United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1542
Issued: April 8, 2019

Case Submitted on the Record

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

JURISDICTION
On August 9, 2018 appellant filed a timely appeal from a July 24, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated January 11, 2018, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On October 19, 2012 appellant, then a 34-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) for a lumbar condition that allegedly arose while in the
performance of duty on or about August 21, 2012.3 By decision dated November 28, 2012, OWCP
accepted appellant’s claim for lumbar sprain under File No. xxxxxx047.4 It paid her wage-loss
compensation beginning August 28, 2012, and placed her on the periodic compensation rolls,
effective November 18, 2012. In an April 2, 2014 decision, OWCP terminated appellant’s wageloss compensation and medical benefits effective April 2, 2014.5 It subsequently denied
modification by decisions dated January 5 and September 28, 2015.
On October 26, 2015 appellant returned to work in a limited-duty capacity.
On December 29, 2015 appellant again requested reconsideration. She submitted a
December 16, 2015 report by Dr. Bruce J. Montella, a Board-certified orthopedic surgeon, who
found that appellant had ongoing residuals from her prior lumbar injury. Dr. Montella also
indicated that the acceptance of her claim should be expanded to include lumbar disc herniation.
OWCP declared a conflict in medical opinion, and referred appellant for an impartial
medical evaluation.
In a May 1, 2016 report, Dr. Donald W. Kucharzyk, a Board-certified orthopedic surgeon
and impartial medical examiner, opined that appellant suffered from preexisting degenerative joint
disease with degenerative facet arthropathy that was exacerbated by her August 21, 2012
employment injury. He concluded that appellant had completely recovered from these conditions
and could return to full duty.
On May 8, 2016 appellant stopped work and filed a separate claim for a low back injury.
She allegedly felt a pull in her lower back while loading mail from an all-purpose container (APC)
2

Docket No. 17-0025 (issued July 6, 2017).

3

Appellant previously injured her lower back in the performance of duty on June 21, 2015. Under File No.
xxxxxx420, OWCP accepted appellant’s traumatic injury claim (Form CA-1) for lumbar sprain. By decision dated
January 28, 2008, it terminated wage-loss compensation and medical benefits effective January 25, 2008. In a
decision dated June 24, 2008, OWCP denied modification of its January 28, 2008 decision terminating FECA benefits.
4

The November 28, 2012 decision also noted that the medical evidence of record included findings of mild
spondylitic changes and L5-S1 foraminal stenosis with mild disc dessication, but no formal diagnosis other than
lumbar sprain. OWCP advised appellant to submit additional medical evidence for further consideration of any
additional diagnoses.
5

OWCP based its decision to terminate compensation benefits on the October 14, 2013 report of Dr. Allan M.
Brecher, a Board-certified orthopedic surgeon and second opinion physician, who found that appellant had no residuals
of her lumbar sprain and was capable of resuming her regular duties as a mail processing clerk.

2

to a delivery bar code sorter machine. OWCP assigned that claim File No. xxxxxx688, and
accepted appellant’s traumatic injury claim for lumbar sprain.6
In a decision dated May 23, 2016, OWCP denied modification of its prior decision
terminating appellant’s compensation benefits under File No. xxxxxx047. It also denied further
merit review in a September 20, 2016 decision.
Appellant appealed to the Board, and by decision dated July 6, 2017, the Board found that
OWCP met its burden of proof to terminate appellant’s compensation benefits, effective
April 2, 2014. However, the Board further found that the case was not in posture for decision
regarding whether appellant met her burden of proof to establish any continuing employmentrelated disability or residuals on or after April 2, 2014. The Board determined that
Dr. Kucharzyk’s May 1, 2016 report was insufficient to resolve the conflict in medical opinion.
Consequently, the Board remanded the case for further medical development.7
Following the Board’s decision, OWCP provided an updated statement of accepted facts
(SOAF) to Dr. Kucharzyk and requested that he provide a supplemental report and clarify whether
appellant continued to suffer residuals of her accepted lumbar sprain. In an October 31, 2017
report, Dr. Kucharzyk provided a history of appellant’s lumbar sprain injury and related her
complaints of soreness, stiffness, and sharp pain in her lower back radiating into her bilateral lower
extremities. Examination of appellant’s lumbar spine showed normal alignment and tenderness
diffusely over the L4-5, S1 midline, both SI joints, paraspinal muscles, and the iliac crest. Straight
leg raise testing in the supine and sitting positions were negative. Dr. Kucharzyk opined that based
on his examination and review of the medical records, including the SOAF, appellant’s workrelated lumbar sprain had resolved. He explained that appellant’s facet arthropathy and SI joint
arthropathy were not caused by or related to her August 21, 2012 employment injury.
Dr. Kucharzyk noted that appellant could return to work.
By decision dated January 11, 2018, OWCP denied modification of the September 28,
2015 decision. It found that Dr. Kucharzyk’s opinion was sufficiently well rationalized to carry
the special weight of medical evidence.
On April 26, 2018 appellant requested reconsideration and submitted additional medical
evidence. She explained that she was sending information that a doctor had written for another
claim since he wrote on behalf of both cases. Appellant requested that OWCP accept her claim
for compensation and benefits. She further asserted that the second opinion physician evaluation
was not reliable and had cases of medical malpractice.
OWCP received a February 6, 2018 magnetic resonance imaging (MRI) scan of the lumbar
spine, which showed two mm posterior disc protrusion/herniation at the vertebral surface of the
thecal sac.

6

OWCP combined appellant’s two prior lumbar injuries with her May 8, 2016 injury, and designated the latter
claim as the master file.
7

Supra note 2.

3

In a February 20, 2018 letter, Dr. Montella referenced both claims under OWCP File Nos.
xxxxxx688 and xxxxxx047 and indicated that his letter was to clarify the causal relationship
between appellant’s work injuries, including lumbar disc herniation and lumbar strain. He noted
that the most recent MRI scan demonstrated that she still had ongoing lumbar disc herniation,
which was consistent with her ongoing work-related lumbar disc herniation that initially occurred
on August 21, 2012 and was aggravated on May 8, 2016. Dr. Montella opined that appellant
suffered from a prior work-related injury to her back, lumbosacral disc herniation, which occurred
on August 21, 2012 when she loaded mail out of the APC and because of the repetitive motions of
her job. He related that when she returned to limited duty on May 8, 2016 she felt a pull on her
back and sharp pain while unloading mail out of APCs. Dr. Montella explained that appellant
sustained a lumbar sprain and an aggravation of her preexisting work-related lumbar disc
herniation. He noted that ever since that incident, she had ongoing spasms, weakness, and sharp
and radiating pains in her lower back. Dr. Montella concluded that appellant had sustained a
lumbosacral disc herniation on August 21, 2012 with current ongoing residuals today and had an
aggravation of this disc herniation with the same mechanism of injury on May 8, 2016.
In an April 24, 2018 letter, Dr. Montella reiterated that appellant sustained a lumbar sprain
and aggravation of a work-related back injury, including lumbar disc herniation on May 8, 2016.
He indicated that his examination findings on May 13, 2016 showed an overall worsening of
objective findings. Dr. Montella described his examination findings and related that the excess
friction caused by the repetitive nature of appellant’s job, along with heavy lifting and muscular
tension, produced swelling and pressure to the nerve that led to limited range of motion and
decreased motor function at her L5-S1 level, which was consistent with an aggravation of the
previous disc herniation. He indicated that appellant was not medically capable of returning to
work because of ongoing pain and difficulty.
Appellant submitted a handwritten statement dated June 14, 2018, which noted her
disagreement with various aspects of Dr. Kucharzyk’s October 31, 2017 examination. She also
questioned his professional credentials. Appellant asserted that Dr. Kucharzyk’s examination
findings support that she continued to have residuals of her lumbar sprain condition.
In a July 23, 2018 statement, appellant requested that the condition of disc herniation be
added to her claim. She alleged that initial medical reports show that she was diagnosed with both
lumbar sprain and disc herniation from her 2012 employment injury.
By decision dated July 24, 2018, OWCP denied reconsideration of the merits of appellant’s
claim under 5 U.S.C. § 8128(a). It found that her reconsideration request neither raised substantive
legal questions, nor included new and relevant evidence sufficient to warrant further merit review
of appellant’s claim.

