United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Laguna Niguel, CA, Employer
__________________________________________

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

Docket No. 12-1746
Issued: February 5, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 16, 2012 appellant filed a timely appeal from an August 3, 2012 nonmerit
decision from the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration as it was untimely filed and did not establish clear evidence of error. As the last
merit decision was issued July 28, 2004, more than one year before the filing of this appeal, the
Board lacks jurisdiction to review the merits of this case pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not establish clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. See 20 C.F.R. § 501.3(d)(2). An appeal of a final adverse OWCP decision issued on or after November 19,
2008 must be filed within 180 days of the decision. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On January 29, 1999 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim alleging that he sustained a right lateral meniscal tear causally related to factors of
his federal employment. OWCP accepted the claim for bilateral internal derangement of the
knees.
By decision dated August 15, 2003, OWCP granted appellant a schedule award for a four
percent permanent impairment of the left lower extremity. In a decision dated July 28, 2004, it
denied his request for reconsideration of its August 15, 2003 decision after finding that he had
not submitted evidence or raised argument sufficient to warrant reopening his case for further
merit review.
On June 26, 2012 appellant requested that OWCP pay him any schedule award owed. He
noted that he was refusing his physicians’ recommendation for prostatic surgery. In a July 17,
2012 response, OWCP referred appellant to its August 15, 2003 schedule award decision.
On July 20, 2012 appellant requested reconsideration. He noted that it had been 10 years
since the schedule award and that he had declined his physicians’ recommendation that he
receive bilateral knee implants. Appellant stated that he had retired and requested a lump-sum
schedule award. He related that he earned less than he would have earned without his work
injury.
In a decision dated August 3, 2012, OWCP denied appellant’s request for reconsideration
after finding that it was not timely filed and did not demonstrate clear evidence of error.
On appeal appellant contends that his physicians informed him that he needs knee
replacement surgery. He maintains that his knees have deteriorated such that he experiences
increased pain and decreased range of motion.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.3 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
OWCP decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.4
The term ‘clear evidence of error’ is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
3

5 U.S.C. § 8101 et seq.

4

20 C.F.R. § 10.607.

2

opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.5 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise and explicit and must manifest on its face that it committed an error.6
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.7 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.8 As appellant’s July 20, 2012
request for reconsideration was submitted more than one year after the last merit decision of
record, it was untimely. Consequently, he must demonstrate clear evidence of error by OWCP in
denying his claim for compensation.9
Appellant argued that he was entitled to an increased schedule award. He did not,
however, allege any new exposure or submit any new medical evidence to establish that his
condition had worsened since the August 15, 2003 decision granting a schedule award.10
Instead, appellant requested reconsideration of the original schedule award decision.
Consequently, the request for reconsideration was subject to the clear evidence of error standard
of review.11
Appellant has not established clear evidence of error in OWCPs decision. He argued that
his physicians recommended knee implants and noted that it had been 10 years since the prior
decision. Appellant further alleged that he earned less than he would have had he not sustained
his work injury.12 His arguments, however, do not address the relevant issue of whether he is
entitled to an increased schedule award. Appellant submitted no evidence and raised no
argument showing any error with the prior schedule award determination. In order to establish
clear evidence of error, the evidence submitted must raise a substantial question as to the
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (December 2003).

6

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
7

20 C.F.R. § 10.607(a).

8

Robert F. Stone, supra note 6.

9

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

10

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment. See B.K., 59 ECAB 228 (2007); Candace A. Karkoff, 56 ECAB 622 (2005).
11

See Linda T. Brown, 51 ECAB 115 (1999).

12

A schedule award is made without regard to whether or not there is a loss of wage-earning capacity resulting
from the injury and regardless of its effects upon employment or social opportunities. A schedule award is not
intended to be compensation for wage loss or potential wage loss. See Renee M. Straubinger, 51 ECAB 667 (2000).

3

correctness of OWCP’s decision.13 Appellant has not submitted evidence or raised argument that
meets this standard.
On appeal appellant maintains that his condition has worsened. He did not, however,
support his reconsideration request with evidence or argument relevant to the underlying
schedule award issue, and thus his request was insufficient on its face to warrant a reopening of
his case for merit review. Appellant can request an increased schedule award based on evidence
of new exposure or medical evidence showing the possible progression of an employmentrelated condition resulting in permanent impairment or increased impairment.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2012 is affirmed.
Issued: February 5, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

13

See Veletta C. Coleman, 48 ECAB 367 (1997).

14

See supra note 10.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTHPORT VETERANS HOSPITAL,
Northport, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1157
Issued: June 16, 2009

Case Submitted on the Record

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

JURISDICTION
On March 11, 2008 appellant, through counsel, filed a timely appeal from a January 17,
2008 decision of the Office of Workers’ Compensation Programs finding that she received an
overpayment of compensation and that she was at fault in its creation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $8,564.62 because it deducted health insurance
premiums for single rather than family coverage from October 6, 2002 through July 7, 2007; and
(2) whether she was at fault in creating the overpayment.

FACTUAL HISTORY
This is the third appeal before the Board. In an August 25, 1997 decision, the Board set
aside decisions of the Office dated February 15 and April 14, 1994.1 The Board found the
evidence of record sufficient to warrant further development as to whether appellant sustained a
recurrence of disability beginning November 29, 1993 causally related to her accepted April 13,
1992 employment injury.2 In a decision dated July 24, 2001, the Board found an unresolved
conflict in medical opinion as to whether appellant sustained a recurrence of disability beginning
November 29, 2003.3 The Board remanded the case for further development. The facts of the
case as provided in the Board’s prior decisions are incorporated herein by reference.
On September 10, 2002 appellant elected to receive benefits under the Federal
Employees’ Compensation Act effective November 29, 1993 in lieu of benefits from the Office
of Personnel Management (OPM).
A September 26, 2002 computer printout indicated that appellant was paid wage-loss
compensation for the period October 1 to 4, 2002 at the augmented 3/4 rate. No payment for
health benefits was indicated.
On October 23, 2002 the Office placed appellant on the periodic rolls for temporary total
disability effective October 6, 2002. It noted that she would be paid at the augmented 3/4 rate
and $82.24 would be deducted for health benefits. In a computer printout worksheet dated
October 23, 2002, the Office noted the health benefits code as 104 in addition to other
deductions, period of payment and the actual payment amount.
A November 19, 2002 worksheet, the OPM noted that appellant had been paid
compensation benefits through September 30, 2002 and that her health benefits code was 105.
In a November 4, 2005 notice of change in health benefits enrollment, the code for
appellant’s health benefits was listed as 104. Under remarks, the Office noted that she was
transferred from receiving benefits from the OPM to receipt of benefits under the Act.
A daily roll payment worksheet dated July 23, 2007, indicated that deductions for health
care premiums were taken out under code 104 for single benefits instead of code 105, for family
benefits. The worksheet indicated that an overpayment of $8,384.53 occurred.
On August 2, 2007 the Office notified appellant of its preliminary determination that she
received an overpayment of compensation in the amount of $8,384.53 because it deducted health
benefits premiums for single coverage rather than family coverage from October 1, 2002 through
July 7, 2007. It informed appellant of its preliminary determination that she was with fault in the
1

Docket No. 95-619 (issued August 25, 1997).

2

On April 24, 1992 appellant, then a 26-year-old respiratory therapist, filed a traumatic injury claim alleging that
she injured her back while lifting a patient on April 13, 1992. The Office accepted the claim for cervical and
lumbosacral sprain.
3

Docket No. 99-1516 (issued July 24, 2001).

