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

)
)
)
)
)
)
)
)

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

Docket No. 08-531
Issued: June 13, 2008

Case Submitted on the Record

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

JURISDICTION
On December 12, 2007 appellant filed a timely appeal from a December 4, 2007 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than seven percent impairment to his right leg
and six percent impairment to his left leg, for which he received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board.1 Appellant’s claim was accepted by the
Office for a herniated disc at L5-S1 and permanent aggravation of S1 radiculopathy. On July 1,
2006 he was granted schedule awards for seven percent impairment to his right leg and six
percent impairment of his left leg. In a December 8, 2006 decision, the Board found a conflict in
1

Docket No. 06-1866 (issued December 8, 2006).

medical opinion between Dr. Jacob Salomon, an attending Board-certified general surgeon, and
an Office medical adviser as to the extent of permanent impairment to appellant’s lower
extremities. The facts and history of the case are set forth in the Board’s prior decision and are
incorporated herein by reference.2
Following remand, the Office referred appellant to Dr. Jaroslaw B. Dzwinyk, a Boardcertified orthopedic surgeon, selected as the impartial medical specialist, who was requested to
provide an impairment rating of the lower extremities in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001). In a January 12,
2007 report, Dr. Dzwinyk reviewed appellant’s history of injury and medical treatment and noted
his complaint of pain at the lower end of the lumbar area. He noted that appellant’s pain radiated
into both groin areas and medial thighs but he denied any distal radiation of the pain below the
knees or any neurological symptoms, such as numbness, loss of sensation or paresthesias.
Dr. Dzwinyk noted findings on examination of the spine with no evidence or paravertebral
muscle spasm and mild tenderness over the lumbosacral junction. No obvious pain behavior or
overreaction was noted. Appellant was able to reach below the knees on side bending and stand
on both heels and toes. Neurological evaluation of both lower extremities was reported as
normal for deep tendon reflexes at the ankles and knees. No atrophy was found in the thighs or
calves. Dr. Dzwinyk noted that diagnostic studies revealed disc space collapse at the L5-S1 with
vertebral end plate edema. The bulging disc resulted in mild to moderate encroachment of the
foramina bilaterally.
Dr. Dzwinyk noted that there were no current physical findings to support evidence of an
S1 radiculopathy since there were no symptoms of pain radiating distal to the knee. He opined
that the examination did not disclose any lower extremity impairment, as virtually all of the
observed functional impairment was to the low back due to the degenerative disc disease at
L5-S1. Dr. Dzwinyk noted that the Federal Employees’ Compensation Act did not provide a
schedule award for permanent impairment of the back itself. He noted the prior rating by the
Office medical adviser and stated that, based on the lack of objective findings, “there is nothing
to support a change in the percentage of impairment that was already awarded.”
In a March 1, 2007 decision, the Office denied modification of its July 1, 2006 schedule
award determination, finding that the weight of medical opinion did not establish greater
impairment.
Appellant requested a review of the written record on March 5, 2007. By decision dated
June 3, 2007, an Office hearing representative affirmed the March 1, 2007 decision.
On July 17, 2007 appellant requested reconsideration. He enclosed copies of medical
records previously reviewed, contending that the report of Dr. Dzwinyk should not outweigh the
opinion of Dr. Salomon.3 The Office forwarded a portion of the medical record to an Office
2

During the pendency of the prior appeal, an Office hearing representative issued an October 13, 2006 decision
concerning the schedule award. This decision is null and void as the Board and the Office may not have concurrent
jurisdiction over the same issue. See Lawrence Sherman, 55 ECAB 359 (2004); Cathy B. Millin, 51 ECAB 330
(2000); Douglas E. Billings, 41 ECAB 880 (1990).
3

Appellant also submitted an affidavit from Christopher Cummings, a roommate, as to limitations due to his back
pain.

2

medical adviser who, on September 18, 2007, stated that appellant’s primary complaint at the
referee examination was of back pain at the lower lumbar spine. Physical examination revealed
mildly restricted lumbar range of motion with normal reflexes, no atrophy, and negative straight
leg raising bilaterally. The Office medical adviser indicated that the details of the prior
permanent impairment rating were not available for review and he could not comment on
whether any changes to appellant’s schedule award should be made.
The Office subsequently referred the medical record to the Office medical adviser who,
on November 30, 2007, reviewed the reports of Dr. Salomon and Dr. Dzwinyk. The Office
medical adviser noted that appellant’s permanent impairment determination had been based on
Grade 4 pain and strength deficits to the bilateral lower extremities in the S1 nerve distribution.
However, Dr. Dzwinyk’s physical examination and evaluation of recent diagnostic testing found
no new impairment that would increase the permanent impairment beyond that already awarded.
The Office medical adviser recommended that the prior schedule award and date of maximum
medical improvement remained unchanged.
In a December 4, 2007 decision, the Office denied modification of the July 1, 2006
schedule award.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss should be determined. For consistent results
and to ensure equal justice under the law for all claimants, the Office has adopted the A.M.A.,
Guides as the uniform standards applicable to all claimants.6 Office procedures direct the use of
the fifth edition of the A.M.A., Guides, issued in 2001, for all decisions made after
February 1, 2001.7
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back or spine,
no claimant is entitled to such an award.8 However, as the Act makes provision for the lower
extremities, a claimant may be entitled to a schedule award for permanent impairment to a lower
extremity even though the cause of the impairment originates in the spine.9

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

20 C.F.R. § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

George E. Williams, 44 ECAB 530 (1993).

9

Id.

3

It is well established that in situations where a case is referred to an impartial medical
specialist for the purpose of resolving a medical conflict, the opinion of such specialist will be
given special weight when based on a proper factual background and sufficiently well
rationalized.10
ANALYSIS
Appellant’s claim was accepted by the Office for a herniated disc at L5-S1 and a
permanent aggravation of S1 radiculopathy. He was granted schedule awards for bilateral lower
extremity impairment based on the report of his attending physician, Dr. Salomon, a Boardcertified general surgeon. In the prior appeal, the Board noted that the reports of Dr. Salomon
described impairment of the S1 nerve root. He applied the tables of Chapter 15 to rate
impairment as nine percent of the right leg and eight percent of the left leg. An Office medical
adviser reviewed the reports of Dr. Salomon and found seven percent impairment to the right leg
and six percent impairment of the left leg based on bilateral S1 sensory and strength deficits.
Based on this conflict in medical opinion, the case was remanded for referral to an impartial
medical specialist.
The report of Dr. Dzwinyk establishes that appellant does not have greater impairment of
his lower extremities than that awarded on July 1, 2006. On January 12, 2007 Dr. Dzwinyk
examined appellant and noted that his complaints of pain were located in the lower end of the
lumbar spine. He did not find any distal radiation of pain into the knees or any neurological
symptoms, such as numbness or loss of sensation, or atrophy to the lower extremities. Based on
the absence of physical findings to support evidence of impairment along the S1 nerve
distribution, Dr. Dzwinyk found that there was no lower extremity impairment. He noted the
prior impairment ratings of record and commented that there was nothing to support a change in
the rating already awarded. The medical evidence was subsequently reviewed by an Office
medical adviser who, on November 30, 2007, noted that the prior impairment rating had been
based on impairment in the distribution of the S1 nerve. However, the recent report of the
impartial medical specialist did not find evidence to support new impairment to the S1 nerve
beyond that already awarded. He advised that the prior schedule award and date of maximum
medical improvement should remain unchanged.
The Board finds that the report of Dr. Dzwinyk, the impartial medical specialist, is based
upon an accurate factual and medical history and a thorough examination of appellant. He
reviewed the medical reports of record, noting the prior schedule award granted for permanent
impairment along the S1 nerve distribution. However, the medical referee advised that there
were no findings on examination to support additional impairment. For this reason, appellant has
not established that he has greater than seven percent impairment to his right leg and six percent
impairment to his left leg.
CONCLUSION
The Board finds that appellant has no more than seven percent impairment to his right
lower extremity and six percent impairment to his left lower extremity.
10

See John D. Jackson, 55 ECAB 465 (2004); Robert D. Reynolds, 49 ECAB 561 (1998).

