United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Broomfield, CO, Employer
__________________________________________

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

Docket No. 19-0428
Issued: July 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On December 18, 2018 appellant filed a timely appeal from an October 2, 2018 merit
decision and a November 29, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish arm or elbow
conditions causally related to the accepted August 6, 2018 employment incident; and (2) whether
OWCP properly denied appellant’s request for a review of the written record before an OWCP
hearing representative as untimely filed pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 9, 2018 appellant, then a 56-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on August 6, 2018 she passed out and fell on the workroom
floor while in the performance of duty. She stopped work on the date of injury.
In an August 14, 2018 statement, S.T., a supervisor, noted that on August 6, 2018 she found
appellant “face down on the workroom floor.” She noted that appellant’s hands were outstretched
above her head, she was resting on her left arm, and she was clutching the mobile point of sale
(MPOS) instrument in her right hand. S.T. indicated that appellant was unable to speak clearly
and was transported by paramedics to the hospital. She explained that, when she contacted
appellant the next day, appellant indicated that she had passed out from the heat and emotional
stress and that she did not remember anything until she awoke at the hospital.
In a development letter dated August 31, 2018, OWCP advised appellant that when her
claim was first submitted it appeared to be a minor injury that resulted in minimal or no lost time
from work and it therefore had administratively approved payment of a limited amount of medical
expenses. It explained that appellant’s claim was being reopened because appellant had not
returned to work in a full-time capacity. OWCP advised her of the type of factual and medical
evidence needed to establish her claim and provided a questionnaire for her completion. Appellant
was afforded 30 days to submit the necessary evidence.
In an August 13, 2018 work excuse Dr. Jared Lee, Board-certified in orthopedic surgery
and sports medicine, requested that appellant be excused from work for the period August 13 to
27, 2018, as she remained dizzy and continued to have left arm pain.
In an August 30, 2018 report, Dr. Nazia Javed, a Board-certified family practitioner, noted
that appellant reported aching pain in her right elbow. She diagnosed right elbow sprain, right
medial epicondylitis, and left elbow pain.
In a September 17, 2018 report, Dr. Javed noted that appellant was seen for follow up
treatment. She diagnosed right elbow sprain and indicated that appellant was “pain free and feels
100 [percent] back to her baseline.” Dr. Javed released appellant to full duty.
By decision dated October 2, 2018, OWCP denied appellant’s claim. It found that she had
established that the August 6, 2018 employment incident occurred as alleged, but the medical
evidence of record was insufficient to establish causal relationship between appellant’s diagnosed
conditions and the accepted August 6, 2018 employment incident.
On November 19, 2018 OWCP received an August 6, 2018 after-visit summary, which
indicated that appellant was seen by Dr. Ben Mendoza, an internal medicine specialist, Dr. Jennifer
Gray, an internal medicine specialist, and Dr. Jeffrey Rickard, an osteopath Board-certified in
emergency medicine, for acute brain disorder, confusion, disorientation, and elbow pain.
By appeal request form postmarked November 6, 2018, appellant requested a review of the
written record by a representative of OWCP’s Branch of Hearings and Review.

2

By decision dated November 29, 2018, an OWCP hearing representative determined that
appellant was not entitled to a review of the written record as a matter of right because her request
was untimely filed. She also denied a discretionary hearing, finding that the contested issue could
equally well be addressed by appellant requesting reconsideration and providing new evidence or
argument to establish that she sustained an injury in the performance of duty, as alleged.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.5 The second component is whether the employment incident caused a personal injury.6
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.7 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.8
Neither the mere fact that a disease or condition manifests itself during a period of employment,

2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5
6

Elaine Pendleton, 40 ECAB 1143 (1989).
M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

7

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

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nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish arm or elbow
conditions causally related to the accepted August 6, 2018 employment incident.
In support of her claim appellant submitted an August 13, 2018 work excuse from Dr. Lee.
Dr. Lee noted appellant’s symptoms of dizziness and left arm pain. However, dizziness and pain
are descriptions of symptoms rather than a clear diagnosis of a medical condition.10 The Board
has previously explained that it is not possible to establish causal relationship if a medical
condition has not been diagnosed.11 As such, the work excuse is of no probative value on the issue
of causal relationship and is insufficient to establish appellant’s traumatic injury claim.12
In an August 30, 2018 report, Dr. Javed diagnosed right elbow sprain, right medial
epicondylitis and pain in the left elbow. However, she did not offer an opinion regarding causal
relationship. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value.13 As such, this report is of no
probative value on the issue of causal relationship.
As appellant has not submitted rationalized medical evidence sufficient to establish her
claim that she sustained arm or elbow conditions causally related to the accepted August 6, 2018
employment incident, she has, therefore, not met her burden of proof to establish entitlement to
compensation benefits.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the

9

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

10

P.S., Docket No. 10-1560 (issued June 23, 2011).

11

Id.

12

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

13

See N.T., Docket No. 18-1620 (issued May 6, 2019); D.K., Docket No. 17-1549 (issued July 6, 2018).

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date of the issuance of the decision, to a hearing on his [or her] claim before a representative of
the Secretary.”14
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: an oral hearing or a review of the written record.”15 The hearing 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 the hearing is sought.16 However, OWCP has discretion to grant or
deny a request that is made after this 30-day period.17 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s November 6, 2018 request for a
review of the written record before an OWCP hearing representative as untimely filed pursuant to
5 U.S.C. § 8124(b).
Appellant had 30 days from OWCP’s October 2, 2018 merit decision to request a review
of the written record before OWCP’s Branch of Hearings and Review. Appellant’s hearing request
was postmarked November 6, 2018. As the postmark date was more than 30 days after OWCP’s
October 2, 2018 decision, appellant was not entitled to a review of the written record as a matter
of right.19 Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.20
The Board finds that OWCP properly exercised its discretion in denying appellant’s request
for a review of the written record by determining that the issue in the case could equally well be
addressed by requesting reconsideration and submitting new evidence or argument relevant to the
issue of fact of injury.21 The Board has held that the only limitation on OWCP’s authority is
reasonableness, and an abuse of discretion is generally shown through proof of manifest error,
14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

Id. at § 10.616(a).

17
See T.L., Docket No. 19-0028 (issued April 26, 2019); G.W., Docket No. 10-0782 (issued April 23, 2010); James
Smith, 53 ECAB 188, 191-92 (2001).
18

James Smith, id.

19

Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined on the basis
of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4a (October 2011).
20

5 U.S.C. § 8124(b)(1); see R.H., Docket No. 18-1602 (issued February 22, 2019); William F. Osborne, 46 ECAB
198 (1994).
21

R.H., id.; M.H., Docket No. 15-0774 (issued June 19, 2015).

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clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deduction from established facts.22 The Board finds that the evidence of record does not
indicate that OWCP abused its discretion in its denial of appellant’s untimely request for a review
of the written record.
Accordingly, the Board finds that OWCP properly denied appellant’s November 6, 2018
request for a review of the written record as untimely filed pursuant to 5 U.S.C. § 8124(b).23
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish arm or elbow
conditions causally related to the accepted August 6, 2018 employment incident. The Board
further finds that OWCP properly denied appellant’s request for a review of the written record
before an OWCP hearing representative as untimely filed under 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the November 29 and October 2, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 15, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

22

R.H., id.; (citing Daniel J. Perea, 42 ECAB 214, 221 (1990)).