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creation of the overpayment as she knew or should have reasonably known the payment she
accepted was incorrect. The Office referenced an accompanying memorandum, which described
the calculation of the overpayment. It deducted a total of $6,341.25 from her compensation
using health benefits code 104 from October 1 through July 7, 2002.4 Instead, the Office should
have deducted $14,725.78 in health benefits code 105 for family coverage. Appellant received
an overpayment of $8,384.53.
On August 19, 2007 appellant, through counsel, disagreed with the preliminary
overpayment determination and requested a telephonic hearing.
On October 29, 2007 the Office provided appellant’s counsel with calculations for the
overpayment. It noted that the calculations were different from those noted in the notice of
overpayment due to an incorrect start date and that health benefits were not deducted on two
payments issued to appellant. The Office found that appellant paid a total of $5,383.52 for the
period October 5, 2002 to November 25, 2006 and $687.60 for the period January 21 to July 7,
2007 using health benefits code 104 or a total of $6,071.12. It noted that $14,635.74 should have
been deducted for health benefits using code 105 for family coverage during this period.
Therefore, appellant received an overpayment of $8,564.62.
In a memorandum of conference dated January 14, 2008, appellant’s counsel stated that
appellant agreed to the withholding of $200.00 from continuing compensation, but that she still
objected to the overpayment.
By decision dated January 17, 2008, the Office finalized its finding that appellant
received an overpayment of $8,564.62 for the period October 6, 2002 through July 7, 2007. It
noted deductions for code 105 should have been made in the amount of $14,635.64 and that
deductions were made under code 104 in the amount of $6,071.12, which resulting an
overpayment of $8,564.62. The Office further determined that appellant was at fault in the
creation of the overpayment as the October 23, 2002 letter detailing the amount of her health
benefit deduction, which was less than the amount deducted from her benefits she had received
from OPM and that a reasonable person should have questioned this. Moreover, it noted that the
specific health code was listed on the benefit statement issued with every compensation payment.
The Office found that the overpayment should be repaid by withholding $200.00 from her
continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits Program. The regulations of the OPM, which
administers the Federal Employee Health Benefits Program, provides guidelines for the

4

There appears to be a typographical error as the Office notes the ending date as July 2, 2007 instead of
July 7, 2007.

3

registration, enrollment and continuation of enrollment for federal employees.
connection, 5 C.F.R. § 890.502(b)(1) provides:

In this

“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”5
In addition, 5 C.F.R. § 890.502(c)(1) provide:
“An agency that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to
OPM for deposit in the Employees Health Benefits Fund.”6
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.7 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.8 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.9
ANALYSIS -- ISSUE 1
On appeal, appellant contends that the record does not establish that she requested health
coverage for the family as opposed to self. Contrary to her contention, the record does contain
evidence that she elected to receive health coverage for her family. Correspondence from the
OPM regarding the transfer of appellant’s claim to the Office noted deductions for health
benefits were made under code 105, which is for family coverage.
The record in this case supports that, for the period October 6, 2002 through July 7, 2007,
the Office deducted health benefit premiums based on code 104 for standard single coverage
rather than code 105 for standard family coverage. Prior to electing to receive benefits under the
Act, appellant had been paid benefits under the OPM, which deducted health benefit premiums
based on code 105. The Office was obligated to deduct appropriate health benefit premiums for
5

5 C.F.R. § 890.502(b)(1).

6

Id. at § 890.502(d).

7

Id. at § 890.502(b)(1).

8

Id. at § 890.502(d).

9

James Lloyd Otte, 48 ECAB 334 (1997).

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code 105.10 An overpayment worksheet documented that the deductions under code 104 for the
period October 6, 2002 through July 7, 2007 totaled $6,071.12 whereas the deductions that
should have been made under code 105 for the same period totaled $14,635.74. This yielded an
overpayment in compensation of $8,564.62. The Board finds that, because deductions were
made under the incorrect health benefit enrollment code for the period October 6, 2002 through
July 7, 2007, an overpayment in compensation in the amount of $8,564.62 was created.
LEGAL PRECEDENT -- ISSUER 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to or the amount of, benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).11
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.12
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion above, that she accepted payments which she knew or should have known to
be incorrect. In order for the Office to establish that appellant was at fault in creating the
overpayment, it must show that, at the time she received the compensation checks in question,
she knew or should have known that the payment was incorrect.13
The Office found that appellant was at fault because she should have reasonably been
aware that an incorrect amount for her health premiums was being deducted from her
compensation for the period October 6, 2002 through July 7, 2007. It based its finding of fault
on appellant’s receipt of an October 23, 2002 letter from the Office, which advised that $82.24
would be deducted from her compensation benefits for health benefits. Appellant does not
dispute that she was paid during this period or the amount deducted for health benefits. She
questions how she would know that she had received an incorrect payment. The record shows
10

5 C.F.R. §§ 890.502(a)(1), 890.502(c)(1).

11

Id. at § 10.433(a).

12

Id. at § 10.433(b).

13

See Diana L. Booth, 52 ECAB 370 (2001); Robin O. Porter, 40 ECAB 421 (1989).

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that the specific health code was listed on appellant’s transfer into receipt of benefits under the
Act and on the November 19, 2002 the OPM worksheet. The compensation information
appellant received detailed deductions, payment and listed the health benefits code such that a
reasonable person would question whether the correct health benefits code and amount was
being used by the Office. In addition, appellant knew or should have known that the amount for
the health insurance premiums being deducted was incorrect based upon both the Office’s
November 6, 1992 letter and the health insurance deduction made by the OPM when it paid her
compensation benefits. Thus, the evidence shows that she accepted a payment which she knew
or should have been expected to know was incorrect. As appellant accepted a payment she knew
or should have known was incorrect, she was at fault in creating the overpayment and no waiver
of the overpayment is possible.
CONCLUSION
The Board finds that an overpayment of $8,564.62 occurred because the Office neglected
to deduct proper health insurance premiums from appellant’s continuing compensation. The
Board further finds that the Office properly denied waiver of the recovery of the overpayment as
it found her at fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 17, 2008 is affirmed.
Issued: June 16, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Baltimore, MD, Employer
__________________________________________

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

Docket No. 14-627
Issued: July 24, 2014

Case Submitted on the Record

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

JURISDICTION
On January 26, 2014 appellant filed a timely appeal from a December 20, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 As OWCP has not issued a merit decision within 180 days of the filing of this
appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his claim for
further merit review under 5 U.S.C. § 8128(a).

1

Pursuant to 20 C.F.R. § 501.5(b), appellant submitted a timely request for oral argument before the Board. By
order dated June 23, 2014, the Board denied the request on the grounds that the argument raised could be adequately
addressed in a decision based on a review of the record. Order Denying Request for Oral Argument, Docket No.
14-627 (issued June 23, 2014).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated August 15, 2008, the
Board affirmed an October 26, 2007 decision denying appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128.3 In an order dated August 15, 2012, the
Board set aside a September 23, 2011 decision denying his request for reconsideration as
untimely and insufficient to establish clear evidence of error.4 The Board determined that
appellant had timely requested reconsideration and remanded the case for OWCP to apply the
standard for timely reconsideration requests set forth at 20 C.F.R. § 10.606(b)(2). By decision
dated February 7, 2013, the Board affirmed a September 11, 2012 decision finding that he had
not established a permanent impairment of the right upper extremity due to his accepted work
injury. The facts and the circumstances as set forth in the prior decisions and order are hereby
incorporated by reference.
By letter dated September 11, 2013, received by OWCP on September 23, 2013,
appellant requested reconsideration of the denial of his schedule award claim. He summarized
medical evidence and asserted that OWCP had a responsibility to assist in the development of
the evidence. Appellant related that he asked a claims examiner to develop the medical evidence
to determine whether he had a consequential injury. The claims examiner, however, indicated
that he had alleged in a May 23, 2008 letter that he had a permanent impairment. Appellant
argued that his May 23, 2008 letter was not new evidence and that OWCP erred in failing to
address the substance of the evidence submitted. He alleged that the September 11, 2012
decision contained inadequate findings of facts and conclusions of law. Appellant contended
that he is entitled to a merit review of his schedule award claim.
In a decision dated December 20, 2013, OWCP denied appellant’s request for
reconsideration as he had not submitted evidence or raised an argument sufficient to warrant
reopening his case for further merit review under section 8128. It found that he had not
submitted evidence relevant to the pertinent issue of whether the medical evidence established
permanent impairment of the right upper extremity due to his work injury.
On appeal appellant argues that the November 19, 2007 report from Dr. Michael A.
Franchetti, a Board-certified orthopedic surgeon, is sufficient to establish that he has a permanent
impairment due to his employment injury.
3

Docket No. 08-331 (issued August 15, 2008); petition for recon. denied, Docket No. 08-331 (issued
May 5, 2009). OWCP accepted that on January 14, 2000 appellant, then a 61-year-old supervisor, sustained left
shoulder strain and bilateral knee sprain due to a January 14, 2000 work injury. Appellant had a prior injury to his
leg on September 14, 1992. OWCP granted him schedule awards for a 32 percent permanent impairment of the left
lower extremity and a 15 percent permanent impairment of the right lower extremity. By decision dated June 8,
2001, it granted appellant a schedule award for a nine percent permanent impairment of the left upper extremity. On
June 27, 2003 OWCP granted him a schedule award for an additional 25 percent permanent impairment of the left
upper extremity. In decisions dated March 23, 2004 and February 10, 2005, it denied modification of its June 27,
2003 decision. By decision dated October 26, 2007, OWCP denied appellant’s request for reconsideration of the
June 27, 2003 decision as the evidence submitted was insufficient to warrant reopening the case for further merit
review.
4

Order Remanding Case, Docket No. 12-701 (issued August 15, 2012).

