsky, Board-certified
in occupational medicine and an OWCP medical adviser, reviewed the record. Regarding carpal
tunnel syndrome, he disagreed with the conclusions of Drs. Graf, Brigham and Markellos, stating
that none of the physicians provided an analysis of the electrodiagnostic criteria and that
Dr. Markellos assigned two percent impairment for carpal tunnel syndrome without performing
calculations demonstrating how he arrived at his numbers. Dr. Slutsky indicated that for test
findings, he used a March 17, 2009 preoperative electrodiagnostic study. He found that, in
accordance with Table 15-23, appellant had a grade modifier of 2 for test findings, a modifier 1
for history, and a 0 modifier for physical examination findings. Dr. Slutsky averaged this, which
yielded right arm impairment of two percent. He rated appellant’s QuickDASH score as
moderate which raised the right upper extremity impairment due to compression at the wrist to
three percent. For cubital tunnel syndrome, ulnar nerve entrapment, Dr. Slutsky again noted that
Dr. Markellos did not explain how he arrived at his eight percent rating. He indicated that under
Table 15-23, appellant had a grade modifier of 1 for history, and a grade modifier of 2 for
physical findings, with a default value of five. Dr. Slutsky again averaged this, which yielded a
right arm impairment of two percent which, when raised by appellant’s moderate QuickDASH
score, yielded three percent right arm impairment due to compression at the elbow. He noted
that, when there are multiple simultaneous nerve entrapments, the larger one is given full value
and the second largest rating is given 50 percent of its value, and these are combined. As each
impairment yielded a three percent value and Dr. Slutsky used one at full value or three percent
and second at 1.5 percent, which he rounded up to two percent. Dr. Slutsky concluded that
appellant had five percent right upper arm.
3

By decision dated November 27, 2012, appellant was granted a schedule award for five
percent impairment of the right upper extremity, for a total of 15.6 weeks, to run from
February 15 to June 4, 2011. OWCP found that the weight of the medical evidence rested with
the impairment calculation of Dr. Slutsky, an OWCP medical adviser.
Appellant, through counsel, requested a review of the written record.3 On March 29,
2013 an OWCP hearing representative set aside the November 27, 2012 decision and remanded
the case to OWCP to clarify questions raised in Dr. Slutsky’s report regarding dysfunction of the
ulnar nerve and assignment of the cubital tunnel impairment that required clarification from
Dr. Markellos, the referee physician. On remand OWCP was to obtain a supplemental report
from Dr. Markellos.
On April 30, 2013 OWCP asked Dr. Markellos to provide a supplemental report
regarding his impairment calculations. In a September 4, 2013 report, Dr. Markellos noted his
review of Dr. Slutsky’s report concerning appellant’s right upper extremity impairment. He
stated:
“Although I have 35 years of orthopedic experience, the limitations of my report
are due to my experience being limited to the 4th edition of the [A.M.A., Guides,]
used in Maine and limited exposure to the 6th edition of the [A.M.A., Guides] in
our practice. My review of Dr. Slutsky’s report finds it to be detailed, complete,
and accurate.”
On June 18, 2014 OWCP found that appellant was not entitled to a right arm impairment
rating greater than five percent, for which he received a schedule award on November 27, 2012.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations,5 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.6 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
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
3

Appellant initially requested a hearing but changed his request to written record review.