23

Id.; R.P., Docket No. 16-0554 (issued May 17, 2016).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chesapeake, VA, Employer
__________________________________________

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

Docket No. 16-1595
Issued: September 25, 2017

Case Submitted on the Record

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

JURISDICTION
On August 1, 2016 appellant filed a timely appeal from a February 8, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated June 18, 2015, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s September 15, 2015 request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances outlined in
the prior Board decision are incorporated herein by reference. The relevant facts are set forth
below.
Appellant, a 65-year-old former city carrier, has an accepted occupational disease claim
(Form CA-2) for lumbar sprain and lumbar degenerative disc disease, which arose on or about
October 9, 2001 (OWCP File No. xxxxxx923). He also has an accepted traumatic injury claim
(Form CA-1) for lumbar sprain, which arose on June 18, 2002 (OWCP File No. xxxxxx881).
OWCP administratively combined the two case records and designated File No. xxxxxx923 as
the master file. It determined on August 18, 2008 that appellant received an overpayment of
compensation in the amount of $3,389.69 for the period June 19 through August 13, 2002.
OWCP also found appellant at fault in creating the overpayment. By decision dated July 27,
2009, the Board affirmed the August 18, 2008 OWCP decision.3
Since the case was last before the Board, appellant underwent lumbar surgery in
May 2010. He received wage-loss compensation following surgery, and then returned to work in
a limited-duty capacity on September 15, 2010. On March 23, 2012 OWCP granted appellant a
schedule award for three percent permanent impairment of the left lower extremity.4
Appellant’s physician, Dr. J. Abbott Byrd III, an orthopedic surgeon, last released him to
work in a modified-duty capacity effective July 31, 2012. He advised that appellant should
continue with present light-duty restrictions.
On November 13, 2013 appellant filed a recurrence claim (Form CA-2a) alleging wageloss compensation for temporary total disability commencing October 7, 2013. At the time of
his work stoppage he was employed as a customer service supervisor. Appellant indicated that
his back condition continued to bother him and the work duties he had been performing caused
his condition to deteriorate to the point where he could no longer work.
Appellant submitted several reports from Dr. Byrd in support of his claim. In an
October 7, 2013 report, Dr. Byrd diagnosed lumbago and lumbar stenosis, and advised appellant
to remain off work pending follow-up for his mechanical back pain.
In a December 17, 2013 letter, OWCP advised appellant that additional factual and
medical evidence was needed to support his claim for a recurrence commencing October 7, 2013.
It subsequently received additional evidence from appellant, which included a December 3, 2013
lumbar diagnostic study and a December 6, 2013 report from Dr. Byrd, who advised that
appellant’s pain was probably due to the narrowing and degeneration at L4-5 with mild stenosis.
Dr. Byrd also indicated that appellant should stay out of work.
2

Docket No. 09-0219 (issued July 27, 2009).

3

Id.

4

By decision dated August 20, 2012, a representative of the Branch of Hearings and Review affirmed the
schedule award decision.

2

By decision dated February 6, 2014, OWCP denied appellant’s claim for recurrence of
disability. It found that he had not established that he was disabled from work beginning
October 7, 2013 due to a material change/worsening of his accepted work-related condition. The
evidence also did not show that appellant’s light-duty job changed such that the job duties were
inconsistent with prescribed restrictions.
On February 27, 2014 appellant requested a review of the written record by OWCP’s
Branch of Hearings and Review. With his request, he submitted a personal written statement and
copies of medical reports previously of record.
By decision dated July 14, 2014, OWCP’s hearing representative affirmed OWCP’s
February 6, 2014 decision. He found that the evidence of record did not support a worsening of
an accepted condition, nor did it show that appellant’s light-duty job changed such that job duties
were inconsistent with prescribed restrictions.
Appellant requested reconsideration in an undated letter received on December 15, 2014.
Additional medical evidence from Dr. Byrd was submitted. By decision dated February 19,
2015, OWCP denied modification of the July 14, 2014 OWCP decision. It found the evidence
submitted was of insufficient probative value to alter the July 14, 2014 decision.
On April 3, 2015 OWCP received appellant’s March 30, 2015 request for
reconsideration. Appellant submitted a statement along with medical evidence.
By decision dated June 18, 2015, OWCP denied modification of its prior decision. It
found the evidence presented was of insufficient probative value to establish a recurrence of total
disability as of October 7, 2013 due to a change in the nature or extent of light-duty
requirements.
On September 15, 2015 OWCP received appellant’s September 4, 2015 request for
reconsideration. Evidence received in support of the reconsideration request included copies of
pay stubs, an undated statement from appellant, Dr. Byrd’s biography, and a November 15, 2010
duty status report (Form CA-17) from Dr. Byrd.
By decision dated February 9, 2016, OWCP denied appellant’s request for
reconsideration without conducting a merit review. It found that the evidence presented was
either irrelevant or immaterial to the issue at hand and that appellant’s request did not raise
substantive legal questions.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
5

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).

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pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s timely request for
reconsideration without further merit review. The underlying issue in this case is whether
appellant has submitted sufficient evidence relevant to the issue of whether he established a
recurrence of disability beginning October 7, 2013 and that he continued to be disabled due to a
material change or worsening of his accepted work conditions or extent of light-duty
requirements. This is a medical issue. Appellant failed to submit any relevant and pertinent new
evidence in support of his reconsideration request. The pay stubs and Dr. Byrd’s biography are
either irrelevant or immaterial to the issue. Dr. Byrd’s November 15, 2010 CA-7 form, while
apparently new to the record, is not relevant to the issue at hand as it is prior to the alleged
recurrence date of October 7, 2013 and, therefore, is irrelevant. As the Board has held, the
submission of evidence or argument which does not address the particular issue involved does
not constitute a basis for reopening the case.9
Furthermore, in his undated statement, appellant neither showed that OWCP erroneously
applied or interpreted a specific point of law, nor advanced a relevant legal argument not
previously considered by OWCP. Because he failed to meet at least one of the standards
enumerated under section 8128(a) of FECA, he was not entitled to further merit review of his
claim.10
On appeal appellant provided a procedural history of his case and essentially argued the
merits of his case. As previously noted, the Board does not have jurisdiction over the merits of
this case.

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See A.M., Docket No. 16-1875 (issued August 23, 2017); Edward Matthew Diekemper, 31 ECAB 22425 (1979).
10

See A.M., Docket No. 16-0499 (issued June 28, 2016); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006); A.K., Docket No. 09-2032 (issued August 3, 2010) (when an application for reconsideration does not
meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application
for reconsideration without reopening the case for a review on the merits).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 25, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
TENNESSEE VALLEY AUTHORITY, FOSSIL
OPERATIONS, Cumberland City, TN, Employer
__________________________________________

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

Docket No. 14-71
Issued: March 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 3, 2013 appellant filed a timely appeal from an April 11, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
further merit review. As more than 180 days elapsed from the last merit decision of March 8,
2013 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 12, 2012 appellant, then a 67-year-old retired fossil electrical technician,
filed an occupational disease claim alleging that her hearing loss condition was caused or
1