4

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: June 13, 2008
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

5


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

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1402
Issued: March 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 15, 2008 appellant, through her attorney, filed a timely appeal from an April 8,
2008 decision of the Office of Workers’ Compensation Programs denying waiver of recovery of
an overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the overpayment issue.
ISSUES
The issues are: (1) whether the Office properly denied waiver of recovery of the
overpayment; and (2) whether the Office properly required repayment of the overpayment by
deducting $100.00 every four weeks from her continuing compensation.
FACTUAL HISTORY
This case is before the Board for the second time. On April 2, 2008 the Board affirmed
an April 17, 2007 overpayment decision with respect to amount, but set it aside as to the issue of
waiver of the overpayment and remanded the case for further proceedings.1 The Office found
1

Docket No. 07-1355 (issued April 2, 2008).

that an overpayment in the amount of $2,263.75 was created during the period December 21,
2005 through September 30, 2006 as appellant received wage-loss compensation at the
augmented rate of 75 percent when she was only entitled to the statutory rate of 66 2/3 percent.
The facts of the case are set forth in the Board’s prior decision and are incorporated herein by
reference.2
The Office received a completed OWCP-20 dated March 13, 2007. Appellant reported
$2,910.00 in income, $1,939.51 in available funds and $3,343.00 in expenses. She had
approximately $15,600.00 in a credit union account but noted that this money was to be returned
to Erie Insurance and enclosed a letter from March 29, 2007 from Erie Insurance. Appellant did
not provide any supporting financial documents, stating on the form that she did not have any
documents. She requested waiver of the recovery of the overpayment and that the Office make a
decision on the written record.
In a letter dated April 10, 2007, the Office requested that appellant clarify the rental
apartments owned jointly with her husband and their management of the rental apartments since
December 21, 2005. It noted that appellant failed to list the income and expenses from this
rental property on her overpayment financial form. The Office also requested appellant submits
copies of tax returns from the filing years of 2004, 2005 and 2006. The requested information
was not submitted by appellant.
By decision dated April 8, 2008, the Office denied waiver of recovery of the $2,263.75
overpayment.3 It found that a completed overpayment recovery form indicated that appellant
had monthly income of $2,910.00 and expenses of $3,343.00, but there was no supporting
documentation establishing the accuracy of these amounts. The Office noted that appellant
failed to provide any financial information on the rental apartments owned jointly with her exhusband. It directed repayment of the overpayment in the amount of $100.00 a month from
appellant’s continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(b) of the Federal Employees’ Compensation Act provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
[the Act] or would be against equity and good conscience.”4 If a claimant is without fault in the
2

On September 10, 2002 appellant, then a 37-year-old mail carrier, filed a traumatic injury claim alleging that on
that date she injured her lower back, lower abdomen, right shoulder and neck when a truck ran into her jeep while
she was delivering mail. The Office accepted the claim for cervical strain and right shoulder strain, which was
subsequently expanded to include aggravation of spondylolisthesis and degenerative disc disease and recurrent
major depressive disorder in partial remission and granted retroactive authorization for a January 24, 2003 L5-S1
lumbar fusion surgery. It placed appellant on the periodic rolls for temporary total disability beginning
September 5, 2004.
3

The Office noted that the amount currently owed by appellant was $1,195.20 as $100.00 had been deducted
from her continuing compensation since April 17, 2007.
4

5 U.S.C. § 8129(b).

2

creation of an overpayment, the Office may only recover the overpayment if recovery would
neither defeat the purpose of the Act nor be against equity and good conscience. The guidelines
for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in sections 10.434 through 10.437 of
the Office’s regulations.
The Office’s implementing federal regulations provide that the individual who received
the overpayment is responsible for providing information about income, expenses and assets as
specified by the Office.5 Failure to submit the requested information shall result in the denial of
waiver.6
ANALYSIS -- ISSUE 1
The Office found that appellant was not at fault in creating the overpayment. Although
appellant was without fault in creating the overpayment, she nonetheless bears responsibility for
providing the financial information necessary to support her request for waiver of the recovery of
the overpayment. Appellant completed an overpayment recovery questionnaire, but submitted
no financial documentation to support the amounts listed. When the Office issued its
preliminary determination on March 6, 2007, it made clear that appellant was to attach
supporting financial documents to support the income and expenses listed so that it could
determine whether waiver of the overpayment was warranted and if not, a reasonable method for
collection. Following the submission of a completed overpayment recovery questionnaire the
Office, in an April 10, 2007 letter, requested that appellant clarify certain financial information
regarding the rental apartments owned jointly with her ex-husband. It also asked that she explain
the management of the rental apartments since December 21, 2005 and her involvement with this
property. The Office also requested appellant to submit copies of tax returns from the filing
years of 2004, 2005 and 2006. It properly explained that failure to submit the requested
information would result in the denial of waiver. Because appellant failed to submit the evidence
requested by the Office, it properly denied waiver of the overpayment pursuant to 20 C.F.R.
§ 10.438(b).
LEGAL PRECEDENT -- ISSUE 2
Section 10.441 provides that, if an overpayment of compensation has been made to an
individual entitled to further payments and no refund is made, the Office shall decrease later
payments of compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other relevant factors, so
as to minimize hardship.7

5

20 C.F.R. § 10.438(a).

6

Id. at § 10.438(b).

7

Id. at § 10.441.

3

ANALYSIS -- ISSUE 2
The record reflects that appellant continues to receive wage-loss compensation under the
Act. As noted, she completed an overpayment recovery questionnaire but failed to submit
additional supportive financial documents as requested by the Office prior to the issuance of the
April 8, 2008 overpayment decision. When an individual fails to provide requested financial
information, the Office should follow minimum collection guidelines designed to collect the debt
promptly and in full.8 The Board finds that the Office did not abuse its discretion in following its
regulations and deducting $100.00 every 28 days.
CONCLUSION
The Board further finds that the Office properly denied waiver of the recovery of the
overpayment. The Board finds that the Office properly required repayment of the overpayment
by deducting $200.00 from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Ralph P. Beachum, Sr., 55 ECAB 442, 448 (2004); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.4(c)(2)
(September 1994).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-242
Issued: August 18, 2011

Case Submitted on the Record

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

JURISDICTION
On November 8, 2010 appellant filed a timely appeal from the May 26, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
recurrence of disability 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.
ISSUE
The issue is whether appellant sustained a recurrence of partial disability beginning
August 1, 2009.
FACTUAL HISTORY
On September 16, 1998 appellant, then a 50-year-old truck driver, filed a claim for
compensation alleging that his carpal tunnel syndrome was a result of pushing and pulling pieces
of heavy rolling equipment. OWCP accepted his claim for bilateral carpal tunnel syndrome.
1

5 U.S.C. § 8101 et seq.

Appellant returned to work on October 12, 1999 with restrictions. He sustained a recurrence of
the accepted medical condition in 2003. Appellant received compensation for time lost for
medical appointments.
On August 30, 2005 appellant accepted limited-duty working six hours in the prepping
unit and two hours in the dispatch office. On June 22, 2006 he accepted limited duty as a tractor
trailer operator working eight hours a day.
Appellant claimed compensation for partial disability beginning August 1, 2009. He
indicated that medical restrictions prevented him from working four hours a day beginning
August 4, 2009 and that beginning October 15, 2009 there were no necessary tasks within his
medical restrictions.
Dr. George Wu, the attending hand surgeon, saw appellant on July 31, 2009. He stated:
“[Appellant] wants to retire now and is applying for disability retirement. He
states that he has no work at this time -- he clocks in daily at work, sits in his car
for [8½] hours and then clocks out. The last time [appellant] performed driving
tasks at work was in 1998 and he states that he has not done any since that time.”
Dr. Wu examined appellant, found continued symptoms of bilateral carpal tunnel
syndrome and released appellant to modified duties with restrictions on the use of both hands for
six months. Appellant was not to lift, pull or push more than one pound and to lift or pull only
occasionally, not repetitively. Dr. Wu added: “[Appellant] was to be limited to four hours of
[nonrepetitive] activities [a] day and was restricted to four hours of work daily.” On a duty
status report he stated: “[Appellant] may not work over [four] hours [a] day. Dr. Wu cannot
perform any repetitive tasks with his upper extremities.”
Appellant took disability retirement effective October 31, 2009.
In a November 10, 2009 decision, OWCP denied appellant’s recurrence claim. It found
that Dr. Wu failed to explain why appellant could no longer work his modified assignment for
eight hours a day.
On November 7, 2009 Dr. Wu repeated appellant’s earlier complaint: “By July 31, 2009,
[appellant] indicated that he was seeking a disability retirement as he was performing no work
other than to arrive at the [workplace] and sit in his car for [8½] hours before he would ‘clock
out.’ He continued to offer similar complaints as in the past.” Objective findings on July 31,
2009 were improved from October 8, 2008. Sensibility in all digits of both hands was now
normal; grip and pinch strength were increased; Phalen’s test was positive after 30 seconds,
whereas earlier the test became positive immediately. Dr. Wu explained that he modified
appellant’s restrictions on July 31, 2009, including the reduction in work hours, “[d]ue to his
increased subjective symptoms.”
In a decision dated May 26, 2010, OWCP reviewed the merits of appellant’s claim and
denied modification of its November 10, 2009 decision. It found that Dr. Wu failed to explain
how appellant’s condition objectively worsened as of August 4, 2009 such that he could no
longer work eight hours a day with restrictions.
2

