United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-497
Issued: September 29, 2011

Case Submitted on the Record

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

JURISDICTION
On December 22, 2010 appellant filed a timely appeal from the September 15, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) reducing his compensation
based on a loss of wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
September 26, 2010 based on his capacity to earn wages as a computer security specialist.
FACTUAL HISTORY
On December 16, 2003 appellant, then a 49-year-old cook supervisor, sustained injury
when he slipped on a wet floor at work and twisted his left knee. OWCP accepted that appellant
1

20 C.F.R. § 8101 et seq.

sustained a tear in the medial meniscus of his left knee and a consequential tear in the medial
meniscus of his right knee. Appellant first stopped work on December 17, 2003 and received
compensation for periods of disability.
On March 30, 2004 Dr. Jeffrey Levine, an attending Board-certified orthopedic surgeon,
performed a partial medial meniscectomy of appellant’s left knee, diagnostic arthroscopy and
examination under anesthesia of his left knee and chondroplasty/coblation technique of the
medial femoral condyle and patella of his left knee. On November 16, 2004 he performed
chondroplasty of the patella and medial compartment of appellant’s right knee and a right medial
meniscectomy. The procedures were authorized by OWCP.
On June 25, 2007 Dr. Sherwood Duhon, an attending Board-certified orthopedic surgeon,
performed a diagnostic arthroscopy of appellant’s left knee with partial medial meniscectomy
and chondroplasty of his left knee including the medial femoral condyle and the patellofemoral
joint. On October 23, 2007 he performed a cemented total right knee arthroplasty using Smith
& Nephew components. These procedures were also authorized by OWCP.2
On May 5, 2008 appellant was referred for participation in an OWCP-sponsored
vocational rehabilitation program. He successfully completed his vocational training course,
called Microsoft Certified Systems Administrator -- Security, as part of an effort to prepare him
for work as a microcomputer support specialist or computer security specialist.
In a September 22, 2008 report, Dr. Duhon stated that appellant had attained permanent
and stationary medical status with respect to his right and left knee conditions. He indicated that
appellant had residual partial disability and noted that he agreed with most of the evaluations and
opinions contained in a July 25, 2008 functional capacity evaluation. The report of the
functional capacity evaluation described a 45-pound maximum of lifting/carrying, an inability to
place objects on the floor, the need for self-pacing of walking tasks with frequent rest periods,
frequent position changes with forward bending tasks, no crouching, no kneeling, self-pacing on
stairs and use of the left hand for power gripping.
Appellant’s rehabilitation counselor worked with appellant for more than 90 days to
secure employment as a computer security specialist or computer support technician. In a
November 7, 2008 letter, OWCP advised that these positions were suitable to his work
restrictions. Appellant was informed that, at the end of the placement services, his compensation
could be reduced based upon the salary of one of these positions.3
Appellant’s rehabilitation counselor indicated that the computer security specialist
position was categorized as a sedentary position consistent within appellant’s work limitations
and labor market surveys showed that the position was reasonably available in his commuting
area.4 The Department of Labor’s Dictionary of Occupational Titles describes the duties of a
computer security specialist as including regulating access to computer data files, monitoring
2

On January 21, 2008 Dr. Duhon made an intra-articular injection under anesthesia in appellant’s right knee.

3

Appellant’s participation in placement services was extended on several occasions.

4

Labor market surveys for these positions were first performed in late 2008.

2

data file use, updating computer security files, entering commands into computers to allow
access to the computer system for employees who forget passwords, reading computer security
files to determine proper access, modifying security files to correct errors and answering
employee questions about computer security. The position requires occasional pushing, pulling
and lifting of a maximum of 10 pounds, frequent fingering and occasional reaching and handling,
but does not require kneeling, climbing, crouching or crawling. It allows for frequent switching
between sitting, standing and walking. Despite his job search efforts, appellant did not obtain a
job as a computer security specialist or computer support technician.
A labor market survey performed in July 2010 showed that the computer security
specialist position continued to be reasonably available in appellant’s commuting area and that
the position had an average wage of $802.69 a week.
Dr. Duhon was provided with a description of the computer security specialist position.
In a July 8, 2010 report, he noted that the physical demands of the computer security specialist
position were acceptable and should be tolerable given appellant’s physical limitations.
Dr. Duhon stated that it was a sedentary job and did not involve any significant amount of
squatting, climbing, bouncing, stooping, knee crouching or crawling. He noted that the job
description further indicated that appellant would not be required to stand for any extended
period “which should also be tolerable given his degenerative changes as well as his total knee
replacement.”
In a July 5, 2010 report, Dr. Ronald M. Lampert, a Board-certified orthopedic surgeon
who served as an OWCP physician, indicated that he had reviewed the descriptions of the
computer security specialist and microcomputer support specialist positions. He stated that
appellant was physically capable of performing the duties of both jobs and indicated that his
surgeries should not preclude him from performing either position. In a work restrictions form,
Dr. Lampert indicated that appellant was limited to 30 minutes of walking or standing before a
break was required. Appellant could engage in one or two steps of climbing on an occasional
basis, but he could not engage in squatting or kneeling. Dr. Lampert stated that appellant was
limited in repetitive use of his right hand, but had no lifting, pushing or pulling limitations.
In an August 11, 2010 letter, OWCP advised appellant that it proposed to reduce his
compensation based on its determination that he had the capacity to earn wages as a computer
security specialist at the rate of $802.69 a week. It provided him 30 days from the date of the
letter to submit evidence and argument challenging the proposed action.
Appellant did not submit any evidence or argument in response to OCWP’s August 11,
2010 letter.5
In a September 15, 2010 decision, OWCP reduced appellant’s compensation effective
September 26, 2010 based on his capacity to earn wages as a computer security specialist.

5

On August 16, 2010 appellant spoke to an OWCP claims examiner on the telephone and discussed his difficulty
in getting a job.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.7
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.8
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.9 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.10 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his
commuting area.11
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.12

6

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984).

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

9

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

10

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
11

See Leo A. Chartier, 32 ECAB 652, 657 (1981).

12

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953).

4

ANALYSIS
On December 16, 2003 appellant sustained injury when he slipped on a wet floor at work
and twisted his left knee. OWCP accepted that he sustained a tear in the medial meniscus of his
left knee and a consequential tear in the medial meniscus of his right knee. Appellant underwent
several OWCP-authorized surgeries, including a right knee replacement which was performed on
October 23, 2007 by Dr. Duhon, an attending Board-certified orthopedic surgeon.
In September 2008, OWCP received information from Dr. Duhon who found that
appellant was not totally disabled for work and had a partial capacity to perform work for eight
hours per day subject to specified work restrictions. Appellant’s vocational rehabilitation
counselor determined that appellant was able to perform the position of computer security
specialist and that state employment services showed the position was available in sufficient
numbers so as to make it reasonably available within appellant’s commuting area. OWCP
properly relied on the opinion of the rehabilitation counselor that appellant was vocationally
capable of performing the computer security specialist position13 and a review of the evidence
reveals that he is physically capable of performing the position.
In a July 8, 2010 report, Dr. Duhon indicated that he had reviewed the description of the
computer security specialist position and noted that the physical demands of the computer
security specialist position were acceptable and should be tolerable given appellant’s physical
limitations. He stated that it was a sedentary job and did not involve any significant amount of
squatting, climbing, bouncing, stooping, knee crouching or crawling. Dr. Duhon noted that the
job description further indicated that appellant would not be required to stand for any extended
period and that he could tolerate the limited standing required by the position. In a July 5, 2010
report, Dr. Lampert, a Board-certified orthopedic surgeon who served as an OWCP physician,
indicated that he had reviewed the description of the computer security specialist position. He
stated that appellant was physically capable of performing the duties of the position and
indicated that his surgeries should not preclude him from performing the position.14
Appellant did not submit any evidence or argument showing that he could not
vocationally or physically perform the computer security specialist position. On appeal, he
argued that another attending physician should have addressed the condition of his knees.
Appellant was provided an opportunity to present probative medical evidence showing that he
could not work as a computer security specialist, but he did not submit such evidence within the
allotted time period. He also claimed that OWCP officials made mistakes in describing his knee

13

As part of the rehabilitation efforts, appellant successfully completed coursework designed to prepare him to
work as a computer security specialist.
14

In a work restriction form, Dr. Lampert indicated that appellant was limited to 30 minutes of walking or
standing before a break was required. Appellant could engage in one or two steps of climbing on an occasional
basis, but he could not engage in squatting or kneeling. Dr. Lampert stated that appellant was limited in repetitive
use of his right hand, but had no lifting, pushing or pulling limitations. The Board notes that none of these
restrictions would prevent appellant from working as a computer security specialist.