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.11
ANALYSIS
By decision dated February 27, 2013, the Board affirmed OWCP’s September 11, 2012
decision denying appellant’s claim for a schedule award. The Board found that appellant had not
submitted sufficient medical evidence to establish that he sustained a permanent impairment of
the right upper extremity as a result of his accepted employment injury. On September 23, 2013
appellant requested reconsideration, which OWCP denied in a nonmerit decision dated
December 20, 2013.12

5

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

10

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
11

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

12

While a claimant may request an increased schedule award based on evidence of new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent impairment or increased
impairment, appellant did not submit any new evidence supporting an impairment or evidence of new exposure but
instead requested reconsideration of the prior decision. See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy,
45 ECAB 488 (1994).

3

The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3) requiring OWCP to reopen the case for review of the merits of the claim.
In his September 23, 2013 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument not previously considered. He argued that he requested OWCP to
develop the evidence and adjudicate whether he had a consequential injury. Appellant also
maintained that his May 23, 2008 letter was not new evidence and that OWCP erred in failing to
review the substance of the letter. His contentions, however, are not relevant to the underlying
issue in this case, which is whether the medical evidence is sufficient to show that he sustained
an employment-related right upper extremity impairment. As it is a medical issue, it must be
addressed by relevant medical evidence.13 Appellant further contended that the September 11,
2012 decision contained inadequate findings of facts and conclusions of law. The Board,
however, previously reviewed and affirmed OWCP’s September 11, 2012 decision, and thus the
issue is res judicata and not subject to further consideration by the Board.14 A claimant may be
entitled to a merit review by submitting pertinent new and relevant evidence, but appellant did
not submit any pertinent new and relevant medical evidence in this case.
On appeal appellant maintains that Dr. Franchetti’s November 19, 2007 report establishes
that he has a permanent impairment. His opinion, however, is not relevant to the medical issue
in this case, which can only be resolved through the submission of probative medical evidence
from a physician.15 Additionally, the Board previously considered the November 19, 2007 report
from Dr. Franchetti and determined that it was insufficient to establish that he sustained a
permanent impairment due to his work injury. Consequently, the matter is res judicata and not
subject to further consideration.16
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his claim for
further merit review under section 8128(a).

13

See Bobbie F. Cowart, 55 ECAB 746 (2004).

14

See Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

15

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

16

See G.S., Docket No. 14-408 (issued June 10, 2014); Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the December 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camas, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0425
Issued: November 12, 2021

Case Submitted on the Record

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

JURISDICTION
On December 16, 2019 appellant filed a timely appeal from two October 16, 2019 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3

1

Appellant also appealed a purported November 21, 2019 decision of OWCP. The record contains a document
dated November 21, 2019 concerning a claim for compensation due to lost time for attending a medical appointment,
but this is an informational letter that does not constitute a final decision of OWCP. As the Board’s jurisdiction is
limited to the review of final adverse OWCP decisions, the Board does not have jurisdiction over the subject matter
of the November 21, 2019 informational letter. See 5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).
2
3

5 U.S.C. § 8101 et seq.

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

ISSUES
The issues are: (1) whether appellant has met her burden of proof to expand the acceptance
of her claim to include thoracic outlet syndrome as causally related to the accepted November 30,
2017 employment injury; and (2) whether OWCP has met its burden of proof to terminate
appellant’s wage-loss compensation, effective June 4, 2019, as she ceased to have disability
causally related to the accepted November 30, 2017 employment injury.
FACTUAL HISTORY
On December 1, 2017 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 30, 2017 she sustained a back injury when she
slipped and fell on wet, moldy, and mossy wooded stairs while in the performance of duty. She
stopped work on December 4, 2017. OWCP accepted appellant’s claim for sprain of ligaments of
the lumbar spine, contusion of the left back wall of the thorax, strain of muscle, fascia, and tendon
of the lower back, muscle spasm of the back, strain of muscle and tendon of the back wall of the
thorax, and strain of unspecified muscle and tendon at the ankle and foot levels.4 Appellant
returned to full-duty work on May 3, 2018 and stopped work on June 1, 2018.
On June 18, 2018 appellant filed a claim for compensation (Form CA-7) claiming disability
from work for the period June 1 through 8, 2018 due to her accepted November 30, 2017
employment injury. She later filed Form CA-7 claims for compensation alleging work-related
disability for the period June 9, 2018 and continuing.
Appellant submitted medical evidence in support of her recurrence of disability claim,
including a May 14, 2018 report from Dr. Matthew McGehee, a Board-certified orthopedic
surgeon, who administered a steroid injection at the C6 level. In May 29 and June 4, 2018 reports,
Dr. Wael Musleh, a Board-certified neurosurgeon, indicated that she continued to have axial neck
pain, which radiated to the proximal scapular upper region. 5
By decision dated July 30, 2018, OWCP denied appellant’s claim, finding that she had not
submitted sufficient medical evidence to establish a recurrence of disability on or after June 1,
2018 causally related to her accepted November 30, 2017 employment injury. It concluded,
“[Y]our claim for recurrence is denied because you have not established that you are
disabled/further disabled due to a material change/worsening of your accepted work[-]related
conditions.”
On August 30, 2018 appellant, through her then-counsel, requested an oral hearing before
a representative of OWCP’s Branch of Hearings and Review. In a January 11, 2019 statement,
then-counsel requested that the accepted conditions be expanded to include thoracic outlet
syndrome as causally related to the November 30, 2017 employment injury. Appellant submitted
a January 9, 2019 report from Dr. Jaime Nicacio, a Board-certified physical medicine and
rehabilitation physician, who noted that he had evaluated her on September 17, 2018 for
4

OWCP paid appellant wage-loss compensation for disability from work on the supplemental rolls commencing
January 13, 2018.
5

Appellant also submitted reports from her periodic chiropractic and deep tissue therapy sessions.

