United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
RALPH H. JOHNSON MEDICAL CENTER,
Charleston, SC, Employer
__________________________________________

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

Docket No. 18-1644
Issued: April 2, 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 27, 2018 appellant filed a timely appeal from May 30 and August 14, 2018
nonmerit decisions of the Office of Workers’ Compensation (OWCP). As more than 180 days
have elapsed from the last merit decision dated September 7, 2017 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.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 8, 2015 appellant, then a 54-year-old practical nurse, filed a traumatic injury claim
(Form CA-1) alleging that, on July 4, 2015, she was assaulted by a hospital resident and sustained
“a left chest contusion and right lower arm/wrist bruise/swelling.” She did not initially stop work.
By development letter dated August 7, 2015, OWCP advised appellant that the evidence
received was insufficient to support her claim. It noted that the evidence was insufficient to
establish that she actually experienced the incident alleged to have caused injury, and that no
diagnosis of any condition resulting from her injury had been provided. OWCP requested that
appellant submit additional factual and medical evidence in support of her claim and provided a
questionnaire for her to complete. It afforded her 30 days to submit the requested evidence.
In a medical report dated July 5, 2015, Dr. Mohammad F. Siddiqi, a specialist in internal
medicine, diagnosed right wrist bruise/abrasion and left rib cage bruise/contusion.
In a medical report dated July 6, 2015, Dr. Jeffrey M. Goller, Board-certified in emergency
medicine, related that appellant’s right arm had been pulled and twisted. He indicated that she did
not suffer an acute fracture or dislocation of her wrist, but that she had a bruised right wrist.
In a report dated September 4, 2015, Dr. Eleanor Jenkins-Alford, a specialist in family
medicine, indicated that she had treated appellant on July 22, 25, August 5, and 17, 2015. She
noted that appellant was injured when she moved a patient which caused a disc compression and
neural impingement. Dr. Jenkins-Alford related that appellant’s magnetic resonance imaging
(MRI) scan showed that a neural impingement.
By decision dated September 11, 2015, OWCP denied appellant’s claim. It found that she
had not established that the diagnosed medical conditions were causally related to the accepted
July 4, 2015 employment incident. OWCP noted that the medical evidence submitted was unclear
and appeared to relate to another incident unrelated to appellant’s claim. It notified her that since
the evidence of record referred to a separate incident, she should consider filing another claim.
OWCP subsequently received additional evidence. In a medical report dated August 19,
2015, received by OWCP on October 13, 2015, Dr. Jason M. Highsmith, Board-certified in
neurosurgery, examined appellant, reviewed her diagnostic imaging, and diagnosed lateral L2-3
disc herniation. He noted that her condition arose “after wrestling a patient” while in the
performance of duty.
In a report dated September 2, 2015, received by OWCP on October 13, 2015,
Dr. Highsmith again diagnosed a far lateral disc herniation at L2-3. In a report dated
September 30, 2015, received by OWCP on October 13, 2015, he indicated that appellant was
doing much better with improved function. Dr. Highsmith noted that she continued to have a dull,
aching pain, and indicated that the pain stemmed from two different injuries when she was injured
2

in the performance of duty after being assaulted by a patient on July 4, 2015 and a second injury
on August 7, 2015.
Appellant, in an October 7, 2015 statement, related that on July 4, 2015 she responded to
a bed alarm at the employing establishment. She indicated that as she attempted to turn off the
alarm, the resident struck her in the chest, dug his nails into her arm, and pulled, twisted, and jerked
her wrist and arm until a police officer was able to wring her free. Appellant noted that she went
to the emergency room as a result of the incident, and she was told not to return to work until
July 6, 2015 because of the pain in her upper chest, arm, and shoulder. She indicated that she
received a diagnosis of “acute right wrist pain/occupational injury,” but that nothing else was
recorded. Appellant related that her pain became worse and on July 16, 2015, she went to her
primary care physician for an examination. She noted that in her original statement, she reported
a subsequent assault that occurred on August 7, 2015 when a resident kicked her in the lower left
rib area. Appellant indicated that this subsequent incident furthered the previous injury, but her
initial injury on July 4, 2015 was the cause of her present condition.
In an undated medical report received by OWCP on October 13, 2015, Henry Spradlin, a
certified physician assistant, indicated that he first saw appellant on July 16, 2015 when she
complained of back pain and pain radiating down her right leg. He noted that he saw her again on
“August 5, 2015” for a presumed new condition after she was kicked in her chest. Mr. Spradlin
related that this chest injury exacerbated the original back injury.
In a medical report dated October 8, 2015, received by OWCP on October 13, 2015,
Dr. Patrick Leonard, a chiropractor, examined appellant and took lumbosacral x-rays. He
diagnosed low back pain, lumbar disc syndrome, lumbar subluxation, muscle spasms, sacral
subluxation, and pelvic subluxation. Dr. Leonard indicated that her conditions resulted from the
claimed July 4 and August 7, 2015 employment incidents.
On October 13, 2015 appellant requested a review of the written record by an OWCP
hearing representative.
OWCP subsequently received additional medical evidence. In a report dated February 26,
2016, Dr. Leonard examined appellant, took lumbosacral x-rays, and again diagnosed with low
back pain, lumbar disc syndrome, lumbar subluxation, muscle spasms, sacral subluxation, and
pelvic subluxation. He related that appellant could not work due to the severe damage to her
lumbar spine and disc herniation at L2-3 caused by an assault at work.
By decision dated March 23, 2016, an OWCP’s hearing representative reversed in part and
affirmed in part the September 11, 2015 decision. She found that the medical reports from
Dr. Siddiqi were sufficient to accept the diagnoses of a right wrist bruise/abrasion and a left rib
cage bruise/contusion.3 However, with regard to the diagnosed lumbar disc herniation, the hearing
representative indicated that the medical records were speculative on the issue of causal
relationship because the medical evidence appeared to attribute appellant’s condition to both the

3
On March 30, 2016 OWCP formally accepted appellant’s claim for the abrasion of right wrist and contusion of
left front wall of thorax based on the hearing representative’s decision.

3

July 4, 2015 employment incident and the subsequent August 7, 2015 employment incident. Thus,
she affirmed the September 11, 2015 decision with regard to the lumbar disc herniation diagnosis.
On October 24, 2016 appellant requested reconsideration of the hearing representative’s
March 23, 2016 decision and submitted further additional evidence.
In a letter dated December 1, 2015, received by OWCP on October 24, 2016,
Dr. Highsmith opined that appellant’s conditions were most probably caused by her employmentrelated injury.
Dr. Highsmith, in a letter dated May 18, 2016, clarified his diagnoses for appellant’s
conditions indicating that she had a herniated lumbar disc at L2-3 and lumbar radiculopathy.
On June 2, 2016 Dr. Highsmith performed a lateral discectomy at L2-3.
In a letter dated July 5, 2016, Dr. Jenkins-Alford indicated that appellant had been under
her care since July 5, 2015 for back pain brought on by an assault. She noted that an August 5,
2015 MRI scan showed that appellant had an acute disc herniation and neural impingement.
Dr. Jenkins-Alford also related that appellant was attacked later on August 7, 2015 and suffered
further injury to her back, and has continued to suffer from severe pain with radiculopathy since
that time.
In a letter dated July 28, 2016, Dr. Jenkins-Alford indicated that the July 4, 2015 assault
on appellant caused disc compression and neural impingement. She noted that appellant was
incapable of carrying out her duties as a nurse because she was unable to walk for an extended
period, and was also restricted from lifting because it exacerbated her condition.
In a letter dated September 20, 2016, Dr. Highsmith indicated that appellant was first
injured during an assault on July 4, 2015. He related that her injury was then aggravated in a
separate incident on August 7, 2015. Dr. Highsmith noted that more likely than not the July 4,
2015 incident was the direct cause of appellant’s disc herniation at L2-3. He indicated that trauma,
such as appellant’s from the July 4, 2015 employment incident, often caused herniations of the
lumbar discs resulting in neurologic impingement and subsequent neurologic deficits.
Dr. Highsmith related that the August 7, 2015 employment incident likely worsened the spinal
injury with additional pain and damage.
In a report dated October 3, 2016, Dr. Leonard diagnosed lumbar disc syndrome, lumbar
subluxation, muscle spasms, sacral subluxation, and pelvic subluxation. He again indicated that
appellant’s conditions were a direct result of the July 4, 2015 employment incident.
By decision dated December 28, 2016, OWCP denied modification of the March 23, 2016
decision. It found that the evidence provided was not sufficiently rationalized to establish that
appellant’s back condition was causally related to the July 4, 2015 employment incident.
On June 22, 2017 appellant requested reconsideration of OWCP’s December 28, 2016
decision.