5

surgeries. However, there is no indication in the record that Dr. Duhon or Dr. Lampert did not
base their opinions on a proper factual and medical history.15
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of a computer security specialist represented appellant’s wageearning capacity.16 The weight of the evidence of record establishes that he had the requisite
physical ability, skill and experience to perform the position of a computer security specialist and
that such a position was reasonably available within the general labor market of appellant’s
commuting area. Therefore, OWCP properly reduced appellant’s compensation effective
September 26, 2010 based on his capacity to earn wages as a computer security specialist.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation effective
September 26, 2010 based on his capacity to earn wages as a computer security specialist.

15

Appellant indicated that he had difficulty finding a job in the computer field, but the fact that an employee has
been unsuccessful in obtaining work in the selected position does not establish that the work is not reasonably
available in his commuting area. See supra note 11.
16

See Clayton Varner, 37 ECAB 248, 256 (1985).

6

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 29, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.K., Appellant
and
U.S. POSTAL SERVICE, MAIL RECOVERY
CENTER, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-346
Issued: November 29, 2010

Case Submitted on the Record

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

JURISDICTION
On October 30, 2009 appellant filed a timely appeal of an August 11, 2009 decision of
the Office of Workers’ Compensation Programs, denying her request for a review of the written
record. Since more than 180 days elapsed from issuance of the merit decision of February 23,
2009 to the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not
have jurisdiction to review the merits of this case.1
ISSUE
The issue is whether the Office abused its discretion by denying appellant’s request for a
review of the written record.

1

For Office decisions issued prior to November 19, 2008, the Board’s regulations provided up to one year to file
an appeal. 20 C.F.R. § 5013(d)(2). For Office decisions issued on and after November 19, 2008, a claimant has 180
days to appeal. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On January 9, 2009 appellant filed a traumatic injury claim (Form CA-1) alleging that
she sustained an emotional condition on November 12, 2008 as a result of harassment by her
manager.2
In a February 23, 2009 decision, the Office denied appellant’s claim. It found that she
did not establish the traumatic incident of November 12, 2008 as alleged and that the medical
evidence was not sufficient to support her claim of injury.3
By letter postmarked March 26, 2009, appellant requested a review of the written record.
In a decision dated August 11, 2009, the Office denied appellant’s request, finding that it
was untimely filed. It considered her request in its discretion and determined that the issue in her
case could equally well be addressed by requesting reconsideration by the district Office and
submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that “a
claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”4 Section 10.615 of the federal regulations
implementing this section of the Act provides that a claimant shall be afforded a choice of an
oral hearing or a review of the written record.5 The request “must be sent within 30 days (as
determined by postmark or other carrier’s date marking) of the date of the decision for which a
hearing is sought.”6 A claimant is entitled to a hearing or review of the written record as a matter
of right if the request is filed within 30 days.7
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, the Office has the discretionary authority to grant the
request and must properly exercise such discretion.8

2

The employer controverted the claim, noting that appellant was given an interview for disruptive conduct on the
workroom floor. Appellant was placed on emergency placement.
3

On January 13, 2009 the Office apprised appellant of the need to submit additional factual and medical evidence
in support of her claim.
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

Leona B. Jacobs, 55 ECAB 753 (2004).

8

See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss; 40 ECAB 640 (1989); Rudolph Bermann, 26
ECAB 354 (1975).

2

ANALYSIS
The Office denied appellant’s traumatic emotional condition claim in a February 23,
2009 decision. It found that she failed to establish the November 12, 2008 incident at work and
that the medical evidence was not sufficient to support her claim of injury.
Appellant filed her request for a review of the written record by an Office hearing
representative in a letter postmarked on March 26, 2009, received by the Office on April 3, 2009.
As her request was not filed within 30 days of the February 23, 2009 decision denying her claim,
she was not entitled to a review of the record as a matter of right.
The Office exercised its discretionary authority with regard to appellant’s request. It
notified her that the issue in her claim could be equally well addressed by requesting
reconsideration by the district Office and submitted evidence not previously considered. The
only limitation on the Office’s discretionary authority is reasonableness.9 There is no evidence
that it abused its discretion by denying appellant’s request for a hearing under these
circumstances.10 The Board has held that this is a reasonable exercise of the Office’s
discretionary authority.11
CONCLUSION
The Board finds the Office did not abuse its discretion in denying appellant’s untimely
request for review of the written record.

9

See Hubert Jones, Jr., 57 ECAB 467, 473 (2006).

10

See André Thyratron, 54 ECAB 257 (2002).

11

See G.W., 61 ECAB ___ (Docket No. 10-782, issued April 23, 2010); D.M., 60 ECAB ___ (Docket No. 081814, issued January 16, 2009); Steven A. Andersen, 53 ECAB 367 (2002).

3

ORDER
IT IS HEREBY ORDERED THAT the August 11, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 29, 2010
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Fresno, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1889
Issued: April 14, 2021

Case Submitted on the Record

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

JURISDICTION
On September 10, 2019 appellant filed a timely appeal from an April 16, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed since OWCP’s last merit decision, dated August 1, 2018, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 16, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board orders are incorporated herein by reference. The relevant facts are as follows.
On June 17, 2016 appellant, then a 53-year-old clerk (developmental), filed an
occupational disease claim (Form CA-2) alleging that she developed lower back pain and right leg
radiculitis due to the performance of critical federal job duties. She indicated that she first became
aware of her condition and its relationship to her federal employment on March 19, 2015.
Appellant resigned from the employing establishment effective May 17, 2015.
In support of her claim, appellant submitted medical evidence, including reports from
Jennifer L. Davis, a nurse practitioner, and Karen Wong, a certified physician assistant. In a
June 19, 2015 report, Ms. Wong discussed examination findings and provided assessments of
cough variant asthma and allergic rhinitis, cause unspecified.
Appellant also submitted an October 12, 2016 lumbar spine magnetic resonance imaging
(MRI) scan report by Dr. William Gonser, a Board-certified diagnostic radiologist. Dr. Gonser
provided an impression of broad-based disc herniation and hypertrophic facet changes greatest at
the L4-5 level causing left lateral recess stenosis and mild left foraminal stenosis.
OWCP, by decision dated November 2, 2016, denied appellant’s occupational disease
claim finding that she had not submitted a rationalized medical opinion from a physician
explaining how her diagnosed conditions were causally related to the accepted factors of her
federal employment. Consequently, OWCP concluded that the requirements had not been met to
establish an employment-related injury or medical condition.
On January 3, 2017 appellant requested reconsideration and submitted additional medical
evidence.
By decision dated March 14, 2017, OWCP modified the November 2, 2016 decision to
reflect that the denial of appellant’s claim was based on the finding that the factual component of
fact of injury had not been established. It noted that the evidence of record did not either discuss
factors of her federal employment or relate a diagnosed medical condition to her employment
factors.
On April 3, 2017 appellant again requested reconsideration. She submitted additional
medical and factual evidence in support of her reconsideration request.

3
Order Dismissing Appeal, Docket No. 17-1597 (issued November 16, 2017); Order Dismissing Appeal, Docket
No. 18-1811 (issued February 27, 2019).