2

complaints of neck and back pain. 6 Dr. Nicacio advised that she had reported a fall on
November 30, 2017. He noted that he assessed appellant’s thoracic outlet syndrome using
Adson’s maneuver, and advised that the maneuver was objectively positive due to the fact that her
radial pulse dropped when it was conducted. Dr. Nicacio noted that “[t]his test and [appellant’s]
mechanism of injury and presenting symptoms after injury and her ongoing symptoms and the lack
of treatment for this condition” had led him to believe that the previously undiagnosed and
untreated condition of thoracic outlet syndrome should be treated. With respect to the mechanism
of injury, he indicated that “any type of strain to head/neck and or upper extremities can predispose
or even cause this type of syndrome to occur. It is my opinion that [appellant’s] injury of
[November 30, 2017] caused this thoracic outlet syndrome….”
During the hearing held on January 15, 2019 appellant testified regarding her symptoms
and the medical treatment she received for her November 30, 2017 employment injury. After the
hearing, she submitted a January 17, 2019 report from Dr. Nicacio, who discussed her factual and
medical history, including the nature of the November 30, 2017 employment injury. 7 Dr. Nicacio
noted that, during a September 17, 2018 examination, appellant had positive findings of thoracic
outlet syndrome based upon Adson’s maneuver results8 and that subjectively she had numbness
and tingling in her left upper extremity. He advised that he diagnosed thoracic outlet syndrome at
the time, as well as other conditions including whiplash syndrome and cervical, thoracic, scapula,
and myofascial pain. Dr. Nicacio indicated that thoracic outlet syndrome was used to describe a
group of disorders due to compression or injury/irritation of the thoracic outlet, which included
nerves and vasculature in the neck and upper chest area. He noted that appellant had fallen down
stairs on November 30, 2017 and initially felt pain in the low back, but subsequently experienced
pain, which extended through the spine. Dr. Nicacio opined that the November 30, 2017 injury
caused thoracic outlet syndrome and maintained that this condition rendered appellant unable to
perform her work activities, which included repetitive lifting on a regular basis.
By decision dated March 25, 2019, OWCP’s hearing representative set aside the July 30,
2018 decision and remanded the case to OWCP for further development of the medical evidence.
The hearing representative found that Dr. Nicacio’s reports were of sufficient probative value to
require further development of appellant’s request for the accepted conditions to be expanded to
include thoracic outlet syndrome as causally related to the November 30, 2017 employment injury.
She determined that, prior to making a determination regarding appellant’s recurrence of disability
claim, appellant should be referred to a specialist in the appropriate field of medicine for a second
opinion examination and opinion regarding her expansion claim. The hearing representative
directed OWCP, after carrying out any development deemed necessary on remand, to issue a de
novo decision regarding appellant’s recurrence of disability and expansion claims.

6

In support of her recurrence of disability claim, appellant also continued to submit reports from attending
physicians, as well as reports detailing her periodic chiropractic and deep tissue therapy sessions.
7

Dr. Nicacio noted that a March 18, 2018 noncontrast magnetic resonance imaging (MRI) scan of appellant’s
cervical spine showed no evidence of disc herniation. The case record does not contain a copy of a March 18, 2018
MRI scan, but it does contain a January 24, 2018 MRI scan, which includes an impression of disc herniation on
background of spondylosis at C5-6.
8

Dr. Nicacio indicated that the Adson’s maneuver was positive on the left side, but negative on the right side.

3

On remand, OWCP referred appellant in May 2019 for a second opinion examination with
Dr. Weichin Chen, a Board-certified orthopedic surgeon. It provided him with a copy of the case
record, including a statement of accepted facts (SOAF) and a series of questions. OWCP requested
that Dr. Chen evaluate whether the acceptance of appellant’s claim should be expanded to include
thoracic outlet syndrome as causally related to the accepted November 30, 2017 employment
injury, and whether she had residuals/disability causally related to the conditions already accepted
in connection with the November 30, 2017 employment injury.
In a report dated June 3, 2019, Dr. Chen detailed appellant’s factual and medical history
and discussed the nature of the November 30, 2017 fall at work. He noted that she presented with
chief complaints of lower back, neck, and right shoulder pain, and reported the findings of his
physical examination. Dr. Chen indicated that appellant exhibited positive right paraspinal
tenderness to palpation of the lumbar spine and that she reported having radicular pain symptoms
in the lower extremities. He noted that she reported during the examination that her cervical
condition had improved by 80 percent. Dr. Chen indicated that the sensory examination of
appellant’s extremities was intact. He indicated that her accepted lumbar and right shoulder
conditions had resolved. 9 Dr. Chen discussed appellant’s recent diagnostic tests for the cervical
and lumbar spine and noted that, on a more probable than not basis, they showed “preexisting
degenerative changes,” which were not “industrially related.” He indicated that she denied any
subjective complaints related to her foot/ankle strain and noted that therefore “the question is
whether this diagnosis is correct based on the [SOAF].” Dr. Chen indicated that he was unable to
evaluate appellant’s claimed thoracic outlet syndrome as this condition was outside of his area of
expertise. He advised that, with respect to her cervical strain, thoracic contusion, lumbar strain,
and right shoulder strain, appellant could return to her regular-duty job without restrictions.
Dr. Chen noted that official disabilities guidelines provided that 35 days was the average time for
heavy manual laborers to return to work after suffering a severe lower back strain and noted that
appellant was “beyond that time frame for return to duty for her accepted conditions.” He also
cited a medical article, which indicated that, with respect to a strain or any strain, the time frame
for “remodeling of a muscle/tendon unit injury” was 3 to 60 days. Dr. Chen noted, “Thus, at this
time, for [appellant’s] orthopedic[-]related accepted conditions, the strains are expected to have
resolved by 60 days.” Dr. Chen noted, however, that appellant’s nonindustrial cervical
spondylosis/stenosis, degenerative cervical disc disease, degenerative lumbar spondylosis, and
degenerative lumbar disease could also affect her ability to work on a non-industrial basis. He
recommended that appellant work in a light-duty capacity.
In a June 2, 2019 work capacity evaluation form (Form OWCP-5c), Dr. Chen indicated
that appellant was able to perform her usual job for eight hours per day, and noted, “This is only
for resolved cervical strain, lumbar strain, right shoulder strain, and thoracic contusion. Not
thoracic outlet syndrome.”
As Dr. Chen did not evaluate appellant for thoracic outlet syndrome as requested, OWCP
then referred appellant in July 2019 for a second opinion examination with Dr. Karleen
Swarztrauber, a Board-certified neurologist. It provided Dr. Swarztrauber with a copy of the case
record, including an SOAF. OWCP requested that she provide an opinion regarding whether the
Dr. Chen indicated that appellant’s had a cervical strain “industrially related” to the November 30, 2017
employment injury which had resolved. It is noted that OWCP has not accepted an employment-related cervical
condition.
9

4

acceptance of appellant’s claim should be expanded to include thoracic outlet syndrome as causally
related to the accepted November 30, 2017 employment injury, and whether appellant had
residuals/disability causally related to the conditions already accepted in connection with the
November 30, 2017 employment injury.
In a report dated July 26, 2019, Dr. Swarztrauber discussed appellant’s factual and medical
history, including the nature of the November 30, 2017 employment injury, and she reported the
findings of the physical examination she conducted on July 26, 2019. She indicated that
appellant’s examination was unremarkable except for a ﬂattened lumbar spine and noted th at
sensory testing showed no evidence of numbness to light touch in the upper extremities or lower
extremities. Dr. Swarztrauber opined that, during the July 26, 2019 examination, there was no
evidence for thoracic outlet syndrome. She indicated that appellant did not have numbness in an
ulnar distribution and did not have weakness in the median hand distribution. Dr. Swarztrauber
advised that thoracic outlet syndrome typically would cause numbness in the fourth and ﬁfth
ﬁngers in addition to thenar atrophy and she noted that neither of the conditions exist on appellant’s
examination. She further indicated that a patient with thoracic outlet syndrome would have some
sort of pain, usually radiating from the underarm area, but that appellant did not exhibit such
symptoms during the examination. Dr. Swarztrauber reported that Dr. Nicacio had indicated in
his January 17, 2019 report that a March 2018 MRI scan of the cervical spine showed no evidence
of disc herniation. She asserted that the report of the MRI scan indicated that there was evidence
of a C5-6 disc herniation. Dr. Swarztrauber also noted that Dr. Nicacio had reported that appellant
had subjective numbness and tingling in appellant’s left upper extremity and that Adson’s
maneuver was positive at the time on the left, but negative on the right. She indicated that Adson’s
maneuver was used by Dr. Nicacio to diagnose thoracic outlet syndrome as the maneuver was
considered to be objectively positive due to the fact that appellant’s radial pulse dropped when she
raised her arm.
Dr. Swarztrauber maintained, with respect to Dr. Nicacio’s opinion, that it was very
common for providers to not specify whether they were discussing vascular thoracic outlet
syndrome versus neurogenic thoracic outlet syndrome. She indicated that the Adson’s maneuver
“would be positive for vascular thoracic outlet syndrome.” Dr. Swarztrauber further noted,
“[v]ascular thoracic outlet syndrome does not necessarily imply that appellant would have the
classic neurologic ﬁndings. At the current time, the claimant is not symptomatic from vascular
thoracic outlet syndrome.” She further maintained that, in general, the trauma required for vascular
thoracic outlet syndrome was fairly signiﬁcant. Such trauma was associated with a motor vehicle
accident, perhaps the strap of the seat belt or being struck by an object within the car, which caused
damage to the sub clavicular area and resulted in hematoma or other focal damage that would
cause interference with the vascular output. Dr. Swarztrauber indicated that she could not see how
appellant’s injury of falling down stairs would cause thoracic outlet syndrome, particularly as
appellant had no complaints of upper extremity pain. She indicated that vascular thoracic outlet
syndrome could also be due to congenital structural issues. Dr. Swarztrauber noted, “In this case,
if in fact at that time appellant had those symptoms, then perhaps it was due to another condition
such as a congenital condition.”
Dr. Swarztrauber further indicated that, at the time of Dr. Chen’s June 3, 2019
examination, appellant reported that her cervical spine co ndition was 80 percent better, but
appellant continued to have lumbar symptoms. She noted that, at that time, it was felt that appellant
was at baseline with regard to appellant’s industrially-related injuries, but that appellant was also
5