5 U.S.C. § 8101 et seq.

aggravated by her employment. She became was aware of her condition on February 20, 2004
and that it was caused or aggravated by her employment on March 15, 2005. Appellant was last
exposed to conditions alleged to have caused her disease or illness on May 19, 2011.2 No
evidence was submitted with the claim.
In letters dated September 24 and November 19, 2012, OWCP advised appellant of the
deficiencies in her claim and requested additional factual and medical evidence. Appellant was
accorded 30 days in which to provide the requested information. The additional evidence
submitted included doctor reports diagnosing hearing loss.
OWCP referred appellant, along with a statement of accepted facts and the medical
record, to Dr. Jeffrey Paffrath, a Board-certified otolaryngologist, for a second opinion
examination. In a February 5, 2013 report, Dr. Paffrath reviewed the medical record, the
statement of accepted facts and presented examination findings. He diagnosed asymmetric high
frequency sensorineural hearing loss and bilateral sensorineural hearing loss. Dr. Paffrath opined
that appellant has a component of hearing loss beyond presbycusis and more likely related to a
medical condition rather than just noise exposure. He stated the degree of asymmetry indicated
the need for a magnetic resonance imaging (MRI) scan of the brain and internal auditory canals
with and without gadolinium to rule out acoustic neuroma. Dr. Paffrath opined that the presence
of an acoustic neuroma was very unlikely but the amount of asymmetry was otherwise
unexplained. While her work environment had the potential to produce hearing loss, he noted
that appellant wore hearing protection and he was not able to distinguish noise-induced hearing
loss in the hearing testing. Dr. Paffrath stated that the majority of her hearing loss and the
pattern of her hearing loss were likely due to medical conditions and presbycusis which were not
related to the work environment. He recommended a hearing aid evaluation and placement of
bilateral hearing aids. In a March 5, 2013 addendum, Dr. Paffrath indicated that there was no
evidence of acoustic neuroma on the MRI scan although gadolinium IV contrast was not
administered. He opined that appellant’s hearing test pattern of loss was not consistent with a
noise-induced pattern and thus the majority of her hearing loss was not likely due to noise
exposure from federal employment.
By decision dated March 8, 2013, OWCP denied the hearing loss claim on the basis that
the medical evidence of record failed to support that appellant’s hearing loss was caused by
factors of her employment.
On March 27, 2013 OWCP received appellant’s request for reconsideration. In a
March 25, 2013 letter, appellant expressed her disagreement with Dr. Paffrath’s examination and
having to undergo an MRI scan. She expressed her desire to be sent to a different doctor for
hearing loss testing.
By decision dated April 11, 2013, OWCP denied appellant’s request for reconsideration
without reviewing the merits of the case.

2

Under claim number xxxxxx086, OWCP denied appellant’s hearing loss claim in an August 12, 2004 decision
because it was determined that her hearing loss was due to presbycusis.

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
Appellant did not file a timely appeal of OWCP’s most recent merit decision of
March 8, 2013. For that reason, the Board has no authority to review that decision or the merits
of her hearing loss claim. The only decision the Board may review is OWCP’s April 11, 2013
nonmerit decision denying appellant’s March 25, 2013 reconsideration request.
OWCP denied appellant’s request for further reconsideration on the merits of her claim
on the grounds that she failed to submit any evidence or argument to warrant a merit review.
The record reflects that she submitted no evidence or argument to OWCP subsequent to the
March 8, 2013 merit decision on her claim. Appellant’s statements contained in her March 25,
2013 letter are her opinion on the matter and do not advance any relevant legal argument not
previously considered by OWCP. Specifically, she had not provided any new medical evidence
to support that her hearing loss was caused by her exposure to excessive noise in her federal
employment.
Although timely filed, appellant’s March 25, 2013 application for reconsideration did not
set forth any argument or contain evidence that either: (1) showed that OWCP erroneously
applied or interpreted a specific point of law; (2) advanced a relevant legal argument not
previously considered by OWCP; or (3) constituted relevant and pertinent new evidence not
previously considered by OWCP.7 Because she failed to meet any of these standards, OWCP

3

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

7

Id. at § 10.606.

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properly denied the application for reconsideration without reopening the case for a review on
the merits.8
On appeal, appellant argues the merits of her case. She additionally requests to be sent to
another doctor for hearing loss testing. As noted, the Board does not have jurisdiction over the
merits of the case. It also has no authority to refer appellant for further medical examination.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8

Id. at § 10.608; M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Samuel Sperling, Esq., for the appellant
No appearance, for the Director

Docket No. 09-2091
Issued: April 19, 2010

Oral Argument December 10, 2009

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 15, 2009 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ August 21, 2008 and May 7, 2009 merit schedule award
decisions. 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 has more than a 12 percent impairment of his right upper
extremity and an 11 percent impairment of his left upper extremity, for which he received
schedule awards.
FACTUAL HISTORY
The Office accepted that on March 28, 1997 appellant, then a 52-year-old attorney,
sustained a fractured right wrist, bilateral rotator cuff tear with surgery and recurrent intestinal

obstruction with surgery and disorder of the bursae and tendons when he slipped and fell while in
the performance of his work duties.1
On June 24, 2005 appellant filed a claim for a schedule award accompanied by medical
evidence. In a June 15, 2005 medical report, Dr. Douglas M. Shepard, an attending Boardcertified orthopedic surgeon, advised that appellant sustained a 45 percent impairment of the
right upper extremity and a 25 percent impairment of the left upper extremity based on the fourth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
On March 14, 2006 Dr. Robert H. Wilson, an Office medical adviser, reviewed
Dr. Shepherd’s June 15, 2005 findings. He opined that appellant reached maximum medical
improvement on February 1, 2000. Utilizing the fifth edition of the A.M.A., Guides, Dr. Wilson
determined that appellant sustained an 18 percent impairment of the right upper extremity
(A.M.A., Guides 476-79, 510, Figures 16-40 to 16-46 and Table 16-35). He stated that
appellant’s claim was only accepted for a right shoulder condition.
The Office determined that a conflict existed in the medical opinion evidence between
Dr. Shepard and Dr. Wilson regarding the extent of appellant’s permanent impairment. By letter
dated April 21, 2006, it referred him, together with a statement of accepted facts, the case record
and a list of questions to be addressed, to Dr. Gary W. Pushkin, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In a May 18, 2006 report, Dr. Pushkin reviewed the history of appellant’s March 28,
1997 employment injuries and medical treatment. On physical examination of the right
shoulder, he reported some significant supraspinatus and infraspinatus atrophy, full passive range
of motion, approximately 160 degrees of forward flexion and abduction each and good external
rotation. Appellant experienced pain with abduction and with a positive impingement test. He
also had pain with the lift-off test and significant weakness with resisted external rotation and
resisted abduction. Dr. Pushkin reported negative speed, apprehension and belly test results.
Regarding the left shoulder he reported the same range of motion findings as the right shoulder
with no scapular winging. An x-ray of the right shoulder revealed degenerative changes with
upriding of the humeral head. X-rays of the left shoulder demonstrated cystic changes about the
greater tuberosity and what appeared to be a loose body or calcific tendinitis. Dr. Pushkin
diagnosed rotator cuff arthropathy of the right shoulder and status post rotator cuff repair of the
left shoulder. He noted that appellant had good range of motion and advised that the fifth edition
of the A.M.A. Guides did not adequately represent the disability in his shoulders. Utilizing
Table 16-35 on page 510 of the fifth edition of the A.M.A. Guides, Dr. Pushkin determined that
appellant sustained a 25 percent impairment of the right shoulder and a 15 percent impairment of
the left shoulder.
1

This case has previously been before the Board. In a September 5, 2002 decision, the Board set aside the
Office’s denial of appellant’s recurrence of disability claim. The Board remanded the case for the Office to
determine whether there was a causal relationship between appellant’s right shoulder condition and the accepted
March 28, 1997 employment incident and whether he sustained consequential left shoulder and gastrointestinal
conditions resulting from nonsteroidal and anti-inflamatory medication that required surgery. Docket No. 01-1232
(issued September 5, 2002).