2

OWCP, by decision dated June 20, 2017, denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a) finding that the request did not establish
that it had erroneously applied or interpreted a point of law, contain a relevant legal argument not
previously considered, or include relevant and pertinent new evidence.4
On January 2, 2018 appellant requested reconsideration before OWCP and continued to
submit factual and medical evidence.
By decision dated April 12, 2018, OWCP modified its March 14, 2017 decision, finding
that the factual component of fact of injury had been established. The claim remained denied,
however, because the medical evidence submitted was insufficient to establish a causal
relationship between appellant’s diagnosed conditions and the accepted factors of her federal
employment.
Appellant requested reconsideration on May 10, 2018 and submitted additional medical
evidence.
In an August 1, 2018 decision, OWCP denied modification of its April 12, 2018 decision.
It found that the medical evidence submitted was insufficient to establish causal relationship.
On September 27, 2018 appellant appealed to the Board.
OWCP subsequently received a November 13, 2018 report by Dr. Hany Nasr, a Boardcertified pain medicine specialist, who examined appellant and diagnosed lumbar radiculitis,
lumbar degenerative disc disease, lumbar facet arthropathy, and myofascial pain syndrome.
OWCP also received hospital emergency department discharge instructions dated
January 25 and April 7, 2018 signed by a physician assistant and registered nurses indicated that
appellant was evaluated for back pain and injury and leg pain/weakness. The discharge diagnoses
were viral respiratory illness with wheezing and right leg peripheral neuropathy.
In office clinic notes dated August 16 and September 25, 2018, Dr. Asma Tariq, a family
practitioner, provided diagnoses of hypertension, low back pain, history of blurry vision,
overweight, neuropathy, and fatigue.
Dr. Luke S. Bianco, a Board-certified ophthalmologist, noted in a September 25, 2018
report, that appellant was evaluated for diabetes. He found that she had no diabetic retinopathy in
either eye on a baseline retina examination.
By letter dated January 29, 2019, appellant advised the Board that she wished to withdraw
her appeal of the August 1, 2018 OWCP decision. On February 19, 2019 she requested
reconsideration before OWCP.
In support of her reconsideration request, appellant submitted additional reports and
hospital emergency department discharge instructions dated May 14, 2015 through April 11, 2018
4
On July 21, 2017 appellant appealed to the Board and, by order dated November 16, 2017, the Board dismissed
her appeal as she requested by letter dated September 24, 2017. Docket No. 17-1597, id.

3

signed by registered nurses and physician assistants. The discharge diagnoses again included right
leg peripheral neuropathy and viral upper respiratory illness. Additional discharge diagnoses
included type II diabetes mellitus with hyperosmolarity without nonketotic hyperglycemichyperosmolar coma, other schizophrenia, chronic pain syndrome, unspecified hyperlipidemia,
impaired fasting glucose, and spondylosis, site unspecified.
Appellant resubmitted Ms. Wong’s June 19, 2015 report. In addition, she submitted
Ms. Wong’s May 19, June 25, July 23, and September 8 and 28, 2015 reports which included
assessments of asthma, thoracic or lumbosacral neuritis or radiculitis, other and unspecified
hyperlipidemia, nonallopathic lesion of sacral region, hypertension, obesity, type II diabetes,
lumbago, and acquired spondylolisthesis.
Laboratory reports dated November 29, 2015 and January 25, 2018 provided test results.
In reports dated April 27 and May 22, 2017, and April 19, 2018, Dr. Tariq reexamined
appellant. He reiterated his diagnoses of low back pain and hypertension. Dr. Tariq also diagnosed
other chronic pain, abdominal pain, rash, sciatica associated with disorder of the lumbar spine,
mixed hyperlipidemia, and prediabetes. In discharge instructions, he indicated that appellant was
evaluated on September 16, 2018. The discharge diagnoses were bilateral leg pain and
paresthesias/numbness.
In a report dated February 1, 2018, Dr. Patrick Justiz, a Board certified family practitioner,
examined appellant and provided an assessment of unspecified acute upper respiratory infection.
Additional hospital emergency department discharge instructions were submitted. In
July 22, 2018 hospital emergency department discharge instructions, Dr. Angela F. Bell, a
physician specializing in emergency medicine, provided a discharge diagnosis of gastroesophageal
reflux. In discharge instructions dated October 2, 2018, Dr. Robert A. Castillo, a Board-certified
family practitioner, diagnosed a history of spinal stenosis and lower back pain. Dr. Mark A. Eller,
an emergency medicine specialist, in discharge instructions dated November 8, 2018, diagnosed
chronic right leg pain.
On January 3, 2019 Dr. Evelyn Mbanefo5 reported assessments of essential primary
hypertension and chronic pain syndrome.
By order issued on February 27, 2019,6 the Board dismissed appellant’s appeal of OWCP’s
August 1, 2018 decision as requested in her January 29, 2019 letter.
OWCP thereafter continued to receive medical evidence. In additional reports dated
January 29 and March 18, 2019, Dr. Nasr reiterated his prior assessments of lumbar radiculitis,
lumbar degenerative disc disease, lumbar facet arthropathy, and myofascial pain syndrome.
A September 8, 2015 lumbar spine x-ray, ordered by Dr. Kendall Wong, a diagnostic
radiologist, noted impressions of borderline disc space narrowing at the L4-5 level suggesting
5

The Board notes that Dr. Mbanefo’s professional qualifications are not contained in the case record.

6

Docket No. 18-1811, supra note 3.

4

discogenic disease; grade 1 spondylolisthesis of L4 on L5 presumably simply due to degenerative
change; minimal degenerative changes with maintenance of the vertebral alignment; and pelvic
calcifications felt most consistent with phleboliths.
In a March 22, 2018 lumbar spine MRI scan report, Dr. Michael Shin, a diagnostic
radiologist, provided an impression of degenerative disc disease at L4-5 with diffuse disc bulging
and severe bilateral facet hypertrophy resulting in mild central canal stenosis and bilateral neural
foraminal narrowing.
Appellant resubmitted Dr. Gonser’s October 12, 2016 lumbar spine MRI scan report.
Additionally, appellant submitted a discharge summary report dated November 2, 2015
signed by a physical therapist.
On April 9, 2019 appellant continued to request reconsideration of OWCP’s August 1,
2018 decision.
By decision dated April 16, 2019, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens

7
5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

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

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
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.

5

and reviews the case on its merits.10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s timely April 9, 2019 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law. Additionally,
the Board finds that she did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based
on either the first or second above-noted requirements under 20 C.F.R. § 10.606(b)(3). The Board
further finds that she did not submit relevant and pertinent new evidence not previously considered
by OWCP.
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request under 20 C.F.R. § 10.606(b)(3). OWCP previously
denied her claim because the medical evidence of record did not contain a rationalized opinion
finding that her diagnosed conditions were causally related to the accepted employment factors.
In support of her reconsideration request, appellant submitted new reports dated April 27, 2017
through March 18, 2019 from Drs. Tariq, Nasr, Castillo, and Eller who diagnosed lumbar and
bilateral leg conditions. None of these physicians, however, provided a medical opinion as to
whether appellant’s diagnosed conditions were causally related to the accepted employment
factors. 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.12
Likewise, the reports dated February 1, July 22, and September 25, 2018, and January 3,
2019 of Drs. Bell, Justiz, Bianco, and Mbanefo are new, but do not contain an opinion on the
causal relationship between appellant’s gastroesophageal reflux, upper respiratory infection,
hypertension, and chronic pain syndrome, and the accepted employment factors. Thus, the Board
finds that this evidence is insufficient to warrant a merit review of the claim.13
Additionally, while appellant submitted new diagnostic reports dated September 8, 2015
and March 22, 2018 from Dr. Wong and Dr. Shin and laboratory reports dated November 29, 2015
and January 25, 2018, the Board has explained that diagnostic studies, standing alone, lack
probative value as they do not address whether appellant’s employment duties caused a diagnosed
10

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); see B.S., Docket No. 20-0761 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
12

Y.L., Docket No. 20-1025 (issued November 25, 2020); E.W., Docket No. 19-1393 (issued January 29, 2020);
R.R., Docket No. 18-1562 (issued February 22, 2019); K.B., Docket No. 18-1392 (issued January 15, 2019).
13

Id.