receiving treatment for her preexisting conditions. Dr. Swarztrauber indicated that, presently, it
was “impossible to determine if [appellant’s] total disability ceased at that time.” She advised that
Dr. Musleh indicated in his June 4, 2018 report that appellant was not ready to go back to work,
and he opined that disability was def initely present that date. Dr. Swarztrauber noted, “As best I
can tell, because records are inconsistent, [appellant’s] disability resolved on June 3, 2019 at the
time of that independent medical evaluation.” She indicated that an employment-related
aggravation of appellant’s cervical condition “may be indicated” and noted that, “if aggravation
occurred for the cervical spine,” it was temporary and ceased by June 3, 2019.10 Dr. Swarztrauber
opined that appellant was ready to return to her regular work on a full-time basis, but should do so
slowly in order to prevent reinjury.
In a July 26, 2019 Form OWCP-5c, Dr. Swarztrauber indicated that appellant could
perform her regular job for six hours per day, and noted, “It is beneficial to return to full duty
slowly to prevent reinjury, but this is not because she has residual [sic]. It is to prevent reinjury.”
By decision dated October 16, 2019, OWCP terminated appellant’s wage-loss
compensation, effective June 4, 2019, finding that appellant’s employment-related disability had
ceased as of June 3, 2019.11
By separate decision dated October 16, 2019, OWCP denied expansion of the acceptance
of appellant’s claim to include thoracic outlet syndrome as causally related to the accepted
November 30, 2017 employment injury. It found that the weight of the medical opinion with
respect to this matter rested with the July 26, 2019 report of Dr. Swarztrauber.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury. 12 The medical evidence required to establish causal
relationship between a specific condition, and the employment injury, is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant. 13 The Board has held that when the

10

Dr. Swarztrauber indicated that appellant complained of very mild residual neck tightness/soreness. She advised
that appellant had full range of neck movement examination and noted, “This residual is currently subjective. There
is no objective residual.”
11

OWCP accepted that appellant sustained a recurrence of disability on June 1, 2018 causally related to her accepted
November 30, 2017 employment injury. It advised that this acceptance was based on Dr. Swarztrauber’s July 26,
2019 report.
12

J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
13

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

medical evidence supports an aggravation or acceleration of an underlying condition precipitated
by working conditions or injuries, such disability is compensable. 14
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”15 In situations where
there exist opposing medical reports of virtually equal weight an d rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight. 16
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision with regard to expansion of the
acceptance of appellant’s claim.
There is a conflict in the medical evidence between Dr. Nicacio, the attending physician,
and Dr. Swarztrauber, OWCP’s referral physician, regarding whether the acceptance of appellant’s
claim should be expanded to include thoracic outlet syndrome as causally related to the accepted
November 30, 2017 employment injury.
In a January 9, 2019 report, Dr. Nicacio noted that he assessed appellant’s thoracic outlet
syndrome on September 17, 2018 with a maneuver called Adson’s maneuver and advised that the
maneuver was objectively positive due to the fact that her radial pulse dropped when it was
conducted. He reported that “[t]his test and her mechanism of injury and presenting symptoms
after injury and her ongoing symptoms and the lack of treatment for this condition ” had led him to
believe that the previously undiagnosed and untreated condition of thoracic outlet sy ndrome
should be treated. With respect to the mechanism of injury, Dr. Nicacio indicated that “any type
of strain to head/neck and or upper extremities can predispose or even cause this type of syndrome
to occur. It is my opinion that [appellant’s] injury of [November 30, 2017] caused this thoracic
outlet syndrome….” In a January 17, 2019 report, he noted that, during the September 17, 2018
examination, appellant had positive findings of thoracic outlet syndrome based upon the use of
Adson’s maneuver and advised that he diagnosed thoracic outlet syndrome at that time. 17
Dr. Nicacio indicated that thoracic outlet syndrome was used to describe a group of disorders due
to compression or injury/irritation of the thoracic outlet, which included nerves and vasculature in
the neck and upper chest area. He noted that appellant had fallen down stairs on November 30,
2017 and initially felt pain in the low back, but subsequently experienced pain, which extended

14

C.H., Docket No. 17-0488 (issued September 12, 2017).

15

5 U.S.C. § 8123(a).

16

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
17

Dr. Nicacio indicated that the Adson’s maneuver was positive on the left side, but negative on the right side. He
also noted that subjectively appellant had numbness and tingling in her left upper extremity.

7

through the spine. Dr. Nicacio opined that the November 30, 2017 injury caused thoracic outlet
syndrome.
In contrast, Dr. Swarztrauber determined in a July 26, 2019 report that appellant did not
have thoracic outlet syndrome, or at least did not have a type of th oracic outlet syndrome, which
would be related to the accepted November 30, 2017 employment injury. In her report, she
indicated that, during the July 26, 2019 physical examination, appellant did not have symptoms
indicative of thoracic outlet syndrome such as numbness in an ulnar distribution or weakness in
the median hand distribution. Dr. Swarztrauber further indicated that a patient with thoracic outlet
syndrome would have some sort of pain, usually radiating from the underarm area, but that
appellant did not have such symptoms during the examination. She discussed Dr. Nicacio’s
interpretation of a cervical spine MRI scan and his use of Adson’s maneuver as a diagnostic tool
and noted, with respect to Dr. Nicacio’s opinion, that it was very common for providers to not
specify whether they were discussing vascular thoracic outlet syndrome versus neurogenic thoracic
outlet syndrome. Dr. Swarztrauber indicated that the Adson’s maneuver “would be positive for
vascular thoracic outlet syndrome.” She further noted, “Vascular thoracic outlet syndrome does
not necessarily imply that appellant would have the classic neurologic ﬁndings. At the current
time, the claimant is not symptomatic from vascular thoracic outlet syndrome.” Dr. Swarztrauber
discussed the types of trauma that would cause thoracic outlet syndrome and opined that she could
not see how appellant’s injury of falling down stairs would cause thoracic outlet syndrome,
particularly as appellant had no complaints of upper extremity pain. 18
Consequently, the case must be referred to an impartial medical specialist to resolve the
conflict in the medical opinion evidence between Dr. Nicacio and Dr. Swarztrauber regarding
whether the acceptance of appellant’s claim should be expanded to include thoracic outlet
syndrome as causally related to the accepted November 30, 2017 employment injury. On remand,
OWCP shall refer appellant, along with the case file and a current SOAF, to a specialist in the
appropriate field of medicine for an impartial medical evaluation and report including a
rationalized opinion on this issue. After this and other such further development, OWCP shall
issue a de novo decision regarding the expansion of the acceptance of appellant’s claim.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays disability, it has the burden of justifying termination
or modification of an employee’s benefits. It may not terminate compensation without establishing
that the disability has ceased or is no longer related to the employment injury. 19 The fact that
OWCP accepts a claim for a specified period of disability does not shift the burden of proof to the
claimant to show that he or she is still disabled. 20 The burden is on OWCP to demonstrate an
absence of employment-related disability in the period subsequent to the date when compensation

18

Dr. Swarztrauber further indicated that vascular thoracic outlet syndrome could also be due to congenital
structural issues. She noted, “In this case, if in fact at that time appellant had those symptoms, then perhaps it was
due to another condition such as a congenital condition.”
19

R.B., Docket No. 19-1501 (issued February 23, 2021); D.R., Docket No. 14-1688 (issued April 8, 2015); J.P.,
Docket No. 13-1049 (issued August 16, 2013).
20

S.O., Docket No. 14-1303 (issued April 29, 2015).