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

4

and Health (ICF).8 Impairment due to carpal tunnel and cubital tunnel syndrome is evaluated
under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy Impairment) and
accompanying relevant text.9 In Table 15-23, grade modifier levels (ranging from 0 to 4) are
described for the categories test findings, history, and physical findings. The grade modifier
levels are averaged to arrive at the appropriate overall grade modifier level and to identify a
default rating value. The default rating value may be modified up or down by one percent based
on functional scale, an assessment of impact on daily living activities.10 The A.M.A., Guides
specifically indicate that if multiple simultaneous neuropathies occur in the same limb, both
impairments may be rated and the nerve qualifying for the larger impairment is given the full
impairment while the nerve qualifying for the smaller impairment is rated at 50 percent.11 The
A.M.A., Guides further indicate that Table 15-23 is to be used for rating focal nerve
compromise,12 and Appendix 15-B provides further guidance regarding electrodiagnostic
evaluation of entrapment syndromes.13
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.15 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.16
OWCP procedures further provide that, while an OWCP medical adviser may review the
opinion of a referee specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility and not that of OWCP medical adviser. The medical adviser should
not resolve the conflict of medical opinion or attempt to clarify or expand the opinion of the

8

Supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.”
9

Id. at 449.

10

Id. at 448-50.

11

Id. at 448.

12

Id.

13

Id. at 487-90.

14

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

15

20 C.F.R. § 10.321.

16

V.G., 59 ECAB 635 (2008).

5

medical referee. If clarification is necessary, a supplemental report should be obtained from the
referee specialist.17
ANALYSIS
OWCP accepted appellant’s occupational disease claim for right carpal and cubital tunnel
syndromes. On April 11, 2011 appellant filed a schedule award claim. OWCP found that a
conflict in medical evidence was created between the opinions of Dr. Graf, an attending
orthopedist who found 27 percent right arm impairment, and Dr. Brigham, an OWCP medical
adviser who found 9 percent impairment. OWCP then referred appellant to Dr. Markellos, a
Board-certified orthopedic surgeon, for an impartial evaluation.
In a June 12, 2012 report, Dr. Markellos provided physical examination findings. He
advised that maximum medical improvement was reached on February 14, 2011 and adopted
Dr. Brigham’s application of the A.M.A., Guides, concluding that appellant had nine percent
right upper extremity impairment.
Dr. Slutsky, a second OWCP medical adviser, reviewed the medical record.18 In reports
dated August 30 and September 15, 2012, he noted that neither Dr. Graf, Dr. Brigham, nor
Dr. Markellos provided an analysis of the electrodiagnostic criteria and that Dr. Markellos
assigned two percent impairment for carpal tunnel syndrome without performing calculations
which showed how he arrived at his numbers. Dr. Slutsky indicated that for test findings, he
used a March 17, 2009 preoperative electrodiagnostic study and found that, in accordance with
Table 15-23, appellant had a grade modifier of 2 for test findings, a modifier 1 for history, and a
0 modifier for physical examination findings. He averaged this, which yielded two percent right
arm impairment. Dr. Slutsky rated appellant’s QuickDASH score as moderate which raised the
right arm impairment due to compression at the wrist to three percent. Regarding cubital tunnel
syndrome, ulnar nerve entrapment, he again noted that Dr. Markellos did not explain how he
arrived at his rating of eight percent. Dr. Slutsky indicated that, under Table 15-23, appellant
had a grade modifier of 1 for history, and a grade modifier of 2 for physical findings, with a
default value of five. He again averaged this, which yielded a right upper extremity impairment
of two percent which, when raised by appellant’s moderate QuickDASH score, yielded a right
arm impairment due to compression at the elbow to three percent. Dr. Slutsky noted that when
there are multiple simultaneous nerve entrapments, the larger one is given full value and the
second largest rating is given 50 percent of its value, and that these are combined. He indicated
that in this case each impairment yielded a three percent value and therefore used one at full
value or three percent and the second at 1.5 percent, which he rounded up to two percent.
Dr. Slutsky concluded that appellant had a total five percent right arm impairment.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(g)(1,2) (February 2013).
18

A second OWCP medical adviser was selected because the conflict was between Dr. Graf, an attending
orthopedic surgeon, and Dr. Brigham, the first OWCP medical adviser. See Federal (FECA) Procedure Manual,
Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6g. (February 2013).