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OWCP subsequently received a report dated July 15, 2016, wherein Dr. Jenkins-Alford
indicated that she had twice examined and treated appellant for back pain following the July 4,
2015 employment incident, and had diagnosed an acute disc herniation. She noted that appellant
was attacked again on August 7, 2015.
In a report dated November 16, 2016, Dr. Highsmith indicated that appellant had been
under his care since August 9, 2015. He related that appellant suffered an employment-related
injury on July 4, 2015, and suffered a second employment-related injury on August 7, 2015.
Dr. Highsmith related that the second incident caused further damage and aggravation to her
already injured spine.
By decision dated September 7, 2017, OWCP denied modification of the December 28,
2016 decision. It found that the evidence submitted was insufficient to establish the present claim
because appellant’s claimed back injury had been accepted under an August 7, 2015 claim in
conjunction with another traumatic injury.4 OWCP indicated that the evidence submitted did not
support that appellant sustained a back injury in connection with being attacked on July 4, 2015.
On November 20, 2017 appellant requested reconsideration of OWCP’s September 7,
2017 decision. She submitted a narrative statement in support of her request.
By decision dated February 9, 2018, OWCP denied further merit review of appellant’s
claim. It found that the evidence appellant submitted neither raised substantive legal questions nor
included new and relevant evidence.
On April 25, 2018 appellant requested reconsideration of OWCP’s February 9, 2018
decision. She submitted a narrative statement in support of her request, in which she claimed that
she had submitted all of the medical evidence necessary to establish that she had sustained multiple
injuries on July 4, 2015.
By decision dated May 30, 2018, OWCP denied further merit review of appellant’s claim.
It found that the evidence she submitted neither raised substantive legal questions nor included
new and relevant evidence to further her claim. OWCP related that for appellant’s case to be
reopened, she needed to clearly identify the grounds upon which reconsideration was being
requested, and she must submit relevant evidence not previously considered or present legal
contentions not previously considered.
On August 8, 2018 appellant requested reconsideration of OWCP’s May 30, 2018
decision. In a statement dated August 7, 2018, she reiterated that she had submitted all of the
medical evidence she could possibly provide and had established that she sustained multiple
injuries at work on July 4, 2015.

4

The Board notes that appellant had filed a claim for a traumatic injury on August 7, 2015 under OWCP File No.
xxxxxx450, which was accepted for aggravation of herniated lumbar disc with radiculopathy at L2-3. OWCP File
No. xxxxxx450 has not been administratively combined with the present claim.

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By decision dated August 14, 2018, OWCP denied further merit review of appellant’s
claim. It found her August 7, 2017 letter was similar to her prior letter of record.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 To require OWCP to reopen a case for merit review under
section 8128(a) of FECA,7 OWCP’s regulations provide that the evidence or argument submitted
by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific point of
law; (2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.8 To be entitled to a
merit review of an OWCP decision denying or terminating a benefit, a claimant’s application for
review must be received within one year of the date of that decision.9 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.10
In support of a request for reconsideration, a claimant is not required to submit all evidence
which may be necessary to discharge his or her burden of proof.11 He or she needs only to submit
relevant, pertinent evidence not previously considered by OWCP.12 When reviewing an OWCP
decision denying a merit review, the function of the Board is to determine whether OWCP properly
applied the standards set forth at section 10.606(b)(3) to the claimant’s application for
reconsideration and any evidence submitted in support thereof.13

5

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
6

For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b. 20 C.F.R. § 10.607.
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

P.L., Docket No. 18-1145 (issued January 4, 2019); Helen E. Tschantz, 39 ECAB 1382 (1988).

12

P.L., id.; see Mark H. Dever, 53 ECAB 710 (2002).

13

P.L., supra note 11; Annette Louise, 54 ECAB 783 (2003).

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ANALYSIS
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Along with appellant’s timely April 25, and August 8, 2018 requests for reconsideration,
OWCP received letters wherein she expressed her own belief that she had submitted all possible
and necessary medical evidence. However, appellant neither showed that OWCP erroneously
applied or interpreted a specific point of law, nor advanced a relevant legal argument not
previously considered by OWCP. 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).
An appellant may be entitled to a merit review by submitting relevant and pertinent new
evidence, but the Board finds that he or she did not submit any such evidence in this case.14
Appellant submitted self-authored letters indicating her disappointment in the previous decisions
and noting her previous submissions of evidence she deemed to be relevant. The submission of
this factual evidence does not require reopening of her claim for review of the merits of the claim
because this evidence is not relevant to the underlying issue of the present case. As noted, the
underlying issue of the present case is medical in nature, i.e., whether appellant submitted medical
evidence sufficient to establish causal relationship between a diagnosed lumbar condition and the
accepted July 4, 2015 employment injury. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.15
As appellant’s application for review 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 the
request for reconsideration without reopening the case for a review on the merits.16
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

14

B.T., Docket No. 18-1397 (issued January 15, 2019); 20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 181041 (issued October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
15

B.T., id.

16

P.L., supra note 11; R.C., Docket No. 17-0595 (issued September 7, 2017); M.E., 58 ECAB 694 (2007) (when
an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the application for reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the August 14 and May 30, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
U.S. POSTAL SERVICE, MANAGEMENT
SECTION CENTER, Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-1140
Issued: June 9, 2010

Case Submitted on the Record

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

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from a December 11, 2008 merit
decision of the Office of Workers’ Compensation Programs concerning her schedule award. She
also timely appeals from a nonmerit decision dated January 7, 2009. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant has her burden of proof to establish that she has
more than five percent permanent impairment of her left upper extremity, for which she received
a schedule award; and (2) whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606.
FACTUAL HISTORY
On October 6, 2002 appellant, a 46-year-old mail processor, filed an occupational disease
claim alleging that on October 4, 2002 she first realized the tingling up and down both her arms,

wrists and hands were employment related. On January 14, 2003 the Office accepted her claim
for left wrist tendinitis.1
On May 15, 2003 appellant filed a claim for a schedule award. By decision dated
February 17, 2005, the Office denied her schedule award claim on the grounds that the medical
evidence was insufficient to establish that she sustained a permanent impairment.
On November 15, 2005 Dr. Robert F. Hanley, a second opinion Board-certified
orthopedic surgeon, diagnosed mild left carpal tunnel syndrome. Using the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides) he determined that appellant had five percent permanent left upper extremity
impairment. Dr. Hanley based his determination on a positive electrodiagnostic study.
In a November 21, 2005 report, Dr. Arnold T. Berman, an Office medical adviser and
Board-certified orthopedic surgeon, reviewed Dr. Hanley’s report and agreed with his
impairment determination. He stated that Dr. Hanley relied upon the quotation in notation
number two on page 495 of the A.M.A., Guides relative to optimal recovery for carpal tunnel
syndrome.
By decision dated May 31, 2006, the Office issued a schedule award for five percent
permanent impairment of the left upper extremity. The period of the award was November 15,
2005 to March 4, 2006.
On June 20, 2006 appellant requested an oral hearing before an Office hearing
representative and a telephonic hearing was held on October 3, 2006.
In a decision dated January 9, 2007, the Office hearing representative set aside the
May 31, 2006 schedule award decision and remanded the case to the Office for further
development. The hearing representative noted that the statement of accepted facts did not
contain the condition of left carpal tunnel syndrome. He also found that the reports by
Drs. Berman and Hanley failed to provide sufficient rationale to support the five percent
impairment finding.
By decision dated March 15, 2007, the Office expanded the acceptance of appellant’s
claim to include left carpal tunnel syndrome. It authorized left carpal tunnel surgery, which was
performed on May 9, 2007.
By letter dated September 4, 2007, appellant requested that the Office issue a schedule
award for more than the five percent impairment previously awarded.
On June 4, 2007 and April 11, 2008 appellant filed claims for a schedule award.
By decision dated October 9, 2008, the Office denied appellant’s request for a schedule
award as the evidence was insufficient to establish that she sustained a permanent impairment.
1

The Office assigned File No. xxxxxx025. The record contains evidence that the Office accepted the condition
of bilateral shoulder bursitis under File No. xxxxxx768. Appellant noted that as of April 23, 2003 she was no longer
employed by the employing establishment.