Appellant appealed from OWCP’s May 26, 2010 decision because he was not given a job
that was suited to his medical restrictions: “Since I had no regular duties to perform, I had to sit
and wait in the cafeteria, break room or parking lot. I used to do this for up to [eight] hours a
day. This situation lasted for years.”2
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.3 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.4
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position, or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of disability and to
show that he cannot perform such limited-duty work. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature and
extent of the limited-duty job requirements.6
ANALYSIS
Before appellant claimed compensation for partial disability beginning August 1, 2009,
he was working limited duty eight hours a day. He alleged, however, that medical restrictions
beginning August 4, 2009 prevented him from working more than four hours a day. Appellant
therefore has the burden of proof to show a change in the nature and extent of his injury-related
condition or a change in the nature and extent of the limited-duty job requirements.
Dr. Wu, the attending hand surgeon, examined appellant on July 31, 2009 and reported
that objective findings had improved. Sensibility, grip and pinch strength and the onset of
Phalen’s test were all better than previously reported. Appellant continued to offer similar
complaints as in the past, but his subjective complaints had increased. As Dr. Wu explained on
2

Appellant expresses no disagreement with OWCP’s July 30, 2010 schedule award, which found that he had a
five percent permanent impairment of each upper extremity.
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

5

Id. at § 10.5(x).

6

Terry R. Hedman, 38 ECAB 222, 227 (1986).

3

November 7, 2009, appellant’s work hours on July 31, 2009 were reduced because of his
increase in subjective complaints.
The Board finds that appellant has not shown that the disability for which he seeks
compensation was the result of a change in the nature and extent of his injury-related condition.
The medical evidence fails to establish an objective worsening of his bilateral carpal tunnel
syndrome such that he was no longer able to work eight hours a day with restrictions. By
reducing appellant’s work hours on the basis of increasing subjective complaints without the
support of worsening objective findings, Dr. Wu essentially allowed appellant to self-certify his
disability.
Appellant advised Dr. Wu that there was nothing for him to do at work. He would arrive,
sit in his car for 8½ hours and then clock out. Given this statement, it is difficult to understand
how appellant’s bilateral carpal tunnel syndrome justified a reduction in his work hours
beginning August 1, 2009. The impression is that he did not want to sit around all day long, and
so Dr. Wu reduced his hours.
The Board also finds that appellant has not shown that the disability for which he seeks
compensation was the result of a change in the nature and extent of his limited-duty job
requirements. If there was nothing for appellant to do, then the requirements of his limited duty
could hardly have prevented him from working more than four hours a day.
Because appellant has not met his burden to establish a recurrence of partial disability
beginning August 1, 2009, the Board will affirm OWCP’s May 26, 2010 decision denying his
claim for compensation.
On appeal, appellant explained that he had no regular duties to perform. The question for
determination is not whether he liked his job or found it to be rewarding or even worthwhile, but
whether his bilateral carpal tunnel worsened or his job requirements changed such that he was
medically no longer able to work eight hours a day with restrictions. The record contains no
probative evidence of this and that is the reason OWCP denied his claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
recurrence of partial disability beginning August 1, 2009.

4

ORDER
IT IS HEREBY ORDERED THAT the May 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Rockville, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-1204
Issued: February 8, 2011

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 March 18, 2010 appellant filed a timely appeal of a January 14, 2010 merit decision
of the Office of Workers’ Compensation Program which affirmed the denial of his recurrence of
a medical condition claim. 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 sustained a recurrence of his accepted employment-related
condition on or after September 23, 2008.
FACTUAL HISTORY
On September 12, 2006 appellant, then a 48-year-old medical officer, filed an
occupational disease claim alleging that on September 7, 2006 he first became aware of a
shoulder condition as a result of overuse of a computer keyboard and mouse. He first received

medical care on September 7, 2006. Appellant did not stop work. On January 11, 2007 the
Office accepted his claim for a right shoulder sprain and due to overuse.
By letter dated June 10, 2008, the employing establishment informed the Office that
appellant had not submitted any bills for his accepted occupational disease claim. The
employing establishment questioned whether his claim should be closed.
On September 23, 2008 appellant filed a claim for recurrence of medical treatment. He
explained that he experienced pain in his neck, right shoulder and arm between 2006 and 2008.
It became worse during the workday as a result of using his computer and keyboard. Appellant
noted the date of his original injury as September 7, 2006 and the date of occurrence as
September 23, 2008. The employing establishment provided him with new ergonomic furniture
and dragon speak software. Appellant did not stop work.
Appellant submitted handwritten progress notes dated September 7, 2006 to October 7,
2008 from an unknown health care provider with illegible signature. He was seen on
November 8, 2006 and then not again until September 24, 2008.
On December 3, 2008 the Office advised appellant that the evidence submitted was
insufficient to establish that his recurrence was causally related to his September 7, 2006 injury.
It requested that he submit a statement explaining how his current condition was related to the
original work injury, any hobbies or sports activities, and new injuries, if any, sustained since he
last worked. The Office also requested copies of any treatment records since November 8, 2006
regarding his right shoulder sprain and a narrative medical report from a physician which
included a history of the original injury, clinical examination findings, a firm diagnosis, course
of treatment and an opinion establishing a causal relationship between the recurrence and the
accepted work-related conditions.
On December 16, 2008 appellant stated that his occupational disease claim affected his
neck, right shoulder and arm for which he was treated. He described his pain as continuous and
no longer improved with rest on the weekends. During the day, appellant experienced stiffening
in his neck and pain in his right shoulder radiating down the outside muscles, with deep seated
pain in his elbow. He returned to his physician and related that his pain worsened when he
worked at his computer for extended periods of time. Appellant’s condition had improved since
following the rehabilitation exercises but was still subject to aggravation on the job with heavy
computer and keyboard use.
Regarding his employment duties, appellant explained that he used his computer to
access paperless records, perform research and type papers for mostly eight hours a day. He then
explained that he attempted to have ergonomic furniture provided by his employer and provided
copies of email correspondence regarding ergonomic assessment of his work space. Appellant
reported that his department did not have the appropriate funds to provide him with ergonomic
furniture, except for a surplus side desk. He also stated that the majority of his time was spent at
the Nicholson Lane Research Center office, which had no lunch or break rooms nearby to use on
his floor.