4

LEGAL PRECEDENT
Section 8128(a) of FECA8 vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.9
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.10
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.11 If OWCP chooses to grant reconsideration, it reopens and
reviews the case on its merits.12 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
Along with her most recent April 26, 2018 reconsideration request, appellant submitted
statements dated June 14 and July 23, 2018, which noted her disagreement with Dr. Kucharzyk’s
medical opinion. She also alleged that initial medical reports showed that she was diagnosed with
both lumbar sprain and disc herniation from her 2012 employment injury. The Board finds that in
her application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, and she did not advance a new and relevant legal argument not
previously considered. Consequently, she is not entitled to review of the merits of her claim based
on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).14
Appellant also submitted medical evidence not previously considered by OWCP. In letters
dated February 20 and April 24, 2018, Dr. Montella indicated that a recent MRI scan showed that
8

Supra note 1.

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
11

Id. at § 10.607(a).

12

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

13

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

14
20 C.F.R. § 10.606(b)(3)(i), (ii); T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583
(issued December 9, 2008).

5

appellant still had ongoing disc herniation, which initially occurred on August 21, 2012 and was
aggravated on May 8, 2016. He described his examination findings from a May 13, 2016
evaluation and noted that the findings showed an overall worsening of appellant’s condition.
Dr. Montella reported that since the May 8, 2016 incident she had ongoing spasms, weakness, and
sharp and radiating pains in her lower back. He concluded that appellant had sustained a
lumbosacral disc herniation on August 21, 2012 with current ongoing residuals. Dr. Montella
indicated that she was not medically capable of returning to work because of ongoing pain and
difficulty.
The Board finds that Dr. Montella’s letters did not include any discussion regarding
whether appellant continued to suffer residuals of her accepted lumbar sprain. Although he opined
that she remained disabled from work due to ongoing residuals, Dr. Montella attributed appellant’s
current conditions to a lumbosacral disc herniation, which was aggravated on May 8, 2016. The
Board notes that the submission of evidence that does not address the particular issue involved
does not constitute a basis for reopening a case.15 Likewise, the February 6, 2018 MRI scan, which
showed two mm posterior disc protrusion/herniation at the vertebral surface of the thecal sac, is
also irrelevant to the issue of ongoing residuals or disability of appellant’s accepted lumbar sprain
as it does not mention appellant’s lumbar sprain. None of the medical evidence submitted provided
objective findings to establish that appellant still had residuals or disability causally related to her
accepted lumbar sprain injury. Accordingly, appellant has not established a basis for further merit
review under 20 C.F.R. § 10.606(b)(3)(iii).
On appeal appellant again notes her disagreement with Dr. Kucharzyk and asserted that the
medical evidence of record established that she sustained a lumbar sprain and disc herniation as a
result of her employment. As explained above, however, the Board lacks jurisdiction to review
the merits of the claim. The only decision properly before the Board on this appeal is the July 24,
2018 nonmerit decision, which denied appellant’s request for further merit review.
As appellant’s request for reconsideration did not meet any of the three requirements
enumerated under 20 C.F.R. § 10.606(b)(3), the Board finds that OWCP properly denied her
request for reconsideration without reopening the case for review on the merits.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).

15

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

16

R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007).

6

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 8, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Athens, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Sara Kinkaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0686
Issued: November 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 9, 2019 appellant, through counsel, filed a timely appeal from an October 19,
2018 nonmerit decision and a December 19, 2018 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 these decisions.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 December 19, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and entitlement to schedule award compensation, effective December 16, 2016,
because she refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); and (2) whether
OWCP properly denied her request for a review of the written record in response to the denial of her
request for surgery, as it was untimely filed.
FACTUAL HISTORY
On August 26, 2011 appellant, then a 41-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she sustained a bilateral upper extremity condition due to
the repetitive handling of mail required by her job. OWCP accepted appellant’s claim for adhesive
capsulitis of the left shoulder, bilateral carpal tunnel syndrome, bilateral disorder of bursae and
tendons of the shoulder region, other bilateral affections of the shoulder region, other bilateral
synovitis and tenosynovitis, bilateral elbow and forearm sprains, bilateral mononeuritis multiplex,
and late effects of complications of medical/surgical care.4
Appellant stopped work on January 8, 2014 and, on the same date, she underwent OWCPauthorized revision of carpal tunnel release surgery.5 She periodically returned to light-duty work
and OWCP paid her appropriate wage-loss compensation for periods of work stoppage. Appellant
stopped work on July 22, 2014.
Appellant participated in a functional capacity evaluation (FCE) on November 17, 2014.
A report of the FCE indicated that the results suggested that appellant gave a self-limited effort
and that she demonstrated patterns of movement and physiological responses that were
inconsistent with maximal effort.6
OWCP referred appellant to Dr. Eric S. Furie, a Board-certified orthopedic surgeon, for a
second opinion examination and requested that he provide an opinion detailing appellant’s ability
to work.
In a July 28, 2015 report, Dr. Furie discussed appellant’s factual and medical history and
detailed the findings of his physical examination. He advised that appellant’s active diagnoses
were left trapezial strain, frozen left shoulder, and mild right lateral epicondylitis. Dr. Furie noted
that it appeared that appellant’s bilateral carpal tunnel syndrome had resolved and indicated that
she had good range of motions of her wrists and adequate strength. Appellant did not appear to
4

The case record contains an authorization for examination and/or treatment form (Form CA-16) which was signed
by an authorizing official on September 2, 2011.
5
OWCP authorized several other surgeries, including January 31, 2014 right shoulder subacrominal
decompression, labral debridement, and synovectomy, March 20, 2014 left shoulder subacrominal decompression and
repair of superior labrum anterior and posterior tear, April 30, 2014 revision of left carpal tunnel release surgery, and
April 21, 2016 left shoulder revision subacrominal decompression, biceps tenodesis, lysis of adhesions, and labral
debridement.
6
The report indicated that, during the FCE, appellant demonstrated the ability to frequently carry five pounds, but
it was noted this was a self-limited representation of her abilities and that her actual abilities were most likely greater
than those demonstrated.