2

On September 6, 2006 Dr. Willie E. Thompson, an Office medical adviser, reviewed
Dr. Pushkin’s May 18, 2006 findings. He noted that Table 16-35 addressed strength deficit
primarily for the shoulder and elbow due to musculoskeletal disorders based on manual muscle
testing. Dr. Thompson stated that Dr. Pushkin’s impairment ratings were simply stated rather,
than based on manual muscle testing of the shoulder for flexion, extension, abduction, adduction,
internal rotation and external rotation measurements. He stated that, according to Table 16-35,
strength deficit must be assessed and provided in increments between 5 percent and 50 percent
for each affected range of motion. Dr. Thompson indicated that the strength deficit should then
be multiplied by the relative value of the particular unit, be it shoulder or elbow to calculate the
percentage of impairment. He concluded that Dr. Pushkin failed to properly apply the A.M.A.,
Guides. Dr. Thompson stated that an impairment rating could be determined based on Table 1635 upon receipt of the above-noted measurements.
By letter dated October 25, 2006, the Office requested that Dr. Pushkin reexamine
appellant and provide his measurements for muscle weakness and strength deficit of the upper
extremities.
In a November 16, 2006 report, Dr. Pushkin advised that appellant’s right shoulder had
125 degrees of abduction, 145 degrees of forward flexion, good external rotation and a mildly
positive impingement sign. Manual muscle strength testing revealed 4/5 each in abduction,
external rotation and adduction, 5/5 in forward flexion and 41/2/5 in internal rotation. There was
no neurocirculatory deficit. Dr. Pushkin reported the same range of motion and strength deficit
measurement for the left shoulder as the right shoulder with 41/2/5 in forward flexion and 5/5 in
extension. Testing of both elbows revealed 4/5 biceps strength each in elbow flexion and
supination. Dr. Pushkin determined that appellant sustained decreased strength in the right
shoulder, 15 percent each in abduction, external rotation and adduction and 12.5 percent in
internal rotation. He had no strength deficit for forward flexion. Appellant also sustained
decreased strength in the right elbow, 15 percent each for flexion and supination (A.M.A.,
Guides 510, Table 16-35). Regarding the left shoulder and elbow, Dr. Pushkin calculated the
same impairment ratings as the right shoulder and elbow.
On January 3, 2007 Dr. Thompson reviewed Dr. Pushkin’s November 16, 2006 findings.
Regarding the right shoulder, he determined that 145 degrees of flexion constituted a 2 percent
impairment and 125 degrees of abduction constituted a 2 percent impairment, resulting in a 4
percent impairment (A.M.A., Guides 476, 477, Figures 16-40, 16-43). Dr. Thompson further
determined that manual muscle testing which demonstrated 20 percent in abduction and
adduction each represented a 2 percent impairment, 10 percent in internal rotation represented a
2 percent impairment and 20 percent in external rotation represented a 2 percent impairment,
resulting in an 8 percent impairment (A.M.A., Guides 510, Table 16-35). He combined the 4
percent impairment for loss of range of motion and the 8 percent impairment for strength deficit
to conclude that appellant sustained a 12 percent impairment of the right upper extremity
(A.M.A., Guides 604, Combined Values Chart). Regarding the left shoulder, Dr. Thompson
determined that 145 degrees of flexion constituted a 2 percent impairment and 145 degrees of
abduction constituted a 1 percent impairment, resulting in a 3 percent impairment (A.M.A.,
Guides 476, 477, Figures 16-40, 16-43). He further determined that weakness of 20 percent in
abduction and adduction each represented a 2 percent impairment and 10 percent in flexion and
internal rotation each represented a 2 percent impairment, resulting in an 8 percent impairment

3

(A.M.A., Guides, 510, Table 16-35). Dr. Thompson combined the 3 percent impairment for loss
of motion and the 8 percent impairment for strength deficit to calculate an 11 percent impairment
of the left upper extremity (A.M.A., Guides 604, Combined Values Chart). He concluded that
appellant reached maximum medical improvement on February 2, 2003.
By decision dated March 2, 2007, the Office granted appellant a schedule award for a 12
percent impairment of the right upper extremity and an 11 percent impairment of the left upper
extremity. On March 19, 2007 appellant, through his attorney, requested an oral hearing before
an Office hearing representative.
In a July 10, 2007 report, Dr. Shepard listed his range of motion and strength deficit
findings and determined that appellant sustained a 30 percent impairment of the left upper
extremity and a 50 percent impairment of the right upper extremity based on the fifth edition of
the A.M.A., Guides.
On August 23, 2007 Dr. Morley Slutsky, an Office medical adviser, reviewed
Dr. Shepard’s July 10, 2007 findings. He requested that Dr. Shepard provide all of his range of
motion measurements for the shoulder and an explanation for his impairment rating for such loss
and strength deficit in light of section 16.8a on page 508 of the A.M.A., Guides.
By decision dated September 26, 2007, an Office hearing representative set aside the
March 2, 2007 decision and remanded the case for an Office medical adviser to review
Dr. Shepard’s July 10, 2007 findings and provide an impairment rating for appellant’s right and
left upper extremities. She instructed the medical adviser to correlate his findings with the
A.M.A., Guides and provide rationale to support his opinions.
By letter dated October 10, 2007, the Office requested that Dr. Shepard provide the
information requested by Dr. Slutsky.
In a January 23, 2008 report, Dr. Shepard advised that his 30 percent impairment rating
of the left upper extremity and 15 percent impairment rating of the right upper extremity were
based on Figures 16-40, 16-43 and 16-46 on pages 476 through 479 and Table 16-35 on page
510 of the A.M.A., Guides. He stated that apparently subjective parameters such as pain and
weakness and the subjective and objective effect of appellant’s shoulder injuries influenced his
capacity to carry out daily living activities and work and recreation pursuits were taken into
account.
On February 12, 2008 Dr. Slutsky reviewed Dr. Shepard’s January 23, 2008 report. He
opined that the findings were not sufficient to establish that appellant sustained more than a 12
percent impairment of the right upper extremity and an 11 percent impairment of the left upper
extremity. Dr. Slutsky explained that Dr. Shepard did not provide all six range of motion
measurements for the shoulders. He failed to explain his impairment rating for decreased
strength in the presence of loss of range of motion. Dr. Slutsky determined that appellant
sustained a nine percent impairment of the right upper extremity and a three percent impairment
of the left upper extremity based on Dr. Shepard’s July 10, 2007 findings.
In a February 12, 2008 decision, the Office denied appellant’s claim for an additional
schedule award. It accorded special weight to Dr. Pushkin’s impartial medical findings as
4