6

condition.14 These reports are therefore irrelevant and do not constitute a basis for reopening the
claim as they do not address the particular issue involved.15
Reports dated May 14, 2015 through April 11, 2018 from physician assistants, registered
nurses, and a physical therapist were also submitted. The Board finds that submission of these
reports did not require reopening appellant’s case for merit review because they have no probative
value on the underlying issue on reconsideration. These reports do not constitute competent
medical evidence because physician assistants, registered nurses, and physical therapists are not
considered physicians as defined under FECA.16 Therefore, this evidence is not relevant and is
insufficient to require a merit review.17
Appellant resubmitted Dr. Gonser’s October 12, 2016 lumbar spine MRI scan report. The
Board has held that 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.18 As appellant did not
provide relevant and pertinent evidence, she is not entitled to a merit review based on the third
requirement under 20 C.F.R. § 10.606(b)(3).19
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.20
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

14

See Y.H., Docket No. 18-1618 (issued January 21, 2020); S.D., Docket No. 18-1734 (issued March 12, 2019).

15

Supra note 12.

Section 8101(2) of FECA provides that a physician “includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also supra note 9 at Chapter 2.805.3a(1)
(January 2013); D.C., Docket No. 19-0354 (issued May 27, 2020) (physician assistants are not physicians under
FECA); D.S., Docket No. 19-1657 (July 20, 2020) (registered nurses are not considered physicians under FECA);
D.S., Docket No. 18-0353 (issued February 18, 2020) (physical therapists are not considered physicians under FECA);
David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA).
16

17

Id.

18

J.V., Docket No. 19-0990 (issued August 26, 2020); D.M., Docket No. 18-1003 (issued July 16, 2020); L.C.,
Docket No. 19-0503 (issued February 7, 2020); A.A., Docket No. 18-0031 (issued April 5, 2018).
19

Supra note 9.

20

D.G., Docket No. 19-1348 (issued December 2, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
LOGISTICS & DISTRIBUTION CENTER,
Swedesboro, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1195
Issued: October 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 8, 2012 appellant, through his attorney, filed a timely appeal of the January 18,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed
a schedule award for right upper extremity impairment. 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 greater than three percent impairment of the right
upper extremity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 54-year-old mail handler, has an accepted claim for right carpal tunnel
syndrome which arose on or about January 1, 2006. He underwent a right carpal tunnel release
on May 2, 2007. On April 8, 2008 appellant filed a claim for a schedule award (Form CA-7).
In a report dated November 28, 2007, Dr. Nicholas P. Diamond, a pain management
specialist, found 52 percent impairment of the right upper extremity under the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides (5th ed. 2001). The overall rating represented a combination of impairments for right
lateral pinch deficit (30 percent) and a grade 2 sensory deficit involving the right median nerve
(31 percent).
The district medical adviser (DMA) reviewed the case on November 4, 2008 and found
10 percent impairment of the right upper extremity under the A.M.A., Guides (5th ed. 2001).2
The DMA disagreed with Dr. Diamond’s grade 2 assessment and instead found a grade 4 sensory
deficit, thus reducing the rating to 10 percent rather than 31 percent as noted by Dr. Diamond.
The DMA also explained that Dr. Diamond improperly relied on loss of lateral pinch strength.
According to the DMA, appellant had normal clinical strength and there was no median nerve
motor loss and thus, no impairment for median nerve motor deficit.
Based on Dr. Diamond’s and the DMA’s differing impairment ratings, OWCP declared a
conflict in medical opinions and, therefore, referred appellant to an impartial medical examiner
(IME). OWCP also referred the DMA’s November 4, 2008 report to Dr. Diamond for review
and comment. In an April 22, 2009 report, Dr. Diamond reaffirmed his “[g]rade 2” assessment
as well as his reliance on pinch strength rather than manual muscle strength testing. He
reiterated that appellant had 52 percent impairment of the right upper extremity.
Dr. George P. Glenn Jr., a Board-certified orthopedic surgeon and IME, examined
appellant on May 5, 2009. He applied the latest edition of the A.M.A., Guides as instructed by
OWCP and found one percent right upper extremity impairment pursuant to Table 15-23,
Entrapment/Compression Neuropathy Impairment, A.M.A., Guides 449 (6th ed. 2008).
On June 4, 2009 another DMA who was not involved in creating the conflict reviewed
Dr. Glenn’s findings and disagreed with his one percent right upper extremity impairment rating.
The DMA believed that appellant had at least two percent impairment and possibly three percent.
OWCP referred the DMA’s June 4, 2009 findings to Dr. Glenn but the July 7, 2009
correspondence was returned as undeliverable.
By decision dated April 22, 2010, OWCP granted a schedule award for three percent
impairment of the right upper extremity. The award covered a period of 9.36 weeks from May 5
to July 9, 2009.

2

At the time, Dr. Morley Slutsky, Board-certified in occupational medicine, served as DMA.

2

In a report dated June 4, 2010, Dr. Diamond applied the latest edition of the A.M.A.,
Guides to his November 28, 2007 examination results and found appellant had five percent right
upper extremity impairment under Table 15-23, A.M.A., Guides 449 (6th ed. 2008).
In a decision dated June 30, 2010, the Branch of Hearings and Review set aside the
April 22, 2010 schedule award. The hearing representative found that the current DMA could
not resolve the conflict between Dr. Diamond and Dr. Slustky, the previous DMA. He explained
that it was Dr. Glenn’s responsibility to resolve the conflict. The hearing representative
identified Dr. Glenn’s current address and advised OWCP to forward the DMA’s June 4, 2009
findings to him for review.
In a supplemental report dated August 24, 2010, Dr. Glenn agreed that he had
misinterpreted the A.M.A., Guides when he adjusted the rating downward based on appellant’s
functional score of one. He indicated that the default rating of two percent was appropriate.
Dr. Glenn specifically disagreed with the DMA’s finding that an even higher adjustment to three
percent was required under Table 15-23, A.M.A., Guides 449 (6th ed. 2008).
In a report dated October 4, 2010, the DMA noted that he accepted the IME’s two percent
rating.
In an October 29, 2010 decision, OWCP found that appellant had not established that he
had a greater right upper extremity impairment than the previous award for three percent.
Appellant requested a hearing which was held on March 11, 2011. In a decision dated
June 7, 2011, the hearing representative remanded the case because the DMA had not reviewed
Dr. Diamond’s June 4, 2010 impairment rating. The hearing representative also found that the
previous conflict between Dr. Diamond and the DMA regarding impairment under the fifth
edition of the A.M.A., Guides (2001) was rendered moot once OWCP adopted the sixth edition
effective May 1, 2009. As such, the hearing representative found that Dr. Glenn’s May 5, 2009
examination and impairment rating under the A.M.A., Guides (6th ed. 2008) was a second
opinion examination rather than a referee examination.
In a report dated June 27, 2011, the DMA explained that the difference between
Dr. Glenn’s two percent rating and Dr. Diamond’s supplemental five percent rating was that
when Dr. Diamond saw appellant on November 28, 2007 his physical examination revealed a
decrease in grip strength. However, when Dr. Glenn examined appellant one and a half years
later his physical examination results were normal. The DMA concluded that appellant’s
condition had improved over one and a half years and he believed Dr. Glenn’s more recent
examination findings should be accepted. Accordingly, the DMA recommended no increase
over the prior schedule award.
By decision dated July 22, 2011, OWCP again denied an increase over the prior award.
Appellant requested another hearing which was held on November 16, 2011.
In a decision dated January 18, 2012, the hearing representative affirmed OWCP’s
July 22, 2011 opinion based on Dr. Glenn’s August 24, 2010 supplemental report.