2

have any sensory loss in her fingers and her elbows had excellent range of motion. Dr. Furie
advised that appellant exhibited tenderness at the lateral epicondyle of her right elbow which was
mild-to-moderate in nature. He reported that she had a good outcome from her right shoulder
surgery with good strength and excellent range of motion. Appellant had some decreased range
of motion of her left shoulder and some tenderness at the trapezius and anterior aspect. Dr. Furie
noted that her “subjective complaints outweigh her objective findings” and he that, other than the
lack of motivation evidenced by her FCE results, she should be able to participate in vocational
rehabilitation efforts. He maintained that the only difficulties appellant would have with
performing her date-of-injury job as a mail handler would be lifting over her shoulder level or
lifting 70 pounds with her left arm.7
In an August 25, 2015 work capacity evaluation form (OWCP-5c), Dr. Furie indicated that
appellant could work eight hours per day with restrictions of lifting, pushing, and pulling no more
than 30 pounds for up to eight hours per day. Appellant could not reach about her shoulder level
with her left arm.
In an October 13, 2015 report, Dr. Obinwanne Ugwonali, a Board-certified orthopedic
surgeon, indicated that he had reviewed the work restrictions from Dr. Furie’s July 28, 2015 report
and noted that “[a]ccording to the restrictions she was allowed up to 70 pounds.” He noted that,
based on his history with appellant, she was not able to lift more than 30 pounds continuously
without a signiﬁcant amount of pain. Dr. Ugwonali noted, “I therefore would disregard that
advice.”
In early November 2015 appellant began participating in an OWCP-sponsored vocational
rehabilitation program designed to return her to work.
On November 12, 2015 the employing establishment offered appellant a full-time position
as a modified mail handler. The position involved culling and prepping mail for up to eight hours
per day.8 The physical requirements included standing for up to eight hours per day and lifting
flat mail bundles weighing up to 30 pounds for up to eight hours per day. In a December 8, 2015
letter, the employing establishment advised OWCP that appellant had not accepted the offered
position.
Appellant’s vocational rehabilitation counselor determined that appellant was vocationally
and educationally capable of working in the modified mail handler position offered by the
employing establishment.
In a December 31, 2015 letter, OWCP advised appellant of its determination that the
modified mail handler position offered by the employing establishment was suitable based on the
evaluation of Dr. Furie. It informed her that her compensation would be terminated if she did not
accept the position or provide good cause for not doing so within 30 days of the date of the letter.

7

Dr. Furie discussed appellant’s ability to perform the requirements of her date-of-injury job as a mail handler,
such as standing for six hours per day and walking for six hours per day. He did not provide any indication that his
comments regarding these requirements represented the limits of appellant’s physical abilities.
8

These processes included cutting straps, removing rubber bands, and placing mail in containers.

3

In response, appellant submitted a January 5, 2016 report in which Dr. Ugwonali advised
that appellant had been capable of returning to work since October 31, 2015 and was capable of
lifting up to 30 pounds on a continuous basis. In a January 29, 2016 document, counsel indicated
that an attempt was being made to obtain additional new medical evidence from Dr. Ugwonali.
In a February 8, 2016 letter, OWCP advised appellant that her reasons for not accepting
the modified position offered by the employing establishment were unjustified. It advised her that
her compensation would be terminated if she did not accept the position within 15 days of the date
of the letter. Appellant did not accept the mail handler position within the allotted period.9
By decision dated December 15, 2016, OWCP terminated appellant’s compensation and
entitlement to schedule award compensation effective December 16, 2016 because she refused an
offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).
On December 6, 2017 appellant, through counsel requested reconsideration of the
December 15, 2016 decision. Counsel continued to argue that the opinion of Dr. Ugwonwali
showed that appellant could not work as a modified mail handler. By decision dated December 13,
2017, OWCP denied modification of the December 15, 2016 decision.
In June 2018 Dr. Ugwonwali submitted a request, on appellant’s behalf, for authorization
of a proposed revised ulnar nerve surgery at the right elbow. Appellant submitted June 11 and
July 9, 2018 reports from Dr. Ugwonali who described appellant’s right elbow symptoms and
opined that they were employment related.
Appellant also submitted a July 19, 2018 report from Dr. Ugwonali who indicated that it
was his opinion that appellant was not capable of performing the modified mail handler position
at the time it was offered in late-2015. He noted that appellant was able to lift 30 pounds at that
time, but that she was not capable of engaging in repetitive arm motion.
By decision dated August 10, 2018, OWCP denied appellant’s request for authorization of
surgery because she did not submit sufficient medical evidence to establish that the proposed right
elbow surgery was necessitated by an employment-related condition.
In a document dated September 10, 2018 and received by OWCP on September 11, 2018,
appellant requested a review of the written record with a representative of OWCP’s Branch of
Hearings and Review with respect to the August 10, 2018 decision. By decision dated October 19,
2018, OWCP denied appellant’s request for a hearing in the form of a review of the written record.
It found that her request was untimely as it was not filed within 30 days of the issuance of the
August 10, 2018 merit decision. OWCP indicated that, in its discretion, it had carefully considered
appellant’s request and had determined that the issue of the case could equally well be addressed
by requesting reconsideration and submitting additional medical evidence.

9

Appellant later submitted additional reports, dated February 23 and November 1, 2016 in which Dr. Ugwonali
advised that appellant was capable of lifting up to 30 pounds. On April 21, 2016 she underwent left shoulder revision
subacrominal decompression, biceps tenodesis, lysis of adhesions, and labral debridement. During the several-month
recovery period after this surgery, Dr. Ugwonali recommended more restrictive lifting restrictions ranging from no
lifting with the right arm to no lifting more than 20 pounds.

4

By decision dated December 19, 2018, OWCP denied modification of its December 13,
2017 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits.10 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee is not entitled to compensation.11 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable.12 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment.13
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured, has the burden of
showing that such refusal or failure to work was reasonable or justified.14 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.15
The determination of whether an employee is physically capable of performing a modified
assignment is a medical question that must be resolved by medical evidence.16 OWCP procedures
provide that acceptable reasons for refusing an offered position include withdrawal of the offer or
medical evidence of inability to do the work or travel to the job.17 In a suitable work determination,
OWCP must consider preexisting and subsequently acquired medical conditions in evaluating an
employee’s work capacity.18

10
See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005).
11

5 U.S.C. § 8106(c)(2).

12

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

13

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

14

20 C.F.R. § 10.517(a).

15

Id. at § 10.516.

16

M.A., Docket No. 18-1671 (issued June 13, 2019); Gayle Harris, 52 ECAB 319 (2001).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5a
(June 2013); see E.B., Docket No. 13-0319 (issued May 14, 2013).
18

See G.R., Docket No. 16-0455 (issued December 13, 2016); Richard P. Cortes, 56 ECAB 200 (2004).

5

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
entitlement to schedule award compensation, effective December 16, 2016, because she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
The evidence of record demonstrates that appellant is capable of performing the modified
mail handler position offered by the employing establishment and determined to be suitable by
OWCP in December 2015. The position involved culling and prepping mail for up to eight hours
per day. The physical requirements included standing for up to eight hours per day and lifting flat
mail bundles weighing up to 30 pounds for up to eight hours per day. The record does not reveal
that the mail handler position was temporary in nature.19
Appellant’s vocational rehabilitation counselor determined that appellant was vocationally
and educationally capable of working in the modified mail handler position offered by the
employing establishment and OWCP properly relied on the opinion of appellant’s counselor in
finding that she was vocationally and educationally capable of performing the offered position.20
In determining that appellant was physically capable of performing the modified mail
handler position, OWCP properly relied on the opinion of Dr. Furie, OWCP’s referral physician.
In his June 28 and August 25, 2015 reports, Dr. Furie comprehensively discussed appellant’s
medical condition and provided an opinion that appellant could work eight hours per day with
restrictions of lifting, pushing, and pulling no more than 30 pounds for up to eight hours per day.
The Board notes that these work restrictions would allow appellant to work in the modified mail
handler position offered by the employing establishment in late-2015. Dr. Furie noted that
appellant could not reach about her shoulder level with her left arm, but there is no indication that
the modified mail handler position required such activity.
The Board notes that, therefore, OWCP has established that the modified mail handler
position offered by the employing establishment was suitable. As noted above, once OWCP has
established that a particular position is suitable, an employee who refuses or neglects to work after
suitable work has been offered has the burden of showing that such refusal to work was justified.
The Board has reviewed the evidence and argument submitted by appellant in support of
her refusal of the modified mail handler position and notes that it is insufficient to justify her
refusal of the position. On appeal counsel argues that the results of the November 17, 2014 FCE
and an October 13, 2015 report of Dr. Ugwonali established that appellant could not perform the
duties of the modified mail handler position offered by the employing establishment. However,
the Board notes that, in his October 13, 2015 report, Dr. Ugwonali actually indicated that appellant
could frequently lift up to 30 pounds and this assessment of appellant’s lifting ability is in
accordance with the requirements of the modified mail handler position offered by the employing
establishment. Moreover, the Board notes that the report of the November 17, 2014 FCE
19

If the employing establishment offers a claimant a temporary light-duty assignment and the claimant held a
permanent job at the time of injury, the penalty language of section 8106(c) cannot be applied. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4c(5), 9 (June 2013).
20
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4
(June 2013).