applied to the A.M.A., Guides by Dr. Thompson in finding that appellant sustained a 12 percent
impairment of the right upper extremity and an 11 percent impairment of the left upper
extremity. On February 28, 2008 appellant requested an oral hearing.
In reports dated May 23 and June 6, 2008, Dr. Neil Novin, a Board-certified surgeon,
listed his range of motion and strength deficit measurements and impairment for pain. He
determined that appellant sustained a 24 percent impairment of the right shoulder and a 22
percent impairment of the left shoulder (A.M.A., Guides 476, 479, 510, 576, 577, Figures 16-40,
16-46, Tables 16-35, 18-4, 18-5).
By decision dated August 4, 2008, the prior Office hearing representative set aside the
February 12, 2008 decision and remanded the case for an Office medical adviser to review
Dr. Novin’s May 23 and June 6, 2008 findings and provide an impairment rating for appellant’s
right and left upper extremities. She instructed the medical adviser to correlate his findings with
the A.M.A., Guides and provide rationale to support his opinions.
On August 6, 2008 Dr. Arnold T. Berman, an Office medical adviser, reviewed
Dr. Novin’s findings. He advised that the use of strength deficits was inappropriate based on
section 16.8a on page 508 of the A.M.A., Guides which stated that decreased strength could not
be rated in the presence of decreased motion or painful conditions. Dr. Berman further advised
that an impairment rating for pain could not be recommended because Dr. Novin did not indicate
whether appellant’s conditions fell under section 18.3a on pages 570 through 571 or whether his
pain could not be adequately rated under other chapters in accordance with section 18.3b on page
571 through 572 of the A.M.A., Guides. He advised that appellant’s conditions had already been
adequately rated. Dr. Berman applied the A.M.A., Guides to Dr. Novin’s range of motion
measurements to determine that appellant sustained an eight percent impairment of the right
upper extremity and a six percent impairment of the left upper extremity (A.M.A., Guides 476477, 479, Figures 16-40, 16-43, 16-46).
On August 19, 2008 the Office requested that Dr. Berman clarify whether appellant was
entitled to an additional schedule award. On August 20, 2008 Dr. Berman advised that appellant
was not entitled to an additional schedule award based on his calculations.
By decision dated August 21, 2008, the Office denied appellant’s claim for an additional
schedule award. The evidence was found to be insufficient to establish that he had more than a
12 percent impairment of the right upper extremity and an 11 percent impairment of the left
upper extremity. On September 9, 2008 appellant requested an oral hearing.
In a May 7, 2009 decision, an Office hearing representative affirmed the August 21, 2008
decision.
On appeal, appellant contended that the Office should have granted him a schedule award
based on Dr. Novin’s rating of a 24 percent impairment of his right shoulder and a 22 percent
impairment of his left shoulder. Alternatively, he contended that the Office should have granted
him a schedule award based on Dr. Pushkin’s rating of a 25 percent impairment of his right
shoulder and a 15 percent impairment of his left shoulder. Appellant argued that the Office

5

should have referred him to another impartial medical specialist as it determined that
Dr. Pushkin’s opinion was not entitled to special weight accorded an impartial medical specialist.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
Section 8123 of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.6 In situations where there exist
opposing medical reports of virtually equal weight and rationale and the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.7
Where the Office secures an opinion from an impartial medical examiner for the purpose
of resolving a conflict in the medical evidence and the opinion from such examiner requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
examiner for the purpose of correcting the defect in the original opinion.8 If the specialist is
unwilling or unable to clarify or elaborate on his or her opinion as requested, the case should be
referred to another appropriate impartial medical specialist.9 Unless this procedure is carried out
by the Office, the intent of section 8123(a) of the Act10 will be circumvented when the impartial
specialist’s medical report is insufficient to resolve the conflict of medical evidence.11
2

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

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

5

Supra note 3.

6

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

7

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

8

Nancy Keenan, 56 ECAB 687 (2005); Harry T. Mosier, 49 ECAB 688 (1998).

9

Guiseppe Aversa, 55 ECAB 164 (2003).

10

5 U.S.C. § 8123(a).

11

Harold Travis, 30 ECAB 1071 (1979).

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ANALYSIS
The Board finds that this case is not in posture for decision. A conflict in the medical
opinion evidence arose between Dr. Shepard, an attending physician, and Dr. Wilson, an Office
referral physician, as to the extent of permanent impairment of appellant’s upper extremities.
Dr. Shepard opined that appellant sustained a 45 percent impairment of the right upper extremity
and a 25 percent impairment of the left upper extremity. Dr. Wilson opined that appellant only
sustained an 18 percent impairment of the right upper extremity. The Office properly referred
appellant to Dr. Pushkin as the impartial medical specialist. The Board finds, however, that
Dr. Pushkin’s evaluation of appellant’s impairment of the right and left upper extremities is not
sufficient to resolve the conflict.
In a May 18, 2006 report, Dr. Pushkin listed his findings on physical and x-ray
examination and determined that appellant sustained a 25 percent impairment of the right
shoulder and a 15 percent impairment of the left shoulder (A.M.A., Guides 510, Table 16-35).
Based on the September 6, 2006 opinion of Dr. Thompson, an Office medical adviser, who
reviewed Dr. Pushkin’s May 18, 2006 findings and stated that he failed to properly apply the
A.M.A., Guides because he did not provide range of motion measurements for flexion,
extension, abduction, adduction and internal and external rotation of appellant’s shoulders and
strength deficit measurements ranging from 5 to 50 percent for each affected range of motion,
the Office properly requested clarification from Dr. Pushkin on October 25, 2006. Dr. Pushkin’s
November 16, 2006 report found that, regarding the right shoulder, abduction was 125 degrees,
forward flexion was 145 degrees, external rotation was good and impingement sign was mildly
positive. He advised that strength testing was 4/5 each in abduction, external rotation and
adduction, 5/5 in forward flexion and 41/2/5 in internal rotation. Dr. Pushkin found no
neurocirculatory deficit. He reported the same range of motion and strength deficit
measurements for the left shoulder as the right shoulder with 41/2/5 in forward flexion and 5/5 in
extension. Dr. Pushkin advised that testing of both elbows demonstrated 4/5 biceps strength
each in flexion and supination. He determined that appellant sustained decreased strength in the
right shoulder, 15 percent each in abduction, external rotation and adduction and 12.5 percent in
internal rotation. Dr. Pushkin found no strength deficit for forward flexion. He found decreased
strength in the right elbow, 15 percent each for flexion and supination (Table 16-35 (A.M.A.,
Guides 510, Table 16-35). Regarding the left shoulder and elbow, Dr. Pushkin calculated the
same impairment ratings as the right shoulder and elbow. However, his impairment ratings for
the right and left shoulders do not conform to the protocols of the A.M.A., Guides. Dr. Pushkin
failed to apply his range of motion measurements for appellant’s right and left shoulders to the
tables and figures of the A.M.A., Guides. In addition to his range of motion findings, he also
rated impairment due to loss of strength. Dr. Pushkin did not adequately address the principle
stated at section 16.8 that: “[d]ecreased strength cannot be rated in the presence of decreased
motion or other painful conditions.”12 (Emphasis in the original.) He did not address why, under
the circumstances of this case, any impairment for strength deficit was appropriate.
The Office submitted Dr. Pushkin’s report to Dr. Thompson, an Office medical adviser,
for review. Dr. Thompson did not address the incomplete nature of Dr. Pushkin’s opinion.
12

A.M.A., Guides 507, § 16.8.

7

Rather, he applied the A.M.A., Guides to Dr. Pushkin’s range of motion and strength deficit
measurements and determined that appellant sustained a 12 percent impairment of the right
upper extremity and an 11 percent impairment of the left upper extremity (A.M.A., Guides 476,
477, 510, 604, Figures 16-40, 16-43, Table 16-35, Combined Values Chart). The Board finds
that Dr. Thompson substituted his judgment for that of the impartial specialist in determining
appellant’s permanent impairment.13 The role of the medical adviser is to verify the correct
application of the A.M.A., Guides. It is the impartial medical specialist, however, who must
resolve the conflict on the degree of permanent impairment in accordance with the A.M.A.,
Guides.14 The Office issued the February 12, 2008 schedule award finding a 12 percent
impairment of the right upper extremity and an 11 percent impairment of the left upper
extremity, based on Dr. Thompson’s opinion.
For the stated reasons, the Board finds that Dr. Pushkin’s opinion is insufficient to
resolve the conflict in medical opinion. As there is an unresolved conflict in medical opinion,
the case will be remanded to the Office. Due to the insufficiency of Dr. Pushkin’s reports and
the Office’s prior request that he clarify his opinion, the Office should refer appellant, together
with the case record and a statement of accepted facts, to another Board-certified specialist for an
impartial medical evaluation of his permanent impairment.15 Following this and all other
development deemed necessary, the Office shall issue an appropriate decision in the case.
CONCLUSION
The Board finds that this case is not in posture for decision, as there is an unresolved
conflict in the medical evidence concerning appellant’s degree of permanent impairment of the
right and left upper extremities.