3

LEGAL PRECEDENT
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.3 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.4 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).5
FECA provides that, if there is disagreement between an OWCP-designated physician
and the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.6 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”7 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well reasoned and based upon a proper factual background, must be given special
weight.8
ANALYSIS
OWCP initially determined that a conflict arose between its DMA and Dr. Diamond
regarding the extent of appellant’s right upper extremity impairment under the A.M.A., Guides
(5th ed. 2001). It referred appellant to Dr. Glenn to resolve the conflict. However, at the time
Dr. Glenn examined appellant on May 5, 2009, OWCP no longer utilized the fifth edition of the
A.M.A., Guides. Therefore, he rated appellant’s right upper extremity impairment pursuant to
the A.M.A., Guides (6th ed. 2008). Dr. Glenn initially found one percent right upper extremity
impairment under Table 15-23, A.M.A., Guides 449 (6th ed. 2008), but later revised his rating to
two percent impairment.
On April 22, 2010 OWCP granted a schedule award for three percent right upper
extremity impairment based on the DMA’s June 4, 2009 report. It has since issued five other

3

For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
4

20 C.F.R. § 10.404.

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
6

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). The DMA, acting on
behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
7

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

8

Gary R. Sieber, 46 ECAB 215, 225 (1994).

4

decisions regarding appellant’s entitlement to a schedule award. In the interim, Dr. Glenn has
been relegated from IME to a second opinion physician.
The Board finds that Dr. Glenn’s May 5, 2009 examination findings and his August 24,
2010 supplemental report represents the weight of the medical evidence regarding appellant’s
right upper extremity impairment. As noted, he ultimately found that appellant had two percent
impairment of the right upper extremity under Table 15-23, A.M.A., Guides 449 (6th ed. 2008),
which represents the default value for a grade modifier 1 impairment.
In contrast, Dr. Diamond found five percent impairment of the right upper extremity. He
also applied Table 15-23; however, he indicated there was grade modifier 2 impairment.
Dr. Diamond based his June 4, 2010 impairment rating on examination findings that were more
than two and a half years old. As the DMA explained, the primary difference between
Dr. Glenn’s rating and Dr. Diamond’s rating is that Dr. Glenn’s more recent physical
examination revealed that appellant’s condition had improved over the one-and-a-half-year
period that separated the two examinations.
On appeal, counsel argues that there is an unresolved conflict in medical opinion and,
therefore, the case should be remanded for referral to an IME. The Board rejects this argument
for two reasons. First, for a conflict to arise the opposing physicians’ viewpoints must be of
“virtually equal weight and rationale.”9 Dr. Diamond’s report is not equally weighted when
compared to Dr. Glenn’s more recent report. Dr. Glenn’s May 5, 2009 evaluation is a more
accurate representation of appellant’s current condition. As noted, the DMA believed the
difference between the two reports demonstrated an improvement in appellant’s overall
condition. He agreed with Dr. Glenn’s rating. The Board finds no fault with OWCP’s reliance
on the more recent of the two examinations.
The Board finds that his August 24, 2010 supplemental report conforms to the A.M.A.,
Guides (6th ed. 2008), and thus, represents the weight of the medical evidence regarding the
extent of appellant’s right upper extremity impairment.10 Appellant has not submitted any
probative medical evidence demonstrating he has greater than three percent impairment of the
right upper extremity.
Lastly, counsel argued that the April 22, 2010 three percent schedule award should have
been paid at the 3/4 rate rather than the 2/3 compensation rate. He previously submitted a copy
of appellant’s marriage certificate in support of his claim for an increased compensation rate.
Because OWCP has not yet addressed the question of whether appellant had eligible dependents
during the period May 5 to July 9, 2009, the issue is not presently before the Board.

9

Darlene R. Kennedy, supra note 7.

10

On appeal, counsel raised several arguments regarding Dr. Glenn’s designation as IME. Given that OWCP has
relegated Dr. Glenn to second opinion status; counsel’s arguments regarding proper selection of an IME are moot.

5

CONCLUSION
Appellant has not established that he has greater than three percent impairment of the
right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.11
Issued: October 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

Appellant may request a schedule award or increased schedule award based on evidence of new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, O’HARE AIR MAIL
FACILITY, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2183
Issued: February 22, 2008

Case Submitted on the Record

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

JURISDICTION
On August 27, 2007 appellant filed a timely appeal from a May 24, 2007 decision of the
Office of Workers’ Compensation Programs, denying his claim for leave buy back. 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 appellant was entitled to leave buy back for 344 hours on
intermittent dates between February 15 and July 20, 2006 due to his accepted left shoulder and
upper arm sprains.
FACTUAL HISTORY
On April 3, 2006 appellant, then a 47-year-old mail handler, filed a traumatic injury
claim alleging that on January 6, 2006 he injured his left shoulder while pulling a bulk mail
container. A February 9, 2006 disability certificate from Dr. Reuben T. Nichols, an attending
physician, indicated that appellant could return to work in a light-duty capacity on
February 14, 2006 The Office accepted his claim for sprains of the left shoulder and upper arm.

Appellant subsequently filed a claim for lost wages for February 15 to 24, April 1 to 7 and 14,
May 1, 5, 12 and 27 to June 2, 15 and 21 to July 20, 2006.
In an April 13, 2006 disability certificate, Dr. Nichols diagnosed a lumbar syndrome and
chest pain. He indicated that appellant was able to perform restricted work as of April 8, 2006.
In a May 5, 2006 disability certificate, Dr. Nichols diagnosed a lumbar syndrome and indicated
that appellant was disabled between May 2 and 4, 2006. Appellant could perform restricted
work as of May 5, 2006.
In a May 15, 2006 report, Dr. Nichols stated that he examined appellant on January 20
and February 14, 2006 for left shoulder pain sustained on January 6, 2006 “after pulling
packages at work.” He stated:
“Findings on physical examination included left suprascapular area tenderness
and spasm. [T]he range of motion of his shoulder was full but guarded. Our
impression was left shoulder sprain and [appellant] was started on physical
therapy and treated with muscle relaxants and anti-inflammatory pills.
“[Appellant] had a return visit February 14, 2006 still having some pain and
discomfort but improved and physical therapy was continued.
“When [appellant] was last seen on April 4, 2006 he was complaining of pain in
his left chest area and it was unclear whether this pain was indeed related to his
shoulder injury or this pain was cardiac since he also has severe dyslipidemia.1 A
stress test was ordered to rule out any cardiac etiology.
“The possibility also exists that this pain was related to [appellant’s] … left
shoulder injury.
“[Appellant] was allowed to return to duty with lifting restrictions regarding his
left shoulder. If he continues to have intermittent pain[,] an MRI [magnetic
resonance imaging] scan will be necessary.”
On June 12, 2006 the Office advised appellant that Dr. Nichols’ May 15, 2006 report was
insufficient to establish that he had a work-related chest condition. It requested a medical report
with a history of the condition, current clinical findings and the results of any tests or x-rays, a
diagnosis and a rationalized medical opinion on the causal relationship, if any, between the
diagnosed condition and appellant’s employment.
In a June 27, 2006 disability certificate, Dr. Nichols diagnosed dyslipidemia and chest
pain. He indicated that appellant was disabled between June 18 and July 20, 2006. On June 29,
2006 Dr. Nichols stated that appellant’s left chest pain was musculoskeletal in nature. He opined
that the chest pain was related to his January 6, 2006 employment injury.
1

Dyslipidemia is an abnormality in, or abnormal amounts of, lipids and lipoproteins in the blood.
DORLAND’S, Illustrated Medical Dictionary (30th ed. 2003) 575.

2

See

On December 12, 2006 the Office advised appellant that he needed to provide additional
medical evidence containing medical rationale explaining how his disability on the claimed dates
between February 15 and July 20, 2006 was causally related to his accepted left shoulder and
upper arm sprains. He submitted a copy of the employing establishment accident report
indicating that the January 6, 2006 incident occurred because appellant lacked adequate
equipment safety training.
By decision dated May 24, 2007, the Office denied appellant’s claim for leave buy back
on the grounds that the evidence did not establish that he was disabled on intermittent dates
between February 15 and July 20, 2006 due to his January 6, 2006 employment injury.2
LEGAL PRECEDENT
Appellant has the burden of proving by the preponderance of the reliable, probative and
substantial evidence that he was disabled for work as the result of an employment injury.3
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
disability for employment resulting from the employment injury.4 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.5
In situations where compensation is claimed for periods where leave was used, the Office
has the authority to determine whether the employee was disabled during the period for which
compensation is claimed.6 The Office determines whether the medical evidence establishes that
an employee is disabled by an employment-related condition during the period claimed for leave
buy back, after which the employing establishment will determine whether it will allow the
employee to buy back the leave used.7
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed injury and his
employment.8 To establish a causal relationship, appellant must submit a physician’s report in
2

Appellant submitted additional evidence subsequent to the Office decision of May 24, 2007. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

David H. Goss, 32 ECAB 24 (1980).