2

Subsequent to the issuance of the October 9, 2008 decision, the Office received an
October 1, 2008 report from Dr. Robert W. Macht, an examining Board-certified surgeon, who
diagnosed bilateral shoulder and wrist occupational illness with left carpal tunnel release. A
physical examination revealed a left positive Tinel’s sign, bilateral positive Phalen’s test,
decreased light touch sensation bilaterally in the thumb, index and middle fingers. Range of
motion for both wrists was 50 degrees flexion and 15 degrees radial. Using Table 16-8B, page
459, Dr. Macht determined that appellant had three percent bilateral thumb impairment due to
loss of adduction. Next, he concluded that appellant had a one percent impairment of each upper
extremity using Table 16-1, page 438 and Table 16-2, page 439. Dr. Macht determined that she
had a three percent impairment of each upper extremity due to loss of wrist range of motion
using Figure 16-28, page 467 and Figure 16-31, page 469. Combining these amounts resulted in
four percent impairment in each upper extremity. Dr. Macht then used Table 16-10, page 482
and Table 16-11, page 484, where he found a Grade 3 sensory deficit or pain affecting the right
side median nerve, a Grade 2 sensory deficit or pain affecting the left median nerve and a Grade
4 weakness of the left median nerve. He then took these values using Table 16-15, page 492, to
find a total 32 percent left upper extremity impairment and 23 percent right upper extremity
impairment due to appellant’s bilateral carpal tunnel syndrome. Dr. Macht then combined the
impairment rating for her carpal tunnel syndrome with her impairment rating for her loss of
range of wrist motion to find a total 35 percent left upper extremity permanent impairment and
26 percent right upper extremity permanent impairment. He also determined that appellant had
14 percent upper extremity impairment in each shoulder due to her loss of bilateral shoulder
motion.
In an October 19, 2008 report, Dr. Berman, the Office medical adviser and Boardcertified orthopedic surgeon, reviewed Dr. Macht’s report and disagreed with the impairment
rating given by the physician. He noted that impairment rating for appellant’s thumbs is not
appropriate as thumbs are not considered part of her accepted carpal tunnel syndrome.
Dr. Berman also found that the impairment ratings given for appellant’s right carpal tunnel
syndrome and left shoulder were not appropriate as these were not accepted conditions. As to
Dr. Macht’s determination of a Grade 2 left deficit of the left median nerve, he found that the
physical findings reported by Dr. Macht did not support this conclusion. Dr. Berman noted that
Dr. Macht’s physical examination showed no abornamilities, “no loss of protective sensibility
and sensation was intact to two-point discrimination” Thus, he concluded that not even a
Grade 3 would be appropriate as this requires two-point discrimination abnormalites, which were
not demonstrated. Dr. Berman indicated that Dr. Macht’s Grade 4 deficit for left motor loss was
inappropriate. Citing to section 16.8 on page 508 of the A.M.A., Guides, he advised “that
strength evaluation cannot be made in the presence of painful conditions,” which appellant had.
Next, Dr. Berman opined that he agreed with the November 15, 2005 impairment rating by
Dr. Hanley, which found five percent left upper extremity impairment. He noted that appellant
did not submit any medical evidence showing that she was entitled to an increased schedule
award.
On October 20, 2008 the Office received appellant’s undated request for reconsideration.
By decision dated December 11, 2008, the Office found that appellant was not entitled to
an increased schedule award. It found that the medical evidence established a five percent left
upper extremity impairment, for which she had previously been issued a schedule award.

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On December 16 and 18, 2008 appellant requested reconsideration of the denial of her
request for an additional schedule award. In a letter dated December 18, 2008, she requested
referral to an impartial medical examiner due to the conflict in the medical opinion evidence
regarding her upper extremity impairment between Drs. Macht and Berman.
By decision dated January 7, 2009, the Office denied appellant’s request for a merit
2

review.

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.7
ANALYSIS -- ISSUE 1
Appellant argues that there is an unresolved conflict in medical opinion between
Drs. Macht and Berman regarding the extent of her left upper extremity permanent impairment.
She noted that Dr. Berman did not consider her bilateral hand tendinitis, which exists with her
bilateral carpal tunnel syndrome, which is why she believes that she is entitled to an additional
schedule award. The Board notes that the Office has not accepted either bilateral hand tendinitis
or bilateral carpal tunnel syndrome. The only conditions accepted by the Office are left wrist
tendinitis and left carpal tunnel syndrome. Thus, the issue to be resolved is whether appellant
has established that she is entitled to an additional schedule award for these accepted conditions.
2

The Board notes that, following the October 6, 2008 decision, the Office received additional evidence.
However, the Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); J.T., 59 ECAB __
(Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281
(2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

Id. at § 8107(c)(19).

6

Id. at § 10.404; see I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009); A.A., 59 ECAB ___
(Docket No. 08-951, issued September 22, 2008).
7

Veronica Williams, 56 ECAB 367 (2005).

4

Dr. Macht concluded that appellant had a total 35 percent left upper extremity permanent
impairment and 26 percent right upper extremity permanent impairment. He also determined
that she had 14 percent upper extremity impairment in each shoulder due to her loss of bilateral
shoulder motion. Initially, the Board notes that Dr. Macht’s impairment rating was also based on
appellant’s bilateral thumb impairment, her bilateral shoulder conditions and right carpal tunnel
syndrome. The Board notes that her claim has not been accepted for a right or left thumb
condition. Moreover, Dr. Macht has not explained how these conditions are causally related to
appellant’s accepted employment-related injuries or whether they were preexisting. With respect
to his remaining impairment rating for her left upper extremity, the Board finds that it does not
properly conform to the A.M.A., Guides. Dr. Macht found that appellant had a Grade 2 sensory
deficit of the left median nerve and a Grade 4 weakness of the left median nerve for a total
32 percent left upper extremity impairment.8 However, he provided no explanation as to how he
determined the grade under the A.M.A., Guides. Dr. Macht improperly included weakness when
he calculated appellant’s 32 percent left upper extremity impairment. The A.M.A., Guides state
that decreased strength cannot be rated in the presence of decreased motion, painful condition or
deformities.9 As Dr. Macht did not properly apply the A.M.A., Guides, his opinion is of
diminished value.10
Dr. Berman reviewed Dr. Macht’s report and disagreed with the impairment rating given.
He noted that impairment rating for appellant’s thumbs is not appropriate as they are not
considered part of her accepted left carpal tunnel syndrome. Dr. Berman also found that the
impairment ratings given for her right carpal tunnel syndrome and left shoulder were not
appropriate as these were not accepted conditions. He indicated that Dr. Macht’s Grade 4 deficit
for left median nerve motor loss and Grade 2 deficit for left sensory median nerve loss were
inappropriate. Citing to section 16.8a on page 508 of the A.M.A., Guides, Dr. Berman explained
that decreased strength cannot be rated in the presence of decreased motion or painful conditions.
As to the sensory loss deficit, he explained that Dr. Macht’s physical findings did not support his
sensory loss determination. Dr. Berman concurred in Dr. Hanley’s finding of five percent lower
upper extremity impairment and added that appellant did not submit any evidence showing a
greater impairment.
The record is unclear, however, as to whether appellant’s left shoulder bursitis and left
thumb condition are preexisting conditions or occurred following her injury. 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 are to be
included.11 When impairment extends into an adjoining area, the schedule award should be
8

See A.M.A., Guides, Table 16-10 at 482 and Table 16-11 at 484.