6

specifically provided that appellant’s activities during the FCE were self-limited and that her actual
abilities were likely far greater.21
The Board finds that OWCP complied with its procedural requirements prior to terminating
appellant’s wage-loss compensation and entitlement to schedule award compensation, including
providing appellant with an opportunity to accept the position offered by the employing
establishment after informing her that her reasons for initially refusing the position were not
valid.22
For these reasons, OWCP properly terminated appellant’s wage-loss compensation and
entitlement to schedule award compensation, effective December 16, 2016, because she refused
an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2).23
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a
representative of the Secretary.”24 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made within the requisite 30 days.25 The date of filing is fixed by postmark or other
carrier’s date marking.26

21

In addition, the report of the November 17, 2014 FCE was prepared by a physical therapist and does not constitute
probative medical evidence as a physical therapist is not considered to be a physician within the meaning of FECA.
See M.M., Docket No. 17-1641 (issued February 15, 2018). Appellant also submitted a July 19, 2018 report from
Dr. Ugwonali who indicated that it was his opinion that appellant was not capable of performing the modified mail
handler position at the time it was offered in late-2015. The Board notes, however, that this report was submitted well
after OWCP issued its February 8, 2016 letter advising appellant that her reasons for not accepting the offered position
were unjustified and that her compensation would be terminated if she did not accept the position within 15 days of
the date of the letter. Similarly, the fact that appellant had lifting limitations due to April 2016 right shoulder surgery
would not invalidate OWCP’s termination action.
22
See generally C.V., Docket No. 14-1572 (issued June 19, 2015); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d
on recon., 43 ECAB 818 (1992).
23

The case record contains a Form CA-16 which was signed by an authorizing official on September 2, 2011.A
properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The 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 Form CA-16 is limited to 60 days from the date of issuance, unless
terminated earlier by OWCP. 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737 (issued November 2, 2018); N.M.,
Docket No. 17-1655 (issued January 24, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
24

5 U.S.C. § 8124(b)(1).

25

C.K., Docket No. 18-0607 (issued October 18, 2018); Ella M. Garner, 36 ECAB 238, 241-42 (1984).

26

See 20 C.F.R. § 10.616(a).

7

The Board has held that OWCP, in its broad discretionary authority in the administration of
FECA, has the power to hold hearings in certain circumstances where no legal provision was made
for such hearings and that OWCP must exercise this discretionary authority in deciding whether to
grant a hearing.27 Specifically, the Board has held that OWCP has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing,28 when the request is made after the
30-day period for requesting a hearing,29 when the request is for a second hearing on the same issue,30
and when the request is made after a reconsideration request was previously submitted.31 In these
instances, OWCP will determine whether a discretionary hearing should be granted or, if not, will
so advise the claimant with reasons.32
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly improperly denied her request for a review of the
written record, in response to the denial of her request for surgery, as it was untimely filed.
In this case, appellant’s letter requesting a hearing from OWCP’s August 10, 2018 decision
denying authorization for surgery was dated September 10, 2018. The record does not contain the
envelope in which the letter was sent, which would include the postmark. OWCP’s Branch of
Hearings and Review is required to retain an envelope in which a request for a hearing is made so
as to determine the timeliness of the request for a hearing.33 Because appellant submitted a request
for a hearing which was dated September 10, 2018 and the record contains no envelope with a
postmark, her request is deemed to have been made on September 10, 2018.34 The Board has held
that, in computing a time period, the date of the event from which the designated period of time
begins to run shall not be included while the last day of the period so computed shall be included
unless it is a Saturday, a Sunday, or a federal holiday.35 The 30-day time period for determining
the timeliness of appellant’s hearing request began on August 10, 2018 and ended on September 9,
2018, a Sunday. The first regular business day after September 9, 2018 was Monday,
27

D.T., Docket No. 18-0871 (issued February 11, 2019); Henry Moreno, 39 ECAB 475, 482 (1988).

28

T.R., Docket No. 18-1272 (issued February 15, 2019); Rudolph Bermann, 26 ECAB 354, 360 (1975).

29

See C.K., supra note 25; Herbert C. Holley, 33 ECAB 140, 142 (1981).

30

See T.R., supra note 28; Johnny S. Henderson, 34 ECAB 216, 219 (1982).

31
R.H., Docket No. 07-1658 (issued December 17, 2007); S.J., Docket No. 07-1037 (issued September 12, 2007).
Section 10.616(a) of OWCP’s regulations provides that the claimant seeking a hearing must not have previously
submitted a reconsideration request (whether or not it was granted) on the same decision. 20 C.F.R. § 10.616(a).
32

See C.K., supra note 25.

33

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.3a (October 2011). OWCP procedures further provide that the request is timely if it was mailed (as determined
by the postmark or other carrier’s date marking) within 30 days of the date of the district office’s decision. If the
postmark is not legible, the request will be deemed timely unless OWCP has kept evidence of date of delivery on the
record reflecting that the request is untimely. Id. at Chapter 2.1601.4a.
34

See id.

35

B.W., Docket No. 16-1860, Order Remanding Case (issued May 4, 2017).

8

September 10, 2018. As appellant’s request for a review of the written record was made on
September 10, 2018, her request was timely.36 Consequently, the case must be remanded for
OWCP to provide appellant an appropriate hearing under section 8124 of FECA. Upon return of
the case record, OWCP should schedule an appropriate hearing with a representative of OWCP’s
Branch of Hearings and Review. After such further development it deems necessary, OWCP shall
issue a de novo decision regarding appellant’s request for authorization of surgery.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
entitlement to schedule award compensation, effective December 16, 2016, because she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP
improperly denied her request for a review of the written record, in response to the denial of her
request for surgery, as it was untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed. The October 19, 2018 decision of OWCP is
reversed, and the case is remanded for further development consistent with this decision of the
Board.
Issued: November 13, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

36

See id.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHAL SERVICE, El Segundo, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)
)