6

On November 27, 2012 appellant was granted a schedule award for a five percent
impairment of the right arm. Following appellant’s request for review of the written record, in a
March 29, 2013 decision, an OWCP hearing representative set aside the November 27, 2012
decision and remanded the case to OWCP to clarify questions raised in Dr. Slutsky’s report that
required clarification from Dr. Markellos, the referee physician. On remand OWCP was to
obtain a supplemental report from Dr. Markellos.
In a September 4, 2013 report, Dr. Markellos noted his review of Dr. Slutsky’s report
concerning appellant’s right arm impairment. He indicated that, while his experience was
somewhat limited in that Maine used the fourth edition of the A.M.A., Guides, he had reviewed
Dr. Slutsky’s report and found it to be detailed, complete, and accurate.
On June 18, 2014 OWCP found that appellant was not entitled to a right upper extremity
impairment rating greater than five percent, for which he received a schedule award on
November 27, 2012.
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
his original report. However, when the impartial specialist is unable to clarify or elaborate on his
original report or if his supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining his rationalized medical opinion on the issue.19
In a June 12, 2012 report, Dr. Markellos adopted Dr. Brigham’s application of the
A.M.A., Guides, concluding that appellant had nine percent right upper extremity impairment.
In his September 4, 2013 report, Dr. Markellos, who reviewed Dr. Slutsky’s report concerning
appellant’s right upper extremity impairment, merely stated:
“Although I have 35 years of orthopedic experience, the limitations of my report
are due to my experience being limited to the 4th edition of the [A.M.A., Guides,]
used in Maine and limited exposure to the 6th edition of the [A.M.A., Guides] in
our practice. My review of Dr. Slutsky’s report finds it to be detailed, complete,
and accurate.”
The Board finds that Dr. Markellos’ reports are not sufficiently rationalized such that his
medical opinion is of diminished probative value. In Frederick Justiniano,20 the Board set aside
the report of an impartial specialist who stated his agreement with the opinion of an OWCP
second opinion physician without offering adequate medical rationale to support his own medical
conclusions. The Board finds that in the present appeal, Dr. Markellos relied too extensively on
the impairment evaluations of Dr. Brigham and Dr. Slutsky without providing an adequate

19

L.R. (E.R.), 58 ECAB 369 (2007).

20

45 ECAB 491 (1994).

7

impairment evaluation in which he applied the process under the sixth edition of the A.M.A.,
Guides.21
The conflict in medical opinion thus remains unresolved. When an impartial specialist is
unable to clarify or elaborate on his original report or if his supplemental report is also vague,
speculative, or lacking in rationale, OWCP must submit the case record to another impartial
specialist for the purpose of obtaining a rationalized medical opinion on the issue.22
Upon return of the case record, OWCP should refer appellant to another impartial
specialist. The impartial specialist should provide an evaluation in accordance with the sixth
edition of the A.M.A., Guides regarding appellant’s right arm impairment. Following this and
any other development deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision as there is an unresolved conflict
in medical opinion evidence regarding the degree of appellant’s right upper extremity
impairment.

21

See Charles H. Miller, Docket No. 93-2000 (issued March 22, 1995) (in a situation where there exists a
medical conflict, if the weight of the medical evidence lies anywhere, it must be with the opinion of the specialist
chosen to resolve the outstanding conflict).
22

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the June 18, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this opinion of the Board.
Issued: July 24, 2015
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, AIRPORT MAIL
CENTER, Boston, MA, Employer
__________________________________________

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

Docket No. 15-1038
Issued: August 10, 2015

Case Submitted on the Record

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

JURISDICTION
On April 10, 2015 appellant, through counsel, filed a timely appeal from a February 25,
2015 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 more than four percent employment-related permanent
impairment of his left leg.
FACTUAL HISTORY
On November 16, 2005 appellant worked as a 44-year-old mail handler. He filed a
traumatic injury claim on that date (Form CA-1) alleging that he sustained a left ankle injury in
the performance of duty on November 15, 2005 when a bulk mail container rolled up behind him
1