13

See I.H., 60 ECAB ___ (Docket No. 08-1352, issued December 24, 2008) (a medical adviser may not clarify or
expand upon the impartial medical examiner’s opinion).
14

See Richard R. LeMay, 56 ECAB 341 (2005). See also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Examinations, Chapter 3.500.5(c) (October 1995).
15

Guiseppe Aversa, supra note 9.

8

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2009 and August 21, 2008 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further action consistent with this decision.
Issued: April 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
RESERVE, Fort Buchanan, PR, Employer
__________________________________________

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

Docket No. 09-208
Issued: November 9, 2009

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 October 27, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated September 25, 2008 finding that she had not
established an injury due to factors of her federal employment. 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 has met her burden of proof in establishing that her stroke
was due to factors of her federal employment.
FACTUAL HISTORY
On February 11, 2008 appellant, then a 40-year-old human resources specialist, filed an
occupational disease claim alleging that she experienced a stroke “trying to get all work
completed before scheduled knee surgery on January 25, 2008.” Dr. Luis Gonzalez Martinez, a
physician, completed reports, which were written in a combination of both Spanish and English
and diagnosed cerebrovascular accident with left hemiparesis.

In a letter dated February 19, 2008, the Office requested additional factual and medical
evidence from appellant, she submitted a magnetic resonance imaging scan dated January 25,
2008, which demonstrated a lacunar infarct in the right basal ganglia region and left cerebellar
hemisphere. Appellant also submitted additional medical reports some of which were written in
Spanish and some of which were in English regarding her ongoing condition.
Appellant amended her claim on February 14, 2008 and alleged that her stroke was the
result of a traumatic injury on January 24, 2008. The Office informed her by telephone on
March 3, 2008 that she should submit all medical documentation in English. Appellant
submitted a narrative statement and attributed her condition to an excessive amount of stress in
the office. She stated that her position was eliminated, but that a reduction-in-force was not yet
in place. Appellant noted that there were frequent changes in the chain of command and that she
acted as a mediator due to difficult relationship between the Family Readiness Programs Director
and contractors assigned to her office. She stated on January 24, 2008 that she had an argument
with one of the contractors. Appellant noted that she was scheduled to attend an Equal
Employment Opportunity (EEO) Commission hearing regarding a claim against a former
supervisor on January 24, 2008 and that she received notification that her witnesses would not be
able to attend. She stated that she was occasionally required to work overtime and travel twice a
year. Appellant noted that she had to prepare weekly reports and that she frequently dealt with
retirees who failed to understand the forms and that this resulted in delay in the process. She
noted on January 24, 2008 her left side became numb including her face, eye, mouth, arm and
leg was transported by ambulance to the hospital. Appellant noted that she had a history of
cigarette smoking, but no heart conditions.
In a report received March 17, 2008, Dr Victor M. Gordo, a Board-certified family
practitioner, noted appellant’s history and diagnosed cerebrovascular accident with left
hemiparesis. He stated, “In my professional opinion the extreme level of stress, tense
environment and changes of temperament experienced by [appellant] on her federal employment
that morning caused her blood pressure to suddenly rise directly causing the cerebrovascular
accident.”
Appellant noted that she was diagnosed with high blood pressure in 2006 and controlled
this condition with medications, which were adjusted in 2006 and 2007. She noted on
January 24, 2008 that she had an argument with a coworker and organized some documentation
for her EEO hearing. Appellant stated that she was under a lot of stress. She stated in
September 2007, that she worked overtime for one week.
The employing establishment responded on March 5, 2008 and stated that appellant’s
position had been eliminated, that there was “severe turmoil” in her office involving two other
civilians, but that her workload had not been affected by any staffing shortages or extra demands.
By decision dated June 11, 2008, the Office denied appellant’s claim finding that there
was not sufficient factual evidence to support her occupational disease claim. Appellant
requested a review of the written record on June 25, 2008. She submitted notice that a
prehearing conference in her EEO complaint was scheduled for January 24, 2008. Appellant
submitted copies of an e-mail dated January 24, 2008, which contained statements written in a
combination of both Spanish and English. The e-mail does not contain a translation of the

2

Spanish portion. According to appellant this e-mail continued the alleged disagreement with a
coworker, which initially began verbally. She asserted that a coworker, Limary Cepeda, accused
appellant of closing the door and leaving her locked outside the building. Ms. Cepeda’s initial
statements are written in Spanish. Appellant’s response is in English and states that she did not
know who closed the door, and recommended that Ms. Cepeda coordinate all actions with Sonia
Roca. Ms. Cepeda responded by stating, “Thank you for your concern.” Appellant replied, “I
usually try to help all my coworkers, but today is my last day prior to my surgery and I am busy,
busy, busy. Coordinate with Sonia M. Roca and she approves this I can call DPW when I return.
Good Luck….” Ms. Cepeda then wished appellant good luck with her surgery.
The employing establishment reviewed appellant’s statements and asserted that the
untranslated e-mails were cordial and professional with no animosity or strong words. The
employing establishment also noted that appellant was offered relocation after her position was
eliminated, but refused. It confirmed that appellant worked 27 hours of overtime in one week in
September 2007.
By decision dated September 25, 2008, the hearing representative affirmed the Office’s
June 11, 2008 decision and found that appellant had established a compensable factor of
employment in regarding to working 27 hours of overtime in September 2007. However, the
hearing representative found that the medical evidence submitted did not establish a causal
relationship between appellant’s accepted employment factor and her diagnosed condition.
The hearing representative reviewed the January 24, 2008 e-mail and noted the hand
written statement in English on the e-mail that the argument started verbally and then resulted in
the contents of the e-mail. The hearing representative stated, “[T]he e-mail did not seen
argumentative or confrontational. One sentence from appellant indicated that she had no idea
who closed the door but it was [not] her and a second sentence mentioned that she was very
busy. The coworker’s last response was to wish her good luck on her surgery.”
LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.1 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of a disease or condition for which
compensation is claimed; (2) a factual statement identifying the 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. The medical opinion must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.2

1

20 C.F.R. § 10.5(q).

2

Solomon Polen, 51 ECAB 341, 343-44 (2000).

3

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4
ANALYSIS
The Board finds that this case is not in posture for decision. Appellant submitted factual
and medical evidence, which contains both English and Spanish within the same documents.
The hearing representative allegedly reviewed both the factual and medical evidence in reaching
the conclusion that appellant failed to meet her burden of proof in establishing that her stroke
was due to factors of her federal employment. However, the record does not contain translations
of the medical or factual evidence, specifically, the e-mail with Ms. Cepeda. This is especially
pertinent as the hearing representative appears to rely on the employing establishment’s view of
the e-mail exchange between appellant and Ms. Cepeda. Appellant described the e-mail as an
argument and the employing establishment characterized as “professional.” There is no English
translation of the Spanish portion of the e-mails in the record. For the Office and the Board to
consider all evidence of record, an accurate translation of this e-mail, one of appellant’s alleged
employment factors, and of all medical reports are needed. As the Office did not obtain a
translation of all the Spanish factual and medical evidence included in the record, the case will
be remanded to the Office for this purpose.5
CONCLUSION
The Board finds that the case must be remanded for translation of all the factual and
medical evidence into English and following any necessary further development, the issuance of
an appropriate decision.