9

Id. at 508.

10

Joseph R. Waples, 44 ECAB 936 (1993).

11

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009); Thomas P. Lavin, 57 ECAB 353 (2006)
(where the claimant did not demonstrate any permanent impairment caused by the accepted occupational exposure,
the claim was not ripe for consideration of any preexisting impairment); Beatrice L. High, 57 ECAB 329 (2006) (in
determining the amount of a schedule award for a member of the body that sustained an employment-related
impairment, preexisting impairments are to be included).

5

made for the larger member.12 The Office medical adviser provided no explanation as to why
these conditions should be excluded from the left upper extremity impairment rating, other than
noting that these conditions were not accepted employment-related conditions, when he rendered
his opinion on Dr. Macht’s impairment rating. Since the record is unclear as to whether these
conditions were preexisting and the Office medical adviser did not render a sufficiently reasoned
medical opinion as he failed to mention whether these conditions were preexisting or not, the
probative value of his report is limited. Accordingly, the Board finds that the case must be
remanded for further medical development.13
CONCLUSION
The Board finds that the case is not in posture for decision to determine whether
appellant is entitled to an additional schedule award for permanent impairment of the left upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 7, 2009 and December 11, 2008 are set aside; the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: June 9, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
12

Janet L. Adamson, 52 ECAB 431 (2001).

13

In view of the disposition of the first issue, the Board finds that it is unnecessary to address the second issue in
this case.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 16-0026
Issued: February 22, 2016

Case Submitted on the Record

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

JURISDICTION
On September 30, 2015 appellant filed a timely appeal from an April 3, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.3

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. §
501.3(e)-(f). The Board notes 180 days from April 3, 2015, the date of OWCP’s merit decision was
September 30, 2015. Since using October 7, 2015, the date the appeal was received by the Clerk of the Board,
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. As the postmark
was September 30, 2015, it was timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that as appellant filed an appeal from the April 3, 2015 merit decision of OWCP, the Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of that decision. Therefore, any
additional evidence submitted to OWCP cannot be considered by the Board.

ISSUE
The issue is whether appellant has established permanent impairment for more than five
percent permanent impairment of her left leg, for which she received a schedule award.
On appeal, appellant contends that her treating physician determined a greater degree of
permanent impairment.
FACTUAL HISTORY
On April 25, 2011 appellant, then a 27-year-old transportation security officer (screener)
filed a traumatic injury claim (Form CA-1) alleging that on April 10, 2011, while lifting a lot of
heavy objects in a short amount of time, she suffered lower back pain/left leg pain. On May 31,
2011 OWCP accepted her claim for sprain of the lumbar region of the back. It subsequently
accepted appellant’s claim for disc herniation at L4-5, lumbosacral radiculopathy, and acquired
left foot drop. OWCP paid intermittent compensation benefits until March 10, 2013, when she
began receiving total disability benefits on the periodic rolls.
In a December 3, 2014 report, Dr. James L. Chappuis, appellant’s treating Board-certified
orthopedic surgeon, noted that appellant was status post lumbar fusion L3 to S1 and had chronic
L5 radiculopathy on the left with greatly improving left muscular weakness and resolved foot
drop. He noted that appellant continued to complain of back pain and had occasional numbness
that traveled from her left knee to her left foot. Dr. Chappuis noted that appellant had 5/5
strength in all muscles of her lower extremities with the exception of 4+/5 strength in her left
peroneus. He further indicated that appellant had normal gait and was able to dorsiflex her foot
with relative ease. Dr. Chappuis opined that appellant was at maximum medical improvement
following her recovery from her lumbar fusion surgery and that pursuant to the fifth edition of
the A.M.A., Guides, she had a permanent partial disability rating of 20 percent.
On January 13, 2015 appellant filed a claim for a schedule award (Form CA-7).
On March 12, 2015 OWCP asked its medical adviser to evaluate appellant’s permanent
impairment. OWCP’s medical adviser responded on March 13, 2015 that appellant had zero
percent impairment of her upper extremities and her right lower extremity. He noted that
appellant had chronic low back pain and left leg pain from her accepted employment injury, and
that imaging confirmed lumbar disc herniation at L3-4, L4-5, and L5-S1. The medical adviser
also noted an interbody fusion L3-4, L4-5, and L5-S1, with decompression spinal canal and
neuroforamen and instrumental fusion L3-S1 performed on March 12, 2013. He stated that
based on The Guides Newsletter, July/August 2009, page 6, Table 2, mild motor deficit of the L5
nerve root equaled five percent permanent impairment of the left leg.4 The medical adviser
noted that no adjustment was made for functional history or clinical studies.
By decision dated April 3, 2015, OWCP issued a schedule award for five percent
permanent impairment of the left leg.
4

Specifically, the medical adviser referred to the American Medical Association (A.M.A.,) The Guides
Newsletter, July/August 2009 edition.

2

LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proof to establish that the condition for which a schedule award is
sought it causally related to his or her employment.5
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions, and organs of the body.6 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.7 The A.M.A., Guides, has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.9
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a schedule or nonscheduled member. Therefore, as the
schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairment of the extremities. Recognizing that FECA allows ratings for
extremities and precludes ratings for the spine, The Guides Newsletter, July/August 2009, offers
an approach to rating spinal nerve impairments consistent with sixth edition methodology.12

5

Veronica Williams, 56 ECAB 367 (2005).

6

5 U.S.C. § 8107.

7

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

8

20 C.F.R. § 10.404.

9

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); J.B., Docket No. 09-2191 (issued May 14, 2010).
10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Englehart, 50 ECAB 319 (1999).

12

L.J., Docket No. 10-1263 (issued March 3, 2011).

3

OWCP has adopted this approach for rating impairment to the upper or lower extremities caused
by a spinal injury.13
An opinion on permanent impairment is of limited probative value if it is not derived in
accordance with the standards adopted by OWCP and approved by the Board as appropriate for
evaluating schedule losses.14
In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on the file from an examining
physician, but the percentage estimate by the physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by the medical adviser may constitute the weight of the medical
evidence.15
ANALYSIS
OWCP accepted appellant’s claim for sprain of the lumbar region of the back, disc
herniation at L4-5, lumbosacral radiculopathy, and acquired left foot drop. On January 13, 2015
OWCP issued a schedule award for five percent permanent impairment of appellant’s left leg.
OWCP determined that appellant had five percent permanent impairment of her left leg
based on the opinion of OWCP’s medical adviser. The medical adviser reviewed the medical
evidence of record, including the reports of Dr. Chappuis, and determined that appellant did well
following her surgery, but she had chronic residuals of left L5 radiculopathy with impairment for
weakness of the left peroneus. He applied the The Guides Newsletter interpreting the sixth
edition of the A.M.A., Guides, and noted that pursuant to Table 2, appellant’s residuals could be
described as mild motor deficit of the L5 nerve root which equaled five percent impairment of
the left lower extremity. The medical adviser noted that no adjustments were made for
functional history or clinical studies. Accordingly, he provided a rationalized opinion that
properly applied the sixth edition of the A.M.A., Guides and determined that appellant had five
percent permanent impairment of her left leg.
Appellant argues that her treating physician found that she was entitled to a greater
schedule award. Dr. Chappuis, in a December 3, 2014 report, determined that appellant was
entitled to a schedule award based on a permanent partial disability rating of 20 percent pursuant
to the fifth edition of the A.M.A., Guides. Initially, the Board notes that the calculations of
Dr. Chappuis under the fifth edition of the A.M.A., Guides are irrelevant as the sixth edition of
the A.M.A., Guides was the appropriate edition of the A.M.A., Guides to apply effective
May 1, 2009.16 Dr. Chappuis did not provide any explanation as to how he arrived at the 20
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
14

R.L., Docket No. 14-1479 (issued October 28, 2014).