8

is terminated or modified. 21 OWCP’s burden includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background. 22
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation, effective June 4, 2019.
OWCP has the burden of proof to justify its termination action because, as noted above,
the fact that OWCP accepts a claim for a specified period of disability does not shift the burden of
proof to the claimant to show that he or she is still disabled. 23
In her July 26, 2019 report, Dr. Swarztrauber found that, effective June 4, 2019, appellant
ceased to have disability due to the conditions accepted in connection with her November 30, 2017
employment injury. In making this determination, she referenced the June 3, 2019 report of
Dr. Chen, a prior OWCP referral physician. However, Dr. Swarztrauber’s opinion is of limited
probative value regarding employment-related disability because she did not provide adequate
medical rationale in support of her opinion that appellant did not have employment-related
disability after June 3, 2019. She did not explain the medical process through which the conditions
accepted in connection with the November 30, 2017 employment injury had resolved.
Furthermore, Dr. Swarztrauber noted, “As best I can tell, because records are inconsistent, her
disability resolved on June 3, 2019….” However, she did not provide any explanation of her stated
inconsistency of the records. The Board has held that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale exp laining how a given medical
condition/level of disability has an employment-related cause.24
The Board further finds that the June 3, 2019 report of Dr. Chen, which was referenced by
Dr. Swarztrauber also is of limited probative value regarding employment-related disability
because he did not provide adequate medical rationale in support of his opinion that appellant did
not have employment-related disability after June 3, 2019.25 Although Dr. Chen suggested that
appellant’s continuing problems were due to nonwork-related degenerative disease, he did not
adequately support this opinion or otherwise sufficiently explain why she would not have at least
some residuals of her November 30, 2017 employment injury after June 3, 2019. He cited a
medical article, which indicated that, with respect to a strain or any strain, the time frame for
“remodeling of a muscle/tendon unit injury” was 3 to 60 days. Dr. Chen noted, “Thus, at this time,
for [appellant’s] orthopedic[-]related accepted conditions, the strains are expected to have resolved
21

J.S., Docket No. 13-1678 (issued April 3, 2014); G.Q., Docket No. 12-1459 (issued November 27, 2012).

22
M.C., Docket No. 18-1374 (issued April 23, 2019); Mary Lou Barragy, 46 ECAB 781, 787 (1995). Moreover,
OWCP’s procedures address cases when the medical evidence supports that a condition being accepted at the time of
adjudication has already resolved. In such a case, OWCP claims examiner cannot state that the work-related condition
has resolved without citing evidence demonstrating that the condition has resolved. Fede ral (FECA) Procedure
Manual, Part 2 -- Claims, Initial Acceptances, Chapter 2.806.5 (June 2011).
23

See supra note 19.

24

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

25

See supra note 19.

9

by 60 days.” However, he did not explain how the specifics of appellant’s condition supported his
conclusion. The Board has held that medical texts and excerpts from publications are of no
evidentiary value with respect to a given medical matter because such materials are of general
application.26
As the medical evidence of record is insufficient to justify the termination of appellant’s
wage-loss compensation, the Board finds that OWCP did not meet its burden of proof.
CONCLUSION
The Board finds that the case is not in posture for decision with respect to the expansion of
acceptance of appellant’s claim to include thoracic outlet syndrome as causally related to the
accepted November 30, 2017 employment injury. The Board further finds that OWCP has not met
its burden of proof to terminate her wage-loss compensation, effective June 4, 2019.
ORDER
IT IS HEREBY ORDERED THAT the October 16, 2019 decision of the Office of
Workers’ Compensation Programs denying expansion of the acceptance of appellant’s claim is set
aside, and the case is remanded to OWCP for proceedings consistent with this decision of the
Board. The separate October 16, 2019 decision of OWCP terminating appellant’s wage-loss
compensation, effective June 4, 2019, is reversed.
Issued: November 12, 2021
Washington, DC

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

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

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

26

L.C., Docket No. 17-1811 (issued March 23, 2018).

10


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

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0538
Issued: September 23, 2016

Case Submitted on the Record

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

JURISDICTION
On January 20, 2015 appellant, through counsel, filed a timely appeal from a
December 29, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation
effective March 10, 2013.
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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 On February 13, 1998 appellant, an
acting supervisor, was reporting for work at 3:50 a.m. when a man grabbed her purse, causing
her to fall to the ground. OWCP accepted the claim for left knee contusion, cervical strain, and
situational stress. Appellant stopped work that day. After a brief return to work in July 1998,
appellant stopped work again on July 20, 1998 and did not return. She was placed on the
periodic compensation rolls.
By report dated March 21, 2012, Dr. Jorge Raichman, an OWCP referral physician, noted
appellant’s complaint of extensive paranoia since the 1998 work incident, social isolation,
becoming angry easily, insomnia and nightmares, and decreased activities to the degree that she
was a recluse. On mental status examination appellant was hesitant and stuttered, appeared
depressed, suspicious, and paranoid. Dr. Raichman diagnosed psychosis, post-traumatic stress
disorder by history, and mixed personality disorder. In response to questions posed by OWCP,
he noted that appellant had significant anxiety that translated into paranoia and that, seemingly,
no improvement had occurred in the 14 years since the 1998 incident, which was difficult to
understand. He found appellant’s prognosis to be poor, advised that she was unable to return to
work as a supervisor in the customer service area, and recommended part-time work. On
May 30, 2012 Dr. Raichman provided a sworn statement in which he noted that he had been
interviewed by an employing establishment Office of Inspector General (OIG) special agent.
Dr. Raichman indicated that the agent reported that appellant had been employed in multiple,
different capacities with different employers continuously and successfully for many years,
although she denied this when he interviewed her on March 21, 2012. He advised that, based on
this information, appellant was capable of working at her previous capacity with the employing
establishment and that her symptom presentation represented malingering for monetary gain. On
May 30, 2012 Dr. Raichman completed a revised a work capacity evaluation (Form OWCP 5a)
indicating that appellant could work eight hours a day at any job, beginning that same day.
In reports dated March 31, June 20, and September 19, 2011, Dr. Harvey A. Rosenstock,
an attending Board-certified psychiatrist, advised that appellant continued to suffer from anxiety,
depression, panic, and post-traumatic stress disorder due to the employment injury. It found that
she could not return to the date-of-injury work and was only capable of very low stress part-time
employment.
OWCP found a conflict of medical opinion between the opinions of Dr. Rosenstock and
Dr. Raichman. Accordingly, it scheduled a medical appointment with Dr. Andrew Brylowski, a
referee physician, to resolve the conflict in medical evidence. Dr. Brylowski found that all
employment-related disability had ceased.
On December 21, 2012 OWCP issued a notice of proposed termination of appellant’s
compensation based on the opinion of Dr. Brylowski.

3

Docket Nos. 13-2019 and 14-310 (issued June 18, 2014).