2

In a November 21, 2008 report, Dr. Nicholas Patronas, a Board-certified diagnostic
radiologist, noted a focal disc protrusion at C6-7 that was lateralized toward the right side
compromising the right lateral recess of the spinal canal. He also observed mild nonfocal
posterior disc bulges at C4-5 and C5-6 with the height in the signal intensity of the discs at C5-6
and C6-7 decreased, but with no abnormalities in the cervical cord. The study also revealed disc
generation at C5-6 and C6-7 manifested by narrowing of the disc spaces. Dr. Patronas ultimately
assessed that appellant had a small disc herniation at C6-7 lateralized towards the right side.1
In a decision dated January 6, 2009, the Office denied appellant’s recurrence claim
findings insufficient evidence to establish that his current medical condition was causally related
to the accepted right shoulder and upper arm sprain.
On January 16, 2009 appellant requested an oral hearing before the Branch of Hearings
and Review. In a January 12, 2009 report, Dr. James M. Schmitt, Board-certified in
occupational medicine, stated that appellant’s claim was improperly classified and accepted for a
shoulder and upper arm sprain when the condition should have been for a cervical disease. He
initially evaluated him on September 8, 2006 for a two-year history of right arm pain that began
as pain in his neck and shoulder, which became aggravated by use of his computer mouse at
work. On physical examination, appellant was unable to fully tilt his neck to either side and his
right bicep was slightly less strong than his left. Dr. Schmitt listed an initial assessment of
impingement of appellant’s cervical spine. He questioned why appellant’s claim was accepted
for a shoulder injury. Dr. Schmitt reevaluated him on September 24, October 24, November 28
2008 and January 12, 2009 and observed that his symptoms persisted and were aggravated by
using his computer at work. Appellant reported that his symptoms interfered with his routine life
activities such as sleeping, driving and exercising. Dr. Schmitt explained that appellant’s
symptoms appeared to lessen only with rest and decreased use of a computer at work. He
concluded that there was a medical basis for appellant’s claim as the degenerative cervical disc
disease and herniated cervical disc were aggravated by conditions of his employment.
On October 26, 2009 a telephone hearing was held. Appellant stated that he was
terminated from his employment on October 22, 2009, which he felt might be a result of his
medical conditions. He had requested ergonomic accommodation at his employment, but was
not provided any accommodations due to a lack of funding. Appellant described his injury and
explained that he had trouble using a computer and keyboard or performing other activities of
daily life. He contented that he never fully recovered from his original injury, which recurred
with use of the computer and keyboards for prolonged periods of time without ergonomic
accommodation or assessment.
By decision dated January 14, 2010, an Office hearing representative affirmed the
January 6, 2009 decision denying appellant’s claim for recurrence. The hearing representative
found that the medical evidence was insufficient to establish that appellant sustained a recurrence
of an accepted work-related condition on or after September 23, 2008. Appellant received
treatment based upon the diagnoses of degenerative cervical disc disease and herniated cervical
disc, but neither condition was accepted by the Office as employment related.
1

Appellant also submitted handwritten progress notes dated November 8, 2006 and November 28, 2008 from an
unknown provider with an illegible signature.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.3 In a claim for recurrence, this burden of proof requires that
a claimant establish the causal relationship of the claimed recurrence to the previously accepted
injury.4 A recurrence of medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original condition or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.”5
For recurrences of medical conditions, the claimant must provide medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports that conclusion with
sound medical reasoning.6 Where no such rationale is present, the medical evidence is of limited
probative value.7 The claimant must also furnish medical evidence of bridging symptoms
between the present condition and the accepted injury which support the physician’s conclusion
of a causal relationship.8
ANALYSIS
The Board finds that appellant did not establish a recurrence of his accepted medical
condition. The Office accepted that he sustained a sprain of the right shoulder and upper arm as
a result of overuse of a computer. On September 23, 2008 appellant submitted a Form CA-2a
alleging that he sustained a recurrence of his shoulder and arm condition due to his computer
keyboard and mouse use. The Board finds that he failed to submit sufficient medical evidence to
establish a recurrence of a medical condition causally related to his accepted injury.
The Board notes that appellant did not allege that he stopped work due to his accepted
condition and the record does not substantiate medical treatment between November 2006 and
September 2008, therefore this is a claim for recurrence of medical condition.9

2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (September 2010).

5

20 C.F.R. § 10.5(y) (2010).

6

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

7

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

8

C.W., 60 ECAB __ (Docket No. 07-1816, issued January 16, 2009); Ricky S. Storms, 52 ECAB 349 (2001).

9

See supra note 4.

4

Appellant submitted a January 12, 2009 report from Dr. Schmitt, who noted that
appellant’s claim was accepted for sprain of the shoulder and upper arm but should have been
accepted for cervical disc disease. The Board notes that the Office did not accept cervical disc
disease as a condition arising from the September 7, 2006 injury. Dr. Schmitt did not provide
sufficient new objective findings or explanation in support of his opinion that cervical disc
disease was related to the work activities in 2006.
Regarding appellant’s condition as of September 2008, Dr. Schmitt recalled his initial
evaluation of appellant on September 8, 2006 and his complaints of right arm pain. He explained
his observations based on physical examination, physical therapy, and a November 2008
magnetic resonance imaging (MRI) scan. Dr. Schmitt stated that appellant’s symptoms
improved with rest and less intense use of a computer at work. He concluded that appellant had
degenerative cervical disc disease and a herniated cervical disc aggravated by conditions of his
employment. Dr. Schmitt, however, did not provide adequate medical rationale to support his
opinion on the causal relationship between appellant’s current cervical condition in 2008 and the
previously accepted sprain of the shoulder and upper arm. He did not address how appellant’s
condition was caused or contributed by the work activities in 2006 or since that time. To be
considered rationalized medical opinion evidence, a 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 the claimant’s
employment factors.10 Dr. Schmitt failed to provide a fully rationalized opinion in this case.
Appellant also submitted a November 21, 2008 radiological report, which did not contain
any opinion regarding the cause of his condition. As these reports do not contain a physician’s
opinion regarding causal relationship, they are of limited probative value and are insufficient to
establish his claim.11
Appellant submitted handwritten progress notes dated November 8, 2006 to October 7,
2008 from an unknown provider with an illegible signature. As this evidence lacks proper
identification and the author cannot be identified as a physician, it has no probative value and is
insufficient to support his claim.12
It is appellant’s burden of proof to submit the necessary medical evidence to establish a
claim for recurrence of medical condition.13 The record does not contain a medical report
providing a reasoned medical opinion that he sustained a recurrence beginning September 23,
2008 causally related to the accepted right shoulder and upper arm sprain. The Board

10

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); S.D., 58 ECAB 713 (2007).

11

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

12

Ricky S. Storms, supra note 8; Samuel Theriault, 45 ECAB 586 (1994); Merton J. Sills, 39 ECAB 572 (1988).

13

See supra note 4 at Chapter 2.1500.5(b) (September 2010).

5

accordingly finds that appellant did not meet his burden of proof and the Office properly denied
the claim.14
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
medical condition causally related to his accepted claim for sprain of right shoulder and upper
arm.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 and January 6, 2009 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 8, 2011
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

14

If appellant’s claim is that his cervical disc disease resulted from continuing employment factors, he may file a
new claim with sufficient supporting evidence.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Biloxi, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0963
Issued: August 24, 2018

Case Submitted on the Record

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

JURISDICTION
On April 3, 2017 appellant filed a timely appeal from an October 12, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year has
elapsed from the last relevant merit decision dated April 1, 2008, 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 the claim.2

1
2

5 U.S.C. § 8101 et seq.

For final adverse decisions issued by OWCP prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(d)(2) (2008).