15

A.A., Docket No. 15-0898 (issued July 28, 2015).

16

See supra note 8; see also D.M., Docket No. 13-2073 (issued March 18, 2014).

4

percent impairment figure through application of the A.M.A., Guides. The Board also notes that
FECA does not authorize the payment of schedule awards for the permanent impairment of the
whole person.17
Appellant argues on appeal that her treating physician later evaluated her under the sixth
edition of the A.M.A., Guides. There was no probative medical evidence of record at the time of
the April 3, 2015 schedule award decision, in conformance with the sixth edition of the A.M.A.,
Guides, establishing that appellant had more than five percent permanent impairment of his left
leg. Accordingly, appellant has not established that she is entitled to a schedule award greater
than that received.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not establish more than five percent permanent
impairment of her left leg.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2015 is affirmed.
Issued: February 22, 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
17

Y.M., Docket No. 13-1626 (issued November 13, 2013).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, CLEVELAND
PROCESSING & DISTRIBUTION CENTER,
Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1116
Issued: March 11, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 8, 2021 appellant sought an appeal from a purported March 22, 2021 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1116.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 2 The Board notes that the record contains a March 22, 2021
informational letter advising appellant that no further action would be taken on her claim, which
was a duplicate of her claim under OWCP File No. xxxxxx762. This correspondence does not

1

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

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

constitute a final adverse decision by OWCP. 3 As there is no final adverse decision issued by
OWCP over which the Board may properly exercise jurisdiction, the Board concludes that the
appeal docketed as No. 21-1116 must be dismissed.4 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1116 is dismissed.
Issued: March 11, 2022
Washington, DC

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

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

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

3

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020) (correspondence that is purely informational in nature does not
constitute a final adverse decision of OWCP from which appellant may properly appeal).
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Mobile, AL, Employer
__________________________________________

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

Docket No. 08-263
Issued: June 3, 2008

Case Submitted on the Record

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

JURISDICTION
On November 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 27, 2007 regarding a forfeiture of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant forfeited his
compensation pursuant to 5 U.S.C. § 8106(b)(2) for the periods January 1, 1995 to April 21,
1997, January 16, 1998 to April 7, 2004 and April 22, 2004 to July 22, 2005.
FACTUAL HISTORY
The Office accepted that appellant sustained cervical and facial fractures, leg and foot
contusions and a concussion in the performance of duty on January 14, 1992 when he was struck
by a falling tree while in the performance of duty. Appellant received compensation for total
disability on the periodic rolls.

In accord with established Office procedure, appellant was required to complete Form
EN1032 questionnaire forms regarding his earnings and employment activity for the previous 15
months. The form explained that a claimant must report all self-employment or involvement in
any business enterprise, including, but not limited to, farming, sales work, operating a business
or providing services in exchange for money, goods or other services. In addition, the EN1032
advised the employee that, if duties were performed in any business enterprise for which he or
she was not paid, he was to report the rate of pay it would have cost to hire someone to perform
such duties. On EN1032 forms signed on April 1, 1996, April 21, 1997, April 16, 1999, April 5,
2000, April 4, 2001, April 9, 2002, April 3, 2003, April 7, 2004 and July 22, 2005 appellant
indicated that he had no self-employment or business enterprise involvement for the previous 15
months.
On May 7, 2007 the Office received an investigative memorandum dated May 1, 2007
from the Office of the Inspector General (OIG). The evidence included a December 6, 2006
report from the employing establishment’s criminal investigation division. According to the
OIG report, appellant had received subsidies from the Department of Agriculture (USDA) in
1995, 1996 and 1999 to 2003. A farm subsidy database reported that appellant had received
subsidies for livestock feed and livestock emergency assistance. In the years 2000 and 2002 to
2004, sale of cattle were recorded under appellant’s name. The last cattle sale in 2004 was
reported as April 16, 2004. The December 6, 2006 report stated that appellant was interviewed
on September 26, 2006 and he “admitted he sold cattle for profit, but stated that his family
cooperatively raised the livestock and had done so since the 1970’s. He stated profits from the
sale of cattle were divided equally among approximately eight family members.”
By letter dated May 25, 2007, the Office advised appellant of the findings in the
investigative reports and requested additional information. In a June 11, 2007 response,
appellant asserted his brothers had sold cattle, but he himself had never sold cattle. He stated he
was not involved with his brothers because he could not do the work.
By decision dated September 27, 2007, the Office determined that appellant had forfeited
his right to compensation for the periods January 1, 1995 to April 21, 1997, January 16, 1998 to
April 7, 2004 and April 22, 2004 to July 22, 2005.
LEGAL PRECEDENT
Section 8106(b) of the Federal Employees’ Compensation Act provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at times the Secretary specifies.… An employee who -(1) fails to make an affidavit or report when required; or
(2) knowingly omit or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if

2

already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”1
The Office’s regulations provide “Earnings from employment or self-employment
means:
“(1) Gross earnings or wages before any deductions and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”2
ANALYSIS
The forfeiture determination in this case is based on the submission of specific EN1032
forms. On these forms appellant denied any self-employment or involvement in a business
enterprise, and reported no earnings for the previous 15 months. With respect to the forms
completed on April 1, 1996, April 21, 1997 and April 16, 1999 the evidence of record supports a
finding that appellant failed to report earnings. In 1995, 1996 and 1999, appellant received
Department of Agriculture subsidies for livestock-related expenses. A subsidy is a benefit
provided by the government to a work enterprise.3 As noted above, reimbursed expenses are
considered earnings from employment or self-employment. The subsidies are remuneration to
appellant and the value of such remuneration constitutes earnings.4 The EN1032 requires that
earnings from self-employment or a business enterprise be reported, and for the years 1995, 1996
and 1999 appellant failed to report earnings.
With respect to EN1032 forms completed in April of the years 2000 through 2004, the
evidence also supports a finding that appellant failed to report earnings. Appellant received
USDA livestock subsidies in the years 2000 through 2003, according to the evidence of record.
In addition, there were sales of cattle in appellant’s name in 2000 and from 2002 through
April 16, 2004. According to appellant, these sales were made by his brothers, but the evidence
from the stockyard that conducted the sales reported the sales in appellant’s name. None of these
earnings were reported on the EN1032 forms.
1

5 U.S.C. § 8106(b).

2

20 C.F.R. § 10.5(g) (April 2007).

3

A subsidy is defined as a “grant of money made by the government in aid of the promoters of any enterprise,
work or improvement in which the government desires to participate, or which is considered a proper subject for
government aid, because such purpose is likely to be of benefit to the public.” Black’s Law Dictionary (5th ed.
1979).
4

As the Board explained in Christine P. Burgess, 43 ECAB 449 (1992), every form of remuneration, including
reimbursed expenses and similar benefits, must be reported as earnings.

3

The Board notes that the Office also forfeited compensation for the 15-month period
prior to a July 22, 2005 EN1032. The forfeiture in this case appeared to be based on the sale of
cattle in 2004. But the documents of cattle sales reported the last sale in 2004 was on
April 16, 2004. The period covered by the July 22, 2005 EN1032 began on April 22, 2004. The
Office did not document any earnings during this period. There was no evidence of subsidies,
cattle sales or any unreported remuneration. The Board accordingly finds the evidence does not
support a forfeiture of compensation for the period April 22, 2004 to July 22, 2005.
Since the evidence does establish appellant omitted earnings, the remaining question is
whether the omission was “knowingly.” The term “knowingly” is defined in the regulations
governing administration of claims filed under the Act as “[w]ith knowledge, consciously,
willfully, or intentionally.”5 The language in the EN1032 is clear and unambiguous regarding
self-employment and specifically includes farming. The USDA subsidies were a direct payment
to appellant and he offered no explanation as to why he did not report the earnings. As to the
cattle sales, appellant appeared to indicate to the investigators that, since he split the proceeds
with family members, he did not believe he needed to report the earnings. There is no language
in the EN1032 suggesting that income divided among family members need not be reported.
The form states that even if appellant did not receive any direct payment for work benefiting a
family member in a business enterprise, the value of the work must be reported.
Based on the probative evidence, the Board finds that appellant knowingly omitted
earnings on the EN1032 forms from April 1, 1996 to April 21, 1997 and April 16, 1999 to
April 7, 2004. Pursuant to 5 U.S.C. § 8106(b), the Office properly forfeited his compensation.
CONCLUSION
Appellant forfeited his compensation from January 1, 1995 to April 21, 1997 and
January 16, 1998 to April 7, 2004 because he knowingly omitted earnings. For the period
April 22, 2004 to July 22, 2005, the evidence was not sufficient to establish a forfeiture of
compensation was warranted.