4

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

5

Edward H. Horten, 41 ECAB 301 (1989).

6

Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425, which provides: “The employee may
claim compensation for periods of annual and sick leave which are restorable in accordance with the rules of the
employing [establishment]. Forms CA-7 and CA-7b are used for this purpose.”
7

Laurie S. Swanson, supra note 6.

8

Donald W. Long, 41 ECAB 142 (1989).

3

which the physician reviews the employment factors identified by appellant as causing his
condition and, taking these factors into consideration, as well as findings upon physical
examination of appellant and his medical history, state whether the employment factors caused
or aggravated appellant’s diagnosed conditions and present medical rationale in support of his or
her opinion.9
ANALYSIS
Appellant filed a claim for leave buy back for 344 hours of leave on intermittent dates
between February 15 and July 20, 2006 due to his accepted left shoulder and upper arm sprains.
Dr. Nichols diagnosed a lumbar syndrome, dyslipidemia and chest pain. He indicated
that appellant was disabled between May 2 and 4 and June 18 to July 20, 2006. Dr. Nichols
examined appellant on January 20 and February 14, 2006 for a left shoulder sprain sustained on
January 6, 2006 after pulling packages at work. Treatment consisted of physical therapy and
muscle relaxant and anti-inflammatory medication. When appellant was last seen on April 4,
2006, he was experiencing left chest pain. It was unclear whether the chest pain was related to
the accepted shoulder sprain or was due to a cardiac condition since appellant had severe
dyslipidemia. A stress test was ordered to rule out any cardiac etiology. Dr. Nichols stated that
appellant’s left chest pain was musculoskeletal in nature and opined that the chest pain was
causally related to appellant’s January 6, 2006 employment injury.
The Board finds that the reports of Dr. Nichols are insufficient to establish that
appellant’s lumbar syndrome, dyslipidemia and chest pain are causally related to his accepted
left shoulder and upper arm sprains. His reports do not establish that appellant sustained
intermittent disability between February 15 and July 20, 2006 due to his January 6, 2006
employment injury. The diagnoses of lumbar syndrome, dyslipidemia and chest pain have not
been accepted by the Office as causally related to appellant’s January 6, 2006 injury.
Dr. Nichols did not explain how appellant’s lumbar syndrome was caused or aggravated by the
January 6, 2006 injury, first noting this diagnosis three months following injury. He did not
explain how dyslipidemia, a blood disorder, was causally related to the January 6, 2006
employment injury. Dr. Nichols also stated that appellant’s chest pain was musculoskeletal in
nature and was related to the January 6, 2006 employment injury. However, Dr. Nichols did not
provide any medical rationale explaining the basis for his stated conclusion that appellant’s chest
pain was caused or aggravated by the January 6, 2006 injury. He did not explain how appellant’s
claimed disability on intermittent dates between February 15 and July 20, 2006 was causally
related to his accepted conditions. There is no medical evidence that appellant was treated on
any of the claimed dates of disability between February 15 and July 20, 2006 for his accepted left
upper extremity sprains. Appellant failed to provide medical evidence establishing that his
claimed disability between February 15 and July 20, 2006 was causally related to his January 6,
2006 employment injury. Therefore, the Office properly denied appellant’s claim for leave buy
back for those dates.

9

Id.

4

CONCLUSION
The Board finds that appellant failed to establish that he was entitled to leave buy back
for 344 hours of leave on intermittent dates between February 15 and July 20, 2006 due to his
accepted conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 24, 2007 is affirmed.
Issued: February 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1182
Issued: March 15, 2013

Case Submitted on the Record

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

JURISDICTION
On May 7, 2012 appellant filed a timely appeal from an April 10, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained greater than an additional 14 percent permanent
impairment of the bilateral lower extremities, for which he received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 10, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 54-year-old letter carrier, sustained a herniated
disc at L4-5 and L5-S1 due to factors of his federal employment. It authorized a back brace and
steroid injections.
A magnetic resonance imaging (MRI) scan dated April 15, 2009 revealed disc herniation
at L4-5 and a herniated disc at L5-S1.
In a May 4, 2009 report, Dr. Suneela Harsoor, a Board-certified anesthesiologist and pain
medicine physician, indicated that appellant had back pain radiating down the left lower
extremity as a result of carrying weights and walking at work. She diagnosed left lumbar
radiculopathy, myofascial pain and lumbar discogenic pain.
Appellant submitted reports dated April 13, 2009 through August 9, 2010 by Dr. John
Kelsey, a Board-certified internist, who released appellant to light-duty work on June 1, 2009
with the following restrictions: cart only, four blocks for one month, no carrying on the back and
no steps. On November 10, 2010 Dr. Kelsey reports that appellant retired on August 31, 2010.
On December 12, 2010 appellant filed a claim for a schedule award.
By letter dated February 18, 2011, OWCP requested additional information from
appellant’s physician to continue processing his schedule award claim.
In a March 9, 2011 report, an OWCP medical adviser reviewed the medical evidence of
record and opined that, under Table 16-12 of the sixth edition of the A.M.A., Guides, appellant’s
radiculopathy with sensory deficit corresponded to a grade C default of four percent permanent
impairment of the left lower extremity.
On March 29, 2011 appellant filed a second schedule award claim.
In a March 28, 2011 report, Dr. Jacob Salomon, a general surgeon, found that appellant
had reached maximum medical improvement as of the date he retired on August 31, 2010.
Under Table 16-12 of the A.M.A., Guides, he found that appellant had a 16 percent permanent
impairment of the right lower extremity and a 9 percent permanent impairment of the left lower
extremity. Dr. Salomon indicated that, for the right-sided radiculopathy, the criteria were spinal
stenosis and multilevel lumbar disc disease with facet hypertrophy and spondylosis and noted
that abnormal electromyogram (EMG) findings would be used as clinical criteria. Upon physical
examination, he found paraspinal muscle spasm and positive leg raising signs. Functionally,
appellant had decreased activities of daily living which interfered with his normal lifestyle,
including difficulty lifting heavy objects and difficulty bathing. He had pain going grocery
shopping, working around the house and upon grooming himself, as well as chronic back pain
when he stood for a long period of time. Therefore, Dr. Salomon concluded that appellant would
be classified as class 2 moderate symptoms. He assigned grade modifier 2 for Functional
History (GMFH), grade modifier 1 for Physical Examination (GMPE) and grade modifier 3 for
Clinical Studies (GMCS). Dr. Salomon concluded that appellant fell under grade C, equaling a
16 percent permanent impairment of the right lower extremity due to his right lumbar
radiculopathy. Regarding the left lumbar radiculopathy, he assigned grade modifier 1 to a
2