3

5 U.S.C. §§ 8101-8193.

4

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
5

Ana D. Pizarro, 54 ECAB 430, 434 (2003) (the Board remanded the case in order to seek an accurate
translation); see Armando Colon, 41 ECAB 563, 566 (1990) (the Board found that the Office abused its discretion in
denying appellant’s request for reconsideration on the grounds that the evidence submitted lacked probative value
because it was written in a foreign language). A.G., Docket No. 08-206 (issued May 12, 2008); Cf. Lorraine E.
Schroeder, 44 ECAB 323, 330 (1992).

4

ORDER
IT IS HEREBY ORDERED THAT the September 25, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: November 9, 2009
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

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

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

Docket No. 08-589
Issued: September 9, 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 November 23, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 6, 2007, terminating his compensation
for wage loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate compensation for
wage loss effective September 6, 2007.
FACTUAL HISTORY
The record indicates that two claims for compensation were administratively combined
under OWCP File No. 060617121. Appellant filed an occupational illness claim (Form CA-2)
on July 5, 1994 alleging his carpal tunnel syndrome was causally related to his federal
employment as a letter sorting machine clerk. On February 2, 1995 he filed a Form CA-2
alleging that he sustained a left elbow cubital tunnel injury as a result of his letter sorting

machine activities. The accepted conditions, according to Form CA-800 (FECA Nonfatal
Summary) were bilateral carpal tunnel syndrome, right cubital tunnel syndrome and left elbow
cubital tunnel syndrome. An October 31, 2006 statement of accepted facts reported that the
accepted conditions included left lateral epicondylitis and right ulnar nerve lesion.
On February 16, 1996 the Office issued a schedule award for a 12 percent right arm
impairment and a 6 percent left arm impairment. Appellant received a schedule award for a 10
percent permanent impairment to his left arm on November 6, 1997. He retired from federal
employment in May 2005 and began receiving compensation for wage loss.
The attending physician, Dr. Luis Pagani, a neurologist, opined in a June 29, 2006 report
that the left lateral epicondylitis and bilateral carpal tunnel syndrome had not resolved. He
opined that appellant was totally disabled and he expected the disability to be permanent.
Dr. Pagani also indicated that appellant was disabled due to a service-connected post-traumatic
stress disorder and was being treated at a Veterans’ hospital.
The Office referred appellant for a second opinion examination by Dr. Richard Sheridan,
an orthopedic surgeon. In a report dated November 28, 2006, Dr. Sheridan provided results on
examination and reviewed medical evidence. He stated that the objective findings supporting
residuals of the compensable conditions were positive Phalen signs bilaterally, hypesthesia in the
median and ulnar nerves, positive Froment sign on the right and tenderness over the left lateral
epicondyle. Dr. Sheridan completed a work capacity evaluation (OWCP-5c) indicating that
appellant could work eight hours with restrictions of 10 pounds lifting, pushing and pulling. In a
report dated January 4, 2007, Dr. Pagani disagreed with Dr. Sheridan as to appellant’s disability
for work. He reiterated that appellant was totally disabled.
The Office found that a conflict in medical opinion arose between Dr. Pagani and
Dr. Sheridan. Appellant was referred to Dr. Martyn Goldman, a Board-certified orthopedic
surgeon, selected as the impartial medical specialist. In a report dated February 21, 2007,
Dr. Goldman provided a history and results on examination. He stated that the objective findings
to support residuals for the compensable conditions were decreased two-point discrimination in
both hands. Dr. Goldman opined that most of appellant’s present symptomatology was related to
a chronic pain syndrome, which was not related to the compensable injury. He completed an
OWCP-5c, checking a box “no” regarding whether appellant could work eight hours with
restrictions. In the section of the form regarding specific limitations, however, Dr. Goldman
appeared to indicate that appellant could work eight hours sitting. He also checked restrictions
as to reaching, pushing, pulling, lifting and repetitive movements of the wrist and elbow.
On March 15, 2007 the Office requested Dr. Goldman provide an additional report
regarding an employment-related disability. By report dated April 2, 2007, Dr. Goldman noted
that the two-point discrimination did produce results outside normal limits. As to work
restrictions, he indicated that he would withdraw restrictions such as reaching above shoulder, as
pain was not to be considered, and the restrictions against pushing, pulling and lifting were based
on the back examination, which was not an accepted condition. Dr. Goldman concluded that the
remaining restrictions would be against repetitive wrist movements. He completed an OWCP-5c
dated April 25, 2007 and again checked a box “no” as to working eight hours with restrictions.

2

Dr. Goldman checked a limitation on wrist and elbow movement, without indicating the number
of hours. He did not provide further information.
Thereafter, the Office referred appellant for a second referee examination by Dr. Martin
McTighe, a Board-certified orthopedic surgeon. In a report dated July 2, 2007, Dr. McTighe
provided a history and results on examination. He reported diffuse tenderness in the cervical
spine, shoulders, arms and hands, noting pressure appeared to cause a disproportionate degree of
pain. Dr. McTighe reported dysesthesias distributed in a nearly equal degree over the ulnar,
radial and median nerve, with Phalen’s and Tinel’s inconclusive due to global hypersensitivity.
He further stated:
“It is my opinion that this individual demonstrates no objective findings to
support disability from the compensable injury as listed on the statement of
[accepted] facts. In my opinion the claimant is capable of performing his regular
duties as a letter sorting machine operator without restrictions as far as the
compensable injuries are concerned. Objective findings in this examination
appeared to be exclusively those of a hypersensitivity that is the result of chronic
pain syndrome. This individual has reached maximum medical improvement and
the limitations resulting from his chronic pain syndrome are permanent. It is my
opinion that further medical treatment for the compensable injuries is
unwarranted. The need for psychiatric intervention is not excluded.”
By letter dated August 3, 2007, the Office notified appellant that it proposed to terminate
his compensation for wage loss. Appellant submitted a July 2, 2007 report from Dr. Pagani that
indicated appellant continued to report pain. In an August 11, 2007 statement, he alleged that he
suffered harassment from his supervisors and his employment exacerbated his post-traumatic
stress disorder. Appellant indicated that he had to retire in May 2005 because of his emotional
issues.
By decision dated September 6, 2007, the Office terminated compensation for wage loss
based on the weight of the medical evidence.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, the Office may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.1
It is well established that when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.2

1

Patricia A. Keller, 45 ECAB 278 (1993).

2

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

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ANALYSIS
In this case, there was a conflict in the medical evidence regarding the nature and extent
of appellant’s continuing employment-related disability. The attending physician, Dr. Pagani,
reported that appellant was totally disabled from his employment injuries, while the second
opinion physician, Dr. Sheridan, indicated that appellant could work with restrictions. The
Federal Employees’ Compensation Act provides that, if there is a disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make the examination.3
The Office initially referred appellant to Dr. Goldman for the referee examination. His
reports, however, did not resolve the conflict. In a February 21, 2007 report, Dr. Goldman
reported decreased two-point discrimination in both hands, but he also stated that most of
appellant’s symptoms were related to chronic pain syndrome, which is not an accepted
employment-related condition. As to employment-related disability, the February 21, 2007
OWCP-5c did not provide a clear opinion as to appellant’s capacity for work. Dr. Goldman
appeared to indicate that appellant could work a sedentary position with restrictions at eight
hours a day, as he reported that appellant could sit for eight hours. On the other hand, he
checked a box “no” regarding appellant’s ability to work eight hours with restrictions. The
Office properly requested clarification from Dr. Goldman. On April 2, 2007 he indicated his
belief that some of the limitations previously noted on his OWCP-5c would not be considered
employment related, but the April 21, 2007 OWCP-5c did not clarify the issue presented.
Although it listed fewer limitations, it did not explain how many hours appellant could work with
the reported limitations on wrist and elbow movements. Dr. Goldman’s reports did not clearly
establish the nature and extent of any continuing employment-related disability.
Since the Office was unable to obtain clarification from Dr. Goldman, it referred
appellant for referee examination by Dr. McTighe.4 In his July 2, 2007 report, Dr. McTighe
noted findings such as dysesthesias over the ulnar, radial and median nerve, but he found the
results to be causally related to a chronic pain syndrome. The diagnosed condition of chronic
pain syndrome is not accepted as an employment-related condition. Dr. McTighe explained that
there were no findings related to the employment injuries, and appellant was not prevented from
performing his letter sorting machine duties because of an employment-related condition.
As noted above, a rationalized medical report from a referee physician is entitled to
special weight. The Board finds that Dr. McTighe’s report resolves the conflict in the medical
evidence and is entitled to special weight. Dr. McTighe’s provided an unequivocal opinion that
the only objective examination finding was hypersensitivity related to a chronic pain syndrome,
not the accepted employment injuries. It represents the weight of the evidence, and the Office
met its burden of proof to terminate compensation for wage loss effective September 6, 2007.