5

20 C.F.R. § 10.5(n).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2007 is affirmed with respect to the periods
January 1, 1995 to April 21, 1997 and January 16, 1998 to April 7, 2004. The September 27,
2007 decision is reversed with respect to the period April 22, 2004 to July 22, 2005.
Issued: June 3, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 17-0074
Issued: March 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from May 11 and September 16,
2016 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision of OWCP dated December 1, 2015, 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 to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that his attending physician provided adequate rationale to
support that his work duties as a rural letter carrier contributed to his bilateral osteoarthritis and
need for surgery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 31, 2015 appellant, then a 62-year-old rural letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he sustained right and left hip injuries
caused or aggravated by his federal employment. He first became aware of his injuries on
October 3, 2011 and realized their relationship to his work on April 14, 2015. In an
accompanying narrative statement dated August 27, 2015, appellant provided a detailed
description of his rural letter carrier work duties and listed sports activities he participated in
during his formative years and as an adult. In October of 2011, he developed pain in his left
knee area which he associated with his 2007 medial meniscus surgery.
Following an appointment regarding appellant’s knee problem and x-rays Dr. John T.
Lynn, II, a Board-certified orthopedic surgeon, informed appellant that his hips were causing his
condition. In October 2011, appellant received a cortisone shot in his left hip. He related that it
was not until December 15, 2014 diagnostic testing results, and appointments and consultations
with Dr. Dennis G. Rork, a Board-certified family practitioner, and Dr. Akhilesh Sastry, a Boardcertified orthopedic surgeon, that he became aware of the need for hip replacements. Appellant
contended that he and Dr. Sastry believed that his work duties contributed to the development of
his bilateral hip osteoarthritis and need for hip replacements.
In a June 24, 2015 medical report, Dr. Sastry noted that appellant was referred to him for
treatment of bilateral hip pain. He examined appellant and diagnosed advanced osteoarthritis.
Dr. Sastry recommended hip replacements since nonoperative treatments had been ineffective in
controlling appellant’s pain. Appellant related to him that he worked 37 years as a rural postal
carrier for the employing establishment. His work duties included repeated heavy lifting,
twisting, turning, stretching, bending, squatting, repetitive motions, high-impact activities,
sedentary positions for long periods of time, and ascending and descending movements of the
hips. Dr. Sastry opined that these activities contributed to the development of appellant’s
bilateral hip osteoarthritis and need for hip replacement surgery.
By letter dated September 22, 2015, OWCP advised appellant of the deficiencies of his
claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In an October 3, 2011 report, Dr. Lynn noted appellant’s complaint of left greater than
right hip pain. He reviewed x-rays and diagnosed progressive arthritic change in the bilateral
hips, left side worse. On November 7, 2011 Dr. Lynn reported a diagnosis of bilateral hip
degenerative joint disease. He noted that appellant had received an intra-articular injection in the
left hip which resulted in no pain in the hip.
An October 12, 2011 report from Lawrence O’Malley, a physician assistant, indicated
that appellant received an intra-articular steroid injection in the left hip.
In reports dated February 1, 2012 to April 22, 2014, Dr. Jeffrey W. Wiley, an orthopedic
surgeon, noted appellant’s diagnosis of bilateral hip osteoarthritis, left greater than the right. He
also noted appellant’s history of difficulties with his left hip, more than the right hip. Dr. Wiley
reported findings on physical and x-ray examination. He provided an assessment that he was

2

coping well with symptomatic management of the diagnosed condition. Dr. Wiley maintained
that appellant would likely benefit from hip arthroplasty.
A left hip magnetic resonance imaging (MRI) scan report, obtained on December 15,
2014 by Dr. William Sherman, Jr. a Board-certified radiologist, provided an impression of
moderate osteoarthritis. Dr. Sherman also provided an impression of a small zone of bone
marrow edema associated with a subchondral cyst in the posterior aspect of the left femoral head.
The areas of bone marrow edema were lessor in degree than in the contralateral right hip. There
was also underlying labial degeneration. In a right hip MRI scan report dated December 15,
2014, Dr. Sherman provided an impression of moderate degenerative changes with associated
reactive or degenerative zones of bone marrow edema. There was also a degenerative appearing
tear of the acetabulum labrum.
In a December 1, 2015 decision, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record did not contain a rationalized medical opinion as to
why his diagnosed condition was caused or aggravated by the established work factors and not
by his sports activities.
In an appeal request form and letter received February 17, 2016, appellant, through his
representative, requested reconsideration. The representative contended that appellant’s
accompanying statement clarified his outside activities. He also cited Board precedent and
contended that it was unnecessary for the employment injury alone to have caused a condition.
The representative noted that, if an employment factor contributed in any way to appellant’s
condition, such condition would be considered employment related for purposes of compensation
under FECA.
In a February 11, 2016 statement, appellant noted that he had not participated in sports
activities in over 40 years. He also noted that he had not run at any level in 10 years. Appellant
maintained that he never had any injuries to his hips or sought medical treatment for them due to
his outside activities.
Appellant resubmitted Dr. Wiley’s April 22, 2014 report. He also submitted a
November 26, 2007 report from Dr. Lynn who noted appellant’s history of a left knee injury and
surgery and a right groin injury. Dr. Lynn reported findings on physical examination and
diagnosed status post arthroscopic partial medial meniscectomy and probable right adductor
strain. On February 22, 2010 he noted appellant’s chief complaint of left greater than right knee
pain and right groin pain. Dr. Lynn provided findings on physical and x-ray examination and
diagnosed arthritic change in the hips and knees left greater than right, old right hip adductor
tendinitis strain, and probable left hamstring tendinitis.
In reports dated April 14 and August 25, 2015, Dr. Sastry noted appellant’s complaint of
bilateral hip pain and history of his medical, family, and social background. He provided
findings on physical examination and reiterated his impression of bilateral hip osteoarthritis and
recommendation for hip replacements. Dr. Sastry noted that appellant had developed advanced
osteoarthritis in both hips and his right side symptoms were greater than his left side. He related
that certainly being a postman for 30 plus years could have contributed to the advancement of
arthritis. In a letter dated February 9, 2016, Dr. Sastry reviewed reports from Drs. Wiley, Lynn,

3

and Rork. He restated appellant’s work duties and his opinion that these activities caused or
contributed to appellant’s bilateral hip osteoarthritis and need for surgery.
By decision dated May 11, 2016, OWCP denied further merit review of appellant’s claim
as the evidence submitted was cumulative or irrelevant and did not advance a relevant legal
argument not previously considered or demonstrate legal error by OWCP.
In an appeal request form and letters received on July 13 and 25, 2016, appellant’s
representative requested reconsideration of the December 1, 2015 decision and submitted
medical evidence. In a June 28, 2016 report, Dr. Sastry noted that osteoarthritis, often called
“wear and tear arthritis,” had occurred in this case in both hips after years of use. It resulted in
deterioration of the cartilage that normally acted as a cushion between the bones that came
together within hip joints where the top of the femur (ball) came together with the acetabulum
(socket). Dr. Sastry related that, when the cartilage became worn at this juncture, the bones
came into direct contact which caused pain due to the deterioration that had occurred. He
restated that appellant had advanced osteoarthritis of the hips. Dr. Sastry noted his previous
description of appellant’s rural mail carrier work duties and maintained that there was no
question these activities which appellant had performed for 37 years contributed to the diagnosis
and need for hip replacement surgery. As he stated in his previous reports, he was aware of
appellant’s outside activities and still opined unequivocally that the noted physical requirements
of appellant’s job contributed to his diagnosis and need for surgery.
By decision dated September 16, 2016, OWCP denied appellant’s request for
reconsideration of the merits of the claim. It found that Dr. Sastry’s June 28, 2016 report was
cumulative in nature and substantially similar to evidence previously reviewed.
LEGAL PRECEDENT
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.2 Section 10.608(b) of OWCP’s regulations provide that a timely
request for reconsideration may be granted if OWCP determines that the claimant has presented
evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).3 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (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.4 Section 10.608(b) provides that when a request for
reconsideration is timely, but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.5
2

Id. at § 8128(a).