2

In a February 14, 2013 decision, OWCP terminated appellant’s wage-loss compensation
benefits, effective March 10, 2013, based on the opinion of Dr. Brylowski.4 Medical benefits
were not terminated. On September 10, 2013 following a request for reconsideration OWCP
denied modification of the termination decision. Appellant timely requested a hearing before a
hearing representative.
By decision dated September 10, 2013, an OWCP hearing representative affirmed the
February 14, 2013 termination decision. Appellant appealed this decision to the Board.
In a June 18, 2014 decision, the Board determined that OWCP had properly found a
conflict of medical evidence between appellant’s treating physician and OWCP’s referral
physician, that OWCP had properly referred the record to Dr. Brylowski to resolve the conflict in
medical evidence as to appellant’s work capacity. OWCP had met its burden of proof to
terminate appellant’s wage-loss compensation effective March 10, 2013 as she had no
employment-related disability.5 The facts and the circumstances set forth in the previous appeal
are incorporated herein by reference.
On September 30, 2014 appellant, through counsel, again requested reconsideration of
the termination decision, stating that the request was based on new legal arguments not
previously advanced regarding the termination of monetary compensation.6
On reconsideration, counsel contended that he was providing new legal arguments.7 He
argued: (1) that the second opinion report from Dr. Raichman lacked rationale sufficient to
create a conflict in medical evidence; (2) that the second opinion report was based on
impermissible direct interference from the employing establishment; (3) that Dr. Brylowski’s
report could not be given special weight as there was no conflict at the time of referral; (4) that
Dr. Brylowski’s report could not be used as a second opinion physician as appellant had not
provided an opportunity to bring a physician with her to his examination; and (5) that
Dr. Brylowski’s report lacked rationale.
In a merit decision dated December 29, 2014, OWCP reviewed the legal arguments
proffered by counsel and found that the opinion of Dr. Brylowski was entitled to the special
4

In a January 11, 2013 decision, OWCP found that appellant forfeited her right to wage-loss compensation
because she knowingly failed to report or underreported self-employment. It also found, by decision dated July 29,
2013 that appellant had an overpayment of compensation in the amount of $127,142.08 because she failed to
provide information which she knew or should have known to be material. Those decisions were also appealed to
the Board and affirmed. Id. The forfeiture and overpayment decisions are not presently before the Board.
5

Supra note 3

6

A right to reconsideration within one year accompanies any subsequent merit decision. This includes ... any
merit decision by the Board. See Federal (FECA) Procedure manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4(a) (October 2011).
7

The Board notes that since March 25, 2010, appellant has authorized three different attorneys to handle her case.
On March 25, 2010 appellant authorized Jeffrey P. Zeelander, Esq. to represent her case before OWCP, on
March 25, 2012 appellant authorized Alan J. Shapiro, Esq., as his attorney, and finally on August 1, 2014 appellant
authorized Steven E. Brown, Esq. as his attorney. The current representative, Mr. Brown, made his first appearance
in the case on August 1, 2014.

3

weight accorded an impartial examination and determined that the evidence presented on
reconsideration was not of sufficient probative value to modify the June 18, 2014 decision.
LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.8 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the residuals have ceased or that they are no longer related to the
employment injury.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 In situations where there are opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based on a proper factual background, must be given the
special weight.11
ANALYSIS
In its June 18, 2014 decision, the Board found that OWCP met its burden of proof to
terminate appellant’s wage-loss compensation effective March 10, 2013. The Board issued its
decision on the basis of the evidence of record at that time.
Following the Board’s decision, on September 13, 2014 appellant, through counsel,
thereafter requested reconsideration of the termination decision.12 No new medical evidence was
presented, but new legal arguments were proffered. Issues addressed and resolved by the Board
in a final decision are res judicata and not subject to further review by the Board absent further
review by OWCP.13 In this case, as OWCP has now reviewed these new legal arguments and
issued a new merit decision on them, the matters are not barred for review by the Board under
res judicata.14

8

Bernadine P. Taylor, 54 ECAB 402 (1990).

9

Id.

10

5 U.S.C. § 8123(a).

11

Nathan L. Harrell, 41 ECAB 401 (1990).

12

Supra note 6.

13

David E. Newman, 48 ECAB 305 (1997); Hugo A. Mentink, 9 ECAB 628 (1958). A decision of the Board is
final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d).
14

T.B., Docket No. 15-0001 (issued July 1, 2015); Hugo A. Mentink, id.

4

The only issue on appeal before the Board is whether OWCP, in its December 29, 2014
decision, properly denied modification of its termination of appellant’s wage-loss compensation
effective March 10, 2013. The Board finds that counsel’s new legal arguments are insufficient to
require modification of the termination.
Counsel argued that: (1) the second opinion report from Dr. Raichman lacked sufficient
rationale to create a conflict in medical evidence; (2) that the second opinion report was based on
impermissible direct interference from the employing establishment; (3) that Dr. Brylowski’s
report could not be given special weight as there was no conflict at the time of referral; (4) that
Dr. Brylowski’s report could not be converted to a second opinion report as appellant had not
been provided an opportunity to bring a physician with her to his examination; and (5) that
Dr. Brylowski’s report lacked rationale.
By report dated March 21, 2012, Dr. Raichman found that appellant had significant
anxiety that translated into paranoia and that, seemingly, no improvement had occurred in the 14
years since the 1998 incident, which was difficult to understand. He stated that appellant’s
prognosis was poor and advised that she would not be able to return to work as a supervisor in
the customer service area, and recommended part-time work. On May 30, 2012, however, he
provided a sworn statement in which he noted that he had been interviewed by an OIG special
agent of the employing establishment who reported to Dr. Raichman that appellant had been
employed in multiple different capacities with different employers continuously and successfully
for many years. This fact had been denied by appellant when he had met with her in
March 2012. Dr. Raichman advised that, based on this information, appellant was capable of
working at her previous capacity with the employing establishment and that her symptom
presentation represented malingering for monetary gain. On May 30, 2012 he completed a
revised work capacity evaluation indicating that appellant could work eight hours a day at any
job, beginning that day.
The Board finds that Dr. Raichman’s supplemental findings were sufficiently
rationalized, provided an appropriate basis upon which to revise his opinion as to appellant’s
work capacity, and were in conflict with the treating physician. Dr. Raichman was provided
accurate information about appellant’s employment history and that information provided a
sufficient basis upon which to alter his opinion. Alternatively, Dr. Rosenstock found that
appellant continued to suffer from anxiety, depression, panic and post-traumatic stress disorder
and could only work a very low stress, part-time employment.
Counsel further argued that the second opinion physician had been inappropriately
contacted by the employing establishment’s OIG.
Counsel relied on the Board decision F.S. to support his contention that Dr. Raichman’s
report was tainted because it was based on interference by the employing establishment. In F.S.
the Board reversed a termination of compensation because the employing establishment violated
regulations forbidding direct contact with a claimant’s treating physicians. The Board found that
the employing establishment had provided edited video surveillance evidence to the attending

5

physician which had not been accurately and reliably identified, and that appellant had not
learned of the video evidence prior to the termination.15
In the case at hand, the employing establishment’s OIG agent did not interview
appellant’s attending physician. Rather, he interviewed an OWCP referral physician. The agent
did not show the physician surveillance video evidence, but merely informed him that appellant
had been employed in multiple capacities since she stopped work at the employing
establishment. In this case, as evidenced by the forfeiture and overpayment decisions,16 which
were affirmed by the Board in its June 18, 2014 decision,17 appellant had regularly failed to
report or underreported her employment status.
The Board notes that appellant had opportunity to challenge these findings prior to the
termination of her benefits. OWCP had provided, on June 15, 2012, a copy of Dr. Raichman’s
supplemental report to appellant’s treating physician, appellant’s counsel at the time
(Mr. Shapiro),18 and appellant. There was no response from appellant or counsel. OWCP
received a subsequent report from Dr. Rosenstock on July 31, 2012, after he had been provided a
copy of Dr. Raichman’s supplemental report. Dr. Rosenstock did not reference Dr. Raichman’s
supplemental report nor dispute the allegations or findings. Appellant was not referred to
Dr. Brylowski for an impartial medical examination until October 17, 2012. The Board finds
that appellant had ample opportunity and, having been ably represented by counsel at that time,
could have raised a timely objection to the appointment of a referee physician, but no objection
was raised. The Board finds no flaw in the second opinion report or in using it to create a
conflict in the medical evidence.
The Board further finds that OWCP properly found a conflict in medical evidence and
properly referred appellant to Dr. Brylowski to resolve that conflict. As such, he carries the
special weight attributed to a referee physician.
Counsel’s contended that if the Board found Dr. Raichman ineligible to serve as a second
opinion physician, OWCP could not now revert Dr. Brylowski to a second opinion physician.
Based on the Board’s finding that Dr. Raichman was sufficient to create a conflict, that argument
is irrelevant.
Finally, as to counsel’s argument that the referee report lacks rationale, the Board, in its
June 18, 2014 decision, carefully weighed Dr. Brylowski’s December 16, 2012 report finding
that all employment-related disability had ceased and found it to be well rationalized and,
therefore, entitled to the special weight accorded a referee opinion.19 The Board will not
reiterate those findings here.
15

F.S., Docket No. 11-0863 (issued September 26, 2012), petition for recon. denied (issued May 8, 2014).