ISSUE
The issue is whether OWCP properly considered appellant’s July 21, 2016 filing as an
untimely request for reconsideration, rather than a request for modification of its April 1, 2008 loss
of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On January 7, 2007 appellant, then a 48-year-old staff nurse, sustained injury to her left
lower extremity at work when a patient fell on her left leg. OWCP accepted her traumatic injury
claim (Form CA-1) for left knee lateral medial and meniscal ligament tears and left knee anterior
cruciate ligament (ACL) tear. Appellant received continuation of pay from January 8 through
February 21, 2007, and OWCP paid wage-loss compensation for temporary total disability
beginning February 22, 2007. OWCP also authorized a March 21, 2007 left knee arthroscopic
procedure.3
In a July 9, 2007 report, Dr. Salloum reported that appellant was approximately 15 to 16
weeks postsurgery. While she would not likely achieve hyperextension of the left knee, he felt
that she had an excellent surgical result. Dr. Salloum indicated that appellant could return to work
with limited duties. In a July 9, 2007 work capacity evaluation (Form OWCP-5c), he indicated
that she could work eight hours a day with lifting limitations of no more than 30 pounds for an
hour. Also appellant should have no contact with psychiatric patients. Dr. Salloum’s restrictions
were applicable for three months. In a July 21, 2007 Form OWCP-5c report, he advised that
appellant could work eight-hour days with weight restrictions on lifting/carrying and
pulling/pushing. Appellant was also restricted from physical takedown of patients and/or
psychiatric codes.
On July 19, 2007 an employing establishment representative telephoned OWCP and
advised that appellant had returned to work that day “FT [full time], modified temporary position.”
The record is devoid of a description for the temporary position.
OWCP terminated appellant’s wage-loss compensation, effective July 19, 2007.
On September 13, 2007 OWCP requested that Dr. Salloum provide an update on
appellant’s work restrictions. It noted that she had been working in a light-duty capacity since
July 18, 2007 based on the work restrictions outlined in his July 9, 2007 report, which were to
remain in place for about three months. OWCP also requested that Dr. Salloum indicate whether
appellant reached maximum medical improvement, her current work limitations and restrictions,
and whether she could perform the duties of a nurse. It enclosed a work capacity evaluation form
(OWCP-5c) for his completion in order to establish her current work limitations.
OWCP subsequently received Dr. Salloum’s September 10, 2007 Form OWCP-5c with
weight restrictions of pushing and pulling no more than eight hours a day and lifting no more than
one hour a day. The restrictions were noted to be applicable until a functional capacity evaluation
3
Dr. George T. Salloum, a Board-certified orthopedic surgeon, performed a left knee partial medial meniscectomy
and ACL reconstruction.

2

(FCE) was performed. In his September 10, 2007 treatment note, Dr. Salloum recommended that
appellant undergo a strengthening program due to her complaints of weakness and fatigue. He
noted that her previous work restrictions would remain in effect for approximately two to three
more months until an FCE was completed. Dr. Salloum also noted that appellant had mild arthritis
in her knee.
In a September 26, 2007 Form OWCP-5c, Dr. Salloum changed appellant’s work
restrictions indicating that she was capable of working only four hours a day walking and standing.
He also indicated that appellant could not participate in the physical take down of patients and/or
psychiatric codes. Dr. Salloum reported that the restrictions would apply until after an FCE was
completed.
On October 15, 2007 OWCP sent Dr. Salloum a second request for an update of appellant’s
work status.
In a November 5, 2007 Form OWCP-5c, Dr. Salloum noted that appellant could work eight
hour days with weight restrictions on pushing, pulling, and lifting. He indicated that the
restrictions would not apply until after the FCE.
On November 15, 2007 OWCP authorized the requested FCE. It requested that
Dr. Salloum indicate, once the FCE results were obtained, whether appellant reached maximum
medical improvement and what her current work limitations and restrictions were.
OWCP subsequently received Dr. Salloum’s November 1, 2007 duty status report (Form
CA-17), which indicated that appellant could work eight hours a day with weight restrictions of
pushing/pulling and lifting/carrying and no more than four hours of standing and walking.
Appellant was also restricted from being involved in psychiatric codes or physical takedown of
patients.
On December 11, 2007 appellant underwent an FCE which indicated that she was capable
of medium-duty work.
In his December 20, 2007 duty status report (Form CA-17), Dr. Salloum noted that
appellant was advised that she could resume regular work as of December 21, 2007. In his
December 20, 2007 treatment notes, Dr. Salloum indicated that appellant was at maximum
medical improvement. He stated “I would let her return to work to full duty with the only
exception of no physical take downs of psychiatric patients.” Dr. Salloum indicated that this
restriction could be lifted after 12 months and that she was told that she would not be at increased
risk whether or not she had surgery.
On January 15, 2008 appellant underwent a second opinion examination with
Dr. Raymond R. Fletcher, a Board-certified orthopedic surgeon. Dr. Fletcher found that she had
permanent impairment of the left knee as a result of the employment injury and had reached
maximum medical improvement. He opined that she could perform her duties as a nurse eight
hours a day with restrictions to include no participation in “physical takedowns” of violent patients.
Dr. Fletcher also completed a Form OWCP-5c which listed permanent work restrictions within the
eight-hour workday. This included no more than six hours of walking, standing, bending/stooping,
pushing, pulling, and lifting and three hours of squatting, kneeling, and climbing. Weight
3

restrictions of no more than 45 pounds were provided for pushing, pulling and lifting and no more
than 25 pounds for squatting, kneeling, and climbing. Appellant was also restricted from
participation in “physical takedowns” of violent patients.
On January 28, 2008 OWCP contacted the employing establishment and asked if they
could offer appellant a permanent job consistent with the permanent work restrictions set forth by
Dr. Fletcher and Dr. Salloum.
In CA-110 notes of March 31, 2008, OWCP noted that the employing establishment
indicated that “a job offer was in the works,” but they had not settled on a specific assignment for
appellant. The employing establishment stated that appellant was in the same job, but with
restrictions. It noted that the opportunity for night differential, etc., was the same as the date-ofinjury position and would continue even after the job offer was finalized to prevent loss of wageearning capacity.
By decision dated April 1, 2008, OWCP determined that the modified nurse position which
appellant had worked since July 19, 2007 fairly and reasonably represented her wage-earning
capacity. It further found that appellant had no loss of wage-earning capacity (zero) because her
actual earnings met or exceeded the current wages for the job she held when injured.
On April 7, 2008 OWCP received a copy of a March 28, 2008 job offer (full-time,
permanent modified/limited-duty), which appellant accepted on April 2, 2008. The employing
establishment offered appellant a position as a staff nurse in mental health clinic working 7:30 a.m.
until 4:00 p.m. The physical requirements of the position indicated that appellant may not walk
for more than six hours per day, stand for more than six hours per day, bend/stoop for more than
six hours per day, push more than 45 pounds for more than six hours per day, pull more than 45
pounds for more than six hours per day, lift more than 45 pounds for more than six hours per day,
squat with more than 25 pounds for more than three hours per day, kneel with more than 25 pounds
for more than three hours per day, climb with more than 25 pounds for more than three hours per
day, and may not participate in “physical takedowns” of violent patients. The employing
establishment indicated that any loss of wages would be compensated by OWCP.
On April 4, 2008 appellant filed a claim for compensation (Form CA-7) for wage loss
beginning April 13, 2008. She identified the type of wage loss as “LWEC.” The employing
establishment remarked that appellant was “claiming LWEC for job offer accepted.”
During an April 10, 2008 telephone conversation, the employing establishment advised
OWCP that appellant had changed jobs from in-patient care to working in the out-patient clinic.
Appellant’s base salary was the same as her previous job. The employing establishment further
advised that while she still had opportunities for night differential, Sunday premium, etc., it was
on a less frequent basis than her date-of-injury position.
In an April 15, 2008 letter, OWCP acknowledged receipt of appellant’s April 4, 2008 Form
CA-7 claiming an LWEC beginning April 13, 2008. It referenced its April 1, 2008 determination
that appellant had no LWEC as a result of her January 7, 2007 work injury, and advised her that
no further action would be taken on her claim at the time. Additionally, OWCP referenced its

4

FECA Procedure Manual and explained the process for seeking modification of an LWEC
determination. It further advised appellant:
“If you believe that that the original wage-earning capacity decision was in error or
that your injury-related condition has worsened, please explain the specific reasons
why you feel this is the case. You should also provide any documentary evidence
which supports your case. I will be happy to revisit this issue upon receipt.”
Appellant subsequently filed a claim for a schedule award (Form CA-7).
By decision dated May 6, 2008, OWCP granted appellant a schedule award for nine percent
permanent impairment of her left lower extremity.4
In a July 6, 2016 telephone conversation, appellant stated that she did not think her wages
were correctly calculated on the April 1, 2008 zero wage-earning capacity decision.
On July 21, 2016 appellant resubmitted the April 4, 2008 Form CA-7 claiming LWEC
compensation for the period April 13, 2008 and continuing.
On July 21, 2016 appellant, through her then representative, requested reconsideration.
Although she acknowledged that the request was untimely, she contended that it demonstrated
clear evidence of error regarding wage-earning capacity entitlement. She argued that the April 15,
2008 LWEC determination was issued in error. Appellant advised that while the April 13, 2008
position to which she was reassigned conformed to the physical restrictions set forth by OWCP’s
second opinion evaluator, there was no opportunity for additional pay shift differential, weekend
premium, and holiday premium. She indicated that prior to the injury, she routinely worked nights,
weekends and holidays, but the reassigned position did not allow her that additional pay
opportunity. Thus, appellant argued that the earnings in her reassigned position did not fairly and
reasonably represent her wage-earning capacity.
By decision dated October 12, 2016, OWCP denied appellant’s July 21, 2016 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error
with respect to the April 1, 2008 LWEC determination. It indicated that the basis of its decision
was that her letter did not show that it made an error when it issued the LWEC determination. It
explained that the April 1, 2008 LWEC determination was based on her date-of-injury rate of pay
which included premium pay without overtime. Appellant’s modified job offer was for a modified
position that had equal pay to her date-of-injury job. OWCP found that she had not demonstrated
clear evidence of error as the evidence she provided did not provide information that it did not
calculate her LWEC determination correctly.