3

20 C.F.R. § 10.608(a).

4

Id. at § 10.606(b)(3).

5

Id. at § 10.608(b).

4

ANALYSIS
OWCP issued a December 1, 2015 decision denying appellant’s occupational disease
claim finding that the medical evidence of record did not contain a rationalized medical opinion
explaining the causal relationship between the established employment factors and his diagnosed
medical condition. On February 16 and July 13 and 25, 2016 appellant requested reconsideration
of this decision.
OWCP declined his requests for reconsideration in May 11 and
September 16, 2016 nonmerit decisions.
The Board does not have jurisdiction over the December 1, 2015 merit decision and can
consider only whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3), which
would prompt OWCP to reopen the case for merit review. The underlying issue on
reconsideration is medical in nature, whether the medical evidence establishes a causal
relationship between his bilateral hip condition and established employment factors.
The Board finds that appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant did not advance a relevant legal
argument not previously considered. In the February 16, 2016 request for reconsideration,
appellant’s representative submitted a statement from appellant and contended that it clarified his
outside activities. He also cited Board precedent on causal relationship and contribution. The
Board finds that these assertions do not show a legal error by OWCP or constitute new and
relevant legal argument. The Board notes that appellant did not make any assertions in support
of his July 13 and 25, 2016 requests for reconsideration. The Board therefore finds that he is not
entitled to a review of the merits of his claim based on the first and second above-noted
requirements under section 10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered in support of his February 16, 2016 request for reconsideration.
Dr. Sastry’s April 4 and August 25, 2015 reports reiterated that appellant had advanced bilateral
hip osteoarthritis due to his rural letter carrier work duties as discussed in his prior June 24, 2015
report. Dr. Wiley’s April 22, 2014 report was previously reviewed by OWCP in its December 1,
2015 decision. Evidence that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.6
Dr. Lynn’s November 26, 2007 and February 22, 2010 reports found that appellant was
status post arthroscopic partial medial meniscectomy and had arthritic change in the hips and
knees left greater than right, old right hip adductor tendinitis strain, and probable left hamstring
tendinitis. He did not provide an opinion as to whether the diagnosed conditions were caused or
aggravated by the established employment factors. The Board has held that the submission of
evidence which does not address the particular issue involved in the case does not constitute a
basis for reopening the claim.7

6

James W. Scott, 55 ECAB 606 (2004).

7

D’Wayne Avila, 57 ECAB 642 (2006).

5

The Board finds, therefore, that these reports of Drs. Sastry, Wiley, and Lynn are
insufficient to warrant further merit review of the claim. The Board accordingly finds that
appellant did not meet any of the requirements of 20 C.F.R. § 10.606(b)(3) in his February 16,
2016 request for reconsideration. Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit
review.
The Board finds, however, that appellant submitted relevant and pertinent new evidence
not previously considered by OWCP in support of his July 13 and 25, 2016 requests for
reconsideration. Appellant submitted a June 28, 2016 report from Dr. Sastry who opined that the
established work duties contributed to appellant’s advanced bilateral hip osteoarthritis and need
for hip replacements. Dr. Sastry explained that years of use of appellant’s hips while performing
his rural mail carrier duties resulted in deterioration of the cartilage that normally acted as a
cushion between the bones that came together within hip joints where the top of the femur ball
came together with the acetabulum socket. He further explained that, when the cartilage became
worn at this juncture, the bones came into direct contact, which caused pain due to the
deterioration that had occurred. Although this evidence reiterated Dr. Sastry’s June 24, 2015
opinion on causal relationship, his June 28, 2016 report provided greater medical rationale or
reasoning, lacking in his previous reports, in support of his conclusion on causal relationship.
This rationale directly addresses OWCP’s previous finding that the medical evidence did not
explain how the established work factors caused or aggravated appellant’s current condition and,
thus, is relevant to the issue of whether OWCP properly denied his claim for compensation.
The Board finds that Dr. Sastry’s June 28, 2016 report constitutes relevant and pertinent
new evidence not previously considered by OWCP and is sufficient to require OWCP to reopen
appellant’s claim for consideration of the merits.8 Reopening a claim for merit review does not
require a claimant to submit all evidence which may be necessary to discharge his burden of
proof.9 If OWCP should determine that the new evidence submitted lacks probative value, it
may deny modification of the prior decision, but only after the case has been reviewed on the
merits.10 On remand it shall conduct a merit review of the entire record. After such further
development as is deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s February 17, 2016 request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a). The Board finds,
however, that OWCP abused its discretion by denying his July 13 and 25, 2016 requests for
reconsideration pursuant to 5 U.S.C. § 8128(a).

8

5 U.S.C. § 10.606(b)(3).

9

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

10

See Dennis J. Lasanen, 41 ECAB 933 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board. The decision dated May 11, 2016 is affirmed.
Issued: March 17, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
J.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Lyons, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0306
Issued: May 5, 2016

Case Submitted on the Record

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

JURISDICTION
On December 8, 2015 appellant, through counsel, filed a timely appeal of a September 2,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability on June 3, 2013
causally related to her January 13, 2012 employment injury.
FACTUAL HISTORY
OWCP accepted that on January 13, 2012 appellant, then a 60-year-old food service
worker, entered a cold refrigerator and struck her right knee against the table in the performance
1

5 U.S.C. § 8101 et seq.

of duty. OWCP accepted appellant’s claim for right knee contusion. Appellant did not stop
work. She immediately returned to light duty and then returned to regular duty on
January 17, 2012. Appellant received compensation benefits.
In a March 27, 2012 report, Dr. Bin Yang, a Board-certified pathologist, noted that
appellant sustained an injury to her right knee after she struck her right knee against a table with
a flap on January 13, 2012 while on duty. He advised that appellant’s right knee x-ray revealed
no evidence of fracture, questionable small effusion, and relatively mild degenerative changes
most severe in the medial compartment. The physician diagnosed contusion of right knee with
chondromalacia and effusion secondary to trauma, and osteoarthritis of the right knee. Dr. Yang
placed appellant on modified work from January 13 to 16, 2012 and indicated that she could
return to regular duty on January 17, 2012.
In a January 4, 2013 report, Dr. Richard Boiardo a Board-certified orthopedic surgeon,
noted that appellant presented with persistent and now severe pain in the medial aspect of the
knee. He examined appellant and noted that the computerized tomography (CT) scan revealed
evidence of moderate-to-severe osteoarthritis of the medial aspect of the knee.2 The physician
recommended unicompartmental arthroplasty.
On September 5, 2013 appellant filed a notice of recurrence of disability (Form CA-2a)
alleging that she sustained a recurrence of her January 13, 2012 injury on June 3, 2013. She
explained that she stopped work on June 9, 2013 to have knee surgery.3
By letter dated October 8, 2013, OWCP informed appellant of the type of evidence
needed to support her claim for a recurrence of disability and requested that she submit such
evidence within 30 days.
On September 5, 2013 OWCP received a statement from appellant. Appellant noted that
the original injury occurred because she hit her knee on a table in the kitchen. She explained that
her knee swelled and she had continuous pain since the incident. Appellant noted that when
standing for extended periods of time the swelling increased. She advised that when she returned
to work, she was given a prescription for Percocet and monthly cortisone injections. Appellant
indicated that she was supposed to take Percocet twice a day, but she did not take it until she
completed her shift and returned home because it made her drowsy and impaired her
productivity. She explained that as a result, she was in constant pain and limping while working.
In an August 23, 2013 attending physician’s report, Dr. Boiardo advised that on March 2,
2012 appellant had an injury at work. He advised that appellant was scheduled for surgery on
June 3, 2013.
2

An October 24, 2012 CT scan of the right knee without contrast, read by Dr. Christian Annese, a Board-certified
diagnostic radiologist, revealed: no meniscal or ligament tear; full thickness cartilage loss medial compartment with
a more focal one centimeter region of osteochondral injury; small-to-moderate joint effusion; three centimeter
partially ruptured medial popliteal cyst; focal six millimeter cartilage defect in the lateral femoral condyle and a
partial thickness cartilage loss in the medial patellar facet.
3

On April 10, 2013 appellant claimed a recurrence for medical treatment that began on March 29, 2013. In a
July 15, 2013 decision, OWCP denied appellant’s claim for a recurrence for additional medical care.