functional history, which was based on appellant’s left-sided low back pain upon bending and
lifting heavy objects, grade modifier 1 for physical examination and grade modifier 3 for clinical
studies, due to abnormal MRI scan and EMG studies. Dr. Salomon concluded that appellant fell
under grade E, equaling a nine percent permanent impairment of the left lower extremity.
By decision dated April 6, 2011, OWCP granted appellant a schedule award for four
percent permanent impairment for loss of use of the left lower extremity, relying on OWCP’s
medical adviser’s March 9, 2011 report.
On June 23, 2011 a second OWCP medical adviser, reviewed the medical evidence of
record and concurred with Dr. Salomon’s determination that appellant had a nine percent
permanent impairment of the left lower extremity, under Table 16-12 of the A.M.A., Guides.
The medical adviser explained that appellant’s left lower extremity radicular symptoms
corresponded to a mild problem rating and grade E adjustment due to examination and EMG
findings which led to a nine percent permanent impairment rating.
Subsequently, on October 9, 2011 a third OWCP medical adviser reviewed the medical
evidence of record and found that appellant had bilateral leg pain that corresponded to sciatic
nerve impairment and had EMGs that showed evidence of radiculopathy. He explained that
utilizing Table 16-12, page 535, of the A.M.A., Guides a sciatic nerve impairment with moderate
sensory deficit was a class 1 diagnosis with a default grade C rating of four percent permanent
impairment.3 OWCP’s medical adviser further explained that utilizing the net adjustment
formula on page 521, appellant received a grade modifier 2 for functional status, a 2 for physical
examination and a 2 for clinical studies. He concluded that this resulted in a net grade modifier
of 3 and moved appellant to a grade E which was equal to a nine percent permanent impairment
for each lower extremity. The medical adviser opined that this impairment should be the total
impairment for each extremity because the previously awarded four percent permanent
impairment was for the same condition. He noted that this rating differed from Dr. Salomon’s
because he rated appellant as having a class 2 diagnosis for a very severe sensory deficit on the
right side, despite previous ratings and EMG evidence suggesting a mild-to-moderate deficit.
OWCP’s medical adviser found that appellant reached maximum medical improvement on
March 28, 2011, the date of evaluation by Dr. Salomon.
By decision dated April 10, 2012, OWCP granted appellant a schedule award for an
additional 14 percent permanent impairment of the bilateral lower extremities, relying on the
third OWCP medical adviser’s October 9, 2011 report.4

3

Table 16-12, pages 534-36 of the sixth edition of the A.M.A., Guides is entitled Peripheral Nerve Impairment -Lower Extremity Impairments.
4

OWCP calculated the following: 9 percent left lower extremity permanent impairment + 9 percent right lower
extremity permanent impairment -- 4 percent left lower extremity permanent impairment previously paid per OWCP
decision dated April 6, 2011 = 14 percent additional schedule award pay for the bilateral lower extremities.

3

LEGAL PRECEDENT
The schedule award provisions of FECA5 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 For schedule awards after
May 1, 2009, the impairment is evaluated under the sixth edition of the A.M.A., Guides,
published in 2009.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.9 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX). Evaluators are directed to provide reasons for their impairment rating choices, including
the choices of diagnoses from regional grids and calculations of modifier scores.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained a herniated disc at L4-5 and L5-S1 due to
factors of his federal employment. On April 6, 2011 it granted him a schedule award for four
5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

See Bernard A. Babcock, Jr., 52 ECAB 143 (2000). See also 5 U.S.C. § 8107.

7

See D.T., Docket No. 12-503 (issued August 21, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.6a (January 2010); see also Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 3 (6th ed., 2009) section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

11

See R.L., Docket No. 11-1661 (issued April 25, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
supra note 7, Chapter 2.808.6(d) (August 2002).

4

percent permanent impairment of the left lower extremity. In an April 10, 2012 award of
compensation, OWCP granted appellant a schedule award for an additional 14 percent
permanent impairment of the bilateral lower extremities, relying on an OWCP medical adviser’s
October 9, 2011 report.
Appellant claimed entitlement to increased schedule award
compensation.
On March 28, 2011 Dr. Salomon, a treating physician, concluded that appellant had a 16
percent permanent impairment of the right lower extremity and a 9 percent permanent
impairment of the left lower extremity. On October 9, 2011 a third OWCP medical adviser
determined that appellant had a nine percent permanent impairment for each lower extremity.
The A.M.A., Guides indicate that the steps to be used in performing an impairment rating for
lower extremities include that a diagnosis for each part of the lower limb is to be rated.12 Section
16.2 indicates that the regions to be assessed separately include foot and ankle, knee and hip.13
The Board finds that the record is not clear as to whether the medical adviser calculated each
lower extremity separately, as required. Thus, the Board further finds that OWCP did not follow
the analysis outlined in the A.M.A., Guides in developing the medical evidence before granting
the schedule award on April 10, 2012.
It is well established that proceedings under FECA are not adversarial in nature and,
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.14 Accordingly, once OWCP undertakes
development of the medical evidence, it has the responsibility to do so in a proper manner.15 The
report from OWCP’s medical adviser is insufficient to resolve the issue of whether appellant was
entitled to an additional schedule award, thus, OWCP did not properly discharge its
responsibilities in developing the record.16 Therefore, the case must be remanded to OWCP for a
proper impairment analysis of appellant’s lower extremities as provided by the A.M.A.,
Guides.17 Following such further development as deemed necessary, OWCP shall issue a de
novo decision regarding whether appellant is entitled to an increased schedule award for his
lower extremity conditions.
CONCLUSION
The Board finds that the case is not in posture for decision.

12

A.M.A., Guides 497-500 (6th ed., 2009).

13

Id. at 500.

14

See Richard E. Simpson, 55 ECAB 490 (2004).

15

See Melvin James, 55 ECAB 406 (2004).

16

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

17

See H.R., Docket No. 12-448 (issued July 12, 2012) (the Board remanded a case for a proper impairment
analysis of appellant’s upper extremities as provided by section 15.2 of the A.M.A., Guides).

5

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this decision of the Board.
Issued: March 15, 2013
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-610
Issued: June 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 28, 2013 appellant, through her attorney, filed a timely appeal from a
November 8, 2012 decision of the Office of Workers’ Compensation Programs (OWCP), which
denied her reconsideration request on the grounds that it was untimely filed and failed to present
clear evidence of error. Because more than 180 days elapsed from the most recent OWCP merit
decision of December 9, 2010 to the filing of this appeal, the Board lacks jurisdiction to review
the merits of her claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s October 29, 2012
request for reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated February 6, 2012, the
Board affirmed OWCP’s decisions dated January 6 and February 24, 2011. The Board found
that OWCP properly denied appellant’s request for reconsideration and her request for a review
of the written record.2 The facts of the case as set forth in the Board’s prior decision are
incorporated herein by reference.3
On October 29, 2012 appellant requested reconsideration. Her attorney asserted that
OWCP improperly denied her claim when finding that the evidence was not sufficient to
establish that the July 16, 2010 incident occurred as alleged. OWCP found a discrepancy
between the date of injury reported on the Form CA-1, which listed July 16, 2010 and the date of
injury provided in the medical reports of July 17, 2010. Appellant asserted that she adequately
explained the discrepancy and maintained that the inaccuracy of the date-of-injury report on the
CA-1 form was immaterial. She asserted that the mechanism of injury and diagnosed condition
were consistent and explained the inaccuracy in the date of injury on November 10, 2010 and
January 26, 2011. Appellant contended that in light of the lack of other inaccuracies regarding
the fact of injury, the evidence supported her claim.
In a September 26, 2012 report, Dr. Keith A. Lustig, a Board-certified orthopedic
surgeon, noted a history of injury as presented by appellant in which she reported falling on
July 17, 2010 while delivering mail. He summarized her treatment from July 26, 2010 to
June 15, 2011 noting that on July 17, 2010 she was treated in the emergency room where x-rays
revealed a volar subluxation/dislocation at the fifth carpometacarpal joint. On July 27, 2010
Dr. Lustig performed an open reduction and internal fixation of the left fifth carpometacarpal
dislocation. He opined that, within a reasonable degree of medical certainty, appellant sustained
a left fifth carpometacarpal volar dislocation with resultant traumatic arthritis due to her fall
while delivering mail on July 17, 2010.
By decision dated November 8, 2012, OWCP denied appellant’s request for
reconsideration as it was untimely and did not establish clear evidence of error.

2

On July 16, 2010 appellant, then a 54-year-old carrier, filed a traumatic injury alleging that she injured her right
knee and left hand and shoulder on that date when she tripped and fell while delivering mail. She stopped work on
July 16, 2010. On December 9, 2010 OWCP denied her claim finding that the evidence was not sufficient to
establish that the July 16, 2010 incident occurred as alleged. It also found that the medical evidence was not
sufficient to establish her claim.
3

Docket No. 11-1589 (issued February 6, 2012).