4

By decision dated April 9, 2009, an OWCP hearing representative affirmed the May 6, 2008 schedule award
decision. Appellant has other claims which OWCP has administratively combined under the current File No.
xxxxxx772, serving as the master file.

5

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
For decisions issued on or after June 1, 1987 through August 28, 2011, the request for
reconsideration must be “mailed” to OWCP within one year of OWCP’s decision for which review
is sought.8
OWCP will consider an untimely request for reconsideration only if the request
demonstrates “clear evidence of error” on the part of OWCP in its “most recent merit decision.”9
The request must establish on its face that such decision was erroneous.10 Where a request is
untimely and fails to present any clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.11
An injured employee who is either unable to return to the position held at the time of injury
or unable to earn equivalent wages, but who is not totally disabled for all gainful employment, is
entitled to compensation computed on LWEC.12 A wage-earning capacity determination is a
finding that a specific amount of earnings, either actual earnings or earnings from a
selected/constructed position, represents a claimant’s ability to earn wages.13 Generally, an

This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).
5

6

20 C.F.R. § 10.607.

7
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 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. Id. at Chapter 2.1602.4b.
8

Id. at Chapter 2.1602.4e.

9

20 C.F.R. § 10.607(b).

10

Id. To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or demonstrate 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. Thankamma Mathews, 44 ECAB 765, 770 (1993).
11

20 C.F.R. § 10.608(b).

12

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

13

See Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

6

employee’s actual earnings best reflect his wage-earning capacity.14 Absent evidence that actual
earnings do not fairly and reasonably represent the employee’s wage-earning capacity, such
earnings must be accepted as representative of the individual’s wage-earning capacity.15
A light-duty position that fairly and reasonably represents an employee’s ability to earn
wages may form the basis of an LWEC determination if that light-duty position is a classified
position to which the injured employee has been formally reassigned.16 The position must conform
to the established physical limitations of the injured employee; the employing establishment must
have a written position description outlining the duties and physical requirements; and the position
must correlate to the type of appointment held by the injured employee at the time of injury.17 If
these circumstances are present, a determination may be made that the position constitutes
“regular” federal employment.18
Reemployment may not be considered representative of the injured employee’s wageearning capacity where the job is temporary and the employee’s date-of-injury job was
permanent.19 However, if the employee was a temporary employee when injured, a temporary
position may reasonably represent his/her wage earning as long as the position will last for 90 days
or more.20
As long as there is no work stoppage due to the accepted condition(s), a formal LWEC
determination should be issued following 60 calendar days from the date of return to work.21
Compensation payments are based on the wage-earning capacity determination, and
OWCP’s finding remains undisturbed until properly modified.22 Modification of an LWEC
determination is unwarranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,

14

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

15

Id.

16

20 C.F.R. § 10.510.

17

Id.

18

Id.

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on Actual
Earnings, Chapter 2.815.5c(2)(d). A job is considered temporary when expressly stated in the job offer, position
description, or other supporting documentation. Id. If the language in the job offer is ambiguous, OWCP should ask
the employing establishment if the position represents temporary work and document the file accordingly. Id.
20

Id. at Chapter 2.815.5c(2)(d)(iii).

21

Id. at Chapter 2.815.6a.

22

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

7

or the original determination was erroneous.23 The burden of proof is on the party seeking
modification of the wage-earning capacity determination.24
Unlike reconsideration pursuant to 5 U.S.C. § 8128(a), there is no time limitation for
requesting modification of a wage-earning capacity determination.25 Chapter 2.1501.4a of
OWCP’s procedures provides that if a claim for wage loss is received (Form CA-7 or CA-2a), the
claims examiner should review the file to determine whether a formal LWEC is in place, and, if
so, the claim should be developed, if necessary, as a request for modification of the LWEC. Any
request for “modification” (especially those without an accompanying claim for compensation)
should be reviewed carefully to determine whether the claimant is seeking a reconsideration of a
recently issued LWEC decision, as opposed to a modification of the LWEC determination.26
ANALYSIS
OWCP considered appellant’s July 21, 2016 letter as a request for reconsideration of the
April 1, 2008 LWEC determination, finding that it was untimely filed and failed to demonstrate
clear evidence of error.
The Board finds that appellant’s July 21, 2016 reconsideration request was essentially a
request for modification of the April 1, 2008 LWEC determination. Appellant indicated that she
was formally reassigned to another position on April 13, 2008 which offered no opportunity for
additional pay (shift differential, weekend premium, and holiday premium). Therefore, the
resubmitted April 4, 2008 Form CA-7 pertained to her reassigned position effective April 13,
2008, in which she earned less than her date-of-injury position as there was no opportunity for
additional pay. While appellant referred to documentation on the April 4, 2008 Form CA-7, the
Form CA-7 information provided by the employing establishment just lists appellant’s date-ofinjury earnings. An assertion that the original determination was, in fact, erroneous or that she had
been retrained are grounds on which a claimant may seek modification of an LWEC
determination.27 This request for modification is not a request for a review of OWCP’s April 1,
2008 decision under 5 U.S.C. § 8128(a). The Board finds that OWCP should have adjudicated the

23

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2
-- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
24

20 C.F.R. § 10.511.

25

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

26

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501.4a (June 2013).
27

Once the wage-earning capacity of an injured employee is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was, in fact, erroneous.
Stanley B. Plotkin, 51 ECAB 700 (2000); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification
of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.2(b) (June 2013).

8

issue of modification of the LWEC determination.28 OWCP improperly adjudicated her July 21,
2016 letter as a request for reconsideration.29
As appellant has requested modification of the April 1, 2008 LWEC determination, the
time limitations for filing a request for reconsideration under 20 C.F.R. § 10.607(a) do not apply.
The case will be remanded to OWCP to adjudicate her request for modification of the LWEC
determination based on a determination of whether the initial LWEC was erroneous.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s requested modification of the
April 1, 2008 LWEC determination.
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision.
Issued: August 24, 2018
Washington, DC

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

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

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

28

G.E., Docket No. 13-0649 (issued October 21, 2013); F.B., Docket No. 10-0099 (issued July 21, 2010).

29

F.B., id. See M.J., Docket No. 08-2280 (issued July 7, 2009). See also Gary L. Moreland, supra note 25.

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, RICON STATION
POST OFFICE, Tucson, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1087
Issued: March 1, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 12, 2021 appellant, through counsel, filed a timely appeal from a June 1, 2021
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated May 6, 2021, which became final after 30 days of
issuance and is not subject to further review. 2 As there was no merit decision on the underlying
issue of suitable work by OWCP within 180 days of the filing of this appeal, 3 pursuant to the

1

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

20 C.F.R. § 501.6(d); see J.R., Docket No. 19-0364 (issued July 3, 2019); see A.F., Docket No. 18-0645 (issued
October 26, 2018).
3

Counsel did not appeal a March 25, 2021 OWCP merit decision, which denied appellant’s claim for a schedule
award. As counsel did not appeal from that decision, it is not presently before the Board. See 20 C.F.R. § 501.3.