2

By decision dated November 26, 2013, OWCP denied appellant’s claim for a recurrence
of disability. It found that the evidence failed to establish that appellant was disabled, or further
disabled, due to a material change of the accepted conditions.
On November 27, 2013 OWCP received an October 30, 2013 report from Dr. Boiardo,
who advised that appellant was evaluated in his office in January 2012. Dr. Boiardo indicated
that she had a “preexisting history of bilateral knee osteoarthritis” and “sustained a history of a
fall, two incidents at work, in November 2011 and January 13, 2012.”4 Appellant related that
she had a severe increase of pain in the right knee. He noted that his examination revealed
objective findings to include evidence of moderate to severe osteoarthritis to the medial aspect of
the knee. Surgery was recommended and appellant underwent right unicompartmental knee
replacement with partial medial meniscectomy and partial synovectomy on June 3, 2013.
Dr. Boiardo explained that appellant was also seen on October 29, 2013, when her physical
examination revealed that her gait and range of motion of the knee were improved. He found
that she still exhibited marked and persistent quadriceps weakness and when she was on her feet
for a prolonged period of time, she continued to have severe pain. Dr. Boiardo also noted that
appellant was complaining of pain and restricted motion in the left knee as well. He advised that
as a direct cause and result of the injuries at work, most recently the January 2012 incident,
appellant, who had functioned with preexisting osteoarthritis in both knees, especially the right
knee, could no longer stand the discomfort after the November 2011 and January 2012 work
injuries.
Dr. Boiardo explained that the knee arthritis decompensated, necessitating
unicompartmental replacement of the right knee. He explained that the repeated trauma to the
right knee and decompensation of the muscle groups around the knee were secondary to the
trauma. The physician explained that the “need to see … more mechanical load” was a direct
result of the decompensation. He further noted that appellant would require a contralateral left
knee replacement arthroplasty, either unicompartmental or total. Dr. Boiardo opined that, as a
result to the injury, appellant had permanent disability and could not perform her job.
On December 11, 2013 counsel requested a telephonic hearing, which was held before an
OWCP hearing representative on July 2, 2015. During the hearing appellant noted that she fell at
work in November 2011 but did not file a claim as it appeared to be minor. She explained that
she fell on both knees and required a few visits with her physician. She denied having any prior
knee issues. Appellant argued that the original fall did not cause her knee problem because she
recovered from the fall. She described her work duties, which included pushing trucks and
serving trays on the line and standing for four and a half hours. She indicated that she had right
knee surgery and was off work for approximately four months.
In a January 20, 2014 letter, counsel provided OWCP with a copy of Dr. Boiardo’s
October 30, 2013 report.
By decision dated September 2, 2015, OWCP’s hearing representative affirmed the
November 26, 2013 decision.

4

The present claim before the Board pertains only to the January 13, 2012 injury.

3

LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.5
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.6
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition7 that is causally related to her accepted employment injury. To meet her burden,
appellant must furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.8 Where no such
rationale is present, the medical evidence is of diminished probative value.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.10
ANALYSIS
OWCP accepted appellant’s traumatic injury claim for right knee contusion. Appellant
returned to regular duty on January 17, 2012. Appellant subsequently claimed a recurrence of
total disability beginning June 3, 2013.
However, there is no rationalized medical opinion which sufficiently explains why
appellant had a recurrence of disability caused by a spontaneous change in a medical condition
on June 3, 2013 causally related to her January 13, 2012 work injury, without an intervening
injury or new exposure to the work environment that caused the illness.11 This is especially
5

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

6

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

7

20 C.F.R. § 10.5(y) (2002).

8

Ronald A. Eldridge, 53 ECAB 218 (2001).

9

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

10

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

11

See supra note 4.

4

important as appellant claims a new exposure of prolonged standing after her return to work,
which further contributed to her condition.
The Board notes that initial medical reports submitted by Dr. Yang, reveal that there
was no evidence of fracture and he released her to regular duty four days after the event on
January 17, 2012. Furthermore, he explained that x-rays revealed osteoarthritis and mild
degenerative changes.
In support of her recurrence claim, appellant submitted several reports from Dr. Boiardo.
In his October 30, 2013, report, Dr. Boiardo noted that appellant had a “preexisting history of
bilateral knee osteoarthritis” and referenced a history of falls which included “two incidents at
work, in November 2011 and January 13, 2012.” Appellant reported that she had a severe
increase in right knee pain and noted finding evidence of moderate to severe osteoarthritis to the
medial aspect of the knee. He noted her right knee replacement with partial medial
meniscectomy and partial synovectomy on June 3, 2013. On October 29, 2013 appellant had
marked and persistent quadriceps weakness and severe pain when she was on her feet for a
prolonged period. She also reported left knee pain and restricted motion. Dr. Boiardo advised
that as a direct cause and result of work injuries, most recently the January 2012 injury,
appellant, who had functioned with preexisting osteoarthritis in both knees, could no longer
stand the discomfort. Dr. Boiardo found that the knee arthritis decompensated, necessitating
unicompartmental replacement of the right knee. He stated that the repeated trauma to the right
knee and decompensation of the muscle groups around the knee were secondary to the trauma.
Dr. Boiardo opined that as a result of the injury, appellant had permanent disability and could not
perform her job. As noted, OWCP only accepted a traumatic right knee contusion. It has not
accepted any arthritic conditions.12 Dr. Boiardo’s opinion supports that appellant sustained a
new occupational disease or injury, an aggravation of preexisting bilateral osteoarthrosis, instead
of a spontaneous change in the January 13, 2012 right knee contusion. He did not offer a
rationalized medical opinion explaining how the accepted right knee contusion led to appellant’s
current condition or the claimed recurrence of disability beginning June 3, 2013.13
Other reports from Dr. Boiardo include a January 4, 2013 report which predates the
alleged recurrence of disability. The August 23, 2013 attending physician’s report from
Dr. Boiardo contains an inaccurate date of injury as he referred to March 2, 2012 as the date of
appellant’s work injury.14 This report also does not explain how the accepted right knee
contusion caused appellant’s claimed recurrent disability beginning June 3, 2013. These reports
are insufficient to establish the claimed recurrence of disability.
Accordingly, the Board finds that appellant has not met her burden of proof in this case
as she has not submitted sufficiently reasoned medical opinion explaining why her recurrence of
12

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, she bears the burden of proof to establish that the condition
is causally related to the employment injury).
13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
supported by medical rationale is of little probative value).
14

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).

5

disability beginning June 3, 2013 was caused or aggravated by the January 13, 2012
employment injury.
On appeal counsel argues that Dr. Boiardo’s opinion was sufficiently rationalized to
support her claim. However, as noted above, Dr. Boiardo provided insufficient medical
reasoning to explain how a right knee contusion caused appellant’s diagnosed conditions and
disability beginning June 3, 2013, as opposed to a new occupational disease or injury.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability on June 3,
2013 causally related to her January 13, 2012 injury.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2016
Washington, DC

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

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

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

6