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

Docket No. 14-1306
Issued: October 16, 2014

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 May 20, 2014 appellant filed a timely appeal from a May 12, 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 has more than a five percent impairment of his right upper
extremity, for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 30, 2012 appellant, then a 59-year-old supervisory federal air marshal, filed a
traumatic injury claim (Form CA-1) alleging that on January 26, 2012 he injured his right arm
while stowing a bag of equipment in an overhead bin. He stated that he felt an extremely sharp
pain in his right arm muscle. OWCP accepted his claim for an unspecified sprain of the shoulder
and arm on March 28, 2012. On March 7, 2013 it expanded his claim to accept a right rotator
cuff tear.
A Form CA-16, authorization for examination and/or treatment, was issued by the
employing establishment on January 30, 2012.2
In a report dated April 24, 2012, Dr. Bradley Greenbaum, a Board-certified orthopedic
surgeon, assessed appellant with right rotator cuff syndrome, a partial articular cuff tear and right
shoulder pain. On examination of appellant’s right shoulder, he found tenderness to palpation
over the anterior shoulder and rotator cuff area. Dr. Greenbaum noted that appellant had lateral
deltoid pain and weakness resisting external rotation, with positive impingement testing. The
right shoulder had full passive range of motion, but too much pain to demonstrate a full active
range of motion. Dr. Greenbaum recommended a surgical procedure of arthroscopic rotator cuff
repair with subacromial decompression.
Appellant underwent a magnetic resonance imaging (MRI) scan on June 28, 2012, which
demonstrated findings consistent with a subtle anterior superior labral tear.
Appellant underwent surgery on his right shoulder on July 2, 2012. In an operative report
from that date, Dr. Greenbaum provided postoperative diagnoses of a type IV superior labral tear
from anterior to posterior, right rotator cuff syndrome, a partial articular tear of less than 50
percent and right shoulder pain. He performed procedures of an arthroscopic biceps tenotomy,
an extensive arthroscopic glenohumeral joint debridement and arthroscopic subacromial
decompression.
In a postoperative report dated July 9, 2012, Dr. Greenbaum noted that appellant had
already begun to discontinue use of his sling and participated in a formal postoperative physical
therapy program.
On August 6, 2012 Dr. Greenbaum noted that appellant still had diffuse shoulder pain,
loss of motion and weakness around his right shoulder and arm. On examination of appellant’s
right shoulder, he noted that appellant had improved passive range of motion, but that he still had
pain throughout testing, no instability, residual diffuse tenderness and lateral deltoid pain with
provocative cuff testing and improving strength.
2

When the employing establishment properly executes a Form CA-16 which authorizes medical treatment as a
result of an employee’s claim for an employment-related injury, the Form CA-16 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 Form CA-16 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, 610 (2003).

2

In a report dated October 29, 2012, Dr. Greenbaum stated that appellant’s passive range
of motion of the right shoulder had improved tremendously, but that his active range of motion
was lacking secondary to some pain and weakness. On examination of the right shoulder, he
found near full passive range of motion, except for internal rotation, extension and adduction,
which was L-3/4 on the right versus T10/11 on the left. Rotator cuff testing demonstrated 4+/5
abduction, 4-4+/5 external rotation and 5/5 internal rotation. Dr. Greenbaum recommended
work restrictions of driving no more than 5 to 10 miles to and from work; no heavy lifting,
pushing, pulling, or carrying of over 10 pounds; and no repetitive activities at or above the
shoulder level. Additionally, he stated that appellant would never be able to return to his
preinjury duties as an air marshal because he would not “regain the ability to be placed into a
combative situation or altercation with someone in flight posing a risk to the lives of those on
board or the country in general.”
On March 12, 2013 OWCP requested a second opinion physician to provide additional
evidence on the nature of appellant’s condition, the extent of his disability, appropriate treatment
and an impairment rating with a detailed description of objective findings and application of the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (hereinafter, A.M.A., Guides).
In a report dated July 17, 2013, Dr. Thomas G. Grace, a Board-certified orthopedic
surgeon, stated that appellant had reached maximum medical improvement on January 2, 2013.
He stated that he applied the A.M.A., Guides and explained that because appellant had
discrepancies of active and passive range of motion greater than 10 degrees, it was inappropriate
to utilize the A.M.A., Guides’ range of motion methodology. Therefore, Dr. Grace stated that
the appropriate manner in which to calculate appellant’s impairment rating was found in Table
15-5 on page 404 under “labral lesions including SLAP tears.” He noted that this was an
impairment rating ranging between one percent and five percent of the upper extremity with a
default impairment rating of three. Dr. Grace applied a grade 1 modifier for appellant’s physical
examination and a grade 2 modifier for clinical studies. He calculated the net modifier at +1,
giving appellant a final impairment rating of four percent of the right upper extremity. Dr. Grace
noted that, because appellant’s CDX was one and the grade modifier for functional history was
two levels higher, it should not be utilized to modify appellant’s diagnosis-based impairment.
He also provided medical restrictions for appellant of no more than 4.5 hours of intermittent
operation of a motor vehicle both to and from and at work per day; no more than 1 hour of
pushing, pulling, or lifting intermittently per workday and no more than 15 pounds of weight or
force; no overhead lifting or activities involving the right shoulder; and no climbing. Dr. Grace
stated that appellant was capable of working an eight-hour workday with these restrictions.
On July 30, 2013 appellant requested a schedule award.
A district medical adviser (DMA) reviewed Dr. Grace’s impairment rating on
August 9, 2013. He found that appellant’s final impairment rating for the right upper extremity
was five percent. The DMA disagreed with Dr. Grace’s grade modifiers for functional history,
physical examination and clinical studies, finding that the final net adjustment was two and the
final grade was E. He found that the most impairing diagnosis was the labral tear of the right
shoulder rather than a labral lesion. The DMA noted that appellant’s shoulder range of motion
was equal to a 15 percent upper extremity impairment, which according to Table 15-35 on page

3

477 of the A.M.A., Guides was equal to a grade modifier of two. He explained that, based on
appellant’s significant loss of shoulder motion, he would likely need to perform modification to
achieve self-care, such that his functional history modifier was two. The DMA noted that
Dr. Grace had not documented the need to use assistance to perform self-care by use of the
QuickDASH form. He found that appellant’s physical examination grade modifier was two.
Based on appellant’s MRI scan and findings on surgery, appellant’s clinical studies modifier was
four. Applying these modifiers to appellant’s diagnosis class, he arrived at a final right upper
extremity impairment of five percent. The DMA noted that the date of maximum medical
improvement was July 17, 2013, the date of the examination by Dr. Grace.
By letter dated October 2, 2013, OWCP informed appellant that a schedule award was
payable consecutively but not concurrently with an award for wage loss for the same injury. It
asked him to respond within 30 days to clarify whether he desired completion of the processing
of his schedule award or continued wage-loss compensation.
By letter dated October 8, 2013, appellant informed OWCP that he would like to suspend
his claim for a schedule award and continue his compensation for wage loss on the periodic rolls.
In a record of a telephone conversation dated April 16, 2014, appellant informed OWCP
that he had been notified that he was medically retired. He elected benefits from the Office of
Personnel Management over FECA benefits on April 21, 2014.
Appellant again requested a schedule award on April 25, 2014.
By decision dated May 12, 2014, OWCP granted appellant a schedule award for five
percent impairment of his right upper extremity. It noted that it had afforded the weight of the
medical evidence regarding appellant’s percentage of impairment to the DMA rather than
Dr. Grace, as the DMA correctly applied the A.M.A., Guides to the examination findings.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
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 for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.5 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.6 For decisions issued after

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

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

6

Id.

4

May 1, 2009, the sixth edition is used to calculate schedule awards.7 It is well established that, in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.8
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).9 Under the sixth edition, the evaluator 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).10 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
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 the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted that appellant sustained a sprain of the right shoulder and arm and a
right rotator cuff tear as a result of his January 26, 2012 employment injury. Appellant’s
attending physician, Dr. Greenbaum, did not provide an impairment rating. OWCP referred the
medical evidence to Dr. Grace, a second opinion physician, for determination of appellant’s
percentage of impairment.
In a report dated July 17, 2013, Dr. Grace stated that he had applied the A.M.A., Guides
and explained that, because appellant had discrepancies of active and passive range of motion
greater than 10 degrees, it was inappropriate to utilize the A.M.A., Guides’ range of motion
methodology. Therefore, he stated that the appropriate manner in which to calculate appellant’s
impairment rating was found in Table 15-5 on page 404 under “labral lesions including SLAP
tears.” Dr. Grace noted that this was an impairment rating ranging between one percent and five
percent of the upper extremity with a default impairment rating of three. He applied a grade 1
7

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

8

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.a.3 (January 2010). This portion of OWCP’s procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
9

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
10

Id. at 383-419.