5 U.S.C. § 8101 et seq.

and caught his left foot. On November 18, 2005 appellant underwent a left Achilles tendon
repair performed by Dr. Bertram Zarins, a Board-certified orthopedic surgeon. OWCP accepted
the claim on December 29, 2005 for a left ruptured left Achilles tendon. Appellant returned to a
light-duty job on May 2, 2006 and full duty on June 24, 2006.
Appellant submitted a CA-7 (claim for compensation) on October 25, 2010 for a schedule
award and submitted an October 19, 2010 report from Dr. Zarins, who provided a history and
results on examination. Dr. Zarins found no residual impairment under the sixth edition of the
A.M.A., Guides. By decision dated June 18, 2013, OWCP denied appellant’s claim for a
schedule award under 5 U.S.C. § 8107 as the medical evidence did not establish a left leg
permanent impairment causally related to the November 15, 2005 injury.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 20, 2013. By decision dated January 27, 2014, the hearing representative affirmed
the June 18, 2013 OWCP decision.
By letter dated February 10, 2014, appellant, through counsel, requested reconsideration.
He submitted a January 24, 2014 report from Dr. Karen Garvey, a Board-certified internist.
Dr. Garvey provided a history and results on examination performed on December 13, 2013.
With respect to strength in the left ankle, she reported 3+ - 4/5 for eversion. As to permanent
impairment under the A.M.A. Guides, Dr. Garvey identified Table 16-2, the regional grid for
ankle impairments. She noted that, while the physical examination showed mild range of motion
deficits, there was moderate weakness based on eversion strength testing and appellant’s
inability to walk on his toes. Dr. Garvey found the default impairment was 10 percent, with no
adjustment after applying grade modifier one for functional history and clinical studies.
The medical evidence was referred to an OWCP medical adviser. In a report dated
April 15, 2014, the medical adviser found that Dr. Garvey provided the most comprehensive
examination in the medical record. He stated that, while Dr. Garvey had reported a moderate
loss of range of motion, her measurements showed only a mild loss of motion. According to the
medical adviser, the proper application of Table 16-2 was under mild motion deficits, which had
a default impairment of five percent. He then adjusted the impairment to four percent, based on
grade modifier one for functional history, zero for physical examination, with no modifier
applicable for clinical studies. The medical adviser found December 13, 2013 as the date of
maximum medical improvement.
By decision dated April 29, 2014, OWCP vacated the January 27, 2014 decision. On
May 14, 2014 it issued a schedule award decision for a four percent permanent impairment to the
left leg. The period of the award was 11.52 weeks from December 13, 2013.
Appellant requested a hearing before an OWCP hearing representative, which was held
on December 10, 2014. Counsel argued there was a conflict in the medical evidence.
In a decision dated February 26, 2015, the hearing representative affirmed the May 14,
2014 schedule award. She found the weight of the evidence was represented by an OWCP
medical adviser.

2

LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
With respect to an ankle impairment, the A.M.A., Guides provides a regional grid at
Table 16-2.5 The Class of Diagnosis (CDX) impairment is determined based on specific
diagnosis, and then the default value for the identified CDX is determined. The default value
(grade C) may be adjusted by using grade modifiers for Functional History (GMFH, Table 16-6),
Physical Examination (GMPE, Table 16-7), and Clinical Studies (GMCS, Table 16-8). The
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).6
ANALYSIS
In the present case, appellant submitted the January 24, 2014 report from Dr. Garvey,
who opined that appellant had a 10 percent left leg impairment under Table 16-2 of the A.M.A.
Guides. OWCP referred the case to an OWCP medical adviser for review. The medical adviser
reviewed the examination results from Dr. Garvey and found that appellant had a four percent
left leg impairment. The Board finds that the medical adviser incorrectly reviewed the evidence
and that his April 15, 2014 report is of diminished probative value.
Both Dr. Garvey and OWCP medical adviser agreed on the diagnosis to be used under
Table 16-2: Strain; tendinitis; or [history of] ruptured tendon involving the Achilles tendon. For
a class 1 impairment, however, the diagnosis is further categorized as “mild motion deficits” or
“moderate motion deficits and/or significant weakness.”
The description of “mild motion deficits” has default (grade C) impairment of five
percent, with net adjustments resulting in a leg impairment from three percent (grade A) to seven
percent (grade E). An OWCP medical adviser determined the impairment under “mild motion
deficits.” For “moderate motion deficits and/or significant weakness,” the default leg