16

Supra note 4.

17

Supra note 3.

18

Supra note 7.

19

Supra note 3.

6

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 OWCP met it burden of proof to terminate appellant’s compensation
benefits, effective March 10, 2013.
ORDER
IT IS HEREBY ORDERED THAT the December 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 16-1189
Issued: May 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 13, 2016 appellant, through counsel, filed a timely appeal from an April 4, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a permanent impairment of her right upper
extremity due to her work-related injuries sufficient to warrant a schedule award.
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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 16, 2011 appellant, then a 39-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that same date she sustained a broken right wrist and right
forearm when she was struck by a tow motor. OWCP accepted the claim for closed fracture of
lower end of the right radius; closed fracture of upper end of the right ulna; closed fracture of
shaft radius and right ulna; and right shoulder adhesive capsulitis. Appellant stopped work on
the date of injury and received wage-loss compensation. She returned to work on December 5,
2011 in a part-time limited-duty capacity.
By letter dated December 23, 2014, Dr. Hoang Nguyen, Board-certified in internal
medicine, reported that appellant had reached maximum medical improvement (MMI).
On January 26, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated February 9, 2015, OWCP requested that appellant submit an impairment
evaluation from her attending physician in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009).3 It
provided her 30 days to submit the requested evidence.
In support of her claim, appellant submitted a February 19, 2015 impairment evaluation
from Dr. Thomas L. Gritzka, a Board-certified orthopedic surgeon. Dr. Gritzka provided a
detailed medical history and findings on physical examination. He reported findings regarding
the right shoulder of 4/5 motor strength and intact sensation, negative Tinel’s test, positive
Phalen’s test, no right shoulder crepitus, negative apprehension and adduction tests, and negative
impingement sign. Range of motion (ROM) was 120 degrees right shoulder extension, 120
degrees right elbow extension, right wrist 35 degrees flexion, 45 degrees extension, 20 degrees
ulnar deviation, and 10 degrees radial deviation; and right thumb 45 degrees abduction.
Dr. Gritzka reported that the most accurate way to rate appellant’s impairment was as a
stand-alone entity using the ROM method. Utilizing the sixth edition of the A.M.A., Guides at
Table 15-30 (thumb ROM),4 Table 15-33 (elbow/forearm ROM),5 and Table 15-11 (impairment
values calculated from upper extremity impairment),6 he opined that appellant sustained a
combined 26 percent permanent impairment of the right upper extremity referable to loss of
ROM in the shoulder, elbow, wrist, and thumb.
On April 9, 2015 OWCP routed Dr. Gritzka’s report, a statement of accepted facts
(SOAF), and the case file to Dr. Kenneth D. Sawyer, a Board-certified surgeon serving as an
OWCP district medical adviser (DMA), for review and determination regarding whether
appellant sustained a permanent impairment of the right upper extremity and the date of MMI.

3

A.M.A., Guides (2009).

4

Id. at 468.

5

Id. at 474.

6

Id. at 420.

2

In an April 14, 2015 report, Dr. Sawyer reported that Dr. Gritzka had found a combined
26 percent impairment of the upper right extremity based on loss of right shoulder, elbow, and
wrist motion, as well as decreased right thumb motion not previously identified. He disagreed
with Dr. Gritzka’s findings and noted that the physician used the ROM rating methodology
instead of the “preferred” diagnosis-based impairment (DBI) method also contained in the
A.M.A., Guides. Dr. Sawyer noted that Dr. Gritzka had not reported his motion measurements
rounded to the nearest 10 degrees as required by the A.M.A., Guides which would change the
rating to 23 percent permanent impairment of the right upper extremity.7 He further noted that
Dr. Gritzka had not provided complete ROM loss findings as required under the A.M.A., Guides,
including a report of multiple (at least three) measurements and a comparison of active to passive
motion.8 Dr. Sawyer noted that appellant’s prior examinations revealed greater ROM than the
findings provided by Dr. Gritzka and varied significantly from 2011 through 2015. The DMA
noted that where active movement varies between examiners, the measurements should be
deemed invalid due to variation of the evidence.9 He concluded that Dr. Gritzka had failed to
determine MMI and suggested a new rating examination by a different examiner.
By letter dated June 1, 2015, OWCP provided Dr. Gritzka a copy of Dr. Sawyer’s
April 14, 2015 report and the SOAF for review requesting that he respond to the concerns
presented by the DMA within 30 days. No further evidence was received.
By decision dated July 6, 2015, OWCP denied appellant’s claim for a schedule award
finding that the medical evidence failed to establish that her condition had reached a fixed and
permanent state.
On July 13, 2015 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
In support of her claim, appellant submitted a June 10, 2015 supplemental report from
Dr. Gritzka following his review of Dr. Sawyer’s assessment. Dr. Gritzka reported that he had
performed three ROM measurements and noted that, if three measurements of a specific range
were close (within six percent of each other), the lowest ROM or that which would give the
greatest impairment should be used. He explained that appellant’s motion, when assessed
repetitively, deteriorated and thus he used the lowest of the three measurements. Dr. Gritzka
explained that the measurements he reported did not differ greatly from those reported by the
other physicians of record. He opined that appellant reached MMI in December 2011 when she
returned to work with restrictions. Dr. Gritzka argued that Dr. Sawyer had provided a similar
impairment rating at 23 percent verses his 26 percent impairment of the upper right extremity.
He noted that he was essentially on the same page with Dr. Sawyer and that a reasonable
approach would be to split the difference and assign appellant a 24.5 percent impairment of the
upper right extremity. Dr. Gritzka concluded that his 26 percent impairment rating was based on
his measurements, including repetitive measurements of the same motion and comparison of
7

Id. at section 15.7a, page 461.

8

Id.

9

Id. at 425.

3

active and passive ROM, while acknowledging that the same individual may have slightly
different impairments based on physical examination from day to day.
At the February 29, 2016 hearing, counsel for appellant testified that appellant’s prior
examinations which, revealed varying ROM measurements, were of no probative value as the
reports were stale. Counsel argued that Dr. Gritzka’s June 10, 2015 report provided the
appropriate rationale for her right upper extremity impairment.
By decision dated April 4, 2016, OWCP’s hearing representative denied modification of
the July 6, 2015 decision finding the evidence insufficient to establish any permanent impairment
to a member or function of the body. He found that appellant’s treating physicians had not
properly evaluated using the preferred DBI method. Therefore, the hearing representative
concluded that the weight of the medical evidence rested with Dr. Sawyer, serving as OWCP’s
DMA, who properly evaluated her permanent impairment under the DBI method utilizing the
A.M.A., Guides.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.11 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A.,
10

See 20 C.F.R. §§ 1.1-1.4.

11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
12

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).

4

Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
ANALYSIS
OWCP accepted appellant’s claim for closed fracture of the lower end of the right radius,
closed fracture of the upper end of the right ulna, closed fracture of the shaft radius and right
ulna, and right shoulder adhesive capsulitis. The issue is whether appellant sustained any
permanent impairment to a scheduled member. The Board finds that this case is not in posture
for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.15
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.17
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the April 4, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds that this case is not in posture for a decision.

14

Isidoro Rivera, 12 ECAB 348 (1961).

15

T.H., Docket No. 14-0943 (issued November 25, 2016).

16

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

17

Supra note 15.

5

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: May 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6