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application. The Secretary,
in accordance with the facts found on review may-(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”4
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
OWCP will not review a decision unless the application for review is filed within one year of the
date of that decision.5 However, OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s application for review shows
clear evidence of error on the part of OWCP in its most recent merit decision. To establish clear
evidence of error, a claimant must submit evidence relevant to the issue that was decided by
OWCP. The evidence must be positive, precise and explicit and must be manifest on its face that
OWCP committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.7
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.8 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.9 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.10 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.11
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607(b); Annie L. Billingsley, 50 ECAB 210 (1998).

6

Id.; Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, supra note 5.

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

3

ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.12 A right to
reconsideration within 180 days also accompanies any subsequent merit decision on the issues.
As appellant’s October 29, 2012 request for reconsideration was submitted more than 180 days
after the most recent merit decision of December 9, 2010 it was untimely. Consequently, she
must demonstrate clear evidence of error by OWCP in denying her claim for compensation.13
The Board also finds that appellant has not established clear evidence of error by OWCP.
Appellant’s October 29, 2012 request asserted that OWCP improperly found that the evidence
was not sufficient to establish that the July 16, 2010 incident occurred as alleged. She contended
that she adequately explained the discrepancy regarding when the claimed injury occurred and
maintained that the date-of-injury inaccuracy on the CA-1 form immaterial. Appellant asserted
that her mechanism of injury and diagnosed condition were consistently described and
documented and she explained the inaccuracy in the date of injury on November 10, 2010 and
January 26, 2011. While she addressed her disagreement with OWCP’s decision to deny her
claim for traumatic injury, her general allegations do not raise a substantial question as to the
correctness of OWCP’s most recent merit decision, which found that evidence was not sufficient
to establish that the July 16, 2010 incident occurred as alleged. OWCP properly found that
appellant’s October 29, 2012 statement did not establish clear evidence of error.
The issue for purposes of establishing clear evidence of error is whether appellant has
submitted sufficient evidence to establish that the claimed July 16, 2010 injury occurred as
alleged. Appellant submitted a September 26, 2012 report from Dr. Lustig, who noted that
appellant reported falling on July 17, 2010 while delivering mail. Dr. Lustig opined that within a
reasonable degree of medical certainty she sustained a left fifth carpometacarpal volar
dislocation with resultant traumatic arthritis due to her fall while delivering mail on
July 17, 2010. This report does not address the discrepancy regarding when the claimed injury
occurred and appellant did not otherwise explain how this evidence was positive, precise and
explicit in manifesting on its face that OWCP erred in its December 9, 2010 decision. Clear
evidence of error is intended to represent a difficult standard. The submission of a detailed wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical opinion requiring further development, is not clear evidence of error.14
Consequently, the Board finds that Dr. Lustig’s report submitted on reconsideration is
insufficient to raise a substantial question as to the correctness of OWCP’s decision. Thus,
appellant has not established clear evidence of error by OWCP in its November 8, 2012 decision.

12

20 C.F.R. § 10.607(a).

13

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

14

D.G., 59 ECAB 455 (2008); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.3c (January 2004).

4

On appeal, appellant asserts that she explained the discrepancy between the date of injury
reported on the CA-1 form and the date provided in the medical reports and maintained that the
inaccuracy of the date-of-injury report was immaterial. She asserts that clear evidence of error
was established by the report of Dr. Lustig on September 26, 2012 who opined that the fall on
July 17, 2010 caused the left fifth carpometacarpal volar dislocation. The Board does not have
jurisdiction over the merits of this claim, only whether appellant established clear evidence of
error by OWCP in its November 8, 2012 decision. As noted above, this report is insufficient to
establish clear evidence of error. Appellant also asserted that she submitted statements dated
November 10, 2010 and January 26, 2011, which addressed the discrepancy in her date on
injury. This evidence was previously considered and she has not otherwise explained how it is
sufficient to establish clear evidence of error.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated October 29, 2012 was
untimely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Hampton, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1866
Issued: December 10, 2007

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 July 6, 2007 appellant timely appealed the May 21, 2007 merit decision of the Office
of Workers’ Compensation Programs, which denied his occupational disease claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.1
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On January 29, 2007 appellant, a 55-year-old housekeeping aide supervisor, filed a claim
for bilateral carpal tunnel syndrome. He identified October 1, 2001 as the date of injury.
1

The record on appeal contains evidence that was received after the Office issued its May 21, 2007 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20
C.F.R. § 501.2 (2007).

However, it was not until October 14, 2005 that appellant first realized his condition was
employment related. He attributed his carpal tunnel syndrome to moving furniture. Appellant
did not initially submit any medical evidence with the January 29, 2007 claim form.
In response to the Office’s February 15, 2007 request for additional information,
appellant provided a February 23, 2007 statement and his Veteran Affairs (VA) medical records
regarding treatment for carpal tunnel syndrome. According to the VA records, appellant
underwent a right carpal tunnel release on March 31, 2006. The Office also received a June 25,
2002 attending physician’s report (Form CA-20) from Dr. Tam T. Do, a Board-certified internist,
who diagnosed employment-related carpal tunnel syndrome and knee arthralgia.
The VA medical records covered a six-month period from October 2005 to March 2006.
Appellant was seen on October 7, 2005 with complaints of constant numbness in the right thumb
and index finger dating back to July 2004. The treatment records indicated that appellant had
been diagnosed with bilateral carpal tunnel syndrome in 2002 and he was currently considering
surgery. The employment history noted that appellant’s housekeeping duties included “repetitive
motion with buffing floor [and] mop[p]ing.” Appellant also had a history of cervical
degenerative disc disease, with a prior surgical fusion at C6-7. He was referred for further
diagnostic studies to ascertain whether his right upper extremity complaints were due to cervical
radiculopathy or a worsening of his carpal tunnel syndrome. An October 12, 2005
electrodiagnostic study showed evidence of compression of the right median nerve at the wrist
and there was no evidence of cervical radiculopathy affecting the right upper extremity. On
March 31, 2006 appellant underwent a right carpal tunnel release. He was advised to remain off
work for at least three weeks.
In his February 23, 2007 statement, appellant indicated that his employment duties
involved moving furniture, lifting, pushing, pulling and grasping various objects. He stated that
he worked with blowers, fans and other battery-operated equipment. Appellant also used a hand
dolly to move large desks and filing cabinets. Additionally, he reported stacking and moving
six-foot long tables. Appellant performed these duties from 12 to 16 hours per week.
In a decision dated May 21, 2007, the Office denied appellant’s claim because the
medical evidence did not establish that his carpal tunnel syndrome was related to his accepted
employment exposure.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative

2

5 U.S.C. §§ 8101-8193 (2000).

2

and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
ANALYSIS
The medical evidence establishes a diagnosis of bilateral carpal tunnel syndrome dating
back at least four years prior to the filing of the current claim. On March 31, 2006 appellant had
surgery on his right wrist to address his carpal tunnel syndrome. However, the medical records
do not clearly establish a causal relationship between appellant’s bilateral carpal tunnel
syndrome and his federal employment. Dr. Do, who initially diagnosed carpal tunnel syndrome
in 2002, did not identify any specific employment duties that either caused or contributed to
appellant’s condition. He merely responded yes to a question on a form report inquiring whether
he believed the condition found was caused or aggravated by an employment activity. Dr. Do’s
June 25, 2002 report (Form CA-20) did not include either a date of injury or a history of injury.
Because there was no reported history of injury and no explanation for why he believed the
diagnosed condition to be employment related, Dr. Do’s opinion on causal relationship cannot be
considered rationalized. As such, it is insufficient to meet appellant’s burden of proof.
The 2005 to 2006 VA medical records are similarly insufficient to meet appellant’s
burden of proof. Other than briefly noting that appellant’s job duties included “repetitive motion
with buffing floor [and] mop[p]ing,” the treatment records do not include an opinion on causal
relationship. Furthermore, appellant’s claim form and his February 23, 2007 statement do not
identify any particular floor care duties as the cause of his carpal tunnel syndrome. Based on the
current record, the Office properly found that appellant did not demonstrate the presence of an
employment-related medical condition.
CONCLUSION
Appellant has not established that he sustained an injury in the performance of duty.
3

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
4

Victor J. Woodhams, supra note 3.

3

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2007
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

4