3

5 U.S.C. § 8123(a). This is called a referee examination according to 20 C.F.R. § 10.321 (2008).

4

Office procedures indicate the Office may seek a second referee examination if the original referee physician
fails to provide an adequate and clear response to a specific request for clarification. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.13(a)(2) (November 1996).

4

The Board notes that appellant appeared to indicate that he felt his inability to work as of
May 2005 was related to an emotional condition resulting from actions of his supervisors.
Appellant may pursue a claim for an emotional condition, but that issue is not before the Board
on this appeal and the Board offers no opinion on the merits of a hypothetical claim.
CONCLUSION
The Office met its burden of proof as the weight of the medical evidence was sufficient to
establish that employment-related disability had ceased as of September 6, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2007 is affirmed.
Issued: September 9, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Albany, NY, Employer
__________________________________________

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

Docket No. 11-913
Issued: October 24, 2011

Case Submitted on the Record

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

JURISDICTION
On February 22, 2011 appellant filed a timely appeal from an August 31, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and a January 24, 2011
OWCP decision that declined to review the merits of the claim. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an employment-related permanent
impairment to a scheduled member or function of the body warranting a schedule award; and
(2) whether OWCP properly determined appellant’s application for reconsideration was
insufficient to warrant review of the merits of the claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 30, 2007 appellant, then a 47-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained carpal tunnel syndrome as a result of her federal
employment. On the claim form she indicated that she was right-handed and used it constantly
in such activities as tearing labels and lifting trays.
By decision dated June 11, 2008, OWCP accepted the claim for right carpal tunnel
syndrome. Appellant underwent a right carpal tunnel release on November 14, 2008. On
January 28, 2010 she submitted a claim for a schedule award.
In a treatment note dated January 5, 2010, Dr. Joseph Marotta, an orthopedic surgeon,
stated that appellant still had some intermittent achiness around the carpal tunnel scar and some
pins and needles sensation into the hypothenar area. He provided results on examination and
stated that he would assign her a 15 percent loss of function of the right hand.
By letter dated March 4, 2010, OWCP advised appellant that medical evidence as to
permanent impairment must be based on the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. Appellant submitted an August 4, 2010
report from Dr. William Grant, an internist, who stated that he did not see her in person, but
interviewed her by telephone and read the records supplied by her representative. Dr. Grant did
not identify the specific records reviewed. With respect to an entrapment/compression
neuropathy impairment, he opined that appellant had a nine percent bilateral arm impairment
pursuant to Table 15-23. Dr. Grant also found a 43 percent right arm impairment due to a
Complex Regional Pain Syndrome.
In a decision dated August 31, 2010, OWCP determined that the medical evidence did
not establish any employment-related permanent impairment. It noted that Dr. Grant had not
examined appellant.
By letter dated September 26, 2010, appellant requested reconsideration of her claim.
She stated that she was having difficulty finding a physician that would provide an opinion using
the sixth edition of the A.M.A., Guides. Appellant stated that she would appreciate any help
OWCP could offer.
In a decision dated January 24, 2011, OWCP denied the reconsideration request without
review of the merits of the claim.2 It found the reconsideration request was insufficient to
warrant further review of the merits of the schedule award claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for

2

In using the term “merits” the Board is referring to the underlying substantive issue in the claim for
compensation -- in this case the claim for a schedule award.

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the permanent impairment of the scheduled member or function.3 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.5
ANALYSIS -- ISSUE 1
The record contains two medical reports with opinions regarding the issue of permanent
impairment. Dr. Marotta stated in a January 5, 2010 note that he found a 15 percent loss of
function, without further explanation. There is no complete history, detailed results based on
physical examination or references to the A.M.A., Guides.6 The evidence from Dr. Marotta is
therefore of diminished probative value to the issue presented.
Appellant also submitted an August 4, 2010 report from Dr. Grant, but he advised that he
did not examine her but spoke with her by telephone. While Dr. Grant provided a rating of
impairment, he clearly noted that he had not actually examined her. As the Board has held, a
physician’s opinion that is based solely on a telephone conversation with an employee has no
probative value.7 Dr. Grant referred to having reviewed some medical records, but it is not clear
what records he reviewed. The Board finds that he provided no basis for an opinion as to an
employment-related permanent impairment and his report is of no probative value to the issue
presented.
In the absence of probative medical evidence with respect to a permanent impairment to a
scheduled member or function of the body under 5 U.S.C. § 8107, OWCP properly determined
that appellant was not entitled to a schedule award in this case.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8 its
regulations provide that a claimant may obtain review of the merits of the claim by submitting a
written application for reconsideration that sets forth arguments and contains evidence that either
3

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
4

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

5

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

6

The medical evidence necessary to support a schedule award includes a physician’s report that provides a
detailed description of the impairment. James E. Jenkins, 39 ECAB 860 (1988); T.S. Docket No. 10-2332 (issued
July 6, 2011).
7

See Dean E. Pierce, 40 ECAB 1249 (1989); see also Rose Marie Paszkiewicz, 16 ECAB 223 (1964).

8

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application).”

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“(1) shows that OWCP erroneously applied or interpreted a specific point of law; (2) advances a
relevant legal argument not previously considered by it; or (3) constitutes relevant and pertinent
evidence not previously considered by OWCP.”9 Section 10.608(b) states that any application
for review that does not meet at least one of the requirements listed in section 10.606(b)(2) will
be denied by OWCP without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered by OWCP. She indicated
that she was attempting to find a physician to provide an opinion as to a permanent impairment
under the A.M.A., Guides. With respect to additional evidence, appellant did not submit any
new medical evidence prior to the January 24, 2011 OWCP decision. The Board finds appellant
did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2).
On appeal, appellant submitted additional medical evidence and urged the Board to
review the new evidence. The Board’s jurisdiction is limited to evidence that was before OWCP
at the time of its final decision.11 The Board cannot consider the new medical evidence
submitted. Based on the evidence that was before OWCP, appellant did not establish entitlement
to a schedule award and OWCP properly denied the application for reconsideration. She may
send a request for a schedule award to OWCP based on new medical evidence upon return of the
case record.
CONCLUSION
The Board finds that the medical evidence is not sufficient to establish entitlement to a
schedule award under 5 U.S.C. § 8107. The Board further finds that OWCP properly denied the
application for reconsideration without review of the merits of the schedule award claim.

9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

11

Id. at § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 24, 2011 and August 31, 2010 are affirmed.
Issued: October 24, 2011
Washington, DC

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

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

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

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