11

Id. at 411.

12

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

5

modifier for appellant’s physical examination (GMPE) and a grade 2 modifier for clinical studies
(GMCS). Dr. Grace calculated the net modifier at +1, giving appellant a final impairment rating
of four percent of the right upper extremity. He noted that, because appellant’s CDX was 1 and
the grade modifier for functional history was two levels higher, it should not be utilized to
modify appellant’s diagnosis-based impairment.
A DMA reviewed Dr. Grace’s impairment rating on August 9, 2013. He found that
appellant’s final impairment rating for the right upper extremity was five percent. The DMA
disagreed with Dr. Grace’s grade modifiers for functional history, physical examination and
clinical studies, finding that the final net adjustment was two and the final grade was E. He
found that the most impairing diagnosis was the labral tear of the right shoulder rather than a
labral lesion. The DMA noted that appellant’s shoulder range of motion was equal to a 15
percent upper extremity impairment, which according to Table 15-35 on page 477 of the A.M.A.,
Guides was equal to a grade modifier of two. He explained that, based on appellant’s significant
loss of shoulder motion, he would likely need to perform modification to achieve self-care, such
that his functional history modifier was two. The DMA noted that Dr. Grace had not
documented the need to use assistance to perform self-care by use of the QuickDASH form. He
found that appellant’s physical examination grade modifier was two. Based on appellant’s MRI
scan and findings on surgery, appellant’s clinical studies modifier was four. Applying these
modifiers to appellant’s diagnosis class, he arrived at a final right upper extremity impairment of
five percent.
The Board finds that the DMA’s rating properly utilized the A.M.A., Guides and
represents the weight of medical opinion. The DMA explained the differences between his
impairment rating calculations with citations to the A.M.A., Guides for his diagnosis-based
estimate and adjustments based on the functional history, clinical studies and physical
examination adjustments, and noted the areas in which Dr. Grace’s report did not comport with
the A.M.A., Guides. When an attending physician’s report does not comport with the A.M.A.,
Guides, OWCP may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the
findings of the attending physician.13 Hence, OWCP properly relied on the DMA’s final upper
right extremity impairment rating of five percent over Dr. Grace’s impairment rating of four
percent. There was no other medical evidence of record to support a greater impairment rating
than five percent.
Therefore, the Board finds that appellant has no more than a five percent impairment of
his right upper extremity, for which he has received a schedule award.
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.

13

Linda Beale, 57 ECAB 429 (2006). Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and
Evaluating Medical Evidence, Chapter 2.810(8) (September 2010)

6

CONCLUSION
The Board finds that appellant has no more than a five percent impairment of his right
upper extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 16, 2014
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

7


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

)
)
)
)
)
)
)
)

Docket No. 16-0250
Issued: May 2, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On November 29, 2015 appellant, through her representative, filed a timely application
for review of an October 28, 2015 decision of the Office of Workers’ Compensation Programs
(OWCP), which denied her request for reconsideration without conducting a merit review. In its
October 28, 2015 decision, OWCP found that appellant’s reconsideration request, received on
March 17, 2015, was insufficient to warrant a merit review of the claim.
The Board notes that most recent merit decision in this case is OWCP’s February 5, 2015
decision. On March 17, 2015 OWCP received appellant’s reconsideration request. It did not
issue a decision on appellant’s request for reconsideration until October 28, 2015, over seven
months after the request was made. The Board finds that appellant is entitled to a merit review
of her case. When a reconsideration decision is delayed beyond 90 days, and the delay
jeopardizes the claimant’s right to review of the merits of the case by the Board, OWCP should
conduct a merit review.1 Appellant had 180 days, or until August 4, 2015, to appeal OWCP’s
February 5, 2015 merit decision to the Board.2 The Board finds that OWCP’s delay of over
seven months in issuing a decision on appellant’s reconsideration request effectively precluded
1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7.a (October 2011).

2

See 20 C.F.R. § 501.3(e).

appellant from appealing OWCP’s most recent merit decision on her claim to the Board. Had
OWCP acted upon appellant’s request within 90 days, appellant would have been able to seek
review of OWCP’s February 5, 2015 merit decision before the Board.3
Accordingly, the Board will set aside OWCP’s October 28, 2015 decision and remand the
case for OWCP to issue an appropriate decision on the merits of the claim in order to preserve
appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the October 28, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order.
Issued: May 2, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

See Geoma R. Munn, 50 ECAB 242 (1999); Joseph L. Cabral, 44 ECAB 152 (1992); Debra E. Stoler, 43 ECAB
561 (1992); Carlos Tola, 42 ECAB 337 (1991) (remanding cases for merit review where OWCP delayed issuance of
reconsideration decisions).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.V., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS -- MIRAMAR, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-451
Issued: October 6, 2011

Case Submitted on the Record

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

JURISDICTION
On December 20, 2010 appellant filed a timely appeal from a December 7, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule
award claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than 39 percent impairment of the left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
This case is before the Board for the third time. By decision dated September 7, 1995,
the Board reversed a February 15, 1994 OWCP decision which found that the position of
construction estimator fairly and reasonably represented appellant’s wage-earning capacity
1

5 U.S.C. §§ 8101-8193.

effective February 6, 1994.2 By decision dated September 6, 2001, the Board found that OWCP
had not met its burden of proof in reducing appellant’s monetary compensation to zero effective
May 24, 1998 on the grounds that he failed to demonstrate a good faith effort in the vocational
rehabilitation process. Accordingly, the Board reversed OWCP’s decisions of July 19 and
August 17, 1999.3 The facts as set forth in the Board’s prior decisions are hereby incorporated
by reference. The relevant facts are set forth below.
The record reflects that appellant, then a 51-year-old mechanical work inspector, injured
his back while in the performance of duties on October 19, 1988 and stopped work the following
day. OWCP accepted the claim for a back strain, herniated disc at L4-5, L5-S1, and authorized
an April 1989 discectomy. All appropriate benefits were paid.
In a June 25, 2003 report, Dr. Stephen A. Smith, a Board-certified orthopedic surgeon,
noted that appellant had persistent problems with weakness of his left extensor hallucis longus
with diminished sensation in the left L5 distribution. The May 27, 2003 magnetic resonance
imaging (MRI) scan of the lumbar spine demonstrated spinal stenosis and foraminal stenosis
with degenerative disc disease. Dr. Smith opined that appellant had significant problems as a
result of his lumbar spinal stenosis and associated lumbar radiculopathy.
In an October 27, 2003 report, Dr. Mahendra Nath, a Board-certified physiatrist and
OWCP referral physician, noted that appellant’s continued complaints of pain in the lumbar
spine with radiation to the left lower extremity with residual left foot drop. He diagnosed left
lumbar radiculopathy, left foot drop, low back pain, lumbar disc disease and degenerative
arthritis right knee. Examination findings revealed atrophy in the left lower leg with associated
left foot drop. Weakness in the left foot plantar and dorsiflexion and of the extensor hallucis
longus was exhibited.
On December 1, 2003 an OWCP medical adviser reviewed appellant’s medical record for
purposes of calculating a schedule award. Based on the medical record, he diagnosed status post
percutaneous discectomy L4 and L5-S1, April 4, 1989 and chronic L5 radiculopathy. The
medical adviser opined that appellant reached maximum medical improvement on
October 27, 2003. Based on Dr. Nath’s medical findings and the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides), the medical adviser opined that appellant had 39 percent impairment of the left leg
based on residual muscle weakness and pain which interfered with function. He further opined
that impairment to the left leg was the sole impairment due to the October 19, 1988 work injury.
By decision dated December 12, 2003, OWCP awarded appellant 39 percent permanent
impairment for loss of use of the left lower extremity. The award ran for 112.32 weeks during
the period November 30, 2003 through January 24, 2006.
In a June 26, 2006 report, Dr. Smith diagnosed degenerative disc disease of the
lumbosacral spine with severe spinal stenosis at L4-5 and moderate stenosis L1-2 and L3-4 with
2

Docket No. 94-1219 (issued September 7, 1995).