Federal Employees’ Compensation Act4 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s 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. 5 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On January 8, 2016 appellant, then a 55-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a hand condition causally related to factors of her
federal employment, including repeated trauma caused by casing and carrying mail. OWCP
accepted the claim for right hand synovitis and tenosynovitis, and primary osteoarthritis of the
right hand. 6 It paid appellant wage-loss compensation on the supplemental rolls effective
October 29, 2016, and on the periodic rolls effective, April 2, 2017.
By decision dated October 3, 2019, OWCP terminated appellant’s entitlement to wage-loss
compensation and schedule award benefits, effective October 3, 2019, based on her refusal of
suitable work, pursuant to 5 U.S.C. § 8106(c)(2). It explained that Dr. Michael A. Steingart,
OWCP’s second opinion physician, an osteopathic physician specializing in sports medicine
provided a well-reasoned opinion as to appellant’s current work limitations and the employing
establishment had offered her a job within those restrictions.
On October 14, 2019 appellant requested reconsideration of the October 3, 2019 decision.
She resubmitted medical evidence previously of record, including a November 9, 2017 narrative
report and a November 5, 2017 work capacity evaluation (Form OWCP-5c) from Dr. John R.
Klein, a Board-certified orthopedic surgeon.
On December 13, 2019 OWCP thereafter received a copy of a July 9, 2019 report from
Dr. Amit Sahasrabudhe, a Board-certified orthopedic surgeon. This report was previously
received by OWCP on October 1, 2019 but was not reviewed in OWCP’s decision dated
October 3, 2019.7

4

5 U.S.C. § 8101 et seq.

5

Docket No. 20-0676 (issued May 6, 2021).

6

Appellant was diagnosed with a concurrent nonindustrial injury to include a degenerative full-thickness central
perforation tear of the triangular fibrocartilage articular disc (TFCC) and had a right wrist arthroscopy with TFCC
debridement on January 3, 2017.
7

Also on December 13, 2019, OWCP issued a final overpayment determination, finding that appellant received an
overpayment of compensation in the amount of $1,028.45, for which she was at fault, for the period October 3
through 12, 2019 as she continued to receive wage-loss compensation following the termination of her benefits.

2

In a progress report dated December 20, 2019, Dr. Mark A. Braunstein, a Board-certified
orthopedic surgeon, related that appellant was seen in follow-up after a right wrist arthroscopic
procedure. He related that appellant had returned to work and was experiencing wrist pain when
working with a scanner. Dr. Braunstein concluded that appellant was doing well, with continued
pain on the ulnar side of her right wrist. 8
Appellant appealed to the Board on February 6, 2020.
OWCP subsequently received copies of medical reports previously of record, including
March 28 and November 5, and 9, 2017 reports from Dr. Klein, a May 4, 2018 report from
Dr. Braunstein, and the July 9, 2019 report from Dr. Sahasrabudhe. It also received a February 7,
2020 work status form, bearing an illegible signature, which indicated that appellant could return
to work on February 8, 2020.
Counsel also forwarded to OWCP a July 8, 2020 permanent impairment evaluation report
from Dr. Mesfin Seyoum, a family medicine specialist. In a report dated September 16, 2020,
Dr. Nathan Hammel, a Board-certified orthopedic surgeon acting as an OWCP medical adviser,
reviewed the record including Dr. Seyoum’s July 8, 2020 permanent impairment report.
On March 25, 2021 OWCP received duplicate copies of reports from Dr. Klein dated
November 5, 2017, and reports of Dr. Steingart dated November 13, 2018 and April 15, 2019,
previously of record.9
By decision dated May 6, 2021, the Board affirmed the October 3, 2019 termination
decision, finding that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award beneﬁts, effective October 3, 2019, as she refused
an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).10
On May 14, 2021 appellant, through counsel, requested reconsideration of the October 3,
2019 termination decision.
By decision dated June 1, 2021, OWCP denied appellant’s May 14, 2021 request for
reconsideration of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right. 11 OWCP has discretionary authority in this regard and has imposed certain

8

On February 11, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule award.

9

Also on March 25, 2021 OWCP denied appellant’s February 11, 2020 schedule award claim. See supra note 3.

10

The Board also affirmed in part and reversed in part the December 13, 2019 overpayment determination. Supra
note 5.
11

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

3

limitations in exercising its authority. 12 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 13
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written request for
reconsideration, including all supporting documents, sets forth arguments and contain evidence
which either: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP. 14 Section 10.608(b)
provides that any request for reconsideration of the merits of the claim which does not meet at
least one of the requirements listed in section 10.606(b) will be denied by OWCP without review
of the merits of the claim. 15
ANALYSIS
The Board finds that the case is not in posture for decision.
Following the October 3, 2019 OWCP decision which terminated appellant’s
compensation benefits for refusal of suitable work, OWCP continued to receive additional medical
evidence, including a December 20, 2019 progress report by Dr. Braunstein and a February 7,
2020 work status form. However, it did not review or address this evidence in the June 1, 2021
decision.16
In the case of William A. Couch,17 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued. While OWCP is not required to list every piece of evidence
submitted to the record, there is no indication that OWCP reviewed any of the medical evidence
submitted after the October 3, 2019 decision.18
As the Board’s decisions are final with regard to the subject matter appealed,19 it is crucial
that all evidence relevant to the subject matter of the claim, which was properly submitted to
12

20 C.F.R. § 10.607.

13

See J.R., supra note 2; C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a).

14

Id. at § 10.606(b)(3).

15

Id. at § 10.608(b). 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.
16

See D.B., Docket No. 21-0693 (issued November 9, 2021).

17

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

18

See T.G., Docket No. 19-1930 (issued January 8, 2021).

19

See 20 C.F.R. § 501.6(d).

4

OWCP prior to the time of issuance of its final decision be reviewed and addressed by OWCP. 20
Because OWCP failed to consider all of the medical evidence submitted by appellant, the Board
cannot review such evidence for the first time on appeal. 21
For this reason, the case will be remanded to OWCP to properly consider all of the evidence
of record.22 Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.23
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

20

See S.K., Docket No. 18-0478 (issued January 2, 2019); Yvette N. Davis, 55 ECAB 475 (2004); see also
William A. Couch, supra note 17.
21

20 C.F.R. § 501.2(c)(1). See also G.M., Docket No. 16-1766 (issued February 16, 2017).

22

See M.J., Docket No. 18-0605 (issued April 12, 2019).

23

B.N., Docket No. 17-0787 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ypsilanti, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1513
Issued: December 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2013 appellant, through her attorney, filed a timely appeal from a May 17,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a right knee condition
causally related to her employment activities.
FACTUAL HISTORY
On April 15, 2011 appellant, then a 30-year-old carrier technician, filed an occupational
disease claim alleging that her right knee injury sustained on December 8, 2008 was not getting
better after 12 months. She indicated that she first realized her condition was caused or
1

5 U.S.C. § 8101 et seq.

aggravated by her employment on March 1, 2010. The employing establishment indicated that
appellant stopped work on April 6, 2011.
Under claim number xxxxxx347, OWCP accepted a right knee strain for a December 8,
2008 traumatic injury while appellant was working as a letter carrier. Appellant was medically
released from all treatment on April 22, 2009 with no work restrictions. She received no further
medical treatment until April 6, 2011, when she sought care due to right knee instability and
inability to work her duties of letter carrier.2
In an undated statement, appellant related that she had been put on a new route that was
very long and her knee started to swell and give out.
In an August 31, 2011 letter, Dr. Vasilios Moutzouros, a Board-certified orthopedic
surgeon, noted that appellant had previously injured her knee on December 8, 2008 which
OWCP accepted for right knee strain and appellant underwent several arthroscopic procedures.
He stated that appellant was last seen on April 22, 2009 where she had noticed improvement and
her work restrictions were changed to unlimited driving, two hours walking and three hours
standing. Dr. Moutzouros reported that appellant came to his clinic in early 2011 complaining of
right knee swelling and pain. Right knee radiographs and magnetic resonance imaging (MRI)
scan showed healed prior surgical repair of the weight-bearing surface of the medial femoral
condyle and early degenerative changes within the patellofemoral compartment. Dr. Moutzouros
stated that, due to “this” and appellant’s impact activities with work, she developed swelling and
difficulties participating in activities of daily living. He noted that appellant underwent
conservative measures, including cortisone injections, which relieved her symptoms for a few
weeks and then elected to have revision of cartilage procedure, which included an osteochondral
autograft transfer. Dr. Moutozouros stated that appellant did well following surgery and full
recovery would take a 5- to 12-month period of time.
In an October 27, 2011 letter, OWCP requested a supplemental report from
Dr. Moutzouros asking for a list of diagnosis for appellant’s condition and an opinion as to
whether appellant’s work exposure caused or aggravated her right knee condition.
Dr. Moutzouros was asked to address each condition separately, identify specifically the work
activities and provide medical reasons, supported by objective findings. OWCP provided him
with a statement of accepted facts and accepted definitions and provided him 30 days to submit
the requested information. In a December 6, 2011 letter, Dr. Moutzouros’ office requested
prepayment of fees for a narrative report.
By decision dated January 4, 2012, OWCP denied appellant’s claim. It found that she
failed to establish that her claimed medical condition was related to the accepted work activities.