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

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

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
5

A.M.A., Guides 501, Table 16-2.

6

The net adjustment is up to +2 (grade E) or -2 (grade A).

3

impairment is 10 percent and with adjustments ranges from a 7 percent leg impairment (grade A)
to 13 percent (grade E).7
In her January 24, 2014 report, Dr. Garvey found that “moderate motion deficits and/or
significant weakness” was appropriate in this case. This was not based on a finding of moderate
motion deficits, but on the examination results for weakness in ankle eversion and the inability to
stand on toes. Dr. Garvey specifically stated that the examination showed mild motion deficits.
An OWCP medical adviser incorrectly stated that Dr. Garvey based her opinion on moderate
motion deficit that was not justified by her examination results. He did not provide a reasoned
medical opinion as to why the leg impairment should not be determined under “moderate motion
deficits and/or significant weakness” for the diagnosed condition pursuant to Table 16-2.
The case will be remanded for further review of the evidence by an OWCP medical
adviser in accord with OWCP procedures.8 After such further development as is deemed
necessary, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development of the evidence.

7

A.M.A. Guides 501, Table 16-2.

8

If the medical adviser does not provide adequate rationale for the opinion on permanent impairment, OWCP
should request clarification or a supplemental report from the medical adviser. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)(2) (February 2013).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2015 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: August 10, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
MIDTOWN STATION, New York, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1752
Issued: March 2, 2007

Case Submitted on the Record

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

JURISDICTION
On July 26, 2006 appellant filed a timely appeal from a May 15, 2006 decision of the
Office of Workers’ Compensation Programs denying appellant’s request for a merit review.
Because more than one year has elapsed between the most recent merit decision dated June 26,
1996 and the filing of this appeal on July 26, 2006, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d).1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and did not establish clear evidence of error.

1

The June 26, 1996 decision of the Office denied modification of an August 3, 1995 termination decision.

FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
December 10, 2004,2 the Board found that the Office properly denied appellant’s request for a
merit review of its August 3, 1995 decision on the grounds that it was untimely filed and did not
present clear evidence of error. The August 3, 1995 decision terminated appellant’s
compensation benefits effective August 10, 1995 as his work-related disability and need for
medical treatment had ceased.3
On December 23, 2004 appellant filed a petition for reconsideration, asserting that the
Board committed legal and factual errors in its December 10, 2004 decision and order. The
Office did not comply with the Board’s March 7, 2005 request to transmit the case record for
review. The Board granted the Office an extension of time to July 9, 2005 to transmit the case
record. As the Office did not comply, the Board issued an order on April 3, 20064 setting aside
its December 10, 2004 decision. The Board remanded the case to the Office for reconstruction
of the record and issuance of an appropriate decision. The law and facts of the case as set forth
in the Board’s prior decision and order are hereby incorporated by reference.
By decision dated May 15, 2006, the Office denied appellant’s January 19, 2004 request
for reconsideration of the Office’s June 26, 1996 decision on the grounds that it was not timely
filed and failed to present clear evidence of error. The Office noted that it was issuing the
decision pursuant to the Board’s April 3, 2006 order to protect appellant’s appeal rights.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act5 does not entitle a claimant
to a review of an Office decision as a matter of right.6 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.7 The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of

2

Docket No. 04-1767 (issued December 10, 2004).