3

Docket No. 00-101 (issued September 6, 2001).

2

left L5-S1 radiculopathy; chronic compression fracture T11 and T12; degenerative disc disease
and osteoarthritis of thoracic and lumbosacral spine with bilateral L3-S1 facet joint syndrome;
severe osteoarthritis of both knees, right greater than left; lateral epicondylitis of both elbows,
left greater than right.
On August 25, 2009 appellant requested a schedule award for loss of use of his arms and
a mid-back condition. He subsequently requested a schedule award for loss of use of his left leg.
In a September 3, 2009 letter, OWCP informed appellant that it had not accepted any arm, left
leg or mid-back condition. Thus, it could not process a schedule award or authorize medical
treatment for a nonaccepted condition.4
On September 2, 2009 appellant filed a claim for an additional schedule award.5 On
October 8, 2009 OWCP advised her of the medical evidence necessary to justify an additional
schedule award. Reports and diagnostic testing of record pertained to appellant’s medical care of
his lumbar spine as well as multiple other medical problems. A March 10, 2009 MRI scan of the
lumbar spine demonstrated degenerative joint/degenerative disc disease with lumbar spinal
stenosis L1-2, L2-3, L3-4, L4-5 and L5-S1.
In a March 29, 2010 report, Dr. Jeryl J. Wiens, a Board-certified physiatrist, reviewed the
medical record and set forth examination findings.6 He reported that appellant ambulated
without assistance in a relatively symmetric manner. There was no obvious foot drop on
ambulation, but some give way weakness was noted in the quads. Lumbar spine range of motion
was about 50 percent of normal with pain on palpation throughout lumbosacral region and with
no obvious neurologic deficit in either lower extremity. Dr. Wiens noted a discrepancy between
subjective and objective diagnostic impression. A diagnostic impression of L4-5 severe central
stenosis, L5-S1 moderate central stenosis without evidence of upper motor neuron signs or
radiculopathy was provided. Dr. Wiens opined that appellant reached maximum medical
improvement one year following surgery or April 1990. Under the fifth edition of the A.M.A.,
Guides, he opined that appellant had a diagnostic-related-estimates lumbar category III
impairment. Dr. Wiens did not provide an assessment of the percentage impairment of
appellant’s lower extremities.
On May 1, 2010 OWCP’s medical adviser reviewed appellant’s case file for purposes of
determining schedule award for the left leg. He noted that Dr. Wiens calculated his impairment
rating based on lumbar Category III DRE, which provides impairment for mechanical low back
pain, radiculopathy documented spinal pathology on diagnostic studies, including MRI scan.
The medical adviser stated, however, that schedule awards were only payable for loss of
use/impairments in the lower extremities and not for spinal pain. Based on Dr. Wiens’
examination findings and the sixth edition of the A.M.A., Guides, the medical adviser opined
4

In previous letters, OWCP informed appellant that it had not accepted any conditions involving the arms, mid
back or left leg and that, thus, it could not authorize him to see a physician for conditions which were not accepted.
5

In a September 23, 2009 letter, the employing establishment expressed its concerns over appellant’s claim for
compensation.
6

On March 18, 2010 OWCP authorized a change of treating physicians to Dr. Wiens, a Board-certified
physiatrist.

3

that appellant had 10 percent left leg impairment. This was based on six percent impairment of
the left leg for residual problems with severe pain/impaired sensation form left L5 lumbar
radiculopathy and four percent impairment of left leg for residual problems with severe
pain/impaired sensation from left S1 lumbar radiculopathy. The medical adviser further opined
that appellant’s condition had markedly improved since Dr. Nath’s October 27, 2003 evaluation
as Dr. Wiens did not document any weakness in the left leg in his March 29, 2010 evaluation.
Thus, he concluded there would be no increase in appellant’s prior schedule award of 39 percent
left leg impairment.
By decision dated July 22, 2010, OWCP denied appellant’s claim for an additional
schedule award.
On July 26, 2010 appellant requested a review of the written record before an OWCP
hearing representative. In July 26 and October 25, 2010 letters, he provided reasons why he felt
he should receive an additional schedule award. Appellant indicated that he had never been
properly compensated for his legs, arms and back pain, which he claimed was due to the
October 19, 1988 work injury. Duplicative copies of medical evidence and diagnostic testing
previously of record was submitted.7
By decision dated December 7, 2010, an OWCP hearing representative affirmed the prior
decision.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations8 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. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.9 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.11

7

Comments from the employing establishment as well as appellant’s response were also received. However,
none of these comments were probative to the issue of permanent impairment of appellant’s left lower extremity.
8

20 C.F.R. § 10.404.

9

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

10

Ronald R. Kraynak, 53 ECAB 130 (2001).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

4

The sixth edition requires identifying 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).12 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to its medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides. The medical adviser is to provide rationale
for the percentage of impairment specified.14
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain, herniated discs L4-5 and L5-S1 and
spinal surgery of April 4, 1989. Appellant was previously awarded compensation for 39 percent
impairment of the left lower extremity. He subsequently claimed an increased schedule award.
Appellant’s physician, Dr. Wiens, evaluated appellant’s condition in a March 29, 2010 report,
noting examination findings and discussion of the applicable DRE lumbar category under the
fifth edition of the AM.A., Guides. Under FECA, a schedule award is not payable for the loss or
loss of use of any member of the body or function that is not specifically enumerated in section
8107 of FECA or its implementing regulations.15 The spine, or back, is specifically excluded
from coverage of the schedule award provisions of FECA.16 Although a schedule award may not
be issued for an impairment to the back under FECA, such an award may be payable for
permanent impairment of the lower extremities that is due to an employment-related back
condition.17 Dr. Wiens did not provide a recommendation with regard to appellant’s permanent
impairment under the sixth edition of the A.M.A., Guides. It is well established that, when the
examining physician does not provide an estimate of impairment conforming to the proper
edition of the A.M.A., Guides, OWCP may rely on the impairment rating provided by the
medical adviser.18
The medical adviser reviewed Dr. Wiens’ March 29, 2010 report and concluded that
appellant had 10 percent permanent impairment of the left leg based on the sixth edition of the
A.M.A., Guides. He stated that appellant had six percent impairment for residual problems with
severe pain/impaired sensation from left L5 lumbar radiculopathy and four percent impairment
for residual problems with severe pain/impaired sensation from left S1 lumbar radiculopathy.
12

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

13

Id. at 521.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010).
15

See Leroy M. Terska, 53 ECAB 247 (2001).

16

5 U.S.C. § 8101(19); see also Vanessa Young, 55 ECAB 575 (2004).

17

Vanessa Young, supra note 16.

18

See J.Q., 59 ECAB 366 (2008).