2

Initially OWCP converted the April 15, 2011 occupational disease claim to a recurrence claim under case
number xxxxxx347. The factual and medical evidence did not support a claim of recurrence as defined by FECA,
but did support a new occupational disease claim. OWCP subsequently created a new occupational disease claim
under case number xxxxxx816 with a date of injury of March 1, 2010 for an injury to the right knee. Case number
xxxxxx816 was doubled into case number xxxxxx347, with case number xxxxx347 as the master case file.

2

In a letter dated January 26, 2012, appellant filed a request for reconsideration. In a
January 16, 2012 report, Dr. Moutzouros noted that he was responding to OWCP’s letter. He
indicated that appellant has a history of some right knee degenerative changes and cartilage
damage.
Dr. Moutzouros noted that appellant had undergone osteochondral allograft
implantation surgery to the right knee and described the physical requirements of her position as
a letter carrier, which he opined has led to the degenerative changes in her right knee. He
indicated that appellant’s job duties were not exclusively the cause of the degenerative changes
but that her work duties exacerbated her condition. Dr. Moutzouros noted that appellant
underwent surgery in July 2011 to replace allograft cartilage plugs, which stabilized her
condition.
By decision dated April 30, 2012, OWCP denied modification of its earlier decision.
On April 18, 2013 appellant again requested reconsideration. In an April 12, 2013 report,
Dr. Moutzouros reported that he first met appellant on April 14, 2011 for an evaluation of knee
pain. He noted that in 2004 she had sustained a blunt injury to the medial side of her knee which
led to multiple arthroscopies of the patellofemoral and cartilage damage. Dr. Moutzouros
reported that appellant did well until she reinjured her knee at work in 2009, when she slipped on
ice. He noted that appellant returned on May 5, 2011 with more information and confirmation
that she had a full thickness cartilage injury in the past that was treated with an osteochonddral
allograft plug. Dr. Moutzouros noted that radiologic testing confirmed the lack of cartilage and
support of the plug. He noted that a cortisone injection provided short-term pain relief and
appellant later underwent a right knee arthroscopy with osteochondral allograft transplantation.
Dr. Moutzouros discussed appellant’s postoperative treatment and progress, noting that she has
been able to work since her operation and has reached maximum medical improvement nearing
two years postsurgery. He advised that he did not meet appellant until after the numerous
surgeries to her right knee, but opined that she had a cartilage injury that undoubtedly has been
aggravated by her employment as a postal worker. Dr. Moutzouros noted that the allografts have
performed poorly in terms of long-term benefit especially when stressing the knee with
continuous walking.
By decision dated May 17, 2013, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
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 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
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between

3

the claimed conditions and identified factors. The belief of a claimant that a condition was
caused or aggravated by the employment is not sufficient to establish causal relation.3
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such an
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and that such a relationship must be supported
with affirmative evidence, explained by medical rationale and be based on a complete and
accurate medical and factual background of the claimant.4 Medical conclusions unsupported by
medical rationale are of diminished probative value and are insufficient to establish causal
relation.5
ANALYSIS
The Board finds that OWCP properly adjudicated appellant’s claim as a new
occupational disease claim. Appellant returned to work after her December 8, 2008 work injury
and was medically released from all treatment on April 22, 2009. She had no further medical
treatment until April 6, 2011, when she sought care due to right knee instability and inability to
work her duties of letter carrier. Appellant reported that her route had changed and was very
long. This represents a change in her work duties after her return to work and medical release of
treatment. As she implicated work factors that occurred after her return to full work duties,
appellant’s current claim was properly adjudicated as an occupational disease claim.6 The issue
is whether the new employment duties of a long route caused or contributed to her right knee
condition.
The Board finds that the medical evidence of record does not establish, with rationalized
medical opinion, that appellant sustained an aggravation of her preexisting right knee condition,
which included degenerative changes and several surgeries, as a result of the accepted factors of
her federal employment. OWCP received several reports from Dr. Moutzouros in which the
physician opined that the physical requirements of her position as a letter carrier led to the
exacerbation of her preexisting degenerative changes and cartilage damage to the right knee.
However Dr. Moutzouros failed to provide a well-rationalized medical opinion which discussed
how appellant’s right knee condition materially worsened to the point surgery was required and
has failed to provide any medical rationale explaining the nature of the relationship between any
diagnosed condition and her specific employment factors.7 In his August 31, 2011 letter,
3

Lourdes Harris, 45 ECAB 545, 547 (1994); A.P., Docket No. 11-1802 (issued April 10, 2012).

4

Conard Hightower, 54 ECAB 796 (2003).

5

Albert C. Brown, 52 ECAB 152 (2000).

6

See A.P., supra note 2; Section 10.104 of OWCP’s regulations provide that a notice of recurrence should not be
filed when a new injury, new occupational disease, or a new event contributing to an already existing occupational
disease has occurred. In these instances, the employee should file a Form CA-1 or CA-2. 20 C.F.R. § 10.404.
7

Albert C. Brown, 52 ECAB 152 (2000).

4

Dr. Moutzouros opined that she experienced right knee pain and swelling in part to her work
activities; however, he has not specified definitive diagnoses or provided medical rationale as to
what conditions were caused or aggravated by her work activities. In his January 16, 2012
report, Dr. Moutzouros described the physical requirements of appellant’s letter carrier position
and opined that her job duties exacerbated her condition, which included a history of
degenerative changes and cartilage damage to the right knee. Dr. Moutozouros failed to discuss
how her preexisting right knee condition was aggravated or materially worsened by her work
activities beginning March 2010. In his April 12, 2013 report, Dr. Moutzouros reported a
nonspecific cartilage injury that had been aggravated by appellant’s employment. A “cartilage
injury” however is not a definitive diagnosis and Dr. Moutzouros failed to provide a wellrationalized opinion on how her job duties aggravated her preexisting knee condition. While
Dr. Moutzouros briefly discussed appellant’s work duties, he offered no medical rationale as to
how such exposure aggravated her preexisting right knee condition. Dr. Moutzouros addressed
how allografts perform poorly in terms of long-term benefit especially when stressing the knee
with continuous walking, but did not provide any specific diagnostic findings from March 2010
clearly demonstrating the change in the underlying condition as opposed to just an increase in
symptoms. Dr. Moutozouros’ opinions on causal relationship are not well rationalized and are
insufficient to establish the critical element of causal relationship. As a result, appellant has not
met her burden of proof.
On appeal, appellant’s counsel contends that OWCP’s decision is contrary to fact and
law. For the reasons stated, there is no medical evidence which offers a well-reasoned
explanation of how appellant’s work factors from March 2010 caused a diagnosed medical
condition which materially aggravated her preexisting right knee condition leading to surgery.
Appellant has not met her burden of proof to establish her claim for compensation benefits. The
Board will therefore affirm OWCP’s May 17, 2013 decision to deny her claim.
Appellant may submit new evidence or argument as part of a formal 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.

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
knee condition is causally related to her employment activities.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6