3

The Office accepted that on February 20, 1979 appellant, then a 31-year-old letter carrier, sustained neck and
upper back pain, a cervical strain with radiculopathy, lumbosacral strain and trauma to the third and fourth fingers of
the left hand when he slipped and fell on stairs while delivering mail.
4

Docket No. 04-1767 (issued April 3, 2006).

5

5 U.S.C. § 8128(a).

6

Thankamma Mathews, 44 ECAB 765, 768 (1993).

7

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

2

that decision.8 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).9
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulation.10
Office regulation states that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in the Office’s regulation, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of the Office.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.12 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.15 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.16 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.17 The Board must make 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.18

8

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
9

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 6 at 769; Jesus D. Sanchez, supra note 7 at 967.

10

Thankamma Mathews, supra note 6 at 770.

11

20 C.F.R. § 10.607(b).

12

Thankamma Mathews, supra note 6 at 770.

13

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

14

Jesus D. Sanchez, supra note 7 at 968.

15

Leona N. Travis, supra note 13.

16

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

17

Leon D. Faidley, Jr., 41 ECAB 104, 114 (1989).

18

Gregory Griffin, supra note 8.

3

ANALYSIS
The Office properly determined in this case that appellant failed to file a timely
application for review. The Office issued its last merit decision in this case on June 26, 1996.
Appellant’s January 19, 2004 letter requesting reconsideration was untimely filed as it was
submitted more than one year after the last merit decision.19 It must now be determined whether
appellant’s January 19, 2004 request for reconsideration demonstrated clear evidence of error in
the Office’s June 26, 1996 decision.
Appellant’s January 19, 2004 letter reiterated his assertion that he had a continuing workrelated disability on and after the Office terminated his compensation benefits effective
August 10, 1995. The Board finds that this letter does not raise a substantial question as to
whether the Office’s June 26, 1996 decision was in error or prima facie shift the weight of the
evidence in appellant’s favor. Therefore, it is insufficient to establish clear evidence of error.
Appellant also submitted copies of medical reports previously of record and considered
by the Office prior to issuing the June 26, 1996 merit decision. These reports are irrelevant as
they do not contain medical rationale supporting the asserted causal relationship. Irrelevant
evidence is insufficient to demonstrate clear evidence of error.20
Appellant has not established that the Office improperly denied his request for further
review of the merits of his claim. His reconsideration request did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or constitute relevant and pertinent new evidence not
previously considered by the Office.
Accordingly, the Board finds that the arguments and evidence submitted by appellant in
support of his January 19, 2004 request for reconsideration do not prima facie shift the weight of
the evidence in his favor or raise a substantial question as to the correctness of the Office’s
June 26, 1996 decision and are thus insufficient to demonstrate clear evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration was untimely and failed to
show clear evidence of error in the Office’s June 26, 1996 decision, the last merit decision in the
case. Therefore, the May 15, 2006 decision of the Office denying appellant’s January 19, 2004
request for reconsideration was proper under the law and facts of this case.

19

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).

20

Thankamma Mathews, supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 15, 2006 is affirmed.
Issued: March 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, VITILAS “VITO”
)
REID POST OFFICE, Normandy, MO, Employer )
__________________________________________ )
D.J., Appellant

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

Docket No. 21-1027
Issued: March 25, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 21, 2021 appellant, through counsel, sought an appeal from a purported June 3,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1027.
The Board, having duly considered the matter, notes that it has jurisdiction to review final
adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 This
jurisdiction encompasses any final decision issued by OWCP within 180 days of the date appellant
filed this appeal. 3 Although the case record does contain a document from OWCP dated June 3,
1

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

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

2021, it is an informational letter and, thus, does not constitute a final adverse OWCP decision. 4
As there is no final adverse decision over which the Board may properly exercise jurisdiction, the
Board concludes that the appeal docketed as No. 21-1027 must be dismissed. 5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1027 is dismissed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4

See Order Dismissing Appeal, G.T., Docket No. 21-0199 (issued December 1, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
5

2