5

The medical adviser did not, however, explain how he applied the sixth edition of the A.M.A.,
Guides in reaching his determination. The A.M.A., Guides noted that a clear, accurate and
complete report must be provided to support a rating of permanent impairment.19 The sixth
edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal nerve
injuries as extremity impairment. Recognizing that certain jurisdictions, including FECA,
mandate ratings for extremities and preclude ratings for the spine, the A.M.A., Guides has
offered an approach to rating spinal nerve impairments consistent with sixth edition
methodology.20 OWCP has adopted this approach for rating impairment to the upper or lower
extremities caused by a spinal injury.21 The Board will remand the case for further appropriate
development and proper application of the A.M.A., Guides regarding the extent of permanent
impairment to appellant’s lower extremities.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

A.M.A., Guides 28.

20

Rating Spinal Nerve Extremity Impairment using the sixth edition, the A.M.A., Guides Newsletter (A.M.A.,
Guides Chicago, IL), July/August 2009.
21

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) (Exhibit
1, 4). G.N., Docket No. 10-850 (issued November 12, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion of the Board.
Issued: October 6, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 07-2219
Issued: February 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 21, 2006, denying his claim that his
bilateral plantar fasciitis was employment related, and a June 4, 2007 decision denying his
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that he sustained an injury in the
performance of duty causally related to factors of his federal employment; and (2) whether the
Office properly denied his request for merit review of his claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On September 20, 2006 appellant, then a 44-year-old letter carrier, filed an occupational
disease claim alleging that his heel pain was employment related. He first became aware of his
condition in July 2005 and first realized that his injury was caused or aggravated by his

employment in July 2006. In an attached statement, appellant attributed his condition to long
periods of standing and walking for up to 10 hours per day.
In support of his claim, appellant submitted unsigned reports dated August 8 to
September 13, 2006 which diagnosed left plantar fasciitis. The doctor of record is noted as Scott
Smith, identified as a podiatrist on the September 13, 2006 report.
In a letter dated October 5, 2006, the Office advised appellant that additional evidence
was needed in support of his claim. He was instructed to provide medical evidence, including a
comprehensive medical report from a treating physician containing a diagnosis, results of
examinations and tests, the treatment provided and the doctor’s opinion on the cause of his
condition. No additional evidence was forthcoming.
By decision dated December 21, 2006, the Office denied appellant’s claim on the
grounds that he did not submit any medical evidence establishing that his left plantar fasciitis
was caused or aggravated by his federal employment.
On February 25, 2007 appellant requested reconsideration and indicated that he submitted
a report by Dr. Peter G. Gerbino, a treating Board-certified orthopedic surgeon, in support of his
request.1
By decision dated June 4, 2007, the Office denied further merit review. It found that,
while appellant referenced a report by Dr. Gerbino, it was not submitted with his request.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.5
1

The Board notes that the report identified by appellant was not included with his request for reconsideration.

2

The Board notes that, subsequent to the June 4, 2007 decision, appellant submitted Dr. Gerbino’s February 1,
2007 report with his appeal to the Board. However, the Board may not consider new evidence on appeal. See 20
C.F.R. § 501.2(c); Donald R. Gervasi, 57 ECAB ___ (Docket No. 05-1622, issued December 21, 2005);
Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

L.A., 58 ECAB ___ (Docket No. 07-643, issued July 17, 2007); Bonnie A. Contreras, 57 ECAB ___ (Docket
No. 06-167, issued February 7, 2006): Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Victor D. Woodhams, 41 ECAB 345 (1989).

2

An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single work shift or workday.6 The test for determining
whether appellant sustained a compensable occupational disease or injury is three-pronged. To
establish the factual elements of the claim, appellant must submit: (1) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; (2) a factual statement identifying the factors alleged to have caused or contributed to
the presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the factors identified by the claimant.7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the
claimant9 and must be one of reasonable medical certainty10 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.11
ANALYSIS -- ISSUE 1
Appellant alleged that his left foot condition was due to long periods of standing and
walking for up to 10 hours. The employing establishment did not dispute that appellant was
engaged in such employment activities as a letter carrier. The Board notes that there is no
dispute that appellant’s job required him to stand and walk up to 10 hours. The issue to be
resolved is whether appellant’s left foot condition resulted from these employment activities.
The Board finds that the medical evidence is not sufficient to establish his claim.
In unsigned reports dated August 8 and 21 and September 13, 2006, Dr. Scott Smith, a
treating podiatrist, diagnosed left plantar fasciitis. He did not address the issue of causal

6

See D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006); William Taylor, 50 ECAB 234
(1999); see also 20 C.F.R. § 10.5(q).
7

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Donna L. Mims, 53 ECAB 730 (2002).

8

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Conard Hightower, 54 ECAB 796
(2003); Leslie C. Moore, 52 ECAB 132 (2000).
9

L.D., 58 ECAB ___ (Docket No. 06-1627, issued February 8, 2007); Tomas Martinez, 54 ECAB 623 (2003);
Gary J. Watling, 52 ECAB 278 (2001).
10

Roy L. Humphrey, 57 ECAB ___ (Docket No. 05-1928, issued November 23, 2005); John W. Montoya, 54
ECAB 306 (2003).
11

J.M., supra note 7; Judy C. Rogers, 54 ECAB 693 (2003).

3

relationship. The Board has held that an unsigned medical report with no adequate indication
that it was completed by a physician is not considered probative medical evidence.12
The Office advised appellant of the medical evidence necessary for establishing a workrelated injury but such evidence was not forthcoming. An award of compensation may not be
based on surmise, conjecture, speculation or upon appellant’s own belief that there is causal
relationship between his claimed condition and his employment.13 To establish causal
relationship, he must submit a physician’s report in which the physician reviews the employment
factors identified as causing his condition and, taking these factors into consideration as well as
findings upon examination, state whether the employment injury caused or aggravated the
diagnosed conditions and present medical rationale in support of his or her opinion.14 Appellant
failed to submit such evidence in this case and, therefore, has failed to discharge his burden of
proof to establish that he sustained an employment-related foot condition
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act15 provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.16 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the application for
reconsideration.17
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.18
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.19 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
12

See Merton J. Sills, 39 ECAB 572, 575 (1988).

13

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

14

Calvin E. King, 51 ECAB 394 (2000).

15

5 U.S.C. § 8101 et seq.

16

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

17

20 C.F.R. § 10.605.

18

20 C.F.R. § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

19

20 C.F.R. § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

4

its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.20
ANALYSIS -- ISSUE 2
The Office denied appellant’s occupational disease claim on the grounds that the medical
evidence did not establish that his left foot condition was causally related to his federal
employment. The Board finds that his request for reconsideration met none of the regulatory
requirements for a review of the merits of this decision.
Appellant’s February 25, 2007 request for reconsideration did not allege that the Office
erroneously applied or interpreted a specific point of law and did not advance a relevant legal
argument not previously considered by the Office. He is thus not entitled to further review on
the merits of his case under the first two sections of 10.606(b)(2).21 Although appellant stated
that he was submitting new medical evidence as the basis for his reconsideration request, a
review of the record shows no medical report was included with his request. As there was no
new relevant or pertinent evidence for the Office to consider he was not entitled to review under
the third section of 10.606(b)(2).22
Because appellant did not meet any of the statutory requirements for a review of the
merits of his claim, the Office properly denied his February 25, 2007 request for reconsideration.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that he
sustained an occupational disease in the performance of duty causally related to factors of his
federal employment and that the Office properly denied appellant’s request for reconsideration
without conducting a merit review.

20

20 C.F.R. § 10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

21

20 C.F.R. § 10.606(b)(2)(i) and (ii).

22

20 C.F.R. § 10.606(b)(2)(iii).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 4, 2007 and December 21, 2006 are affirmed.
Issued: February 19, 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

6